Cecily Zamora
Suing a family law attorney for malpractice is possible, but it is very hard to win such a case. To sue for malpractice, a lawyer's failure to uphold their duty of care must be proven. This duty of care requires that a lawyer puts the best interests of their clients above their own wishes and provides a reasonable standard of representation. A breach of duty can occur when a lawyer violates their responsibilities to a client by settling a case without approval, lying, abandoning a case, or misusing funds. Negligence is another form of malpractice, where a lawyer fails to use the proper care in a case by missing deadlines, filing the wrong papers, or making sloppy errors. To file a malpractice lawsuit, there must also be evidence of economic consequences due to a lawyer's failings.
| Characteristics | Values |
|---|---|
| Reasons to sue | Legal malpractice, negligence, breach of contract, breach of duty, conflict of interest, financial loss |
| Who can help | Legal malpractice attorney, ethics committee of the state bar association, fee dispute committee, another attorney |
| What to do | Obtain your case file, gather documentation, act quickly, write a letter, follow advice of legal malpractice attorney |
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What You'll Learn
Proving negligence
To prove negligence, you must show that your family law attorney did not use the ordinary amount of skill and care that most attorneys would use in similar situations. It is not enough to prove that your lawyer made a mistake or that you lost your case. Instead, you must prove that your lawyer made mistakes that a reasonably competent lawyer would not have made.
To prove negligence, you must first show that your lawyer owed you a duty of care to act properly in your case. Then, you must prove that your lawyer breached this duty of care by failing to act reasonably under the circumstances. This could include missing a deadline, filing the wrong papers, failing to comply with court orders, or making other errors that were not intentional but were sloppy. For example, you could prove that your lawyer failed to file your case in a timely manner, and that this caused you significant financial harm.
In addition, you must prove that your lawyer's negligence caused you to suffer damages. This could include economic consequences, such as being unable to recover a settlement. It is important to note that you may still be able to prove negligence even if you were partly to blame for the damages.
To prove negligence, you will need to gather evidence and information related to your case. This could include obtaining your case file from your original attorney and gathering all documentation pertaining to the original case. You may also need to consult with another attorney who is familiar with legal malpractice lawsuits to review the records of your case and determine if negligence occurred.
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Breach of duty
A breach of duty is a type of malpractice that occurs when a lawyer violates their responsibilities to their client. This can include settling a case without the client's approval, not preparing the case for trial, lying to the client, abandoning the case, or misusing funds.
In the context of family law, a breach of duty can occur when a lawyer fails to act in the best interests of their client or provide a reasonable standard of representation. For example, if a family law attorney provides inaccurate or inappropriate advice that results in negative consequences for the client, this could be considered a breach of duty.
To prove a breach of duty, it must first be established that a fiduciary duty existed between the lawyer and the client. This is typically the case in family law matters, where lawyers have a duty to act in their client's best interests and keep all information confidential.
Once a fiduciary duty has been established, it must then be shown that the lawyer violated this duty. This could include conflicts of interest, communication failures, or confidentiality breaches. For example, in the case of Oasis West Realty, LLC v. Goldman (2011), an attorney was found to have breached his fiduciary duty by failing to communicate to a former client that he was actively campaigning against a real estate project that was the subject of his former representation.
The consequences of a breach of duty can be severe, including monetary penalties, direct compensation for financial and other losses, attorney fees, court costs, and damage to the lawyer's reputation. In some cases, a judge may even revoke a lawyer's license to practice if a gross breach of fiduciary duty has occurred.
It is important to note that the opinions and standards of other legal professionals often determine what constitutes legal malpractice. Therefore, clients who believe they have been wronged by their family law attorney may want to consult with another attorney familiar with legal malpractice lawsuits to review their case and determine if a breach of duty has occurred.
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Breach of contract
A breach of contract occurs when one party to a valid contract fails to fulfil their side of the agreement. This could be a failure to pay for goods or services, failure to perform a job on time, or delivery of a different product than what was promised. If you have suffered damages as a result of a breach of contract, you can sue for damages. For example, if you paid for widgets that you did not receive, you can sue for the value of the widgets.
When a contract is breached, the non-breaching party typically contacts an attorney, who sends a correspondence to the breaching party explaining what has taken place, why the non-breaching party believes a breach has occurred, and requesting that the breaching party correct the breach or enter into negotiations to resolve the issue. If the breaching party does not correct the breach, the non-breaching party may file a breach of contract lawsuit.
