Sue an Attorney for Malpractice

You may want to sue your attorney for malpractice if the attorney made significant errors while representing you, sent you a bad check, failed to contact you, or settled your case without your permission. Lawyers are bound by the standards of the bar association in the state where they are licensed. If your attorney did not adhere to these standards, you may have a malpractice case. Just keep in mind that your attorney is allowed to defend him or herself against your allegations, so by filing a malpractice claim, you waive attorney-client privilege. You should also be aware that these cases are incredibly difficult to win because you have to prove not only that you had a contract with your attorney and that the attorney breached their duty; you must also prove that you would have been entitled to quantifiable monetary damages in your original legal case where you were represented by this attorney.

Steps

Determining If You Have a Case

1. Consider what your attorney did that might be used in a malpractice suit. There are three basic categories for a legal malpractice suit: negligence, breach of fiduciary duty, and breach of contract. Keep in mind that you must also be able to prove that your attorney's conduct hurt you financially and, as a result, you suffered financial consequences.
2. Determine if your attorney was negligent. An attorney owes a duty to his or her client to act in the client’s interest as a reasonably competent attorney. This means that the attorney must perform services at or beyond a minimum level of competence. If your attorney fails to demonstrate a minimum level of competence while working on your case, it can mean that your attorney was negligent.
   • For example, if your attorney accepts your case, but then does nothing with it for several months and the statute of limitations on your case expires, your attorney may be considered negligent.
   • Other negligent behaviors include failing to meet important deadlines, failing to prepare for trial, and failing to follow court orders.
3. Determine if your attorney failed to provide fiduciary duty. Fiduciary duty means that your attorney is required to act in your best interest. As part of an attorney’s fiduciary duty to the client, if an issue arises in which an action taken for the client’s benefit will likely cause harm to the attorney, the attorney must act in the client’s benefit in spite of the harm to self.
   • Remember that these duties are only owed if an attorney-client relationship is formed. If you are not the attorney’s client, the attorney does not owe you these duties, and you will not have a malpractice case.
   • Other ways that an attorney may breach fiduciary duty include:
     • representing your opponent
     • having a potential financial gain if you lose the case
     • making sexual advances towards you
     • lying to you about important case information
     • failing to tell you about settlement offers
     • taking a lesser settlement without consulting you
     • using your money without consulting you
     • revealing confidential information without your permission
     • failing to disclose a conflict of interest
4. Determine if your attorney breached your contract. If your attorney failed to adhere to specific terms in your contract with him or her, then your attorney may have breached the contract. Failing to file an action, research a specific item, or file a lien are some examples of how an attorney may breach a contract.
5. Consider whether the attorney’s breach was the actual cause of losing your case. Actual cause is often referred to as “but for” cause because you can use the “but for” statement to describe it. For example: But for the attorney’s failure to file the agreement in a timely fashion, the plaintiff would have received a settlement of $XXX.
   • If you are claiming the attorney’s representation was the breach, you must normally prove that you would have won the case if the attorney had acted in a minimally competent manner. Proving that you might have won is not enough.
6. Determine if your attorney’s breach was proximate and foreseeable. The attorney’s breach must be the foreseeable and proximate cause of your damages.
   • Proximate cause is that the harm is reasonably foreseeable and not too far removed from the action to be attributable to it. For instance, if someone passed a package of fireworks to a passenger on a moving train, it may be foreseeable that the fireworks would be dropped or the persons giving and receiving them may be hurt.
   • It is not foreseeable, however, that the fireworks would explode causing an impact on the platform which shakes an industrial scale off its base, hitting a lady, causing her injury.
   • Both types of causation must be proven to win a legal malpractice suit.
7. Determine if you can prove quantifiable damages. You must be able to prove quantifiable charges in a legal malpractice suit. Quantifiable damages are those that can be easily reduced to a monetary value. They generally do not include punitive damages (those meant to punish the offending attorney) or any money to compensate you for pain and suffering.
8. Determine if your case falls within your state’s statute of limitations. You must initiate your case with the court within the state’s statute of limitations. Most states allow three to five years from the time you could have filed your case until the date you actually do, but some states allow as little as one year. Check your statute of limitations or ask your attorney about the statute of limitations on legal malpractice in your state.

