What comes to mind when you hear the word “malpractice?” Probably medical malpractice, right? Well, it’s not just doctors who get sued when something goes wrong. Your lawyer, too, could screw things up for you that might just cost you the case. That’s what legal malpractice is.
Lawyers must uphold certain standards of professional and ethical conduct in their line of work. There are specific things they have to do to ensure that they give you the best possible representation.
That way, if you lose a case, you can be certain without a doubt that they did everything they could to win it for you. That given a chance to do it over, there’s nothing that they would have done differently to get you a different outcome.
But, if they didn’t do what was expected of them, then you may have grounds to sue them for legal malpractice. Here’s everything you need to know about it.
What Is Legal Malpractice?
This refers to the breach of contract, breach of fiduciary duty, or negligence by an attorney, with the intent to harm or cause injury to a client, in the course of providing legal services to them.
But, it’s not as simple as saying, “I’m suing my attorney because they lost the case.” There’s a lot more that goes into it.
You need to show that they did something wrong, and this, quite frankly, is not usually easy to do. In most jurisdictions, you’ll need to prove that they breached the attorney-client relationship or did not provide competent and skillful representation, the result of which caused you to suffer a quantifiable financial loss. This is what forms the basis for seeking damages in legal malpractice cases.
Should you sue your lawyer because of not answering or returning your calls? Probably not – mainly because it would be difficult to prove that it is what cost you the case. You can, however, take a different approach by filing a complaint against them. Here’s the difference.
A legal malpractice lawsuit centers on recovering damages because of your attorney’s misconduct or a grievous mistake they made in a legal matter that resulted in you losing money.
On the other hand, filing a complaint against them with the state disciplinary board would be because they failed to act professionally, and not necessarily because you want to be compensated.
Reasons to File a Complaint Against an Attorney
The Model Rules of Professional Conduct, as published by the American Bar Association, lists the best practices and ethical violations for lawyers. Most states have adopted them as their ethical guidelines for lawyers practicing in those states. Below are the most common reasons why you would file a complaint against an attorney.
1. Not Communicating With the Client
Every lawyer has an ethical duty to represent your best interests. This also means that they need to respond to your messages promptly or, at the very least, within a reasonable time frame.
If your attorney fails to communicate appropriately, you may end up missing out on crucial information to your case, which may, in turn, result in missed settlement offers and deadlines.
They need to inform you of any decisions and emerging circumstances that relate to your case. They need to consult regularly with you to discuss how best to accomplish your legal goals.
If your lawyer doesn’t communicate properly with you and continuously ignores your requests for information, those are grounds upon which you can file a complaint with the state disciplinary board. If legal malpractice settlements are what you’re after, then you’ll need to sue.
2. Failing to Return the Client’s Documents
Your client file is your property. This means that if you fire your lawyer and ask them to hand over your file, they have to return it promptly. In certain states like California, for instance, getting your file back isn’t contingent on paying your attorney fees in full.
So, if your lawyer blatantly refuses to hand it back to you or employs delay tactics every time you ask them for it, it’s your right to file a complaint against them.
3. Attorney Incompetence
When you retain a lawyer to represent you, you trust that they have the knowledge, expertise, and experience required to get you the best outcome at the end of the process. This also means that they must be sufficiently prepared to deal with any matters that crop up, whether its settlement negotiations or trial.
If, in the process, you realize that they are not competent enough to handle your case as they should, those too are grounds for filing a complaint.
4. Conflict of Interest
Your lawyer’s loyalty is to you. They should, therefore, avoid any situation that would create a conflict of interest. A perfect example of this is them taking on a client who wants to sue you while you’re still a client of their firm.
5. Financial Issues
If your lawyer is charging you an exorbitant amount of money in fees, refusing to transfer the settlement money owed to you, misplacing, or even stealing your funds – these are all complaint-worthy ethical violations.
Legal fees disputes, however, are solved through an independent fee-arbitration process.
How to File a Complaint Against an Attorney
The first thing you need to do is to identify the agency in your state that is responsible for disciplining and licensing lawyers. Some states have the bar association, while in others, it’s the state supreme court.
Next, you’ll need to download the complaints form from their website and fill out the fields with the requested information. You could also write a letter providing a detailed account of your complaint.
Be sure to include the name, address, and phone number of the errant attorney, and attach copies of all the documents that are pertinent to your complaint.
Keep in mind that most agencies wait until they receive several similar complaints about a particular attorney before they take any action. So, you might have to wait a while before you see any results.
Filing a Complaint vs. Suing Your Attorney – Weigh Your Options Carefully
State disciplinary boards are concerned about punishing errant attorneys, although the punishment is rarely severe, to be honest.
If you ended up losing money because of the reckless way your lawyer handled your case, filing a complaint isn’t enough. You need to get the best legal malpractice lawyers to help you recover punitive damages from them.
If, however, your lawyer doesn’t have legal malpractice insurance or any valuable assets from which they can pay you if you win, then there’s no point in suing. It’ll just be a waste of your time and energy. Chat online with a legal malpractice lawyer to weigh your options.