Practice Areas

Defending Ohio attorneys against accusations of legal malpractice

A practicing lawyer needs to be prepared to seek legal counsel to protect against allegations of malpractice.

People enter the practice of law for many different reasons. Whether it be to advocate for a good cause, to provide personal professional services to clients, to follow in the footsteps of family members, to work in an intellectually challenging job or for something else, choosing to enter a licensed profession brings with it professional and ethical responsibilities.

When a client feels that his or her lawyer has failed to meet those responsibilities in some way and that as a result the client has been harmed, the client may decide to sue the attorney for legal malpractice, which Black's Law Dictionary defines as the "failure to render professional services with the skill, prudence, and diligence that an ordinary and reasonable lawyer would use under similar circumstances."

A prudent lawyer will be prepared for such a dissatisfied client by having taken out an appropriate legal malpractice insurance policy and developing a relationship with an attorney with extensive legal malpractice experience. This professional relationship provides a safety net for the practicing lawyer in which he or she can ask for legal counsel in particularly challenging legal practice decisions or difficult client relationships in order to avoid malpractice before it happens, or a client thinks it has happened. If a malpractice lawsuit is filed, the malpractice defense lawyer can vigorously defend against the charges.

So what exactly is legal malpractice? Lawyers study it in ethics class in law school and are tested in ethics on the bar examination, but may want to refresh their memories when actually dealing with real-life situations.

In Ohio, for example, legal malpractice first requires an attorney-client relationship that creates a professional duty of care. To establish malpractice, that duty must be breached and the breach must have proximately caused damage to the client.

The question of whether a client has been damaged by a lawyer's alleged breach of duty can be very complex, requiring an analysis of the strength of the client's underlying case and the chances for success. In addition, it is often necessary for the defending lawyer to present his or her own expert testimony about the proper standard of professional care in the particular case and circumstance.

The American Bar Association provides helpful malpractice information for practicing attorneys on its website, including an article describing how to avoid 10 "malpractice traps": missing deadlines, stress and chemical abuse, poor client relationships, inadequate client screening, insufficient research and investigation, conflicts of interest, involvement in client business interests, poor work documentation, overzealous fee collection practices and belief that a malpractice suit is unlikely.

The article says that a lawyer in the private practice of law has from a four to 17 percent chance of being sued for legal malpractice each year. According to the Texas Lawyer, the chances vary by the type of legal practice, with plaintiffs' personal injury and residential real estate on the higher end; and in certain other practice areas, like securities or intellectual property, while the chances of being sued are lower, the dollar amount of potential exposure is much higher.

Any lawyer facing issues of legal malpractice should speak with a knowledgeable malpractice attorney if the practicing lawyer suspects a client is disgruntled or an actual claim has been made. From offices in Cleveland, Cincinnati and Medina, Ohio, and St. Petersburg, Florida, the attorneys at Bonezzi Switzer Polito & Hupp Co. L.P.A. vigorously defend legal professionals against claims of attorney malpractice.

Keywords: lawyer, legal malpractice, Ohio, defense, attorney