Stephen Hasner | Personal Injury | February 14, 2020
The decision to work with a lawyer is not one that many take lightly. A lawyer is an investment. So, when the person you are relying on falls short and hinders instead of helps, the logical question to ask is “what can I do about it?”.
Like how a doctor must give a certain level of care, rules of ethical conduct govern a lawyer’s behavior. The goal of these rules is to protect clients. When lawyers act in a way that harms their client or their case, they expose themselves to a legal malpractice suit.
What is Legal Malpractice?
In Georgia, to support a claim for legal malpractice, a client must show that:
(1) He or she employed the attorney;
(2) The attorney failed to exercise ordinary care, skill, and diligence; and
(3) Such negligence proximately caused the client damages.
To win a malpractice claim, you must prove that your attorney made errors in how he/she handled your case. Then, you have to prove that you would have won had the lawyer not mishandled your case. And finally, prove that if you had won you would have been able to collect damages from the party you were suing.
While the above may seem like basic things to prove, it is usually a hard task to win a malpractice case.
What Types of Actions Can Lead to a Malpractice Claim?
Not all actions can lead to a malpractice claim. For instance, just because a lawyer loses your case or settles for an amount less than you believe it to be worth does not automatically mean you have a malpractice claim. These are examples more of a bad tactical decision rather than a failure to exercise ordinary care, skill or diligence.
The most common areas where attorneys are considered negligent include:
- Communication. Correspondence between a client and his/her attorney is a basic right they are entitled to.
- Missed Statute of Limitations. Courts are very strict when it comes to the time in which suit must be brought for specific claims. If your attorney misses this deadline because of lack of knowledge, for ignoring it, or due to a busy schedule, the outcome for the client is still the same – permanently barred claim. This type of behavior has led to legal malpractice claims.
- Conflict of Interest. If an attorney is representing another individual that has the potential to hinder your case and does not do anything to remove that conflict, then you could have a claim for legal malpractice.
- Breach of Fiduciary Duty. If there is in any way a mishandling of money or property which your attorney is expected to safeguard, then you could have a malpractice claim.
- Incompetence. It is a basic right for your attorney to have the competency to know the core knowledge of the legal issue the client’s case is addressing.
- Transactional Errors. If contracts, wills or divorce settlements are missing important terminology or provisions, this could lead to a claim for legal malpractice.
How Much Time Do You Have to Bring a Malpractice Claim?
If you decide to bring a legal malpractice claim, you are limited in the amount of time you have to do so. In Georgia, there are two different deadlines:
- legal malpractice claims based in contract are subject to a four-year statute of limitations.
- legal malpractice claims based in torts (i.e., incompetence, fraud, communication) must be filed within two years.
What Damages Can Be Recovered in a Legal Malpractice Case?
The damages you could receive depend heavily on the facts of your case, i.e., how your attorney handled your previous case. You could receive damages comparable to what you would have obtained if you had won your prior case if they find that your attorney’s negligence resulted in you losing your case.
If your previous loss resulted in you having to pay someone else, then you might be able to be reimbursed for the money you paid to the other party.
Additionally, you could request for your court expenses and the lawyer fees you incurred be paid by the negligent lawyer.
Why You Should Contact an Experienced Malpractice Attorney
While it is understandable that you would be hesitant to reach out to an attorney after believing that your case has been mishandled, it is something that you should do. A seasoned legal malpractice attorney will look at all your facts and give you the best advice.