When you retain an attorney, that attorney has a fiduciary duty to you. This means that the attorney has an obligation to act in your best interest. However, the fiduciary – the attorney in the case of legal malpractice – has to knowingly accept the duty to act with discretion in his or her expertise, on your behalf. When you sign a retainer agreement, the attorney has created a fiduciary duty to you.
Elements – Cause of Action
In order to allege that an attorney breached his or her fiduciary duty, you must meet the elements of the cause of action for a tort: duty, breach, causation and damages. Duty includes duty of care, loyalty, accountability, confidentiality, disclosure, to act in a fair manner and good faith.
An attorney could breach in hundreds of ways; however, the most common breaches for legal malpractice and other torts include:
- Conflict of interest
- Misappropriation of property and/or funds
- Not having the skill for your specific case
- Not acting in your best interest
- Failure to provide accurate information
- Misuse of power
- Omission or misrepresentation of a statement of fact
- Failure to disclose
- Giving inappropriate advice
And there are many more ways an attorney could breach fiduciary duty. If you believe an attorney has breached his or her duty to you, contact a legal malpractice attorney such as The Viorst Law Offices, P.C.
Causation is usually the hardest element to establish if the attorney’s misconduct involves nonfeasance. This means that the attorney’s breach is based on administrative provisions or on special statutes. You may have to show the ‘reasonable steps’ the attorney should have taken in your case, and if those actions would have changed the outcome of the case. In some cases, you may also show that the misconduct of the attorney was a substantial factor that caused a major loss. Causation is easier to prove is it is based on the inactions of an attorney.
Damages vary based on the case, the amount of harm and several other factors. A legal malpractice attorney will be able to discuss damages with you.
While you should always keep any documentation related to legal cases, many people do not. If you do keep all documentation, including letters, emails and faxes from the attorney, it may be easier to prove breach of fiduciary duty. Pleadings and other court documents, including depositions and discovery in your case are also important.
Contact The Viorst Law Offices P.C.
If you feel that an attorney has breached his or her fiduciary duty, contact The Viorst Law Offices, P.C., a legal malpractice firm, to request a consultation to discuss your case.