Attorney Malpractice vs. Breach of Fiduciary Duty | Huntersure

Attorney Malpractice vs. Breach of Fiduciary Duty

Posted on: January 23, 2020 by Huntersure LLC.

Like any professional from any type of industry, lawyers are capable of making mistakes that can end up putting their client and their cases in a tough spot. A lawyer’s misconduct could involve both negligence and breaches of fiduciary duty, but not many people are able to tell the difference between the two. The issue here is that it’s important to understand the difference and be able to distinguish between the two when pursuing legal action.

Malpractice

Oftentimes, clients review a lawyer’s actions with the ability to look back over everything with a clearer view. Decisions that were considered reasonable at one time may look like mistakes later on. Not every lawyer is expected to do everything perfectly, but they are expected to act consistently in their professional status and operate under a standard of care.

Essentially, while mistakes happen, not everything should be looked at as negligence, or an intentional mistake by an attorney.

First, it’s important to see if the mistake a lawyer committed caused damage of some sort. This is usually the deciding factor to see if there was legitimate ill intention. Even if an attorney made an obvious mistake, the mistake must have injured the client in some way. One example is if a lawyer did not file a lawsuit before the statute of limitations expired.

Next, claimants must allege that the damages were significant. This could be emotional damage, financial damage or other kinds of problems. Legal malpractice cases are expensive and can drag on for a long time, racketing up a huge bill for all involved. For attorneys in the middle of a lawsuit like this against them, having attorney malpractice insurance can help provide them the resources they need in order to keep costs low. The major issue to look out for in this case is time away from work, which can come with its own pitfalls.

In addition to legal fees, the client who is making the claim against a lawyer will almost always need additional representation of their own to help establish that their original attorney’s conduct didn’t meet the expected standard of care.

Breach of Fiduciary Duty

A breach of fiduciary duty happens when a fiduciary operates in a manner that contradicts their duty, which would mean there are major legal implications in play. It’s usually easier to prove a breach of fiduciary duty compared to malpractice as there is usually no need to prove fraudulent intent by the legal professional.

A fiduciary duty is a duty to act in the best interest of someone else; in this case, the client. The fiduciary is responsible for the management of money or property for another person or business. In order for a fiduciary duty to be binding in a legal way, the agreement must be created under the law or by factual circumstances of the relationship.

A duty is put in motion when a relationship between attorney and client calls for unique legal trust on the fiduciary to be discreet when acting on behalf of the client. The attorney is legally bound to act and has the power to act on behalf of the client.

When there is an agreement and that agreement is broken in some way, such as divulging information an outside party, the lawyer can be held liable, even if it’s a simple slip of the tongue during casual conversation.

About Huntersure

At Huntersure, we specialize in providing quality professional liability solutions to accounting professionals. Our Accountant Liability Insurance program provides coverage for accountants, auditors, bookkeepers, and tax preparers, so no matter where your clients lie in the industry they can have the coverage they need to protect themselves and their assets. To learn more about our operation and our Professional Liability Insurance solutions, contact us today at (855) 585-6255.

Posted in: blog Lawyer Malpractice Insurance