Legal Malpractice

Chicago Legal Malpractice Attorneys

Helping clients recover for their former counsel’s negligence

An attorney-client relationship is fiduciary in nature and requires a high degree of trust and fidelity. Legal malpractice may occur when an attorney's negligent action, inaction (failing to file a lawsuit within the statute of limitations period), or advice causes the client damages. In certain situations, the attorney may also be liable to an intended beneficiary or a third party. The recovery may include the money the client would have obtained but for the former attorney's breach of duty, legal fees paid to the former attorney, or the amount of judgment imposed against the client due to the former attorney's breach of the duty of care.

To prove a claim of legal malpractice, the former client must plead and prove that:

  • An attorney-client relationship existed
  • The attorney breached the duty of care to the client
  • That the attorney's breach proximately caused the client's injury
  • The client suffered a pecuniary (financial) injury as a result of the wrongful conduct of the attorney. Tri-G, Inc. v. Burke, Bosselman & Weaver, 222 Ill. 2d 218, 225-26 (2006).

An attorney may be liable for failing to comply with filing deadlines, mishandling client funds, engaging in unfair dealing, failing to follow reasonable client instructions, breaching the duties of loyalty or confidentiality, and failing to charge a client in accordance with the fee agreement, or fraud.

Illinois Rules of Professional Conduct apply

Lawyers are also subject to the Illinois Rules of Professional Conduct set forth by the Illinois Bar. Those rules govern the conduct of lawyers and require the lawyer to be competent, to make certain disclosures involving legal fees to clients, to keep client confidences secret and to tell the truth to third parties and to courts. Violations of these rules can be relevant in legal malpractice cases.

The lawyer’s duty to the client

The Illinois Supreme Court stated this duty (the duty of competence) quite succinctly in 1870. As a professional, the attorney owes the client a duty of due care. In 1870, the Illinois Supreme Court described the attorney’s duty of care, or duty of competence, in this fashion:

Where a person adopts the profession of the law, if he assumes to exercise the duties in behalf of another, for hire and reward, he must be held to employ in his undertaking, a reasonable degree of care and skill. If injury results to the client, for the want of such a degree of reasonable care and skill, he must respond in damages, to the extent of the injury sustained. This rule commends itself to our sense of right, as a wholesome and salutary one, and one that is necessary to the protection of that large class of persons who must of necessity submit their interests to the keeping of persons who hold themselves out to the public as learned and skilled in the law. Stevens v. Walker, 55 Ill. 151 (1870).

Exceptional service in malpractice cases

Edward X. Clinton, Jr. has successfully prosecuted malpractice cases against attorneys and has served as an expert witness for plaintiffs in legal malpractice cases. He has also defended attorneys accused of malpractice.

The case within a case requirement in the litigation context

One of the more challenging aspects of legal malpractice actions is proving that the lawyer’s conduct caused the client’s financial injury.

As the Illinois Supreme Court has noted, “the theory underlying a cause of action for legal malpractice is that the plaintiff client would have been compensated for an injury caused by a third party, absent negligence on the part of the client’s attorney.” Tri-G v. Burke, Bosselman & Weaver, 856 N.E.2d 389, 222 Ill. 2d 218 (2006).

In the Tri-G case, Tri-G alleged that the defendant law firm had failed to diligently prosecute a claim against another party, Elgin Federal. The Court held: “where the alleged legal malpractice involves litigation, no actionable claim exists unless the attorney’s negligence resulted in the loss of an underlying cause of action.” To satisfy this requirement, the plaintiff must introduce proof at trial that it would have won the underlying case. This means that the legal malpractice plaintiff must prove the underlying claim again in the legal malpractice context.

In Tri-G, the plaintiff established the case within a case by introducing evidence that the defendant law firm was not prepared for trial. This satisfied the case within a case requirement.

Legal malpractice in corporate or real estate transactions

Where litigation is not involved, it can be more difficult to prove that the lawyer’s breach of duty caused the client’s injury. The types of errors that can constitute malpractice include:

  • Failing to obtain clear title to the client’s property
  • Failing to file an estate tax return in a timely fashion
  • Failing to open an estate in a timely fashion
  • Failing to investigate factual statements made by a client or a third party

A bad result may not constitute malpractice

Often a client may feel that a case went very poorly. The judge ruled for the other side or the jury found against the client. Bad results are common in litigation. One side comes out the loser in every case that is decided by a judge or jury. Ties are exceedingly rare. Thus, a bad result is not legal malpractice unless the lawyer made a big mistake that probably changed the outcome of the litigation. Such mistakes are rare.

A plaintiff in a malpractice case must also prove actual damages, which can include economic losses due to the attorney malpractice and, in some cases, attorney fees incurred to correct any error. The damages must have been caused by the lawyer’s error.

We recommend that you obtain experienced counsel to determine if the bad result you experienced was malpractice or just a bad result. Clinton Firm lawyers have extensive experience in evaluating legal malpractice claims.

The Clinton Law Firm maintains a blog on legal malpractice topics. We encourage you to consult our blog to learn further about legal malpractice topics.

Contact a Chicago legal malpractice attorney to discuss your situation

If you feel that you have suffered a loss due to a former attorney's negligent or wrongful conduct, please contact the Clinton Law firm for a free initial consultation.

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