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The Divorce Encyclopedia
Malpractice (Legal)


Term Definition Malpractice (Legal) - improper or incompetent behavior by an attorney.
Application in Divorce Legal malpractice means both professional misconduct and unreasonable lack of skill. Misconduct generally implies commission, that is, doing something unethical or illegal; an unreasonably lack of skill generally implies making unacceptable mistakes in judgment or performance, such as missing a filing deadline. Legal malpractice, therefore, is a large enough term to include felonious behavior as well as incompetence.

Legal malpractice often stems from violations of the canons of (legal) ethics, which is also called the Code of Professional Responsibility. Lawyers who improperly manage funds left in their trust frequently find themselves cited for violations of the canons of legal ethics. A bomber -- a lawyer who takes sexual advantage of a client -- has violated legal ethics.

The canons of (legal) ethics are state rules established by state supreme courts regulating the conduct of lawyers. These axiomatic norms of conduct and behavior were initially adopted by the ABA and later by most states. Violations can lead to warnings, fines, suspensions and disbarment.

Settlements negotiated before a complete discovery of assets, marital and separate, pose a malpractice risk for divorce lawyers. In divorce, a majority of states now permit litigants to charge malpractice even when the parties agreed to the settlement and the court approved the agreement. These claims now stem from allegations that a lawyer failed to diligently discover marital assets. Moreover, a lawyer who fails to inform a client of settlement offer or fails to recommend acceptance of settlement offer may also be liable for malpractice. In short, in a divorce action a lawyer has a number of vulnerabilities, particularly when he or she fails to fully investigate all marital and separate property.

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