Client gives notice to attorney of potential issue. Later, some tangible item, such as a document, causes emotional distress / mental breakdown of the Client that escalates the issue to a potential tort.

Client retrieves the tangible item from tortfeasor, and immediately goes to attorney's office and delivers the item to the attorney as evidence.

Attorney agrees to secure / store evidence, and later files a lawsuit.

Later, Attorney claims Client did not deliver the tangible item that had caused their emotional distress. Assume there is other evidence to prove Client's case.

What is the consequence of the attorney losing the tangible item? Would this item be critical evidence since it was the cause of the Client's emotional distress / mental breakdown?

1 Answer 1


There are several areas that this question leaves unclear. I will assume that "attorney" is the attorney hired by "client", not an opposing attorney, although the question does not clearly say that.

Whether this "tangible item" is critical evidence in a torts case depends on the nature of the case, and probably on the factual details of the case.

An attorney given a tangible item by his or her client, and accepting it and agreeing to "safeguard" it as relevant to a case on which the attorney is employed has a duty to in fact safeguard it. If the item is lost by or because of the attorney's negligence (or intentional action) that would itself work damage on the client. That might amount to malpractice, or breach of Contract on the part of the attorney.

The question says that "Later, attorney claims Client did not deliver the tangible item..." Since the question states it as fact that the items was delivered and accepted, that would seem to be a lie, one which is to the disadvantage of the client. Knowingly making false statements to the disadvantage of a client is surely a violation of legal ethics, and possibly malpractice in itself.

What effect the loss of this item would have on the lawsuit, and whether the loss by the attorney would be a valid excuse in the face of an order to produce the item is impossible top say on the information given ion the question.

  • Is your claim that being mistaken about a fact is potential malpractice? Lies are a special kind of false statement.
    – user6726
    Jan 11, 2023 at 21:14
  • @user6726 I have corrected my answer to say that knowingly making false statements might be malpractice. Honest errors would not fall into the same category, although wantonly careless errors could also be malpractice. Jan 11, 2023 at 21:18
  • If my lawyer loses an important document with evidence, after reading it carefully and writing down how it is very significant in my favour, could the lawyer appear as a witness in court?
    – gnasher729
    Jan 13, 2023 at 19:15

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