Suing an Attorney for Malpractice is Harder Than You Think

Sue an AttorneyLegal malpractice cases are particularly difficult and expensive to pursue. Aside from the inherent difficulty in finding an attorney who accepts legal malpractice cases, the plaintiff essentially needs to prove two cases in order to win: (1) the malpractice case against the lawyer and (2) the underlying case in which the lawyer committed the malpractice (to show how the case would have resolved had malpractice not occurred). Sometimes, the malpractice will be glaringly obvious, such as a missed statute of limitations. Often, it will be more of a gray area, both as to whether malpractice occurred and whether it had any significant impact on the outcome of the case. Before you assume that you have a legal malpractice case against your attorney, consider the numerous obstacles you will need to overcome.

Legal Malpractice Attorneys Don’t Grow on Trees

While, in theory, any lawyer — particularly one in the same specialty as the lawyer you want to sue — could represent you in a legal malpractice case, in practice only lawyers who specifically advertise themselves as legal malpractice lawyers will usually consider accepting such a case. Undoubtedly, many lawyers won’t take these cases on general principle — they find the idea of suing another lawyer to be distasteful, or perhaps they fear that taking such a case would damage their social standing in the legal community. A similar problem arises in medical malpractice cases when trying to find an expert witness to testify against another local doctor. You may need to expand your search beyond your immediate geographical area to find a lawyer willing to discuss your malpractice case with you.

Aside from social stigma and personal aversion to suing another lawyer, the larger reason that legal malpractice attorneys are rare is that legal malpractice cases generally promise a lower return on the attorney’s efforts than other types of cases. Except in the most obvious malpractice cases, a lawyer must prove two cases at once to make the same recovery he could have made by just accepting a straightforward injury case without the legal malpractice baggage. Also, his costs will be higher, requiring him to risk more money out-of-pocket on the outcome of the case. For these simple reasons, only the most promising of legal malpractice cases will be considered by the few lawyers willing to practice in this area.

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Legal Malpractice Cases Are Two Cases in One

In order to win a legal malpractice case, it is not enough to simply prove that your lawyer was negligent in the handling of your case. You also need to prove that, but for the attorney’s malpractice, you would have received a collectible judgment (or a larger judgment than you actually received) in the underlying case. This often requires substantial relitigation of the original case. You need to prove that a jury, hearing your original case as it should have been prepared and argued, would have found in your favor and awarded you more money than you actually received. You would be wrong to assume that merely proving your original lawyer’s neglect will establish that your case would have ended more favorably. There are errors that a lawyer can commit that amount to the proverbial tree falling in the woods — if they don’t affect the outcome of the case, they don’t count.

Even in the most obvious legal malpractice cases, such as a blown statute of limitations, a jury can rule against a plaintiff if it feels that the plaintiff would still have lost his original case were it timely filed. This likely isn’t an issue as long as your underlying case was strong from a liability standpoint, such as a rear-end collision. However, if your case could have resulted in a defense verdict, such as a medical malpractice case where the doctor denies wrongdoing, or a grocery store slip-and-fall where there is an issue as to whether the store should have reasonably discovered the dangerous condition that caused the fall, the hardest part of your case may begin after you’ve established your lawyer’s malpractice.

Legal Malpractice Cases Carry Added Costs

As with medical malpractice cases, legal malpractice cases will usually require the hiring of an expensive expert witness — another lawyer. Why does your legal malpractice lawyer need to hire another lawyer? First, legal malpractice lawyers are not experts in all areas of law. They will often need to consult with an outside expert just to establish in their own minds that your lawyer departed from the acceptable standard of care. Second, and more importantly, you’ll need someone to testify about your lawyer not meeting the standard of care. Your legal malpractice lawyer isn’t going to take the stand and question himself. Even if he could, do you think a jury would believe someone whose income depends on the outcome of the case? While outside experts are hardly impartial, at least they get paid whether you win, lose or draw.

The added cost of a legal malpractice case is a large deterrent to attorneys accepting cases that don’t promise a substantial recovery. There is no point to bringing a legal malpractice case if the amount recovered will only cover your attorney’s fees and costs.

Suing an Attorney for Recovering Less Than Your Case Was Worth

Often, legal malpractice cases arise from a case where the original lawyer recovered some money for the plaintiff, either through settlement or a judgment, but the plaintiff claims that he would have recovered more if the attorney had not been negligent. States vary on what needs to be proven in order to sue a lawyer for malpractice after a settlement is reached (there are concerns that “buyer’s remorse” would lead to an unacceptable number of frivolous malpractice cases if every client unhappy with an agreed-upon settlement could sue his lawyer), but the various legal obstacles to bringing a malpractice case after settlement are joined by what may be an even greater obstacle — the fact that you are suing for less than the full value of the underlying case.

Once again, the practicality of bringing a legal malpractice case is highly dependent on the potential recovery. The difference between what you actually recovered and what you should have recovered needs to be significant in order to justify a lawyer risking the added expense and time involved in bringing a malpractice case. While I have no doubt that there are plenty of $15,000.00 cases being settled for $10,000.00 due to lawyers’ lack of diligence, no malpractice lawyer in his right mind would ever consider taking on such a case. It’s just not good business.

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While a settlement will not act as an absolute bar to you suing a lawyer for malpractice in most states under most conditions, it may act as a de facto bar to you finding a lawyer willing to take on such a case, unless your former lawyer left a lot of money on the table.

It’s Not Legal Malpractice if You Can’t Prove That it Affected the Outcome of Your Case

Lawyers engage in lots of less-than-professional behavior. We don’t return client phone calls. We don’t move cases along as quickly as we should. We miss objections that we should make. Most of these acts, while far from laudable, won’t be enough to support a malpractice lawsuit.

For example, most lawyers would agree that it is important and required by the relevant standard of care to meet with and prep a client for his deposition. But, what if a lawyer doesn’t and the client just shows up cold to his deposition? That’s pretty bad, right? That’s got to be malpractice — or does it? Considering that a deposition is really just the client truthfully answering questions under oath, what would have changed if the lawyer had prepped the client? Certainly, the client would have felt more comfortable with the process, but would his answers have changed to a significant degree? These are the hard questions that need to be asked when considering whether your lawyer committed malpractice.

It’s not enough that you “just know” that something your lawyer did wrong affected the outcome of your case. You need to be able to prove it. If you think your lawyer should have tracked down a possible witness in your case, it’s not enough to assume that this witness would have changed the outcome. You need to actually find that person, learn what he would have said under oath, and prove that this testimony would have been significant enough to get you more money (or avoid a judgment for the defense).

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Legal Malpractice for Failure to Warn of the Consequences of Losing Your Case

There is no doubt that losing a lawsuit, whether by summary judgment, directed verdict or jury verdict, can have serious negative consequences for plaintiffs. You can be held liable for the defendant’s costs, and in some cases, his attorney’s fees. Without a doubt, attorneys should inform their clients of these consequences at a time when the client can still avoid them by either settling or dropping the case. However, even in the case of such an egregious omission being made, for it to actionable malpractice you need to be able to state truthfully that had you known of the potential bad outcomes, you would have either settled or dropped your case. For most clients, this simply isn’t true, and they would have taken the risk regardless of the possible consequences. That’s not to say that they don’t have the right to be angry with their lawyers for not keeping them informed. It just means that they don’t have grounds for a malpractice case if they would have taken the risk anyway.

Things That Are More Likely to Support a Legal Malpractice Claim

While I’ve written at length about how generally awful and difficult legal malpractice cases are, it should be noted that some cases are easier than others. As already noted, a lawyer missing the statute of limitations is the legal malpractice equivalent to a surgeon leaving an instrument inside a patient after surgery. It’s obviously negligent, and now you just have to prove that you would have won your underlying case to have a strong malpractice claim, making it more like one lawsuit than two. Note that this statute of limitations issue also applies to cases where a lawsuit was filed, but the lawyer failed to timely allege additional legal grounds (e.g., negligence and strict liability) which would have won the case for you.

A lawyer failing to respond to a summary judgment motion, resulting in that motion being granted, tends to be malpractice — though you still need to show that you would have defeated the motion had a timely response been filed. A lawyer failing to respond to a Request for Admissions, resulting in you being deemed as admitting things that you would have denied, is likely malpractice. Failure to timely disclose an expert witness in accordance with a court order, resulting in your expert’s testimony being barred, tends to be malpractice. Committing repeated discovery violations that results in key evidence being excluded is likely malpractice. As you can see, it takes some pretty egregious conduct to make for a likely malpractice case. That’s not to say that there aren’t innumerable other behaviors which might constitute malpractice, but these are a few which would tend to have a severe and obvious negative affect on a case.

