In every profession people make mistakes. Lawyers make them too, because in a profession as complex and comprehensive as the law, mistakes are inevitable. Correction is possible in most cases and is not too costly if done in a timely manner. But sometimes an error can be so serious and devastating that it damages or fully destroys the client’s case. From that moment the error becomes a malpractice case. Overcharging, ethical problems and legal malpractice are not confined to “bad lawyers,” but rather lawyers in well-respected, large companies can also commit malpractice, overcharge and have ethical issues. Large firms have more attorneys employed and have less control over employees within the company’s infrastructure. Paralegals and associates are often allowed to take too much participation in serious cases that need the experience of a professional lawyer.
The word “malpractice” is applicable to any profession, within which a professional has caused harm. The term “negligence” is also used for this type of case. More specifically, it happens when an attorney has handled the case so badly and so poorly represented the client that the lawyer’s conduct has fallen beneath the standard of practice of other lawyers in the area handling similar cases.
In order to prove the lawyer is liable for the malpractice and damage in your case, you would need to prove one of the three major theories of liability: negligence (literally malpractice, missing an important statute that could play a major role in the client’s case), breach of fiduciary duty (fiduciary duty is a duty when a client entrusts something to the renderer of the services, such as money given to the broker as an investment), breach of contract (an interruption of contract for various reasons).
Malpractice can occur in many various ways and it covers every area of law – from acquisitions to zoning. Often times the nature of malpractice is clear. Here is a basic example: an attorney misses a critical statute of limitations and the client’s case is lost permanently. In practice it is more complex, as the misconduct is more subtle and nearly always requires expert legal witness to establish the fact of a legal malpractice. One way or another, clear or complicated, when this professional misconduct has induced or caused damage to a client’s case two things become necessary: prove the lawyer’s misconduct and prove what the outcome of the case would have been in the absence of the lawyer’s negligence. This is commonly called a “case within the case” factor. Often times, the requirement is the trial for the underlying case in the trial of the legal malpractice case. This is the top reason why legal malpractice cases are so difficult and expensive to handle.
Hans has successfully handled a number of legal malpractice cases for his clients, some involving claims where the malpractice occurred 15 years ago.
If my last lawyer lost my case, settled for less than I wanted, or was the reason I lost money, can I sue him or her?
It depends. Simply because there was a poor result in your case does not mean that the lawyer did something wrong. The practice of law is an art, not a science. A lawyer can do everything correctly and still be unsuccessful. A lawyer can do things wrong and still achieve a good result. The test is whether the lawyer did what a “reasonably prudent lawyer practicing in the same or similar circumstances” would have done. If you believe your former attorney was negligent and you suffered a loss as a result, please contact our office for a free consultation.
How long do I have to file a legal malpractice case?
Generally, you only have one year from the date you knew or should have known of the malpractice. But, as with all limitations questions, this date is difficult to determine with certainty. For example, if the negligence was in a case involving litigation, you have one year from the date the damages are “fixed and non-speculative.” This may mean the statute doesn’t even start to run until several years after the malpractice occurs. It is always best to speak with an attorney experienced in legal malpractice. Feel free to give us a call.
Are all lawyers required to carry legal malpractice insurance?
In Kentucky, the answer is “no.” In fact, not only are lawyers not required to carry legal malpractice insurance, but they don’t have to disclose the fact they don’t carry legal malpractice insurance unless you ask them. This means that one of the most important things you can do when hiring a lawyer is to ask him or her whether they carry legal malpractice insurance. We carry a significant amount of legal malpractice coverage at The Poppe Law Firm®. Fortunately, we have never had to use it!
I'm having problems with my attorney. He won't return my phone calls, and he won't respond to my letters. I'm very concerned about my case and not sure what, if anything, my attorney is doing on my case. What can I do about this?
Well, the answer to this question depends on a number of things. Sometimes attorneys are so focused on working on the case they do a poor job communicating to the client what is happening on a day to day or month to month basis. This doesn’t mean the attorney isn’t actively and diligently working on your case, it simply means they are busy working, not communicating. Most of the time, a simple phone call or letter to your attorney setting forth your concerns is enough to help the lawyer understand it’s important for him or her to keep you informed. Most lawyers only let their clients know when something important is happening in the case, even though they are handling lots of necessary, but boring day to day tasks necessary to move the case forward.