Understanding Legal Malpractice Attorneys – All You Need to Know

Legal Malpractice Defined

Legal malpractice occurs when an attorney breaches their duty of care, and as a result, the client suffers damages as a result. There are several common areas of law in which clients typically experience legal malpractice, such as personal injury, real estate, family law, bankruptcy, or criminal law.
There are a variety of things attorneys can do that do result in legal malpractice. This includes:
Failure to file a legal document by a specific deadline
Failure to put a settlement offer in writing
Failing to properly advise you of the prospects to proceed in litigation
Failure to submit evidence in support of your case
Failure to execute the proper steps in the transaction
Improperly or deceitfully representing your financial interests
Settling your case without your permission
Failure to release in a timely manner an escrow deposit
In a civil case, your lawyer may fail to file your complaint in time, which may result in your case being dismissed. In a criminal matter , your attorney may violate your right to a fair trial by failing to call witnesses to testify to your character. In a family law matter, your lawyer may fail to file a petition for child custody. In an employment matter, your attorney may draft a contract that puts you at a financial disadvantage.
Legal malpractice can occur in any client-attorney relationship. The misconduct of an attorney may be obvious, such as sexual misconduct, assault, or threatening behavior. Legal malpractice often occurs in a more nuanced way, such as failure to turn in a brief or failing to give appropriate counsel such as signing a contract that is unfavorable to the client.
No individual or organization wants to feel as though their success or rights were impinged upon by the trusted legal representative. Legal malpractice can actually undermine confidence in the legal system overall. It is long-term defense of the legal malpractice that is burdensome to the client. Legal malpractice is a violation of the attorney-client relationship, which is based on trust and fiduciary obligation.

Responsibilities of a Legal Malpractice Attorney

Legal malpractice attorneys have several responsibilities starting from the first call or visit from a prospective client. In the event that a lawyer is negligent, and a potential malpractice action exists, the legal malpractice attorney will launch an investigation into the attorney who is the potential defendant in the case. All sorts of things can go wrong at this inception, which is why a thorough legal malpractice attorney will be ever so careful. The main thing that is working against the plaintiff/client is that she must show that the original case was worth something, and that it could be won.
If he can, it’s the legal malpractice attorneys’ job to suggest filing a lawsuit against the former lawyer, but sometimes they will need to refer you to another attorney (in office or outside of the firm) to handle the case. Some law firms will handle a legal malpractice case without any outside help, especially where the case is very close. With an expert voucher, a court order will permit the legal malpractice attorney to hire a QA thereof, without having to pay out of his or her own pocket.
At this point, legal malpractice attorneys must often engage in a risky decision process about the settlement or continuance of litigation on behalf of the Plaintiff. Here, the appropriate action must be taken, or the danger of "succumbing to the temptation of further pursuing a weak case" can result in added financial harm to the client.

When Does One Need a Legal Malpractice Attorney?

There are a number of signs indicating that it may be in your best interest to hire a legal malpractice attorney. First and foremost are those situations in which you have lost money as a result of your attorney’s error. In other words, your attorney’s failure to take proper legal action has resulted in you being harmed in some way, often financially. If he or she caused you monetary loss as a result of an error, this is a likely indication that legal malpractice has occurred.
It is also necessary to consider the circumstances of the underlying situation. For instance, if you did not have a case to begin with and there was nothing wrong with the way that your lawyer conducted the job he or she was hired to do, there is no legal malpractice. Your attorney cannot be held responsible for the fact that the case was simply weak or faulty. But if he or she failed to properly take necessary legal actions to safeguard your rights, thus causing you harm, you may be able to bring forth a case against your attorney.
Some additional factors that figure into the decision regarding whether or not to file a legal malpractice case include the age of the case, the reasons for the attorney failing to take proper actions, and whether or not the matter in question could have been handled without clear advantage to do so. When some or all of these issues apply, the prior representation can be considered negligent in the eyes of the law and a legal malpractice claim may be filed.

