Mon. Apr 15th, 2024
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How to Sue Your Lawyer for Legal Malpractice

Can I Sue My Lawyer For Negligence?

suing lawyer negligenceLike all professionals, lawyers owe their clients a duty of care. 

Lawyers may make mistakes from time to time. A claim of malpractice may exist if your lawyer exhibited negligence in your representation.

If your lawyer’s negligence caused you to suffer harm or a less advantageous outcome or settlement in your case, you may have a claim to sue your lawyer for professional negligence.

Establishing a legal malpractice claim for a negligent lawyer is complex and varies from case to case.

What Is The Established Standard of Care?

The standard of care is the degree of knowledge and skill ordinarily possessed and exercised by members of their profession in similar circumstances.
In California, the “duty of care” refers to the legal obligation to use reasonable care to avoid injuring others. To prevail in a California personal injury case, a plaintiff must show that the defendant owed the plaintiff a duty of care, and the defendant breached that duty.
A person is negligent if they do something that a reasonably careful person would not do in the same situation, or fail to do something that a reasonably careful person would do in the same situation.

Lawyers are not required to be perfect or even win your case. However, lawyers must use the same care, skill, and diligence possessed by other lawyers in their community under similar circumstances. . A negligent lawyer fails to uphold this requirement, resulting in a less favorable result for their client.

When a negligent lawyer falls below this standard of care, they have committed legal malpractice.

The American Bar Association (ABA) Standing Committee on Ethics and Professional Responsibility dictates guidelines on attorney responsibility regarding client representation. Similarly, the Connecticut Practice Book provides rules that Connecticut Lawyers must follow.

The Connecticut Rule 1.4 of Professional Responsibility “Communication” provides that attorneys must undertake the following regarding communication with clients:

  • Inform clients of a decision requiring the client’s informed consent;
  • Inform clients of how the attorney plans to achieve client objectives in their case;
  • Keep clients reasonably informed about their case;
  • Promptly comply with reasonable requests for information
  • Consult with the client about limitations on the lawyer’s conduct when the client expects assistance not permitted by the Rules of Professional Conduct or other laws.
  • A lawyer shall explain matters so clients can make informed decisions regarding their representation

Many circumstances surrounding a legal malpractice claim may be centered around Rule 1.4 of the Connecticut Rules of Professional Conduct.

A lawyer is expected to let the client know the various steps the lawyer is taking to best represent their client. As the client is not only paying their attorney, but putting their fate in them, it is important for a lawyer to be thorough.

What are Some Examples of Legal Malpractice?

Malpractice cases are very fact specific and depend on the specific circumstances of your case.

An attorney’s decision must be analyzed at the time it was made. Rarely are decisions made with the benefit of hindsight. A lot depends on what the lawyer knew or should have known.

However, we tend to see common mistakes that lawyers make over and over, including:

  • Inaccurate billing;
  • Missed deadlines;
  • Failing to communicate with the client;
  • Settling a lawsuit without the client’s consent;
  • Giving inaccurate legal advice;
  • Stealing or losing money or property that belongs to the client;
  • Incompetently drafting legal documents that do not protect your rights;
  • Failing to file a case before the expiration of the statute of limitations; and
  • Taking a case despite an existing conflict of interest.

Whn you hire an attorney, you do so with trust and confidence. Most attorneys are upstanding and do a good job for their clients. Unfortunately, there are also some bad eggs out there. If your attorney has done something wrong, you may want to consider suing a lawyer for malpractice.

Understanding attorney malpractice

When suing an attorney for legal malpractice, you will need to show that the attorney did not use the ordinary amount of skill and care that most attorneys use in similar situations.

It’s important to understand that just because you lost your case, it does not mean your attorney committed malpractice.

In every case, one side will win and one will lose, despite the skill and experience of the lawyers on each side. Instead, malpractice is about an attorney’s making mistakes that other attorneys would not have made.

