Andrew Rubin, Esq.

Establishing the proper standard of care in legal malpractice cases an important task, P.1

Legal malpractice can be complex, not only because factual scenarios in legal representation can be complicated, but also because it isn’t always clear at the outset to what standard of care the accused attorney should be held.

In any legal malpractice case, plaintiffs have to be able to provide reliable, relevant evidence that there was an attorney-client relationship, that the attorney was bound by a duty of care but breached that duty, and that this caused harm to the plaintiff. Clearly establishing the proper standard of care, and distinguishing it from the actions taken by the accused attorney, is critical in these cases. 

Failure to establish the standard of care in a legal malpractice case can result in the lawsuit’s failure. That is what happened in a malpractice case filed by a woman who sued the attorney who represented her in her divorce. According to her malpractice complaint, the attorney failed to obtain bank and billing records on time from the former husband, and waited to depose the former husband until one week before trial. At trial, the court ruled for an equal distribution of marital assets and denied her requests for alimony and child support.

The wife later filed a malpractice suit against her attorney, saying that his negligence caused her to accept an unacceptably low settlement. That lawsuit ended up being dismissed because she failed to establish the standard of care to which the lawyer should have been held in the case and how the lawyer deviated from that standard

She ended up appealing the dismissal, arguing that because the attorney’s negligence was obvious and a matter of common knowledge, expert testimony was not necessary. The appeals court disagreed, however. In our next post, we’ll continue looking at this case, and the importance of working with an experienced attorney to clearly establish the standard of care in medical malpractice cases. 

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