Causes of Action

• The most common causes of action in an attorney malpractice case are negligence, breach of fiduciary duty and breach of contract. A particular case of attorney malpractice may fall into one or more of these categories. For instance, an attorney who fails to investigate a client's case may be liable for negligence in handling the case, whereas an attorney who "leaks" discussions between the attorney and client in private may be liable for breaching a fiduciary duty to keep the client's information confidential. The leak may also constitute breach of contract if the client hired the attorney on the understanding that the information would be kept secret.
  
  

Elements

• The elements of an attorney malpractice case vary by state, but nearly all share the following common elements. To be successful in most attorney malpractice cases, a plaintiff must prove:
  
  1.) That the attorney and client had an attorney-client relationship, or a relationship in which the attorney had a duty to represent the client in some matter;
  
  2.) That the attorney's representation of the client was negligent in some way, or that it breached the attorney's fiduciary duty or a contract between the attorney and client;
  
  3.) That but for the attorney's negligent behavior, the client would not have suffered an injury;
  
  4.) The nature and extent of the injury alleged. Common injuries alleged in attorney malpractice cases include loss of money damages, being barred from going to trial or appealing the case, and losing at mediation or trial.
  
  An attorney licensed to practice in a particular state can provide information on that state's specific attorney malpractice requirements.
  
  

"Case Within a Case"

• Often, in order to succeed in an attorney malpractice case, a plaintiff must demonstrate that but for the attorney's negligence, the plaintiff would have won the original case. To prove that the client would have won the original case, the parties often end up litigating the original case as well as the malpractice case. This "case within a case" situation is most common when the attorney malpractice occurred in the preparation for or during a trial.
  
  

"Attorney Judgment" Rule

• Most jurisdictions adhere to the "attorney judgment" rule. If an attorney makes a tactical decision in good faith and in the belief that it's in the client's best interests, the attorney cannot be held liable for malpractice if, in hindsight, the decision was a mistake. The "attorney judgment" rule protects attorneys who represent their clients in good faith and keep their clients informed, but who in retrospect could have made a better decision regarding the client's case.
  
  

Malpractice in Criminal Cases

• Attorney malpractice can and does occur in criminal cases. However, attorney malpractice is handled differently in the criminal context than in civil suits. In a criminal case, attorney malpractice is known as "ineffective assistance of counsel." It is a violation of the Sixth Amendment right to counsel if, and only if, the attorney committed negligence and the negligence "materially prejudiced" the criminal defendant.
  
  Ineffective assistance of counsel claims are usually handled by appealing the criminal case. If ineffective assistance of counsel is proved on appeal, it can result in a retrial with a new attorney or the original criminal conviction being thrown out. A criminal defendant may bring a separate civil suit for attorney malpractice, but the civil suit will not affect the criminal conviction.