How to Sue Your Attorney for Malpractice
If you wish to sue your attorney over malpractice, you must prove that the breach of duty resulted in legal, monetary or other negative effects for you. It's not enough to show that the negligence of your attorney was injurious it is also necessary to establish a direct link between the breach and the undesirable outcome.
Legal malpractice doesn't include issues of strategy. However, if you lose a case due to your lawyer was not able to submit the lawsuit on time, this could be malpractice.
Use of funds in a fraudulent way
Misuse of funds by a lawyer is among the most common forms of legal fraud. Attorneys are bound by a fiduciary duty to their clients and must behave with trust and fidelity when handling money or other property that the client has entrusted them with.
If a client is required to pay their retainer, the lawyer is required by law to place that money in an fund for escrow that is exclusively used for that particular case. If the attorney combines the escrow account with personal funds or makes use of it for other purposes it is a clear breach of the fiduciary obligation and could constitute legal misconduct.
As an example, suppose that a client employs their attorney to represent them in a lawsuit against a driver who struck them as they were walking across the street. The client can prove the driver's negligence and the accident led to the injuries they sustained. However, their lawyer is not aware of the statute of limitations and is incapable of bringing the case within time. Consequently, the lawsuit is dismissed and the party who was injured is financially harmed due to the lawyer's error.
The time for suing an attorney for
malpractice is limited by a statute of limitations which can be difficult to calculate in a case where a loss or injury occurred as the result of the negligence of the attorney. A New York attorney who is experienced in malpractice law will be able to explain the statute of limitation and assist you in determining if you have a case which is suitable for an action.
Do not follow the professional rules of conduct
Legal
malpractice attorneys occurs when an attorney fails to adhere to generally accepted professional standards and causes harm to the client. It is the result of four elements of most torts: an attorney-client relation, a duty, breach and the proximate cause.
Some typical examples of malpractice are a lawyer mixing their personal and trust account funds, failing to timely file suit within the time limit or taking on cases in which they are not competent, not performing a conflict check, and not keeping up-to-date with court proceedings or other developments in the law that could impact the case. Lawyers also have a responsibility to communicate with clients in a fair manner. This isn't just limited to email and fax and includes also returning phone calls promptly.
Attorneys can also commit fraud. It can be done in a variety of ways, such as lying to the client or anyone involved in a case. In this instance it is crucial to have the facts on your possession to determine if the attorney was being deceitful. A violation of the agreement between an attorney and a client occurs when an attorney is able to handle a case outside their area of expertise without informing the client about it or informing them to seek out independent counsel.
Inability to advise
When a client employs an attorney, this means they have reached the stage where their legal issue is beyond their ability and experience and they can no longer resolve it by themselves. It is the attorney's responsibility to provide advice to clients regarding the merits of a particular case in addition to the costs and risk involved, as well as their rights. Lawyers who fail to do so may be found guilty.
Many legal malpractice cases result from a lack of communication between lawyers and their clients. For instance, an attorney might not return calls or fail to notify their clients of a decision taken on their behalf. An attorney may also be unable to provide important information regarding an instance or fail to divulge any issues with the transaction.
A client can sue an attorney if they have suffered financial losses due to the negligence of the lawyer. These losses must be documented, which requires documents such as client files emails, correspondence between the lawyer and the client, along with bills. In the case of fraud or theft an expert witness could be required to review the case.
Inability to Follow the Law
Attorneys must follow the law and be aware of how it applies to specific circumstances. If they fail to do so and they don't, they could be found guilty of misconduct. Examples include commingling client funds with their own or using settlement proceeds for personal expenses, or not performing basic due diligence.
Other instances of legal malpractice are failure to file a lawsuit within the statute of limitations and not filing the suit by the deadlines set by the court and not adhering to the Rules of Professional Conduct. Attorneys must disclose any conflicts of interests. They must disclose to clients any financial or personal interest that could influence their judgement when representing them.
Finally, attorneys are obligated to follow the instructions of their clients. If a client instructs them to take a specific action, the attorney must follow those instructions unless there is any reason that suggests it is not beneficial or even feasible.
To prevail in a
malpractice lawsuit, the plaintiff has to show that the lawyer acted in violation of his duty of care. It can be challenging to prove that the defendant's lapses or actions caused damage. It's also not enough to prove the result of the negligence of the attorney was detrimental to be able to prove a malpractice claim. to be successful, it must be proven that there is a high likelihood that the plaintiff would have prevailed when the defendant had acted in accordance with the usual procedure.