A claim against a lawyer begins with an error. That much is easy to identify. What is not easy is the step that follows, because an error alone does not create liability: it must be an error that a reasonable lawyer would not have made, and it must have caused the client a loss.
Three elements. First, that the lawyer owed a duty of care, which in the ordinary case follows from the retainer itself and sometimes extends to persons who were never clients. Second, that the conduct fell below the standard of the reasonable lawyer, which is not the standard of perfection: an error of judgment made after proper inquiry is not negligence. Third, causation and loss.
Causation is where most of these claims are won or lost. The court is asked to reconstruct the original matter and to decide what would have happened had the lawyer acted properly. If the underlying case would have failed in any event, the negligence caused no loss. Where the outcome cannot be reconstructed with confidence, Israeli law recognises the doctrine of loss of a chance, under which damages reflect the probability that was destroyed rather than the whole of the claim.
The ordinary period is seven years, but the discovery rule frequently postpones its start to the moment the client learned, or should have learned, of the failure. Because the calculation is often contested, the practical advice is not to wait.
Most Israeli lawyers carry professional indemnity cover, and most claims are in practice negotiated with the insurer rather than with the lawyer personally. The policy terms, and in particular the basis on which it responds, frequently shape the outcome as much as the merits do.
We act for clients bringing these claims and for lawyers defending them, together with their insurers. The two are not in tension: the same understanding of how such a claim is proved is what allows it to be resisted.
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