Attorney-Client

Suing Your Lawyer for Malpractice

When a lawyer screws up, you may want to sue him, but proving malpractice isn't easy.

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When you reach the point of needing an attorney’s expertise, it usually means that some situation --
whether at work, in the neighborhood, with the family, or elsewhere -- has gotten too complex to
resolve on your own. You turn to a lawyer and trust she will help. But what do you do when the lawyer
makes things worse instead of better? If you've lost confidence in your attorney and are considering
suing for malpractice, here are some things you should know.

Proving Malpractice Isn’t Easy

If your attorney made serious errors, you may consider suing the lawyer for malpractice. Unfortunately,
it is very hard to win a malpractice case. Malpractice means that the lawyer failed to use the ordinary
skill and care that would be used by other lawyers in handling a similar problem or case under similar
circumstances. In other words, it’s not malpractice just because your lawyer lost your case.

To win a malpractice case against an attorney, you must prove four basic things:

duty -- that the attorney owed you a duty to act properly

breach -- that the attorney breached the duty: she was negligent, she made a mistake, or she did not do
what she agreed to do

causation -- that this conduct hurt you financially, and

damages -- that you suffered financial losses as a result.

In practical terms, to win a malpractice case, you must first prove that your attorney made errors in how
she handled your case. Then you must show that you would have won the underlying case that the
lawyer mishandled. (This second part is not required in Ohio.) Finally, you will have to show that if you
had won the underlying case, you would have been able to collect from the defendant.
Example: Dorian is hit by a car while he is walking across the street. He hires a lawyer who doesn’t file
the lawsuit on time. As a result, the judge tosses out Dorian’s case and he is unable to refile it. Dorian
sues his lawyer for malpractice. He can prove duty (he signed a representation agreement with the
lawyer). He can prove breach (the lawyer failed to file the lawsuit within the proper time). He can prove
causation (witnesses and a police report attest to the driver’s liability). However, to prove that the
lawyer’s misconduct harmed him financially, Dorian also must show that the driver had money or
insurance so that Dorian could have collected the judgment if he’d won.

When Is a Bad Job Malpractice?

Here are some common complaints that clients have about their lawyers, along with an analysis of
whether the lawyer's action (or inaction, as the case may be) constitutes malpractice.

Your lawyer stops working on your case. The longer your attorney ignores you and your case, the more
likely it is to amount to malpractice. You must act quickly to see that your case is properly handled and
get another lawyer if necessary. Writing or faxing a letter expressing your concerns and asking for a
meeting is a good first step.

Your case is thrown out of court because your lawyer did no work. This may be malpractice. Your
difficulty will be in proving not only that your lawyer mishandled the case, but that if handled correctly,
you could have won and collected a judgment. If you are successful and obtain a judgment against your
lawyer, then the lawyer is responsible for whatever money you could have won had the case been
properly handled.

Your lawyer recommends a settlement for far less money than she originally estimated your case was
worth. This is not malpractice. Your lawyer may have given you an inflated estimate of the value of your
case to encourage you to hire her.

Get your file from your lawyer and get a second opinion on your case. If another reputable lawyer
believes you are being advised to settle for too little, consider changing lawyers.
Your lawyer settles your case without your authorization. This is malpractice, because a lawyer may not
agree to a settlement without the client’s approval. To succeed in a malpractice case, however, you will
have to prove that the settlement your lawyer entered into was for less than your case was worth.

You see your lawyer socializing with the lawyer for your opponent. This is not malpractice or a breach of
attorney ethics. There is nothing ethically wrong with opposing attorneys playing tennis, bridge, or golf,
or enjoying other common social interactions.

If the opposing attorneys talk about your case (on the tennis court or anywhere else), however, and your
lawyer lets slip something that you said in confidence, that would be a clear violation of your attorney's
duty to you.

You suspect that your lawyer has misused money you paid as a retainer. Stealing a client’s money is
malpractice, because your lawyer has a duty to use your funds only for your case.

