Bankruptcy is a very serious, and complicated, legal matter that affects the person filing the bankruptcy for years to come. If an individual retained the services of a bankruptcy attorney and believes that the attorney did not perform his job according to the standards required by the legal profession, then the client may have the basis for a legal malpractice lawsuit against the attorney.
What Is Legal Malpractice?
- Legal malpractice is a negligent tort claim. Torts is the area of the law that deals with injuries — physical, financial or emotional — to a plaintiff, or victim. All negligent tort claims are based on four basic elements — duty of care, breach of the duty of care, causation and damages. In a legal malpractice case, the plaintiff must show that the attorney breached her duty of care to the plaintiff. In an underlying bankruptcy case, the plaintiff will need to establish the standard of care required and then prove that the attorney breached that standard, or duty, of care.
- The plaintiff in a legal malpractice case must show that the damages she suffered are actually a direct result of something the attorney did, or failed to do, while representing her. In a bankruptcy case, for example, let’s say the plaintiff was required to relinquish her home to the court to pay her debts. If she would have lost her home regardless of anything the attorney did, then a minor mistake made by the attorney will not qualify as malpractice. On the other hand, if an attorney failed to claim an exemption on behalf of the plaintiff that would have allowed her to retain her home, then that might be considered causation for the purpose of a legal malpractice lawsuit.
- “Damages” is the legal term used to refer to monetary injuries sustained by the plaintiff. In a legal malpractice action against a bankruptcy attorney, the plaintiff will need to prove that he suffered an actual financial loss as a result of the attorney’s negligence, or malpractice. Simply showing negligence without any real financial loss will not work.
- In order to initiate a legal malpractice lawsuit against a bankruptcy attorney, a plaintiff should first be aware of the statute of limitations in the jurisdiction where the alleged malpractice occurred. Statutes of limitation will vary by state but may be as short as one year from the date of occurrence. A potential plaintiff who believes she has a viable malpractice claim should consult an attorney as soon as possible. A legal malpractice lawsuit is filed in the same manner as other civil lawsuit by filing a complaint against the attorney. If the plaintiff wins, he will be awarded a monetary judgment against the attorney.