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The Divorce Encyclopedia
Attorney Malpractice


Term Definition Attorney Malpractice - a breach of contract or tort by a lawyer when he or she breaches his or her duty to care to a client or third party.
Application in Divorce Many legal observers believe changes in divorce law in the past thirty years have put lawyers more at risk of malpractice suits. No-fault divorce, combined with equitable distribution, has shifted the emphasis from finding and proving fault to proper identification, valuation and distribution of assets.

Moreover, courts have been asked to consider whether damages for emotional distress and mental suffering are constitutive of attorney malpractice.

In general, attorney malpractice includes several identifiable elements: breach of contract, fiduciary duty or negligence. The plaintiff must prove that the lawyer failed to exercise reasonable skill, and that such failure was the proximate cause of damages or loss. This elements are not unlike malpractice actions against other professionals (and sometime professionals who may be involved in a divorce action). Grounds for a malpractice action do not include generalized unhappiness with the outcome a divorce action because very few parties to a divorce are ever happy at its conclusion.

To meet an ineffective of counsel standard as grounds for a malpractice action, a plaintiff must prove that 1) his or her counsel’s performance fell below a standard of reasonableness, that 2) "this deficient performance did not involve the exercise of judgment, discretion or strategy, or trial tactics" and that 3) the performance so comprised the action that without these professional errors, the plaintiff would have prevailed.

Some jurisdictions require that a person intending to sue a lawyer for malpractice file an affidavit of merit from a professional legal malpractice attorney who certifies that there are at least reasons for consideration of malpractice.

Sometimes related to attorney malpractice is unethical behavior of attorneys who become sexually or romantically involved with clients. A lawyer who has a sexual relationship with his or her client is unethical. He or she is also at risk of civil liability for malpractice, breach of fiduciary duty, fraud, deceit and battery. Lawyers who have sexual relationships with clients are sometimes called bombers.

See also Malpractice; Affidavit of Merit; Bomber.

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