If you seriously suspect your lawyer has misused any money he holds for you in trust, complain to your
state's attorney regulatory agency right away. Although regulation of lawyers is lax in most states,
complaints about stealing clients' money are almost always taken seriously, so you should get a prompt
response. All states, except Maine, New Mexico and Tennessee, have funds to reimburse clients when
lawyers are caught stealing.

If your complaint to the state attorney regulatory agency is unsuccessful, you may also consider suing
the lawyer for malpractice in order to get the money back.

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Lawyer Discipline And Malpractice

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If you have a complaint against a lawyer and all efforts to resolve it informally have failed, you have two
options: a disciplinary complaint and a malpractice suit. It's important to note that you can use both
options. Using one does not prevent you from also using the other, but keep in mind that your state will
have a statute of limitations for malpractice suits and some states have one for filing a disciplinary
complaint, too.

(Both options are distinct from fee arbitration, which you can use to resolve a fee dispute with your
lawyer. Fee arbitration panels are created and run by state or local bar associations and usually are
composed mostly of lawyers. Despite this, if you have a fee dispute you cannot resolve on your own, we
recommend fee arbitration because it is inexpensive and quicker than litigation. We have found no
evidence that a consumer is more likely to receive better treatment from a court than from an
arbitration panel.)

If you have a problem with your lawyer, you can file a grievance with the state bar association or you
can file a lawsuit, either in small claims court or in regular civil court. The major difference between a
complaint and a lawsuit is that the courts can award you money and the state bar usually can't. The
bar's authority is disciplinary. The goal of a malpractice case in court, on the other hand, is to be paid for
damages that resulted from your lawyer's misconduct.

HALT encourages people to file complaints even though they result in discipline only 5 percent of the
time. We encourage this because the number of complaints filed and the lack of action taken is often
used by HALT and other reformers to illustrate the need for reform. Also, being informed about your
complaint may make your lawyer more conscientious with future clients, or yours may be the latest in a
string of 20 complaints against your lawyer, finally inspiring the bar association to take notice.

However, don't file a complaint just to get your lawyer moving on your case. If you and your lawyer are
having problems, filing a complaint may destroy any chance you have of working together again, on your
present case or any other. For suggestions on how to manage your relations with your lawyer, refer to
HALT's manual, Using a Lawyer.

Attorney Discipline

Your state or local bar association can only take action on certain types of wrongdoing by lawyers. Most
of the rules are set down in your state's "Code of Professional Conduct" or a similarly named document,
probably based on model rules put together by the lawyers who work with the American Bar
Association. You can get a copy of the rules by writing your bar association.

Your state or local bar association can tell you how to file a complaint. Often, all that is required is a
letter to the bar's attorney discipline committee or filling out a simple form. It bears repeating, however,
that these committees almost always have no authority to award monetary relief, so determine your
goals first. If your only goal is to get money back, the state bar disciplinary committee is probably not the
place for you.

When you file a complaint, be detailed but brief. Include all the relevant data and copies of any
documents that support your claim. More than half of all complaints are dismissed after the bar
committee merely reads the complaint letter and the lawyer's answering letter. You want to give the
committee your best evidence and description of events at the outset; you may not get another chance.

If your complaint is not dismissed, the panel may ask for more information. It will also schedule a
hearing. The hearing is usually confidential. You will be asked to give your side of the story and the
lawyer will be asked to respond. The lawyer is usually permitted to ask you questions, but in some states
you are not given the right to question the lawyer. Sometimes the lawyer also has the right to hear you
tell your side of the story, but you can't hear the lawyer's version.

If the panel does decide against your lawyer, however, it has several options. It can recommend that the
lawyer's license to practice be taken away temporarily or permanently taken away (disbarment). This is
the most severe sanction available and the one least often used. Alternatively, the committee can
suspend the attorney's license to practice for a specified number of months or years. The difference
between a suspension and a temporary disbarment is that the disbarred lawyer must reapply for a
license and the suspended lawyer's license is automatically reinstated at the end of the suspension.