It’s Not Legal Malpractice Until the Case is Over

Not every bad thing that happens in your case is your attorney’s fault. Trial court judges issue bad rulings that could end or damage plaintiffs’ cases every day. That is what appellate courts are for. So, before jumping to the conclusion that your lawyer committed malpractice, consider whether you are the victim of a bad ruling by the trial judge — one that can be overturned on appeal. You don’t want to fire your lawyer and accuse him of malpractice if he represents your best chance of setting things right on appeal (and he may not have caused the bad outcome to begin with).

The worst thing you can do is fire your lawyer, find yourself unable to find another lawyer to take the appeal, watch the appeal deadline lapse, and then find out that your lawyer didn’t commit malpractice and, in fact, would likely have won on appeal. Be sure that your loss is final before assuming that your malpractice case is secured. It’s far easier to win your original case than to make a recovery on it through a legal malpractice lawsuit.

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74 Responses to Suing an Attorney for Malpractice is Harder Than You Think

  1. Curtis E Castro says:

    Trying to find a legal malpractice attorney in Central Florida is there a way to get a list of attorneys? My personal injury case was in the State of NY. Was basically pushed into settling by my attorney . I wanted to go to trial but he told me if I didn’t settled he couldn’t get me into court and I would get nothing. At settlement I recanted to settle and attempted to fire him he cashed a two party check without my knowledge and signature. was attempting to mailed my check to Florida and disbursed funds without my knowledge. NEED to speak to attorney can you help.

    • fl_litig8r says:

      You’d really need to talk to a NY attorney, not one in Florida. Any malpractice case would need to be filed in NY. I can’t recommend anyone. I suggest that you do not limit your search to attorneys near your original one — an attorney who doesn’t practice in the same town as him would be more likely to take the case, unless you’re talking a large city like NYC. Expect to have to call a bunch of attorneys. I’d limit my search to only those who advertise themselves as handling legal malpractice cases. I doubt that there’s a quick list anywhere of legal malpractice lawyers in NY. You can either Google them or see if the NY state bar website offers an attorney referral service — these are usually free, but they’ll likely only give you the name of one lawyer (most bars refer based on a rotating list), and you may need to hit call several before you find one who’s interested (if any are).

      If you’re saying that your lawyer forged your signature on the check, that’s something you should take up with the NY state bar (as well as your allegations that he settled without your approval). Note though, that if you agreed to settle and he conveyed your agreement to the other side before you “recanted”, it’s likely that the settlement would have been enforced against you even after you changed your mind. You’ll also face the issue of proving that you would have recovered more than you settled for as part of a malpractice case. While that’s not an issue for a bar complaint, it’s a huge issue in a legal malpractice case.

  2. cynthia says:

    Hello, Thank you for posting this web page. It was very helpful. I am finding out that not any lawyers want to take on a Malpractice suit. In 1998 I was injured on the job in Ky. I hired an attorney for my case. When I was injured I had mental issues as well as physical. I can only remember being present for the deposition. My attorney had asked me to lie right before we entered the deposition room. I did not lie. My case settled for a small amount. I was not in attendance for the Asministrative Law Judge Hearing beacause I was told I did not have to be present.I had also requested documentation of the stenographers papers for this alleged hearing and was told that they did not do that for the administarative law judge hearing. When I received my check not only did my attorney get his 20%, he tried to get another 20%. I thought it sounded odd so I called social security. I received a letter from social securuty stating that my case had never been presented in front of an administrative law judge. It was stamped in red on the front of the letter. It has been 15 plus years and I want to know if there is anything I can do about it now? I still have all of my x-rays and the documentation for my case. I also have the letter from Social Security stating my case was never presented to an Administrative Law Judge. According to the law a case is not binding unless it has been heard in front of an ALJ.

    • fl_litig8r says:

      By now, a legal malpractice case, assuming you even had one, is well past the statute of limitations. I’m a bit confused by you referencing a deposition and a settlement together with an ALJ hearing for social security. Social security disability matters don’t involve depositions or settlements, so I wonder if you’re talking about two separate matters — a social security claim and some other personal injury claim. Either way, if it was a personal injury claim that settled, there’s no bringing it back now (even if it hadn’t settled, the statute of limitations would have run by now). If you were denied social security benefits back then, you could reapply now, but it would mean starting the process from scratch again with a new application. If you haven’t worked all these years, you’d no longer be eligible for SSDI benefits (assuming you would have been back then), but might be eligible for SSI benefits if you meet their income and asset standards (you need to be really poor to qualify).

  3. L Carroll says:

    My Probate attorney was hired to file and litigate an Elder Abuse law suit against the relatives that snatched my 84 yr old Mom from her home, took her savings, took her to an attorney they chose, rather than the attorney she had been with for years, made themselves trustees, quit claimed her home to themselves, paid their delinquent property taxes, dumped Mom off in an assisted living facility, gave her no access to her bank accounts, attempted to sell her home… and after a six month spending frenzy (spending Mom’s money frenzy) the lovely son and daughter-in-law resigned as trustees for ‘personal reasons.’Leaving Mom stranded in a city she knew nothing about, in a place she couldn’t get out of. That all happened over a 7 month period. From Dec.11,2011through August 3, 2012. Back to my attorney now, to this day my lawyer has done nothing in regard to filing an Elder Abuse suit. What he has done, is file one successful petition establishing Title to Moms property. My lawyer had the ONLY certified copy of the judges order in his possession. Since May 1, of this year, 2014. The document still had not been recorded as of August 24 2014. Last month. So I Informed him I would do it myself and have the certified copy waiting for me and I would take the preliminary change of ownership form, along with the certified copy of the order and do it myself. When I arrived at his office….there was no certified copy to be found. Soooo….I had to wait in line at the court house and pay 26 bucks for a certified copy of the order. After that, I drove my happy self to the county recorder office and gladly handed over 21 dollars to the clerk. August 25, 2014 I finally got my Moms property back in her name. I’m conservator for my mother, who was diagnosed with dementia 6 weeks prior to her abduction. Statute of limitations on various areas of elder abuse have ran their course, and he has been paid in excess of $38,000. Oh, and he was suspended from practicing law for the month of July 2014. What is wrong with this picture?

    • fl_litig8r says:

      What’s wrong is that you didn’t look for another lawyer sooner. Apparently, this one has issues — being suspended by the bar is a pretty big deal. If the statute of limitations remains on some of the elder abuse claims, you should shop them around to another lawyer ASAP (I can’t imagine the current lawyer refusing to give up any fee claim he may have after just coming off a bar suspension — another bar complaint will not go well for him). Depending on whether his error will result in diminished damages (sometimes claims can brought on multiple grounds and ultimately aren’t damaged if the statute runs on one or more of them as long as the remaining ones are timely filed), you should also consult a legal malpractice attorney.

      Keep in mind that the issue of whether you’d ever be able to collect a judgment from these relatives will likely be relevant to the value of any malpractice claim. If they are judgment proof, then a malpractice claim probably wouldn’t be appealing to most lawyers, as malpractice which only costs you an uncollectible judgment is like a tree falling in the woods with no one to hear it.

  4. L Carroll says:

    Thank you, I appreciate the valuable input. The reason I didn’t seek different counsel sooner is, the attorney was paid in excess of $30,000 within the first 2 to 3 months of his employ. I trusted him. The attorney told me he wanted my conservatorship “firmly in place” before filing the elder abuse suit. The judge granted the conservatorship April16, 2013. But…the following occurred. The judge fixed a bond amount for me. A hearing, re: proof of bond was set for May 14, 10:30 AM. My attorney completely forgot he was on the calendar and was a no show for the hearing. I followed the probate notes daily and I discovered the train wreck that resulted because my attorney “forgot” to appear at the hearing. My attorney was not aware he had missed the hearing until I called him and told him. As it turns out, the trial that led to his recent 30 suspension was being held in Los Angeles. His focus was on himself, not his clients. He stopped returning calls, he did not respond to emails or voice mail. I went to the California State Bar website and there I found that my attorney was on trial. At this point, I began asking how much was left in the trust account. It took forever to get any answer. I was told after weeks of asking that there was a bit over $ 2000 left. I’m sitting here laughing. This experience has been an eye opener. I am mailing my complaint letter to The State Bar of California tomorrow.

