Legal Malpractice Claims
It can be discouraging and frustrating when you feel that your attorney is not doing his or her best job on your case. This article lays out some of the most common problems that clients have with their legal professionals and suggests some ways of handling legal malpractice claims.
Lack of Communication
Even in today's modern world that includes 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, he or she may be violating their ethical responsibility of communication. However, even armed with this knowledge, you may not want to go to the state bar to complain about your attorney just yet.
If, after many attempts to communicate with your attorney are met with silence, you may want to write your lawyer a firmly written letter, inquiring whether there is a reason for the communication problem. If the attorney responds saying that, yes, he had been working on another case or tending to a sick relative, then you may be able to clear up the problem.
This letter is not the place in which to threaten legal malpractice claims. 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.
However, if everything has failed and you still cannot get your attorney to respond to you in a timely fashion, you may have to end up firing your lawyer and finding a new one. When you fire your attorney, he or she may issue you a bill for the work that 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 assist you in determining 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.
Dishonesty and Incompetence
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 a level below that of a competent attorney, you may want to get the authorities involved.
File a complaint. Every state has some sort of agency that is responsible for disciplining attorneys that violate the rules of legal ethics. In many states, this is a bar association, and in others, it could be the state supreme court. No matter what name the agency in your state goes by, they will have a process that you can use to file a complaint against your attorney for lying or performing at an incompetent level. 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, or behaved in a way that was dishonest or incompetent, 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.
Inadequate Legal Work
Without the training and knowledge that come with law school and being an attorney, it can often be difficult for a client to determine 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, you should investigate before something worse happens.
Talk 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 almost always be to try to get in touch with your lawyer and tell them your concerns.
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.
The situation is made more difficult if you have already fired your attorney. When this happens, your old attorney may become unresponsive. However, this does not diminish your right to get copies of your case file. If you need to look at something immediately, and your old attorney is not cooperating, you can go to the courthouse to see copies of all documents that have been filed relating to your case. If you have found a new attorney, you can ask for their help in getting back your case file from your previous attorney.
Lastly, you may have to sue your former attorney in order to get your case file back. In addition, you can also ask for money damages if you can prove that you suffered financial hardship because your former attorney withheld your case file even after you requested it. These damages can include costs that you incurred for re-making documents that were contained in the file or money that you spent trying to get the file.
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.
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 a second attorney to look at your situation and give their opinion as to whether your lawyer is doing a good job or not. These second opinions do not have to cost very much as it will probably only last an hour or two, as well as time that the reviewing attorney will spend looking at your documents.
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 bogus and strange to the lawyer you hire to review the work. In addition, the second attorney will not be as steeped as the first lawyer is in your case, and there may be important details about your case that you fail to convey to the reviewing attorney.
Terminate your lawyer. Every client has the right to fire his or her attorney at any time and for any reason. You should consider firing your attorney if things have become bad enough that you do not think it can be fixed.
However, you should also keep in mind 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 you are coming up on a trial, it can be quite expensive to hire a new attorney because he or she will have to put a lot of time into your case before being able to handle your trial.
Legal Malpractice Claims. If you feel that your attorney has cost you money because of his or her malpractice, you should consider suing to recover. However, winning a legal malpractice case can be quite difficult because you have to prove two essential elements:
- That your attorney was negligent or messed up in some way; and
- Without your attorney's negligence, you would have won your case.
This is a high burden to meet because it is not enough to merely show that your attorney acted poorly. Instead, you must prove that, not only did your attorney make a mistake, but that the mistake led to financial damages because you would not have lost your case without your attorney's mistake.
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. Indeed, this is often a winning argument for attorneys that have been sued for legal malpractice.
You should also carefully consider the financial implications of pursuing a legal malpractice claim. Not only are these cases costly to pursue, but you should also 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.
Bills, Bills, Bills
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 what 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? 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 also 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 was negligent or engaged in malpractice, be sure not to pay him or her any money until the other 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 these points with your attorney before handing over any payment.
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, you may want to 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.
Check your contract. Before considering arbitration, you should always carefully check your contract that you have with your attorney. Many times, these contracts include mandatory arbitration clauses for things like fee disputes, meaning 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 dictates that the result is nonbinding, either you or the other party may reject the outcome of 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. You should 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 do not like the results of the arbitration, at least you have some idea of what to expect at trial in your lawsuit and will have had the chance to practice your arguments. In addition, if you keep your ability to sue alive, your lawyer may decide to settle the case rather than litigating it.
Learn more about state-specific laws on our legal malpractice law answers page.