When you reach the point of needing an attorney's expertise, it usually means that some situation -- whether at work, in the neighborhood, with the family, or elsewhere -- has gotten too complex to resolve on your own. You turn to a lawyer and trust she will help. But what do you do when the lawyer makes things worse instead of better? If you've lost confidence in your attorney and are considering suing for malpractice, here are some things you should know.
Proving Malpractice Isn't Easy
If your attorney made serious errors, you may consider suing the lawyer for malpractice. Unfortunately, it is very hard to win a malpractice case. Malpractice means that the lawyer failed to use the ordinary skill and care that would be used by other lawyers in handling a similar problem or case under similar circumstances. In other words, it's not malpractice just because your lawyer lost your case.
To win a malpractice case against an attorney, you must prove four basic things:
- duty -- that the attorney owed you a duty to act properly
- breach -- that the attorney breached the duty: she was negligent, she made a mistake, or she did not do what she agreed to do
- causation -- that this conduct hurt you financially, and
- damages -- that you suffered financial losses as a result.
In practical terms, to win a malpractice case, you must first prove that your attorney made errors in how she handled your case. Then you must show that you would have won the underlying case that the lawyer mishandled. (This second part is not required in Ohio.) Finally, you will have to show that if you had won the underlying case, you would have been able to collect from the defendant.
Example: Dorian is hit by a car while he is walking across the street. He hires a lawyer who doesn't file the lawsuit on time. As a result, the judge tosses out Dorian's case and he is unable to refile it. Dorian sues his lawyer for malpractice. He can prove duty (he signed a representation agreement with the lawyer). He can prove breach (the lawyer failed to file the lawsuit within the proper time). He can prove causation (witnesses and a police report attest to the driver's liability). However, to prove that the lawyer's misconduct harmed him financially, Dorian also must show that the driver had money or insurance so that Dorian could have collected the judgment if he'd won.
When Is a Bad Job Malpractice?
Here are some common complaints that clients have about their lawyers, along with an analysis of whether the lawyer's action (or inaction, as the case may be) constitutes malpractice. (For more tips on dealing with a deadbeat attorney, read What to Do When You're Mad at Your Lawyer.)
Your lawyer stops working on your case. The longer your attorney ignores you and your case, the more likely it is to amount to malpractice. You must act quickly to see that your case is properly handled and get another lawyer if necessary. Writing or faxing a letter expressing your concerns and asking for a meeting is a good first step.
Your case is thrown out of court because your lawyer did no work. This may be malpractice. Your difficulty will be in proving not only that your lawyer mishandled the case, but that if handled correctly, you could have won and collected a judgment. If you are successful and obtain a judgment against your lawyer, then the lawyer is responsible for whatever money you could have won had the case been properly handled.
Your lawyer recommends a settlement for far less money than she originally estimated your case was worth. This is not malpractice. Your lawyer may have given you an inflated estimate of the value of your case to encourage you to hire her.
Get your file from your lawyer and get a second opinion on your case. If another reputable lawyer believes you are being advised to settle for too little, consider changing lawyers.
Your lawyer settles your case without your authorization. This is malpractice, because a lawyer may not agree to a settlement without the client's approval. To succeed in a malpractice case, however, you will have to prove that the settlement your lawyer entered into was for less than your case was worth.
You see your lawyer socializing with the lawyer for your opponent. This is not malpractice or a breach of attorney ethics. There is nothing ethically wrong with opposing attorneys playing tennis, bridge, or golf, or enjoying other common social interactions.
If the opposing attorneys talk about your case (on the tennis court or anywhere else), however, and your lawyer lets slip something that you said in confidence, that would be a clear violation of your attorney's duty to you.
You suspect that your lawyer has misused money you paid as a retainer. Stealing a client's money is malpractice, because your lawyer has a duty to use your funds only for your case.
If you seriously suspect your lawyer has misused any money he holds for you in trust, complain to your state's attorney regulatory agency right away. Although regulation of lawyers is lax in most states, complaints about stealing clients' money are almost always taken seriously, so you should get a prompt response. All states, except Maine, New Mexico and Tennessee, have funds to reimburse clients when lawyers are caught stealing.
If your complaint to the state attorney regulatory agency is unsuccessful, you may also consider suing the lawyer for malpractice in order to get the money back.
For more information on suing a lawyer for malpractice, see Nolo's Encyclopedia of Everyday Law: Answers to Your Most Frequently Asked Legal Questions, by Shae Irving and the editors of Nolo (Nolo).