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Legal Malpractice Claims

It can be discouraging and frustrating when you feel your attorney is not doing the best job on your case. This article summarizes legal malpractice and outlines some of the most common problems with legal professionals. It also provides ways to handle legal malpractice claims.

Legal Malpractice Explained

A specific standard of care applies to certain professional relationships and professional conduct. Attorneys have a fiduciary duty to their clients. This means the attorney must act in their client's best interests in any legal matter.

Attorneys must perform their legal services with care, skill, and diligence. The duty applies no matter which practice area the attorney practices in. It also applies in all cases, from personal injury cases and car accidents to breach of contract and torts. The attorney-client relationship and legal malpractice closely parallels the doctor-patient relationship and medical malpractice claims.

Examples of legal malpractice include missing filing deadlines or failing to file a case within the statute of limitations. You likely have a legal malpractice case if your attorney missed deadlines that affected your lawsuit. Moreover, you may have a malpractice claim if an attorney's conflict of interest affects your case.

In most jurisdictions, the plaintiff must typically prove the following to prevail on a legal malpractice claim:

  • Duty: The attorney owed a duty of care to the plaintiff
  • Breach: The attorney breached that duty
  • Damage/Injury: The plaintiff sustained an injury or damages, typically a financial injury
  • Causation: The breach caused the harm the plaintiff suffered

Just because an attorney did not win your case does not mean they committed malpractice. Whether your attorney committed malpractice depends on whether they breached a duty and whether their breach harmed you. If you believe your attorney's actions give rise to a legal malpractice claim, consider contacting a legal malpractice attorney in your state.

The following are examples of attorney conduct that may lead to a viable legal malpractice lawsuit.

Lack of Communication

Even in today's modern world with cell phones, the internet, email, texting, and smartphones, many clients still have communication issues with their attorneys. If your attorney fails to return your repeated phone calls or emails, they may be violating their ethical responsibility of communication. However, you may not want to go to the state bar to complain about your attorney just yet.

Send a Formal Letter

If after many attempts to communicate with your attorney you are still met with silence, write your lawyer a firm letter asking why they are not responding to you.

You should not threaten legal malpractice claims in your letter. Doing so may only aggravate the situation, giving your lawyer a reason to feel angry, which could lead to more extended periods of silence.

Consider Mediation

Mediation is a common method many people use instead of legal malpractice claims. You and your lawyer may benefit from mediation, leading to a better attorney-client relationship.

If Necessary, Fire Your Lawyer

If everything has failed and you still cannot get your attorney to respond promptly, you may have to fire your lawyer and find a new one.

When you fire your attorney, they may issue you a bill for their work on your case. If you do not feel that the bill is fair, consider looking for another attorney to give you legal advice to determine whether or not to pay the bill.

In addition, this second attorney may be able to assist you in suing your former attorney in a legal malpractice case. For example, if you filed a personal injury lawsuit and the attorney failed to file the lawsuit in time, you may have a legal malpractice claim.

Can I Sue My Lawyer for Lying?

The rules of legal ethics in most states require attorneys to be honest and to be able to do their job at a certain level of competence. If you feel that your legal representative has lied or misled you or is performing their duties at a level below that of a competent attorney, consider filing a lawsuit.

File a Complaint

Every state has some agency that is responsible for disciplining attorneys who violate the rules of legal ethics. The agencies could be:

  • The state's bar association
  • The state supreme court

No matter what name the agency in your state goes by, they will have a process you can use to file a complaint against your attorney for lying or being incompetent. Examples of these types of behavior include:

  • Misusing your money
  • Failing to show up at a court hearing
  • Lying to you or a judge
  • Participating in a criminal endeavor

If you feel that your attorney has engaged in any of these above activities, you should report it to the agency for your state.

Bills, Bills, Bills

Some attorneys skirt the edges of legal ethics when sending out legal bills. A normal bill could look something like this:

“50 hours spent on case XYZ at $400.00 an hour.

You owe $20,000.00.

Please pay immediately."

However, you deserve to know how your attorney spent their time working on your case.

Carefully Look at Your Bill

If you receive a bill that looks like the one above, you may demand an itemized accounting of all your attorney's time spent on your case. For example, if your attorney claims that they wrote a letter to opposing counsel for four hours which was only two paragraphs long, you may question your attorney's time management.

In addition, you should compare your bill to the fee agreement you and your attorney agreed on at the beginning of your representation. Ensure your attorney is not overcharging you, or charging for any items not listed in the fee agreement.

If Your Lawyer Misbehaved, Don't Pay the Bill.

