Legal Malpractice
What happens when you hire a lawyer, and do not like the service being provided? Typically, people are unhappy with their attorneys when the attorneys do not communicate properly with their clients; if they fail to attend deposition or court hearings; if it is revealed that they are friends with opposing counsel or the opposing party in the suit; when more than the agreed fee is charged, or the work is poorly done.Proving Legal Malpractice
In cases of legal malpractice, one generally needs to prove gross negligence in the performance of legal duties. Another instance arises if the attorney violates the basic tenets of the attorney-client relationship, such as stealing the client’s retainer fees. If it can be proven that the attorney’s mishandling of a court case resulted in an outcome injurious to the client, then legal malpractice may be claimed. In other words, if an attorney’s arguments and conduct in court led the plaintiff to suffer injustice, malpractice could certainly be argued, though it might be hard to prove.
If you truly believe that legal malpractice is indicated, how should you handle the situation? First, you will need to gather as much information as you can about the case to determine if your attorney is doing all he or she can for you. As in medical situations, if you are concerned about what they are doing for you, you can always get a second opinion by consulting another attorney. If necessary, you can fire your attorney and hire a new one. And finally, you can sue for malpractice, particularly if you have lost a great deal of money.
Filing a Legal Malpractice Suit
When legal malpractice suits are put forth, the resulting trial can often be termed “a case within a case.” In such circumstances, much of the discussion centers around whether or not the plaintiff’s case could have been won, were it not for the actions, inactions, or misdeeds of the attorney in question. It is also noteworthy that the attorney might invoke attorney-client privilege in defending against their purported negligence.
In addition, according to the Attorney Judgment Rule, mere mishandling of the case might not be enough if the attorney acted in good faith, and merely, in hindsight, was found to have made a mistake in judgment. Legal malpractice refers to gross or willful negligence. In addition, attorneys cannot be charged with legal malpractice if they did not know about a recent change in a pertinent law.
It can often be difficult -- and costly -- to find an attorney who will take a malpractice case, as many lawyers may be reluctant to prosecute one of their colleagues. However, the American Bar Association Cannons of Ethic and Model Code states that attorneys must not decline to take cases against other lawyers when their clients have been wronged. Therefore, there are certainly attorneys out there who will (and do) take such cases.
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