Also known as: malpractices · professional negligence
Written by attorneys · grounded in primary & secondary sources — see below
An instance of negligence or incompetence on the part of a professional.
Mohan Malhotra asked his lawyer to sign an agreement capping any future malpractice recovery at the amount of fees paid. The lawyer refused because Mohan had no separate counsel reviewing the document. Without independent representation, the proposed limit remained unenforceable under the ethics rule.
Maya Malik's lawyer missed the statute of limitations on her personal injury claim and then paid her a small sum from personal funds without disclosing the error. The lawyer never advised Maya to consult independent counsel about a possible malpractice action. The cover-up converted simple negligence into serious professional misconduct warranting discipline.
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Michael Miller's attorney miscalculated the filing deadline and lost a viable claim. The single mistake supported a civil malpractice suit but did not demonstrate unfitness to practice. Bar discipline was therefore unavailable because the conduct did not rise to gross negligence showing professional unfitness.
Megan Moore sued her former firm for overbilling and inadequate representation in a contract dispute. The firm obtained and used its own work product and client discovery responses to defend the malpractice allegations. The self-defense exception allowed the disclosure because Moore had placed the quality of the representation at issue.
Miranda Morales met with an attorney for an initial consultation about a potential claim. The lawyer gave advice on the merits and said he would investigate further. When the lawyer failed to follow up, the statute of limitations expired. The consultation created an attorney-client relationship sufficient to support a malpractice claim for the lost cause of action.
Marco Marquez's lawyer failed to answer a complaint, resulting in a default judgment against him. The court refused to reopen the judgment on grounds that the lawyer had misled the client. Marco's remedy lay in a separate malpractice action against the lawyer rather than relief from the judgment itself.
A single negligent act such as missing a deadline may support a civil malpractice claim but does not by itself warrant discipline unless the conduct is so gross as to demonstrate unfitness to practice law. Discipline and malpractice serve different purposes and have different thresholds.
An attorney-client relationship and its attendant duties can form during an initial consultation when the lawyer gives legal advice and the prospective client reasonably relies on it, even without a formal retainer or fee payment.
The self-defense exception permits a firm to obtain and use client communications and work product necessary to defend against the client's allegations of overbilling or inadequate representation because the client has placed the representation at issue.
An attorney who misses a deadline, attempts to cover it up by paying the client personally, and fails to inform the client of a potential malpractice claim and the need for independent counsel commits serious professional misconduct beyond mere negligence, including dishonesty and conflict-of-interest violations.
A lawyer may not make an agreement prospectively limiting the lawyer's liability to a client for malpractice unless the client is independently represented in making the agreement.
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