How to sue your lawyer Archives - Good Shepherd News - Fastest Growing Religious, Free Speech & Political Content https://goodshepherdmedia.net/tag/how-to-sue-your-lawyer/ Christian, Political, ‎‏‏‎Social & Legal Free Speech News | Ⓒ2024 Good News Media LLC | Shepherd for the Herd! God 1st Programming Fri, 14 Jul 2023 20:14:37 +0000 en-US hourly 1 https://wordpress.org/?v=7.1 https://goodshepherdmedia.net/wp-content/uploads/2023/08/Good-Shepherd-News-Logo-150x150.png How to sue your lawyer Archives - Good Shepherd News - Fastest Growing Religious, Free Speech & Political Content https://goodshepherdmedia.net/tag/how-to-sue-your-lawyer/ 32 32 What is a Fiduciary Duty; Breach of Fiduciary Duty https://goodshepherdmedia.net/what-is-a-fiduciary-duty-breach-of-fiduciary-duty/ Fri, 14 Jul 2023 02:09:25 +0000 https://goodshepherdmedia.net/?p=12335 What is a Fiduciary Duty – Breach of Fiduciary Duty

Breach of Fiduciary Duty California

Protecting The Interests Of Legal Malpractice Victims

“In your best interest” is a crucial term to know in the context of legal malpractice. Your attorney has a fiduciary duty to act in your best interest at all times. This ironclad standard exists because the consequences of an attorney failing to act in a client’s best interest – even for a moment – can result in lasting damage to that client’s legal interests, financial well-being and the legal profession as a whole.

What Does “Fiduciary” Mean?

First things first, fiduciary describes someone who is in a position of authority and is obligated to act on behalf of another. In the legal context, the lawyer is a fiduciary who is bound by legal ethics to pursue actions that are in the best interest of their client. They are expected to pursue such actions in good faith and to the best of their ability. Failing to do so for any reason is considered to be a “breach of fiduciary duty.”

What Is a Fiduciary Duty?

A fiduciary duty is a legal obligation imposed upon a person with authority over assets that do not belong to them.

What Is A Fiduciary Relationship?

A fiduciary relationship exists where one party has a duty to act with the utmost good faith and reasonable care for the benefit and interests of the other party.  An example would we partners in a business.  It is a relationship of undivided loyalty, the fiduciary having a duty to refrain from seizing any opportunity at the expense of the other party, or from taking any action in competition with the other party.  Any form of self-dealing is strictly prohibited.  A fiduciary relationship is one of complete trust and disclosure, a fiduciary having a duty to protect all confidences and make full disclosure of all material information to the other party.

Traditional examples of fiduciary relationships include attorney/client, trustee/beneficiary, real estate broker/client and other principal/agent relationships.  In the business context, fiduciary duties are imposed on directors, officers and majority shareholders of a corporation, as well as partners, LLC managers and joint venturers.

Breach of Fiduciary Duty California

In California, the responsibility for proving a breach of fiduciary duty falls on the plaintiff (i.e. beneficiary, ward, advisee, client). There are many different types of fiduciary relationships, and there are exceptions to all. It is vital to work with an attorney experienced in handling fiduciary duty civil claims.

Understanding how fiduciary relationships work, what establishes them, and how they are enforced is important for navigating these murky waters. Reviewing the following information before contacting our experienced litigation attorneys in California will help you know if you may have a breach of fiduciary duty claim and what to expect from the process.

Breach Of Fiduciary Duty Or Legal Malpractice?

Why not both?

The line between breach of fiduciary duty and legal malpractice can be extremely blurry. An action could theoretically be both a breach of fiduciary duty, an act of negligence that rises to the level of malpractice, neither, or both.

THE 3 ELEMENTS OF A BREACH OF FIDUCIARY DUTY IN LEGAL MALPRACTICE

The requirements for a legal action for breach of fiduciary duty include proof of:

  • The existence of a fiduciary duty;
  • Breach of the duty; and
  • Damages caused by the breach.

A successful plaintiff may recover all damages caused by the defendant’s breach of fiduciary duty.  In addition, due to the seriousness of the offense, punitive damages are often appropriate and may be awarded for a breach of fiduciary duty.

Many professional relationships involve a fiduciary obligation on the part of one individual performing a service for another. The fiduciary obligation requires the person who is giving the service to act in the best interests of the client or give advice and recommendations in the best interest of the client. When the fiduciary acts in a way that hurts the client — and especially when it is done to benefit or enrich the service provider — a breach of fiduciary duty has likely occurred.

From the perspective of an attorney-client relationship, breach of fiduciary duty is a common issue that comes up in the litigation of a legal malpractice claim. Let’s take a look at the three most important elements required to establish that a breach of fiduciary duty has occurred between a lawyer and his or her client:

 

A clear duty was present: In a legal malpractice case that includes a breach of fiduciary duty, the plaintiff needs to show that the lawyer owed a “duty” to the client. This duty relates to the expectation of good faith and fair dealing, the duty to fully disclose information and the duty to be loyal to the client. The clearest way to establish that the lawyer owed a duty to his or her client is through the existence of a signed contract between the plaintiff and the lawyer. However, this may not always be required.

