Could poor attorney communication count as malpractice?

There are many ways an attorney’s negligence could harm a case and lead to a malpractice claim. One recent malpractice claim presents a truly remarkable situation.

The case involves an inventor who hired an attorney to help him get a patent. According to the inventor’s petition, his attorney learned the patent office had abandoned his application but failed to inform him. Instead, the inventor claims the attorney chose to work on amending and reviving the application without telling him, and the attorney kept billing him for these legal services.

Here’s what California requires for attorney communication

The inventor’s case was from Texas, but it raises issues that could easily translate to California. So, how would this look in California?

It’s possible a court could view the attorney’s behavior as fraudulent. But even without the introduction of fraud, it could potentially be grounds for malpractice. To better explore that possibility, we turn to the State Bar’s Rules of Professional Conduct. Specifically, we turn to Rule 1.4 Communication with Clients.

This rule states that attorneys must:

  • Provide their clients with enough information and updates for them to make informed decisions and offer their informed consent as needed
  • Make reasonable efforts to involve their clients in decisions about how they wish to pursue their goals
  • Keep their clients informed of all significant developments in their case

Now, this third point would seem to include informing an inventor that his patent application had been abandoned. But that point alone wouldn’t yet construe malpractice.

First, there are two notable exceptions mentioned in Rule 1.4:

  • Attorneys might need to follow other laws or legal orders, such as non-disclosure agreements or protective orders, that would limit the above communication
  • Attorneys might also delay certain information if they reasonably believe that sharing that information would lead their clients to harm themselves or others

We don’t have enough of the facts of the Texas case to know if either of these exceptions could have applied. Neither was mentioned in the article about the case, but the article isn’t the case. Still, it seems unlikely either of these California exceptions would play heavily into the Texas case. That likely leaves just one more barrier to clear before the courts could recognize the attorney’s negligence as malpractice.

When does an attorney’s negligence become malpractice?

It’s important to remember that legal malpractice cases have two steps:

  • The first, as suggested above, is to prove that an attorney’s bad behavior, negligence or substandard performance harmed the plaintiff’s case
  • The second is to prove that the harm to the case resulted in real damages

In other words, if your attorney wronged you, you might have a complaint. But if nothing your attorney could have done—or if nothing the greatest and most skillful attorney in the world could have done—would have changed the outcome of your case? You don’t likely have a malpractice claim.

The attorney’s initial failure to get the patent isn’t at the heart of our case from Texas, but it is cited. The plaintiff suggests the attorney demonstrated incompetence in his ability to secure the patent. But even if the attorney acted incompetently, the inventor cannot win a malpractice case on that ground alone. He would also want to show that another attorney, acting reasonably, could have secured the patent.

How does poor communication hurt a case?

To prove that an attorney’s poor communication amounts to malpractice, you must show that it failed to meet standards and that it prevented you from getting the result you would have received with better representation. Still, there are certainly cases in which this could happen:

  • An attorney who failed to inform you of a settlement offer and then lost your case at court
  • An attorney who convinced you to settle without explaining all the terms of the settlement

The possibilities are numerous, but they all lead to a common theme. Your attorney’s poor communication caused you real damage. If this is the case, you may want to file a legal malpractice claim.

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