Basics of Legal Malpractice
Legal malpractice is the failure of an attorney or law firm to competently and adequately represent their clients. It can also occur if the lawyer does not adhere to the agreement with their client in terms of fees and services. Failure to comply with the Texas Rules of Disciplinary Procedure and the Law Firm Standards promulgated by the State Bar of Texas could also lead to a legal malpractice claim. The state bar oversees attorneys and law firms in the state and addresses possible infractions of the standards and rules of conduct . If the attorney fails to fulfill these requirements or does so in a way that is considered a breach of their fiduciary duty to their clients, it can result in legal malpractice.
The U.S. Fintech News & Review suggests that there are various common examples of legal malpractice that include misfiling a lawsuit, failing to meet court deadlines, failing to identify and retain experts, neglecting to complete discovery, missing appeal deadlines and allowing the statute of limitations to expire. These types of oversights can lead to the dismissal of a case, the loss of state benefits, the expiration of statute of limitations and other actions that could cost the client money and possibly their freedom.
Indicators That You May Require a Legal Malpractice Attorney
When you work with an attorney, you expect top-notch legal services and representation. If your attorney fails to provide this, you could be the victim of legal malpractice. Luckily, there are a few signs that can indicate if you need to find the help of a legal malpractice attorney in Dallas:
Your Attorney Missed a Deadline
Every case has a statute of limitation that restricts the amount of time you have to file a lawsuit. An attorney that misses an important deadline is committing malpractice against you. If you can prove that your attorney’s negligence caused you harm and you would have had a better outcome with another attorney, you may be able to recover damages.
Your Attorney Commits Fraud
If your lawyer pressured you into agreeing to something you were not comfortable with or they lied to you about the consequences of a specific action, your attorney may be committing fraud against you. A lawyer who withholds discovery or evidence is also committing fraud. This can be difficult to prove on your part. If you suspect this may be the case, seek the assistance of a Dallas legal malpractice attorney as soon as possible.
Your Lawyer is Misrepresenting You
If you have been injured due to your lawyer’s misrepresentation and the outcome of your legal case, you should seek a legal malpractice attorney immediately. A good example of this is if your attorney downplays the severity of an injury you sustained due to another’s negligence. They may care more about the losses they incurred rather than those of their clients.
Your Lawyer Does Not Care About Your Case
If your lawyer has not taken the time to understand your case and how it can turn out, it may be time to start looking for a new lawyer. If your case means little to your lawyer, it may not get the attention it needs. This is also true if your lawyer pushes you to accept a settlement without properly informing you of if it is a good deal.
Selecting a Legal Malpractice Attorney in Dallas
When it comes to legal malpractice, getting your case in front of the right attorney is imperative. Because these matches can be difficult—if not impossible—to win, it’s critical that you have someone who is experienced in the field. But if you have never faced a legal malpractice match, how do you know who to turn to?
You will want to choose an attorney who not only litigates these types of cases, but also works as a defense attorney. This allows you to have an attorney who is balanced and understands the needs of both sides. But in general, you will certainly want to meet with any possible firm to ensure that their services are of the highest quality.
Investigate Experience
The experience of a firm is perhaps the most important aspect you need to consider. You will want to choose an attorney with a background in legal malpractice in particular. It’s easy enough to win an average malpractice case but it’s a much more skilled attorney who will be able to present a legal malpractice case—especially since they are largely decided not in court but in motions for dismissal. In these cases, you will need an advocate who can do more than submit paperwork to the court.
Check Their Reputation
While you may be unfamiliar with the world of legal malpractice, attorneys who specialize in this unique practice area are familiar with one another. They know which firms are reputable, and which are not. Because of this, the best way to find out information about a potential attorney or firm is to ask around. If you have an attorney or know of an attorney you trust, they may be able to provide you with information regarding lawsuits that have been filed against any particular firm, as well as how they tended to work with other clients.
Read Client Reviews
If you do not have access to a trusted attorney, you can also check online. Websites such as FindLaw and Yelp almost all include reviews, so take some time to look around and read what current and previous customers have to say about a firm or attorney. Another great place to check is Google, as you will get a much larger data set—and can then average out the results.
Meet with a Possible Firm
You will be surprised to learn that meeting with a possible legal malpractice attorney is simple. All you need to do is give them a call and set up an appointment—many will meet with you at a time that is most convenient. Even though you are in a complex situation, you will be treated with the utmost consideration, which can help you to feel at ease about the entire situation.
