Attorney Malpractice
What is attorney malpractice?
Attorney Malpractice is another term for “attorney
negligence”. Negligence is a term that refers to a
person not living up to the minimum standards of a
particular group (i.e., licensed California attorneys,
licensed California real estate agents, an ordinary
reasonable person, therapists, lifeguards, scuba
instructors, accountants, morticians, aestheticians...,
you get the idea). Attorneys are expected, and ethically
required to live up to certain ethical standards set by
the State Bar, and by our legislature. Attorneys must
act in the best interests of their clients, uphold the
duties owed to their clients, and to practice law with a
certain level of skill.
Just because the outcome in your case is not what you
wanted, or expected it to be, does not mean your
attorney was negligent. An analysis must be made of what
the standard of care was in your particular case, and
whether your attorney lived up to that standard. If so,
then it must be determined if the conduct complained of
resulted in damages. For example, did your attorney fail
to file your case within the time permitted by law (the
“statute of limitations”), and did it result in you
losing the right bring a lawsuit? Provided that your
underlying case had merit, the failure of your attorney
to file a complaint in your case prior to the running of
the statute of limitations would likely have be
sufficient to state a case for attorney malpractice.
Attorney malpractice cases are complex because they are
in a sense, two cases in one. Using the failure to file
the lawsuit by the running of the statute of limitations
example above, in order to prevail against your former
attorney, two different things must be proven at trial:
1) prove all the elements of the case your former lawyer
was handling, to show the case was winnable, and 2)
prove that the case was lost because of a failing of the
former attorney.
Using the example above, where the attorney accidentally
failed to file your case before the statute of
limitations had run, it would have to be shown that
through the neglect of the attorney the time period in
which to file a lawsuit lapsed. This means that the
attorney had to have been retained by you to work on
your case, and given permission to file the suit, and
simply failed to do so, with no extenuating
circumstances. An extenuating circumstance might be
where the written contract between you and the attorney
expressly provided that the attorney was not being
retained to file a lawsuit on your behalf. You may have
retained the attorney to simply attempt to negotiate a
settlement or to draw up a contract. If the attorney did
not take on the responsibility to file the lawsuit, then
he or she cannot be faulted for having failed to do so.
But, such attorney most likely had a duty to remind you
of the date the statute, and if he or she failed, he or
she may be liable under that ground.
How can Jarvis Law Offices help?
We will be happy to meet with you for a free initial
consultation to determine if you have a potential case
of attorney malpractice. We can usually tell you
immediately if your case has potential after speaking
with you about the case and reviewing the file
maintained by the attorney at issue.
We are also happy to speak with you about understanding
what your rights are – that you have the right to change
counsel at any time, that you have the right to obtain
the original file obtained by the offending attorney,
that you have a right to have an accounting of the
monies spent by such attorney, etc.
In the event you are still represented by the offending
attorney, we may be able to advise you of your rights as
far as retaining new counsel, as well as negotiating
with your attorney to see if your failing relationship
can be turned around. We can assist you in ending the
relationship with the former attorney, locating new
counsel, obtaining your file from the former attorney,
obtaining an accounting of the monies provided to and/or
spent by the attorney at issue. In some cases, where
your case is ongoing, we may be even be able to
substitute in as your new counsel, and at the same time
purse your former attorney for a refund of all or a
portion of your attorneys fees paid.
We can also direct you to the State Bar where you may
wish to file a complaint about the offending attorney.
You should also know that the law does not allow an
attorney to sue you as a result of having filed a
complaint with a state bar. It is illegal for an
attorney to do so, and if any attorney should threaten
you with a lawsuit in retaliation for filing a state bar
complaint you should know it is unethical to do so, and
should be reported to the state bar. There is a law that
specifically states attorneys may not bring a civil
action against a client or former client for their
having filed a complaint with the State Bar.
So, contact us for a free consultation if you feel your
case has been mishandled by an attorney, or are just not
happy with the performance of your attorneys and want
our assessment of whether your attorneys have behaved
appropriately.
