An attorney is a representative for their clients and at times acts as an advisor or an advocate on their client’s behalf. When you choose an attorney, you trust them to act in your best interest, but sadly that is not always the case.
When you suspect your attorney of misconduct, how can you tell if it is legal malpractice or a breach of fiduciary duty? The lines between the two are not always distinct and they can overlap.
What is a breach of fiduciary duty?
A fiduciary relationship exists when an individual places their trust in another individual, with the entrusted person’s full knowledge. In the case of an attorney and client relationship, the attorney is the fiduciary of their client.
When claiming a breach of fiduciary duty you must be able to prove a fiduciary relationship existed, that the fiduciary acted in a way that breached their duty and that you suffered damages because of their actions. A breach of fiduciary duty occurs when the fiduciary acts in their own best interest instead of the interest of the client. A conflict of interest could also be a breach.
What is legal malpractice?
Legal malpractice occurs when an attorney acts incompetently or negligently. Malpractice can stem from not being familiar with a particular branch of law. Most insidiously, it can happen when their actions intentionally harm the client. When claiming legal malpractice there are four key factors. There must be proof of an attorney-client relationship, a breach of duty or negligence, causation for the loss and damages stemming from the loss.
An attorney can breach fiduciary obligations without necessarily committing negligence. It is imperative to understand the difference between the two when making a claim. The statute of limitations and extension periods can differ.