A breach of the fiduciary duty has occurred: The breach relates to the lawyer’s failure to fulfill fiduciary obligations to the plaintiff through actions or inactions. Perhaps the lawyer utilized his or her influence over the client to achieve a benefit for him- or herself.

The victim suffered damages: A breach or failure relating to fiduciary duties alone is not enough for a plaintiff to prevail in a legal action. The plaintiff also needs to show that the breach caused him or her to suffer damages. With proof of damages, the plaintiff will not have an actionable claim against one’s attorney.

Were you harmed by a lawyer’s fiduciary failures, malpractice or negligence? By learning more about the duties and obligations owed by an attorney to a client, you can better evaluate whether you can pursue a legal malpractice action in court.

Identifying and Proving a Breach of Fiduciary Duty

Fiduciary relationships are more complex than hiring someone to perform simple tasks, such as yardwork or housekeeping. Because we share sensitive information and data with the fiduciary, there is an added level of trust implicit in these relationships. For instance, we hire a business attorney to provide capable representation and guidance for our legal matter. We trust our accountant to manage our money responsibly and make good decisions for our bottom dollar.

A breach of fiduciary duty refers to more than a simple breach of contract. Because of the added component of loyalty and trust, an intentional breach of fiduciary duty can include punitive damages for harm done under California state law. If you were harmed financially or legally by a professional or company you rightfully expected to make good decisions on your behalf, you may have a claim for breach of fiduciary duty.

Breach of Fiduciary Duty Consequences

Under California law, a plaintiff can ask for compensatory damages for all the ways a breach impacted their business or livelihood. Punitive damages are also possible. They are used to punish a defendant and send the message that such practices will not be tolerated. Quantifying damages in these types of cases is not a straightforward process, as every situation is unique. Your business attorney will review your case and assess potential damages. source

THE IMPORTANCE OF KNOWING WHO IS, AND WHO IS NOT, MY CLIENT

CALIFORNIA LAWYERS ASSOCIATION

How to Sue Your Lawyer for Legal Malpractice click here to learn more

Lawyers must be able to identify who is, and who is not, their client in order to comply with their professional obligations. Lawyers owe fiduciary duties to their clients,i including the duties of loyalty and confidentiality, which the California Supreme Court considers to be the most fundamental qualities of the attorney-client relationship.ii These duties to the client are embodied in the California Rules of Professional Conduct (the “Rules”), most notably in Rule 1.6 (Confidential Information of a Client) and Rule 1.7 (Conflict of Interest: Current Clients).

Rule 1.6, together with Business and Professions Code section 6068(e)(1), obligates a lawyer “to maintain inviolate the confidence, and at every peril to himself or herself to preserve the secrets, of his or her client,”iii “unless the client gives informed consent.”iv In order to comply with this mandate, a lawyer must be able to identify who is the client, so as to ensure whose confidences and secrets are to be protected, and to ensure that the proper person has authorized any disclosure of such information.v

Rule 1.7 provides that “a lawyer shall not, without informed written consent from each client […], represent a client if the representation is directly adverse to another client in the same or a separate matter [or] if there is a significant risk the lawyer’s representation of the client will be materially limited by the lawyer’s responsibilities to or relationships with another client, a former client or a third person, or by the lawyer’s own interests.”vi In order to comply with Rule 1.7, and avoid impermissible conflicts of interest, lawyers must be able to properly identify who their clients are.vii

Similarly, the conflict of interest rule pertaining to former clients, Rule 1.9 (Duties to Former Clients), requires that a lawyer be able to identify who is a former client of the lawyer: “A lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the same or a substantially related matter in which that person’s interests are materially adverse to the interests of the former client unless the former client gives informed written consent.”viii

Other Rules also require a lawyer to be able to properly identify the client. For example: Rule 1.8.10 (Sexual Relations with Current Client) generally provides that “a lawyer shall not engage in sexual relations with a current client” subject to certain specified exceptions; Rule 1.4 (Communication with Clients) requires that a lawyer “keep the client reasonably informed about significant developments relating to the representation;” Rule 1.8.1 (Business Transactions with a Client) provides that “a lawyer shall not enter into a business transaction with a client” unless certain specified conditions are satisfied; and Rule 1.8.3 (Gifts from Client) generally provides that “a lawyer shall not […] solicit a client to make a substantial gift, including a testamentary gift, to the lawyer.”ix

Certain Rules also require a lawyer to be able to identify who is not a client of the lawyer. For example: Rule 1.8.6 (Compensation from One Other than Client) mandates that “a lawyer shall not […] accept compensation for representing a client from one other than the client” unless certain specified conditions are satisfied;x Rules 4.2 (Communication with a Represented Person) and 4.3 (Communicating with an Unrepresented Person) generally restrict a lawyer’s communications with a non-client; and Rule 7.3 (Solicitation of Clients) generally provides that “a lawyer shall not solicit professional employment” from a non-client unless certain specified conditions are satisfied.

