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Legal Malpractice Lawsuit FAQ

It can be challenging to win a legal malpractice lawsuit. When you file this type of case, you ask your new lawyer to prove that your former attorney didn't do a good job. Your legal malpractice lawyer must prove that your attorney was negligent in recovering damages.

This page answers frequently asked questions about a legal malpractice case. If you are a victim of legal malpractice, you can locate a legal malpractice lawyer at our FindLaw attorney directory.

What is an example of a legal malpractice case?

An example of legal malpractice would be when your attorney's actions cause you to lose a case. Perhaps you hire an attorney who claims his practice area is personal injury. However, you later learn they have never handled a personal injury case. As a result, they don't sue all possible defendants in your case. The one party they do name files for bankruptcy, and you walk away with nothing.

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

Failing to file a client's paperwork on time may constitute negligence. If you don't file your case within the statute of limitations, the judge will dismiss your case.

Legal malpractice typically arises out of negligence. Regarding attorney malpractice, you must show that they committed a breach of fiduciary duty or a breach of contract.

To win a malpractice case, your legal malpractice attorney must demonstrate:

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

To win a legal malpractice claim, it is also necessary to show that, had the lawyer been competent, you would have prevailed in the underlying case. Once you establish your former attorney's negligence, your personal injury lawyer must also prove your damages.

Does my lawyer have to keep our communication confidential?

Yes. All attorneys have a duty of confidentiality to clients. When you agree to pay for your attorney's legal services, you expect them to keep things confidential. An attorney may not disclose the information you reveal to them to a third party without your consent. This applies to legal matters and any private, personal information you tell them.

For the most part, except under a few circumstances, this applies regardless of whether you remembered to request confidentiality specifically.

If your lawyer discloses your private communications to another party, they likely committed an ethics violation. Your malpractice attorney can help you file a claim with the state bar association, informing them about your prior attorney's legal negligence and misconduct.

Is it a conflict of interest my attorney is friends with the defendant's attorney?

Opposing attorneys being friends does not necessarily mean a conflict of interest exists. A conflict of interest is unlikely because it is a friendship rather than a familial relationship with a spouse, parent, child, or sibling.

Your lawyer has a duty of loyalty to you, so a close relationship may sometimes create a conflict. If you fear a conflict of interest, you should first raise your concerns with your lawyer. However, attorneys face one another constantly in the legal profession and form bonds of mutual respect. This doesn't mean your lawyer is not seeking your best interests.

Can my lawyer accept a settlement offer without my consent?

No. A lawyer is required to communicate all settlement offers to their clients. They must also get their client's consent before they accept a settlement.

Usually, you'll tell your attorney what the minimum settlement is that you'll accept. They are then allowed to accept any offer that exceeds your bottom line. If your lawyer fails to do this, they may have committed a breach of fiduciary duty.

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

An attorney must explain what they are billing their client for. They must also abide by the fee agreement reached with their client. Most attorneys and clients settle on fee arrangements early on in the relationship. If the charges you received seem inconsistent with your contract, 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 nonbinding 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 must return their clients' phone calls within a reasonable time. Even though they are often busy juggling numerous cases, they still have to inform clients about their case's progress. This rule applies to emails and texts as well.

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. It's entirely reasonable for a client to expect a response when they have a question about the legal issues in their case.

If the lawyer has stopped working on a case, this may amount to legal malpractice. An attorney has a duty of due diligence, which means they 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, my lawyer advised me that I could recover more than I ultimately received. Can I sue my lawyer for legal malpractice?

No attorney can guarantee how much you'll receive in a lawsuit. All they can do is tell you what you may potentially recover. However, a lawyer does have a duty to act competently. They must have the legal knowledge and skills to represent you with zealous advocacy.

If a lawyer falls below this standard and you can prove that their actions amounted to incompetence, you have a viable legal malpractice claim. However, if the lawyer can show that their legal advice didn't include a promise or guarantee of damages, it won't be easy to win your case.

I think 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. Contact your state bar ethics department immediately if you think your lawyer has mishandled your money. Most states have funds available to help you recover any misappropriated money.

Can I fire my lawyer?

Absolutely. You can discharge your lawyer at any time during their legal representation. If you don't feel your lawyer is honoring the standard of care they owe you, you have the right to terminate their services.

You are also entitled to see the work product created by the lawyer while working on your case. This is important because your new attorney may need this information. When requested, the lawyer must readily give you or your new lawyer your file.

Contact a Local Legal Malpractice Lawyer for Help

You have options if you believe your attorney was negligent in how they handled your case. You can contact a legal malpractice attorney and schedule your free case evaluation. Find a local, experienced malpractice lawyer at our attorney directory.

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