Legal Malpractice FAQ

Legal malpractice in California occurs when an attorney fails to exercise the skill, prudence, and diligence that members of the legal profession commonly possess and exercise when representing clients. Under California law, legal malpractice is considered a form of professional negligence that requires the plaintiff to prove four essential elements: the existence of an attorney-client relationship creating a duty of care, the attorney's breach of that duty by falling below the standard of care, actual causation connecting the breach to the client's harm, and resulting damages.

The California Business and Professions Code Section 6068 outlines attorneys' duties to their clients, including maintaining client confidences, communicating material developments, and acting competently. California courts apply the "case within a case" doctrine, meaning you must prove not only that your attorney was negligent but also that you would have obtained a more favorable result in the underlying matter had the attorney performed competently. This makes legal malpractice cases complex and typically requires expert testimony to establish the applicable standard of care.

Determining whether your attorney committed malpractice requires evaluating their conduct against the standard of care expected of reasonably competent attorneys handling similar matters in California. Common indicators of potential legal malpractice include missed statutes of limitations or filing deadlines, failure to appear at critical hearings or trial dates, inadequate investigation or preparation of your case, failure to communicate important case developments or settlement offers, conflicts of interest that weren't disclosed, mishandling of client funds held in trust accounts, and providing incorrect legal advice that caused financial harm.

However, poor case outcomes alone don't constitute malpractice—attorneys aren't guarantors of results. Under California Rules of Professional Conduct Rule 1.1, attorneys must apply the learning and skill, and perform the mental, emotional, and physical ability reasonably necessary for the performance of such service. To have a viable malpractice claim, you must demonstrate that a competent attorney would have handled the matter differently and that this different handling would have produced a better outcome for you. Consulting with a legal malpractice specialist is essential for proper evaluation.

California Code of Civil Procedure Section 340.6 establishes specific statute of limitations rules for legal malpractice claims. Generally, you must file your lawsuit within one year after you actually discovered, or through reasonable diligence should have discovered, the facts constituting the wrongful act or omission. However, there's an outside limit of four years from the date of the wrongful act or omission, regardless of when you discovered the malpractice.

Several factors can toll (pause) the limitations period, including if the attorney continues to represent you regarding the specific matter in which the alleged malpractice occurred, if the attorney willfully conceals facts constituting the negligence, or if you are under a legal disability. The continuous representation doctrine is particularly important—the statute doesn't begin running until the attorney-client relationship ends for that specific matter, even if you should have discovered the negligence earlier. This complex timing makes it crucial to consult with a legal malpractice attorney promptly when you suspect your lawyer may have made errors, as waiting too long could bar your claim entirely regardless of its merits.

Yes, you can potentially sue your attorney for missing a deadline in California, as this is one of the most common and straightforward forms of legal malpractice. When an attorney misses a statute of limitations, fails to file required documents by court deadlines, or neglects to respond to discovery requests on time, they may have breached their duty of care. California courts have consistently held that missing a statute of limitations, which causes the client's claim to be time-barred, constitutes negligence per se in many circumstances.

However, to recover damages, you must still prove the "case within a case"—meaning you need to demonstrate that your underlying claim had merit and would likely have succeeded had it been timely filed. For example, if your attorney missed the two-year deadline to file a personal injury claim, you must prove you would have prevailed in that personal injury case and recovered damages. The damages in your malpractice case would typically be measured by what you would have recovered in the underlying case, minus any costs and uncertainties of litigation. Expert testimony from another attorney is usually required to establish that missing the deadline fell below the standard of care.

In a California legal malpractice lawsuit, you can potentially recover several categories of damages depending on the circumstances of your case. Compensatory damages form the primary recovery and are designed to put you in the position you would have been in had your attorney performed competently. This includes the value of the lost underlying claim or defense, legal fees paid to the negligent attorney, costs of correcting the attorney's errors, and any additional expenses incurred due to the malpractice.

If your attorney's negligence caused you to lose a lawsuit, your damages would be measured by what you would have recovered in that underlying case. If the malpractice resulted in an unfavorable judgment against you, damages include the amount you were forced to pay. California courts may also award emotional distress damages in legal malpractice cases where the attorney's conduct was particularly egregious or where the underlying matter involved significant emotional components, such as family law or criminal defense cases. Punitive damages may be available in rare cases involving fraud, malice, or oppression under California Civil Code Section 3294. Interest on your damages from the date of the malpractice and attorney's fees for prosecuting your malpractice claim may also be recoverable.

The cost of pursuing a legal malpractice case in California varies significantly based on the complexity of both the malpractice claim and the underlying case that was mishandled. Many legal malpractice attorneys work on a contingency fee basis, typically charging between 33% and 40% of any recovery, which means you pay nothing upfront and the attorney only gets paid if you win. This arrangement makes legal malpractice claims accessible even if you can't afford hourly rates.

