Did Your Lawyer Commit Malpractice?
Going through the process of pursuing a lawsuit and hiring a lawyer can be extremely stressful for the client- appearing for depositions, sifting through paperwork, enduring delays, trying to decipher legal language, or experiencing interruptions with work and family life. Unfortunately, the lawyer you choose may increase these stresses if he or she fails to represent your interests competently.
When an attorney takes on a client in a matter, the lawyer has a fiduciary relationship to his or her client. This means that the attorney takes on the responsibility of putting the client's interests ahead of his or her self-interest in dealing with the client and in dealing with others on the client's behalf. Every licensed attorney in the State of Florida is bound by law and by oath to adhere to specific requirements set out in the Florida Rules of Professional Conduct. These duties include:
- An attorney must abide by the client's decisions regarding the objectives of representation, and consult with the client on how those objectives should be achieved;
- A lawyer may not advise a client to engage or assist in conduct that the lawyer knows is fraudulent or criminal;
- A lawyer must be diligent and prompt in carrying out the duties of representation;
- A lawyer must keep a client informed of the status of a matter on which he or she is representing a client, and respond promptly to a client's reasonable inquiries;
- An attorney must explain matters to a client so that he or she may make informed decisions on how to proceed in a given legal matter;
- A lawyer may not charge excessive fees;
- A lawyer must keep every communication with the client confidential, except under very limited circumstances;
- An attorney may not represent a client for whom he or she has a conflict of interest, either with him-/herself or with another client's interests;
- A lawyer may only accept representation of a client where he or she has legal competence, or where legal competence can be acquired at no risk to the client; and
- Other statutory and professional obligations.
What is Legal Malpractice?
Legal malpractice is a type of negligence claim. Like all negligence claims, there are four elements that must be shown: the defendant owes a duty to the plaintiff, the defendant has breached that duty, the breach causes an injury, and the plaintiff suffered damages as a result of the injury. In the case of legal malpractice, an attorney, once he or she has entered into a contractual relationship with a client, has a duty to meet specific obligations and to competently represent the client and his or her interests. If the attorney breaches that duty that causes the plaintiff to suffer damages that he or she would not have suffered otherwise, the client may have a valid claim for legal malpractice.
While it is difficult for those not trained in legal matters to be able to discern when an attorney may have committed malpractice, there are some common errors that may indicate if an attorney has failed to meet his or her professional obligations. These include failing to return client phone calls, missing a client's court deadline, making decisions in a case (such as agreeing to a settlement) or in a transaction without first consulting with, and getting consent from the client, and letting a statute of limitations lapse. One of the most common forms of legal malpractice is failing to file a lawsuit within a certain time limit (Statute of Limitations).
If you have suffered damages as a result of an unfavorable legal transaction or court action because your attorney breached his or her duty, you may have a claim for legal malpractice.
The "Case Within A Case": Why You Need An Experienced Legal Malpractice Attorney To Pursue A Legal Malpractice Claim.
One of the most difficult aspects of proving a legal malpractice claim, is proving that had the attorney represented you competently, you would not have suffered damages. In other words, it is not enough to show that the attorney failed in some duty or another, no matter how egregious the failure or misconduct. You must also show that had the attorney acted as he or she should have, you would have prevailed.
For example, if you sued someone for negligence and the attorney missed the deadline for filing suit, showing that the lawyer missed the deadline (that is, the lawyer breached his or her duty) is not enough. You must also prove that if the attorney filed on time and pursued the case, you would have won. Consequently, you may have to litigate two cases: the malpractice case, and the case in which the attorney was supposed to competently represent you.
The Attorneys At Flaxman Law Group Can Help You Pursue A Legal Malpractice Claim
Legal malpractice claims can be very complicated. It is essential that you retain an attorney that has experience handling such claims. If you have had a frustrating experience with an attorney and believe that he or she may have committed malpractice, contact our Miami legal malpractice attorneys at Flaxman Law Group for a FREE, no obligation consultation. Flaxman Law Group can help you evaluate whether you have a valid case and explain to you the issues that are critical in determining whether you may be entitled to recovery for the damages you have suffered.
Call Flaxman Law Group 24 hours a day at 1-866-FLAXMAN (1-866-352-9626), or contact us online.