    • steve m. says:

      Holy caserole!
      Call many legal malpractice (ethics, prof. responsibility) attnys. explain your story, it might take 20 calls but you’ll get one. You’ve been bullied, you’ve been taken advantage of and you need to quickly take action.
      A good website is “AVVO” to compare and find lawyers in any specialty.
      I feel for ya, good luck and go get em!

  5. Curt [last name removed by admin] says:

    I have a history of back problems and sucessfull surgery in Germany. I’ve been in many accidents and never sued (I Know…Stupid, but I had my own Business and Had to be there, so cuts and bruises were seemingly not worth a suit), however with this Transportation Co. totaling me from the rear, (Charged and admitted fault) and causing a bulging disc @ C-6/5 and less damage to C-6/7. Having an X-Ray just months earlier(Not showing neck probs and the Neurosurgeon stating this rear end hit caused this), my problem started when on the day of the Deposition, this two man firm, (with two secretaries) was served with 1500 pages of Discovery the day of. Everything changed to “You don’t have as good of a case as we thought” ! I refused to accept ANY amount as $9K would not even cover the $12,500.00 I had to spend at the Dentist alone. I am NOW told I MUST have an MRI for Surgery for my Cervical damage. If there is NOT something VERY WRONG with this case/ Settle even if you do not want to… then I’ll have to look into other areas…
    Thanks if you read this,
    Curt Williams

    • fl_litig8r says:

      I don’t know that you’ve asked a question, but I have some observations based on your comment.

      1. The fact that the defendant admitted fault doesn’t mean that it can’t contest causation or the extent of your damages, as I explain in this article. From your description of “many” prior accidents and 1500 pages of discovery (which I assume were largely your medical records, because there isn’t much else to produce if the defendant admitted liability), I’m guessing that the defendant is alleging preexisting conditions and is disputing causation. Your X-ray from months before the accident doesn’t really count for much, as typically disc injuries won’t show up on an X-ray. Your neurosurgeon’s opinion that your injuries were caused by the accident is likely based on your own representations as to when your symptoms started. He has no way (aside from before-and-after MRIs) to prove this, so his opinion is open to dispute.

      2. The fact that you are represented by a “2 man law firm” makes no difference. Even at a 20-man firm, you’ll only have one lawyer working on your case (maybe 2 if one of them is an associate), so I don’t see the size of the firm as a negative. There are plenty of excellent small firms and solo practitioners handling big personal injury cases, so the size of your firm is irrelevant to the quality of the representation they provide.

      3. Bulging discs typically aren’t worth as much as herniated discs, and they can occur from any number of factors outside of accidents. I worked with a lawyer who suffered two herniated cervical discs without ever having been in an accident. They may have even been caused by sneezing, as he was prone to “cluster” sneezes. Don’t assume that a jury will automatically assume that your disc injuries must have been caused by your accident. If you had received medical care for neck pain prior to the accident, it’s a gamble at best as to whether a jury would attribute your current complaints to a preexisting condition.

      4. You don’t say what happened to cause you to incur $12,500 in dentist bills, but if this was for TMJ, that’s another claim that is often challenged with respect to causation.

      5. If you haven’t had an MRI of your neck yet, I don’t know how you’ve gotten the diagnosis of a bulging disc and why surgery is even being discussed at this time. It seems that this is putting the cart before the horse. Unless you’re experiencing radiculopathy, I don’t even know that surgery is your best option. I’ve seen many clients (and I’ve talked about this with many other lawyers who’ve seen the same thing) who have had disc surgery for a pain issue and have found it provided no relief. I’m not a doctor, but it seems from experience that disc surgery is more effective at relieving radiculopathy than pain. You should seriously discuss this with your doctor and consider getting a second opinion before agreeing to surgery.

      6. I don’t know why settlement numbers are being tossed around when it doesn’t appear that you’re at maximum medical improvement (MMI). As I said above, if you haven’t even had an MRI yet and your doctor is considering surgery, it seems that settlement talks are premature.

  6. Chris says:

    Thanks for the info. I recently discovered my attorney failed at basic law 101. He gave me 2 days notice of his suspension to practice law for 90 days. This set off alarm bells in my brain. I scrambled to find new counsel. Over the course of several weeks I learned he either colluded with opposing counsel or has a mental defficancy. He failed first to do discovery, next he failed to object to contempt orders, he failed to submit requested FA and supporting documents. He allowed writs of boadily attachment to be filed. He allowed a property lien to be filed with no objection. Lastly he allowed cancellation of the of the original petition request. The case is on the brink of a final judgement for garnishment. I had to retain a new attorney and pay a significant fee to attempt to salvage the case. Where can you get help with filing a complaint with the Floida Bar? I have looked at the form but like most forms it should be completed by someone with legal knowledge.

    • fl_litig8r says:

      I don’t know why you think the form needs to be completed by someone with legal knowledge. It’s a pretty basic form that just asks for your information, your attorney’s information, names of any witnesses and an open format for describing your complaint. If you can’t describe the facts which form the basis of your complaint (which you seem to do pretty well in your comment), a lawyer won’t be able to help with that. If you have any questions about the form, just call the Florida Bar’s Attorney Consumer Assistance Program (ACAP) hotline (866) 352-0707.

      With respect to what happened with your lawyer, I doubt that it’s collusion or stupidity. For a lawyer to drop the ball as you describe, it is usually either an addiction/alcohol issue or a mental illness issue (most often depression). It sounds like he just shut down. I’m not excusing his behavior, but I suspect that there are serious personal issues going on in his life, and this isn’t a simple case of laziness or stupidity. The existence of a prior bar complaint also suggests this, as lawyers who have serious issues usually neglect all of their cases, not just a few.

  7. Chris says:

    Thanks for the feedback. Again very insightful.

  8. Annika S says:

    My attorney is playing games with my case. He refuses to quit after I have fired him and refused to return my file for a year. He then continued to lie to me about filing a case for me that he initiated by lying to me stating he has sued this company before. (discrimination case). He has been sitting on the case for two and now claims he has filed a lawsuit and is waiting for the paper to be stamped and retuned to him. I believe he is waiting for the statue of limit to expire so he can blow the case. He is doing all of this because I refused to sleep with him. What are options as far suing him for legal malpractice due to fraud?

    • fl_litig8r says:

      I seriously doubt that he is trying to make you miss your statute of limitations on purpose. Doing that while he is still considered your lawyer (something that seems to be in dispute) would be grounds for a malpractice case, so I don’t see any reason why he would. When he refers to waiting for a paper to be stamped and returned to him, this sounds like he actually did file a lawsuit, as the complaint will be stamped “received” by the clerk on the date of filing.

      It sounds like you really need to clarify whether he’s terminated or not, because it doesn’t seem that he received the message. If he’s refusing to return your file, it could be due to a valid retaining lien (which is a lien on costs, not fees), which would depend on how costs are addressed in your fee agreement.

      I can’t say whether you have any kind of case against him at all at this point. If he didn’t miss the statute of limitations, then I doubt that you do because your lawsuit is still viable. You may have grounds for an ethics complaint against him with the state bar, but that’s a completely separate matter.

      • Annika S says:

        Here is an update. He is really trying to lose this case or wait until the statue of limitations runs out. He informed me he filed a lawsuit on October 17 of this year and today he told me it was rejected because the “jury demand” fee was not paid. He continues to dig a deeper whole for himself. I will have to contact the Bar association as well as the AGC.

        • fl_litig8r says:

          As I said before, I can’t see any reason for him to intentionally try to miss the statute of limitations. At worst, it sounds like negligence. If your statute has already passed and you’re in a state where it’s clear that failure to pay the clerk the correct filing fee means that the statute of limitations has not been met, then you should contact the bar and a legal malpractice lawyer. If the statute has not yet passed, he hasn’t committed malpractice yet and he likely hasn’t committed an ethics violation, either.

          • Annika S says:

            Here is an update. I received a call from the attorney stating the partners at the law firm are irate b/c I stated that I did not like being lied to and would file legal action against them if they did not make good on the promise of filing the lawsuit and they have ordered him to drop me as as a client. the atty who is handling the case stated he would “secretly” file the lawsuit w/o the partners’ knowledge. I am very leery of this and I believe he just said that so I would not sue the law firm. All of this is because I refused his sexual advances. what are my options?

