You may be able to pursue a claim of legal malpractice against your lawyer if he or she caused harm to your case and that, absent the legal malpractice, there is a reasonable probability that you would have had a good case and prevailed. Legal malpractice claims are sometimes based on contract law, breach of fiduciary duty, and negligence. If your lawyer violates the attorney-client agreement, then he or she may have breached the contract and may be liable for liquated damages under contract law.

The lawyer–client relationship is one that creates a special relationship and special duties of care placed upon the professional—the lawyer. In some circumstances, the lawyer may be liable for breaching a fiduciary duty if he or she did not provide loyalty and confidentiality to his client.

Most legal malpractice claims are pursued under a theory of tort law and this makes sense because another name for malpractice is professional negligence. In a legal malpractice case based on negligence, the client asserts that the lawyer failed to exercise the level of care, skill, and knowledge normally provided by a lawyer. Legal malpractice cases are very difficult to prove, as generally the plaintiff must show that he or she would have prevailed in the underlying legal matter without the lawyer’s negligence.

It is even harder to prevail in a legal malpractice case arising out of a criminal matter because courts require a plaintiff to present a colorable claim (appearance of plausibility but actually deceptive) of innocence before prevailing.