So how does a lawyer properly identify who is (or was) a client of the lawyer? In most instances, this is a relatively simple inquiry: the lawyer and client enter into a retention agreement that evidences an attorney-client relationship for a specific matter.xi But sometimes it is not entirely clear whether an attorney-client relationship has been established. And, even if an attorney-client relationship has been established, it may not be entirely clear who is the client.

California courts have held that an attorney-client relationship can only be created by contract.xii However, the formation of an attorney-client relationship does not require an express contract; such a relationship can be formed implicitly, as evidenced by the intent and conduct of the parties.xiii While the lawyer and the purported client may have their own subjective views as to whether or not an attorney-client relationship has been formed and with which client(s), courts generally will apply an objective test. Thus, despite the subjective view of the lawyer to the contrary, the reasonable perception of the purported client may determine that such person is a client of the lawyer.xiv

The question as to who is, and who is not, the client is further complicated when the lawyer is associated with a law firm, and when the client is an organization or associated with an organization.

When a lawyer is associated with a law firm, a client of any lawyer in the law firm is generally considered, from a practical perspective, to be a client of all of the lawyers in the law firm, at least with respect to conflicts of interest. In accordance with Rule 1.10 (Imputation of Conflicts of Interest: General Rule): “While lawyers are associated in a firm, none of them shall knowingly represent a client when any one of them practicing alone would be prohibited from doing so by rules 1.7 or 1.9,” unless certain specified exceptions apply. The attorney-client relationship, and resulting potential conflict of interest, of one lawyer in the firm is essentially imputed to all lawyers in the firm.

The imputation of an attorney-client relationship also applies with respect to certain other prohibitions under the Rules. For example, the limitation on business transactions with a client set forth in Rule 1.8.1 applies not just to the lawyer who has an attorney-client relationship with the client, but to all other lawyers associated in the same law firm. By application of Rule 1.8.11 (Imputation of Prohibitions Under Rules 1.8.1 to 1.8.9), a prohibition under Rule 1.8.1 “that applies to any one of them shall apply to all of them.”

Imputation under Rule 1.8.11, however, does not extend to the prohibition on sexual relations with a client “since the prohibition in [Rule 1.8.10] is personal and is not applied to associated lawyers.”xv But it is important to note that the term “client” has a unique meaning in the context of Rule 1.8.10 when the client is an organization. Solely for purposes of prohibited sexual relations under Rule 1.8.10, “a constituent of the organization who supervises, directs or regularly consults with that lawyer concerning the organization’s legal matters” is deemed to be a client of the lawyer – even if the lawyer has no attorney-client relationship with that individual.xvi

When a lawyer is working with an organization, the analysis as to the identity of the client may be further complicated by such factors as the working relationship and the ownership and structure of the organization. When a lawyer is retained by an organization, Rule 1.13 (Organization as Client) mandates that the lawyer “conform his or her representation to the concept that the client is the organization itself, acting through its duly authorized […] constituents overseeing the particular engagement.” Further, when dealing with such constituents, the lawyer must “explain the identity of the lawyer’s client whenever the lawyer knows or reasonably should know that the organization’s interests are adverse to those of the constituent(s) with whom the lawyer is dealing.”xvii But even when the lawyer has an attorney-client relationship with an organization, the lawyer may also have an attorney-client relationship with any of its constituents (subject to the Rules pertaining to conflicts of interest).xviii

As a result, when working with organizations, a lawyer should clearly delineate, both to himself or herself and to the various constituents, who is, and who is not, the client of the lawyer. This may be particularly challenging in a number of common situations. For example, when the organization is closely held, the owner(s) may be so closely identified with the organization itself, that either the owner(s) or the lawyer or both may have difficulty distinguishing who is, and who is not, the client. This can be especially difficult if the lawyer is working with the owner(s) of a to-be-formed business: although the owner(s) and the lawyer may expect and agree that the organization will be the client of the lawyer, the identity of the client for the preformation work (before the organization exists) may well be the owner(s) (because the formation work is being done for the benefit, and at the direction, of the owner(s)). Even with respect to established business organizations, with multiple subsidiaries and affiliated entities, the determination of which entities are, and which are not, clients of the lawyer may be unclear.

The fiduciary duties owed by lawyers to their clients, as well as the protections afforded under the Rules to clients, require that lawyers at all times be able to clearly answer the question: Who is, and who is not, my client?

