July 18, 2024


Association Of Law

Legal Malpractice

5 min read
Legal Malpractice

Legal Malpractice Theories of Liability

Legal malpractice is a broad term that encompasses various types of civil liability claims brought against lawyers for breaches of duties owed by lawyers to clients and occasionally to other persons that cause damages. Particular conduct by a lawyer may violate the professional standard of care, disciplinary rules, civil statutes, and even criminal statutes. Such conduct may result in money damages, fee forfeiture, disqualification, and loss of license.


Lawyers impliedly represent to clients that they possess the requisite degree of skill, learning, and ability necessary to practice law and will exercise reasonable and ordinary care and diligence in applying their skill and knowledge in the representation of clients. Claims for negligence are by far the most common claims brought against lawyers. The traditional elements of any negligence claim are:

1. the defendant owes the plaintiff a duty to exercise care;

2. the defendant breaches that duty of care;

3. the breach of duty proximately caused the plaintiff injury; and

4. damages for such injury.

Lawyers generally owe the duty to exercise care only to clients, and not to third parties. The Texas Pattern Jury Charges defines professional negligence to mean the “failure to use ordinary care, that is, failing to do that which an attorney of ordinary prudence would have done under the same or similar circumstances or doing that which an attorney of ordinary prudence would not have done under the same or similar circumstances.” Proof of the standard of care and of the breach thereof typically requires expert testimony of an attorney.

Breach of Fiduciary Duty

Lawyers are fiduciaries, and as such owe clients the duty of utmost loyalty and are obligated to render a full and fair disclosure of all facts material to the clients’ representation. Lawyers thus owe a duty of good faith and fair dealing with their clients and all dealings between lawyers and clients must involve full integrity and fidelity by the lawyers. Lawyers must place the interests of the clients before the interests of the lawyers or of other persons, including other clients. Failure in the duty of full disclosure is tantamount to concealment. Clients justifiably rely on the integrity and fidelity of their lawyers.

The fiduciary duties of lawyers include, inter alia, avoiding impermissible conflicts of interests, safeguarding client confidences and property, disclosing fully all material information, following client instructions, and not engaging in activities adverse to the clients. When a client alleges that a lawyer has breached fiduciary duties, a presumption of unfairness arises and the lawyer bears the burden of proof to that the fiduciary duty was complied with perfect fairness, adequacy, and equity.


Fraud consists of a false representation of a material fact, known to be false or made recklessly without any knowledge of its truth, made with the intent that another party would act upon the representation, upon which such other party reasonably relies thereby suffering injury. Lawyers may be held responsible in damages for defrauding their own clients; lawyers may also be liable for committing fraud upon third parties. Fraud may also arise where a lawyer has a duty to disclose certain information and fails to do so, to the detriment of the client.


Lawyers engaging in a civil conspiracy may be liable to clients and to third parties. A civil conspiracy consists of a combination of two or more persons with a specific intent to accomplish an object or course of action that is an unlawful purpose or a lawful purpose by unlawful means where there has been one or more unlawful, overt acts in furtherance of the object proximately resulting in damages. Thus, a lawyer may be liable for conspiracy for knowingly agreeing to defraud a third person. Each co-conspirator is legally responsible for all acts done by any of the co-conspirators in furtherance of the conspiracy.

Deceptive Trade practices

The Texas Deceptive Trade Practices – Consumer Protection Act (DTPA) only applies to lawyers for claims for damages not based on the rendering of legal services the essence of which is the providing of advice, judgment, or opinion. The DTPA does however apply to express misrepresentations or unconscionable acts that cannot be characterized as advice, judgment or opinion. The advantages of pursuing a DTPA cause of action are a somewhat lesser standard for proving causation of damages and the potential of recovering multiplicative damages and attorney’s fees.

Legal Malpractice Remedies


A plaintiff in a negligence or breach of fiduciary duty legal malpractice action must prove that the breach of duty by the lawyer proximately caused the plaintiff’s injury, resulting in damages. Not all negligent acts or breaches of fiduciary duty by lawyers actually cause injury. Proximate cause entails foreseeability and cause in fact. Foreseeability contemplates that the lawyer should have anticipated the risk to the client by the negligent act. Cause in fact requires that the negligent act or omission be a substantial factor in causing the injury without which the harm would not have occurred. Proof of causation in legal malpractice cases usually requires the expert testimony of an attorney to link the breach of duty to the injury caused thereby.

The Texas Jury Pattern Charges defines proximate cause as that “cause which, in a natural and continuous sequence, produces an event, and without which cause such event would not have occurred. In order to be a proximate cause, the act or omission complained of must be such that an attorney using ordinary care would have foreseen that the event, or some similar event, might reasonably result therefrom. There may be more than one proximate cause of an event.”


The most common remedy sought by clients from their former lawyers is the recovery of damages occasioned by the negligence or other breach of duty by the lawyer. The traditional method of establishing damages when a lawyer negligently represents a client is to prove the “suit within a suit.” The plaintiff must prove that but for the lawyer’s negligence, the plaintiff would have recovered judgment in the original case, the amount of that judgment, and that any such judgment would have been collectible. In the case where the lawyer malpracticed a defendant’s case, the client must prove that but for the lawyer’s negligence, the client would have prevailed on a meritorious defense. The “case within a case” standard of proof however may not be required in breach of fiduciary duty and DTPA cases.

In other legal malpractice cases not involving underlying litigation, traditional rules on damages provide that the client may recover all foreseeable damages caused by the lawyer’s wrongful acts or omissions. And, exemplary damages may be recoverable for lawyer fraud or for other wrongful acts committed with malice.

Fee Forfeiture

A lawyer engaging in clear and serious violation of duty to a client may be required to forfeit some or all of the lawyer’s compensation in the matter, even if the client suffered no actual harm by virtue of such violation. Typically, fee forfeiture cases are premised on allegations that the lawyer committed a serious breach of fiduciary duty or fraud. In the trial a fee forfeiture case, a jury will consider whether the lawyer committed the violation claimed, and the trial judge will determine whether such violation is clear and serious and, if so, the amount of the fee to be forfeited.

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