A Word About Gender
1. American Bar Association Malpractice Study
2. Rules of Professional Conduct
3. Attorney and Client Responsibilities
4. Competence and Scope of Representation
5. Diligence and Communication
6. Conflict of Interest and Fiduciary Duty
7. Ex Parte Proceedings and Pro Se Advocacy
8. Substantive Acts of Malpractice
9. Administrative Acts of Malpractice
10. Acts of Malpractice Due to Client Relations
11. Intentional Acts of Malpractice
12. A Question of Fees
13. Getting Even—Making a Malpractice Claim
B. Barrister Blunders—A Guide to the Common Errors Attorneys Make
C. Research—Your Tool for Success
D. Statute of Limitations Applicable to Legal Malpractice
About the Authors
Why in the world would you ever want to sue your lawyer? Hopefully, the relationship between you and your lawyer (or firm of lawyers) is an amicable one, especially during the course of a lawsuit, business transaction, or personal legal matter. And, hopefully, in representing you, your legal counsel will have acted professionally and responsibly. But what happens if your relationship with your lawyer deteriorates? What if he or she undertakes your case, receives payment, but fails to perform to professional standards? Or what if you discover that had your lawyer researched the legal issue at the heart of your case more thoroughly (or had consulted with an expert), the outcome of your case might have been more in your favor? Or, in the worst-case scenario, what happens if you lose your case, not because the facts were against you, but because your lawyer was inept, negligent, or in breach of his or her legal and ethical responsibilities to you? The failure of your attorney in the proper discharge of his or her duty is called legal malpractice.
This book can help you protect yourself from the negative effects of a lawyer’s lapses in judgment or, even worse, malpractice. As they say, “To be forewarned is to be forearmed.” In the parlance of the legal community, this is called loss prevention, and lawyers use it to protect themselves from the very strategy discussed in this book. This book is also designed to arm you with the tools to “get even” or at least get compensated for your lawyer’s misdeeds, miscalculations, and mistakes, if necessary.
So, what things can go wrong in the handling of your legal matter? The American Bar Association (ABA) study detailed in Chapter 1 provides some insight into the four most prevalent categories of errors made by the legal community. These are substantive errors, administrative errors, client relations errors, and intentional wrongs (not a pleasant thought).
Chapter 2 outlines the professional rules of conduct for the legal community established by the American Bar Association. These rules have been adopted or substantially adopted by the state bar associations. As you’ll learn, the state bar associations in many states are regulated by the state Supreme Court (or intergrated bar), which promulgates—proposes and enforces—rules, regulations, and ethical standards. The state Supreme Court also polices the conduct of the lawyers admitted into the bar for that state. Because lawyers are being asked to review the conduct of their peers, this may not be seen as a favorable situation for the lay community. Unbiased peer review can be clouded by the feelings of kinship among members of a profession. Many committees do have lay members, however. Bar grievance committees review and recommend actions or sanctions against irresponsible attorneys, but they do not afford financial relief.
Chapter 3 describes an attorney’s legal responsibilities to his or her clients. This includes official state bar requirements for continuing education. Continuing education is essential because the law is fluid; changes take place on an ongoing basis. The legislature amends existing laws and codifies—places into written law—new laws at each session. Precedents—judicial decisions—are often handed down when an appellate court or Supreme Court makes a ruling that reverses or clarifies a lower court’s decision. Even court rules change from time to time, which may have an impact on your case or on the procedures necessary to bring your case to a conclusion. Of course an attorney’s responsibilities go well beyond continuing education, and you, as a client, also have certain responsibilities. So read this chapter carefully to know what to expect from your lawyer and what your lawyer expects from you.
Chapter 4 turns to the companion subjects competence and scope of representation. This chapter will help prepare you to evaluate a lawyer’s legal knowledge and skills to determine if he or she is the right lawyer for your case. This chapter also outlines the range in which a lawyer can operate on your behalf and the limits of your business relationship.
Chapter 5 alerts you to the pitfalls of a lawyer’s lack of diligence—failure to provide the attention and care legally required—and lack of client communication. You’ll learn how to recognize when your lawyer is not giving your case or matter the attention it requires, as well as how important it is to avoid a breakdown of communication.
Conflict of interest can doom attorney-client relationships from the start. Chapter 6 covers the rules and pitfalls of conflicts that can lead to malpractice. This chapter also discusses the all-important subject of fiduciary duty, which includes a lawyer’s responsibility to protect any property belonging to a client that may be in his or her possession as well as keeping a client’s information confidential.
Chapter 7 deals with the possibility of your representing yourself in a legal matter. This is known as acting pro se. Along with this discussion is the companion subject ex parte. You’ll learn what takes place at an ex parte proceeding—usually a hearing before a judge when one party to a case is absent. This is an important subject, especially if you are a pro se litigant.
Chapters 8, 9, 10, and 11 discuss the four most prevalent areas of abuse by lawyers: substantive acts of malpractice, including failure to know the law, planning errors, and conflict of interest; administrative acts of malpractice, including failure to calendar, procrastination, and clerical errors; acts of malpractice as a result of client relations, including failure to obtain client’s consent and failure to follow instructions; and intentional acts of malpractice, including fraud.
Chapter 12 covers a frequent impasse in the attorney-client relationship: legal fees. It discusses the history of legal billing and how the “billable hour” evolved. It also discusses alternative billing systems and fee agreements that may be used.
If you suffer damages due to your attorney’s incompetence, ignorance, or negligence despite all your precautions and cooperation, turn to Chapter 13. This chapter will help you determine if you have a cause of action. Black’s Law Dictionary defines a cause of action as “the fact or facts that give a person a right to judicial relief; the legal effect of an occurrence in terms of redress to a party to the occurrence.” If you have a valid cause of action (or causes of action), this chapter goes on to describe your remedies, which may include placing your lawyer on notice that you plan to file a bar complaint, demanding a fee reduction, and taking legal action. If you’ve been damaged, this final chapter will guide you step by step through the process of “getting even.” It will help you seek financial compensation for the harm your attorney’s negligence caused you.
Some of the chapters close with cases in point—synopses of actual cases that apply to the topic of the particular chapter. You’ll learn how the decisions in these cases have become part of our American body of law.
Appendix A contains a glossary of terms used throughout this book, as well as some additional terms you may encounter while researching your case. Appendix B is an informative guide to the common errors that attorneys make in various areas of the law. Being aware of these mistakes may help you and your attorney avoid them. In Appendix C, you’ll learn how to use a law library. Knowing how to research the prosecution and defense positions in your case can be your secret weapon when dealing with your lawyer. With the information you find there, you’ll be able to determine if your lawyer did, or is doing, a competent job representing you. Appendix D presents the statute of limitations on legal malpractice actions for each state.
Whether you have been badly damaged by your lawyer’s actions or inaction, by his or her lack of legal knowledge or diligence, or if you just want to know what to expect from your lawyer to raise your comfort level, How & When to Sue Your Lawyer is for you. No longer do injured clients have to suffer in silence. This book will provide the means to replace disappointment, aggravation, and seeming futility with a course of action that may lead to satisfaction.