i See, e.g., Lee v. State Bar (1970) 2 C3d 927.
ii See Flatt v. Sup.Ct. (Daniel) (1994) 9 C4th 275 (“One of the principal obligations which bind an attorney is that of fidelity” [internal quotes and citation omitted]). See also Rule 1.7, Comment [1] (“Loyalty and independent judgment are essential elements in the lawyer’s relationship to a client.”); Cal. State Bar Form Opn. 1984-83 (“Perhaps the most fundamental quality of the attorney-client relationship is the absolute and complete fidelity owed by the attorney to his or her client.”).
iii California Business & Professions Code § 6068(e)(1) [italics added].
iv Rule 1.6(a) [italics added]. See also Rule 1.8.2 (Use of Current Client’s Information) (“A lawyer shall not use a client’s information protected by Business and Professions Code section 6068, subdivision (e)(1) to the disadvantage of the client unless the client gives informed consent” [italics added]).
v In addition, the existence of an attorney-client privilege pursuant to California Evidence Code § 954 depends upon the existence and identity of a client. The term “client” is defined in Evidence Code § 951 as “a person who, directly or through an authorized representative, consults a lawyer for the purpose of retaining the lawyer or securing legal service or advice from him in his professional capacity.”
vi Italics added. See also Rule 1.18 (Duties to Prospective Client), which extends, to the extent set forth therein, the protections of Rule 1.6 and Business & Professions Code § 6068(e)(1) to a “prospective client” (as defined).
vii See ABA Model Rule 1.7 (Conflict of Interest: Current Clients), comment [2] (“Resolution of a conflict of interest problem under this Rule requires the lawyer to […] clearly identify the client or clients.”).
viii Italics added.
ix Italics added.
x Italics added.
xi It is good practice for a retention agreement to be in writing. In fact, certain engagements must be evidenced in a writing. See Business & Professions Code §§ 6146 (with respect to contingency fees) and 6148 (where reasonably foreseeable attorney fees and expenses exceed $1,000 and the client is not a corporation).
xii See, e.g., Koo v. Rubio’s Restaurants, Inc. (2003) 109 Cal.App.4th 719.
xiii See, e.g., Lister v. State Bar (1990) 51 C3d 1117 (“No formal contract or arrangement or attorney fee is necessary to create the relationship of attorney and client.” [internal quotes and citation omitted]); Hecht v. Superior Court (Ferguson) (1987) 192 Cal.App3d 560 (“It is the intent and conduct of the parties which is critical to the formation of the attorney-client relationship.”). See also Restatement, Third, The Law Governing Lawyers, §14(1) (“A relationship of client and lawyer arises when […] a person manifests to a lawyer the person’s intent that the lawyer provide legal services for the person; and either (a) the lawyer manifests to the person consent to do so; or (b) the lawyer fails to manifest lack of consent to do so, and the lawyer knows or reasonably should know that the person reasonably relies on the lawyer to provide the services”).
xiv See Responsible Citizens v. Superior Court (Askins) (1993) 16 Cal.App.4th 1717 (“one of the most important facts involved in finding an attorney-client relationship is the expectation of the client based on how the situation appears to a reasonable person in the client’s position.” [internal quotes and citation omitted]). See also Sky Valley Ltd. Partnership v. ATX Sky Valley, Ltd. (ND CA 1993) 150 F.R.D. 648 (“the courts have focused on whether it would have been reasonable, taking into account all the relevant circumstances, for the person who attempted to invoke the joint client exception [to the attorney-client privilege] to have inferred that she was in fact a ‘client’ of the lawyer.”).
xv Rule 1.8.11, Comment.
xvi Rule 1.8.10, Comment [2].
xvii Rule 1.13(f). See also Upjohn Company et al. v. United States et al. (1981) 449 U.S. 383.
xviii Rule 1.13(g).

By Neil J Wertlieb source

How to Determine When an Attorney is Responsible for a Breach of Fiduciary Duty

Breach of fiduciary duty is often confused with legal malpractice. A breach of fiduciary duty and legal malpractice both fall under the capacity of tort law. A breach of fiduciary duty, however, is not the same as an attorney committing a legal malpractice or other form of professional negligence. Importantly, where a claimant asserts both a breach of fiduciary duty and a legal malpractice, the breach of fiduciary duty claim may be dismissed if it is based on a breach of the duty of care which is the standard for a legal malpractice. However, a breach of fiduciary duty will carry a separate tort and will also implicate different remedies than what is typically required for legal malpractice cases so long as the claim is based on one of the fiduciary duties owing to the client beyond a breach of a duty of care.

Understanding the Elements Needed to File a Claim for a Breach of Fiduciary Duty

In effort of demonstrating that a lawyer breached a fiduciary duty that was owed to a client, the claimant will need to demonstrate the following:

  • The lawyer has a lawfully recognized fiduciary duty to the claimant;
  • The lawyer violated, or breached, that owed duty;
  • The claimant sustained legally recognized damage or grievances; and
  • The lawyer’s breach of duty was the lawfully recognized reason behind the claimant’s damage or grievances.

Identifying the Fiduciary Duties an Attorney Owes His or Her Clients

The California Rules of Professional Conduct as well as general California statutes and applicable federal laws govern and define the extent of fiduciary duties of which an attorney owes to the client. The relation between an attorney and a client is a fiduciary relation of the very highest character. A few duties owed to a client, under certain circumstances, may involve the following:

  • A duty of undivided loyalty to a client
  • A duty of confidentiality
  • A duty to use reasonable care
  • A duty to not engage in conflicts of interest
  • A duty to obtain the clients informed consent
  • A duty to reasonably charge the client a fair and conscionable fee
  • A duty to charge the client for a service that was in fact rendered or a work that was in fact performed
  • A situation where the lawyer has handled a client’s legal documents and/or money
  • All other situations in which a lawfully recognized fiduciary relationship is established

If you have reason to believe that you lawyer owed you or owed you a fiduciary duty and that this duty has been violated, seek the an experienced legal professional as soon as possible in order to protect your legal rights.

