No Harm, No Foul – Understanding the requirements for a legal malpractice case – Part 3

Can I sue my lawyer?

Having represented many clients in legal malpractice and State Bar disciplinary matters, I can’t begin to count how many phone calls have started with that question. Non-lawyers (and even some lawyers), are surprised to learn that the answer is often more complicated than they think. In the first two parts of this series, we focused on some elements that you must satisfy in order to have a viable claim against your attorney.

You may have a legal malpractice claim if…

Before we cover the required element of an attorney-client relationship, let’s take a break and review some of the specific situations that justify (or don’t justify) a legal malpractice claim. It’s important to understand that it may take some investigation to confirm the validity of your claim, but we’ll get to that later.

You may have a valid reason to make a claim and file suit if your attorney:

• Missed a deadline. Examples include missing a court ordered deadline or a statute of limitations deadline.
• Didn’t conduct any investigation (discovery). Some level of investigation is required before, or at least during the litigation, and also before your lawyer gives legal advice.
• Settled for too little or without your approval. This sometimes occurs in high-volume contingency (fees paid out of settlement) practices. The attorney must put your interests first and confirm that you are in agreement as to the final resolution.
• Didn’t disclose a conflict of interest. This is considered a violation of the lawyer’s “fiduciary duties.” Duties include being honest and loyal to clients, and acting with zeal for every client.
• Provided the wrong legal advice. This includes misstating an important legal or statutory requirement, such as the deadline to file a lawsuit or the requirements to establish a company in a particular regulated industry.
• Failed to raise any defense. This is especially true if the defense could have changed the results, or cleared you from liability.
• Failed to respond to requests for admission. If ignored, inaccurate facts may be introduced into evidence that could damage your case.

There are also a number of situations where you probably don’t have a valid reason to sue your attorney. You may still feel angry or slighted, but there’s probably no legal malpractice claim. Here are a few examples:

• I paid a lot of money, but my attorney still lost my case. There are no guarantees of how a judge or jury will react to you and your case. Sometimes the facts and/or the law are just not in your favor.
• My attorney isn’t returning phone calls. You need to set expectations like this ahead of time, and understand that your lawyer may not always be available when you are. Failure to communicate may still constitute an ethical violation, but not a legal malpractice claim.
• My attorney dropped me as a client. Attorneys are not public utilities, and the attorney-client relationship is a two-way street. Potential conflicts and ethical or behavioral concerns may justify (or even require) termination of the relationship.
• The business (or the deal) failed. Except in some specific transactions, your lawyer represents your best interests. Those may not always align with the business or the deal, and your lawyer cannot guarantee the business’ success.
• I took the wrong plea. You may feel that you could have done better, but, as long as your lawyer attempted to defend you, the plea confirms that your lawyer did provide value.

How do you know if you have a legal malpractice claim?

What you believe to be the most important aspects of a potential legal malpractice claim may not agree with what the law requires. It is very important for you to share as much detail as possible with a qualified legal malpractice attorney. Those details may uncover additional facts that support a claim, or may confirm that there is no need to waste any more of your time or money.