Failing to disclose an offer to a client: A lawyer must disclose an offer for a plea deal or for a settlement to a client before it can be accepted. If a lawyer fails to disclose an offer or settles a matter without asking for permission from a client first, then they may be held liable for malpractice.
- The one exception to this general rule of thumb is if a client has already provided specific instructions to their lawyer about how to accept future offers or settlements. Otherwise, a client may sue their lawyer for malpractice.
Mishandling or commingling client funds: A lawyer may commit malpractice if they mishandle a client’s money or commingle their own personal money with money that belongs to a client. According to the rules of professional ethics, which all lawyers have a duty to follow, every client must be given a separate trust account to hold any funds that belong to them.
- A client’s account must be kept separate from their lawyer’s business and personal accounts, as well as any accounts owned by the law firm that employs their lawyer. Similarly, it is illegal for a lawyer to use a client’s funds for personal gains, such as to buy securities, purchase property, or invest in a new company.
- Failing to file a claim on time: If a lawyer fails to file a claim within the time period prescribed by a matter’s statute of limitations and thus bar their client from bringing a lawsuit, the lawyer may be sued for malpractice. However, the client will also need to prove that they would have been able to recover damages if their lawyer had filed the claim on time.
- Conducting business with a client: Although this particular action may not necessarily lead to a malpractice lawsuit, a lawyer should generally refrain from conducting business or entering into business transactions with their clients. This is especially true if the lawyer is going to gain some kind of financial benefit from or interest in a client.
- Ignoring the requests of a client: Unless a request would amount to an illegal action or would hurt a client strategically, a lawyer cannot ignore the requests of their clients. This means that a lawyer must listen to the outcome that a client hopes to achieve and must not ignore a client if they would rather go to trial, then settle a matter out of court.
- Claiming they are a specialist: A lawyer could potentially be sued for malpractice if they claim they hold special credentials for a particular field of law and do not actually have any credentials or possess any special knowledge of that area of law. In other words, if a lawyer claims they are an expert in a specific type of law and they are not, then a client may be able to sue them for committing malpractice.
What If I Gave My Attorney Permission to Commit an Action That Constitutes Malpractice?
There are certain situations wherein a client’s permission to commit malpractice may serve as a legal defense for an attorney who is being sued for committing an action that constitutes malpractice. For example, an attorney may raise this defense if a client’s consent was informed and could be used as a defense against that particular claim. Some cases may require that the client’s consent be in writing before it can be used as a legal defense.
The attorney must prove that a client’s consent was informed by showing that they had full knowledge about the risks and consequences of following through with an action that constitutes malpractice. For instance, if an attorney explains the details of a plea deal to the extent that their client both understands and tells them to accept it, then this type of knowledge and permission would be considered an example of informed consent.
It should be noted, however, that informed consent can only be used as a defense in certain malpractice actions. For example, carrying out strategic legal actions that are based on informed consent, such as accepting a plea deal or a settlement offer on behalf of a client, can be used as a legal defense in a malpractice lawsuit.
In addition, a client may also waive confidentiality privileges and a lawyer’s scope of representation if they have given informed consent for such actions.
On the other hand, some actions will almost always constitute legal malpractice regardless of whether a client provides informed consent or not. Some common examples of actions that cannot be waived or raised as a legal defense in a malpractice lawsuit include starting a sexual relationship with a client, disclosing details about representation to unentitled third parties, and performing legal tasks for a client in a negligent manner.
I Think My Attorney Has Committed Malpractice. What Should I Do?
In order to recover damages, a client will need to undergo the process of suing for conflict of interest if they believe their attorney has committed malpractice. This will typically require hiring a new lawyer, filing a malpractice claim in court, and following the necessary procedures used in most lawsuits (e.g., submitting requests for discovery).
A client can also file a complaint with the attorney’s State Bar Association. These are organizations that regulate and issue licenses to attorneys so that they can practice law in the states where they are registered. Although a complaint may lead to disciplining or disbarring an attorney, it will not enable a client to recover damages. Again, damages can only be recovered by filing a lawsuit in civil court.
In some instances, a State Bar Association may decide not to punish an attorney at all. However, this should not deter clients from bringing malpractice actions against their attorneys since State Bar Associations use different standards than those that are applied in courts. Thus, it is possible to recover damages in a malpractice action, even if an attorney is not disciplined by a State Bar Association for their conduct.
Do I Need a Lawyer?
You may want to consider hiring a local lawyer for representation if you believe that your soon-to-be former attorney has committed an act of legal malpractice. A lawyer who has experience in handling attorney malpractice actions will be able to assess the facts of your case and can determine if you have a viable claim.
Your new lawyer will also be able to recommend and discuss the next steps you should take to resolve your matter and can help you to file a lawsuit if they think that you have enough evidence to sue your former attorney for malpractice. In addition, your new lawyer will be able to assist you in drafting any necessary legal documents for your lawsuit. They can review the files from the original case in which you believed your former attorney committed malpractice.
Lastly, if you need to negotiate a settlement agreement or would like to bring up any other related issues with your former attorney, your new lawyer can assist you in completing all of these tasks as well.
