Can I sue my lawyer for screwing up my case? Yes, and you can win your claim if it makes sense and you have the evidence to back it up. The claim you would use is called legal malpractice, which is analogous to the medical malpractice claims people file daily.
What Is Legal Malpractice?
If you know what medical malpractice is, apply what you know to legal malpractice, and you are likely to understand what it means. Due to their special training, lawyers, like doctors, are subject to an elevated duty of care when dealing with their clients. Failure to meet this professional standard of care can cause great harm.
A medical error, for example, could kill someone. A legal error could land someone in prison or cause them to sacrifice a large (and desperately needed) personal injury judgment. If this happens, the client who suffered harm is entitled to full compensation. This compensation can come from a court, or the opposing parties can negotiate a settlement.
What Acts Constitute Legal Malpractice?
It is virtually impossible to list all of the claims that might constitute legal malpractice. Nevertheless, a partial list appears below:
- Missing a formal deadline. If your lawyer misses the statute of limitations deadline to file a lawsuit, your personal injury claim will die immediately.
- Misuse of your money. This serious form of legal malpractice could result in disbarment and even prison time. It could also result in compensation for you.
- Inadequate investigation of your claim. The key word in this phrase is “inadequate,” which is where the argument will lie.
- Communication errors. You could make a terrible mistake if your lawyer fails to provide you with timely and complete information about your decision.
- Mistaken application of the law. This error goes right to the heart of what it means to be a lawyer.
- Lack of consent. Your lawyer might agree to a settlement without your permission, for example.
- Fraud. Fraud constitutes legal malpractice as well as criminal behavior.
- Failing to follow your instructions. Filing a lawsuit against your wishes, for example.
- Strategic errors. Serious strategic and tactical errors can constitute attorney malpractice.
- Conflict of interest. This might happen if, say, your attorney represents the opposing party in another matter.
- Breach of your lawyer’s confidentiality obligations with respect to your case.
Whether a given act or omission constitutes legal malpractice is normally a judgment call.
What Legal Malpractice Is Not (Most of the Time)
Can you sue a lawyer for not doing their job? It depends. Lawyers, being human, are not expected to be perfect. The law permits attorneys a certain amount of leeway to commit minor errors without bearing malpractice liability. Some examples of behaviors that might not add up to legal malpractice include:
- An arrogant, condescending, or unprofessional attitude, no matter how unpleasant;
- Failure to immediately return a phone call or email.
- Not regularly updating you on the status of your claim.
- Failing to properly prepare for a hearing or a trial.
- Minor procrastination.
- Failing to win your lawsuit.
- Friendship with the opposing lawyer (this does not by itself constitute a conflict of interest).
Alternatively, many of the foregoing behaviors could constitute legal malpractice if the circumstances are critical or the consequences are serious enough.
What You Have To Prove To Win a Legal Malpractice Claim
You hear a lot about medical malpractice claims, but you rarely hear much about how to sue a lawyer for misconduct.
Most legal malpractice claims are based on negligence. Intentional fraud is an example of legal malpractice not based on negligence. Forgetting an important deadline is an example of negligence-based legal malpractice. To win a negligence-based legal malpractice claim, you must prove the following elements:
- You were in an attorney-client relationship with the defendant at the time of the offense you are complaining of. A signed retainer agreement will likely prove this element. This relationship gives rise to a duty of care in your favor.
- The defendant breached their duty of care to you through a careless act or omission.
- You suffered harm. In many cases, you will have to prove that you lost a legal case.
- The defendant’s breach of their duty of care caused you harm. To prove causation, you might have to prove that you would have won your case except for the defendant’s misconduct.
As in almost every civil lawsuit, you must prove each of the above elements by “a preponderance of the evidence.”
The Statute of Limitations Deadline
You have until two years after your attorney’s malpractice to file a lawsuit. If you did not know of the malpractice at the time it occurred, you have until two years after you knew or should have known about it. Be careful because this standard is sometimes more complex to apply than it might appear on the surface.
If Your Former Lawyer Refuses To Transfer Your Case Files
Your former lawyer undoubtedly possesses files with information about your case. Your new attorney, the one who will help you sue your old attorney for legal malpractice, will need these files to represent you properly. Of course, your old attorney is not going to be particularly inclined to transfer these files unless they have to. This is especially true if you and your old lawyer have an ongoing fee dispute.
Rest assured that Florida law requires your old attorney to transfer these files to your new lawyer. They cannot condition this transfer on you paying the fees they say you owe them. These are two independent issues.
Reporting Your Lawyer to the Florida Bar
Another action you might take is to report your lawyer to the Florida Bar for attorney misconduct. You won’t win any money by filing such a complaint, but you might get the attorney sanctioned and thereby prevent them from harming another victim. In cooperation with the Florida Supreme Court, the Florida Bar can impose a variety of sanctions on a lawyer, up to and including permanent disbarment.
Your attorney’s confidentiality obligations remain in force even if you sue them for legal malpractice. There is, however, a limited exception. Your lawyer has the right to reveal information about your case that is sufficient to defend themselves against an accusation you have made against them. This often happens, for example, in a fee dispute.
Do You Need To Hire a New Lawyer?
If you’re going to file a legal malpractice claim, you definitely need to change attorneys. You might have trouble finding a local attorney willing to take your case. That’s because attorneys are reluctant to participate in legal actions against their colleagues. Nevertheless, keep trying, and you will likely succeed.