All About Legal Malpractice
Legal malpractice is a breach of the lawyer’s duties to the client. There are often overlapping elements, and they may occur independently or in combination. Certain conflicts can arise from the fundamanetal nature of the adversary system. After an incorrect deposition or a missed objection, or when witness ends up disappearing, it might be thought that the lawyer did not do his/her job well. A mistaken legal strategy, or an undiagnosed statute of frauds situation can be haunting for future communications between the lay public and the legal practitioner. Legal malpractice can occur, generally, in several areas:
- Breach of the duty of care
- Breach of the duty of loyalty
- Breach of the duty of candor
- Breach of the duty to provide services promptly and within the time limits agreed.
- Breach of the duty to shoulder the due diligence and responsibility of supervision (especially for staff).
6 . Legal malpractice can also arise as a result of solicitation or improper actions causing the client to need the services rendered a second time by another attorney.
Some of the situations involving the most obvious legal malpractice examples include:
- Clients accidently signing a deed to their house when they didn’t want to sell it, and after the lawyer promised that he would prepare an irrevocable trust for them.
- Clients not signing a waiver when they inherited money, and didn’t know that the share would go to a trust.
- Clients making a deal with a former business partner, and finding that the agreement was not enforceable, because the business entity was mischaracterized in the Contract.
- Clients locating a contractor, and later filing a lawsuit for damages. The suit fails, because the lawyer does not name the contractor correctly and the case is dismissed.
- Clients accepting a settlement offer that is not in their best interests.
Individuals who have been affected by legal malpractice are entitled to seek legal redress for the situation and receive compensation.
Contingent Fee Arrangement 101
A contingency fee agreement is a contract between a lawyer and a client where the lawyer only gets paid if the client successfully recovers money in a lawsuit. The client’s attorney fee is contingent on the result and typically it is a certain percentage of the total recovery obtained by the client.
In the context of a legal malpractice action, this means that if the former client wins, he or she may have to pay a percentage of the total amount recovered to the attorney handling the case, who provided legal services to the former client.
The client, therefore, does not have to pay anything upfront. A legal malpractice case can be expensive, depending on the type of action and issues involved. Part of the answer on whether a client can afford a legal malpractice action and then hire an experienced legal malpractice trial attorney may depend on whether a contingency fee arrangement makes sense for the case.
Some of the benefits of a contingency fee arrangement are:
Some of the drawbacks of a contingency fee arrangement are:
Why You Should Pick A Contingent Fee Lawyer
Contingency-based Legal Malpractice Attorneys in California: Why it Makes Sense
Having an attorney who has a stake in your recovery is almost always preferred, especially when they seem somewhat disinterested in winning your case the old-fashioned way, such as using flat rate billing. Having an attorney who has a stake in your case incentivizes that attorney to maximize your recovery. In fact, many malpractice attorneys will tell you that their main job is not to win your case (although that is obviously a major part of it) but to get you an amount you think is fair for your losses suffered because of your former attorney’s mistakes.
While this system is certainly popular with clients for its many upsides, most attorneys agree that it is also attractive to attorneys because of its potential for profit. The retainer system is much more beneficial to the attorney than the client. For the attorney, getting paid upfront is obviously preferential because it ensures that they collect only valid bills from the client. So, by agreeing to take your legal malpractice case on contingency, a legal malpractice attorney is allowing you to share the risk of the malpractice complaint, which is beneficial to you because it makes it more likely that you will be able to afford coverage regardless of the outcome of your case.
Locating Your California Attorney
Situations in which the Client is Right and the Lawyer is Wrong do arise. But Finding the Right Legal Malpractice Attorney on Contingency is not easy. In California, there is a dearth of qualified legal malpractice attorneys. Often, a good malpractice attorney will have a large case load and will not be able to focus on your case as much as you would like. Because when a case is taken on contingency, the attorney is enjoying a windfall if it goes to verdict or trial. A contingency fee agreement provides that if the plaintiff receives compensation even years later, the attorney receives a percentage of the settlement. Thus the attorney may tend to accept cases with high potential, rather than redistributing the attorney’s attention on what can become a large volume of smaller cases.