Deciding on a Legal Malpractice Attorney

When selecting the right legal malpractice attorney, there are several important factors that clients should take into consideration. First and foremost, clients should look for a legal malpractice attorney that has the requisite qualifications and experience. It’s essential to hire an attorney who is knowledgeable about legal malpractice law and has experience handling similar cases. Additionally, clients should consider the reputation of the attorney and their law firm. A good reputation can provide peace of mind and confidence in the attorney’s ability to handle the case effectively.
Another crucial factor is having an understanding of how the attorney and their law firm handles legal malpractice cases. For instance, clients should inquire about the attorney’s contingency fee arrangements, including expenses and costs. It’s also important to choose an attorney who is compassionate and understanding of the client’s situation. A legal malpractice case can be a challenging and emotional time for clients, and having an attorney who can empathize with their clients can make a significant difference in the outcome of the case.
Clients should also take the time to read reviews and testimonials from previous clients to get a sense of the attorney’s track record. Asking for references can also be helpful in finding the right legal malpractice attorney. Overall, taking the time to carefully choose a legal malpractice attorney can make the difference between a successful outcome and a failed case.

Legal Malpractice Litigation and Settlements

There are as many forms of legal malpractice as there are errors by attorneys. There are a few broad categories of errors: the wrong advice, late advice, absent advice, no advice, erroneous litigation strategy, errant or absent discovery, absence from deposition, missed appellate notice and a host of others "none of which do I understand"- as Yoda was fond of saying. What robust attorney has not done something that ought to lead to a legal malpractice allegation?
What then are Legal Malpractice Cases and Outcomes? A legal malpractice case is won by proof that there was negligence, that is, a requisite breach of the attorney’s duty of care. This can be done in several ways. In some cases there is a simple 1:1 relationship between failure to advise and an injury. If an attorney fails to advise on a statute of limitations ("SOL"), and the SOL runs, there is a bright line relationship. If however, a statute permits the claim to proceed beyond the 3 years, then an evaluation of damages will be necessary.
One can have expert testimony at bar that the statute does not preclude the claim, and then valuation as set up by expert testimony is the proper standard.
Alternatively, we often see the attorney who fails to show up for a deposition. Sometimes a case proceeds without problems, but often damages can result. There is then a question of how significant was the missing deposition, and what important evidence did it provide that leads to the outcome.
There is an old and arcane decision which has been cited for many years by both plaintiff and defense in legal malpractice cases involving errors in real estate closings. It held that the damages for the closing error could only be the down payment, and nothing else, IF the purchaser would have no standing to sue the seller. See, Miller v. Estate of Becker, 189 AD2d 664 (2d Dept. 1993) For example, let’s say the client made a large down payment, and the deal fell through because of bad faith deception by the seller of title. The buyer of real estate had made substantial investments in improvements, a site layout for an apartment complex, had engaged in community negotiations and public discussions. According to this case, all of these were for naught because now the buyer is an equitable owner, and does not have standing to sue. Again, one can have an expert witness testify that the case would not have been Settlement/Failure-Friendly.
A certain amount of creative thinking will reveal novel theories of recovery in legal malpractice cases. The only rule is that the attorney must have breached the duty of care in a consequential way.

What to Expect with Legal Malpractice Litigation

In general, a legal malpractice claim will begin with the filing of a complaint alleging legal malpractice and/or breaching the terms of the retainer agreement. The action may be brought in Federal, State or local court, depending on the nature of the dispute. A legal malpractice claim, as a breach of contract, is generally going to be within the jurisdiction of the New York State courts. This would involve filing a summons and complaint or a statement of claim against the lawyer if the lawyer works for a state agency, municipal or city attorney. Once the lawsuit is filed, the attorney will have thirty (30) days to respond to the lawsuit, or an answer or motion to dismiss will be filed.
From the filing of the lawsuit until finally resolved, the case can take a significant amount of time. Generally, it takes a minimum of 2 to 3 years to get a case through discovery . Discovery is the exchange of information and documents between the lawyers concerning the case. Oftentimes, the lion share of this time is spent fighting over the discovery demands that are provided, most specifically the expert demands for the attorney that allegedly committed the malpractice.
In the discovery phase, after all discovery is complete, a summary judgment motion can be brought before the court prior to trial. A motion for summary judgment is a request made to a judge asking for a decision based on the facts as provided within the motion itself, without a trial. If granted, the judge will evaluate and provide a decision upon the legal issue as brought forth by each parties motion, thereby saving the parties a trial. If denied the case is then subject to a trial whereby the factual issues are determined by a jury.

