Cameron Miranda
While you can sue a lawyer for malpractice, some law firms do not handle cases against attorneys in certain fields of law, including family law. Grounds for a legal malpractice claim include negligence, failure to file your case in a timely manner, failure to provide competent legal information, and breach of contract.
| Characteristics | Values |
|---|---|
| Grounds for suing a family law attorney | Legal malpractice, negligence, breach of contract, disbarred/revoked license, failure to file before the statute of limitations, failure to provide competent legal information, failure to act in the best interest of the client |
| What to do before suing | Obtain your case file and all documentation pertaining to the original case |
| How to prove malpractice | Show that the attorney owed you a duty of care, breached this duty, their conduct caused you damage, and you suffered financial losses as a result |
| Firms that can help with malpractice lawsuits | Patrick Malone & Associates, Makarem & Associates, Bernstein Injury Law |
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What You'll Learn
Negligence
To successfully sue a family law attorney for negligence, several factors must be proven:
- Duty of Care: There must be a contract or agreement between the client and the attorney, affirming the attorney's duty to act properly in the client's case.
- Breach of Duty: The attorney must have breached this duty of care by failing to do what they agreed to, being negligent, or making mistakes that another attorney in a similar situation would not have made.
- Causation: The attorney's negligence must have directly or indirectly caused harm to the client. This could be in the form of financial losses, physical injuries, or other types of damages.
- Damages: The client must have suffered financial losses or other tangible damages as a result of the attorney's negligence.
It is important to note that not every mistake by an attorney constitutes legal malpractice. The negligence must have resulted in a worse outcome, settlement, or judgment for the client than would have otherwise been expected.
Additionally, the laws regarding legal malpractice may vary by state, and there may be statutes of limitations for filing such claims. It is always advisable to consult with another attorney specializing in legal malpractice to determine the validity of a claim and navigate the specific legal requirements.
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Lack of preparation
A lawyer is responsible for providing high-quality work, which includes the ability to analyse legal issues, research and study changing laws and legal trends, and represent the client effectively and professionally. If a lawyer's conduct falls below these standards, they can be disciplined through censure, reprimand, suspension, or disbarment.
While a lack of preparation does not always constitute malpractice, it may. If a lawyer's lack of preparation leads to negative consequences or harm to your case, you may have grounds for a legal malpractice claim. This could include the failure to provide competent legal information, such as drafting a contract with inconsistent terms, improperly using legal authority, or failing to inform clients about deadlines.
In addition, a lawyer's failure to prepare can result in a breach of contract claim if they fail to fulfil the terms outlined in the retainer agreement. For example, if a lawyer agrees to prepare a document by a certain date and does not, or if they agree to an hourly rate and then charge a higher rate, this could constitute a breach of contract.
If you believe your lawyer has not been adequately preparing for your case, the first step is to try to contact them and address your concerns. If they are unwilling to address your complaints, you can take your legal affairs to another lawyer. You may also consider suing for legal malpractice, but it is important to act quickly as there is a statute of limitations on these types of claims, and these cases can be costly and challenging to pursue.
It is worth noting that no two lawyers will think alike, and what may seem like a lack of preparation to you may be a strategic decision. Before considering legal action, it is recommended to seek arbitration, where a neutral third party, typically a legal expert, can analyse the underlying case and the attorney's conduct to determine if malpractice occurred.
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Breach of contract
A breach of contract occurs when one party fails to perform a contractual promise or obligation. This could be a failure to pay for goods or services, failure to perform a job on time, or the delivery of a different product than what was promised.
If you are considering suing for breach of contract, it is important to first attempt to resolve the issue without legal action. This could involve reaching out to the other party through a telephone call, email, or letter to request that they correct the breach or enter into negotiations. If this does not work, you may then wish to hire a lawyer to send a demand letter to the breaching party.
If you decide to pursue a lawsuit, it is important to be aware of your state's statute of limitations, which sets a deadline for when you can bring a lawsuit. In Florida, for example, 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.
When suing for breach of contract, you are seeking to be compensated for your losses resulting from the breach. This compensation is known as damages. There are several types of damages that may be awarded in a breach of contract lawsuit, including compensatory damages, consequential damages, incidental damages, liquidated damages, and punitive damages.
In some cases, you may be able to handle a breach of contract lawsuit on your own in small claims court, which is typically cheaper and faster than traditional civil court. However, it is generally recommended to consult with an experienced contract lawyer, especially if the case is complex.
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Failure to file before the statute of limitations expired
While it is possible to sue a lawyer for malpractice, some law firms do not handle cases against attorneys practising family law. To prove legal malpractice, your new attorney must show four elements of the case. Firstly, it must be established that your original attorney owed you a duty of care, which is usually affirmed through a contract or agreement. Secondly, it must be shown that your original attorney breached this duty of care by failing to do what was agreed upon, being negligent, or making a mistake that another attorney would not have. Thirdly, it must be proven that the attorney's conduct caused you harm, and finally, that you suffered financial losses as a result of your attorney's actions or inaction.
In the context of a failure to file before the statute of limitations expired, you may be able to prove legal malpractice if your attorney failed, through negligence, to file your case in a timely manner. Witness statements and a medical expert, for instance, could help prove that the wet floor of a restaurant caused you significant loss, and that your attorney's misconduct resulted in financial harm because you were unable to recover a settlement from the restaurant.
It is important to note that each state has its own personal injury statute of limitations, with limitation periods typically ranging from two to three years. While missing the deadline will result in losing any chance of compensation, there are rare exceptions that can extend the filing deadline. These include the discovery rule, which is followed in most states and applies when an individual could not reasonably have known that they were hurt. Additionally, in some jurisdictions of the US, it is possible to file a complaint after the statute of limitations has expired, and the expiration of the statute of limitations is frequently litigated in US courts.
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Failure to provide competent legal information
When you hire a lawyer, you are entitled to competent legal representation. This means that your lawyer must provide you with competent legal information and act in your best interest. If your family law attorney fails to provide competent legal information, you may have grounds for a legal malpractice claim.
There are several ways in which a family law attorney may fail to provide competent legal information. This can include drafting contracts with inconsistent terms, improperly using legal authority, or failing to inform you about important deadlines. For example, if your attorney fails to file a complaint before the statute of limitations expires, you may have a valid malpractice claim as you can no longer seek legal recourse. Additionally, failing to respond to discovery requests or file other necessary documents on time can be detrimental to your case and may constitute malpractice.
Another way a family law attorney may fail to provide competent legal information is through a lack of communication. 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. If a lack of communication harms your case, this may be considered malpractice. For example, failing to return phone calls or respond to letters and emails for an extended period could amount to malpractice.
It's important to note that winning a malpractice case can be challenging. You must prove that the attorney failed to use the reasonable skill expected of someone with their experience and legal capacity. This can include failure to correctly apply the law, poor strategy, inadequate research, fraud, or conflict of interest. If you believe your family law attorney has failed to provide competent legal information, you should first try to communicate your concerns with them and, if necessary, seek advice from another lawyer.
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