Legal Malpractice Claims
It can be discouraging and frustrating when you feel that your attorney is not doing their best job on your case. This article lays out some of the most common problems that clients have with legal professionals and suggests some ways of handling legal malpractice claims.
Even in today's modern world with cell phones, 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.
First, Send a Formal Letter
If, after many attempts to communicate with your attorney are 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 longer periods of silence.
One common method that many people are turning to instead of legal malpractice claims is mediation. Mediation is something both you and your lawyer may benefit from, and could even lead to a better attorney-client relationship.
If Necessary, Fire Your Lawyer
If everything has failed and you still cannot get your attorney to respond to you in a timely fashion, you may have to fire your lawyer and find a new one.
When you fire your attorney, they may issue you a bill for the work they have done on your case. If you do not feel that the bill is fair, you should also 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.
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, you may want to file a lawsuit.
File a Complaint
Every state has some sort of agency that is responsible for disciplining attorneys that 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. Even though these agencies often move very slowly, it is still better to make the report and any follow-ups that are required for the process.
Many attorneys often skirt the edges of legal ethics when it comes to sending out legal bills. A normal bill could look something like this:
50 hours spent on case XYZ at $400 an hour
You owe: $20,000
Please pay immediately
However, you deserve to know how your attorney spent his time working on your case.
Carefully Look at Your Bill.
If you receive a bill that looks like the one above, you should demand an itemized accounting of all the time that your attorney spent on your case. Where exactly did those 50 hours go? For example, if your attorney claims that he wrote a letter to opposing counsel for 4 hours, and the letter turned out to be 2 paragraphs long, you may want to seriously question your attorney's time management.
In addition, you should compare your bill to the fee agreement that you and your attorney agreed on at the beginning of your representation. Be sure that your attorney is not charging or overcharging you for any items that were not listed in the fee agreement.
If Your Lawyer Acted Badly, Don't Pay the Bill.
If you feel like your attorney did not follow their ethical obligations or engaged in malpractice, be sure to not pay them any money until the dispute is settled. Likewise, if you feel that the bill is outrageous or that fees were included that should not have been, be sure to discuss them with your attorney before handing over any payment.
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 or not.
However, if you have a feeling that your attorney is not doing a good job on your case, consider doing the following:
a) Speak With Your Attorney
One way that clients often find out that their attorney is not doing good work on their case is 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 get in touch with your lawyer and tell them your concerns.
b) Request Your Case File
If you think that your attorney has not been working diligently on your case, you can always request your case file from your attorney. 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.
Your case file should include all correspondence as well as any filings.
You can still request copies of your file even if you fired your attorney. If your attorney is not cooperating, you can go to the courthouse to see copies of all documents that have been filed relating to your case.
Lastly, you may have to sue your former attorney in order to get your case file back. You can also ask for money 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
c) Do Some Legal Research
Many times, 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 of your own to see if your attorney is making sense or not.
d) Get a Second Pair of Eyes
One of the best things that you can do if you feel that your attorney is not doing a good job is to get another law firm to look at your situation. These second opinions do not have to cost very much as it will probably only last an hour or two.
However, you need to keep in mind that no two lawyers will think exactly alike, and a brilliant strategy from your current lawyer may look strange to the lawyer you hire to review the work.
e) Consider Arbitration
There are times when disputes between you and your attorney just cannot be handled without some intervention. If you feel that you are in this situation, consider going to arbitration before heading to court. Arbitration is a procedure that is used to settle disputes between you and your attorney in the presence of a neutral, third-party.
Before considering arbitration, you should always carefully check the contract that you have with your attorney. Many times, these contracts include mandatory arbitration clauses for things like fee disputes. If that is the case, you can't sue your attorney before going through arbitration.
Non-Binding Versus Binding Arbitration
Most arbitration clauses will contain a small part that says whether the result of the arbitration will be binding or nonbinding on the parties to the arbitration. If your arbitration clause says that the result of the arbitration is binding, this means that you are giving up your right to challenge the results of the arbitration, no matter the outcome.
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.
In general, you should always lean towards nonbinding arbitration if you have the choice. If you have the ability to sue after arbitration, your lawyer may decide to settle the case rather than litigating it.
f) Fire Your Lawyer
Every client has the right to fire his or her attorney at any time and for any reason. However, you should consider the following first:
- The costs associated with firing your attorney. You may receive a bill from the attorney you fired, and you will have to spend more money to find and hire another attorney.
- If your trial is coming up, the new attorney may not have time to prepare
g) If Nothing Else Works, File a Legal Malpractice Claim
If none of the above work and you still you feel that your attorney has cost you money by breaching their ethical duty, you should 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; and
- 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.
You should also carefully consider the financial implications of pursuing a legal malpractice claim. These cases are costly to pursue; so, make sure that the attorney you are suing has enough insurance or assets to pay your judgment in the event that you win.
There is no point in winning a legal malpractice lawsuit if you cannot collect your damages from the attorney or his insurance provider at the end.
Learn more about state-specific laws on our legal malpractice law answers page.