What is Legal Malpractice? The Answer is Not Always Easy!
10 factors to consider before you sue your lawyer.
So you’ve hired a lawyer to help you solve a problem. Something goes wrong and you don’t receive the service or outcome you expect. The first question many of you will ask is, “Can I sue for legal malpractice?”
The answer to that question depends more on the quality of service (applicable standard of care) than the actual results, since hiring a lawyer doesn’t guarantee success. This means you will need to show that the attorney made obvious mistakes (deviated below the applicable standard of care) that ultimately impacted the outcome and caused you harm. I have been involved in both the prosecution and defense of attorneys for more than a dozen years, and here are some of the most common complaints I hear from clients about their attorneys.
Do You Have a Legal Malpractice Lawsuit?
Depending upon the facts, these are probably NOT valid reasons to sue your lawyer:
- I lost my case. Unlike the TV shows, your success is not guaranteed. Sometimes you just don’t have a compelling enough argument, the right facts or favorable law to prevail.
- I paid a lot of money. Assuming the lawyer followed the fee agreement you signed, you should have known what your action could potentially cost in fees and expenses.
- Not returning my calls. Many lawyers also set communication expectations, like returning emails and calls, in the initial agreement. If you’re not happy, it may be time to either set some specific guidelines or find another attorney.
- Dropped me as a client. There are actually some situations, including lack of subject matter expertise or perception of client’s dishonesty, that require a lawyer to disengage from a client.
- My business (or the deal) failed. Your lawyer has the duty to represent your best interests with “zeal.” Businesses and deals may fail regardless of all parties’ best intentions. Here too, your attorney cannot guarantee the success of the transaction or new business.
If you have experienced this behavior, you may have a valid complaint against your lawyer:
- Missed a legal deadline. Attorneys are required to meet all deadlines, or seek extensions as needed.
- Failed to develop the case. Your lawyer has the obligation to conduct a thorough investigation and conduct meaningful discovery during the representation.
- Has a conflict of interest. – This is considered a “breach of fiduciary duty,” but let’s cover it here. Your lawyer must by loyal to you and represent you free of conflict with himself and all other involved parties.
- Settled for too little or without your approval. Your lawyer must seek your approval before a case can be settled. If your expectations are unrealistic, you just may not be satisfied. Being dissatisfied does not necessarily mean you have a claim for legal malpractice.
- Didn’t provide services promised. This has three meanings. Your lawyer must adequately serve you as the client (meet the applicable standard of care) and provide the service outlined in your agreement. It may also apply if you are a third party beneficiary, like when you are named in someone’s will. Finally, it may apply if an attorney agreed to do something specific for you even without an attorney-client relationship, but failed to do that specific task (voluntary agent).
There are just as many reasons why you may not have a valid claim for legal malpractice as there are reasons why you may have a claim for legal malpractice. This high-level article must not be viewed as an attempt to encourage or discourage any legal malpractice action – just to help you determine whether you may have a valid reason to proceed by seeking independent counsel.
Proceeding with a legal malpractice claim can be time consuming and expensive. Each legal malpractice case is different; therefore, if you still think you have a valid claim, seek the opinion of an attorney experienced in legal malpractice cases who can help you determine whether a viable claim exists. There are some additional steps that you will need to take as you document each specific allegation (breach of duty) and damage due to that breach.