Attorney malpractice
MALPRACTICE can be defined as professional negligence caused by failure in adhering to minimum required levels of precision in carrying out duties so much so that it causes harm to the person availing those services from the professional in question.
What is Attorney malpractice ?
Attorney malpractice generally implies an unreasonable lack of skill below par than that expected from a competent legal professional. The Attorney malpractice becomes actionable only if the person rendering those services due to his lack of skill has caused damage/injury/loss to the person trying to avail those services.
Types of Attorney Malpractice .
Negligence: If the attorney did not treat one's case with the bare minimum acceptable skill than an average attorney should have and caused damages to the person who hired him for those services, he can be sued for malpractice.
Breach of Fiduciary Duty: If an attorney places his own best interest ahead of the person he is fighting the case for, the attorney is said to have committed malpractice by breaching his fiduciary duty. He can then be sued for the damages he made the person suffer.
Breach of Contract: When one hires an attorney, that person signs a contract with him. If he fails to do what he is obligated to do by virtue of the terms laid in the contract, then he has committed malpractice and should pay for the damages he caused.
Blunders: If the attorney misses court dates, deadlines, fails to submit the documents in time, et.al., he may have committed malpractice.
Omission or Failure to do Something (Nonfeasance)-Failure to file a claim/notice/lawsuit within the time allotted by law resulting in forfeiture, loss of defense or default judgment or fatal failures, and the attorney can be sued for malpractice
Failure to Perform or do Something Competently (Malfeasance): Failure to give important details/averments resulting in dismissal of the lawsuit can subject the attorney towards a malpractice suit.
Bad Cheque: If the attorney issues a cheque from his own account for damages the person hiring him has won and the cheque bounces, the attorney is said to have committed malpractice.
Settling Without Permission: If the attorney settles a case without the permission of the person who hired him for the case, he may be liable for malpractice.
Failing to Contact: If the attorney has not returned the phone calls or not responded for a long period of time to the person who hired him for a case, he may have committed malpractice.
The following may be required to prove Attorneys Malpractice.
Attorney's Duty: First of all one would need to establish that the attorney owed a duty to the person fighting him the for the attorney malpractice. In simple words, it just implies that the attorney had taken the case in hand. It could be established by mutual assent/consent and confirmed by a retainer agreement which emphasizes that the client exclusively retains the attorney to represent him in a specific legal case.
Conduct VS. Performance; Each of the fifty states have set guidelines governing the right to practice law by the attorneys (set in line with the model rules laid down by the American Bar Association). The attorney who fails to abide by those guidelines resulting in damages to be incurred by the person represented by the attorney in the litigation process can face malpractice suite.
Breach of the Duty: Then after it is important to show that the attorney breached the duty owed to the person he is representing. This breach could be in the form of exhibiting negligence, making a mistake, or not doing what was meant to be done.
The Breach Caused Damages: It is important to prove that the attorney malpractice caused damages. Causation is likely to be the most difficult one to prove.
Damages Suffered: The last but not the east element to be prove to win you attorney malpractice case is that one suffered some kind of damages. These damages epitomize financial loss directly or indirectly. In most cases, the damages should equal the amount one would have won if there was no attorney malpractice.
Attorney Discipline and Malpractice .
If one has a complaint against a lawyer, one has the following two options to address it. He can make-
1) A disciplinary complaint And/or
2) A malpractice suit
(Both options are different from fee negotiation between the lawyer and the party for which Fee arbitration panels are created and run by state or local bar associations and is recommended as it is cheaper and quicker than litigation.)
The major difference between a disciplinary complaint and a lawsuit is that the latter is generally targeted in fetching for the sufferer partially/fully the monetary losses incurred because of attorney malpractice.
Attorney Discipline .
Each state or local bar association lists out the rules/guidelines against which they accept a disciplinary complaint against attorney malpractice. These rules are mostly in line with the standard rules decided upon by the lawyers working with the American Bar Association with some variations (as per local State laws) and jotted down as a part of the states Code of Professional Conduct or similarly named document.
In order to file a disciplinary complaint against attorney malpractice, one should ensure to include all the relevant details like documents supporting the claims, best evidence, description of events, et.al. (Most of the complaints just get dismissed just when the committee reads the complaint letter and the lawyers reply to it, so its important that all relevant date be provided in 1st instance only ).
If the complaint is not dismissed, the panel of jury may request for more details and schedule a hearing (which is kept confidential). You will be asked to give your side of the story and the lawyer will be asked to respond. The lawyer is usually permitted to ask you questions, but in some states you are not given the right to question the lawyer. Sometimes the lawyer also has the right to hear you tell your side of the story, but you cant hear the lawyers version.
If the panel bar decides against the lawyer, it has several options on how it wants to punish him for attorney malpractice.
1) The lawyers license to practice be taken away temporarily (temporary disbarment)
2) The lawyers license to practice be taken away permanently (permanent disbarment)
3) The lawyers license to practice be suspended temporarily (for a few months or years)
4) Public reprimand of the lawyer (The lawyers name along with the facts of the case get published in the state bars journal or a local newspaper)
5) Private reprimand of the lawyer (it is never communicated even to the lawyers other clients)
PS: The difference between a temporary suspension and a temporary disbarment is that the disbarred attorney must reapply for a license and the suspended lawyers license is automatically reinstated at the end of the suspension.
Attorney Malpractice Lawsuit .
The state committees more often than not have no authority to award monetary refunds against attorney malpractice. If getting reimbursed monetarily for the damages incurred due to attorney malpractice is the ultimate goal, one should resort to the course of Attorney malpractice lawsuit directly.
If one wins a malpractice action, he receives the compensation for the monetary damages (sometimes even the litigation charges incurred in fighting the attorney malpractice lawsuit).
Things to consider before filing an attorney malpractice lawsuit.
1) Its not an easy fight as one needs to prove that the lawyer is guilty of malpractice and also that he /she got harmed monetarily because of the malpractice i.e. the original case would have been won if the lawyer had not committed malpractice.
2) Consider filling the lawsuit in small claims court if the monetary claims being made are within their limits. (It is generally faster and allows one to handle the case himself/herself to avoid the lawyers fees).
3) It is difficult to find lawyers who are willing to sue their colleagues.
4) It is important to ensure there is no conflict of interest between the attorney hired and the attorney against whom the lawsuit has been filled.
5) The attorney against whom the attorney malpractice lawsuit is filed will be as much familiar with the games of the trade and will put up a good fight, so one needs to be prepared for a more than likely long and bitter wrestling.
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