I’ve had a number of initial consultations with various attorneys for estate planning and entity structuring, and almost every one of the opinions I’ve heard is different and often contradictory. If I just choose one on a hunch to proceed with and they turn out to be wrong (e.g. results in higher tax liability than they claim or doesn’t protect my assets as they claim) is it possible to recover “damages” from them (e.g. make a claim on their E&O insurance)? It seems like the engagement agreements I’ve been presented with suggest no guarantees, no warranties. One even says the company isn’t in the business of providing legal services, and if considered to be legal services they retain the right to facilitate use of attorneys to complete the work (even though it also says all members of the company are licensed attorneys, and they have even emailed me with a note stating that communications are under attorney-client privilege). I assume these are ways they avoid any liability if they are wrong, so how can you hold an attorney accountable?


1 Answer 1


Yes. Lawyers are generally subject to a malpractice lawsuit, essentially the same as doctors and other professions. A successful claim generally requires proof that the lawyer's services fell below the standard of care for attorneys, and that it resulted in some injury to you.

  • 2
    and finding an attorney willing to take on such a case
    – Tiger Guy
    Mar 25, 2021 at 17:50
  • 1
    Or the attorney going the extra mile and telling you that you shall sue them
    – Trish
    Mar 25, 2021 at 17:53
  • There is an important proviso: you can’t sue a lawyer for what the do in court.
    – Dale M
    Mar 25, 2021 at 19:27
  • So there’s no way to file a claim on their E&O insurance, without serving them a lawsuit? I guess then that means it’s really expensive to hold an attorney accountable. also, where is “the standard of care for attorneys” defined? If an attorney is not aware of a relevant tax law, for example, that results in increased tax liability on their client, would that be considered to fail the standard of care?
    – rcibizzle
    Mar 25, 2021 at 19:48
  • That's sort of correct. The policy holder is the one who invokes their insurance policy, but you don't necessarily have to actually file a lawsuit; it is possible that the mere threat of a malpractice suit would be sufficient to induce them to negotiate some sort of settlement. The standard of care is defined in the Rules of Professional Conduct and developed through case law. The situation you describe sounds like it may meet the malpractice standard.
    – bdb484
    Mar 25, 2021 at 21:38

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