When you go to see a doctor, they have what’s called a duty of care toward you that they are legally and ethically required to fulfill. They’re supposed to do their best to care for you without causing harm. They need to follow accepted medical principles and guidelines. If they stray from these tenets and end up causing harm to you, they can be found liable of medical malpractice and be made to compensate you.
Lawyers are governed by a similar code, and if they fail in their duties to you and you suffer financially because of it, they can be sued for legal malpractice. So what legal duties do lawyers have to their clients?
They have to use “ordinary” care and skill. This means that your lawyer has to act in a way that most other lawyers handling your case would act. In other words, you can’t just sue an attorney for malpractice because you don’t think they did a good job. However, if they neglected something rudimentary like ensuring that your case was filed on time and you lost money because of it, there’s a good chance that you may be able to win your case.
They have to work on your case. If you hire an attorney and he or she proceeds to ignore you and the case, this can become a form of malpractice. The key word there, though, is “become,” because the longer the lawyer ignores you, the more likely it is that you are experiencing malpractice. For most people, if you feel like your lawyer is ignoring you, the best thing you can do is express your concerns to them in writing and start looking for another lawyer.
They shouldn’t represent conflicting interests. No lawyer should be representing two parties with opposing interests. For example, if you are attempt to buy a business out and lose, then later discover that your lawyer was representing that business at the same time they were handling your case, you may have justification for bringing suit against them.
They agree to a settlement without your consent. Attorneys are not allowed to accept settlements without getting approval from their clients, so this is absolutely malpractice. However, if you take your lawyer to court over this issue, you will still be under the onus of proving that your lawyer got you a lower settlement than what the case was worth.
Additionally, lawyers are legally required to work for their clients’ interests rather than their own, maintain confidentiality, loyally represent clients, and work within the bounds of the law. Violations of these requirements can cause attorneys to receive fines from the state disciplinary agency and may seem like good reasons to file a malpractice suit, but before you decide to go that route, you should know what you’re getting into.
Winning a Legal Malpractice Case
Legal malpractice suits are difficult to prove and win. Before filing suit against an attorney that you believe has wronged you, it is vital that you consult with an experienced professional who can advise on the likelihood of you winning the case and has a track record of success.
There are four basic things that plaintiffs are required to prove in order to succeed in legal malpractice suits.
That the attorney you’re suing owed you a duty to act properly. Essentially, you have to show that you entered into a contract with the attorney that you’re suing, and that because of this, they were legally bound to act in your interest.
That the attorney you’re suing was in breach of this duty. You need to prove that, even though they were required by their position and the law to provide you with specific services and act with at least an average level of competence, they failed to do so.
That this breach of duty caused you financial harm. You have to show that the actions of your lawyer caused you to lose – or lose out on – a monetary sum.
That you suffered financial losses. This may seem like the exact same thing as what’s above, but the difference is that there you were proving that it was, in fact, the actions of your attorney that caused you financial harm. Here you have to prove that the harm in question actually occurred. For example, you lost a case worth $500,000 due to your lawyer’s actions.
The first thing that you should ask yourself before attempting to pursue a legal malpractice suit against an attorney is whether the complaint you have against them seems like it fits one of the above descriptions. If you’re not sure, the best thing that you can do is contact an attorney in your area who has experience with legal malpractice cases. Set up a free initial consultation, and they’ll be able to go over the specifics of your situation and tell you whether or not they believe you have a case.
About the Author:
Ben Murphey is a personal injury lawyer and a partner at the firm of Lawlor Winston White & Murphey. Mr. Murphey has 10.0 Superb AVVO rating, was named Top 1% of Car Accident Attorneys by Car Accident Lawyer, and was named a Super Lawyer by Super Lawyers in 2014. Mr. Murphey is based in South Florida but represents people and businesses across the state who have been harmed by the wrongful acts of others.