There are a number of reasons why an individual may choose to sue their attorney for malpractice. First of all, you’ll need to figure out exactly what your attorney did to facilitate a malpractice suit, and there are three basic categories to consider during this process: breach of fiduciary duty, breach of contract, and negligence. Here we will discuss these categories in further detail so that you have the skills to determine the most vital aspects of your legal malpractice case.
According to the law, an attorney must act in a way that is considered to be reasonably competent. This means that your attorney should perform services at a level that is above minimum competence, and if your attorney fails to do this while working your case, this can lead to a valid legal malpractice claim. For example, if your attorney takes your case and then fails to follow through when the statute of limitations on your case expires, this could be considered negligence. Other negligent behaviors include a failure to prepare for trial, failing to meet important deadlines, and failing to follow court orders.
The term “fiduciary duty” relates to your attorney’s commitment to act according to your best interests. As part of their fiduciary duty to you, if an issue arises surrounding your case in which an action taken for your benefit may cause damage to your attorney, the attorney must act according to your benefit regardless.
However, it’s important to remember that fiduciary duty is only owed if a client-attorney relationship is formally formed. If you haven’t agreed to become the attorney’s client, the attorney will not owe you these duties, and you will not have a case for malpractice. Other ways in which an attorney could breach fiduciary duty include:
- Gaining financially if you lose the case
- Representing your opponent
- Lying about crucial case information
- Failing to consult with you about settlement offers
- Failing disclose conflicts of interest
- Revealing confidential information without your permission
Breach of Contract
If your attorney did not adhere to some of the terms that were specifically laid out in your contract with them then they may be in “breach of contract”. Failing to research specific items, file an action, or file liens are some examples of how a contract may be breached by an attorney.
In order to create a valid case for malpractice, you will need to determine that this breach of contract was the reason for you losing your case, or suffering damages. This means that you will need to prove that you would have otherwise won the case if the attorney had been more competent.
Often times, successfully presenting a case of legal malpractice in front of a court is a very difficult process, that requires a significant deal of skill and experience. Though allowing yourself to trust another attorney after your faith has been breached by legal malpractice may be difficult, seeking the right help is the best way to ensure that your case yields the results that you deserve. To learn more, speak to the attorneys at Makarem & Associates, either via phone at 310.312.0299 or by email at [email protected]. Ron Makarem is a certified Legal Malpractice Specialist by the California State Bar.