If you hire a lawyer for any reason, you are trusting that person to do important work for you. Sometimes life-changing work. You want an attorney’s expertise and experience and they should an understanding of the complexities of the law as well as a willingness to represent you to the best of their ability.
What if that doesn’t happen, however?
What options are available to you?
You can, first of all, dismiss your attorney but beyond that, you may be able to sue your lawyer for legal malpractice.
With legal malpractice, it can be tough to prove, so there is a lot to think about.
For any legal malpractice case, there need to be some basics that you can prove to win.
First, you need to prove there was an attorney-client relationship, and then you need to be able to show that your lawyer didn’t provide you with a basic level of legal competency.
Beyond that, you’ll have to show that if your lawyer had acted differently or acted at all, you would have won your case and then you’ll need to show how the negligence of your lawyer caused you harm.
Having an understanding of these fundamentals provides a simple overview of what malpractice is.
Are There Different Types of Malpractice?
The reality is there are different types of malpractice lawsuits that you can file against a lawyer.
Negligence is one of the most common types of malpractice claims not only as far as lawyers but in medicine as well.
If you sue a lawyer for negligence, you have to show and prove the attorney used improper care in your case. This might include missing a deadline, filing the wrong paperwork, or not following court orders.
Another type of legal malpractice is called breach of duty. With a breach of duty, the lawyer has engaged in malpractice because they settled a case without getting the client’s approval, didn’t prepare for the case for trial, misused funds, or they might abandon the case.
Then, a third major reason to sue a lawyer for malpractice is breach of contract, which means the lawyer didn’t do something he or she said and agreed to do in your contract. For example, this might occur if your lawyer was supposed to file a patent and didn’t do it.
There’s also something else that is breach of fiduciary duty. Lawyers owe a fiduciary duty to their clients, like the duty of loyalty. If your lawyer doesn’t act in your best interest and make sure all of your communications are confidential, then there might be a case for breach of fiduciary duty.
Not All Mistakes Are Malpractice
When a lawyer makes a mistake, it’s not always malpractice, and that’s the same with doctors and medical professionals.
When an attorney handles a case incorrectly because of negligence or an intent to do harm, that’s malpractice.
Alternatives to Suing
If you’re experiencing problems with your lawyer, you might explore alternatives outside of filing a malpractice lawsuit. Malpractice lawsuits are very hard to win.
If you aren’t happy with your lawyer, rather than waiting until things get worse, you might just hire someone new to represent you.
There are very few cases where you can’t hire a new lawyer if that’s what you choose, and this can prevent you from suffering too much damage, if any, at all.
You can also report your lawyer to your state’s disciplinary board. This can be a way to show your lawyer you are serious if they aren’t doing what they’re supposed to.
There’s also something called fee arbitration. If your issue is with the fees your lawyer is charging, you can do arbitration with a neutral third party who will ultimately decide the fees you owe your lawyer.
If you explore alternatives and decide that the best option for you is to sue your lawyer, you’ll usually hire another lawyer to represent you on a contingency basis.
This means they’ll take a portion of what you’re awarded or your settlement instead of charging you hourly. If you lose, the lawyer doesn’t get paid.
The window of time you have to file a medical malpractice suit can be as short as a year, so if it’s something you want to pursue you should do it sooner rather than later and be prepared for the fact that it can be a steep climb to prove and win one of these cases.