          • fl_litig8r says:

            I doubt that he’s afraid that you’ll sue the law firm, because I haven’t heard anything that indicates that you have any grounds upon which to sue them. If your statute of limitations hasn’t passed, you can’t sue them for dropping your case — they are legally allowed to do that regardless of whether they have a good reason. Even if this associate made sexual advances (assuming this was verbal and not physical), you wouldn’t be able to sue the firm, or even the lawyer himself, for that. At worst, you could report him to the state bar for an ethics violation, but that’s not anything the firm itself would be afraid of. This lawyer may be afraid of you filing an ethics complaint against him, which would explain him offering to file suit for you behind his firm’s back, but even an ethics complaint wouldn’t entitle you to sue him or collect any money damages from him.

            I can’t say whether you should take him up on his offer (clearly this also depends on the nature of these “sexual advances”). If you can find another lawyer to take your case, that would be preferable. However, if you’ve tried to find another lawyer and no one else wants your case, even having a bad lawyer is better than no lawyer. What you should do really depends on what options you have with respect to finding another lawyer.

          • steve says:

            Annika s,
            just now read your post, probably too late, but DO NOT listen to replies from posts.
            Your lawyer is incompetant, threaten and then sue the bejeesus out of them!

          • fl_litig8r says:

            Yeah, that’s real helpful advice. Are you offering to represent her in her malpractice case, counselor? Uninformed, emotional responses from people with no actual legal knowledge may get you likes on Facebook, but they do no one any good in the real world.

  9. Ryan says:

    Law firm in AZ have certainly mishandled my case. Am involved in a termination of child support, that was agreed upon by both parties in May 2013. My attorney neglected to file paperwork with court, all while telling me everything was going smoothly. In Feb 2014, he left the firm, and me, high and dry. I then began working with another attorney at the same firm, who then continued to, and acknowledged, not doing things in a timely manner, and would “make things right”. This is still not finished, but the hearing is fast approaching. I am seeking reimbursement of all support provided since May of 2013, as both parties agreed to terminate at that time. However, this new attorney has received a settlement, only offering a few months of reimbursement. I am pretty certain I have grounds to sue for malpractice, and the opposing counsel has pretty much stated this in their correspondence (as in my seeking recoupment should come from law firm, not client). My concern is if I agree to settle with my ex, am I still able to sue the law firm for malpractice? Thanks.

    • fl_litig8r says:

      I’m not an Arizona lawyer, but from my brief research it doesn’t appear that settlement of the underlying claim bars a legal malpractice claim there (be careful if you’re asked to sign a release though, as the lawyer may try to slip in language that releases him as well). However, as I state in the article, having a small amount in dispute (I don’t know how much these months of child support amount to) might act as a de facto bar to a legal malpractice claim because you won’t be able to find a lawyer willing to take the case.

  10. Chris [last name removed by admin] says:

    Recently my wife was involved in a particularly nasty guardianship/trustee case with her brothers. There was a court order issued and her attorney advised her to not do certain things in the order and failed to send documents on time. Opposing counsel then made a motion to charge my wife with contempt of court and incarceration among many other things. At the hearing he actually told the judge he should be held responsible for the non-compliance with the court order. Another hearing was scheduled for which she hired a new lawyer who was shocked at the story she told him. He actually told her at first he didn’t believe her but as he read the court transcripts he was astonished at the things her lawyer failed to do. To make a long story short the case ended with my wife being cleared of the contempt but the judge decided to make her pay for the other attorneys and court costs which may be upwards of $50,000 as the hearing lasted 8 hours. The judge made a comment to the effect that the my wife should hold her old lawyer financially responsible. This is a very brief summary of what happened but her new lawyer also is president of the county BAR Association and he thinks she has a solid case for malpractice.

    • fl_litig8r says:

      Your wife’s case is quite different than the standard would-be malpractice case. She doesn’t really have the lawsuit-within-a-lawsuit problem (unless she’s suing over the result of the matter, as opposed to just the sanctions for non-compliance with court orders). Plus, her damages are pretty well-defined, insofar as she will have a fixed amount assessed against her by the court which she can seek from the attorney. Hopefully, her original lawyer carried malpractice insurance.

      I have to say that I’m a bit bothered by the judge’s decision to sanction only your wife after her lawyer admitted that he was responsible for the non-compliance with the court’s order. I fail to see why the judge didn’t sanction the lawyer directly, or at least make the sanctions joint and several between her and her attorney. Judges have pretty broad powers to sanction lawyers directly (judges hold lawyers in contempt often enough that “bring your toothbrush” is a joke among lawyers when one thinks another is about to be punished with contempt — including possible jail time — by a judge), so I don’t know why a judge who actually told her that she should hold her old lawyer responsible didn’t do so himself. There’s nothing that can be done about that, though, as suing a judge is practically impossible due to the absolute immunity they enjoy for actions they take within their jurisdictional power.

      • Chris [last name removed by admin] says:

        Can we bring the judge before a judiciary board and have his decision thrown out? Also if my wife is found not guilty of willful non-compliance does it follow that anything involved in the in the non-compliance charge is considered now to be in compliance? Basically I’m wondering if she is cleared of contempt how can she be sanctioned at all? We are considering an appeal.

        • fl_litig8r says:

          No, the judge has discretion to sanction either the party, the attorney, both or neither. This isn’t something a judicial review committee would take issue with, and they wouldn’t have the power to “throw out” his decision anyway. She’d need to appeal, which would be a waste of time as to this issue because the standard of review would be “abuse of discretion” and, while I would have ruled differently if I were the judge, I can’t say that he abused his discretion. As to the issue of whether she should have been sanctioned at all because there was no willful non-compliance, that might be worth appealing.

          • Chris [last name removed by admin] says:

            Thanks for your input. We are certainly going to appeal the sanction as we view it as someone found not guilty of murder but being sentenced to two years in jail just because the judge didn’t like the individual

          • fl_litig8r says:

            That’s a bit dramatic of a metaphor, but I get your point.

  11. Russ says:

    car accident defendant admits fault. Permanent soft tissue severe whiplash injury, obviously having a tough time proving perminacy ..
    Most of these types of injuries need to go to trial…Now of coarse it seems all lawyer are scared to go to trial. Here’s my problem.My lawyer Failed/neglected or however you want to call it, to tabulate and submit my personal out of pocket medical bills to the defendant insurance company. He only submitted the medical leins that came in on the case which was about $2000. Now of coarse with that low of medical bills the offered settlement was $12k…The problem is i had about $4k in co-pays, drugs,& deductibles, ect over the last 3 years due to the injury. He received all these charges from the doctors and i sent in all the drug receipts to him. He failed to submit this in the demand letter which would have raised the medical to about $6k which i “believe” would have changed the offer quite substantially. Once i was very mad and called him on this mistake when i realized it just a few months ago. He sent in a motion to dismiss himself from my case. He knows he was wrong and said he withholds all legal charges and i owe him nothing. I have a trial set for 5 months and no lawyer will take my case as the don’t want to go to trial for soft tissue. I think it could be won but you have to invest in specialist and it costs money to build a good case. 2 questions, Is my old lawyer accountable for “malpractice” in my case. And 2- can i litigate my own case in trial if no lawyer will take me? Or what else do i do? just drop the case? I’m in SW florida.

    • fl_litig8r says:

      “Most of these types of injuries need to go to trial…Now of coarse it seems all lawyer are scared to go to trial.”

      This first thing you wrote isn’t really true. The vast majority of soft tissue cases settle, even when permanency is hotly contested. Most just aren’t worth enough to justify the expense of a trial (for either side). The second thing you wrote is kind of true, as I discussed in this article. Of course, lawyers will be less inclined to take a low-value soft tissue case to trial than one where the payoff is sufficient to overcome their inherent reluctance to go to trial.

      I really don’t see you having a decent malpractice case against your old lawyer. Messing up a settlement demand by leaving out some medical costs doesn’t do irreparable harm to the case (unless they accept your demand). This is something that can be fixed in a subsequent demand or at worse, taking the case to trial. It’s also not malpractice for him to drop the case, even if you’re unable to find another lawyer. Basically, if a lawyer were to take your case now, he could still get you fair value — that’s why I don’t see you having a malpractice case. It’s not relevant that no lawyer will actually take your case. This is one of the reasons I say repeatedly on this site when people want to fire their lawyers or yell at them and risk their case being dropped: even a bad lawyer is better than no lawyer in the vast majority of cases. Be sure you can get another lawyer before losing one you’re not happy with. I know this doesn’t help you now. I’m just saying it again for any future reader who sees this comment.