To make sure you have a case, you must have a valid contract that is enforceable. You must also be within the statute of limitations, which is the time period during which a lawsuit must be filed. This period is typically longer for a breach of contract than for negligence or fiduciary breach. For example, in Florida, you have five years to file a lawsuit for a breach of a written contract and four years for a breach of a verbal contract. In California, the time limit is four years for written contracts and two years for verbal contracts.
If you wish to sue your family law attorney for breach of contract, you must show that the contract required the lawyer to perform a specific action that would not have been part of their normal duties. For example, in Hill v. Williams, the lawyer was sued for breach of contract for failing to represent the client in four separate, specifically identified litigations, as stated in the retainer contract. The court held that the breach of contract claim could proceed because representing the client in the four named suits was not a general duty imposed on all attorneys.
Some common breaches of contract by attorneys include failure to prepare and submit legal documents before deadlines, charging a higher rate than agreed upon, and impermissibly disclosing confidential information. If you feel that your attorney has breached their contract with you, you may be able to sue them for breach of contract or negligence. However, it may be difficult to determine whether your legal representation has acted unethically or incompetently, and it is recommended that you consult an experienced contract lawyer for legal advice.
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Conflict of interest
A conflict of interest is a situation in which an individual or entity has competing interests or loyalties. In the context of law and legal practice, a conflict of interest may arise when a lawyer's personal interests, loyalties, or responsibilities interfere with their duty to represent the best interests of their client.
In family law, conflicts of interest can be particularly relevant due to the sensitive and intimate nature of the cases. For example, a lawyer who has previously represented one spouse in a divorce may not be able to represent the other spouse due to the potential for confidential information to be revealed or misused. This is known as Rule 1.9, which prohibits an attorney from representing a client in a matter that is "substantially related" to a previous case where the clients' interests are "materially adverse."
Additionally, concurrent conflicts of interest can arise from a lawyer's responsibilities to another client, a former client, or a third party. For instance, a lawyer may have a conflict of interest if they have discussions concerning possible employment with an opponent of their current client or if they refer clients to a business in which they have an undisclosed financial interest.
To avoid conflicts of interest, lawyers are required to perform conflict checks when accepting new clients. They must also exercise independent professional judgment and provide sound legal advice while representing their client's interests. If a lawyer fails to recognize and address a conflict of interest, it can have serious consequences for both the lawyer and the client.
If a lawyer knowingly represents a client with a conflict of interest, they may face disqualification, disbarment, or a legal malpractice lawsuit. To prove legal malpractice, a client must typically demonstrate that the lawyer failed to uphold their professional duty, causing economic consequences or negative outcomes for the client.
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Failure to inform
Family law attorneys have a fiduciary duty to their clients. This means that they must put the best interests of their clients above their own wishes and provide a reasonable standard of representation. If an attorney fails to uphold this duty, they may be sued for malpractice.
One form of malpractice is negligence, which occurs when an attorney fails to use the ordinary amount of skill and care that most attorneys would use in similar situations. Negligence can take many forms, including missing a deadline, filing the wrong papers, failing to comply with court orders, or making other errors that were not intentional but were sloppy.
Another form of malpractice is a breach of duty, which occurs when an attorney violates their responsibilities to the client. This can include settling a case without the client's approval, not preparing the case for trial, lying to the client, abandoning the case, or misusing funds.
A breach of contract can also occur when an attorney fails to fulfil a contractual obligation, such as filing a deed or patent.
In addition, attorneys have a duty to keep their clients reasonably informed about the status of their case and to promptly comply with reasonable requests for information. A failure to do so could constitute malpractice if it harms the case.
If you believe that your family law attorney has committed malpractice through failure to inform or any other means, you may consider suing them. However, it is important to review the records of your case with another attorney familiar with malpractice lawsuits to determine if you have a valid claim. To file a malpractice lawsuit, you will typically need to show that there were economic consequences as a result of your attorney's actions or negligence.
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Frequently asked questions
Yes, you can sue your family law attorney for malpractice, but it is very hard to win such a case. To win a malpractice lawsuit, you must prove that your attorney did not use the ordinary amount of skill and care that most attorneys use in similar situations. You must also show that their incompetence caused you to suffer financial losses.
Malpractice occurs when an attorney violates their responsibilities to you, such as settling a case without your approval, lying to you, abandoning your case, or misusing funds. Negligence is also a form of malpractice and occurs when an attorney fails to uphold the standard of care that is expected of them, resulting in a less favorable outcome for their client.
If you believe your family law attorney has violated proper ethics, you can file a grievance with the ethics committee of the state bar association. The attorney could be disbarred or forced to pay you compensation. You can also hire another attorney to negotiate with your original attorney and obtain a settlement for any mistakes that were made.