However, you may still be responsible for litigation costs such as filing fees, expert witness fees, deposition costs, and document production expenses. Expert witnesses are particularly important in legal malpractice cases—you'll typically need one expert to testify about the standard of care and another to establish what would have happened in the underlying case. Expert fees can range from $5,000 to $50,000 or more depending on the case complexity. Some attorneys may require a hybrid arrangement with a reduced contingency fee plus hourly rates, or may request cost advances. Before hiring a legal malpractice attorney, carefully review their fee agreement and discuss all potential costs, including what happens if you lose the case.

Filing a complaint with the State Bar of California initiates a disciplinary process that is separate from any civil malpractice lawsuit you might pursue. The State Bar's Office of Chief Trial Counsel investigates complaints alleging attorney misconduct, and if they find sufficient evidence of rule violations, they can impose discipline ranging from private reproval to disbarment. Under California Business and Professions Code Section 6077 and the California Rules of Professional Conduct, attorneys can be disciplined for ethical violations including incompetence, failure to communicate, trust account violations, conflicts of interest, and dishonesty.

However, it's crucial to understand that the State Bar process does not provide you with monetary compensation—its purpose is to protect the public by regulating attorney conduct, not to remedy individual clients' financial losses. The State Bar complaint and a civil malpractice lawsuit serve different purposes and can proceed simultaneously. Information from a State Bar investigation might be useful in your civil case, though the Bar's findings are not automatically admissible. Many clients file both a Bar complaint and a civil lawsuit, as each process addresses different concerns. The Bar complaint addresses professional discipline while the civil lawsuit seeks to recover your financial damages.

The standard of care for California attorneys in malpractice cases requires them to exercise the skill, prudence, and diligence commonly possessed and exercised by attorneys in good standing practicing in the same or similar locality under similar circumstances. This standard is established through expert testimony, as jurors cannot be expected to know what constitutes competent legal practice. Under California law, attorneys are not required to know every nuance of the law or guarantee successful outcomes, but they must possess a reasonable level of competency in their field of practice.

Specialists who hold themselves out as having expertise in a particular area, such as tax law or patent litigation, are held to a higher standard—that of attorneys practicing in that specialty field. The California Rules of Professional Conduct, particularly Rule 1.1, require attorneys to perform legal services with competence, which includes applying the learning and skill necessary for proper representation. Attorneys must also know their limitations and either acquire the necessary competency, associate with a competent co-counsel, or decline the representation. The standard accounts for the complexity of the legal matter, as handling a sophisticated securities litigation requires different skills than a simple contract dispute.

Yes, you may be able to recover attorney's fees paid to a negligent lawyer as part of your damages in a California legal malpractice case. Under California law, fees paid for incompetent legal services that provided no value can be recovered as direct damages in your malpractice claim. This includes retainers, hourly fees, and any other payments made to the attorney whose negligence caused your harm. The rationale is that you paid for competent legal services but received deficient performance, so those fees represent a direct financial loss caused by the malpractice.

Additionally, if the attorney's negligence forced you to hire another lawyer to fix the problems created or to pursue the malpractice claim itself, those subsequent legal fees may also be recoverable as consequential damages. However, recovering fees paid to the original attorney requires proving that the services rendered were valueless or of diminished value due to the negligence. If the attorney provided some competent services before the negligent act, the recovery might be limited to a proportionate share. California courts apply general contract principles and may consider whether the attorney substantially performed before the breach occurred. Expert testimony often helps establish the value, or lack thereof, of the legal services provided.

The "case within a case" doctrine is a fundamental requirement in California legal malpractice litigation that requires the plaintiff to prove not only that their attorney was negligent but also that they would have obtained a more favorable outcome in the underlying matter had the attorney performed competently. This doctrine essentially requires you to retry the original case as part of your malpractice lawsuit to demonstrate causation and damages.

For example, if your attorney negligently failed to file your personal injury lawsuit before the statute of limitations expired, you must prove in the malpractice case that you would have won the personal injury case and what damages you would have recovered. This makes legal malpractice cases complex and expensive, as you're essentially litigating two cases at once. The defendant attorney can raise any defense that would have been available in the underlying case, arguing that even with competent representation, you would not have prevailed. California courts recognize this doctrine creates a substantial burden on plaintiffs, but it serves important policy purposes by ensuring that malpractice recoveries are limited to cases where the attorney's negligence actually caused measurable harm. Without this requirement, clients could blame attorneys for poor outcomes that would have occurred regardless of the attorney's conduct.