      I don’t see you successfully trying this case without a lawyer. I’d seriously try to settle it. There’s no point in just dropping it without giving settlement another chance. Even if you can just get them to restate their former offer, it’s better than nothing. If that doesn’t work, you can try to woo a lawyer by telling him that you just want him to take your case “for settlement purposes”, and that if the case can’t be settled you wouldn’t object to him withdrawing and/or voluntarily dismissing the case. He’d then try to bluff the defendant into settling by pretending that he is willing to try the case. You’d owe a fee using this method, so it’s worth trying to settle it yourself first.

  12. Darin says:

    Thanks for reading. This is a situation in Florida. I own a 2nd home in Florida. I am from Indiana. Had a water damage claim. Turned into insurance company. Hired the Plaintiff to do plumbing repair then a remodel. I just signed a assignment of benefits form. Received check from insurance company for $15,223 I sent them $13,500. Difference is because I had to hire a couple companies to fix issues they did not and for work they did not do. Several months later sued by them for $15k. They presented a contract for 28k and sued for the difference. I had never seen it before. We hired an expert witness who concluded they only did 10k worth of work. Found out they did not pull permits and plumber was not licensed. My attorney was supposed to file a counter claim. None ever was. Paid over 14k for all fees mostly Attorney. Was banking on possibly receiving attorney fees if they did not take our settlement offer and we won a certain percentage. Plaintiff then went after my Insurance company who was not part of any lawsuit. They paid them $18,500. So plaintiff received $32,000 for 10k in work. I was left with 14k in legal fees and a house not completed and with liability issues. I personally think this is a gross negligence or intentional misconduct claim which would allow me to recover 3 times the damages.

    • fl_litig8r says:

      Construction claims are really beyond my area of expertise, but I looked into the issue of unlicensed contractors and I assume that your claim for treble damages would be based on Fla.Stat. §768.0425. This statute does allow a consumer to recover treble damages for any injuries (which has been interpreted to include all forms of injury, not just “personal injury”) suffered as a result of negligent work by an unlicensed contractor. It also allows you to recover attorney’s fees if you win, but that would not apply to the defense of the contract claim. When you say the plumber was unlicensed, I’m not sure if you’re referring to a state DBPR license or some local business license. If it’s the latter, then the statute wouldn’t really apply. If it’s the former, then I would have expected that the unlicensed status of the contractor would have also been a defense to his contract claim under Fla.Stat. §498.128.

      I’m not sure how his contract claim against you was resolved, but if it was voluntarily dismissed due to him settling with your insurer, you may still be able to bring your claim against the contractor. It is possible that it is now barred if it is considered a compulsory counterclaim to the contract claim, but because I don’t know the procedural history of your case and I haven’t researched this issue as to construction claims, I can’t say for sure. I assume that because your attorney billed more than $14,000 in fees that the case progressed beyond the initial pleadings stage. Did your attorney say why he didn’t file a counterclaim? What was the disposition of the contractor’s case against you — and I mean how it technically ended, not merely that the insurer paid.

  13. Darin says:

    Thanks for response. Case was voluntarily dismissed without prejudice. I assume I can still file a claim. My ex attorney says. I have to file a new claim. Case was settled about a day before pre-trial conference. We went through depositions and mandatory mediation. They were basing there claim on a contract I had never seen. The itemized list I received was from insurance company after I requested it. It was what payment was based off of. We also had proof they did not do what was on the “contract”. They charged 6k to replace hardwood flooring. All they did was sand it down. They charged a couple hundred to paint a closet. It clearly was not touched etc. the Plumbing license applies to a state law. One issue is that they had a plumbing company and a remodel company under the same building but different names but ran by same people. I believe both are corporations. My attorney would not say why a counterclaim was not filed. I have a feeling I made a big mistake by hiring a lawyer from the same city as the Plaintiff and their Lawyer, or it wouldn’t surprise me if he didn’t get paid off.

    • fl_litig8r says:

      Your lawyer didn’t get paid off. Why do so many people assume this stuff happens? Anyway, I suspect that there were some issues with the plumbing company being a separate corporate entity the precluded you from using the unlicensed contractor defense or bringing the counterclaim. Again, this isn’t my specialty, but it makes sense to me that you wouldn’t be able to bring the counterclaim against the general contractor for the actions of what I assume was a sub. This may be a good thing, as it might avoid problems you’d have if this had been a compulsory counterclaim (if you don’t bring those, they are waived). Of course, this raises other questions about whether you qualify as a consumer under the treble damages statute, assuming you did not contract directly with the plumber. It’s worth exploring with a lawyer who handles these types of cases. It may also mean that your lawyer didn’t do anything wrong.

  14. Christie Horsley says:

    What a terrific website! I stumbled across your site in the course of researching what, exactly, constitutes legal malpractice (I don’t have any legal problems, it’s just for a class I’m taking) and it’s proven to be very educational. Thanks for the great site.

  15. Sherry says:

    Your website is so informative! I believe I have a legal malpractice case but would like your opinion… please.

    I was injured at a chiropractor’s office in March 2012. The doctor tore the TFC disc in my wrist, while he was adjusting my low back because he was holding it or had his hand it when he did that forceful procedure.

    After 8 months of several doc visits I finally got someone to refer me for an MRI, which showed a complete tear in the TFC disc. My boss referred me to his attorney friend. The attorney did not do malpractice but assured me, during the consultation in Feb. 2013, that he could handle my case because he said he worked with a couple malpractice attorneys, around the corner.

    First, he said I had to see a surgeon and that surgeon would have to say I needed surgery before we could proceed. That was done a few weeks later. Check!

    Then he said I had to actually have the surgery before we could proceed, and he would get my records after I had it. I had to delay the surgery until Nov. 8th, 2013. Also, they had to do another surgery at the same time… and ulna shortening so the bone would not tear through the repair. I called the attorney and said it was done. Check!

    In January 2014, the attorney finally sent a letter to the chiropractor saying he was representing me and wanted my records. They were charging him $295 for them. He said I could either get them or he would pay the money and bill me… even after saying he told them it was in excess of the legal limit. I got them a few months later. The records were not even complete… they only gave me 2 pieces of paper that showed the docs SOAP notes. The attorney didn’t think anything about this.

    Then he says we can’t proceed until I heal completely, but even by summer 2014 I still was not healed, and I would still need surgery to remove the plate from the ulna shortening, due to irritation and pain. The surgeon said I had to wait 1 year before he would remove it, which would be Nov. 2014 (5 months before the statute of limitations).

    Then, at the end of August 2014, the attorney told me that I had to file a complaint with the Chiropractic Board before we could proceed and my case hinged on their decision (which I have recently found out was not true at all). Even the board attorney was surprised that my attorney told me that.

    Anyway, I immediately called the board to get an official complaint document to fill out (they had to mail it), and then filed the complaint. I told my attorney that they said it would take 2 months before a hearing would be scheduled, which ended up being on Nov. 25th.

    On Nov. 7th, I asked my attorney if he would be available to come that day, and he said he would. Then on Nov. 17th (10 days later), he emailed and said that he found a malpractice attorney that did not have a conflict of interest, and would take my case. He also sent me a release form to sign him off my case. I was reluctant but he pressed me on it several times, so I finally got it signed and returned to him on Dec. 12th. During that time, the hearing had been rescheduled (by the chiropractor) and was set for Dec. 16th.

    I knew that a new attorney would not be able to look over my case and come to a hearing in 4 days and my attorney said my case hinged on the boards decision, so I had not called the referred attorney yet. By the way, the chiropractor brought 2 attorneys… while I had NO attorney.

    I finally called the other attorney on Dec. 22nd and told them I was referred to him, but they said he would NOT be taking my case. I told them that my attorney had talked to him personally and he said they would… I thought there must be a misunderstanding. I asked them to have the attorney call me back.

    Instead, the attorney’s paralegal called back about 5 minutes later. I told her what my attorney told me, and then said, “I don’t know if they are friends or what.” and she replied to me, “Yes, they are friends.” I said, “What?” and she repeated that they were friends!

    So, I am wondering if my attorney dumped me off on his friend that already knew he wasn’t going to take my case, so I would sign the release form for him. I asked my (now) non-attorney what was going on, and he said that I must not have met his criteria. I never even got to tell anyone about my injury, so how could that be… they just said that they were not going to take my case. It felt like they were already expecting my call.

    Here it is, January 24th, and I have been furiously searching for a new attorney since before Christmas, but everyone keeps telling me that there is just not enough time to get a malpractice case together… and they decline. I know that no one will be crazy enough to take my case now, with less than 2 months before the statue runs out.

