Understanding Legal Malpractice in California


On television, the least popular cops work in internal affairs.  By the same token, one might expect us to hesitate, especially around other lawyers, to say we serve clients looking for a legal malpractice lawyer in San Francisco, Oakland, Santa Rosa, and other locations in Northern California.  The truth is we’re very proud to practice in this arena.  Legal malpractice is about ensuring lawyers do not practice with wanton disregard for our profession’s high standards.  Today, we look at legal malpractice in California.  We examine the elements of a successful claim, including the case-within-a-case concept, and look at one reason The Brod Law Firm is able to serve malpractice clients effectively and efficiently.

The Basics of a Legal Malpractice Claim

Let’s begin with what legal malpractice is not.  A meritorious legal malpractice claim is not triggered just because a “good” case was lost or a court rendered an unjust verdict.  No lawyer can promise a certain result, in fact that itself might actually be malpractice.  Legal malpractice does exist when a lawyer fails to provide professional services with the diligence, prudence, and skill that a reasonable lawyer would use in the situation.  This standard applies to all non-medical professional malpractice actions and is detailed in California Civil Jury Instruction 600 (“[A/An] [insert type of professional] is negligent if [he/she] fails to use the skill and care that a reasonably careful [insert type of professional] would have used in similar circumstances.”).

To prove legal malpractice in California, the plaintiff must show:

  1. An attorney-client relationship existed
  2. The attorney was negligent in the legal representation provided
  3. The negligence proximately caused the client harm
  4. The extent of injury

Examples of Legal Malpractice

What sort of negligence can trigger a legal malpractice claim?  Examples include: Failing to maintain communication with the client; Failing to meet clear deadlines; and Taking on a case s/he is not qualified (and does not work to become qualified) to handle.  Malpractice can also be more intentional such as overcharging or mingling client’s money with his/her own.  Legal malpractice may involve transactional services (ex. contract drafting, corporate merger services, etc.).  An example would be drafting an agreement containing a substantial error that would be obvious to another transactional attorney.

The Case-Within-a-Case Concept

Showing negligence is not sufficient for a legal malpractice case.  There must be specific proof that this negligence caused harm.  Put another way, as set forth in Civil Jury Instruction 601: “To recover damages from [name of defendant], [name of plaintiff] must prove that [he/she/it] would have obtained a better result if [name of defendant] had acted as a reasonably careful attorney.”  In litigation, this essentially means that a legal malpractice claim includes a “case within a case;” the plaintiff must show that there would have been a different result if the lawyer provided a reasonable level of legal service.

This part of the case also establishes damages.  A plaintiff must prove exactly what was lost because of the malpractice, such as how much the plaintiff would have won at trial or would have earned with a properly drafted contract.  The plaintiff must also show the damages could have been collected, i.e. that the defendant in a car accident case (or his insurance) could have paid the damages.

Why Hire The Brod Law Firm?  Why Not a Firm that ONLY Does Malpractice?

The “case within a case” requirement is one reason we are well-positioned to serve as a Northern California legal malpractice law firm for Oakland, Santa Rosa, San Francisco, and neighboring regions.  While it might be tempting to choose a firm that only does legal malpractice, we believe this isn’t the best choice.  A successful case requires re-doing the initial representation, therefore clients are best served by an attorney knows the underlying field.  For example, as a premises liability and a legal malpractice firm, we could effectively handle a malpractice suit involving a slip-and-fall case.

Attorney Greg Brod is proud to practice as a legal malpractice lawyer in Oakland, San Francisco, and Santa Rosa.  If you have been a victim of legal malpractice, please call.  We would be honored to talk with you and to help uphold the honor of our legal system.

See Related Blog Posts:

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



(Image by Bruce Bortin)

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