How to Sue Your Attorney for Malpractice
If you want to sue your attorney for
malpractice lawsuits, you must prove that their negligence caused financial, legal or other negative consequences for you. You must prove an immediate connection between the attorney's negligence and the negative results.
Strategies do not count as legal
malpractice however, if your lawyer does not file a lawsuit in time and you lose the case, that could be a sign of malpractice.
Use of funds in a fraudulent way
Fraud in the handling of funds by lawyers is one of the most common forms of legal malpractice. Lawyers are in a fiduciary relationship with their clients and are expected to behave with a high level of trust and fidelity, particularly when handling funds or other property that the client has handed over to them.
When a client makes retainer fees, their attorney is required to place the money in a separate escrow account designated for that case's purpose only. If the lawyer makes use of the escrow fund for personal reasons or mixes it with their own funds, they are in violation of their fiduciary responsibilities and could be accused of legal negligence.
Imagine, for instance, that a client hired an attorney to represent him in a lawsuit filed against a driver whose car struck them while crossing the street. The client is able to prove the driver's negligence and the collision caused the injuries they sustained. Their lawyer, however, fails to comply with the law and is unable to file the case on time. The lawsuit is dismissed and the victim suffers financial losses as a result of the lawyer's mistake.
The statute of limitations limit the amount of time you can sue an lawyer for malpractice. This can be difficult to determine if an injury or loss was caused by the attorney's negligence. A licensed New York attorney with experience in the field of malpractice law can explain the statute of limitations to you and assist you determine if your situation is suitable for a legal malpractice lawsuit.
Failure to adhere to the rules of professional conduct
Legal malpractice occurs when an attorney does not adhere to generally accepted professional standards, and inflicts harm on the client. It is based on the same four elements that are common to all torts, including an attorney-client relationship, a duty, a breach, and proximate causation.
Some examples of malpractice are a lawyer mixing their personal and trust account funds, failing to bring suit within the timeframe of the statute of limitations and taking on cases where they are not competent, not conducting a conflict-check, and not keeping up-to-date with court proceedings or new developments in law that may affect the case. Lawyers also have a responsibility to communicate with clients in a reasonable way. This does not only include emails and faxes, but also returning telephone calls promptly.
Attorneys can also commit fraud. This could be done by lying to the client, or to anyone else involved in the case. In this instance it is imperative to have the facts in your possession to determine if the lawyer was being dishonest. A violation of the agreement between an attorney and a client occurs when an attorney takes a case outside their expertise without informing the client or suggesting they seek independent counsel.
Failure to Advise
When a client employs an attorney, it means they've reached the point at which their legal situation is beyond their own skill and experience and that they are unable to solve it on their own. The lawyer's job is to inform clients about the merits of a case, the costs and risks associated with it, and their rights. If a lawyer fails to perform this, they could be liable for malpractice.
Many legal malpractice cases stem due to poor communication between attorneys and their clients. An attorney might not return a the phone or fail inform their clients about a specific decision taken on their behalf. An attorney may also be unable to share important information about a case or fail to divulge any issues with an transaction.
A client can sue an attorney if they've suffered financial losses due to the lawyer's negligence. The losses must be documented. This requires evidence, like email files and client files, or any other correspondence between an attorney and a client as well bills. In cases of theft or fraud it could be required to get an expert witness to look into the case.
Failure to Follow the Law
Attorneys are obligated to follow the law and understand how it applies in specific circumstances. They could be found guilty of malpractice if they don't. Examples include mixing client funds with their own or using settlement proceeds to pay personal expenses, or failing to perform basic due diligence.
Other instances of legal misconduct include failure to file a lawsuit within the statute of limitations or missing deadlines for filing with the court and not adhering to the Rules of Professional Conduct. Attorneys are also required to disclose any conflict of interest. They must disclose to clients any personal or financial interest that could affect their judgment when representing them.
In addition, attorneys are required to abide by the instructions of their clients. Attorneys must follow instructions from clients, unless it is clear that the action is not beneficial.
To win a malpractice lawsuit the plaintiff has to prove that the lawyer violated their duty of care. This can be difficult since it requires proof that the defendant's actions or inaction resulted in damages. It's also not enough to prove that the result of the attorney's negligence was bad in order for a malpractice claim to succeed, it needs to be demonstrated that there's an excellent chance that the plaintiff could have won the case should the defendant followed the accepted practice.