Legal malpractice involves a professional failing to conform to professional standards that results in harm. Different types of legal malpractice may occur in different areas of legal practice. For example, people who approach lawyers for assistance with probate and estate planning matters have vastly different needs than those seeking representation for criminal charges.
They rely on their lawyer to provide them with proper advice and to help them draft documents that achieve their testamentary goals. Sometimes lawyers do not fulfill their obligations to their clients and might actually mislead them. The following are the most common forms of legal malpractice that occur in estate planning scenarios or during probate or estate administration.
Not disclosing a conflict of interest
There are many ways that an attorney could have a conflict of interest related to a probate matter. Perhaps they have connections to a business that could face closure or major changes because of someone’s estate plan. Maybe they let their prior relationships with members of the client influence the representation and advice they provide. When a lawyer has a conflict of interest, they should refer a client to someone else instead of trying to assist them with legal matters. Failing to notify a client of a substantial conflict of interest can lead to mistakes that cost the client money or undermine their wishes.
Violating their fiduciary duty to a client
A lawyer has a fiduciary duty to act in the best interests of their clients. They should not put their own desires ahead of what their clients require. Unfortunately, lawyers are privy to a lot of personal information that they could use for financial gain. They are also in a position to make recommendations that benefit them more than a client. For example, they might recommend a real estate agent who offers them a kickback or is part of their family even though another agent might offer lower-cost or overall better services. If an attorney breaches their fiduciary duty by putting their wishes and needs ahead of a client’s best interests during estate planning or administration, frustrated clients may have reason to take legal action.
Committing acts of fraud
Sometimes, lawyers engage in willful misconduct and fraudulent activity. For example, they might agree to alter the terms of testamentary instruments for the benefit of a client’s family member who has offered them a kickback on their inheritance. A lawyer might tell a client that the documents include certain terms but may use language that achieves far different goals. Other times, lawyers serving as a professional fiduciary during estate administration might lie about the contents of an estate or whether testamentary documents exist.
Scenarios involving legal malpractice related to estate planning or administration may lead to litigation. Taking an attorney to court can potentially compensate those harmed by the unprofessional and inappropriate behavior of a lawyer.