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An "own goal" in soccer constitutes kicking the ball into your team's own goal, to the benefit of the opposition.

If your lawyer repeatedly makes mistakes or other actions that tend to benefit the other side (this was not a one time thing), even if it stemmed from incompetence, could that constitute malpractice, or some related charge such as breach of fiduciary duty?

How would this change if your lawyer accepted work from the other party shortly after he concluded your case to your detriment? And suppose "discovery" showed that on at least one occasion, the lawyer represented a small company, A, against a much larger company, B, and then a year later helped B take over A?

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  • "even if it stemmed from incompetence": why would incompetence work in the lawyer's favor if charged with incompetence?
    – phoog
    Oct 5 at 6:48
  • I don't know enough to offer an answer, but the last two examples appear to be about conflict of interest rather than a lack of competence.
    – Rock Ape
    Oct 5 at 15:06
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If your lawyer repeatedly makes mistakes or other actions that tend to benefit the other side (this was not a one time thing), even if it stemmed from incompetence, could that constitute malpractice, or some related charge such as breach of fiduciary duty?

Incompetence is the principal reason for a malpractice lawsuit, which is a subset of the ubiquitous ground for tort lawsuits which is "negligence", although mere carelessness is also often a ground for a malpractice lawsuit.

For example, in one professional malpractice lawsuit I am aware of, a lawyer failed to have a mortgage securing a debt owed to his client recorded in the real property records as required for it to be effective against third-parties, and so the client lost the benefit of the mortgage, even though this was merely the kind of carelessness an otherwise competent lawyer could commit.

Of course, often carelessness reflects incompetence in the form of failure to competently put in place good systems to guard against careless mistakes.

The legal standard is that the attorney failed to act with the reasonable care of an attorney in a manner that caused harm to the client. This breach of a standard of care is usually established and opposed with expert testimony from an another attorney regarding what a reasonable attorney would have done. A single act of negligence is sufficient (and indeed, usually easier to prove than a series of missteps in most cases).

Breaches of fiduciary duty typically involve breaches of a duty of loyalty (including conflicts of interest that don't involve otherwise negligent work product), misappropriation of client funds, or unauthorized disclosures of client secrets that are damaging outside the context of litigation simply by virtue of the emotional harm associated with their disclosure. Generally speaking, incompetence can only be pursued in an action for professional negligence and not in an action for breach of fiduciary duty.

Sometimes forfeiture of fees paid, or fees owed, is a remedy for breach of fiduciary duty even in the absence of other evidence of damages caused by the breach of a fiduciary duty.

How would this change if your lawyer accepted work from the other party shortly after he concluded your case to your detriment? And suppose "discovery" showed that on at least one occasion, the lawyer represented a small company, A, against a much larger company, B, and then a year later helped B take over A?

In the U.S. this is governed by Rule of Professional Conduct 1.9 governing duties to a former client. Rules of professional conduct have the same numbering system and are variants on the same American Bar Association set of Model Rules in every U.S. jurisdiction, although there are minor, but important, differences in wording between them.

Generally speaking the rule is that a lawyer can't represent a new client against a former client if it is in a matter in which the former client was previously represented, or in a matter in which the new client gains some advantage from the confidences shared by the former client in the representation of the new client.

Often, the former client would move to disqualify the attorney from representing the new client in the case in question once learning of the representation.

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Professional-conduct rules vary from one state to the next, but generally speaking, lawyers all have a duty of competence and a duty to avoid conflicts of interest.

These are separate, though, from the standards for malpractice, which will generally ask whether the lawyer's failure to meet professional standards caused you some injury. In terms of malpractice, it doesn't really matter how many own goals the lawyer kicks until they actually result in an adverse outcome in your case that wouldn't have otherwise occurred.

So if the lawyer fails to oppose motions, skips court hearings, or neglects to respond to discovery, the court could eventually decide to enter a default judgment against the client. If the client can establish that he would have won the case otherwise, malpractice liability is quite realistic.

The hypothetical subsequent revelations likely don't do anything to change the facts.

  • As long as your case is closed, the lawyer is free to represent the other party; the only reason I think a court would care about this would be if there were evidence that the lawyer tanked your case purposefully to land that client.
  • The second case may have been an ethical violation, but it's also possible that both A and B consented to the attorney's involvement. In any event, it doesn't change much because it doesn't have anything to do with your case.
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    "As long as your case is closed, the lawyer is free to represent the other party" Not entirely true. See americanbar.org/groups/professional_responsibility/publications/…
    – ohwilleke
    Oct 6 at 2:21
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    Very correct. The lawyer would not be able to accept work from the second client that was connected with the work done for the first. OP didn't mention any such connection, so I'm working off the assumption that none exists.
    – bdb484
    Oct 6 at 3:20

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