Cecily Zamora
Suing a law firm for malpractice can be a complicated and expensive process. To win a malpractice case, you must prove that the law firm acted negligently, and this negligence caused you to suffer harm or a less favourable outcome in your case. This could include missing deadlines, failing to comply with court orders, or abandoning your case. Malpractice cases often require substantial re-litigation of the original case, and it can be challenging to prove that the law firm's actions directly led to an unfavourable outcome. Before initiating a lawsuit, it is essential to consider the potential gains and whether it makes economic sense to pursue legal action. It is also advisable to consult with another legal professional specialising in malpractice cases to assess the validity of your claim.
| Characteristics | Values |
|---|---|
| Can you sue a law firm for malpractice? | Yes, but it is a complex process and the plaintiff must prove that the law firm's negligence caused them harm. |
| Requirements to sue for malpractice | Must prove duty of care, breach of duty, causation, and damages. |
| Examples of malpractice | Missed deadlines, conflicts of interest, intentional misconduct, inadequate preparation, incorrect legal advice. |
| Statute of limitations | Varies by state and type of malpractice claim; typically between one and six years. |
| Damages that can be recovered | Economic and non-economic damages, including compensation for financial losses, emotional distress, and legal fees. |
| Defenses for law firms | Failure to prove duty of care, comparative negligence, statute of limitations. |
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What You'll Learn
Proving malpractice
Secondly, it needs to be proven that the lawyer breached their duty by providing incompetent representation or failing to use the ordinary skill, care, diligence, and knowledge expected of a reasonable and prudent attorney in similar circumstances. This may involve expert witnesses testifying on the standard of care and what an average lawyer should have done.
Thirdly, causation must be established. It should be proven that the lawyer's breach or negligence led to an adverse outcome in the case, and that without their actions, there would have been a more favourable result. This can be challenging, as the lawyer may argue that the client would have lost the case regardless of their actions.
Lastly, actual harm or damages caused by the lawyer's actions must be demonstrated. This could be financial loss, such as losing a settlement or judgement that would have been achieved otherwise. In some cases, the fees paid to the lawyer may also be recovered.
It is important to note that not every mistake made by a lawyer constitutes malpractice. To win a malpractice case, it must be proven that the lawyer's services fell below the applicable standard of care, and that their negligence caused harm or loss to the client.
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Lawyer negligence
To win a malpractice case, you must prove that your attorney exhibited negligence while handling your case and that this negligence caused you harm. You must then show that, if not for the lawyer's negligence, you would have received a more favourable outcome, settlement, or judgement than you did. For example, if a lawyer misses a filing deadline, causing you to lose your case, you may be able to sue for malpractice. However, you must prove that filing the case on time would have led to a win. This can be difficult to prove, especially when opposing your former lawyer, and it is very hard to lose a malpractice case.
If you believe your lawyer has committed malpractice, you can report them to the state's disciplinary board. The state bar of every state keeps track of negligent attorneys, and disciplinary actions are publicly searchable. You can also seek out a lawyer with experience in litigating legal malpractice cases.
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Missed deadlines
Missing deadlines is one of the most common reasons for suing a law firm for malpractice. When attorneys miss deadlines, it can have catastrophic consequences for their clients, and the client-attorney relationship can be damaged. In some cases, a missed deadline can be a simple mistake, but in others, it can be a sign of legal malpractice.
Legal malpractice occurs when an attorney fails to provide their client with the standard of care that is expected of a reasonably competent attorney in the same circumstances. For example, a lawyer must "act with reasonable diligence and promptness in representing a client". If an attorney misses a deadline and it results in harm to the client's case, the client may be able to file a legal malpractice claim against them.
To prove legal malpractice, the plaintiff must typically demonstrate that the attorney owed them a duty of care, that they breached this duty through negligence, and that this breach harmed the plaintiff. In the context of missed deadlines, this could mean that the attorney missed a filing deadline regarding the statute of limitations, compromising the client's interests as a result. For example, a personal injury victim must initiate a product liability case within three years of suffering an injury. If the attorney misses this deadline, the client may have a malpractice claim against them.
If you believe your attorney has missed crucial deadlines, you should first seek a second opinion and consult another attorney, ideally one familiar with legal malpractice cases. It is also important to act quickly, as there are time limits for filing legal malpractice claims. If you have a valid claim, you can then consider filing a legal malpractice lawsuit. However, before things escalate to court proceedings, there is always room for negotiation. Attorneys might be willing to correct their mistakes, offer refunds, or take measures to remedy the situation.
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Settlements without approval
Informed consent is a critical aspect of the attorney-client relationship. Your lawyer must keep you informed of all case developments, including settlement proposals, and you have the right to understand the terms of any proposed settlement and make the final decision on acceptance. If your lawyer pressures you into accepting a settlement without adequately explaining the offer, it may be considered malpractice.
To assess whether your rights have been infringed, it is advisable to seek counsel from another lawyer experienced in legal malpractice. They can help you determine if the settlement significantly undershot your case's value and if your attorney failed to meet their obligations.
It is worth noting that malpractice means the lawyer failed to use the ordinary skill and care that would be used by other lawyers in handling a similar problem or case under similar circumstances. Proving malpractice can be challenging, and it is essential to carefully consider the potential outcomes and economic implications of pursuing legal action against your lawyer.
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Conflict of interest
A conflict of interest can occur when a lawyer has a personal stake in the outcome of a case or is attempting to serve their own interests or the interests of another party. This can result in a breach of their duty of loyalty to their client, which is considered the highest duty a lawyer owes to their client.
Loyalty and independent judgment are essential elements of the lawyer-client relationship. A conflict of interest can arise from a lawyer's responsibilities to another client, a former client, a third party, or from the lawyer's own interests. For example, a lawyer may not represent a client if doing so involves a concurrent conflict of interest, such as when a lawyer represents both the husband and wife in an uncontested divorce proceeding. In such cases, the lawyer's independent professional judgment may be compromised, and they may be in breach of their duty of loyalty to one or both clients.
Another example of a conflict of interest is when a lawyer has discussions concerning possible employment with an opponent of their client or with a law firm representing the opponent. This could materially limit the lawyer's representation of the client and may constitute a conflict of interest. Similarly, a lawyer should refrain from conducting business or entering into business transactions with their clients, especially if the lawyer stands to gain a financial benefit.
In some cases, a conflict of interest may occur when a lawyer moves to a new employer and works on cases involving past clients from previous employers. The lawyer may have ongoing responsibilities to their past clients, such as the duty of confidentiality, which could make it impossible to fully represent the new employer's interests.
To prevent conflicts of interest, lawyers should have preventative measures in place and identify and address potential conflicts early in the attorney-client relationship. If a conflict of interest is not properly addressed and results in malpractice, the client may have grounds to sue the lawyer or law firm for breach of fiduciary duty and professional negligence.
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Frequently asked questions
Malpractice means that the lawyer failed to use the ordinary skill and care that would be used by other lawyers in handling a similar problem or case under similar circumstances. In other words, it's not malpractice just because your lawyer lost your case.
You should consider changing lawyers or getting a second opinion. Warning signs of legal malpractice include not answering phone calls and emails in a reasonable time and refusing to provide basic information about your case.
To win a malpractice case, you need to prove that the lawyer's services fell below the applicable standard of care. You must prove that your attorney exhibited negligence while handling your case and that if that negligence had not occurred, you would have received a more favourable outcome, settlement, or judgement than you did.