The Aftermath of a Breached Fiduciary Duty Can Be Complex

A violation of a fiduciary duty is usually evaluated as a question of fact. This means that the investigation, and eventually the legal conclusion, will be contingent on the facts and circumstances of each case. In effort of demonstrating that a violation has occurred, the claimant may need to provide expert testimony.

Furthermore, a claim filed for a breach of fiduciary duty is subject to the same state’s statute of limitations applicable to all legal malpractice cases. This means that the claimant has only a small window of time to file a claim in order for the case to be heard. Failing to file the claim in a timely manner can result in a rejected case.

Remedies for Breach of Fiduciary Duty Can Be Different than Remedies for Legal Malpractice

While certain remedies are available for both a breach of fiduciary duty and legal malpractice, there are some distinct differences for certain remedies available.  For instance, in a legal malpractice claim, emotional distress damages generally are not recoverable except in extraordinary circumstances.  However, emotional distress damages may be recoverable for breach of fiduciary duty claims, such as with a claim for breach of loyalty.  Additionally, punitive damages are generally not available for legal malpractice claims, however under certain circumstances punitive damages are available for breach of fiduciary duty claims.

If you or someone you know has reason to believe that there was a violation of fiduciary duty in a case, it is important to not delay in seeking professional legal support. Delaying the claim can often cause the claimant the missed opportunity to obtain compensation, even if there is a valid claim. source

How to Sue Your Lawyer for Legal Malpractice

§49. Breach of Fiduciary Duty–Generally

In addition to the other possible bases of civil liability described in §§48 [professional negligence] 55[breach of contract and equitable relief] and 56 [liability to a non-client], a lawyer is civilly liable to a client if the lawyer breaches a fiduciary duty to the client set forth in §16(3) and if that failure is a legal cause of injury with the meaning of §53, unless the lawyer has a defense within the meaning of §54. 

§16  Lawyer’s Duties to a Client–Generally

To the extent consistent with the lawyer’s other legal duties and subject to other provisions of this Restatement, a lawyer must, in matters within the scope of the representation:

(1) proceed in a manner reasonably calculated to advance a client’s lawful objectives, as defined by the client after consultation;

(2) act with reasonable competence and diligence;

(3) comply with obligations concerning the client’s confidences and property, avoid impermissible conflicting interests, deal honestly with the client, and not employ advantages arising from the client-lawyer relationship in a manner adverse to the client; 

(4) fulfill valid contractual obligations to the client.

 

The Lawyer’s Fiduciary Duties: “The 4 C’s”:

  •  1. Communicate
    RLGL  §20 A Lawyer’s Duty to Inform and Consult with a Client

    • (1) A lawyer must keep a client reasonably informed about the matter and must consult with a client to a reasonable extent concerning decisions to be made by the lawyer…
    • (2) A lawyer must promptly comply with a client’s reasonable requests for information.
    • (3) A lawyer must notify a client of decisions to be made by the client…and must explain a matter to the extent reasonably necessary to permit the client to make informed decision regarding the representation.
      RPC 1.4 Communication

      • (b) A lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information.
      • (c) A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decision regarding the representattion.

 Rizzo v. Haines, 555 A.2d 58 (Pa. 1989). (duty to disclose settlement offers to client)
FDIC v. Clark, 978 F.2d 1541 (10th Cir.1992) (duty to inform board of directors of a corporate officer’s fraud).

  • 2. Conflict Avoidance (duty of loyalty)
    Maritrans v. Pepper Hamilton & Scheetz, 529 Pa. 241, 602 A.2d 1277 (1992)
    Matter of Silverman, 113 NJ 198 (1988) (doing business with clients)
  • 3. Confidentiality
    Profit Sharing Trust v. Lampf Lipkind, 267 NJ Super 174 (Law Div. 1993)
  • 4. Competence
    Starron v. Weinstein, 305 N.J.Super. 263, 701 A.2d 1325 

 

Various courts have used other terms synonymous or encompassed by the “4 C’s” to describe the fiduciary duty, or at least, the context within which various allegations of the breach of fiduciary duty has arisen. You should be familiar with these terms and recognize them as examples of breaches of the fiduciary duty:  “self-dealing”; “failure to exercise independent professional judgment”; “duty of loyalty”; “duty of candor”; “abuse of a position of trust”; “putting the interests of the lawyer ahead of the clients”; “misuse or abuse of client’s confidential information”. source

5 WAYS YOUR TRIAL LAWYER MAY HAVE BREACHED THEIR FIDUCIARY DUTY

source

These five common situations are clear violations of your trial lawyer’s fiduciary duty to you:

SELF-DEALING

The fiduciary duty to act in your best interests extends to situations in which your best interests conflict with your attorney’s. He is still required to do what is best for you, even if there is a cost – financial or otherwise – to him. For example, if your lawyer is working on a contingent-fee basis – paid a percentage of the funds recovered from the other party – encouraging you to accept an unfavorable settlement could be for his benefit, not yours.

ACTING IN GOOD FAITH

Every trial is a competition between two or more parties, and your lawyer is doing his best to outsmart and outmaneuver the opponent. Unfortunately, this doesn’t always happen. Your attorney’s strategy may simply not be enough to win the case. After the verdict, you will have the opportunity to reflect on any strategic errors, and it is common to imagine the outcome would have been better if your lawyer had done a few things differently.