    My attorney dumped me, knowing this. I had not idea how long it takes to get a case together… I’m not an attorney. He couldn’t say that I didn’t have a case because he NEVER got ANY of my medical records to review. He only knew what I told him about how the injury happened. He was my attorney for 19 months and never did anything but delay me and my case, then dump me 4 months before the statute ran out.

    Surely I have a legitimate legal malpractice case. I know I have to prove I would have won my case, too. I know my medical records will prove that I never had a wrist injury or complaint, the surgeon reported that the disc tear “appeared traumatic”, and I have proof that the chiropractor lied in the hearing… recorded proof!!

    All of my communication with my former attorney were through emails, so I have evidence of everything he said and all of the delays. Surely he had enough time to search out a medical professional to testify on my behalf, but I know that he only asked 1 chiropractor “friend” of his… which coincidentally went to the same college and the chiropractor that injured me. I think this is who my former attorney was referring to when he talked about a conflict of interest.

    What are your thoughts… if you don’t mind? Do I appear to have a real case? I know this was a lot to read.

    • fl_litig8r says:

      I know it’s not what you want to hear, but I doubt that any lawyer who drops a case 4 months before the statute of limitations runs, even if he held onto it and did absolutely nothing prior to that, would be held liable for malpractice. He really didn’t need you to sign a release to drop your case. He could have done that unilaterally because he hadn’t yet filed suit. The fact that he got a release from you makes the odds of a malpractice case even less tenable.

      The problem is that lawyers can and do take medical malpractice cases even with a very short time left on the statute of limitations — as long as they look like really good cases. I think you may be having a problem with yours because lawyers don’t see it as being worth enough (even if it looks like a strong case from a liability standpoint) to justify the rush needed to work it up and file before the statute runs.

      Your old lawyer’s argument will be that he shouldn’t be held liable for you being unable to find a lawyer with 4 months left on the statute. In theory, this is actually plenty of time to do what needs to be done to file a malpractice suit (I’ve done it myself in less time, and I don’t specialize in med mal). He will argue that holding him liable will open a Pandora’s box of lawsuits against lawyers who withdraw while there is still a reasonable amount of time left on the statute, and it’s a pretty good argument. What if a lawyer withdraws when there are 6 months left or 8 months left? Where do you draw the line? You can’t make the reasonableness of the time frame hinge on whether the client actually finds another lawyer.

      I’m not saying that he didn’t screw you over. The things he had you wait for (surgery, a board complaint, full recovery) are things you didn’t need to wait for. Him saying that his friend accepted your case when he actually may have just made a referral that the other lawyer hadn’t accepted at all was unacceptable. Unfortunately, none of that did any permanent damage to your case. A lawyer could still have taken it and worked it up in time to file after this lawyer dropped you. It’s not like he left you just a few days or even a few weeks. The fact that no lawyer was actually willing to take your case doesn’t retroactively make him dropping you legal malpractice.

      His dilly-dallying for years may be grounds for a bar complaint against him (ethics rules require diligence in representing a client), but I don’t really see it being the basis for a winnable legal malpractice case. Also, if lawyers viewed your case as not worth rushing over to file a med mal case, they probably won’t view it as valuable enough to justify the added trouble a legal malpractice carries as well, because your damages for the legal malpractice case would be what you missed in the med mal case.

      • Sherry says:

        Thanks for your quick response and extremely detailed explanation. This is extremely disheartening to hear, though. It seems that no matter what I do, I’m the one that gets screwed. If you knew my life, you would see that I am the textbook example of “life is not fair”.

        You are very kind to be so helpful to so many people. You must be a really good and caring person.

        Thanks again.

      • Sherry says:

        Just a couple more questions, please:

        Does an attorney have to get the “expert witness” from another doctor (chiropractor, in my case) in the county where the injury happened, or is it just someone in the same field of medicine?

        I came across several websites that offer expert testimony (like amfs.com). Are these the types of places attorneys go to for the testimony, or at least where they can get the testimony?

        Thanks,
        Sherry

        • fl_litig8r says:

          I don’t know of any states that require med mal experts to come from the same county (or even the same state). I really can’t imagine a “same county” requirement, just from a practical standpoint. Usually the main requirement is that they practice in the same specialty.

          With respect to where attorneys get their experts, it varies widely. Some use third-party services like the websites you mention. Others get referrals from other lawyers who have used a particular expert. Some have doctor friends who give them a referral. There is no one “best” path, though getting a recommendation from another lawyer seems to be the most reliable method for getting someone who will testify effectively.

          • Sherry says:

            Thanks for your help… you really are kind to respond with all of that information.

            After repeatedly hearing, “There’s just not time to get a case together”, I’ve decided to give up.

            I truly hope you are blessed in some great way for all of the help you give to others!

          • fl_litig8r says:

            I’m sorry I couldn’t give you a more optimistic answer or some solution to your situation. Thanks for not blaming the messenger.

  16. mike [last name removed by admin] says:

    can an attorney be found for malpractice if they didn’t research properly? (going rates for a investment building?)

    • fl_litig8r says:

      I have no idea what you mean by “going rates for an investment building”. This sounds like a type of law with which I am not familiar, so I would be hard pressed to say if this alleged lack of research would constitute malpractice. I really need to know what a reasonable lawyer would do to say if another lawyer’s conduct could be malpractice. If it’s something involving an area of law I don’t know much about, I can’t always say what a reasonable lawyer would do.

  17. Moshe says:

    Hi
    I had a recorded second mortgage on a property for money owed to me
    I hired an attorney to file foreclosure he did file but didn’t continue the foreclosure procedure after the defendant didn’t respond.
    a year passed and my attorney died so I hired a new attorney and he continued the foreclosure but defendant filed a motion to dismiss since it passed statute of limitations my new attorney argued that since my previous attorney was sick and died by the end of the year we should get the option to continue the case even after statute of limitations
    The judge firmly argued that since there was partners in the firm they had to warn us that we have to continue foreclosure not to get in to passed statute of limitations but the judge reserved her final decision

    My question is I got an offer to settle for 30% of money owed, now if I accept this offer will I lose my right to sue the first law firm?

    • fl_litig8r says:

      Typically, a low settlement accepted due to a lawyer’s malpractice damaging your case does not exclude a subsequent malpractice suit. Accepting the settlement would likely be viewed as mitigating your damages. In other words, if you didn’t take the settlement and sued for malpractice, the defending lawyer could say that your damages should be reduced by the amount you could have accepted by way of settlement because you failed to mitigate your damages.

      That being said, I’m not sure if you’ve run into a real statute of limitations issue here. It sounds like the foreclosure claim is at risk of being dismissed for “failure to prosecute”, which often occurs if no substantial docket activity takes place on a case within a certain time period (often 1 year). If that is all it is, you can just refile the foreclosure after the dismissal (assuming it is dismissed at all), as long as your original claim is still within the statute of limitations. You should really make sure that you’re facing a true statute of limitations issue, and not merely a dismissal for failure to prosecute, before contemplating a legal malpractice action or settlement of the debt.

  18. sandy says:

    I got into a car accident and had 3 major surgery. The defendant has 100% liability. The case settled for 15% of the defendant’s insurance policy limit. My attorney thought this was an easy case until the trial was about to start and realize the defendant found some evidence against me. I really feel my attorney dropped the ball on this one. He was not prepared and he didn’t even give me a copy of my deposition. Is there anything I can do now?

    For a personal injury case, how many “vote” do I need in order to win if there are 6 jurors in total?

    • fl_litig8r says:

      If you settled, then there is almost certainly nothing that can be done. While you may be second-guessing his strategies and advice now, unless you can point to some serious blunder he committed during the litigation which forced you to take a low settlement (and not giving you a copy of your depo would not be enough), you don’t have ground for a legal malpractice case or even a bar complaint. If he got cold feet before trial and managed to convince you that his fears were justified so that you’d settle, that’s purely a judgment call by the both of you — not malpractice.

      As far as jury verdicts go, all federal courts and most state courts require a unanimous verdict in civil cases. Some states allow a majority verdict in civil cases under certain circumstances (under a certain dollar amount, for example). In states that require a unanimous verdict, failure of the jury to reach one results in a hung jury and a mistrial, meaning you have to re-try the case if it can’t settle. I actually had this happen to me twice in one case in federal court (a controversial civil rights case with a 12-person jury) before it finally settled — so, it does happen.

  19. Susan [last name removed by admin] says:

    My attorney missed the deadline for filing a brief with the State Supreme Court by 2 days. She apparently miscalculated the filing date. The Supreme Court dismissed my case for not filing my brief within 10 days.

