People rely on their attorneys to zealously represent them and act in their
best interests. When a lawyer fails to do so – for whatever reason
– it is natural for a client to feel upset, not just because the
lawyer did not do a good job or violated their contract, but because they
betrayed the client’s trust. This is already a stressful enough
situation for the client to be in without the added stress of having to
pursue a case against the negligent lawyer and immediately place their
faith in another attorney to hold the first one accountable. At
Simeone & Miller, LLP, we have extensive experience handling legal malpractice cases, which
is vital to successfully resolving one.
What Should You Do If You Suspect Legal Malpractice?
Initially, a client who feels their attorney committed
legal malpractice should contact a different attorney as soon as possible. That is not only
to meet the deadlines for bringing a legal malpractice case, but also
because a client has a duty to attempt to mitigate, or minimize, any damages
that the malpractice may have caused. That may require the client to continue
pursuing their case or appeal an adverse decision, even if there is little
hope of success, simply to foreclose any defense that a client could have
saved their case but failed to do so.
To prevail in a legal malpractice claim, a client must prove both the legal
malpractice case and also the “case within a case.” Specifically,
a client must first prove that the negligent attorney failed to provide
legal services that satisfied the duty of care that was owed to the client.
This can be as discrete as failing to file a case by the statute of limitations
or failing to timely submit an appeal. It can also include failing to
properly review a document or any other act by the attorney that a reasonable
attorney would have done.
However, even if the client succeeds in proving legal malpractice, they
must then prove that the malpractice caused them damage. For example,
a lawyer’s failure to file a case worth zero dollars may constitute
legal malpractice, but it does not cause a client any damages because
the client would have received nothing even if there was no malpractice.
Thus, a client must prove that the underlying case for which the attorney
was representing them would have been successful and resulted in a recovery,
had there been no negligence. That is the “case within a case,”
and it means the client must prove the underlying case to prove that it
would have resulted in damages. For example, in a case involving a motor
vehicle accident, the client must prove not only legal malpractice by
their lawyer, but also that the other driver was at fault and that they
suffered damages. Those damages would be the client’s damages for
Legal Malpractice vs. Ethics Violations
Finally, there is a difference between a claim of legal malpractice and
a bar complaint alleging an ethical violation by the attorney. A claim
for legal malpractice alleges that the attorney did not perform their
services sufficiently, whether or not they were honest or followed the
applicable ethical rules. A bar complaint alleges that an attorney violated
his or her ethical duties, regardless of the outcome of the case. In some
instances the same conduct can constitute legal malpractice and the basis
for a bar complaint, but that is not always the case.
For example, a lawyer who accidentally fails to file a case by the statute
of limitations committed malpractice, but probably not an ethical violation.
However, an attorney who improperly uses or takes a client’s money
or property likely committed malpractice and violated his or her ethical
duties. Again, the best thing a person can do is to promptly consult with
an attorney experienced with legal malpractice cases to determine whether
to pursue a malpractice case, a bar complaint, or both.
Simeone & Miller, LLP has extensive experience with legal malpractice
cases and offers free consultations, so a client who suspects that their
attorney may have committed legal malpractice should not hesitate to