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What is legal malpractice?

legal malpractice
Image credit: Nick Youngson (http://www.nyphotographic.com/)

People who hire an attorney to file a claim or who need guidance or legal representation on another legal matter are likely to assume that their attorney will represent their best interests. Individuals trust that their attorney will file a case or documents such as various motions within any required time frame. Do clients simply walk away if their lawyer makes serious mistakes such as not filing a claim or document on time, or when the lawyer breaches their duty of care in another manner?

There are legal statutes that protect clients from careless errors or negligence by attorneys. These rules may lead to a new claim that clearly shows that the first attorney has no legal malpractice defense. A reputable, trusted attorney may be able to help a client seek and recover damages from an attorney or law firm that commits legal malpractice. There are several important aspects of malpractice that an individual needs to understand if they believe that they may have a legal malpractice case against an attorney.

What is legal malpractice?

The definition of what constitutes legal malpractice may vary somewhat among different sources, but is often similar in nature. The Cornell Law School Legal Information Institute indicates that legal malpractice occurs when an attorney breaches their duty of care to their client, and when the client was harmed as a result of that breach. The Legal Information Institute provides several examples of how some states define a cause of action for legal malpractice.

All lawyers follow a specific code of ethics that is unique to their specific state of licensure. These codes that guide the obligations of every attorney may be relevant in the event that a client files a legal malpractice claim.

The State of Michigan malpractice claims may arise out of the common law or from the Michigan Rules of Professional Conduct. The state is specific in its definition of malpractice in the Rules of Professional Conduct, which is taken in part from the American Bar Association’s Model Rules of Professional Conduct. The Rule 1.1 Competence section specifically provides information that a malpractice attorney or the court may consider if a client files a legal malpractice claim. The rule requires that a lawyer must “provide competent representation to a client.” The attorney must adequately prepare to handle each case. Additionally, the attorney is not permitted to handle a case that the attorney is not competent to handle and shall not, under Rule 1.1(c) “neglect a legal matter entrusted to the lawyer.”

Rule 1.3 requires that an attorney “shall act” with reasonable diligence and with reasonable promptness when representing a client. The attorney that you hire is bound to obey the requirements set forth in the law, including that he or she is expected to be “competent, prompt and diligent.”

One example of a potential violation of this rule may come when the attorney who represents you in a legal malpractice claim informs the court that the first attorney did not file the original legal claim, such as a personal injury claim, prior to the expiration of the statute of limitations, or that the attorney did not file the claim at all.

Another issue that may be part of a legal malpractice claim concerns the communication between the attorney and client. Lawyers that do not notify clients of all evaluations of the particular case, about settlement offers or proposed plea bargains may find themselves facing serious issues once their client hires an attorney to represent their interests in a malpractice claim.

What happens when an attorney makes mistakes?

Lawyers may make an honest mistake that does not meet the standards for filing a malpractice claim. The American Bar Association points out that although attorneys sometimes make mistakes, some mistakes that are made by lawyers have become the top reason for claims and losses.

Many attorneys may seek help from another attorney to correct the mistake. The attorney may contact their client and apologize, while seeking to correct the mistake as soon as possible. Some attorneys fail to report the mistake, whether unintentional or an intentional act, such as ignoring required dates or failing to file a claim. Failing to perform the duties set by professional standards, failing to file a lawsuit or to notify a client are potential causes for a legal malpractice claim. Contacting a lawyer who has expertise in legal malpractice can guide you to the next step if you believe that you are a victim of legal malpractice because of the negligence of an attorney.

It is important to understand that the rules explain that a new lawyer may be as competent to handle a legal matter for a client as an experienced attorney. The fact that an attorney has less experience does not mean that the lawyer has any less responsibility to provide competent representation, and is no less responsible for complying with the Rules of Professional Conduct than a more experienced attorney.

There are several types of common claims that are associated with malpractice. The failure of an attorney to know or to properly apply the law is one of the most common mistakes that results in a claim. Examples of other issues that may contribute to a malpractice claim include planning mistakes, failure of the attorney to properly investigate or uncover facts that could have likely led to a positive outcome of the original claim.

The Michigan Rules of Professional Conduct further provides a variety of other rules that govern the attorney’s rules of conduct, and the attorney-client relationship. Some additional rules include:

  • Scope of representation
  • Rules related to a conflict of interest
  • General rule related to imputed disqualification
  • Declining or terminating client representation
  • Certain transactions
  • Maintaining the integrity of the legal profession

Rule 3.1 Meritorious Claims and Contentions explains in the comment section that while an attorney is not permitted to file a frivolous lawsuit or to defend a frivolous lawsuit, an attorney has a responsibility, as an advocate, to “use legal procedure for the fullest benefit of the client’s cause, but also has a duty not to abuse legal procedure.” Attorneys are required to inform themselves of the facts that are relevant to each client’s case, and to determine if they are able to make a good faith argument that supports their client’s position. Do you feel that your attorney failed to comply with this rule? Discuss it with the attorney who represents you in your claim of legal malpractice.