    I don’t want to sue my attorney, but do I have any other recourse.

    • fl_litig8r says:

      Unless she manages to find some way around that error, I don’t see any other recourse. Of course, if you had lost the underlying case both at trial and the primary appellate court, it might be tough sell in a potential malpractice case to claim that the Supreme court would have ruled in your favor had she timely filed her brief. It will probably be tough to find a lawyer to take such a case. If you do intend to go the malpractice route, it may be worth first trying to reach a settlement with her directly, but don’t expect anything near what you think is the full value of the case due to your odds of winning the underlying case not being the greatest.

  20. Anonymous says:

    What if the client files a case with the Bar and the Bar finds the lawyer negligent and the paralegal guilty of practicing law without a license. Will a lawyer typically take such a case?

    • fl_litig8r says:

      It depends on whether the damages caused by the alleged negligence make it worth the attorney’s time. For example, if someone has a terrible negligence case that some lawyer foolishly agreed to take, and then that lawyer missed the statute of limitations, most malpractice lawyers wouldn’t be interested because the underlying case wouldn’t have been worth much, if anything. The bar would still sanction the lawyer, but that has nothing to do with the value (or lack thereof) of the case.

  21. erik voss says:

    Built in defenses to protect liars, uh I mean lawyers, from being held accountable. How nice. And, we get to hear from another lawyer telling (gloating) how difficult it is. Sad and sick.

    • fl_litig8r says:

      Yeah, it’s all a big conspiracy and not just a natural result from the nature of the claim. Why don’t you share with everyone how you’d change things to make it better? How should legal malpractice claims work? How does a client prove his damages if not by basically having to prove the underlying case where the alleged malpractice occurred?

      If you took this article to be gloating, then that’s just your bias against lawyers coloring your opinion. You know, not all clients are honest wonderful people, either.

  22. Tommy says:

    is a lawyer required to file a complaint to protect his client if there is a cannon ethic rules violation, and unclean hands by defendants?

    Can lawyers be deposed in a civil suit if they were witness for their clients in other tribunals which the issues also are part of the civil suit and committed perjury under oath in the other tribunals?

    • fl_litig8r says:

      You need to be a lot clearer with your question. Are you asking if the lawyer has to file a bar complaint against another attorney who commits an ethics violation? Ethics rules require that he does, but this can often be circumvented because most ethics violations are not clear-cut. If you’re asking about whether he needs to file a lawsuit, the answer is almost always no. The only exception to when a lawyer is ethically required to file a lawsuit is when the statute of limitations is about to run on a claim and the lawyer agreed to represent the client for that claim. He doesn’t have to file for every claim the client thinks may be possible if he doesn’t think those claims are reasonable, or if he never agreed to pursue those types of claims for the client.

      As to your second question, you need to provide some more facts. The question is far too vague for me to answer as it is written.

  23. Tommy says:

    thank you for your reply. the lawyer was given evidence of the unclean hands, he brought it up at a hearing, and filed a brief on appeal in regard to unclean hands and the cannon ethic violation. Sorry if i was not clear this was a open lawsuit where the cannon ethic violation occurred, and he refused to deposed the lawyers that he had evidence (transcripts) of the unclean hands and the perjury. and he took no action. even after his client keep saying to depose the lawyers who testified as witness in the two tribunals one was a state administrative hearing. evidence was obtained from the state against the defendant(not state agency) which showed that they lied and their statements to the tribunals were pre-textual. the failure to depose the lawyer had a adverse affect on the case. in additions the plaintiffs attorney was given hundred of documents to support his client position for retaliation and whistle blower and the plaintiffs attorney never used the documents. he never followed the clients wishes to depose the witness for the defense who created the lie. the plaintiffs attorney said that there is nothing more he can do since the appeal court has ruled, even when they did not address the cannon ethic violation or unclean hands by the defendants. So is there a problem somewhere ? Plaintiff attorney never did more than one discover for documents all documents to support case was supplied by client .

    Oh another thing this lawyer never attempted to resolve this lawsuit at any time. he made no offers to the other side. Was he supposed to try to settle this lawsuit prior to going to trial. the case was almost 5 years old with no movement until late 2014

    • fl_litig8r says:

      I can’t really say whether your attorney did anything wrong just from what you’ve stated here. Attorneys make decisions on who to depose or not depose and what documents to use or not use for a variety of reasons which are often very specific to the facts of the case. Whether the client wanted certain people deposed or documents used doesn’t sway me much. The client hires a lawyer because of the lawyer’s experience and knowledge of legal strategy. Might this have been a lazy or negligent lawyer? Sure. It could just as easily be a simple disagreement over strategy, such that if I heard the lawyer’s reasoning I might think he was right. I won’t be able to say which it is for your particular case, so if that’s what you were hoping for I’m sorry.

      As far as the lawyer not making attempts to settle, did you instruct him to make an offer which he didn’t convey to the defense? If not, then maybe he didn’t try to settle because he thought it would be futile. Again, I can’t make a blanket statement about this being wrong without knowing the lawyer’s reasoning.

  24. Tommy says:

    thank you for your reply. this case was to complicated to lay it all out here. Again i thank you for your open frank reply.

  25. AIDA says:

    My attorney failed to represent my children and a car accident case. Only me and my husband received a settlement. Can I sue for malpractice/negligence?

    • fl_litig8r says:

      Did the attorney agree to represent the children? Has the statute of limitations run on their claim? Were the children themselves injured in the accident, or are you asking about a loss of consortium claim on their behalf? Loss of consortium for children due to the injuries to a parent is not recognized in all jurisdictions, and these claims are practically never brought for a variety of reasons. If it’s a loss of consortium claim that you’re talking about, I doubt you’d be able to find a lawyer willing to pursue a malpractice claim over that. The damages likely wouldn’t be worth the effort.

      • Aida says:

        I assume that he agreed to represent all of us since all 4 of us was involved in the car accident. I found out that he did not represent them when he called me about the settlement that me and my husband were offered. When I asked him about the children he told me that they were going to get something but not as much, then he called me a few days later to tell me that both children will get $100 each. Accident happened on 01/19/2015. My oldest (6 years old) had pain on her right shoulder and my youngest (11 month old now) had pain on her spine which was evaluated by a chiropractor. Both children went to the chiropractor twice since they were too young for treatment I was given instructions what to do at home with them. I also found out that the lawyer never requested or never received the children evaluation reports from the chiropractor until after he called me about the settlement. I did confirmed with him that he failed to represent my children and he replied that I never told him to represent the children.

        • fl_litig8r says:

          If the children weren’t listed as part of the fee contract and the lawyer didn’t expressly tell you he was representing them, then it just sounds like a miscommunication between the two of you, not malpractice. As long as you didn’t release the defendant and insurer for damages to the children as part of your settlement, their claims are still viable — the accident happened less than 6 months ago, so it’s not like the statute of limitations ran. If these claims are worth pursuing (and I have serious doubts that most lawyers would think they they are) you’d have more luck pursuing their claims directly than pursuing a malpractice claim against the lawyer. I think that the minimal damages you could expect from either type of claim would keep most attorneys from taking the case, however.

  26. wilfredo [last name removed by admin] says:

    my son was convicted of sexual assault and was sentenced to 4-6 years. He was denied hearings for pcra, conflict of interest appeal and now our attorney failed to file the writ of habeas corpus on time. the justice system has placed road blocks in spite of my sons innocence. now I am told that its all over. all he can do is ask for a pardon.

    • fl_litig8r says:

      I’m not sure what your question is, but I don’t practice any criminal law so I can’t speak as to what you’ve been told about his current options.