If your attorney did his best to create a winning strategy and fell short, the next step is to regroup and consider appeal options. However, if the strategy fell short because your attorney wasn’t acting in good faith, that is an entirely different issue.

ATTORNEY-CLIENT PRIVILEGE

One of the most fundamental elements of the US judicial system is attorney-client privilege. Information shared with your attorney cannot be used against you, and disclosure of this information is a serious breach of professional conduct. This relationship goes beyond the length of the trial. Your lawyer must keep your secrets forever, even after your death, unless you specifically waive this right. Any actions that result in releasing information told to your lawyer in confidence can be considered a breach of fiduciary duty.

CONFIDENTIALITY

Maintaining the confidentiality of information you provide isn’t the only responsibility your lawyer has. Litigation strategies and key components of your case must remain confidential as well. Disclosing these secrets gives opposing counsel an advantage in the courtroom, and your attorney’s behavior constitutes a breach of the duty to act in your best interests.

CONFLICT OF INTEREST

The world gets smaller every day, and it is not uncommon for attorneys to discover that current clients and cases intersect with others – past and present. Your lawyer must examine such situations carefully and disclose these relationships to you to ensure that conflicts of interest don’t compromise your case. An example comes up when attorneys move from firm to firm. As the lawyer gets involved in your case, he discovers that the other party is a client of his former employer. While this situation doesn’t automatically disqualify attorneys from working with you, they must carefully consider the extent of their involvement with the other client.

Your attorney is your guide in the complicated judicial system, and your confidence in his ability to act in your best interests is key to a successful relationship. The five situations listed are breaches of your trial lawyer’s fiduciary duty to you.

How to Sue Your Lawyer for Legal Malpractice

Duties of the Government Lawyer – aka the DISTRICT ATTORNEY

Thompson v. Clark – Maliciou$ Prosecution claim under § 42 U.S.C. 1983
20-659 Thompson v. Clark (04-04-2022) – Suing the Government 

In its landmark decision, Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971), the U.S. Supreme Court held that federal officials can be sued personally for money damages for on-the-job conduct that violates the Constitution. Cases in which federal employees face personal liability cut across everything the government does in all three branches of government. Whether they are engaging in every-day law enforcement, protecting our borders, addressing national security, or implementing other critical government policies and functions, federal employees of every rank face the specter of personal liability.

This ruling has a complexity to it, that does not favor a malicious prosecutor or police force. 
it holds them accountable! New Supreme Court Ruling makes it easier to sue police when criminal 
charges are dropped or dismissed. This hold the prosecutor accountable because an attorney has 
a fiduciary duty to his client, meaning that a relation “exist[s] between parties to a transaction 
wherein one of the parties is duty bound to act with the utmost good faith in the benefit of the 
other party. Such a relation ordinarily arises when a confidence is reposed by one person in the 
integrity of another, and in such a relation the party in whom the confidence is reposed, if 
he [or she] voluntarily accepts or assumes to accept the confidence, can take no advantage from 
his [or her] acts relating to the interest of the other party without the latter’s knowledge or consent. . . . ”
An attorney may not seek, accept or continue employment where it is not substantiated by probable cause,
 thus an attorney may not prosecute any case that is not well
- 1 Cal. Rules Prof. Conduct, Rule 1-400. 2 Id. 3 McKinnery State Bar, 62 Cal.2d 194, 196 (1964);
Culter v. State Bar of California, 71 Cal.2d 241, 249 (1969); 
see also Coulello v. State of California, 45 Cal.2d 57 (1955); 
Hallinan v. State Bar of California, 33 Cal.2d 246 (1948). 
Clearly, this duty applies not only with reference to the client but also with regard to the court, 
opposing counsel. 4 Cal. Rules Prof. Conduct, Rule 3 -200; Cal. Bus. & Prof. Code
  • 6068(c). The ABA Model Rules of Professional Conduct, Rule 3.1 & 4.4, also impose a duty to the legal
system which requires both that the attorney bring only meritorious claims and that they not use inappropriate 
means in the representation of their client that embarrass, burden, delay or violate legal rights. 
Barbara A. v. John G., 145 Cal.App.3d 369 (1983) (citing Herbert v. Lankershim, 9 Cal.2d 409, 483 (1937); 
Bacon v. Soule, 19 Cal.App. 428, 434 (1912)

Casebook – Chapter 1 – Section D. Duties of the Government Lawyer

source

RULES OF PROFESSIONAL CONDUCT
Chapter 1. Lawyer-Client Relationship (Rules 1.1 – 1.18)

 

source

CACI No. 4106. Breach of Fiduciary Duty by Attorney – Essential Factual Elements

Judicial Council of California Civil Jury Instructions (2022 edition)

source

 

DISTRICT ATTORNEY & PAUL TOEPEL PLAY THESE VIDEOS

Rule 1.1 – Competence (DA REPRESENTS THE STATE)

