Several months back, I hired an attorney to represent me in my workers’ comp case. At the time, I really liked the lawyer and thought he would do a great job in my case. But after a couple of meetings early on, I haven’t heard from him about my case. I called and left a few messages with his assistant, but still no response. It’s been several weeks, and I’m worried about my case. What should I do? Can I sue for malpractice?
Your attorney has a legal and ethical obligation to communicate with you and keep you informed about your case. That being said, attorneys are typically very busy, often juggling several cases at a time. Depending on your state, workers’ comp cases can also move quite slowly. So it may be that there hasn’t been much activity to report. However, your lawyer should be keeping you informed, even if it’s just to say that your case is in a holding pattern.
You might ask to speak with any legal assistants and paralegals working in your lawyer's office; they may be able to give you information about the status of your case. If you don't get help from them and you're concerned that things have fallen through the cracks in your case, you should ask to see your workers’ comp file. You can ask to see the file in person at your lawyer’s office, or you can ask the attorney to send you a copy by mail or email. By looking at the file, you can see what, if anything, has been done in your case so far.
If your lawyer is still unresponsive after you’ve called and asked for your file, it may be time to find a new attorney. However, depending on how far along your case is, you might have some difficulty finding a new attorney to represent you. Because of how workers' comp lawyers are paid, the total attorneys' fee is the same no matter how many lawyers worked on the case. When you've had two or more attorneys representing you, they split the fee according to how much work each did on the case. So a second lawyer may be reluctant to take a case if your first lawyer would receive a good chunk of the fee. But if your first lawyer hasn’t done much in your case, you should have an easier time finding a new lawyer.
For a list of workers’ comp attorneys in your area, see Nolo’s lawyer directory. Also, see our article on what to look for in a workers' comp lawyer for tips on how to find a qualified attorney and a list of questions to ask any lawyer you're thinking of hiring. Be sure to bring a copy of your workers' comp file to any meetings that you set up with other lawyers.
As for a malpractice suit, it’s probably not worth the time and effort unless your lawyer made a big mistake, like missing a filing deadline. To win a malpractice suit, you have to show not only that your lawyer acted wrongfully, but also that you suffered a financial loss from those acts. For example, if your lawyer missed the deadline for filing your workers’ comp claim, and there was no way to correct the mistake, you could potentially win an malpractice award that would compensate you for your lost workers’ comp benefits. But you would still have to prove that you were likely to win your workers’ comp case if you had been able to pursue it.
In most cases, you won't lose money in your workers' comp case just because your lawyer didn't communicate with you about your case, so you wouldn't get anywhere with a malpractice lawsuit. You can, however, always file a complaint with the state bar, which is the state agency responsible for disciplining attorneys. While you won’t get any compensation through this process, your lawyer will have to answer to the state bar for his behavior.