Instead of disbarment or suspension, the panel can recommend a public or private reprimand of the
lawyer. If the reprimand is public, the lawyer's name and the facts of the case will be published in the
bar's journal or a local newspaper. If the reprimand is private, it is never made public, not even to the
lawyer's other clients.

Attorney Malpractice
The other recourse against lawyer misconduct is a malpractice suit. If you win a malpractice action, you
can receive monetary damages, sometimes including any lawyers' fees you had to pay to bring the suit.
However, don't bring a malpractice action without first considering several factors.

The first of these is the difficulty of winning. To win a malpractice action, you must first prove your
lawyer guilty of misconduct or negligence, then show you were harmed monetarily because of the
misconduct or negligence. Often, this means you have to prove you would have won your original case if
not for your lawyer's error. Needless to say, this is not an easy task.

Malpractice cases can be brought in small claims court if you ask for an award that is within the small
claims court limits. Taking such a case to small claims court allows you to handle the case yourself and
avoid lawyer's fees. It is also quick. If you decide to take this route, refer to HALT's manual, Small Claims
Court. It lists the dollar limits for awards in such courts in all states.

If you do not sue in small claims court, more likely than not you will need a lawyer. Look for one who
specializes in attorney malpractice and who doesn't have any conflict of interest in representing you
against the attorney you're suing. Unfortunately, it is often difficult to find lawyers willing to sue their
colleagues, so you may need to look outside your area, especially if you live in a small city or town. Also,
just because your new lawyer is outraged about your previous lawyer's conduct, remember to be careful
how you manage your relationship with the second attorney, or you may find yourself complaining
about lawyer misconduct again.

A final caution: Prepare for a long and bitter fight. You will be fighting on your original lawyer's own turf,
where lawyers are most familiar with the rules and the other players, from the judge on down. Lawyers
do not take kindly when accusations about their professional conduct are placed before their bar and
bench colleagues.

For further information, see HALT's Manual, If You Want to Sue a Lawyer.

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How to Manage Your Lawyer

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When dealing with a busy or intimidating lawyer, it's easy to forget he or she works for you.
Remember that you are the employer. Your lawyer is accountable to you and should answer your
questions and provide regular progress reports on your case.

If you are having a problem with your lawyer, write a letter immediately explaining your concern. This
could clear up any misunderstanding. If you have a written agreement (and HALT strongly urges you
to get one if you don't), mention the provisions you think have been violated.

Why a letter? Because it's easy to forget what was said in a telephone conversation or in person and
hard, if not impossible, to dispute what was written in a letter. Writing a letter will give you a chance
to state your case clearly and dispassionately and give you written proof that you've communicated
your concerns.

Keep your letter short and to the point. It should include:

 A concise summary of the problem.

 Questions you want answered.
 Possible solutions for working it out.
 The date by which you are asking the lawyer to answer in writing. (Allow about two weeks for
a response.) 

Don't accuse the lawyer in your letter, but be straightforward. Saying, "I expected a bill which
itemized all the charges," or asking, "Is there a reason why such and such has not yet been
completed?" is far less combative and more likely to get results than more confrontational statements,
such as: "You were supposed to send me an itemized bill," or "You are late in completing. . ." . Be
cooperative but firm.

Date your letter and keep a copy in your files. If your questions are repeatedly ignored, a written
record of your attempts to communicate can be important evidence if a dispute arises and you go to
court or file a grievance with your state disciplinary agency. Insist on the information you need, but
don't ask frivolous questions.

If you are not happy with your lawyer's answer, you may want to ask a second lawyer's advice. A
second opinion will cost money, but you do need to make an informed decision. You may learn that
your lawyer is on the right track. Alternatively, you may find that it's time to fire your lawyer and hire
another.

For more information on how to manage your lawyer, see HALT's manual, Using a Lawyer.