Javascript is disabled. Please enable Javascript to log in.
Published: 2008-03-26

Legal Malpractice



If you believe an attorney representing you has failed to provide you adequate representation, you may have the basis for a legal malpractice claim against the attorney. Each case is unique, but there are circumstances that frequently appear in matters involving legal malpractice:

Fee Agreements and Billing

In every case in which the attorney agrees to handle the matter in return for a portion of the recovery, that is as a "contingency fee" case, there should be a written fee agreement executed by the attorney and the client. In some states, a written fee agreement is requirted in contingency fee matters. It is the attorney's responsibility to prepare a valid fee agreement. If you have a dispute over fees owed to your attorney, and you have no written fee agreement, you may wish to speak to a malpractice attorney concerning your matter.

Your attorney should provide you with routine, written billing statements - even for contingency fee cases. You should always be informed prior to significant expenditures on expenses for your case (i.e. if your attorney wishes to conduct an out-of-state deposition of a witness, you should be consulted with prior to the arrangement of such a deposition and the benefits to be gained by the deposition discussed).You will ultimately be responsible for the expenses invested into your case, regardless of how your lawsuit goes, so your attorney should keep you informed and involved with decisions regarding these expenses.

Conflict of Interest

An attorney has a fiduciary duty to avoid conflicting interests - a conflict of interest arises whenever an attorney's independent judgment on behalf of a client may be affected by a loyalty to another party. There is a potential conflict of interest when:

  • An attorney represents multiple claimants in an aggregate settlement (common when a disaster injures many individuals, all of whom hire the same attorney);
  • An attorney represents both sides in a matter where potentially the parties' interests may conflict (i.e. representing both buyer and seller or both parties in a divorce);
  • An attorney belongs to a large firm, the likelihood of a connection with potential defendants, or their respective insurance companies, is greater;
  • An attorney cannot clearly identify who is the client.

This final scenario is common in legal malpractice suits arising from estate work and from the creation/representation of new business entities. Examples are: If an attorney drafts a trust for a client, then the personal representative robs the trust following the death of the client, do the named beneficiaries of the trust have a claim against the attorney? Or, an individual approaches his attorney and requests legal services involving the start-up of a corporation with several partners. After incorporating, is the individual, the group of individuals or the corporation the client? The attorney should always be able to clearly identify the client - and should discuss this with all involved parties so there is no confusion over whose interests the attorney is serving.

Failure to Communicate

Your claims should never be compromised without your full knowledge or consent - thus a demand for settlement should never be made on your behalf without your full authority. The better practice is for the attorney to prepare an advice letter, providing a professional opinion as to the value of your claims. The advice should also recommend a settlement range and asking your permission for making a specific opening demand.

Likewise, a settlement cannot be accepted on your behalf without your approval. You have the final say. Conversely, your attorney is obligated to inform you of any settlement offers, even if the offer is lower than what you indicated you would accept.

You also have the right to be fully informed of the status of your case. Good lawyers communicate with each client, particularly personal injury clients, frequently. If months go by without word on your case, investigate what is happening. Litigation is a slow process, but an aggressive attorney usually can progress a case quickly enough to at least require monthly updates.

Statute of Limitations

The statute of limitations is a deadline established by statute by which time you must file your lawsuit or be forever barred. For most personal injury matters, this period is two years. Thus, you have two years from the date of your injury, or, more precisely, when you knew or should have known that you had suffered an injury, in which to file your claims.

Calculation of your deadline is usually straight forward, ask your attorney when your statute of limitations period expires and mark it on your calender. Surprisingly, for something that is so elementary, over 13% of all legal malpractice cases arise for failure on the part of the attorney to file claims in a timely manner.

Legal malpractice cases may also involve neglect of the file by the attorney, failure by the attorney to abide by court orders and discovery requirements, failure to conduct adequate discovery, or improper conduct such as sexual advances by the attorney. If your attorney drastically reduces the valuation of your case without a clear reason, there may be cause for being suspicious of the attorney's motives. Many cases where the attorney has "overlooked" a critical detail are settled quickly before the client is allowed to learn of the attorney's negligence. If you feel you may have a legal malpractice claim against your present attorney, you may wish to pursue a claim even before the underlying litigation, the case the negligent attorney is or was handling, is concluded.

Bringing a successful lawsuit against any professional is challenging. Juries tend to respect, or, at least grudgingly acknowledge a level of status acheived by physicians and lawyers. You can greatly enhance the likelihood of a successful outcome for your claim by selecting an attorney with experience in winning malpractice suits.