Legal Malpractice - FAQ
CAN
I GET MY FILE?
Whether you have a legal malpractice cases often turns on the lawyer's file, all the drafts and letters and memos that are in there. The file is a reflection of what the lawyer did or did not do, the good and the bad. When lawyer/client relations deteriorate -- a legal malpractice suit is in the air -- a lawyer may decide to withhold the file from the client.
You should know that you have an absolute right to see your file and to get a copy of it. Ethics rules make this clear. The file is, in reality, your file, too, and no lawyer may deny you access to your file. This is so even if your bill is not paid current.
Often the first tussle in a legal malpractice case is over getting a copy of the file. A straight-forward written request should suffice. Write them that Ethics Opinion 554 requires them to give you a copy of your file. If that does not bring results, then contact me and I will get it for you.
The file is evidence, often the best evidence, of what went wrong. Conversely, the file may show that despite appearances, all was properly handled. Either way, almost all legal malpractice cases begin with a thoughtful and professional review of the file.
WHAT
ARE SOME COMMON TYPES OF MALPRACTICE?
A. MISSING A DEADLINE
The law is full of deadlines. If you fall on public property you have 90 days to file a Tort Claims Act Notice of Claim. You have 60 days to file an Affidavit of Merit in a professional malpractice case. Pretrial discovery often must be finished within a certain number of days. if you want to sue for slander you to have to do so within one year of the slander, but you have 2 years to sue for other kinds of personal injuries. The statute of limitations to sue on a written contract is 6 years but if that written contract is an insurance policy, it is one year. Lawyers sometimes miss deadlines, just as airline passengers sometimes miss flights. It happens all too often but there are consequences for the client and lawyers must stand behind their work.
B. PREPARATION
It has often been said that having a good lawyer is
more important than having a good case. Whether that's
true or not, a good lawyer is one who is well-prepared
for trial and understands the client's needs. Malpractice
cases can arise from a lawyer's failure to do adequate
discovery, such as finding witnesses, reading the
documents, or hiring an expert and producing an expert
report. And the discovery needs to be done on time.
As of September, 2000, the New Jersey Supreme Court
has given us new rules which are much less forgiving
of lawyers who don't get their work done on time.
The new rules say that cases can be dismissed for
missed deadlines, trials often will not be adjourned
because witnesses are not ready or available. These
rules, if enforced, would be a big change from the
more lax ways cases were handled before.
Most cases settle without a trial. Lawyers are sometimes unprepared for trial because they are expecting their case to settle. Sometimes, the lawyer has not prepared the case well so the settlement offer made is very low. Sometimes, the lawyer thinks that a settlement offer is a good one but the client does not. In these circumstances, some lawyers try to force a settlement upon their clients. This complaint -- that the lawyer forced a settlement on his client -- is one I hear very often. A lawyer's job is to give advice; not to pressure the client into a particular decision that the lawyer thinks is right.
Lawyers drafting agreements for clients have to understand a clients' needs and goals; a lawyer has to prepare documents with an eye towards the future. If a contract does not do that, the lawyer may be at fault. This is a common complaint of legal malpractice.
C. CONFLICTS OF INTEREST
A lawyer owes his undivided loyalty to his client.
The ethics rules governing lawyers make this very
clear. But, sometimes a lawyer's interests are in
conflict with his client's. For example, some lawyers
gointo business with their clients, something which
the ethics rules discourage. Lawyers often know the
intimate details of their client's lives, especially
their finances. Lawyers often have the trust of their
clients. Lawyers may then use that trust and insight
to get their clients to invest in businesses that
benefit the lawyer. One example of this is Marprowear
v. Lampf, Lipkind, Prupis, Petigrow & LaBue .
The lawyers in that case did legal work for the pensions
of small businesses. They used their knowledge about
those pensions to get their clients to invest $30
million in an insurance company started and controlled
by the lawyers. The company quickly failed and the
clients lost all the money they invested. The legal
malpractice case which followed was especially hard-fought;
the lawyers did not see themselves as having acted
as lawyers when they convinced their clients to invest.