Difficulties of Legal Malpractice Claims

In a legal malpractice case, the most common issues are negligence, damages, and the statute of limitations. They do not always occur in that order, but for discussion purposes, we will discuss negligence first. Negligence: New York State has adopted the view that a negligence cause of action requires proof of an actual, deviated from professional conduct. As pointed out in the recent case of Fernandez v Milstein, Ltd 2009 NY Slip Op 01510 [61 AD3d 438] February 24, 2009 Appellate Division, First Department the "Standard of care for attorneys in legal malpractice actions, however, does not presume negligence. An attorney may be found negligent only where he or she fails to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession." Some of the reasons an attorney may fail to meet this standard is a mishandling a case, failure to investigate facts, failure to procure insurance, failure to file a suit within the statute of limitations, etc. The list is countless. Damages: Legal malpractice damages must be actually occurred. There must have been prejudice due to the lawyer’s failure to meet the standard of care. This means that the result of the case that led to the legal malpractice should have had a different result. The rule for damages does not change when an attorney representing a client in litigation also serves as the same attorney for the insurance company. As stated in the case of Diaspora Network Corp. v Bank of America N.A., 2008 NY Slip Op 05994 [54 AD3d 311] July 8, 2008 Supp. New York Supreme Court, Appellate Division: "Where an attorney simultaneously defends the insured while representing the insurer, he or she breaches an ethical duty to the insured when a conflict of interest exists, which impairment of the client’s rights results in substantial prejudice and makes it impossible for the attorney to adequately represent the client without jeopardizing the interests of the insurer (see Arenson v National Sur. Corp., 137 AD2d 364, 364-365 [2007]; Lowitt v Financial Freedom, 121 AD2d 653, 655-656 [1986]; Matter of Schulman v Gahagan, 116 AD2d 407 [1986]). Where an attorney assumes a dual role that creates conflicting duties, with each duty imposing a separate and inconsistent obligation on his or her role in order to prevent him or her from undermining either the insured’s or the insurer’s interests, the insured is substantially prejudiced (id.). Thus, even if the insurer subsequently rescinds its policy upon learning that it was originally issued as a result of fraud, given that plaintiffs have sufficiently alleged that they would have "embarked on a different course" had the insurer not breached the contract by failing to act with "good faith" and "fair play" (see State of New York v Greenberg, 51 AD2d 350, 354), plaintiffs are entitled to proceed on their breach of contract cause of action (see Diaspora Network Corp. v Bank of America N.A., 50 AD3d 449 [citations omitted]; cf. Kennedy v Haskell 68 AD3d 1767 [2009][citations omitted])." Statute of limitations: The statute of limitations for a legal malpractice claim is three years from the actual occurrence of the negligent act. For certain attorneys, the statute of limitations will begin to run from the time the attorney withdraws from representing the client to commence the action or failure to respond to a client’s request for information. An attorney may knowingly fail to inform a client of a deadline for an action as a measure of avoiding tack responsibility for the legal malpractice. If the plaintiff lacks knowledge of the act, the statute of limitations will not begin to run until the plaintiff has knowledge of the malpractice. As stated in the case of Dornberger v Metropolitan Life Ins. Co. 2000 NY Slip Op 70012 [2000] February 10, 2000 Supreme Court, New York County: "A malpractice claim accrues when "the client knows or should have known of the facts underlying the malpractice claim. In that regard, ignorance of the law, or even unawareness of the potential consequences of malpractice, will not delay accrual. Instead, the test is an objective one, whether a reasonably prudent person, holding the plaintiff’s knowledge, would ascertain the existence of the claim proceeding with the discovery of the injury and the means to remedy it (see, Halvorsen v Latvian Am. Shipping Co., S.A., 230 A.D.2d 614, 615, 646 N.Y.S.2d 287 [2d Dept.1996]; Geffner v Fittop Disclosure Group, 189 A.D.2d 643, 592 N.Y.S.2d 69 [2d Dept 1993]; Rudman v Cowen & Co., 181 A.D.2d 334, 340, 586 N.Y.S.2d 318 [1st Dept 1992]).

