Legal Malpractice

Legal malpractice may be established when a lawyer fails to provide services carefully, and competently and causes a client to suffer damages or losses. 

To succeed with a claim of legal malpractice, you must prove certain key elements, including: 

• Statute of Limitations: In New York, the time limit to start the action is generally three (3) years from the date the malpractice occurred, or if the lawyer continues representing you, when the attorney-client relationship ends. 

• Duty of Care: You must prove that an attorney-client relationship existed, such as with a written retainer agreement or some evidence that the lawyer was hired to act on your behalf. When there is no formal retainer agreement or payment of fees to the lawyer, courts will consider the words, actions, and communications between you and the lawyer to determine if an attorney-client relationship was established.  

• Breach of Duty (proving negligence): You must prove that the lawyer failed to meet the duty of care and was negligent based upon a reasonable standard of care, skill, diligence, and knowledge performed by other competent lawyers under similar circumstances. In criminal cases, this is referred to as the “Ineffective Assistance of Counsel.” 

Examples of breach of duty include:  

• • missing the statute of limitations to file your case,  

• • failing to add a defendant to the case,  

• • failing to conduct proper investigation,  

• • failing to inform you of important facts or events that impact your case, or  

• • settling a case without your consent.  

• Causation: You must show that you would have won your underlying case if not for the lawyer’s negligence. Often this is shown by proving that “but for” the lawyer’s negligence, you would have been successful or obtained a better result in your case. 

The New York Court of Appeals, New York’s highest court, has said that before you sue a lawyer for malpractice, you must file an appeal in the original case if you have a good chance of winning that appeal. If you are not likely to win the appeal, you can file a malpractice lawsuit without appealing first.

If you do not appeal when you could have, the lawyer you are suing may use that as a defense. This could affect your legal malpractice case.  

Example of possible legal malpractice: 

You hired a lawyer to help with your car accident case. The lawyer had a deadline to file important documents with the court but forgot to do it. Because the documents were filed too late, you lost your chance to receive compensation to help pay your medical bills. 

This could be legal malpractice because the lawyer made a serious mistake that hurt your case. 

Examples of what is not legal malpractice: 

• • You lost the case; a bad outcome is not proof of malpractice. 

• • Your lawyer used a strategy that ultimately does not win your case, if the lawyer had a reasonable basis for that claim or defense.  

• • Your lawyer is rude, difficult to contact or not returning your phone calls. 

• Damages: You must prove actual, measurable monetary damages resulting from the lawyer’s negligence. In New York, you cannot sue for emotional or mental distress in a legal malpractice case. You might be able to recover punitive damages if you can prove criminal conduct or other gross dishonesty on the part of the lawyer.  

Generally, these cases require testimony and evidence to be provided by expert witnesses, such as medical doctors, accountants, and other experts. You should discuss with your lawyer how this will impact the costs of bringing your case. 

Determining whether there has been legal malpractice is a multi-step process that requires careful review of what happened in the underlying case for which you hired the lawyer.  

Get Help From an Experienced New York City Legal Malpractice Attorney 

Regardless of how you think your lawyer may have mishandled your case, you should talk to an experienced legal malpractice lawyer who can look at your documents, listen to your unique situation, and represent you if it appears you have a case. 

The New York City Bar Legal Referral Service can connect you with a qualified lawyer. Contact us today to schedule a consultation and learn how a legal malpractice lawyer can help you move forward.