What are the chances that MY attorney/law firm is committing legal malpractice and I don’t know about it?

If a doctor is negligent, you will almost always know it. The impact of a doctor’s malpractice will affect your physical health sooner or later.

If an attorney is negligent, unfortunately, the chances are good that you, as a client, may never learn that the attorney has been negligent. How is that possible? There are many ways for an attorney to commit legal malpractice….and many involve complicated issues of law or rules of procedure that you, as the client, would not have any knowledge of.

Lawyers are involved in virtually every aspect of our lives.  A lawyer may represent you or your business in civil or criminal litigation, in personal transactions (such as drafting of wills, purchasing of a home, administering an estate), or business transactions (such as the sale of the business, negotiating contracts, and complying with regulations). Lawyers are also usually in the center of most contested divorces or child custody cases.

Often, legal malpractice occurs when a lawyer does not do something he or she should have done in a particular case or transaction. Since you are not an attorney, you may never know that.

Or, a lawyer may advise you to take a particular course of action but gives you the wrong advice because the lawyer is misstating the law or your legal situation. Because you are relying on the lawyer, it is unlikely you will notice. If the lawyer is truly negligent, the lawyer may not even realize it.

While I receive a lot of inquiries from people who are currently being represented by an attorney and have begun to suspect there is something wrong (and ask for my guidance behind the scenes), most often I am contacted after the fact, when an individual or business learns (or at least begins to suspect) that the legal representation received was negligent.

In another post I will write about some of the warning signs that might alert you to the possibility that your law firm may not be doing its job. This post addresses a simpler but just as interesting a question: what are the chances that your attorney in your particular case may be improperly advising you or representing you?

Consider these statistics:

  • There are about 1.2 million lawyers in the United States. There are about 314 million people in the United States. That means there is approximately one lawyer for every 261 people. (To graphically illustrate, at the last Super Bowl, about 70,000 people attended. That means nearly 300 of those people likely were attorneys).
  • There are about 15 million to 20 million state civil cases filed every year.  
  • There are about 6 million domestic relation cases filed (such as divorce or child custody) every year.

For those two kinds of state cases alone, that means there are between 21 to 26 million court cases filed every year. But that is just the tip of the iceberg:

  • There are about 20 million criminal cases filed every year.
  • There are about 2 million juvenile cases every year.
  • There are about 300,000 appeals filed every year in state courts.
  • There are 55,000,000 to 60,000,000 traffic violation cases every year.

Those are just cases brought in state courts. There are federal courts in all 50 states hearing both civil and criminal cases.

Although attorneys are not involved in every single case, they are involved in most of them. If you add up the numbers above for state courts alone, there are probably 80 million or more opportunities every year for attorneys to negligently advise clients in litigation. If attorneys were negligent in only 1% of those cases, that would represent nearly 1,000,000 cases a year where attorney negligence  occurred.

Of course, attorneys do a lot more than litigate. They advise individuals and businesses in all aspects of the law. Since litigation of any kind is usually very time-consuming, there are probably far more attorneys  who do transactional work such as wills, contracts, probate, closings, and advising businesses than attorneys who litigate. If there are 80 million state cases filed every year, there are probably many times that number of transactions where attorneys advise clients on personal or business issues.

Why am I even bothering to write about these approximate statistics? What that means is that there are probably hundreds of millions of times attorneys give advice every single year in America. Even if only a very small percentage of the times the advice given is  negligent, that is still a very substantial number.

(I have not even addressed another very significant issue: while attorneys can handle a client’s matter negligently, there is another whole area of potential mischief by attorneys: breaches of fiduciary duty such as conflict of interest, mishandling of client funds, or disclosure of confidential information.)

The fact is that legal malpractice is often committed by very competent attorneys. One of the causes of legal malpractice is that attorneys often overextend themselves, taking on too many cases or too many clients. Almost all of the attorneys I have brought cases against have been extremely experienced and in some cases very well known in their areas of practice. For example, I once brought a legal malpractice action against an attorney who had served as a legal malpractice expert on a number of occasions.

Everyone makes mistakes. If lawyers in America have a 99% perfect score in representing clients, and on average only make a mistake one time out of 100, that means there are still millions of times every year even competent attorneys make mistakes. Not every mistake is legal malpractice (because ultimately you have to prove that you were monetarily damaged as a result of the mistake) but what this does mean is that if you do have concerns about how your attorney is handling a particular matter, you should not necessarily assume your attorney is doing a good job.

According to one survey, legal malpractice claims are on the rise. Because of the Internet, clients have a much greater ability to get information and to educate themselves and to become an informed consumers of legal services.

Of course this post is not a scientific analysis. I write  just to informally illustrate that while it is likely most lawyers handle most cases in a competent fashion, there is still a very substantial number of times legal malpractice occurs simply because there are so many legal matters handled every year.

That raises the question: how are you as a client going to find out about the mistake if it has to do with an area of law you know nothing about? I will address that issue in an upcoming post….

Author: Howard Altschuler

(Click here for a brief summary of my other blog posts on various legal malpractice related issues)

(Disclaimer: Please note that nothing in this blog or website is legal advice, and this post does not create an attorney-client relationship. You should always consult with an attorney for any legal malpractice issues, fee dispute, or ethical concerns that you may have. Thanks!)

Copyright (c) 2013 by Howard Altschuler, All Rights Reserved