The Significance of Legal Malpractice to a Lawyer

Numerous lawyers have been sued by their own clients in Legal Malpractice cases to the point that it’s hard to keep count. The implications of such a lawsuit on the attorney’s professional life are staggering. The firm is osten sued as well, and the reputations of the group are irreparably harmed by one client’s decision to sue. Many lawyers fear that if they are sued, other clients will leave, being swayed by negative local press coverage, and the reputational harm may be compounded on the long term by Bar Association Internet presence. a Google search of the lawyer’s name may lead clients in many directions, none of which is flattering. BA lawyers have this to say about the long term impact: Notice that we reported that "the largest single category of reported malpractice claims involved nearly 50% of attorney malpractice claims in 2012." But it does not stop there, increasing numbers of lawyers are being reported for disciplinary action when their law firm is sued, or when the plaintiff law firm is deposed. Sometimes the lawyer’s actions during the case are enough to raise a red flag with the local bar association. The Connecticut Bar Association also reports that over 90% of the time attorneys are disbarred, suspended or censured, it is for some violation of the Rules of Professional Conduct in the course of handling a legal matter. A sanction ultimately means more than paying a fine, and can ultimately lead to losing your license, which is your livelihood. In New York State, lawyers are often suspended, disbarred or censured for improper provision of advice within an existing attorney-client relationship. The more serious the misconduct, the longer the attorney suffers from disciplinary sanctions. "Disbarred attorneys cannot apply to regain their licenses until five years from the date of the order," says The New York Bar Association. The New York Bar Association’s Table of Sanctions reveals how the New York State Grievance Committee punishes attorneys for mishandling legal matters. Here, as in other states, the more money involved in the matter (on top of the violation) the more severe the disciplinary sanction. "Unbeknownst to the layperson, lawyers are regulated by the States they are licensed in, and the Grievance Committee wields quite the sword." "A lawyer’s insurance however, is another matter. The insurance company is obligated to pay the legitimate claim of the client, and, in most cases, it is the client’s perception of the insurance settlement that results in a disapproving view of the lawyer as taking an easy way out of the claim." As insurance companies are realizing that the nature of the work product provided by the Firm, whether it was satisfactory, meeting the needs of the client, and the reasons for the actions taken by the attorney in the course of representing the client, the client is not always satisfied with the insurance company’s settlement. In the end, the insurance settlement only adds pain and suffering to the mistakes made by the lawyer or the Firm. In sum, attorney malpractice is damaging to all concerned.

Legal Malpractice Attorney FAQs

You may still have questions about what a legal malpractice attorney can offer you in a case and what you can expect from them.
What types of cases do legal malpractice attorneys handle?
Legal malpractice attorneys are equipped to handle a wide range of cases. They take on almost any type of case involving a lawyer you suspect of wrongdoing. Some of the most common of these actions include failure to obtain relief, fraudulent representation, breach of fiduciary duty, legal negligence/time deadlines, and failure to file a suit timely.
What should I expect from my legal malpractice attorney?
When you file a claim with a legal malpractice attorney, you can expect to be guided through the legal process. They will advise you on how to proceed with the case and what you should expect . Of course, this is only what you can expect if you choose to move forward with the legal malpractice case and your legal counsel. If you don’t want to proceed, you can refuse to work with your legal representative.
How long does it take to resolve a legal malpractice case?
You can expect your legal malpractice case to take almost the same amount of time as your regular suit. That means that from the time you file with your attorney to your court date, it can take more than a year. Still, most people consider legal proceedings a long process. You should budget your time to allow for that. With your attorney’s guidance, you can begin to gain a sense of how long your case will actually take to resolve.