Legal Malpractice

A legal malpractice case is usually a difficult scenario for both the client and the lawyer. These cases represent a professional relationship that has seriously gone wrong. Pitting a lawyer against another lawyer that questions the ethics and skill of a colleague can be a sensitive matter. If you feel that you have been wrongfully treated by your attorney, there are dedicated legal malpractice lawyers that can handle your case. It is important for every individual to educate himself on the process, costs, consequences, and likely circumstances before pushing through with this kind of case.

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Defining Legal Malpractice
Individuals who have to deal with legal issues bank on their lawyers to give them the best service possible. With the weight of legal cases bearing down on personal lives, it is the responsibility of the lawyer to provide the guidance and the professional skill necessary to render the service. In loose definition, anything short of it may qualify as legal malpractice.

Malpractice is defined as negligence by a professional person. The different kinds of high profile and malpractice today also include medical malpractice or engineering malpractice. In the legal realm, a lawyer has a "standard of care," where it is his obligation to use his skill, diligence, and prudence as to give his client the services required from a duly licensed lawyer. Anything short of the "standard of care" is called legal malpractice. A legal malpractice suit is commonly applied for negligence, fee disputes, and ethical considerations that end up harming an individual’s case or contributing to the loss of the trial. To qualify as legal malpractice, the lawyer must have invoked harm to his client. Injury or harm considered in a legal malpractice case includes the client having a tangible financial loss or a wrongful criminal conviction. As an example, cases that should have been won by a competent lawyer, but otherwise lost by the attorney in question, may be charged with legal malpractice.

Responsibilities of a Lawyer
Before having a personal opinion if your lawyer committed malpractice, one should establish and understand the professional responsibilities of a lawyer. This can serve as a checklist to rationally identify if your lawyer has given you full professional service. The standards governing a lawyer's professional service can vary from state to state.

Your lawyer must represent you ethically, zealously, and within the bounds of law. It is the lawyer's job to guide you through all your legal issues and analyze legal questions applicable to your case based on appropriate research. In other words, your lawyer should do their homework before presenting himself to his client. A lawyer should also have clarity to every legal questions presented to the clients and must communicate effectively and in a timely manner.

Lawyers are bound to the duty of loyalty. This means he cannot represent you and another client that constitutes a conflict of interest. As an example, divorce lawyers who have made themselves available for consultancy for one party cannot represent the other party. Representing both the landlord and the tenant in an eviction action is also a form of conflict of interest. As a client, expect your lawyer to follow your direction after sound legal advice unless your wishes are illegal. Your relationship with your lawyer should be confidential, and any information that is shared irresponsibly is grounds for legal malpractice.

Your Responsibilities as a Client
Establishing the negligence of your lawyer should also be subject to fulfilling your responsibilities as a client. The attorney-client contract is a two-way street, and your negligence can be argued against you in a legal malpractice suit. All your responsibilities are stated in the retainer agreement that you signed when you hired a lawyer. Like any other contract, you are required to abide by the rules of the retainer agreement.

Your first and most critical duty as a client is submitting truthful accounts of the events relevant to your case. Leaving out details that you feel may incriminate you, or put you in a disadvantage, will leave your lawyer exposed to acting on a case without full knowledge. You should also give your lawyer full cooperation from all his inquiries including attending legal proceedings when requested. Clients should also pay any legal fees in a timely manner. Your lawyer has the option to stop his working relationship with you if you fail to abide on the terms of the retainer agreement. A legal malpractice case is more viable, if you are sure that you have done everything required of you as a client while your attorney did not return the favor.

Qualifying what Legal Malpractice is NOT
While your attorney's negligence can be easily described and even if you are certain that a case against your negligent lawyer is possible, there are certain qualifiers that may prevent your case from reaching a conviction. Legal malpractice has a series of pitfalls that one should look after before pushing for the case.

Injury or tangible harm can be grounds for legal malpractice. However, nominal damages of speculative harm, or even a threat of future harm, should not be held against your former lawyer as legal malpractice. You have to be sure that the injury or distress caused to you should be readily described and properly evidenced. You have to describe the harm inflicted to you in a manner where it can be quantified, and\or easily realized by the court. Damages in a legal malpractice are not applicable to emotional distress except for exceptions such as harm from lawyer's fraud, breach of fiduciary duties, or being wrongfully convicted because of negligence.

