Laura Hastings* Suing your lawyer is in many ways more challenging that most lawsuits, simply by virtue of your proposed defendant’s legal experience and expertise.
But filing a lawsuit against your lawyer remains a viable option for those seeking to obtain redress under a legal malpractice claim or some other recourse.
There are lawyers who simply screw up a case, deal or transaction and there are some that are just bad in terms of their professional or personal attributes. Mostly, fortunately, they are in a very small minority of lawyers.
Guidelines on how lawyers must behave when acting for clients are established by different bar associations. For instance the American Bar Association Standing Committee on Ethics and Professional Responsibility outlines the appropriate guidelines, while the UK Law Society has guidelines relating to client information requirements along with other rules. The Law Council of Australia also has rules regarding the conduct of lawyers.
There is always the option for aggrieved clients to take action by way of complaint to the local, state bar or national bar association or law society and seeking redress from them for the behavior of your lawyer, which may involve dishonesty, incompetence or some other ethical breach.
The sanctions able to be imposed by the local or national regulatory body can be severe, including the suspension or termination of your lawyer’s law license.
Just remember that filing a grievance or complaint does not necessarily mean that you will receive any compensation.
You may find the attorney’s breach is something that is handled by the appropriate bar or law society committee, but it does not normally provide compensation for any financial loss you are dealing with.
There are some steps you need to consider before taking a lawsuit against your lawyer.
Lawyer – Client Relationship
The first step in any lawsuit against your lawyer is the need to establish a lawyer/client relationship between lawyer and client. This attorney-client relationship is necessary before you can sue.
Most often there will be either a written or verbal agreement that establishes the professional relationship between client and lawyer.
Once that is established the duty of care by the lawyer is necessary, requiring the lawyer to use the skill, care and diligence expected of other lawyers acting in similar circumstances.
The Expert Witness & Causation
Often it will be necessary to have an expert witness who can give evidence in a legal malpractice action who can provide expert evidence as to what legal professionals are expected to do in the circumstances of the particular case.
It is necessary to establish that you would have achieved a better (or at least more favorable) outcome in the event that your lawyer had not been negligence.
So you need to establish that causation is established and that the harm or detriment you have suffered is directly linked to the negligence of your attorney who has failed in their standard of care owed to you.
Remember that the fact you have failed in any claim is not sufficient to establish negligence. Nor does it warrant a complaint to the state bar or anyone else in itself.
Your malpractice claim against an allegedly negligent attorney will suffer badly if you are found to have had a claim in personal injury law, for instance.
Common Legal Malpractice Claims
Keep in mind that the fact you have lost a case does not, of itself, mean your lawyer has been guilty of malpractice.
A lawyer is required to uphold a duty of care when representing a client and it is the breach of that duty that provides the basis for a legal malpractice lawsuit.
You also need to demonstrate that as a result of what you lawyer did not do, or did do, you have suffered financial loss.
Typical examples of legal malpractice lawsuits involve lawyers sued for negligence where they have failed to properly undertake your legal defense or pursue your legal claim. This will often involve a failure to either know the law or to apply it correctly.
Often this may involve the performance (or non-performance) of some legal representation that would normally be taken by any lawyer using reasonable care and skill – therefore falling foul of the duty of care needed to establish negligence.
For instance, they may have failed to file papers or documents in time or breached the statute of limitations on a claim you have.
Attorney negligence may also occur where they may have breached a fiduciary duty or had a conflict of interest that jeopardized your case and lead to a legal loss. This may involve settling your case without authority, for instance, or misused funds that had been placed with your lawyer.
The failure to follow your instructions is a key factor in several legal malpractice cases, which may also involve issues of conflict of interest or other negligence.
Procrastination or delay is another factor that often emerges in cases of legal malpractice, which touches upon the statute of limitation issue but which can also occur for other reasons that negatively impact a legal case or claim.
This is often accompanied by a lack of communication from your lawyer, where the level of care is missing and the standards expected of a reasonable attorney are absent.
With commercial cases involving negligence there may have been negligent errors made in contract negotiations or drafting, failure to file patent documents or properly protect intellectual property rights or simply incompetently drafting documents that fail to protect your legal rights.
Obviously fraud is a basis for any such claim, apart from criminal repercussions also, commonly involving the theft of money or property from the client.
The range of potential negligent actions is significant and the ability to take legal action remains equally significant.
Medical & Personal Injury Negligence Claims
Medical malpractice claims can also involve claims for attorney negligence as can personal injury claims.
Commonly, these claims for malpractice may involve the situation where a key deadline is missed to file an action, resulting in the dismissal of a claim.
Or the documents or paperwork has not been properly prepared, key evidence overlooked or mishandled or some other such oversight that amounts to the loss of a case as a direct result of the oversite (ie negligence) and with the equally direct financial detriment to yourself as client.
Key Considerations For Any Victim of Legal Malpractice
When taking a case against a lawyer for legal malpractice, you should keep in mind the following considerations:
>> What is the duty that was owed to yourself as a legal client?
>> How did your attorney breach that legal duty by virtue of their negligence, mistake or failure to follow your instructions?
>> The damages you suffered as a direct result of the negligence etc of your attorney
>> Ensure you fall within your state or country’s statute of limitations for commencing your legal malpractice claim.
Make sure you have all the necessary information and documents before commencing your claim to establish the attorney’s breach. This includes all relevant information and communication that you have had with your lawyer and why you hired him or her to begin with.
This may be anything from medical bills, contractual documents, marriage or divorce papers and anything else relating to the claim that lead to your employing the law firm.
You should consult an experienced legal malpractice attorney who can fully appraise you of your legal rights and provide proper advice on professional negligence issues, identify the financial losses and properly prepare a case for your attorney’s negligence.
Keep in mind that there are relatively few legal malpractice lawyers and it is important to undertake your due diligence to ensure you are not throwing good money after bad in terms of attempting to retrieve an unsuccessful claim or a negligently advised legal action issue. The legal issues can be complex.
Issues, like breach of fiduciary duty, negligent advice and the like require someone with experience in the area, along with good expert witnesses if necessary.
It may be the case that you also need a second opinion on any legal matter that is key to your case.
Having a properly formulated claim of legal malpractice is important in order to have a good chance of succeeding in your claim, along with choosing the necessary expert witness or witnesses to substantiate the claim.
Prepare Yourself Properly
You should properly prepare yourself when suing your law firm by heeding the matters outlined and ensuring you are doing so for the right reason.
There are numerous cases of both successful and unsuccessful lawsuits against law firms, including the recent dismissal of a case in California when a state court judge on Monday dismissed a high-profile lawsuit that former San Francisco and Los Angeles District Attorney brought against the San Diego law firm Potter Handy LLC relating to alleged violation of California’s Unfair Competition Law by bringing fraudulent and deceitful litigation under the Americans with Disabilities Act.
In another legal malpractice case in California, a video from a lawyer bragging about his win in a malpractice lawsuit actually went viral and resulted in condemnation from many in Southern California’s legal community as well as receiving high level media attention and drew the attention of nationally recognized trial attorney Nick Rowley who said he would appear for free in any subsequent trial.
These trials can involve significant attention and be hard fought. However where there has been a serious damage done to a client’s interests, or some other serious error , negligent misrepresentation, attorney malpractice, any client should take appropriate action against a former lawyer – but only after taking the best advice possible from a malpractice attorney with experience in the area as to the legal options and to achieve as more favorable outcome than the original, poor result.
Laura Hastings is a legal writer who has written widely on issues relating to litigation, law practice and legal issues relating to legal actions, including for LawFuel and other publications.