Frequently Asked Questions (FAQs)
Legal Malpractice Questions
Answers to your Questions
Legal malpractice is the failure of a lawyer to render competent professional service to a client. If the client is damaged as a result of the failure, he or she may have a claim against the lawyer for legal malpractice. There are three areas of liability: · Negligence · Breach of fiduciary duty · Breach of contract The most common liability used in malpractice cases is negligence.
To win a legal malpractice case, you must prove four points:
- You and your attorney had entered into an attorney/client relationship,
- Your attorney acted negligently, i.e., in a manner not consistent with the standard of practice for competent practitioners in the area,
- Your attorney’s behavior caused you damage. This includes proving that the results of your case would have been different had the attorney acted properly, and
- You suffered a financial loss because of the malpractice.
Not necessarily. Remember, legal malpractice involves two cases. The first is the case you brought to the lawyer. The second is the case against the lawyer. In order to prevail, you must prove both cases. If your original case could not have been won by the finest lawyer, you will not prevail against your lawyer even if he or she was negligent. You must also prove what the lawyers call “the case within the case,” i.e., you must prove that your original claim was meritorious and would have been won except for your lawyer’s malpractice.
A lawyer not communicating is the biggest complaint made to state bar associations. Send your attorney a note letting him/her know that you’ve been trying to reach the office, and would greatly appreciate a return call as well as a written update and specific responses to your questions. The letter creates a paper trail of communication with your attorney. If the attorney remains unresponsive, he/she may be subject to discipline by the Courts and his/her unjustified silence may even create a basis for allegations of malpractice.
Your attorney is presumably deducting the expenses from the settlement or award you are receiving, so ask for documentation. Your attorney should provide you with copies of invoices, bills and other receipts to demonstrate that these payments were made on your behalf. If you do not receive documentation, do not permit them to be deducted from your settlement. You have an absolute right to have an accounting for expenses you are asked to reimburse.
The attorney-client contract commonly referred to as the “retainer agreement” does not prevent you from replacing your current attorney with another attorney. If you consult with a new attorney and decide to retain the new attorney, you need never personally contact your prior counsel. For many types of claims, your first attorney will receive a fee for services rendered once the case is resolved, either for the actual time put in by your attorney or the value of the attorney services to the overall result obtained. This will vary depending upon the terms of the retainer agreement and the law of the state in which you retained your lawyer, but usually the first lawyer’s recovery is limited to the actual value of the services rendered.
In a legal malpractice claim, a client is asserting that the lawyer’s conduct fell below the standard of care and caused an injury to the client. A grievance or bar complaint looks at the lawyer’s conduct and evaluates whether it was consistent with the ethical rules of the jurisdiction in which the lawyer is licensed. They may be related, but they are not the same thing. Some kinds of misconduct are both ethical violations and malpractice.
No, although that is a concern frequently expressed. If an attorney holds himself or herself out as one who handles legal malpractice claims, he/she will usually handle claims against other local practitioners. Where a personal or professional relationship with your original attorney may represent a conflict, the attorney is duty bound to advise you. You should feel free to ask for details of any relationship between your malpractice attorney and the attorney whom you believe to have malpracticed. As the client, there are some conflicts you may elect to waive..
