How to Know if You Can Sue a Lawyer for Malpractice
Legally Reviewed and Edited by: Terry Cochran
It would be a fantastic word if every professional we engaged with always did a perfect job. But sadly, things do go wrong. Whether through negligence or human error, there are times when the end result is not what was expected. But a poor outcome is not grounds enough to say that legal malpractice has occurred. Certain criteria need to be fulfilled before we can think about a legal malpractice lawsuit.
While the vast majority of attorneys always act in the best interest of their clients, there will be occasions when a lawyer fails their clients.
Legal malpractice is very much like medical malpractice, definition wise. It happens when your lawyer does not carry out his work according to the existing standards of professional or ethical conduct for his work. Not winning your case, or not getting the size of award you expected, is not enough to consider suing your lawyer.
To make a legal malpractice claim, your lawyer must have been negligent, or breached the ABA (American Bar Association) rules of professional conduct, or have been in breach of their contract with you.
If you do feel your lawyer has violated any rules, acted negligently, or breached their contract with you, you also have to show that another lawyer – acting competently – would have achieved a better outcome in your case. If claiming negligence, there are four aspects you need to be able to prove:
- That your attorney owed you a duty of competent and professional representation.
- That they breached that duty, either by acting incompetently, or by making an error.
- That their breach of duty in some way harmed your case.
- And that the harm caused by your attorney’s actions resulted in financial loss.
Types of Malpractice
There are a number of circumstances under which a lawyer may be sued for legal malpractice. These include:
- Accepting a case or client even when there is some conflict of interest
- Theft from client
- A breach of fiduciary duty
- Missing deadlines for submitting paperwork or claims
- Deviating from or failure to follow a client’s instructions
- Poor preparation for meetings or court appearances
- Making erroneous claims or defenses during the case
- Failing to introduce or produce evidence that would have had an effect on any outcome
Alternatives to Lawsuits
With the numbers of legal malpractice suits steadily increasing, it is no surprise that legal malpractice insurance is also an area which is rapidly growing. If a law firm accepts liability for one of its staff’s actions, then it may be the case that there will be an offer of settlement without ever taking the claim to court.
In cases where the attorney has committed theft or fraud, then there is also the possibility of a criminal prosecution for their actions. And they can also be reported to their state’s bar association who can take some form of disciplinary action or even disbar the attorney from practicing in Michigan.
Statutes of Limitations
The statute of limitations for filing a lawsuit for legal malpractice is two years. This two year period counts from the date the lawyer stopped representing the client. However there are some exceptions to this depending on circumstances. Seeking legal advice as to whether you fall within these exceptions is highly advisable.
Common Claims Against Lawyers
Law is a very complicated profession. Each area of the law has its own guidelines and rules such as statutes of limitations. But when you have an attorney client relationship established, you expect a high degree of competency in the particular area your case is in. For example, claims against government agencies have differing rules depending on the type of case. You have an expectation that the attorney you have engaged to provide legal services will know these rules and will follow them. Failing to complete any task within a time limit set out by law or regulations is a type of negligence.
Technical mistakes are common. This could be when your lawyer fails to respond to a lawsuit against you in time, resulting in a default judgment against you. Or they may fail to enter evidence in a personal injury case, resulting in any award granted being lower than it might have been. In some cases, the lost value due to their actions – or inactions – can be easy to assess, in other cases it may be very difficult.
Challenges of Proving a Legal Malpractice Case
The biggest challenge in pursuing a legal malpractice claim is the case within the case scenario. What that means is that not only do you have to prove that the lawyer breached their duty of care, but you also have to prove that if they had acted competently, then the outcome of the case would have been more favorable to you.
For example, if you were involved in a medical malpractice suit and your attorney failed to introduce a particular piece of evidence, then you need to be able to prove that if it had been introduced, your final award would have been higher.
Before You Sue
Legal malpractice cases can be difficult to win. Before you proceed to a lawsuit, you may wish to consider some alternative actions. If it is still in the early days of your case and any damage or losses are minor, then you may wish to simply change your lawyer. This is relatively easy to do and is only prohibited in rare circumstances such as very close to a trial commencing.
You can also report your lawyer to the Michigan State Bar. The Bar may discipline the layer or order them to compensate you for any losses suffered to date. And the mere action of reporting them may cause them to up their game if they have been failing you.
If the disagreement with your lawyer is over legal fees, then you may wish to pursue informal arbitration, presided over by a neutral third party, which can help come to a decision over any fees owed.
If none of these options are applicable or useful, then consult with a law firm that has experience of legal malpractice suits to see if you have grounds to pursue a claim.
Hiring a Legal Malpractice Lawyer
When you have exhausted the other options, then it is time to look for a lawyer who is competent in pursuing a legal malpractice claim. There can often be hesitancy in the legal profession to pursue such claims, which can seem strange when law firms are more than willing to pursue other types of malpractice claims.
Questions for Your Attorney
If you feel you have good grounds for pursuing a legal malpractice lawsuit, then you want to engage a law firm who will give you professional advice and who will not be hesitant in pursuing such a claim. Most law firms will offer a free initial consultation which not only gives them a chance to evaluate your case, but also offers you the opportunity to ask them pertinent questions. Some good initial questions to ask include the following:
- Have you ever pursued a legal malpractice claim?
- How successful were the outcomes?
- How many such cases have you acted in?
- What sort of outcome can I expect?
- How strong is my case?
- What will such a case cost me?
In many ways, legal malpractice suits are some of the most difficult to prove. Cochran, Kroll & Associates, P.C. always provide honest advice when it comes to a client’s chances of getting a positive outcome. As we work on a contingency fee basis, we will only get paid if we win the case. Legal malpractice is no different – in legal terms – from any other form of malpractice suit. Where an attorney’s actions have led to some form of harm or financial loss, then they should be held to account just as any other profession would.
With a team of experienced lawyers, Cochran, Kroll & Associates, P.C. have the resources to represent you diligently and competently. If you feel you have suffered as a result of poor practices by your attorney or that there has been a breach of contract or duty of care, why not schedule a free consultation with us today by calling toll-free at 866-MICH-LAW.
Disclaimer : The information provided is general and not for legal advice. The blogs are not intended to provide legal counsel and no attorney-client relationship is created nor intended.