Finding a qualified attorney in California for legal malpractice will require leg-work and the posting of ads for cases. Finding a qualified attorney to help you with your legal malpractice case requires a referral from another attorney you trust. People have different opinions about any given attorney . You cannot find them just by doing a google search. Find a list of attorneys in your area of California and ask your friends, other attorneys, and family members about them, soliciting both positive and negative opinions and experiences. Then research these attorneys according to your method of choice.
In addition, most state bars provide a lawyer referral service, which refer the names of licensed attorneys to the public. Many consumer groups and major courthouses compile complaint histories of lawyers. The Martindale-Hubbell Law Directory provides detailed biographical and contact information on lawyers and judges. The American Bar Association Compendium of legally qualified attorneys lists practitioners in different fields. Many attorneys advertise in the yellow pages, so look up relevant categories such as real estate, personal injury, business and labor.
Sometimes you can find an attorney who attorneys intern with, that you were impressed with. Often these interns are very well trained and will end up being very competent. If you can find good sources of referrals, you may be fortunate in retaining a very good attorney.
Your Legal Malpractice Case and How It Moves Forward
The process of filing a legal malpractice claim can be complex and time-consuming, but it is essential to follow the necessary steps to secure the best possible outcome. When you find yourself in a situation where you believe you are a victim of legal malpractice, the first step is to retain a legal malpractice attorney on contingency. The attorney will inform you that they will take your case to see if they can assist you.
The initial consultation is an opportunity for the attorney to evaluate the details of your situation and determine whether or not you have a viable case. This process includes reviewing any relevant evidence, such as court documents, legal correspondence, and other documentation that may support your claim of legal malpractice. The attorney will also ask questions about the circumstances leading up to the legal malpractice claim and assess the strength of your case.
If the attorney decides to take your case, the next step is often to gather more evidence to prove your claim. This may include hiring experts to testify to the negligence of your former legal representation, as well as collecting additional documents to show that you have a case. Throughout this process, the attorney will communicate with you regularly to keep you updated on your case’s status and explain any developments that may arise.
Once the necessary evidence has been gathered and your legal malpractice attorney has assessed the strength of your case, the next step is to pursue litigation against your former attorney. In California, there is a 1-year statute of limitations for filing a legal malpractice suit, so you should act quickly to avoid running out of time before you have had a chance to file your lawsuit. Your lawyer will file the complaint on your behalf, and then your case will enter the court system.
While each legal malpractice case is unique, the general steps outlined above can help you understand the processes that go into filing a legal malpractice lawsuit and increase your chances of obtaining the best possible outcome.
Things to Keep in Mind and Issues
One of the first and most important considerations when contemplating a legal malpractice case is whether the case can be pursued on a contingency basis. Many attorneys, especially those with a younger or less well-established practice, may offer to take these cases on a contingency because they are generally time consuming and cost prohibitive, and often involve novel legal issues for the attorney. However, there are some general considerations that are instructive in analyzing whether a specific case may be taken on a contingency basis.
A key issue to consider is the statute of limitations. For example, the statute of limitations in California for legal malpractice claims is one year. Therefore, an action for legal malpractice must be filed within one year of when the legal malpractice occurred. So if you seek out an attorney to represent you a year and 2 months after your former attorney has acted negligently, your legal malpractice claim is likely barred by the statute of limitations, and the attorney cannot take the case on contingency. It is therefore always a good idea to consult with a legal malpractice attorney as soon as possible after your former attorney acts negligently.
Another key consideration is whether you will be able to prove that the negligence of your former attorney caused you actual harm. For example , in most negligence actions, the plaintiff must prove that he/she/it suffered an economic injury as a result of the negligent conduct. For example, in a case where you are alleging that your former criminal defense attorney erroneously advised you to plead guilty, it will be necessary to prove that if the former attorney had properly advised you, you would have been found not guilty. Often times the extent of actual harm is uncertain, and the damages expert cannot give a definitive answer as to whether it is reasonably likely that the plaintiff would have received a different outcome in the underlying matter. In these circumstances, the attorney cannot take the case on contingency. Similarly, in a case where your former attorney failed to preserve a damages claim against a third party in the underlying lawsuit, it is necessary to hire an expert who can provide a detailed opinion as to whether it is reasonably likely that the plaintiff would have succeeded against the third party. Again, this is often an uncertain area, and because of the bifurcated nature of this type of case, the case cannot be taken on contingency.
Ultimately, these are just two of the many factors that may influence whether a case can or cannot be taken on contingency.