Legal Malpractice Lawsuit FAQ
Can I initiate a legal malpractice lawsuit if my lawyer failed to file paperwork on time?
It is difficult to win a legal malpractice lawsuit. A client will need to establish several factors in order to prevail. The most common type of legal malpractice occurs because of negligence, the breach of a fiduciary duty, or a breach of contract.
The failure to file paperwork by a deadline is a form of negligence. To establish legal malpractice under negligence, it is necessary to demonstrate the following:
- The lawyer owed a duty to provide competent and skillful representation;
- The lawyer breached the duty by acting carelessly or by making a mistake;
- The lawyer's breach caused an injury or harm;
- The harm caused a financial loss.
To win a legal malpractice claim, it is also necessary to show that if the lawyer had been competent the client would have prevailed in the underlying case and the client would have been able to collect the damage award from the defendant. This element, known as causation, is often the most difficult to prove in a legal malpractice lawsuit.
Does my lawyer have to keep our communication confidential?
Yes. An attorney has a duty of confidentiality to a client. An attorney, therefore, may not disclose the information a client reveals to a third party without the consent of the client. For the most part, except under a few circumstances, this applies regardless of the whether the client requested confidentiality.
Does a conflict of interest exist if my attorney has a friendship with the attorney for the opposing side?
Just because opposing attorneys are friends, a conflict of interest does not necessarily exist. Providing that it is a friendship rather than a familial relationship with a spouse, parent, child, or sibling, a conflict of interest is unlikely. Lawyers have a duty of loyalty to a client, so sometimes a close relationship may create a conflict. Any potential or actual conflict will limit or affect the representation of a client. Therefore, lawyers must avoid conflicts of interest.
Can my lawyer accept a settlement offer without my consent?
No. A lawyer has a duty to communicate with clients about new developments and other information pertaining to a case. This duty includes informing clients of settlement offers. Before an attorney may accept a settlement offer, the client must agree. If a lawyer fails to obtain the consent of the client, a breach of a fiduciary duty may have occurred.
To my surprise, the bill I received from my lawyer was far more than I anticipated. What can I do to resolve this dispute?
An attorney must base the charges in a bill on the fee agreement reached with the client. Most fee arrangements are settled early on in the attorney-client relationship so if the charges seem inconsistent, it is best to contact the attorney for an explanation. If it still appears that the charges are unreasonably high, there are several other options available.
- Negotiate with the attorney for a more reasonable price
- Request a non-binding decision from a panel of arbitrators
- Pay the bill but file a complaint against the attorney with a state's legal disciplinary committee
- Sue the attorney for a refund
Does my lawyer have to return my phone calls?
Attorneys are often busy juggling numerous cases, but an attorney is obligated to keep a client informed about the progress in a case and to return phone calls. Although the failure of an attorney to return a phone call does not amount to legal malpractice, it is unprofessional and a warning sign that it may be necessary to hire another attorney.
If it appears that the lawyer has stopped working on a case altogether, this may amount to legal malpractice. An attorney has a duty of due diligence, which means that the attorney must work promptly and diligently on a case until it reaches completion. The failure to do so violates the attorney's duty to a client.
During my first consultation with my lawyer, I was advised that I could recover more than I ultimately received. Can I sue my lawyer in a legal malpractice lawsuit?
A lawyer's initial representation of what a case is worth is not an indication of whether the attorney represented the client appropriately. However, a lawyer does have a duty to act with competence. A lawyer must have the legal knowledge and skill necessary to represent a client with zealous advocacy. If a lawyer falls below this standard and it can be established that the lawyer's actions amounted to incompetence, legal malpractice may have occurred.
I think that my attorney has misused funds that he held in my name. What can I do about it?
Lawyers have a fiduciary duty to act in their client's best interests when handling money or other property that belongs to the client. If you think that your lawyer has mishandled your money, contact the attorney ethics agency in your state immediately. Most states have funds available to help you recover any misappropriated money.
Can I fire my lawyer?
Absolutely, a client has the right to discharge a lawyer at any time during the representation. A client is also entitled to the work-product created by the lawyer while working on a client's case. The lawyer must readily give the client's file to the client or to the client's new lawyer when requested.