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Can I file for malpractice before I resolve my original case?

Those who have started to research legal malpractice likely know that these cases are a case within a case. In order to build a malpractice case, the client needs to show that the mistake of the attorney led the client to lose their original case.

But do you have to resolve that initial case in order to start a malpractice action?

An interesting case out of Arkansas questions this notion and could provide valuable guidance for similar cases throughout the country. The original case involves baby food giant Gerber who sued a contractor related to projects completed in 2012. During the lawsuit, Gerber’s legal counsel sent classified information to the opposing counsel, repeatedly. The repeated errors of Gerber’s counsel led Gerber to hire new counsel to recover privileged documents that were inadvertently released by the original legal team. Gerber claims this cost them $500,000. This all occurred in the discovery, or initial phases, of the original lawsuit.

That original lawsuit will likely take years to sort through. But what about this misstep at the discovery phase? Can Gerber build a successful legal malpractice case before it resolves the initial legal matter?

Generally, the answer is no. This is because to build a legal malpractice case the client needs to show that if it were not for the attorney’s error, they would not have suffered damage. However, in this case, it appears that Gerber can clearly show they already suffered damage even though the initial legal matter has yet to reach a resolution. As such, the courts are letting the malpractice case move forward.