Legal Malpractice FAQ


Q: Can I ask my lawyer for a copy of the settlement check?

  • A: You have an absolute right as the client to see a copy of the settlement check, as well as to review a copy of the settlement breakdown sheet before the check is deposited. Typically, the insurance company check has both your and your attorney's name on it and, therefore, you would typically have to endorse the check before it could be placed in your attorney's client trust account. Ask your attorney to provide you with a copy of the actual settlement check forwarded to him by the insurance company, as well as a copy of all checks written totaling the full amount of the settlement.


Q: How can I challenge my attorney's expense reports?

  • A: Your attorney is presumably deducting the expenses from the settlement or the money that you are receiving, so ask for documentation. Your attorney should be able to provide you with copies of invoices, bills and other receipts to demonstrate that these payments were made on your behalf. If you don't receive the documentation, don't permit them to be deducted from your settlement.


Q: How do I find out if a lawyer has been disciplined?

  • A: Contact the State Bar Association of your state and ask what information they maintain on the attorney in question. In some states, they will not tell you if there are any "grievances", but they will let you know whether there has been any public record of discipline or other action taken by the Bar. You might also try asking the attorney directly.


Q: How do I get a new lawyer?

  • A: The attorney-client contract commonly referred to as the "retainer agreement" doesn't prevent you from replacing your current attorney with some other attorney. If you consult with a new attorney and decide to retain the new attorney, you need never personally contact your prior counsel.

    Typically, the new lawyer will have you explain the reasons for your wishing to change counsel. It is important for all lawyers to find out why it is you're seeking to make a change. After determining that the new attorney meets your criteria and the attorney is willing to take on the case, a discussion relating to the transition of your file to the new office would take place.

    It is generally unnecessary for you to contact your prior lawyer and explain that you going to be making the change, although you can if you wish. Instead, the new attorney would make all the necessary arrangements with your current attorney to have your file transferred to his or her office. A letter is generally sent specifically stating that the former attorney should make no attempt to contact you personally, but simply forward the documents.

    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 state in which you retained your lawyer.


Q: How do I handle a check from my lawyer bouncing?

  • A: If your attorney sent you a settlement check for a claim that you were making and it was from the attorney's "trust" account, this is very unsettling. An attorneys trust account must never be overdrawn. If the funds were from the attorney's general account, not the client trust account, it's not as serious a problem. I would suggest you call your attorney and see if this was just a simple misunderstanding or perhaps a bank error.


Q: Is my attorney able to settle my case without my consent?

  • A: Possibly. Review the retainer agreement you signed with your attorney. It's possible that the retainer agreement allows your attorney to settle a case without your consent and to sign the settlement and release agreement on your behalf.

    If your attorney settled the case without your permission, and you have not yet executed the settlement and release agreement, and you're unhappy with the settlement, you should tell your attorney that you do not wish to proceed with the settlement. If a check has previously been forwarded to your attorney, it is a simple matter to return the funds.


Q: My lawyer isn't working with me, not even returning phone calls. What can I do?

  • A: A lawyer not communicating is the most often-cited complaint being made to state bar associations. Often times, the failure to communicate isn't an indication of the level of time or work an attorney is actually doing on a case, but is symptomatic of poor organizational skills.

    Send your attorney a note letting him or her know that you've been trying to reach the office and speak with him or her, 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. The longer the attorney is unresponsive, especially after sending him or her a letter, the stronger a case for malpractice may be.


Q: What is "breach of contract"?

  • A: A retainer agreement is a contract that defines the relationship between the lawyer and client. The agreement, like all contracts, lists the role, expectations, and obligations of each party. A breach of contract occurs when a party to the agreement fails to uphold the agreement.


Q: What is "breach of fiduciary duty"?

  • A: An attorney is to act in the best interests of his client. When an attorney puts his own interests or those of a third party before that of the client, a lawyer may be breaching his "fiduciary duty" to the client.


Q: What is legal malpractice?

  • A: 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 major theories of liability:
    • Negligence
    • Breach of fiduciary duty
    • Breach of contract

    The most common theory of liability used in malpractice cases is negligence.


Q: What is negligence?

  • A: An attorney owes a duty to the client to perform all work relevant to a case with the standard of care expected of the "average" attorney in the same or a similar situation. If the attorney fails to perform at the level of an average attorney, there may be negligence and liability for legal malpractice. If an attorney presents himself out to be an expert in an area of law, the standard of care is that of the "ordinary" expert in the field.


Q: What must be proven to win a legal malpractice case?

  • A: To win a legal malpractice case, you must prove four points:
    • Your attorney owed you a duty to act properly
    • Your attorney breached that duty by acting negligently, not following through with the agreement or possibly making mistakes which an average attorney would not have made
    • Your attorney's behavior caused you damage. This includes proving that the results of your case would have been different (for example, you would have won the case) had the attorney acted properly
    • You suffered a financial loss as a result of the behavior



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