Like anybody else, lawyers can make mistakes. Unfortunately, though, when a lawyer makes a mistake it can cost the client the case. If the attorney acted negligently, the client has the right to recover damages from the attorney. But a lot of people feel badly about pursuing a case against someone with whom they may have grown close in the past months or even years. That’s perfectly understandable, but if you lost thousands of dollars because your attorney harmed your case in San Diego, you have the right to recover that money.
What is legal malpractice?
An attorney commits malpractice when he or she fails to fulfill his or her obligations to a client, which causes the client harm. Legal malpractice can include the lawyer’s negligence in improperly managing the client’s case, failing to act in a client’s best interest, or failing to complete all the terms of a contract between the attorney and the client.
How long do I have to take legal action?
California’s Code of Civil Procedure §340.6 specifies that you have one year in which to take legal “action against an attorney for a wrongful act or omission…arising in the performance of professional services.” The clock starts upon discovering, or when you should have discovered, the attorney’s wrongful act. But no action may be filed after four years from the date of the wrongful act.
However, the time period may be tolled if any of the following are present:
- plaintiff didn’t sustain actual injury;
- attorney continues to represent the plaintiff in the subject matter in which wrongful act occurred;
- attorney conceals facts about the wrongful act – this tolls the four-year limitation only; and
- plaintiff is under legal or physical disability, preventing him or her from taking legal action.
Further, if the legal action is based on a written legal document and its effective date is based on some future act or event, the statute of limitations to bring a case of legal malpractice does not start until the act or event occurs.
Common Types of Legal Malpractice Claims
Clients who wish to file a malpractice claim against an attorney usually have three types of claims:
- Case errors—An attorney mishandles a case or misses important court deadlines. The most common lawsuit against an attorney is when he or she does not file the claim within the statute of limitations, thereby completely eliminating the plaintiff’s case against the defendant.
- Fee disputes—Usually involves exorbitant bills, hidden fees, or charges to which the client did not agree.
- Ethical violations—Occurs if an attorney fails to disclose a conflict between clients, does not act responsibly with a client’s money, or fails to act in a client’s best interest.
There are many behaviors which can constitute filing a malpractice case against a lawyer. If you are unsure if your attorney acted within the bounds of the law, consult a legal malpractice attorney, or contact the California Bar Association for guidance.
What do I have to prove in a legal malpractice case?
In order to prove that an attorney has committed malpractice, you must prove four elements:
- existence of an attorney-client relationship;
- that the attorney was negligent or intended to harm you;
- but for the attorney’s actions (or lack of action) you would have obtained a more favorable result in your case; and
- you suffered actual, quantifiable harm.
The final two elements are generally the most difficult to prove. If you would have lost your case regardless of an attorney’s malpractice, or if the attorney’s malpractice did not cause you any damage that can be clearly defined or given a monetary value, then it is unlikely that you would be able to recover any damages from your former attorney.
Why should I hire another attorney?
When you hired your original lawyer to represent you, you may have entered into a written contract that outlines the terms of your representation, legal fees, and other issues. If you believe you have a legal malpractice case against that attorney, your new attorney can review the terms of that agreement, which may outline various issues like how to resolve disputes (some require arbitration).
The contract can also be valuable in evaluating whether the lawyer violated the agreed upon terms of payment (e.g., charged you for things not outlined in the agreement), if that’s the issue you’re pursuing.
Take Advantage of Our FREE Legal Review
If you believe that your prior attorney negligently or intentionally caused you harm, you understandably may be wary of hiring another attorney to address the problem. At Hiden, Rott & Oertle, LLP, we fight for the victims of all injustices. Our attorneys can review your former case and the actions of your prior attorney in a free initial consultation, and let you know what you can expect in a malpractice suit. Call 619-296-5884 to set up an appointment in our San Diego office today.
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