To win when you sue an attorney for malpractice, you need to show that:

  • The attorney was supposed to do something
  • He or she didn’t do it (or did it wrong)
  • This resulted in a financial loss to you (losing the case or losing money)

Types of attorney malpractice

There are a variety of ways in which you may feel you have been wronged, leading you to want to sue attorney for malpractice.

  • Negligence. To sue lawyer for negligence, you need to be able to prove the attorney didn’t use the proper care in your case and missed a deadline, filed the wrong papers, didn’t comply with court orders, or made other errors that were not intentional but were sloppy. Negligence happens when the attorney makes mistakes that other attorneys normally would not.
  • Breach of duty. This kind of malpractice happens when the lawyer violates his or her responsibilities to you by settling the case without your approval, not preparing the case for trial, lying to you, abandoning your case, misusing funds you provided for court costs, or misusing funds owed to you (such as a settlement amount). The attorney has not done what other attorneys would do in this type of case.
  • Breach of contract. This occurs when an attorney fails to do something he or she agreed to in your contract, such as filing your deed or patent. If the lawyer promised to do something he or she was contractually obligated to do and didn’t do it, you have grounds for breach of contract.

What Circumstances Can Lead to a Legal Malpractice Claim?

There are typically three (3) circumstances when a client may have grounds to sue his or her lawyer for legal malpractice. For one, if they have not acted in accordance with the applicable standard of care, then you may have a negligent case against them. You may also sue your former lawyer if they have breached their contract with you in some way.  Lastly, attorneys have a fiduciary responsibility toward you, and if they breach that responsibility then you may be able to sue them for that breach.

Negligence Lawsuit Against Your Attorney

Negligence applies when an attorney does not handle your case competently. When you hire a lawyer, you can reasonably expect that they are qualified and knowledgeable enough to do the work. However, if during the process of managing your case they make errors or demonstrate that they do not have the skills to properly advocate for you, then you may be able to sue them. Errors can cause irreparable harm to your case, and possibly to you personally in turn. Here are some examples when attorney negligence might be a factor that leads to legal malpractice.

  • The opponent in your case presents evidence in your trial that is technically not permitted under applicable law. Your attorney does not challenge it because they are not properly knowledgeable about the applicable laws and rules for evidence. Your case is damaged and you lose because of it.
  • A lawyer takes on a type of case, such as a personal injury case, without the proper experience or knowledge to handle such cases and you are unsuccessful in your claim because of this.
  • Your lawyer is not thorough enough when it comes to discovery in a divorce case. Your ex-spouse has managed to hide some assets that go undiscovered during the execution of your divorce. You do not get adequate compensation because of this error.
  • Your attorney files a legal claim after the statute of limitations has expired. Your case is quickly dismissed because of this oversight.

While these are common examples, there are many more possibilities. Lawyers are used for many reasons, and many types of cases can be damaged by attorney negligence. Your attorney must at the very least be an adequate advocate for your cause.  As long as your attorney acts in the same fashion that an attorney handling the same sort of case under the same circumstances would act, then you may not be able to successfully assert a claim against your former lawyer.  However, if they do not reach those standards, then there may be a good chance you have a case.

Breach of Contract Lawsuit Against Your Attorney

A breach of contract claim is another claim that you may have against your former lawyer.  Typically, as a client, you will sign a contract with an attorney for their services. You may have heard of this referred to as a retainer agreement or engagement agreement.  If your lawyer does not follow through on their side of that contract, then you may be able to make a claim against them.  Here are some common breaches of contract cases:

  • Your attorney does not prepare and submit legal documents before deadlines
  • Your attorney does not actually do any work on your behalf, despite accepting your payment and agreeing to the contract
  • Your attorney charges you a higher rate than what you agreed to

To be successful with a breach of contract lawsuit, you must be very clear on what your agreement says and how it was violated.  An experienced legal malpractice attorney from Henderson Law will be able to assist you with this and determine whether you have a case.

