C. Do You Have a Valid Legal Claim?
Evaluating the validity of your legal claim is best conducted by an attorney who is familiar with the law of legal malpractice. But may have to do it yourself if you can't find an attorney to evaluate your claims. Generally you can find one if you do a careful search and if you are willing to pay for the evaluation.
The real problem is that most attorneys will not sue another attorney. There are two reasons for this. First, it hurts their reputation among their attorney colleagues. You can not underestimate how deeply attorneys feel about their reputations. Second, legal malpractice cases are quite difficult to litigate. Not surprisingly then, most attorneys you talk to will not know how to effectively evaluate a legal malpractice claim, let alone prosecute one. The following section will help you understand what is involved in suing your layer. The ideas contained in these sections will also help you formulate questions to ask the attorney who evaluates your claims.
Your claims in legal malpractice consist of two parts: (i) the damages caused you, and (ii) the wrongs of your attorney. Each must be evaluated independently of the other. Then the two must be evaluated together to determine if the wrongs you identify really caused the damages you have experienced. You must prove both parts of your claim (damages and wrongs), together with the fact that the wrongs of your attorney caused the damages to you, before you can obtain compensation on your injury. Let's start with the damages.
(i). The Damages. You must have suffered some defined economic damage to have a valid claim against your attorney. Keep in mind that the law generally does not allow compensation for psychological injury, pain and suffering, or distress caused to you by your attorney. While this limitation is changing in some states, your damages in general must be measurable and of an economic nature. Typically, the damages to you involve an underlying case that has been ruined or harmed by your attorney's errors. If that is the situation, you will also have to prove you would have won and collected the compensation due to you if your attorney had not made the mistake. More about this below.
(ii). The Attorney Wrongs. You must prove that the damages to you were caused by your attorney's wrongful conduct. The judicial system requires you to prove at least one legal wrong, in addition to proving it was the cause of your damages, before you can obtain compensation. The following list is not exhaustive, but it will give you a good starting point for understanding how the wrongs of attorneys are conceptualized in the law. Of course, you can claim more than one wrong.
Breach of Contract—When you retain an attorney to represent you in any matter, a contract is immediately formed between you, as client, and your attorney. This is true even if you only have an oral (spoken) agreement with your attorney. So while there may be no written agreement, there is always a "contract" that you can sue on. The contract most typically involves the scope of certain work to be performed by the attorney in exchange for certain money you agree to pay. This contract may become the basis of a lawsuit if the attorney fails to perform any of its terms, and that breach causes you damage. Every contract, whether oral or written, also has a number of "implied terms" that govern an attorney's conduct.
Negligence—Negligence is nothing more than a mistake made by an attorney. However, because most lawyers make mistakes every day, the error must be a serious one for it to constitute a wrong. "Serious" in that it causes unrepairable damages. While in most cases a jury will ultimately decide if the mistake is a wrong, experts will be called upon to explain to the jury the "standard of care" (the level of acceptable practice) and whether the mistake that injured you was a departure from the standard.
Frankly, the law is very forgiving about attorney's mistakes. If it is a "mistake" in judgement (one of the legal defenses considered below), a mistake in strategy, or a mistake that didn't fall below the standard of practice of attorneys, then it may not be defined as a wrong. Finding an expert to testify that your attorney's conduct fell below the standard of care is both difficult and expensive.
Negligent Misrepresentation—When an attorney makes a false statement by mistake, as contrasted with making one intentionally, and you have relied on that false statement in a way that harmed you, then a wrong has been committed by your attorney.
Breach of Fiduciary Duty—An attorney owes a client the highest degree of loyalty and fidelity. Any time an attorney has put his or her interests ahead of your interests as a client, then a wrong has been committed. Anytime an attorney enters a conflict of interest without disclosing it to you and seeking your consent, a wrong may have been committed. Any time an attorney acts in a way that compromises the duty of loyalty and fidelity owed to you, then a wrong may have been committed. This is a very broad wrong, and if it is outrageous enough, you may be able to obtain punitive damages from a jury.
Fraud—Any time an attorney intentionally misrepresents a fact to you and you rely on that misrepresentation to your detriment, then that attorney has committed a wrong. Fraud also occurs when your attorney intentionally omits a material fact he should have disclosed to you. Fraud is considered so serious, because it is done with disregard for the consequences, knowledge of the wrong, or intent to harm you, a jury may be permitted to assess punitive damages against the attorney. In addition, many state legislatures have passed laws that specifically make it a wrong for the attorney to deceive opposing counsel, or the opposing party, or the court at any time during litigation. Automatic punitive damages are sometimes available under these statutes.
Consumer Fraud—Every state has a consumer fraud agency that protects consumers from the deceit of companies that sell products and services. Unfortunately most states specifically exempt lawyers from these claims. Even if you've been deceived by your attorney! However each state does have a separate organization that investigates attorney deceit and other attorney misconduct. These organizations have various names but universally exist within your state's judicial system. Unlike your state's consumer fraud agency, claims of attorney fraud are handled in confidence. (You can find the organization to file a complaint by clicking here.)
Racketeering—A racketeering violation is the most interesting, albeit most complicated, of all wrongs committed by attorneys. It arises from a statute passed by the United States Congress in 1970 called the Racketeer Influenced and Corrupt Organizations Act ("RICO") or a similar statute passed subsequently by most states. These claims can often be brought in federal or state court and thus offer some interesting strategy options for your case. While there are maybe elements that must be satisfied for a racketeering violation to be prosecuted (such as there being a complicated "enterprise" that put in play a fraudulent scheme), the actual conduct that must be proved is quite straightforward. Typically, the violation is predicated on the use of the mail or interstate wire to defraud you and cause you injury in your business or property. But because the statute is so broad, and because the claims are so serious (your attorney is being named as a white-collar criminal in your lawsuit), the courts have created many barriers to a successful RICO claim (such as requiring a "pattern of wrongs" over a specific period of time). Nevertheless, it is a claim worth considering if your attorney's wrongs can fit within this framework because, if you win, your damages are automatically tripled and the defendant must pay your reasonable legal fees.
Conversion (theft)—The most unfortunate, and unfortunately frequent, wrong committed by attorneys is the taking of unearned money from a client. At its most hidden level, conversion consists of nothing more than your attorney billing you for fees or costs that were not incurred. At its most overt level, this wrong involves the outright theft of the payment of a settlement or judgement check that belongs to you. While these wrongs would seem to be quite clear, they become more complicated by the criminal proceedings, ethics investigations, and the universal defense that this is nothing more than a fee dispute with an "aggrieved client."
Here is a critical fact you must keep in mind. An attorney's insurance policy does not compensate for conversion or over billing. But it will usually provide a defense against the claim for the attorney.