  27. Kimberly says:

    Hi, Great site!!
    I realize your specialty isn’t family law. But was wondering if you could help. After a 18 year marriage my husband has an affair and files for divorce. He took care of the financial aspects of our marriage the entire time. I simply knew nothing about anything other than I had a couple credit and debit cards. He talked about us having stocks, IRA’s and bonds over the years. I didn’t even know where to start. I read that if you can’t come up with the financial documents that the other parties will be used. I started looking into some things and found that he had been taking money out of our accounts. I needed to hire someone to check on assets, banking and property. A motion was filed to continue and it was denied. Do you have to put reason on motion when it is filed? We proceeded with final hearing. For the past 3 weeks I asked my attorney for several different documents to be produced because I was clueless and it simply did not happen. I was concerned that the affair wasn’t discussed at hearing. Which it does help in spousal support. Does there need to be certain evidence for that? I wanted cell phone records, credit card records and copies of income taxes. I did finally get copy of taxes a couple days before hearing. I wish I knew that I could have gotten our financial information by request of my the attorney since I had no idea about them. Since he was working on my behalf is he not accountable for that or does it fall under if you don’t produce they use what is provided by other party? All that was produced was a spreadsheet listing assets, liabilities and inflated bills and debt which I found in discovery. I think my case could have been stronger and feel cheated in some way. The judge has not ruled and we are waiting. Is there anything that can be done to continue the hearing? Or are my only options to file a motion to reconsider or to higher court. What do I need to do in this situation? Can I go ahead and hire someone and if assets are found he didn’t disclose can I give to the judge for review or is it too late since we did have the hearing? Also is it possible for the opposing party to get my medical records without them being obtained through the health care provider? Is it ok for my attorney to provide them to opposing party? I was asked by opposing attorney to read aloud a certain part of my medical record during hearing? Not sure what to do not happy and need some advice. Gotta love HIPPA.
    Thank you in advance for your advice and time.
    Kim

    • fl_litig8r says:

      You’ve definitely asked a number of questions that are outside of my wheelhouse, so I can only answer in generalities based on general litigation practices. If you had doubts about the financial disclosures made by your husband, there are discovery tools your lawyer could have used to address them. Aside from requests directed toward your husband himself, records from third parties such as banks and credit card companies could be subpoenaed directly. Whether such actions were warranted in your case, I can’t say.

      I don’t know what state you’re in, but by and large evidence of infidelity has no bearing on the outcome of a divorce in the age of no-fault, so I don’t know where you learned that it would affect spousal support. I’d need to know your state to verify that, but I have my doubts about that claim. If you’re right, then evidence of the infidelity should have been submitted, assuming your ex hasn’t admitted to it. What that evidence would comprise depends on the facts. Maybe it couldn’t be proven even if it did happen, assuming the parties involved denied it. Not everyone leaves a paper trail.

      If you come upon evidence now that shows that your husband lied about the financial disclosures, I’d wager that the judge would accept it via a supplemental filing prior to he rules. Even after he rules, fraud upon the court will usually be sufficient grounds to change a ruling. If you wanted to delay the ruling, such a request would likely require some showing that the court has not been presented with accurate evidence of the finances and that such a continuance will allow you to obtain that evidence. It’s not going to wait based on speculation.

      As to your medical records, your husband should not have been able to obtain them without your knowledge, unless you gave him a release (which means you had knowledge that he could get them). The only legal method by which he could obtain the records directly from the provider without a release would be via a subpoena, and your attorney would have received notice of each subpoena being issued prior to them being sent out. If you’re also asking whether it’s o.k. for your lawyer to give the other side your medical records, that really depends on your specific case and why those records are relevant. That’s something I can’t answer generally.

      • Kim says:

        Currently I have on my own accord started an asset investigation. He did say at the final hearing he had no other accounts but that has been found to be incorrect. He has transferred $10,000 from an unknown savings into our checking. And he transferred $50,000 from our checking into an unknown checking. The savings was prior to separation and the checking was after. He inflated our debt, took cash and I’m most certain he has the cash somewhere. Not real sure about how to handle this situation. Do you think the judge would accept a supplemental filing if he is shown proof of the two transfers of money into and out of unknown accounts. The motion to continue was denied 6 days before trial because I discovered large cash withdrawals being made and bills paid to credit cards that I didn’t know we had. I even pulled my credit report and double checked. When you request a motion to continue do you have to have the reason listed on the motion? I was not there I was told there was no available time in front of judge so both attorneys were going to run in when she was free. But I do know a motion was filed I just don’t know the reason that was presented to the judge. Since the motion to continue was denied would the supplemental filing do any good? Can I fire my attorney and obtain hire new one and have the new attorney file the supplemental filing. I really need someone who will work harder for me. What’s the likelihood of someone taking my case this late in the game? Is it unethical to try to get someone to take your case before you fire your attorney? Please don’t think I am bashing here even though this has all been unjust on my behalf. I just need someone to get me in the right direction. Also when these allegations are brought to surface I am afraid the funds will be gone. He would have never thought I would discover this cause I had no clue. But as I would give my attorney discovery to the attorney he knew we were on to him. So I’m sure it’s gone. But since there are accounts he has not disclosed do you think those bank accounts can be obtained under a subpoena even if they are closed or no balances?

        The medical records were not obtained via subpoena per my health care providers. I gave my attorney my medical records so he could discuss my declining health. The records were used in court because I have a bad back and will end up needing back surgery. I was asked to read about trying the injections as recommended by my physician. Where in the courthouse do I find a copy of any subpoena’s that have to do with my case? I just didn’t like the fact that I was asked to read my medical record from opposing party. When I read about the injections I’m guessing they were playing the issue down so that I didn’t need surgery right away. I didn’t like that. Especially when it was used to downplay the seriousness of my health. Not sure why it was brought up unless they were trying to say I am saying my condition is worse than it is. It’s up to me if I want to have injections or not it’s just something to try. But end result results in surgery anyway. So does that make it any clearer as to the question of sharing my medical records to the opposing party? I feel like if someone is going to use your medical record to discuss your health condition it should be under a subpoena. I’m questioning if there is a HIPPA violation here but not sure.

        Thanks again in advance for your input.
        Kim

        • fl_litig8r says:

          Yes, you need to state the grounds for a continuance in your motion. If it was an emergency motion or a motion made orally, there may not have been time to draft something that went into the reasons with specificity, but generally speaking you want to state your grounds for the continuance clearly and specifically in writing. If you’re relying on outside evidence for your reasons (as opposed to just claiming a scheduling conflict or something), ideally you’d want to file that with your motion as well.

          Even though the judge didn’t grant the continuance, I still think it’s worth trying to supplement the record before he rules. The judge may reject the supplemental filing as untimely, but at least you’ve created a record of trying to get this evidence before the court should you decide to challenge the court’s ruling later on. Often, whether the court accepts supplemental materials depends on whether it thinks you could have reasonably discovered and produced the material at the original hearing. Basically, it won’t forgive laziness but it will usually allow materials discovered after the hearing that a reasonable person wouldn’t have discovered earlier.

          With respect to your question about closed bank records, you should still be able to subpoena them without too much trouble. Banks don’t destroy records once an account is closed.

          Firing your lawyer won’t make a difference in whether the court will accept new materials, so I wouldn’t fire the lawyer for that reason. If you want a new lawyer for other reasons, there’s nothing wrong with you consulting potential new attorneys before you fire your current one. The lawyers you consult may not feel good about discussing your case with you while another lawyer is still representing you, but that’s more an issue of professional courtesy than ethics. Because divorce lawyers work on an hourly basis, I don’t think you’d have the same problem finding a new lawyer that a personal injury lawyer would. Your new lawyer’s income doesn’t depend on the success of your case, so inheriting a case isn’t as big a deal for divorce lawyers as it is for those who work on contingency. It’s a bigger issue for you, because you need to pay for a new lawyer’s time in getting up to speed. Think it over before making a hasty decision that could cost you a lot more in fees. There’s no guarantee that your new lawyer would be any better than your current one.

          With respect to your health records, I’m not sure if your court requires the filing of notices that subpoenas will be issued. They are required to be served on the opposing party, but whether they were filed depends on your local court’s requirements. If it does require this, you’d see them listed on the docket, which may be available online. If it isn’t, you need to go to the courthouse and ask to see the docket for your case number. They may have computer terminals there you can search even if the records aren’t online, or you might to look at the paper docket. The word “subpoena” itself may not appear in the title. It may be called a “Notice of Production from Non-Party” or something like that.

          If you made your own medical condition an issue in your divorce, you can’t really complain about the other side asking you about it. They may have received your medical records from your lawyer through discovery, as they would certainly be discoverable if you brought up a back injury as an issue. I doubt that there’s any HIPAA violation here.

  28. blondegirlhugs says:

    Hi, I came back to see if you responded to a couple questions and it looks like they were taken down. Do they come down until you answer the question?
    Thank you

    • fl_litig8r says:

      All comments here are moderated, which means that until they are approved, they are only visible from the computer and browser that originally posted them (it’s cookie-based, so if you clear cookies, even the original poster won’t see it until approved). As you can now see, your comment is visible to everyone because it’s been approved, which usually happens at the same time I answer a question. I try to answer questions within 48 hours, so if your comment disappears, wait at least 48 hours to see if it shows up again answered.

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