Starting the process of a legal malpractice claim

It is understandable that some individuals may not feel confident when seeking an attorney to help them with a legal malpractice claim. The person who feels that they did not have proper legal representation in their original claim, or who had their case dismissed because the attorney did not file their claim on time or at all may hesitate to trust another attorney.

There are several ways that you can regain your confidence to trust an attorney in order to determine the ideal attorney to help you in a possible malpractice claim. Do not just contact the first law firm or attorney in private practice who is the first name on the results of your search list. Look for attorneys who have experience in handling legal malpractice claims. Some review sites have detailed reviews about attorneys who have satisfied clients. Make an appointment for a consultation before making final decisions related to starting a claim against your former attorney.

Some other ways to help you to find the right attorney include:

  • Look for an attorney who has a reputation for being honest and trustworthy
  • Ask the attorney if you have a case and if the claim will likely be settled or go to court
  • Seek the services of an attorney who values the attorney-client relationship
  • Make sure that the attorney answers all of your questions to your satisfaction
  • Ask the attorney how they can help you with your legal malpractice claim
  • Ask how often the attorney will contact you about the status of your claim

Do not assume that you have a claim for malpractice just because you do not like the outcome of your original legal case.

Any person that is considering filing a claim of malpractice against an attorney needs to know that there is a statute of limitations. The person must bring the action for legal malpractice within two years from the date that the attorney no longer represents the plaintiff, or within six months from when the person discovered, or should have known of the possibility of filing a legal malpractice claim against the original attorney.

Individuals that have comparative negligence related to the original claim may not be successful in a legal malpractice claim in the State of Michigan.

The case within a case

Perhaps you have heard of the phrase “case within a case.” A person who files a legal malpractice claim is often thought of as having this type of case. The attorney never filed your original claim, or the court dismissed your original claim because the attorney filed the claim too late, or you lost your case based on what you believe was negligence on the part of the attorney who failed to provide the required standard of care.

You cannot restart the original claim, such as a personal injury claim that you filed to recover damages in a case based on another individual’s negligence. The reason that malpractice against an attorney is sometimes referred to as a case within a case is that the new attorney is often able to recover damages that would be equal to the amount that would likely have been recovered in the first claim but for the negligence of the original attorney. Some examples of potential damages that may be recoverable in this situation include an amount that covers the client’s medical expenses, lost wages, future care, and additional damages for pain and suffering.

Speak to a trusted, experienced attorney who can advise you about legal malpractice and can determine whether you may be successful in recovering damages in this type of case.

How do I prove my legal malpractice claim?

Did the original attorney inform you that you did not have a case and refused to take the case? Did you refuse a settlement and then lose your original case in court? The fact that an attorney refused to take your case based on the belief that you did not have a valid claim, or the fact that you refused a settlement and then lost your case when it went to trial does not mean that you have a claim of legal malpractice against your attorney.

You must have had an attorney-client relationship. You must be able to prove that the attorney committed a violation of the standard of care. This means that the attorney that you hired to represent you failed to do what an attorney using sound judgement would have done if in the same or similar circumstances, or that the attorney took some action that another attorney would ordinarily not have taken in the same or similar circumstances.

You, as the complainant or plaintiff in a malpractice claim against a lawyer, must show that but for that lawyer’s malpractice, the plaintiff would have been successful in their underlying, or the original legal claim.

Do the professional standards or the state statutes mean that if your attorney violates any of these laws or professional standards, that you will automatically win your legal malpractice claim? No, that is not true. There are many factors and details of the claim that the courts must consider on a case-by-case basis.

The attorney who represents you in your legal malpractice claim will gather information from you, gather evidence about your former claim, and what happened when you hired the attorney to handle the former claim. Legal malpractice claims, like some other types of legal claims, are often settled without ever going to trial. The lawyer who represents you in the malpractice claim will advise you about your options and the best path forward in the matter.

One important fact to note is that Law360 indicates that there is a recent increase in the number and the size of legal malpractice claims. The information came from a survey of several professional liability insurers, who reported seeing as much as double-digit increases in the number of filed claims. This information does not necessarily mean that you will win a legal malpractice claim against a former attorney. No attorney that represents you can guarantee that you will win a legal malpractice claim, the same as they cannot guarantee that you will win a personal injury case or another type of legal claim.

The attorney who represents you in your malpractice claim will gather any relevant information from your witnesses. Make sure that you inform the attorney about anyone who may be able to help you prove your malpractice claim. The new attorney reviews the evidence relative to the former claim, and the outcome of that first legal claim. Trust an attorney who has experience fighting for their clients and seeking the best possible outcome in every case, including in a legal malpractice claim.

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