Legal Malpractice

Legal malpractice is the failure of a lawyer to render competent professional service to a client. If the client is damaged as a result of the failure, he or she may have a claim against the lawyer for legal malpractice. There are three major theories of liability: 
  • Negligence
  • Breach of fiduciary duty
  • Breach of contract

The most common theory of liability used in malpractice cases is negligence. 

Q: What is negligence? 
A: An attorney has a duty to the client to perform all work that is relevant to a case with the standard of care expected of the average attorney in the same or a similar situation. If the attorney fails to perform at the level of an average attorney, there may be negligence and liability for legal malpractice. 

Q: What is a breach of fiduciary duty? 
A: An attorney is to act in the best interests of his or her client. When an attorney puts his own interests or those of a third party before those of the client, the attorney may be breaching his or her fiduciary duty to the client. 

Q: What is a breach of contract? 
A: A retainer agreement is a contract that defines the relationship between the lawyer and client. The agreement, like all contracts, lists the role, expectations and obligations or each party. A breach of contract occurs when a party to the agreement fails to uphold the agreement. 

Q: What must be proven to win a legal malpractice case? 
A: To win a legal malpractice case, you must prove four points:

  • Your attorney had a duty to act properly.
  • Your attorney breached that duty by acting negligently, not following through with the agreement, or possibly making mistakes that an average attorney would not have made.
  • Your attorney’s behavior caused you damage. This includes proving that the results of your case would have been different (for example, you would have won the case) if the attorney had acted properly.
  • You suffered a financial loss as a result of the behavior.

If you or a loved one has been injured as a result of possible legal malpractice, call the Law Office of Charles J. Brocato at 253-851-9164 or e-mail