Rule 1.2 – Assisting in a Crime

Rule 3.1 – Meritorious Claims & Contentions

Rule 3.4 – Fairness to Opposing Party and Council

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ABA Formal Op. 493 pt.1 – Rule 8.4(g): Purpose, Scope & Application

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Attorney Ethics Rules – FOX 17 Know the Law

 

Introducing the DA’s & Cops TEXTs & EMAIL as Digital Evidence

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New Supreme Court Ruling Makes it easier to Sue PROSECUTORS & POLICE

 

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To Learn More…. Read MORE Below and click the links Below 

Abuse & Neglect – The Mandated Reporters  (Police, D.A & Medical & the Bad Actors)

Mandated Reporter Laws – Nurses, District Attorney’s, and Police should listen up
If You Would Like to Learn More About: The California Mandated Reporting LawClick Here

To Read the Penal Code § 11164-11166 – Child Abuse or Neglect Reporting Act – California Penal Code 11164-11166Article 2.5. (CANRA) Click Here

 Mandated Reporter formMandated ReporterFORM SS 8572.pdf – The Child Abuse

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It Only Takes a Minute to Make a Difference in the Life of a Child learn more below

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We also have the The Brandenburg v. Ohio (1969) – 1st Amendment

CURRENT TEST = We also have the The ‘Brandenburg test’ for incitement to violence – 1st Amendment

We also have the The Incitement to Imminent Lawless Action Test– 1st Amendment

We also have the True Threats – Virginia v. Black is most comprehensive Supreme Court definition – 1st Amendment

We also have the Watts v. United States – True Threat Test – 1st Amendment

We also have the Clear and Present Danger Test – 1st Amendment

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We also have the Elonis v. United States (2015) – Threats – 1st Amendment

Learn More About What is Obscene…. be careful about education it may enlighten you

We also have the Miller v. California – 3 Prong Obscenity Test (Miller Test) – 1st Amendment

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We also have the Lozman v. City of Riviera Beach, Florida (2018) – 1st Amendment – Retaliatory Police Arrests

We also have the Nieves v. Bartlett (2019) – 1st Amendment – Retaliatory Police Arrests

We also have the Hartman v. Moore (2006) – 1st Amendment – Retaliatory Police Arrests
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Vermont’s Top Court Weighs: Are KKK Fliers – 1st Amendment Protected Speech

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Federal Perjury – Definition by Law

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Possible courses of action Prosecutorial Misconduct

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Functions and Duties of the Prosecutor – Prosecution Conduct

Criminal Motions § 1:9 – Motion for Recusal of Prosecutor

Pen. Code, § 1424 – Recusal of Prosecutor

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Mi$Conduct – Judicial Mi$Conduct

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Prosecution Of Judges For Corrupt Practice$

Code of Conduct for United States Judge$

Disqualification of a Judge for Prejudice

Judicial Immunity from Civil and Criminal Liability

Recusal of Judge – CCP § 170.1 – Removal a Judge – How to Remove a Judge

l292 Disqualification of Judicial Officer – C.C.P. 170.6 Form

How to File a Complaint Against a Judge in California?

Commission on Judicial Performance – Judge Complaint Online Form

Why Judges, District Attorneys or Attorneys Must Sometimes Recuse Themselves

Removing Corrupt Judges, Prosecutors, Jurors and other Individuals & Fake Evidence from Your Case

Misconduct by Government Know Your Rights Click Here (must read!)

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42 U.S. Code § 1983 – Civil Action for Deprivation of Right$

18 U.S. Code § 242 – Deprivation of Right$ Under Color of Law

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Police Misconduct in California – How to Bring a Lawsuit

How to File a complaint of Police Misconduct? (Tort Claim Forms here as well)

Deprivation of Rights – Under Color of the Law

What is Sua Sponte and How is it Used in a California Court? 

Removing Corrupt Judges, Prosecutors, Jurors
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Anti-SLAPP Law in California

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How to Recover “Punitive Damages” in a California Personal Injury Case

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Distinguishing Request for Custody from Request for Visitation

Troxel v. Granville, 530 U.S. 57 (2000) – Grandparents – 14th Amendment

S.F. Human Servs. Agency v. Christine C. (In re Caden C.)

9.32 Particular Rights – Fourteenth Amendment – Interference with Parent / Child Relationship

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Mandatory Joinder vs Permissive Joinder – Compulsory vs Dismissive Joinder

When is a Joinder in a Family Law Case Appropriate?

Kyle O. v. Donald R. (2000) 85 Cal.App.4th 848

Punsly v. Ho (2001) 87 Cal.App.4th 1099

Zauseta v. Zauseta (2002) 102 Cal.App.4th 1242

S.F. Human Servs. Agency v. Christine C. (In re Caden C.)

