Abe Lincoln said it; "A lawyer's time and advice are his stock in trade".
Lawyers do not sell a product in the common sense of the word. But they do produce: guidance and strategies and a perspective that enables a client to more fully and carefully appreciate the consequences of his or her life’s choices. In short, (to understand Mr. Lincoln's point), lawyers use their time to gain an understanding of the client's matter, and they then give the client advice. Of course, consistent with the client's goals and objectives, a lawyer also can take practical steps to further the client's interests; drafting contracts and other documents; and even litigating in court.
However, what a lawyer cannot do is to guaranty a result. Indeed, in most jurisdictions, a lawyer is ethically prohibited from doing so.
How then can the client know whether or not the client is getting, or has gotten, what the client "paid for", (or what the client was entitled to, in any event, since the condition of payment should not affect a lawyer's performance once representation is undertaken)?
There is an answer, although it may seem elusive to the layperson. A lawyer is protected in the excercise of judgment - making a "judgment call" under most circumstances will not expose the lawyer to professional rebuke or to civil liability for negligent representation. The "trick" is how to define "judgment". Theoretically, or conceptually, the definition is "normative", and it assumes that there is a prevailing "standard of practice" which should inform the judgment of a competent lawyer. In that regard, in one form or another, the norm is stated to be "that standard of care or practice such as would have been exercised by a reasonably prudent and competent attorney under the circumstances".
What does that mean? Well, in reality, the standard of practice for lawyers tends to be defined in the negative, when we argue that a particular act or omission by an attorney was NOT "...such as would have been exercised by a reasonably prudent and competent attorney under the circumstances".
At the same time, rather than emanating from a vaulted set of "weights and measures", the standard is a relative one, and it is defined by reference and/or comparison to conduct at the extreme ends of the curve; e.g., "clearly it is negligent to fail to file a civil suit within the statute of limitation"; or "clearly it is not negligent to fail to investigate the potential defense of a criminal defendant who is actually guilty of the crime charged"; (as to the latter, before my brethren from the criminal defense bar jump all over me for apparently condoning shoddy practice, I assure them I am not...in this discussion I simply am pointing out, for good or bad, that it is nearly impossible to sue a criminal defense attorney for malpractice).
Identifying the extremes is 'relatively' easy. Somewhere in between (a rock and a hard place?) is where most clients find themselves, and that is where attorney malpractice litigation is focused. Of course we are referring to dissatisfied clients; clients who did not get "what they paid for". Maybe most clients are dissatisfied, since there is usually no perfect result in the law, and maybe all lawyers have erred in some way, since we are, after all, human, but there are real cases where the lawyer did not do what he or she was supposed to do, what "a reasonably prudent and competent attorney under the circumstances" would have done, and where that failure - let's call it negligence - cost the client; (the concept of "proximate cause", whether the lawyer's negligence actually was the cause-in-fact of the client's harm, is discussed elsewhere).
Only an attorney who is experienced in litigating attorney malpractice actions will be able to render a meaningful opinion about whether the lawyer in YOUR case was negligent, and whether that negligence was a legal cause of harm to you. You may not get the answer you hoped for. You may be advised that you do not have a very strong case against your lawyer. But, if you don't ask, you will be carrying around that question with you, and that can be a depressing burden. Since you have a limited time under the law to sue an attorney for malpractice, think about whether you want the question answered in your case.
