Handling Problems with Your Lawyer
For any number of reasons, you may be mad at a lawyer you hired to do legal work for you.5 min read
For any number of reasons, you may be mad at a lawyer you hired to do legal work for you. Perhaps your lawyer has failed to keep you informed about your case, to meet deadlines or to do what you believe is quality work. Maybe your lawyer has sent you a bill for far more than you believe is reasonable. Whatever the specifics of your situation, you're sure that something has gone wrong with your professional relationship. These questions touch on the reasons for most complaints against attorneys and offer suggestions as to what you can do about them.
1. I've lost confidence in my lawyer. Can I fire him?
Yes, you have the right to end a relationship with a lawyer at any time, but unless he's truly awful, it's often not wise to do so unless you have another lawyer lined up or plan to handle the case yourself.
2. I fired my lawyer, but I need my file. How do I get it?
Ask, or sign an authorization allowing any new attorney to get it. Even if you have a fee dispute with your former lawyer or you simply have not paid him or her, you are entitled to get your file.
3. My lawyer isn't returning my phone calls. Is this malpractice?
No. But, it's a sign of trouble. Try to find out why your lawyer is not returning your phone calls. (He or she may be busy, rude, sick or procrastinating.) As you do this, examine the possibility that your lawyer may be avoiding you for a good reason - you may be too demanding. A good way to deal with this situation is to write or fax the lawyer a straightforward letter explaining your difficulty in communicating and asking for a phone call or meeting to re-establish or restore your relationship. If this doesn't work, consider firing the lawyer and/or filing a formal complaint with your state's attorney regulatory agency.
4. My lawyer seems to have stopped working on my case. Is this malpractice?
The longer your attorney ignores you and your case, the more likely it is to amount to malpractice. You must act quickly to see that your case is properly handled and get another lawyer if necessary. Writing or faxing a letter expressing your concerns and asking for a meeting is a good first step.
5. My lawyer obviously screwed up my case. Can I sue her for malpractice?
Unfortunately, it is very hard to win a malpractice case. Malpractice simply means that the lawyer failed to use the ordinary skill and care that would be used by other lawyers in handling a similar problem or case under similar circumstances. Put more bluntly - to be liable for malpractice, your lawyer must have made a serious mistake or handled your case improperly or incompetently.
To win a malpractice case against an attorney, you must prove four basic things:
- duty - that the attorney owed you a duty to act properly
- breach - that the attorney breached the duty, was negligent, made a mistake or did not do what he or she agreed to do
- causation - that this conduct caused you damages, and
- damages - that you suffered financial losses as a result.
Causation may be your biggest hurdle. To win a malpractice case, you must prove both the malpractice action against your attorney and the underlying case that the lawyer mishandled. Then, you will have to show that if you would have won the underlying case, you would have been able to collect from the defendant. For example, say you were hit by a car when you were walking across the street, and you hired a lawyer who didn't file the lawsuit on time. You sue for malpractice and can easily prove the driver's liability. To win the malpractice case against your lawyer, however, you'd also have to show that the driver had money or insurance. If you can't show that the driver had assets which could have been used to pay the judgment, you won't win your malpractice case, even though the lawyer clearly blew it and the driver was clearly at fault.
6. My case was thrown out of court because my lawyer did no work. Is this grounds to sue my lawyer?
Maybe. Your lawyer is responsible for whatever money you could have won had the case been properly handled. Your difficulty will be in proving not only that your lawyer mishandled the case, but that if handled correctly, you could have won and collected a judgment.
7. My lawyer originally said my case was worth six figures and then later insisted that I settle for peanuts - can I sue the lawyer for the difference?
No. Your lawyer may have given you an inflated estimate of the value of your case to encourage you to hire her. Get your file from your lawyer and get a second opinion on your case. If another reputable lawyer believes you are being advised to settle for too little, consider changing lawyers.
8. Can I sue my lawyer for settling my case without my authorization?
Yes, but you would have to prove that the settlement your lawyer entered into was for less than your case was worth.
9. I saw my lawyer playing tennis with the opposing lawyer - is this a breach of attorney ethics?
No. There is nothing ethically wrong with opposing attorneys playing tennis, bridge, golf or enjoying other common social interactions. If they talk about your case (on the tennis court or anywhere else), however, and your lawyer lets slip something that you said in confidence, that would be a clear violation of your attorney's duty to you.
Even though socializing with the opposing counsel isn't a violation of ethical rules, in the real world it can obviously make a big difference how you found out about it. If your lawyer told you he occasionally played tennis with the opposing attorney when you first discussed your case, you clearly had a chance to hire another lawyer if it bothered you. But what if you head to the tennis court for a game after being grilled by the opposing attorney at your deposition, only to run into your lawyer playing with the legal barracuda who just tried to eat you for lunch? It would have been wise for your attorney to tell you about his social relationship with the other lawyer when you first met. Although in failing to do this your attorney hasn't breached any ethical duty to you, you may wish to change attorneys.
10. My lawyer sent me a huge and unexpected bill. What can I do about it?
Don't pay it right away. Ask to discuss your concerns with the lawyer. If you're not satisfied with your lawyer's explanation, ask for a reduction of the bill. If the lawyer refuses, consider filing for nonbinding fee arbitration with a state or local bar association. Arbitration is a process where a neutral decisionmaker resolves your fee dispute. "Nonbinding" means you are free to reject the arbitrators decision. Get the rules from your state or local bar association before you agree to arbitration. If the arbitration is to be conducted by lawyers who may be biased against you, don't agree to a binding result-- meaning a result you aren't allowed to reject.
11. I'm worried that my lawyer may have misappropriated some of the money I paid as a retainer. What should I do?
If you seriously suspect your lawyer has misused any money he holds for you in trust, complain to your state's attorney regulatory agency pronto. Although regulation of lawyers is lax in most states, complaints about stealing clients' money are almost always taken seriously and acted on promptly. A few states have funds to reimburse clients when lawyers are caught stealing.
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