Ian J. v. Peter M

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Due Process vs Substantive Due Process learn more HERE

Understanding Due Process  – This clause caused over 200 overturns in just DNA alone Click Here

Mathews v. Eldridge – Due Process – 5th & 14th Amendment Mathews Test – 3 Part Test– Amdt5.4.5.4.2 Mathews Test

“Unfriending” Evidence – 5th Amendment

At the Intersection of Technology and Law

We also have the Introducing TEXT & EMAIL Digital Evidence in California Courts – 1st Amendment
so if you are interested in learning about Introducing Digital Evidence in California State Courts
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Retrieving Evidence / Internal Investigation Case 

Conviction Integrity Unit (“CIU”) of the Orange County District Attorney OCDA – Click Here

Fighting Discovery Abuse in Litigation – Forensic & Investigative Accounting – Click Here

Orange County Data, BodyCam, Police Report, Incident Reports,
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Learn About Policy 814: Discovery Requests OCDA Office – Click Here

Request for Proof In-Custody Form Click Here

Request for Clearance Letter Form Click Here

Application to Obtain Copy of State Summary of Criminal HistoryForm Click Here

Request Authorization Form Release of Case Information – Click Here

Texts / Emails AS EVIDENCE: Authenticating Texts for California Courts

Can I Use Text Messages in My California Divorce?

Two-Steps And Voila: How To Authenticate Text Messages

How Your Texts Can Be Used As Evidence?

California Supreme Court Rules:
Text Messages Sent on Private Government Employees Lines
Subject to Open Records Requests

case law: City of San Jose v. Superior Court – Releasing Private Text/Phone Records of Government  Employees

Public Records Practices After the San Jose Decision

The Decision Briefing Merits After the San Jose Decision

CPRA Public Records Act Data Request – Click Here

Here is the Public Records Service Act Portal for all of CALIFORNIA Click Here

Rules of Admissibility – Evidence Admissibility

Confrontation Clause – Sixth Amendment

Exceptions To The Hearsay Rule – Confronting Evidence

Prosecutor’s Obligation to Disclose Exculpatory Evidence

Successful Brady/Napue Cases – Suppression of Evidence

Cases Remanded or Hearing Granted Based on Brady/Napue Claims

Unsuccessful But Instructive Brady/Napue Cases

ABA – Functions and Duties of the Prosecutor – Prosecution Conduct

Frivolous, Meritless or Malicious Prosecution – fiduciary duty

 

Appealing/Contesting Case/Order/Judgment/Charge/ Suppressing Evidence

First Things First: What Can Be Appealed and What it Takes to Get Started – Click Here

Options to Appealing– Fighting A Judgment Without Filing An Appeal Settlement Or Mediation 

Cal. Code Civ. Proc. § 1008 Motion to Reconsider

Penal Code 1385 – Dismissal of the Action for Want of Prosecution or Otherwise

Penal Code 1538.5 – Motion To Suppress Evidence in a California Criminal Case

CACI No. 1501 – Wrongful Use of Civil Proceedings

Penal Code “995 Motions” in California –  Motion to Dismiss

WIC § 700.1 – If Court Grants Motion to Suppress as Evidence

Suppression Of Exculpatory Evidence / Presentation Of False Or Misleading Evidence – Click Here

Notice of Appeal — Felony (Defendant) (CR-120)  1237, 1237.5, 1538.5(m) – Click Here

California Motions in Limine – What is a Motion in Limine?

Cleaning Up Your Record

Penal Code 851.8 PC – Certificate of Factual Innocence in California

Petition to Seal and Destroy Adult Arrest Records – Download the PC 851.8 BCIA 8270 Form Here

SB 393: The Consumer Arrest Record Equity Act – 851.87 – 851.92  & 1000.4 – 11105 – CARE ACT

Expungement California – How to Clear Criminal Records Under Penal Code 1203.4 PC

How to Vacate a Criminal Conviction in California – Penal Code 1473.7 PC

Seal & Destroy a Criminal Record

Cleaning Up Your Criminal Record in California (focus OC County)

Governor Pardons – What Does A Governor’s Pardon Do

How to Get a Sentence Commuted (Executive Clemency) in California

How to Reduce a Felony to a Misdemeanor – Penal Code 17b PC Motion

 Epic Criminal / Civil Right$ SCOTUS Help – Click Here

At issue in Rosenfeld v. New Jersey (1972) was whether a conviction under state law prohibiting profane language in a public place violated a man's First Amendment's protection of free speech. The Supreme Court vacated the man's conviction and remanded the case for reconsideration in light of its recent rulings about fighting words. The man had used profane language at a public school board meeting. (Illustration via Pixabay, public domain) Epic Parents SCOTUS Ruling – Parental Right$ Help – Click Here

Judge’s & Prosecutor’s Jurisdiction– SCOTUS RULINGS on

Prosecutional Misconduct – SCOTUS Rulings re: Prosecutors

 

Family Treatment Court Best Practice Standards

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Please take time to learn new UPCOMING 

The PROPOSED Parental Rights Amendment
to the US CONSTITUTION Click Here to visit their site

The proposed Parental Rights Amendment will specifically add parental rights in the text of the U.S. Constitution, protecting these rights for both current and future generations.

The Parental Rights Amendment is currently in the U.S. Senate, and is being introduced in the U.S. House.

 

 

]]> How to Sue Your Lawyer for Legal Malpractice https://goodshepherdmedia.net/how-to-sue-your-lawyer-for-legal-malpractice/ Sat, 01 Jul 2023 09:01:13 +0000 https://goodshepherdmedia.net/?p=14790 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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