How to Sue Your Attorney for Malpractice
To sue your attorney for
malpractice, you must prove that their negligence caused financial, legal or other negative effects for you. You must demonstrate a direct connection between the attorney's negligence and the negative result.
Matters of strategy do not be considered legal malpractice, but if your lawyer does not file a lawsuit in time and you lose the case that could be a sign of malpractice.
Inappropriate use of funds
One of the most popular types of legal malpractice involves the misuse of funds by lawyers. Attorneys are bound by a fiduciary obligation to their clients and must act with trust and fidelity when handling money or other assets that the client has given them.
When a client pays a retainer, their attorney is required to place the money into an separate escrow account specifically designated for the specific purpose of the case only. If the attorney utilizes the escrow funds for personal purposes or co-mingles it with their own funds, they are in violation of their fiduciary responsibilities and could be charged with legal malpractice.
For example, imagine that a client hires their attorney to represent them in an action against a motorist who hit them while they were walking along the street. The client has the ability to prove driver's negligence and the collision resulted in the injuries they sustained. However, their lawyer misses the statute of limitations and is unable to file the case within time. The lawsuit is dismissed, and the injured party is liable for financial loss as a result of the lawyer's error.
The time for suing an attorney for malpractice is limited by a statute of limitation that can be difficult to calculate in a situation where an injury or loss was the result of the negligence of the attorney. A New York attorney who is skilled in malpractice law will be able to explain the statute of limitations and help you determine if you have a case that is eligible for an action.
Infractions to the rules of professional conduct
Legal malpractice occurs when an attorney does not adhere to generally accepted standards of professional conduct, and inflicts harm on the client. It is a requirement of the four elements of most torts: an attorney-client relationship the breach of a duty and the proximate cause.
Some common instances of misconduct include a lawyer who has a personal and trust account funds, failing in time to file suit within the time limit, taking on cases where they are not competent, not conducting a conflict check, and not staying up to date with court proceedings or any new developments in law that could affect the case. Lawyers also have a duty to communicate with clients in a reasonable manner. This doesn't just mean the use of faxes and email, but also resolving telephone calls promptly.
It is also possible for attorneys to commit fraud. It can be done in a variety of ways, such as lying to the client or to anyone else involved in the case. It is crucial to know the facts so that you can determine if the attorney is deceitful. It also constitutes a breach of the contract between attorney and client if an attorney accepts cases that are outside of their area of expertise and does not inform the client of this or advise them to seek separate counsel.
Inability to advise
If a client decides to hire an attorney, it means they have reached the stage where their legal problem is beyond their ability and experience and they are no longer able to resolve it on their own. The lawyer has a duty to inform clients about the benefits of the case, the potential risks and costs involved, as well as their rights. When an attorney fails to perform this, they could be guilty of malpractice.
Many legal
malpractice lawyer claims stem from of poor communication between lawyers, and their clients. An attorney may not return phone calls or fail to inform their clients of a specific decision that they have made on their behalf. An attorney could also fail to communicate important details about a case or fail to reveal any problems with an transaction.
A client can sue an attorney if they've suffered financial losses as a result of the negligence of the lawyer. The losses must be documented, which will require documents such as client files, emails and other correspondence between the lawyer and the client, as well bills. In cases of theft or fraud it could be required to engage an expert witness to review the case.
Failure to Follow the Law
Attorneys are required to follow the law and know the way it is applied in particular circumstances. They could be found guilty of malpractice if they don't. Examples include combining funds from clients with their own, or using settlement proceeds to pay personal expenses, or failing to exercise basic due diligence.
Another instance of legal malpractice includes the failure to file a lawsuit within the timeframe of limitations, ignoring deadlines for filing in court and not adhering to the Rules of Professional Conduct. Attorneys must also disclose any conflicts of interests. This means they must inform clients of any personal or financial interests that might affect their decision-making process when representing them.
Additionally, attorneys are required to follow instructions from their clients. If a client asks them to take a specific action, the attorney must follow those instructions unless there is an obvious reason to believe that it is not beneficial or possible.
In order to prevail in a malpractice case the plaintiff must prove that the lawyer violated his duty of care. This can be difficult since it requires proof that the defendant's actions, or inaction, caused damages. It isn't enough to demonstrate that the attorney's wrongful actions led to a poor outcome. A malpractice claim must prove that there was a high likelihood that the plaintiff's case would have been successful if the defendant had followed the standard procedure.