Breach of Fiduciary Duty Lawsuit Against Your Attorney

When you hire an attorney, the attorney must act in your best interests. If they do not, then may be considered a breach of their fiduciary duty. Your attorney can devise a strategy and negotiate on your behalf, but in the end you are the one who must make the final decisions regarding your case. A breach of fiduciary duty occurs when your attorney either makes a decision for you without your informed consent or pushes you to make a decision that is not in your best interest. For example:

  • You ask for assets in your will to be left to your children.  Instead, the lawyer prepares a will wherein he or she is identified as your beneficiary.
  • Your attorney impermissibly discloses confidential information that you have shared with him or her to your detriment.

As a client, you are the one who is best equipped to decide what is in your best interests. If the lawyer breaches that duty, then you may be able to file a claim against them for breach of fiduciary duty.

Proving Malpractice Isn’t Easy

If your attorney made serious errors, you may consider suing the lawyer for malpractice. Unfortunately, it is very hard to win a malpractice case. Malpractice means that the lawyer failed to use the ordinary skill and care that would be used by other lawyers in handling a similar problem or case under similar circumstances. In other words, it’s not malpractice just because your lawyer lost your case.

To win a malpractice case against an attorney, you must prove four basic things:

  • duty — that the attorney owed you a duty to act properly
  • breach — that the attorney breached the duty: she was negligent, she made a mistake, or she did not do what she agreed to do
  • causation — that this conduct hurt you financially, and
  • damages — that you suffered financial losses as a result.

In practical terms, to win a malpractice case, you must first prove that your attorney made errors in how she handled your case. Then you must show that you would have won the underlying case that the lawyer mishandled. (This second part is not required in Ohio.) Finally, you will have to show that if you had won the underlying case, you would have been able to collect from the defendant.

Example: Dorian is hit by a car while he is walking across the street. He hires a lawyer who doesn’t file the lawsuit on time. As a result, the judge tosses out Dorian’s case and he is unable to refile it. Dorian sues his lawyer for malpractice. He can prove duty (he signed a representation agreement with the lawyer). He can prove breach (the lawyer failed to file the lawsuit within the proper time). He can prove causation (witnesses and a police report attest to the driver’s liability). However, to prove that the lawyer’s misconduct harmed him financially, Dorian also must show that the driver had money or insurance so that Dorian could have collected the judgment if he’d won.

When Is a Bad Job Malpractice?

Here are some common complaints that clients have about their lawyers, along with an analysis of whether the lawyer’s action (or inaction, as the case may be) constitutes malpractice. (For more tips on dealing with a deadbeat attorney, read What to Do When You’re Mad at Your Lawyer.)

Your lawyer stops working on your case. The longer your attorney ignores you and your case, the more likely it is to amount to malpractice. You must act quickly to see that your case is properly handled and get another lawyer if necessary. Writing or faxing a letter expressing your concerns and asking for a meeting is a good first step.

Your case is thrown out of court because your lawyer did no work. This may be malpractice. Your difficulty will be in proving not only that your lawyer mishandled the case, but that if handled correctly, you could have won and collected a judgment. If you are successful and obtain a judgment against your lawyer, then the lawyer is responsible for whatever money you could have won had the case been properly handled.

Your lawyer recommends a settlement for far less money than she originally estimated your case was worth. This is not malpractice. Your lawyer may have given you an inflated estimate of the value of your case to encourage you to hire her.

Get your file from your lawyer and get a second opinion on your case. If another reputable lawyer believes you are being advised to settle for too little, consider changing lawyers.

Your lawyer settles your case without your authorization. This is malpractice, because a lawyer may not agree to a settlement without the client’s approval. To succeed in a malpractice case, however, you will have to prove that the settlement your lawyer entered into was for less than your case was worth.

You see your lawyer socializing with the lawyer for your opponent. This is not malpractice or a breach of attorney ethics. There is nothing ethically wrong with opposing attorneys playing tennis, bridge, or golf, or enjoying other common social interactions.

