How to Sue Your Attorney for Malpractice

To sue your attorney for malpractice, you must demonstrate that the breach of duty resulted in financial, legal or other negative effects for you. You must prove a direct connection between the attorney's negligence and the negative outcome.

Strategies do not qualify as legal malpractice, but the lawyer you hire fails to file a lawsuit within the timeframe and you lose the case this could be a type of malpractice.

Inappropriate use of funds

One of the most frequent types of legal malpractice involves the misuse of funds by lawyers. Attorneys are bound by a fiduciary duty to their clients and must act with trust and fidelity when handling money or any other property that the client has entrusted them with.

If a client pays their retainer, the lawyer is required by law to put that money in a separate escrow account that is exclusively intended for the specific case. If the attorney co-mingles the account with personal funds or makes use of it for any other purpose, this is a clear breach of fiduciary duty, and could constitute legal negligence.

Imagine, for instance, that a client hires their attorney to represent them in an action against a driver who hit them as they were walking along the street. The client has proof that the driver was negligent and could show that the accident caused their injuries. Their lawyer 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 time to sue an attorney for malpractice is limited by a statute of limitation which can be difficult to determine in cases where an injury or loss resulted from the negligence of the attorney. A New York attorney who is skilled in malpractice law will be able to explain the statute of limitation and help you decide if you are eligible for a lawsuit.

Infractions to the rules of professional conduct

Legal malpractice occurs when an attorney does not adhere to the generally accepted professional standards and inflicts harm on the client. It is based on the same four elements as the majority of torts, including an attorney-client relationship, a duty, a breach, and proximate causation.

Some typical examples of malpractice are a lawyer mixing their personal and malpractice law firms trust account funds, failing in time to bring suit within the time limit and taking on cases in which they aren't competent, not performing a conflict check, and not being up-to-date with court proceedings or any new developments in law that could impact the case. Lawyers must communicate with their clients in a reasonable manner. This does not only include the use of faxes and email, but also answering phone calls promptly.

It is also possible for attorneys to engage in fraud. It can be done by lying to the client or any other person involved in the case. In this situation it is imperative to have all the facts at the hands of the investigator to determine if the lawyer was untruthful. A violation of the agreement between an attorney and a client occurs when an attorney takes a case outside their area of expertise without advising the client or suggesting they seek independent counsel.

Inability to inform

If a client decides to hire an attorney, it indicates that they've reached the point where their legal situation is beyond their expertise or experience and they are unable to solve it on their own. The lawyer is obliged to inform clients of the benefits of the case, the risks and costs involved, as well as their rights. An attorney who fails to do so may be guilty.

Many legal malpractice claims result from poor communication between attorneys and their clients. For example an attorney may not return calls or fail to inform their clients of the decision made on their behalf. An attorney might not be able to communicate crucial details regarding a particular case, or fail to reveal any problems with transactions.

It is possible to claim a lawyer's negligence, however, a client must prove that they have suffered real financial losses because of the negligence of the lawyer. These losses must be documented, which requires evidence such as client files, emails and other correspondence between the lawyer and the client, as well as bills. In the case of fraud or theft it could also be required to have an expert witness examine the case.

Inability to Follow the Law

Attorneys must adhere to the law and be aware of what it means in specific situations. They could be found guilty of malpractice in the event that they fail to follow. Examples include mixing client funds with their own using settlement proceeds to pay for personal expenses and not doing basic due diligence.

Other instances of legal malpractice are failure to file a suit within the statute of limitation and missing court filing deadlines and not observing the Rules of Professional Conduct. Attorneys are also obligated to disclose any material conflicts of interest. This means they must inform clients of any financial or personal interests that might affect their judgment when representing them.

Attorneys are also required to follow instructions from their clients. If a client instructs them to take particular action, the attorney must follow the instructions, unless there's an obvious reason why it would not be beneficial or even feasible.

To win a malpractice lawsuit the plaintiff must demonstrate that the lawyer violated their duty of care. It can be difficult to prove that the defendant's lapses or actions resulted in damage. It is not enough to prove that the attorney's negligence caused a negative outcome. A malpractice claim must also demonstrate that there was a significant likelihood that the plaintiff's lawsuit could have been settled if the defendant had followed standard procedures.