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Legal Malpractice Law - Canada

About this Practice Area
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Legal Malpractice Law Definition

“Legal malpractice” is commonly used terminology for actionable wrongs committed by a lawyer carrying out the terms of a client’s retainer. Such actionable wrongs may be characterized as breach of contract, negligence, or breach of fiduciary duty. Lawyers, as part of a retainer, may be directed to hold and disburse funds, and so the lawyer becomes a trustee of funds and risks being sued for an actionable wrong in the nature of breach of trust.

There is extant litigation making its way through the courts where parties harmed by a lawyer’s tax opinion have sued on a “Hedley v. Byrne” theory where there was no direct retainer with the lawyer. There are other instances where a lawyer may be sued by a plaintiff who has no retainer, but for the vast majority of cases a lawyer will be sued referable to conduct carrying out the terms of a retainer.

“Legal malpractice” occurs when a lawyer conducts herself or himself in a manner referable to the retainer that fails to meet professional standards and such failings cause harm to the client.

A lawyer who fails to meet the accepted standard of practice by failing to exercise the care, skill, and diligence of a prudent member of the legal profession which causes loss to the client will be found to be negligent and in breach of contract and therefore liable to the client.

Since the needs of clients that give rise to legal representation are typically complex, it is necessary to use as an expert witness a lawyer similarly qualified as the lawyer being sued to establish the governing accepted standard of practice.

In the case of lawsuits against litigation lawyers, the entitlement to damages depends upon showing that the client would have succeeded in the underlying case if the lawyer had not breached his or her professional duties. In short, it must be shown that the lawyer’s failings likely resulted in an unfavourable outcome in the underlying action or put another way, a favourable result would have been achieved if the standard of practice was met.

It should also be borne in mind that a lawyer is responsible for the acts or omissions of his or her associates, clerks, and legal assistants.

Legal malpractice claims, as indicated, are typically complex and can be difficult to prosecute. The advice of lawyers skilled in this specialized area of law should be sought at an early stage to determine if a claim has merit and warrants prosecution.
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