Brian White | September 13, 2020 | Personal Injury
One of the most important decisions you make about any legal proceeding is who will represent you. The lawyer you choose is meant to be your advocate before the court and provide you with competent legal advice.
While the overwhelming majority of lawyers give a good faith effort in promoting and defending their clients’ interests, there are some instances where a lawyer might make a significant mistake or even neglect their client and their case.
If this happens to you, it is important to know what you can do next. What rights do you have to competent legal representation? Can you actually sue your lawyer for legal malpractice if they are negligent or botch your case?
What Constitutes Legal Malpractice?
When you enter into a contract for legal services with an attorney, you are assuming that the lawyer will offer you a certain level of representation that would be reasonable for a licensed attorney. If, through glaring omissions or costly mistakes, your lawyer fails to provide legal representation that would be expected of a licensed attorney, you might have a case against your lawyer on the grounds of legal malpractice.
It should be noted, however, that losing your case does not automatically mean your lawyer was negligent or committed legal malpractice. In fact, winning a malpractice case is very difficult and requires you to prove several things.
Duty of Care
First, you need to show that your lawyer owed you a duty of care. What this means is that you had entered into a contract for legal services with your lawyer. Of all the things you need to prove in order to have a solid legal malpractice case, this is the easiest one. You can usually prove that your lawyer owed you a duty of care simply by producing your retainer agreement or contract.
Breach of Duty of Care
The next thing you need to prove is much more difficult. You need to document that your lawyer failed to meet the standard of care implied in the contract for legal services you signed with them. By failing to uphold their contractual obligations, either via neglect, errors, or omissions, your lawyer is in breach of the duty of care they owed you.
The Breach of Duty of Care Caused Harm
In addition to proving that your lawyer owed you a duty of care and that they breached that duty of care, in order to have a decent legal malpractice case, you need to prove that your lawyer’s breach of duty of care caused you harm. Examples could include your case being thrown out because your lawyer failed to work on it or meet a particular filing deadline, or that your lawyer misused fees you had paid them.
As a Result, You Sustained Damages
Finally, you need to prove that the harm caused by the breach of duty of care resulted in a financial loss. Going back to the example of missing a filing deadline, if that is the case and you are no longer able to collect damages, then you would have a case against your lawyer on the grounds of legal malpractice.
Another Way to Spot Legal Malpractice
If you are unsure if your lawyer’s conduct constitutes legal malpractice based on the definitions above, there are additional questions you can ask yourself. Those questions are:
- Was my lawyer negligent?
- Did their negligence cause damage?
- Was the damage significant?
If the answer to those three questions is yes, then you may have good reason to sue your lawyer on the grounds of legal malpractice.
What To Do if Your Lawyer Committed Legal Malpractice
If you have sustained significant financial loss because of your lawyer’s negligence, then you do have the right to sue them. Obviously, one of the first things you will need to do is hire a new lawyer to represent you.
You and your new lawyer can go over your case and determine the best course of action. Most lawyers have malpractice insurance and the process for bringing a claim against them is similar to bringing any claim that involves an insurance company. By effectively making your case, you could convince your former lawyer and their malpractice insurance company to settle before the case ever gets to court.
If, however, they do not think your case is very strong or likely to win in court, your case may be on its way to trial. Note that, if this is the case, it can take up to a year or longer before the matter is solved.