Preparing Your Case

1. Obtain a copy of your case file from your attorney. Gather any other documents that pertain to the case the attorney handled, including bills from your attorney and the contract you signed. If your attorney is not returning your calls, send a letter specifying the reason why you called to create a paper trail. The remainder of the documents can be obtained during discovery after your new attorney files your malpractice case.
   • Several states, including California, may view your file as your property, and not the property of the attorney. In these states the attorney is required to give you a copy of your case file. If s/he does not, you can file a complaint with the state bar association.
2. Gather evidence. Gather any and all documents that tend to support your claims of malpractice. List the names and contact information of any person who may have knowledge or have witnessed actions to support your claims of what the attorney did or the damages that were caused.
3. Make a list of people who could serve as potential sources of information or as witnesses. Anyone who was involved in your original case should be included in this list, as well as anyone who witnessed interactions between you and your original attorney.
4. Contact a legal malpractice attorney. Few attorneys accept legal malpractice cases, but those who do are highly specialized. You can find the ones in your area by contacting your state’s Bar Association or searching for legal malpractice attorneys in your state. Some states, such as California, have certified some lawyers as legal malpractice specialists.
   • You will want to search for the attorney on the state's bar association public disciplinary database and check their ratings on lawyer ranking services such as AVVO before hiring.
5. Schedule a consultation with the legal malpractice attorney. Most attorneys will offer you a free consultation. Bring your case file and any other pertinent documents so the attorney can determine if you have a valid malpractice case. You may be required to give your attorney money for costs before your malpractice suit can proceed, even if s/he is also being paid a contingency fee.
   • For most legal malpractice cases, your attorney will be paid on a contingency basis. This means they will collect between 30-50% of the proceeds of your award. These attorneys do not charge by the hour and will likely offer you a free consultation.
   • If your attorney charges by the hour, s/he may not offer a free consultation.
6. Follow your legal malpractice attorney's advice at all times. Your malpractice attorney will file the appropriate documents with the appropriate court and conduct discovery. S/he will also prepare you for deposition and/or testifying in a court trial.

Litigating Your Case

1. Be candid with your malpractice attorney. You should tell this attorney everything about the case, including those facts that may make you look bad. Your malpractice attorney may be able to counteract some of these bad things if s/he knows about them, but s/he cannot prepare if s/he doesn't know.
   • You should also discuss any potential problems you may face from the information you disclosed to the initial attorney. Remember, this information could be disclosed upon the termination of the attorney-client privilege.
2. File your complaint. After your attorney has interviewed you and you have agreed on a contract, s/he will file and serve a complaint against the attorney you are suing. This begins the litigation process.
3. Participate in the discovery process. During discovery, both parties will exchange documents and ask each other questions ("interrogatories"). This process is designed to investigate the case fully.
   • Additionally, your attorney can subpoena documents or deposition from companies or individuals that are not parties to the litigation.
   • Your attorney will receive "document requests" during this process. This includes both written documents as well as any other material, such as data, photographs, or charts, that pertains to your case.
4. Undergo deposition. A deposition is a sworn statement given in front of a court reporter, who records everything that is said. Everything said in a deposition is "on the record." Listen to your attorney during the deposition preparation process. In general, there are two rules to follow when giving a deposition:
   • Don't guess. If you don't know something, say "I don't know" and move on. "Guessing" in a deposition can get you in serious trouble.
   • Don't give more than is asked for. It is the opposing side's duty to get answers. You should not volunteer more information than is specifically asked for in the question.
5. Let your attorney handle the summary judgment motion. At some point, your attorney will likely have to oppose a summary judgment motion. This is a motion that requests the judge to determine whether or not you have alleged sufficient facts to potentially win your case.
   • If the judge determines that the facts you've alleged are insufficient, the judge may dismiss your case.
   • These motions are a crucial part of your case, but you will probably not be particularly involved in this part of the process.
6. Attempt to reach a settlement. If your case withstands a summary judgment motion, you will have an opportunity to settle your case at a settlement conference, a mediation or potentially non-binding arbitration.
   • Consult with to your attorney about each of these options to determine your best choice.
   • Be aware that because they are very hard for the plaintiff (you, in this case) to win, most legal malpractice cases are not settled out of court. They go to trial instead.
7. Go to trial. If you fail to settle your case, you will have to go to trial. At trial, both parties will present evidence in an effort to prove their case in front of a jury or judge. Not only will you be expected to attend the trial, you will also be required to testify. Your attorney will prepare you for both attending the trial and your testimony.
   • Your trial may take anywhere from a few days to a few weeks to finish.
8. Appeal the ruling, if applicable. If either side is unhappy with the outcome of the legal malpractice case, they can appeal the ruling. Ask your legal malpractice attorney what your chances of success on appeal are.
   • If you are planning to appeal, make sure you file your Notice of Appeal before your time expires.
   • Both parties are still able to negotiate a settlement during the appeals process.

Warnings

• Be prepared to spend a lot of money on your attorney malpractice case. Some legal malpractice attorneys will not charge you a dime unless your case is won. Most, however, require a retainer fee and you will be responsible for any costs incurred if the case goes to trial. If you sign a contingency agreement (where the attorney does not get paid unless you win your case), you should clarify how costs (such as filing fees, expert fees, copies, etc) will be handled.
• The statute of limitations -- essentially, the "expiration date" -- for some malpractice suits can be as little as a year. If you believe your attorney is guilty of malpractice, don't delay in contacting an attorney and filing your suit.

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Sources and Citations

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• Counter Sue
• Sue Your Employer
• File a Case in Small Claims Court
• Address a Judge in Court
• Appeal a Judgment Without an Attorney
• Defend Yourself in Court
• Get a Restraining Order
• Serve Court Papers
• Win a Wrongful Termination Lawsuit

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• Sue for Emotional Distress