Sometimes lawyers make mistakes. If your attorney really screws up your case, you may consider suing for legal malpractice.
Before You Sue
If your lawyer didn't represent you properly, and you were harmed in the process, your lawyer might be liable to you for your loss. But before you pursue a lawsuit against your attorney, try these alternatives:
- Discuss fee disputes with your attorney or engage in fee arbitration
- Report potential ethics violations to your state bar association
- Hire another lawyer to repair the damage to an ongoing case
If none of these alternatives brings satisfaction, you may want to consider a legal malpractice claim against your attorney. This type of case is difficult to prove, so you'll want to thoroughly investigate your chances of success before proceeding.
Types of Legal Malpractice Claims
Every case is different, but legal malpractice claims usually fall under three categories:
- Breach of fiduciary duty
- Breach of contract
Negligence happens when your attorney fails to use the skill and care normally expected of a competent attorney.
Examples of negligence include:
- Failing to file a lawsuit within the statute of limitations time required under law
- Missing other important deadlines in the case
- Not properly preparing for trial
- Not following court orders
Most legal malpractice claims that end up in court are a result of lawyer negligence.
Breach of fiduciary duty usually occurs when your lawyer has a conflict of interest that harms you in some way. Examples of breach of fiduciary duty include:
- Representing another client to your disadvantage (such as representing another defendant in the same lawsuit)
- Having financial or social ties or troubles that prevent your lawyer from representing you to your best advantage
- Improper sexual advances toward you
- Lying to you about important case information
- Not telling you about settlement offers
- Settling your case for less than it was worth without your approval
- Inappropriately using money belonging to you
Breach of contract cases are brought against lawyers who violate the terms of their specific agreement with their client. Some examples include:
- Failing to file a foreclosure action for a client after agreeing to do so
- Failing to research the registration of certain patents as promised
- Not filing a mechanics' lien for a client after agreeing to do so
Proving a Legal Malpractice Case
To win a negligence case against a lawyer, you must prove:
- Your lawyer owed you a duty to competently represent you
- He or she made a mistake or otherwise breached the duty owed to you
- Your lawyer's mistake injured or harmed you in a way that can be measured financially
Legal malpractice attorneys usually charge a contingency fee of between 40 and 50 percent of the amount you eventually receive. This is a higher contingency fee than other types of negligence cases, because the legal malpractice lawyer has to work harder at proving a legal malpractice case.
In order to prove legal malpractice, you must show that:
- You would have won your underlying case if your lawyer had not been incompetent or made a mistake
- You would have collected on a judgment on your underlying case after winning the case
These things are difficult to prove. Also, most legal malpractice cases are tried in court rather than settled. This requires much more time and preparation from your legal malpractice lawyer.
Any legal malpractice lawyer considering taking your case will want to know whether your original lawyer had malpractice insurance to cover your losses. Your new attorney will balance whether your provable losses are high enough to risk investing the time and energy to take the matter to trial.
The time limit for filing a legal malpractice case can be as short as one year. So contact a legal malpractice lawyer right away if you think you might have a case against your attorney.
Questions for Your Attorney
- Can I refuse to pay my attorney's bill for legal fees if I think he committed malpractice?
- Should I report my attorney's mistake to the state bar association?
- Who will decide if my attorney was negligent?