Legal Malpractice Lawsuit FAQ

For starters, it is difficult to win a legal malpractice lawsuit. To succeed, you will need to establish several factors. The following are common questions that people have about legal malpractice. It may help you consider your options. 

Can I file a legal malpractice lawsuit if my lawyer failed to file paperwork on time?

The most common types of legal malpractice occur because of negligence, the breach of fiduciary duty, or a breach of contract.  

The failure to file paperwork by a deadline is a form of negligence. To establish legal malpractice under the negligence doctrine, your lawsuit will have to demonstrate the following:

• The lawyer owed a duty to provide competent and skillful representation
• The lawyer breached that duty by acting carelessly or by making a mistake
• The lawyer's breach caused an injury or harm
• The harm caused a financial loss

To win a legal malpractice claim, it is also necessary to show that if the lawyer had been competent, you would have prevailed in the underlying case and collected the compensation you sought from the defendant. This element, known as causation, is often the most difficult to prove in a legal malpractice lawsuit.

Does my lawyer have to keep our communication confidential?

Yes. An attorney has a duty of confidentiality to a client. An attorney, therefore, may not disclose the information you reveal to a third party without your consent. For the most part, except under a few circumstances, this applies regardless of whether you remembered to specifically request confidentiality.

Does a conflict of interest exist if my attorney has a friendship with the attorney for the opposing side?

Opposing attorneys being friends does not necessarily mean that a conflict of interest exists. Providing that it is a friendship rather than a familial relationship with a spouse, parent, child, or sibling, a conflict of interest is unlikely. Your lawyer has a duty of loyalty to you, so a close relationship may sometimes create a conflict. If you fear that a conflict of interest exists, you should raise your concerns to your lawyer about it first. However, attorneys often face off against one another and form bonds of mutual respect. It does not mean that your lawyer is not looking out for your interests. 

Can my lawyer accept a settlement offer without my consent?

No. A lawyer must communicate with clients about new developments and other information about a case. This duty includes informing you of settlement offers. That means you must agree before your attorney accepts a settlement offer. A breach of fiduciary duty may occur if your lawyer fails to obtain your consent.

To my surprise, the bill I received from my lawyer was far more than I anticipated. What can I do to resolve this dispute?

An attorney must base the charges in a bill on the fee agreement reached with the client. Most attorneys and clients settle on fee arrangements early on in the relationship, so if the charges seem inconsistent, it is best to contact the attorney for an explanation. If it still appears that the costs are unreasonably high, there are several other options available:

• Negotiate with the attorney for a more reasonable price
• Request a non-binding decision from a panel of arbitrators
• Pay the bill but file a complaint against the attorney with a state's legal disciplinary committee
• Sue the attorney for a refund (in which case you will need a different attorney's assistance)

Does my lawyer have to return my phone calls?

Attorneys are often busy juggling numerous cases, but an attorney must keep clients informed about their cases' progress and return phone calls. Although an attorney's failure to call you back does not amount to legal malpractice, it is unprofessional and a warning sign that it may be necessary to hire another attorney.

If it appears that the lawyer has stopped working on a case altogether, this may amount to legal malpractice. An attorney has a duty of due diligence, which means that the attorney must work promptly and diligently on a case until completion. The failure to do so violates the attorney's duty to you.

During my first consultation with my lawyer, they advised me that I could recover more than I ultimately received. Can I sue my lawyer in a legal malpractice lawsuit?

A lawyer's initial representation of what a case is worth does not indicate whether the attorney represented you appropriately. However, a lawyer does have a duty to act with competence. A lawyer must have the legal knowledge and skill necessary to represent you with zealous advocacy. If a lawyer falls below this standard and it can be proven that the lawyer's actions amounted to incompetence, you have a viable legal malpractice claim.

I think that my attorney misused funds they held in my name. What can I do about it?

Lawyers have a fiduciary duty to act in their client's best interests when handling money or other property that belongs to the client. If you think that your lawyer has mishandled your money, contact the attorney ethics agency in your state immediately. Most states have funds available to help you recover any misappropriated money.

Can I fire my lawyer?

Absolutely. You have the right to discharge a lawyer at any time during the representation. You are also entitled to see the work-product created by the lawyer while working on your case. When requested, the lawyer must readily give your file to you or your new lawyer.