The Legal Malpractice Litigation Process
Once a client seeks our help with a legal malpractice issue, our first priority is to determine what happened. We will take the time to explain the law surrounding your case and the case against your former lawyer. Most of the time, it becomes clear at this stage whether we can or cannot help. If we find that we can help, we will spend a lot of time before one-single word is ever written in an attorney’s fee agreement. The client must understand that: if the case goes forward, there can be no guarantee that we will win; the client will have to disclose all information surrounding the legal matter that was the subject of the former attorney’s representation; that there may be legal work that needs to be done both during the case against the former attorney and immediately after the case is started. We will also explain the risks involved. We believe that it is important for clients to understand at least in general terms: the time investment that will be necessary to either litigate / mediate / settle the case; what the client’s obligations will be; what fees and costs will be expected and when they will be due . If all parties are willing to go forward, a specialized clients’ legal malpractice agreement will be entered into. In every instance: The Fee Agreement’s proclamation that all fees and costs must be approved in advance and are due on receipt is absolutely true and is enforced consistently. Fees and costs will be incurred, clients have no financial obligation to pay. This is the single most frequent issue we see come before the court and will defeat even the best legal case. The case will proceed. We have no idea where the case will lead us; no client can go in blind. The process is labor intensive for the client, with many sessions needed before the case can be filed. There will be complicated discussions the client will need to have with other attorneys, accountants, tax advisers. After the case is filed, there will be hearings, depositions, motions, responses, hearings, more motions, hearings and the phrase: "we’ll get the case resolved sooner rather than later." Eventually either a successful settlement or a jury verdict. But along the way there will be decisions as to whether the client wants to go forward if things are not going their way.
Outcomes for a Legal Malpractice Suit
While some cases end in a satisfactory settlement before trial, or even at the outset of a case, the resolution of a legal malpractice lawsuit may also end in a verdict at trial. Both settlements and trial verdicts are ultimately designed to leave the plaintiff in somewhat of a similar position as if the underlying case, or the legal matter at hand, had been handled appropriately. If the situation cannot come out exactly even, the defendant is merely required to pay for any damages and losses the plaintiff incurred as a result of the legal malpractice. The defense must typically prove otherwise by a preponderance of evidence. Without such proof, the jury will be forced to find in favor of the plaintiff on the issue of the breach of duty and will award the appropriate amount of damages. Settlements can involve negotiated amounts that the defendant must pay; verdicts are typically found by specific calculations of the amount of loss. Answering questions such as "how much money does the plaintiff seek?" can be difficult because legal malpractice cases often involve a calculation of how much money the plaintiff would have received had the underlying legal matter been handled appropriately. Both plaintiff and defendant may have something enter into the calculation when the damages or losses are calculated. If there was an impending settlement, what was the amount of the settlement? Legal fees may also be considered in the award. For example, if reasonable legal fees and costs to bring the legal malpractice against the former attorney total $75,000, this amount can be added to the damages. It can also be used to offset the amount of damages, therefore reducing the overall amount awarded in the case.
Common Questions and Answers about Legal Malpractice
How do I know if an attorney was negligent?
The standard for negligent representation in Texas is "to act as a reasonably prudent attorney would under the same or similar circumstances." The majority of legal malpractice claims in Texas involve failure to meet the applicable standard of care, with the plaintiff required to prove that the attorney’s representation fell below this standard.
What can I sue my attorney for?
Most legal malpractice actions alleging negligent representation will fall into one of several categories:
• mishandled litigation, such as an attorney who fails to pursue an appeal or file pleadings within the time required by the Texas civil practice and remedies code;
• improperly filed litigation, such as a plaintiff who accepts an offer of settlement but subsequently, through his attorney, files suit;
• contract disputes involving a breach of contract.
My lawyer said he didn’t represent me. Is that true?
Often clients are confused about whether an attorney was actually hired or whether the attorney was simply giving some legal advice. The answer to the question changes depending on the answer to several other questions:
• Did the attorney have contact with you?
• Did the attorney provide any legal documents or file anything on your behalf?
• Did the attorney send you a bill?
• Did the attorney give you an engagement letter or retainer agreement?
If the answer to any of these questions is yes, the attorney may very well have represented you, and your case may be valid.
What do I have to do to sue my lawyer for legal malpractice?
Most legal malpractice actions are based on negligence . You are required to prove each element of a negligence cause of action, which includes showing that the attorney owed you a duty of care, breached that duty, and caused you damages. If the attorney’s conduct actually meets the legal requirements for the type of cause of action you are suing for, than you must be able to show that you have a valid case.
In most legal negligence actions, you are required to prove what a "reasonably prudent attorney would have done" in a similar situation. This is usually done with expert opinions showing exactly how the attorney in question failed to abide by the standard of care. To prove causation, or that the attorney’s negligent conduct actually injured you, you must show that the outcome of the case would have been favorable to you but for the attorney’s negligence.
Depending on the specifics of your case, you can be required to prove additional elements, and more than this is often required to successfully litigate your case. To recover damages, you must be able to prove your damages in court, either through expert testimony, invoices and bills, or other records.
A lien is an attorneys’ right to payment for services performed under the terms of an existing attorney-client contract. Unless there are circumstances proving otherwise, attorneys hold a retaining lien, meaning you cannot recover the work product generated by the attorney until you pay any outstanding contracts. A charging lien attaches automatically to any recovery you may receive thanks to the attorney’s work.
In litigation, you could be required to provide your attorney with a pre-litigation notice that they have violated the attorney-client contract before you can initiate an action against them.