"Legal malpractice occurs in legal areas other than just trials," Stewart says. "Many claims come out of contractual relationships, where the lawyer negotiated and then drafted the contract. The lawyer may have missed important provisions or the client alleges that what was agreed upon verbally is not what was included in the signed contract."In fact, there are many areas in which legal malpractice can occur. These include contract law, patent law, real estate transactions, copyright law and even personal injury law. In such cases, the person claiming legal malpractice must have suffered some harm, usually financial, as a result of the attorney's negligence.
"You could have a case where an inventor needs a patent and hires an attorney to file the patent," Stewart says. "If the attorney files the patent incorrectly, the inventor loses intellectual property. We have one case where an attorney filed a dependent patent. The product went into production but six months later a copy was brought up by a competitor. The inventor lost thousands of dollars. It turns out, the attorney should have filed both dependent and independent patents, but failed to file the independent patent."
Stewart says many malpractice cases are not brought against bad attorneys but good attorneys who have made an error (or whose staff has made an error). The issue is that good attorneys tend to have more clients, and the more clients they have, the higher the likelihood of an error being committed.
"According to the American Board of Professional Liabilities [ABPL], twice in every lawyer's career, that lawyer will commit an act of malpractice," Stewart says. "That doesn't make the lawyer bad. They handle so much that is highly technical in nature that an error is bound to happen. It's a product of numbers. It's not usually the bad attorneys who get sued. People think damage measures from attorneys are because he did something bad. But the key is negligence, not intent."
In other words, in a case of negligence, the attorney may just have made an error, such as forgetting to include a provision in a contract, which negatively affected the client. The attorney did not mean to harm his client, but the negligence still occurred.
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"The interesting part of legal malpractice is that the citizen is expected to be reasonably informed and responsible for his actions," Stewart says. "People can complain that a lawyer forced them to sign a contract, but they don't have a case if the lawyer didn't hold a gun to their head. They didn't force you because they were in a room yelling at you; unless they locked the door, you could walk out. It's only forced when an attorney settles without consent, and even then, it's a question of whether if the case had gone to trial, the client could have received more. A bad result does not equal malpractice, even if the client believes he was wronged."
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Linda McCollum
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