A friend of mine was doing business with Company A, and asked a lawyer to draft a contract saying that if Company A failed to perform, my friend would be able to take possession of Asset X (the critical asset), as an indemnity so that he could do the job himself. The lawyer drafted a contract with Asset Y (a totally different Asset) as indemnity. Further, he attached several Exhibits to the contract that don't clearly relate to either Asset X or Y, and only confuse the picture.

Company A failed to perform, but won't hand over Asset X, and my friend doesn't have the indemnity that he envisioned because of the way the contract was drafted. (A first year law student could probably have done better.) That's the causation. The harm comes from the fact that my friend now has to sue Company A, which might not be necessary if the contract was solid. The breach of duty comes from the disregard of instructions to "securitize" Asset X.

Does this constitute legal malpractice, and if so, what are the remedies? These questions relate to New York State.

1 Answer 1


Legal malpractice varies from jurisdiction to jurisdiction. In many you'd need to show that there existed an:

  • Attorney-client relationship
  • Breach of duty
  • Causation
  • Harm

This is a more in depth summary of each of the elements. Each jurisdiction is going to put tests in place to determine whether the elements are actually met. So your firend's locality matters a good deal.

The ABA also has some aggregate statistics on the incidence of the various types of malpractice here. For example, it helps one to distinguish between clerical errors and failure to follow a client's instructions.

Edit: for the state of NY (which applies the above rules), see:

NY State Bar Assoc. Code of Professional Responsibility

ABA Model Code

  • It's New York State.
    – Libra
    Jul 21, 2015 at 14:29
  • 1
    @Tom Au, I don't know this guy, but he makes some good general points about whether it's wise to pursue a case in the first place.
    – Pat W.
    Jul 21, 2015 at 15:13

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