What is Professional Malpractice?

Malpractice is a professional’s failure to use minimally adequate levels of care, skill or diligence in the performance of the professional’s duties, causing harm to another. In New York, attorney malpractice is defined as a “deviation from good and accepted legal practice, where the client has been proximately damaged by that deviation, but for which, there would have been a different, better or more positive outcome.”

Malpractice typically occurs when a professional fails to exercise his or her professional skills in an assignment at the necessary standard of care, skill and learning applied under the circumstances by the average prudent reputable member of the profession in the “community”. The analysis is based upon the standard of care for the professional in the community” what other professionals in the same field do for their clients who are located in the same geographic area. In New York, courts will hold all attorneys to the same standard of professional performance.

The first necessary element is a professional relationship. In order to sue for professional malpractice, the plaintiff must have retained the attorney. There must of course be a relationship in privity, between the professional and the plaintiff such that the professional owes the plaintiff a duty. In attorney malpractice either a written retainer, proof that the attorney engaged in work or proof that the attorney appeared for the client is necessary. While in litigation often there is clear proof of representation; in transactional settings, representation may be less clear. Proof to a jury’s satisfaction of actual representation must be demonstrated. This proof may come from the correspondence of the professional, from papers authored by the attorney or from litigation documents.

In the coming months we will discuss the stages of representation, standards of proof, statute of limitations, continuous representation, and attorney fees in light of malpractice claims.

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Here are the new Legal Malpractice Cases reported in New York.

1.Tolmasova v. Umarova, 2005-00917 , SUPREME COURT OF NEW YORK, APPELLATE DIVISION, SECOND DEPARTMENT , 2005 NY Slip Op 7523

Pro-se litigant’s case is dismissed after failure to prosecute. Continue Reading Legal Malpractice Cases This Week in New York

A South Bergen NJ newspaper reports a very long statute of limitations in a legal malpractice case. Seemingly spread over more than 10 years, plaintiff was injured in a supremarket personal injury accident, and the case was dismissed. It appears to be some sort of calendar dismissal. Continue Reading Long Statute of Limitations in Legal Malpractice

Buried within the political and social commentary on the president’s nominee, Harriet Miers, is a nugget of legal malpractice information. Blue Mass. Group tells us that while the nominee was a managing partner at Locke Liddell she approved settlement of two huge legal malpractice cases. One settlement was for an allegation that the law firm knew of an ongoing fraud and failed to take action, and the second case was similar. The two cases settled for $ 30 million. The web site quotes David Sirota of Huff Post.

The New York Law Journal reports a case which quotes a famous 1697 line from a William Congreve play: “Heaven has no rage like love to hatred turned, and hell has no fury like a woman scorned.” In this legal malpractice case, a matrimonial, the issues is whether the attorney was his or her’s. Continue Reading Legal Malpractice: Whose attorney is it?