But is it Malpractice? A Look at Legal Malpractice in California

Perhaps there is no profession that is the subject of as many jokes about greed and misguided ethics as the legal field.  The truth is, however, that most lawyers adhere to a very stringent code of ethics.  For Attorney Greg Brod, these principles are not just rules on paper, but represent a deeply personal commitment to ethical practice.  He is proud to serve as a plaintiffs’ lawyer and, because he values his professional obligations, he also serves as a Northern California legal malpractice lawyer.  At the Brod Law Firm, we take cases of legal malpractice in California personally.

Legal Malpractice Generally

In broad terms, legal malpractice claims in California, require showing that the lawyer was negligent because s/he failed to exercise the skill and care that a reasonably careful attorney would exercise under similar circumstances (See Civil Jury Instruction 600).  Also instructive is Rule 3-110 of the California Rules of Professional Conduct (“CRPC”) which provides that a lawyer violates of the rules of the profession when s/he intentiscalesonally, recklessly, or repeatedly fails to act with competence when providing legal services.  The Rule further defines competence as “the 1) diligence, 2) learning and skill, and 3) mental, emotional, and physical ability reasonably necessary for the performance of such service.”

As with other negligence claims, the plaintiff in a California legal malpractice case must demonstrate that harm resulted from the breach of duty.  This is important because it typically means a plaintiff must show that a competent attorney would have gotten a different result.  This is often referred to as “the case within the case” since the plaintiff typically needs to prove the original case in addition to the occurrence of legal malpractice.

Examples: What Is and Is Not Legal Malpractice

Legal malpractice is serious.  Simply getting a bad result on a good case does not mean the attorney committed malpractice.  The following examples may help clarify:

  • My attorney settled my case without my authorization – This is malpractice.  Attorneys must have the client’s approval to agree to a settlement.  To win damages, however, you will need to prove your case was worth more than the amount of the unapproved settlement.
  • My attorney used my retainer or mixed my money with his/her own – This is malpractice.  Attorneys must not mingle client money with his/her own money.
  • My lawyer stopped working on my case – This may be malpractice, especially if your attorney ignores you for a long period of time and/or it results in the case being thrown out of court.  Document your concerns in a letter to the attorney (save a copy!) and consider consulting another attorney to ensure your case is handled correctly.  To recover in a legal malpractice suit, you will need to prove you would have been successful had the case been properly handled.
  • My attorney made a major mistake – This may or may not be malpractice.  In order to prevail, you will need to show that the mistake would not have been made by a competent attorney.  Simply being wrong or utilizing an unsuccessful strategy is not grounds for a malpractice claim.  Speaking to a legal malpractice attorney can help.  Again, to recover money, you must show that the mistake cost you money that you would have gotten if the attorney acted competently.
  • My attorney overbilled me – This may be malpractice, but it is a notably hard form of malpractice to prove.  You will often need to prove that the overbilling was intentional.  It is not malpractice for an attorney to bill for a strategy that was unsuccessful (as long s/he was not incompetent).  It is malpractice, however, to knowingly pad a bill.
  • My attorney took my case but knew nothing about the area of law – This may be malpractice.  If an attorney is not qualified to handle a matter (and does not take steps to become qualified) and the lack of qualification hurts your case, you may have a claim for legal malpractice.
  • My attorney recommended a lower settlement than I believe I deserve – This is not malpractice.  You may want to consult another attorney to get a second opinion, but recommending a low settlement is not legal malpractice.
  • My attorney is friends with the opposing counsel – Generally speaking, this is not malpractice.  Lawyers may socialize with opposing attorneys.  It is malpractice, however, for your attorney to reveal confidential information to opposing counsel.  Further, it is much different and may be malpractice for either attorney to socialize with the judge or communicate with the judge outside the other attorney’s presence.

Our Legal Malpractice Law Firm in San Francisco, Oakland, and Santa Rosa

Why do we handle legal malpractice claims?  We do so because we believe lawyers owe a duty to their clients and because we hold ourselves and our fellow professionals to a high handshake.

Why hire the Brod Law Firm as your San Francisco legal malpractice law firm in San Francisco, Santa Rosa, Oakland, or anywhere in Northern California?  We understand legal malpractice and we also handle a range of other fields of law.  Proving legal malpractice and recovering damages often means re-doing the initial representation.  This means that clients are best served by an attorney who knows the underlying field.  For example, as a personal injury and a legal malpractice firm, we could effectively handle a malpractice suit involving a car accident case.

Call (800) 427-7020 or use the contact form on this page to learn more.  We offer a free evaluation and consultation to all potential clients.

See Related Blog Posts:

Understanding Legal Malpractice in California

Our Commitment to Legal Ethics – Adhering to the Ethical Standards of Our Profession and Protecting the Victims of Attorney Malpractice in California

(Photo by Clyde Robinson of work by Jason Luper; Image of handshake by dhendrix73)