Can I Sue My Lawyer for Malpractice?
When you trust a
lawyer with your legal matters it can be unexpected and disappointing to
discover that he or she has mishandled your case and negatively impacted
your situation. How can you determine if malpractice has indeed taken
place and if it is wise to move forward with a lawsuit against your
lawyer?
First, it is
important to understand the term, legal malpractice. It occurs
when a lawyer fails to deliver competent professional services to a
client, which then leads to the client suffering damages. If you think
your lawyer has managed your case in an unprofessional manner and this
behavior has caused detriment to your case, you may have a legitimate
reason to move forward with a legal malpractice suit.
Let’s take a look at
some of the issues that present valid reasons for a malpractice suit:
Keep in mind that
there is a statute of limitations for malpractice cases. The statute of
limitations is the time period during which the claimant must file a
suit against a defendant. After this time period has expired, the
claimant no longer has a right to bring the case before court. Because
the statute of limitations’ guidelines and time frames vary from state
to state, you will need to be aware of what the law says in your state.
What
to do if you think there may be a case for malpractice
Often, clients are
unsure if they have indeed been at the receiving end of malpractice by
their lawyers. Because the lawyers are obviously the legal experts, it
can be intimidating to question their expertise and suggest wrongdoing.
However, there are a few things you can do to determine if you have a
case when you suspect your lawyer of committing malpractice.
Firstly, question
your lawyer about the issue or perceived problem. Prepare a list of
things you want to discuss with him or her. For example, if your case
was dismissed in court, ask for more information regarding why things
happened they way they did. Provide a fair opportunity for the lawyer to
explain his/her side of the issue. Ask for copies of all documents that
were filed by the attorney in court. Study these files and ask your
lawyer to explain any discrepancies.
Once you have
completed this step and you still suspect something is not right or
believe the lawyer is withholding information, request the file from
your lawyer. The lawyer has an obligation to provide you with all of the
documents relevant to the case. Even if the case is still in process,
you can request copies of all pleadings and discovery documents. Whether
you have paid in full or owe money for your attorney fees, you have a
legal right to view your files.
Finally, consult a
malpractice attorney to help. Because law in the cases is complicated,
it is important to have professional help. Interview as many prospective
lawyers as you wish, asking them about the experience they have in the
field—particularly with cases similar to yours. When you go for a
consultation or appointment, bring all of the files and documents
pertinent to the case.
What
is a breach of duty?
A lawyer-client
relationship falls under what is called the lawyer’s fiduciary duty,
which means the lawyer owes the client the highest standard of care that
is free from conflict of interest. In the situation that your lawyer
does not appropriately disclose any conflict of interest, a breach of
fiduciary duty occurs. Examples of such a breach include when the
lawyer:
Is a
malpractice suit your best option?
Suing your lawyer is
an expensive and challenging process; make sure you are prepared to deal
with the financial and emotional impact of such a case. Keep in mind
that the legal malpractice case will cost at least as much as the former
case although it will likely cost even more. Be prepared to pay
contingency fees, hourly fees plus other related costs.
The high expenses
involved in malpractice suits are due to three primary reasons. Firstly,
legal malpractice involves working on two cases simultaneously—one is
the underlying case and the other is the malpractice case. Secondly,
malpractice suits are typically not settled outside of the courtroom.
And thirdly, it is very difficult to prove all the elements of a legal
malpractice suit.
Because of these
reasons, you should explore all alternatives before going ahead with the
case. However, once you have exhausted all possible options, you may
still want to file a suit against your lawyer.
Moving forward with your malpractice case
If you have
determined following through with the malpractice suit is right in your
situation, you will want to begin preparing for your case. Any legal
malpractice lawyer who considers taking on your case will want to know
the following information:
In order to make
certain you handle this new lawyer-client relationship in the best, most
professional way possible, you will want to become very knowledgeable
and involved in all of the details surrounding your case—everything from
proof to billing cycles.
Occasionally, fee
disputes, fee arbitration, and cost of a lawsuit issues arise between
lawyers and their clients. The best way to avoid any unpleasant
situation is to be informed and stay informed, reading the fee agreement
thoroughly at the time of hiring your lawyer.
Pay attention to
what the agreement says about your billing cycle. How often will you be
billed? Also note if you will receive notification once your bill
reaches a certain amount. Identify if there is any mention of charges
for paralegal work. Ask your lawyer if other lawyers will also be
working on the case. If yes, find out if you will be required to pay
separately for their services.
It is your right to
request a detailed, itemized bill from you lawyer. This is commonly
referred to as an “accounting.” The document details all particulars of
the charges being levied. Your lawyer should be able to tell you the
exact time she worked for you, hour by hour. She should be able to tell
you exactly what actions she took during that time.
If you do not
understand the details of your bill, talk to your lawyer. It is possible
that he made an honest mistake in billing. Communication can resolve
most differences. However, if there are still disputes, you can go for a
mediation through your local bar association.
While it is in your
best interest to consider all alternative options prior to suing your
lawyer for legal malpractice, sometimes a lawsuit is the most reasonable
option. By understanding the process and knowing your responsibilities
as well as your lawyer’s responsibilities, you can minimize costs and
emotional stress, as well as set your case up for the best possible
outcome.
Mediation
Mediation is a
faster and better way of resolving a dispute and is an option to
consider for your case. It provides a way for you to avoid the long
process of a lawsuit. It will also cost significantly less. Bar
associations have a third party mediator who assists both parties
involved. The mediators strive to help you reach a settlement that is
fair for everyone.
If all efforts at
resolving a fee arbitration with your lawyer fail, you have another
option that is actually called a fee arbitration. Much easier than going
to court, this procedure is mandatory in some U.S. states prior to
filing a lawsuit. Bar associations have fee dispute arbitration programs
to resolve these issues.
There are two types
of arbitrations:
Binding—meaning
you and your lawyer will have to accept the arbitrator’s decision. You
cannot file a lawsuit after this decision is made.
Non-Binding—meaning
you are not bound by the arbitrator’s decision. If you are unsatisfied,
you can still file a lawsuit.
An arbitrator will
consider various facts as he or she determines the outcome of your case,
including:
In addition, you
will be required to provide documentary evidence in the form of:
At the arbitration
hearing, your lawyer will ask you various questions regarding the case,
and you will also be allowed to question him. Following the hearings,
the arbitrator issues a written decision called an award. Based
on this decision, you will either accept the award, or pursue other
options.