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 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.