Legal malpractice is when an attorney handles a case inappropriately due to breach of contract, negligence, breach of fiduciary duty or with intent to cause damage and harm the client.
To win through a legal malpractice lawsuit, you must first prove that you had an attorney-client relationship between you and the lawyer.
In addition, you must also prove financial loss, causation (expected result had the lawyer not been negligent) and a breach of duty.
- Proving an attorney-client relationship: To prove you had an attorney-client relationship, you must prove that the attorney promised or gave you legal assistance or advise. If such a relationship existed, then the attorney owed you skillful and competent representation. The attorney-client relationship is created by a written agreement or contract. In some other cases where there is no written agreement, the actions of the attorney towards the stated case are used to determine if there was such a relationship.
- Proving negligence: An attorney is expected to exercise diligence, skill and care that are commonly exercised by other attorneys when performing legal services. Attorneys choose a strategy in good faith and the best strategy at the time of choosing it. However, if you prove that another attorney would not have chosen the same strategy, then that proves breach of duty. Ethical violations are never considered as a basis for legal malpractice.
- Proving causation and financial loss: It is difficult to prove that the outcome of the case would have been different had the attorney not been negligent. As for the financial loss, the claim is not considered if the loss would have still taken place whether or not there was malpractice.
Forms of Legal Malpractice
Lack of communication
Constant communication is important to have timely reports on the progress of a case. However, if your attorney does not return your calls or emails, then you might need to find out if there is a problem. Before filing for malpractice, you can try to use different strategies to reach out to your attorney.
First, write him or her a letter to inquire if there is a problem. If he says there is a problem, then you can iron out the issues. Mediation can also be used to find a solution where there is a problem. The method involves having a third party to listen in and offer a solution.
If the two methods do not work, then you can fire you the lawyer. After this, you can hire a new attorney. The new attorney will help you file a legal malpractice case.
Dishonesty and Incompetence
If your attorney does any of the following:
- Not showing up for court sessions
- Lying to you or the judge
- Misusing your money
- Participating in criminal endeavor,
Then you have reason to sue him for legal malpractice. Attorneys have agencies where cases that violate legal ethics are reported. The agency disciplines attorneys who are found guilty of such actions. Unfortunately, the agencies take time before taking an action.
Inadequate Legal Work
There are times when you feel your attorney is not doing an adequate work on your case. In such a case, explain to your attorney how you feel. Besides, you can request for your case file from the lawyer. The file contains all correspondence and any fillings. If you fire you attorney before asking for the case files, then you may need to use other alternatives to get the files if the lawyer becomes uncooperative.
All documents relating to your case are filled at the courthouse so you can make copies from there. If you have already consulted a new attorney, he can help you ask for the case files. Lastly, If he remains uncooperative, sue him so that he can release the files.
Attorneys can give arguments that seem questionable when you follow up on your case. It is wise to research whether the arguments make sense. Second attorneys are also good sources of second opinion. Remember that lawyers do not think in the same way and so their opinions may greatly vary.
However, there must be something that you will learn from a second lawyer. If you are convinced your lawyer is not doing a good job, you have a right to fire him.
Consider suing your layer if you believe his legal malpractice cost you money, and you want to recover it. Sue him immediately because attorneys defend themselves in a court case by saying you took long to sue them. To succeed in the case, you must prove the attorney was negligent and his actions made you lose in a case. However, it is a tricky case to win because of the two conditions.