Failure to Perform or Do Something Competently (Malfeasance)

An attorney may be equally liable for malpractice if he or she performs the actions required by law, but does so in an incompetent or substandard manner. For example, an attorney may timely file a cause of action in court, but the complaint may fail to contain important details or averments (allegations), resulting in dismissal of the suit. An attorney may take the deposition of a witness but ask irrelevant questions or fail to ask the necessary questions needed to elicit needed testimony. An attorney may prepare a last will and testament for a client but accidentally leave out or miswrite a very important bequest. An attorney may appear in time for a criminal sentencing hearing but be wholly unprepared or unfamiliar with the case or the issues.

All of the above examples represent situations requiring levels of skill generally attributable to or expected of any competent attorney practicing law in any state. They do not require specialized knowledge in any particular area of law and do not require advanced levels of legal experience or expertise. They are considered examples of fundamental practice of law. Breaches or failures of this type are generally preventable, avoidable, and therefore, actionable in most cases.

Within the context of litigation, it should be mentioned that in most states, a client’s retention of an attorney to represent an action at trial implies that the client has delegated to the attorney all decision-making regarding the manner in which the trial should be conducted or the case should be presented. Even if the attorney loses the case, and a judgment is entered against his or her client, it does not mean that any malpractice was committed; after all, in every trial, at least one competent attorney loses and one wins. Under a broad area of attorney discretion, commonly referred to as “trial tactics,” errors in judgment at trial (e.g., whether or not to present a certain witness or introduce certain evidence) which are not patently substandard for the profession, do not generally give rise to a cause of action for malpractice.


Inside Failure to Perform or Do Something Competently (Malfeasance)