What to do When Your Attorney Fails You

Imagine calling your lawyer to find out the status of your legal case only to find out the court dismissed your case without a hearing. You ask more questions and discover that your attorney failed to file your claim within the time required by law. The first question that comes to your mind is, “Can I sue my lawyer?” The answer is “Yes.” 

You can sue your lawyer for legal malpractice, but there are some big hurdles to get over in order for your lawsuit to be successful. There are four elements you must prove in order to prevail. 

Elements of a legal malpractice case.

1) You must prove you actually had an attorney/client relationship. If you only spoke to a lawyer informally at a party and got vague legal advice, that will not count. You must have evidence that you secured the services of the attorney to work on your behalf and obtained legal advice you relied on. 

2) The next step is to prove that your lawyer was negligent, or that he or she acted below the standard of care practiced by other lawyers in your community. Examples of negligence are: 

• Failure to file a complaint within the statute of limitations – or before the legally established time has run out. This presumes you consulted the attorney prior to the running of the statute, but he or she failed to file within the deadline. 

• Missing other court deadlines, resulting in the dismissal of your case. 

• Abandoning you by failing to return your phone calls or answer your letters.

• Failing to comply with court orders. 

• Commingling the attorney’s personal funds with the trust account that contained the money you paid your attorney to work on your case. 

• Settling your case without telling you and keeping the money. 

3) Even if you prove you had an attorney/client relationship, and your lawyer was negligent, you still have to prove that the negligence act was the proximate cause of your injury. This means that the outcome would have been different if the attorney had not been negligent. This is the hardest part. It is often referred to as presenting “a case within a case” since, in order to win your legal malpractice case, you have to prove you would have won the underlying case if the attorney had not been negligent. 

4) Finally, you must prove the amount of money you lost due to the attorney’s negligence. 

Important considerations before pursuing a legal malpractice claim. 

• If you sue your attorney for legal malpractice, you will give up the attorney/client privilege with that attorney. Anything and everything you ever told that lawyer in confidence can now be revealed in court. 

• Just because you lost your case does not mean your attorney was negligent. Even if another attorney would have done better does not mean your attorney was negligent. 

• Errors in judgment do not amount to malpractice. For example, your lawyer may have had a very good reason not to call a certain witness at trial. After the trial is over, hindsight may make it clear that was a poor decision and the witness should have been called to testify. That type of honest belief that the decision was correct at the time does not open the door for a legal malpractice action. 

• If you decide to sue your lawyer, you must do so within the statute of limitations established by the California Code of Civil Procedure. There are some complex aspects to the statute. Consult an experienced legal malpractice attorney for more information.