Just like doctors, lawyers can be sued for malpractice. If you feel your lawyer’s carelessness or negligence cost you a case or affected a claim, you can take them to court.
Here’s what you need to know.
As in almost any type of negligence case, you have to prove three things:
- the defendant owed you a “duty of care”;
- they violated that duty;
- you suffered some financial loss as a result.
Lawyers in Canada are bound to a Professional Code of Conduct that outlines their ethical obligations, and they also have a duty of care to their clients. The 1964 Supreme Court of Canada case Millican et al. v. Tiffin Holdings Ltd., defined that duty.
In that decision, the court said a lawyer’s obligations are:
- To be skilful and careful.
- To advise his client on all matters relevant to his retainer, so far as may be reasonably necessary.
- To protect the interests of his client.
- To carry out his instructions by all proper means.
- To consult with his client on all questions of doubt which do not fall within the express or implied discretion left to him.
- To keep his client informed to such an extent as may be reasonably necessary according to the same criteria.
Lawyers aren’t expected to be perfect and you can’t sue them just for making a mistake or losing a case.
A lawyer is expected to perform with the same skill and care as a “reasonably competent and diligent solicitor.” A truly negligent lawyer would make errors or display ignorance that a reasonably competent lawyer wouldn’t.
A common example is a missed limitation date or deadline. Showing up to court unprepared, not performing services paid for or sleeping in court — yes, that’s actually happened — are other examples.
In the June 2015 decision Knapp v. O’Neill a Yukon woman successfully sued her lawyer over his handling of her injury claim. Part of the lawyer’s negligence was advising the client to pursue an early settlement for an “inordinately low amount” given her injuries and not advising her on the potential damages if the case had gone to trial. In doing so, the lawyer violated his duty of care and that violation led to a financial loss for the client.
Canadian Bar Association: Ethics and Professional Responsibility
Millican v. Tiffin Holdings, Ltd