The jury and the court felt otherwise. The law firm
was so certain that it had not committed malpractice
that it refused to pay the award and the firm was
forced to the brink of being closed down before it
finally agreed to pay.
Other conflicts cause malpractice cases. A lawyer
may want to settle a case or just end it because he
is not getting paid. A lawyer may know that he has
made a mistake and try to cover it up, not tell his
client. Lawyers may sometimes favor one client over
another. For example, when business partners get into
a dispute, a lawyer who has represented them both
may side with the one who will end up with the business.
A lawyer who represented a husband and wife may later
be asked by one to take on the divorce case. A lawyer
does wrong when he changes sides and uses confidential
information learned when he represented the person
he is now suing.
ETHICS COMPLAINTS
If you think your lawyer may have acted unethically
in handling your case, you can file an ethics complaint
with the District Ethics Committee. But you should
be aware that an ethics complaint ruling will not
result in a damages award to you. The ethics system
is about policing the conduct of lawyers. Lawyers
can be disciplined or disbarred if they violate the
Rules of Professional Conduct, the ethics rules. If
you have a loss due to an ethics violation, a separate
civil suit must be filed for you to recover for your
losses.
CONCLUSION
These are not cases
for the faint-of-heart. Some involve as defendants
powerful law firms,
former judges
and famous Plaintiff's
lawyers.
Legal malpractice cases are hard-fought, expensive and have their own peculiar rules. These are not cases to be started just because the fee seemed too high or the lawyer was arrogant and rude. To justify the expense and hard work, these cases must be about an important mistake and must have the possibility of big damages.
A legal malpractice case is really two cases and, to win, good proof is required for both of them.
First, the Plaintiff must show how things would have come out if the lawyer had done a good job. If it involves a case that was lost, the "underlying case" must be re-prepared and re-proven (or put together for the first time if the attorney failed to do that). That is, the Plaintiff must show that the case would have been won if it had not been mishandled by the lawyer. So, if the case that was botched was a medical malpractice case, proof would be required that the doctor was negligent and caused damages. Medical experts would be needed in the legal malpractice case to prove this, just as they were required in the medical malpractice case. If the malpractice was in how an agreement was written or a closing done, a Plaintiff still has to prove how it would have come out if the contract or closing was done correctly.
Second, the Plaintiff must prove that the lawyer's work breached the standard of care. A mistake or ethics violation may not be enough. Legal experts would have to be hired to give opinions as to how the lawyer breached the "standard of care" and how that made things go badly. These experts are often hard to come by since most lawyers do not want to testify against other lawyers.
Legal malpractice cases can be defended both ways -- that is -- that the lawyer did not breach the standard of care but, even if so, the "underlying case" was a loser. The legal malpractice plaintiff has to beat both defenses.
These cases have special rules. For example, an Affidavit of Merit from a qualified expert is required within 60 days of the Answer to the Complaint. If the 60 days is missed or the form of Affidavit is not followed, the case will most likely be dismissed, with no chance of ever getting to a jury.
Legal malpractice cases often are not settled and go to trial. This happens for a variety of reasons. The insurance company lawyers who represent these lawyers are usually quite good, as you would expect, they specialize too. The insurance companies who insure lawyers are savvy and quite ready to spend whatever is necessary in defense. Lawyers, like doctors, seem to have an especially hard time admitting to mistakes. They often refuse to consent to a settlement, even though the insurance company is paying. And these cases can get very nasty. When a client sues his former lawyer, the attorney-client privilege disappears and the lawyer in defending himself is free to tell of the privileged things that the client told him in great confidence. It is ironic that a lawyer is duty bound to keep client secrets unless he commits malpractice -- then he can tell everything. But that is the rule.
So, a legal malpractice case should not be started unless the client understands all of this and is willing to see the case through to the end.