If the lawyer's interpretation of the law is disagreed by the judge, that is not a firm basis for legal malpractice. For one, the judge's interpretation might be incorrect. At the same time, lawyers cannot anticipate how the points of debate leading to the interpretation of the law will turn out. Therefore, if your lawyer has given his opinion on the law in contention based on his research, then it should not be grounds for lawyer's negligence.

Bringing a Legal Malpractice Case to Court
If you believe that you have been violated by your lawyer and decide to push through with a legal malpractice case, it is advised that you consult with your lawyer first to discuss your concerns with him. A good number of these misunderstandings can be easily resolved with thoughtful discussions of the matter. List your concerns and address every item to him. Seek answers for any confusion on your side. This is also a way to make amends that might not be possible without clear communication with your lawyer. If you did not like the decision of the court after your trial, ask your lawyer about his opinion on exactly what happened. In addition, ask for relevant documents or files that lead to an unfavorable decision to study them yourself.

If you still have not come to a resolution after the consultation, you can submit a request for full security of the court files. Getting court documents handled by your lawyer should not be conditioned upon your full payment for his service. You can start asking for copies of pleading and discovery documents during the case, and he can only withhold his internal memos from you. You will need these files in order to give the most complete information to your legal malpractice attorney.

Finding a Legal Malpractice Lawyer
The only way to assure yourself if you have a valid case against your former lawyer is to consult a legal malpractice attorney. Proving a legal malpractice is a difficult process because of the complexities of the laws governing it. The best legal malpractice attorney should have an enduring experience in this field. Still, choosing a legal malpractice lawyer should not be different from choosing other professionals. Make sure he has a strong track record that suggests he can handle your case. The attorney-client contract that you had with your first lawyer should not prevent you from consulting with another attorney. You do not even need to contact your former attorney of these changes. Upon consultation with your legal malpractice lawyer, you would be asked the full reason why you arrived at such a decision. For this, you have to bring the complete set of files from your previous case, so your new lawyer can study it. If you do not have the complete set of files, you do not need to contact your former attorney. Instead, your new lawyer will send a written request to forward your documents from your former lawyer to your new lawyer. Your former lawyer has no reason to contact you regarding these changes.

Various Costs to Conclude a Legal Malpractice Case
Bringing a legal malpractice case to court can be very tricky. With the complications that govern the laws regarding legal malpractice cases, the fees and other costs can be very significant. Early settlements of these cases do happen. However, this will go likely well into the discovery process before an initial resolution is discussed. The prosecution should prove that the former attorney committed malpractice, and a possible retrial of the previous case may be called. Called "case within a case," the initial case that brought the complaint needs to be presented and discussed in court. Essentially, the cost of a legal malpractice suit could double from the previous case.

At this point, the client has to think hard regarding the financial consequences of his action. Since a legal malpractice case is costly, it can hinder the development of the case or discourage the client to push through, if he feels that the benefit from winning the case may not be worth it. Attorney's fees can be paid on contingency basis, an hourly rate, or a combination of the two. Contingency fees are generally higher for legal malpractice cases relative to other kinds of cases. After dealing with the attorney's fees, it is most likely that you will be paying the same amount of money needed to prove your first case. You can discuss with your new lawyer if he can advance all costs, or if you have to advance these costs.

Getting an Expert Witness
A legal malpractice case is considered a professional violation against the "standard of care" that you deserve from an attorney. Thus, an expert witness is necessary to prove such claims. Expert witnesses should be knowledgeable enough to validate that your former attorney was negligent or ethically irresponsible relative to the expectations of a lawyer with ordinary skill. Basically, the expert witness should communicate why the decisions or indecisions of your lawyer did not measure up to the professionalism expected from their job. If the expert witness was not able to prove your counsel's arguments, then the case will be likely dismissed.

The expert witness should go farther than proving your counsel's arguments. In addition, he should drive the intricacies of the law to the jurors in lay terms and present why your former lawyer was not able to take the right action.

Handling Conflict of Interest
Being a lawyer involves being a part of the professional community. In a certain locality, it is possible that there will be conflict of interest if you consulted a legal malpractice lawyer that has professional relations with your former lawyer. This is a common concern for this kind of case. If your new lawyer has a professional working relationship, or may be connected personally with your former lawyer, your attorney should be bound to tell you in advance. Lawyers who specialize in legal malpractice cases usually have no qualms in handling your case against practitioners in the same community. If there are complications on this matter, it is important to be open with your new lawyer about the working relationship, and ask for the details or the extent of the relationship between your new lawyer and the former lawyer. It is best to find a representation that has no working footprint with your old lawyer. You can waive some terms with your attorney if this cannot be prevented.


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