It is difficult to win a legal malpractice lawsuit. A client will need to establish several factors in order to prevail. The most common type of legal malpractice occurs because of negligence, the breach of a fiduciary duty, or a breach of contract.
The failure to file paperwork by a deadline is a form of negligence. To establish legal malpractice under negligence, it is necessary to demonstrate the following:
To win a legal malpractice claim, it is also necessary to show that if the lawyer had been competent the client would have prevailed in the underlying case and the client would have been able to collect the damage award from the defendant. This element, known as causation, is often the most difficult to prove in a legal malpractice lawsuit.
Yes. An attorney has a duty of confidentiality to a client. An attorney, therefore, may not disclose the information a client reveals to a third party without the consent of the client. For the most part, except under a few circumstances, this applies regardless of the whether the client requested confidentiality.
Just because opposing attorneys are friends, a conflict of interest does not necessarily exist. Providing that it is a friendship rather than a familial relationship with a spouse, parent, child, or sibling, a conflict of interest is unlikely. Lawyers have a duty of loyalty to a client, so sometimes a close relationship may create a conflict. Any potential or actual conflict will limit or affect the representation of a client. Therefore, lawyers must avoid conflicts of interest.
No. A lawyer has a duty to communicate with clients about new developments and other information pertaining to a case. This duty includes informing clients of settlement offers. Before an attorney may accept a settlement offer, the client must agree. If a lawyer fails to obtain the consent of the client, a breach of a fiduciary duty may have occurred.
An attorney must base the charges in a bill on the fee agreement reached with the client. Most fee arrangements are settled early on in the attorney-client relationship so if the charges seem inconsistent, it is best to contact the attorney for an explanation. If it still appears that the charges are unreasonably high, there are several other options available.
Attorneys are often busy juggling numerous cases, but an attorney is obligated to keep a client informed about the progress in a case and to return phone calls. Although the failure of an attorney to return a phone call does not amount to legal malpractice, it is unprofessional and a warning sign that it may be necessary to hire another attorney.
If it appears that the lawyer has stopped working on a case altogether, this may amount to legal malpractice. An attorney has a duty of due diligence, which means that the attorney must work promptly and diligently on a case until it reaches completion. The failure to do so violates the attorney's duty to a client.
A lawyer's initial representation of what a case is worth is not an indication of whether the attorney represented the client appropriately. However, a lawyer does have a duty to act with competence. A lawyer must have the legal knowledge and skill necessary to represent a client with zealous advocacy. If a lawyer falls below this standard and it can be established that the lawyer's actions amounted to incompetence, legal malpractice may have occurred.
Lawyers have a fiduciary duty to act in their client's best interests when handling money or other property that belongs to the client. If you think that your lawyer has mishandled your money, contact the attorney ethics agency in your state immediately. Most states have funds available to help you recover any misappropriated money.
Absolutely, a client has the right to discharge a lawyer at any time during the representation. A client is also entitled to the work-product created by the lawyer while working on a client's case. The lawyer must readily give the client's file to the client or to the client's new lawyer when requested.