If the opposing attorneys talk about your case (on the tennis court or anywhere else), however, and your lawyer lets slip something that you said in confidence, that would be a clear violation of your attorney’s duty to you.

You suspect that your lawyer has misused money you paid as a retainer. Stealing a client’s money is malpractice, because your lawyer has a duty to use your funds only for your case.

If you seriously suspect your lawyer has misused any money he holds for you in trust, complain to your state’s attorney regulatory agency right away.

How to Sue Your Lawyer for Malpractice

While legal malpractice cases can be complex, in some cases filing a malpractice suit against a lawyer who exhibited negligence in your case may be your only recourse. The legal malpractice may be obvious, such as a missed deadline or statute of limitations. Other times, the issue may fall in the “gray” area regarding whether legal malpractice occurred and whether it had a significant impact on the outcome of your case. If you believe that your attorney’s negligence has harmed you financially, you need an attorney on your side that has experience litigating legal malpractice cases.

PLEASE NOTE: The Patrick Malone law firm cannot help you with a claim against an attorney in the fields of criminal law, family law (including divorce, alimony, custody, parental rights), immigration, or employment.

Our work in legal malpractice focuses mainly on cases where the lawyer did a poor job representing the client in personal injury, medical malpractice, product liability and claims against health care providers, drivers and similar subjects. We might be able to help you if your case falls into one of those subjects, or if it involves general civil litigation, but we cannot get involved with criminal cases, family law matters, immigration and employment lawsuits.

Legal Malpractice—Two Cases in One

Legal malpractice cases are two cases in one. You must prove that your attorney exhibited negligence while handling your case, and if that negligence had not occurred, you would have received a more favorable outcome, settlement, or judgment than you did. Substantial levels of re-litigation of the original case are often necessary in order to be successful in a legal malpractice case. Even when the attorney in your original case made a serious error, a jury may feel you would have lost the case no matter what. Many legal malpractice cases arise from a situation in which the attorney recovered some money for his or her client, but the client believes they would have received more but for the attorney’s negligence.

Steps to Take to Sue Your Lawyer for Malpractice

There are several steps to take if you believe you have a good case for legal malpractice, including:

  • Obtain your case file from your original attorney;
  • Gather all documentation pertaining to the original case;
  • Contact a legal malpractice attorney;
  • Schedule a consultation with the legal malpractice attorney you choose, and
  • Follow the advice of your legal malpractice attorney at all times.

Elements of a Legal Malpractice Case

In order to prove legal malpractice, your new attorney must show four elements of the case. The first is that your original attorney owed you a duty of care to act properly in your case. There is usually a contract or agreement between a client and attorney which affirms this duty of care. Secondly, it must be shown that your original attorney breached this duty of care. The attorney may have failed to do what he or she agreed to do, was negligent, or made a mistake that another attorney in a similar situation would not have done. Third, the attorney’s conduct must have caused you damage, and finally, you must have suffered financial losses as a result of your attorney’s actions (or inaction).

Alternatives to lawsuits against lawyers

There are several alternatives to suing your lawyer.

  • If the attorney violated proper ethics, you can file a grievance with the ethics committee of the state bar association, which ensures all attorneys are in good standing to renew their licenses. The attorney could be disbarred or directed to pay you compensation.
  • If you are disputing a fee with your lawyer, the state also likely has a fee dispute committee that can help you obtain an out-of-court resolution.
  • You can hire another attorney to complete or fix your case and obtain the outcome you need.
  • You also can hire an attorney to negotiate with the problem lawyer and obtain a settlement for the mistakes that were made in your case.

It is very frustrating to feel that an attorney you trusted has let you down. Suing for malpractice is one way for you to be compensated for wrongdoing by your lawyer.

What is a Fiduciary Duty – Breach of Fiduciary Duty click here to learn more

 

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