Also known as: malpractice
Written by attorneys · grounded in primary & secondary sources — see below
A tort arising when a professional fails to exercise the degree of care and skill ordinarily expected in that profession. To succeed in a claim the plaintiff must prove duty of care, breach of the applicable standard, proximate cause, and damages.
Paul Peterson retained Pinnacle Holdings to handle a complex transaction. The firm asked him to sign an agreement capping its malpractice exposure before any work began. Peterson had no separate counsel review the document. The agreement is unenforceable under the governing ethics rule.
Perry Pratt missed the statute of limitations on Philip Powell's personal-injury claim. Pratt paid Powell from personal funds and never disclosed the error or advised seeking independent counsel. The cover-up and failure to inform constitute serious professional misconduct beyond ordinary negligence.
Select any source to read its text and confirm it supports the definition.
Peter Park miscalculated the filing deadline in Pamela Phillips's contract suit, causing the claim to be lost. The error supports a civil malpractice action but is not so egregious as to demonstrate unfitness to practice. Bar discipline is therefore unwarranted.
Pierce Patterson sued his former firm alleging overbilling and inadequate representation. The firm obtained and used client communications and work product necessary to defend the malpractice claim. The self-defense exception permits this use because Patterson placed the representation at issue.
Progressive Healthcare consulted with Peak Performance about a potential regulatory claim. The firm gave advice and the company reasonably relied on it even without a retainer. When the firm failed to follow up and the statute of limitations expired, the firm faced malpractice liability for breaching the duty of care.
Platinum Partners relied on an audit report prepared by an accounting firm for a client company. The report contained negligent misstatements that caused Platinum substantial losses. Under the governing standard the firm owed no duty of care to the non-client investor.
The plaintiff must show that the professional owed a duty of care, breached the applicable standard of skill and diligence, and that the breach proximately caused actual damages.
Supporting sources
A single honest mistake that supports a civil claim does not by itself justify bar discipline unless the conduct is so gross as to demonstrate unfitness to practice law.
A relationship and attendant duty of care can arise from an initial consultation where the lawyer gives legal advice and the prospective client reasonably relies on it, even without a formal retainer.
Yes. The self-defense exception permits a firm to use client communications and work product necessary to defend itself when the client has placed the representation at issue.
…of harm from the "very pendency of the lawsuit," ante , at 740, something like the recognized dilemma of the physician sued for malpractice; of the "disruption of normal business activities which may accompany a lawsuit." ante , at 743; and of "proof . . . which depend[s] almost entirely on oral testimony," ibid. , as if all…