If you feel your attorney did not follow their ethical obligations or engaged in malpractice, consider not paying them any money until the dispute is settled. Likewise, if you feel that the bill is outrageous or that your attorney improperly included fees, consider discussing them with your attorney before handing over any payment.

Inadequate Legal Work

Without going to law school and being an attorney, it can be difficult for a client to know whether his attorney's work is adequate.

However, if you have a feeling that your attorney is not pursuing your claims properly, consider doing the following:

Speak With Your Attorney

Clients often find out that their attorney is not doing good work on their case by seeing that the attorney has actually stopped working on their case. If this happens to you, your first step should be to try to contact your lawyer and tell them your concerns.

Request Your Case File

If you think your attorney has not been working diligently on your case, you can always request your case file. Your case file should include all correspondence as well as any filings. You can either go to the attorney's office and read the file there or request that the attorney make copies of everything and send them to you.

You can still request file copies even if you fired your attorney. If your attorney is not cooperating, you can go to the courthouse to see copies of all documents they have filed relating to your case.

Lastly, you may have to sue your former attorney to get your case file back. You can also ask for monetary damages if you can prove that you suffered financial hardship because your former attorney withheld your case file after you requested it. These damages can include:

  • Your financial loss for re-making documents that were contained in the file
  • Money that you spent trying to get the file

If you hire another attorney, they will likely ask for your case file. Thus, it is important to keep a obtain the file.

Do Some Legal Research

Often, attorneys seem to make strange arguments that may appear to have little or nothing to do with your case. If this describes your situation, you may want to go to your local law library to do some legal research to see if your attorney is making sense.

Get a Second Pair of Eyes

One of the best things you can do if you feel your attorney needs to do a better job is to get another law firm to look at your situation. These second opinions do not cost very much, as they will only last an hour or two.

However, no two lawyers will think exactly alike. A brilliant strategy from your current lawyer may look strange to the lawyer you hire to review the work. Alternatively, the second lawyer may provide insight into whether your attorney's course of action is proper.

Consider Arbitration

Sometimes, disputes between you and your attorney cannot be handled without intervention. If you are in this situation, consider going to arbitration before heading to court. Arbitration is when a neutral third party decides whether the attorney committed malpractice. This requires the third party, typically a legal expert, to analyze the underlying case and the attorney's conduct.

Before considering arbitration, you should always carefully check your contract with your attorney. These contracts often include mandatory arbitration clauses for things like fee disputes. If so, you cannot sue your attorney before arbitration.

Non-Binding Versus Binding Arbitration

Most arbitration clauses will contain a clause stating whether the arbitration result will be binding or nonbinding on the parties to the arbitration. If your arbitration clause says that the result of the arbitration is binding, you give up your right to challenge the arbitration results.

If, on the other hand, your arbitration clause states that the result is nonbinding, either you or your attorney may reject the outcome of the arbitration and, in most situations, file a lawsuit.

You should keep in mind that your nonbinding arbitration outcome could become binding if you do not challenge the result in court within 30 days. Check with the laws of your state regarding this issue to ensure that you reserve your right to challenge should you not like the results of your arbitration.

Fire Your Lawyer

Clients have the right to fire their attorney at any time and for any reason. However, you should consider the following first:

  • There are costs associated with firing your attorney. You may receive a bill from the attorney you fired. You must also spend more money to find and hire another attorney.
  • If your trial is coming up, the new attorney may not have time to prepare

If Nothing Else Works, File a Legal Malpractice Claim

If none of the above works, and you still feel your attorney has cost you money by breaching their ethical duty, you may consider suing. However, winning a legal malpractice case can be quite difficult because you have to prove two essential elements:

  • That your attorney was negligent in some way
  • Without your attorney's negligence, you would have won your case

Keep in mind that if you think you may end up suing for legal malpractice, you should not delay, as attorneys love making the defense that you waited too long to sue. This is known as the statute of limitations.

It would help if you also considered the financial implications of pursuing a legal malpractice action. These cases are costly to pursue. Often, you will need an expert witness to testify regarding your attorney's conduct. Therefore, ensure that the attorney you are suing has enough insurance or assets to pay your judgment if you win. There is no point in winning a legal malpractice lawsuit if you cannot collect your damages from the attorney or their insurance provider.

Having Doubts About Your Legal Representation? Speak to an Attorney

If you are a victim of legal malpractice, consider contacting a legal malpractice attorney. Legal malpractice lawyers assist people who believe their attorney breached a duty of care and committed legal malpractice. The legal malpractice attorney can help determine whether your attorney's conduct was negligent and if the attorney's acts caused you to lose your case. They can also provide information on the legal process to bring a malpractice claim.

Learn more about state-specific laws on our legal malpractice law answers page.

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