Basics of Legal Malpractice
Legal malpractice is a type of professional malpractice involving negligence by a lawyer or law firm that results in harm to a client. Legal malpractice can occur during any stage of the attorney-client relationship, from failure to provide adequate legal services to breach of fiduciary duty. Some common examples of legal malpractice include:
- failure to file a legal action before the expiration of the statute of limitations
- failure to meet court deadlines and scheduling
- failure to properly prepare a case for trial or a hearing
- failure to comply with court orders
- failure to properly communicate with a client
- failure to advise a client regarding important legal matters
- improper employee actions in a law office
- conflicts of interest
The above is a partial list of legal malpractice issues that can arise . Many legal malpractice claims are based on a lawyer’s failure to act when it was their responsibility to do so. Legal malpractice is a civil matter, and is separate and distinct from issues such as contract fraud, debt collection harassment, foreclosure fraud, and others. Those types of issues are often handled on a contingency basis through a law firm. Legal malpractice, however, requires hiring a legal malpractice attorney, and is costly and time-consuming.
Typical Obligations of a Legal Malpractice Attorney
Although every case is unique, and similar in various respects to other cases, the following list provides some of the main duties that an attorney owes to his or her clients:
- Skill and legal knowledge in the subject being represented.
- Reasonable and prompt communication.
- Reasonable diligence and zeal when partaking in the representation.
- Clear and full disclosure regarding fees and costs.
- Safeguard clients’ funds and property.
- Maintain confidentiality in regards to information learned from the client.
- Veracity and integrity in representations and disclosures to the court.
The failure to satisfy any of the duties listed above would allow the client to hold the attorney liable for breach of contract and/or negligence in the performance of the contract.
Legal Malpractice Warning Signs
Whether you have found a hidden nugget of malfeasance in your lawyer’s conduct, or just believe that the long and short of your case could not be the truth, there are usually a few signs in your case that point toward legal malpractice. Attorney Negligence is only one of them. It may be realtor negligence, accounting negligence, insurance negligence or other professional negligence.
Signs include; You sense something has gone very wrong and you still don’t have any of your lost money back. The attorney never answers your phone calls or letters. The attorney states that a document was filed or a hearing was held when independent records (or other attorneys) indicate otherwise. You see that legal documents are missing, or were never prepared. You are never contacted or informed of upcoming hearings, including trial dates and pre-trial conferences. There is no record of your case in bankruptcy/ federal court records, tax records, state court records, Supreme Court records, etc… You receive bad news from someone other than your attorney, such as opposing counsel, and the first time you hear of the matter from your attorney is after the fact. You get the runaround when you tell your attorney you are concerned about the results of his/her legal work. You catch your attorney in a lie. A candidate for dismissal of your case is an attorney who is caught lying to the court, or to you regarding the facts of a case.
How to Pick the Right Texas Malpractice Attorney
If you are in the process of finding the right Texas legal malpractice attorney to assist you in your case, there are a few things to keep in mind. Look for an experienced attorney with a proven track record and a reputation for success. Legal malpractice is a complicated area of the law, so you want to ensure that your attorney has not only the experience but the special training and knowledge required to properly pursue your case. These attorneys know the rules and regulations governing attorneys, and how to legally determine whether you have a case for legal malpractice or not. It is absolutely essential that you be completely candid with your Texas legal malpractice attorney right from the beginning. Without full disclosure, it will be difficult for your attorney to help you, and if ultimately you do have a case, there can be negative surprises later. Remember that a legal malpractice attorney typically works on a contingency basis, meaning that they do not get paid unless they win your case. This type of arrangement is beneficial for you, as it means that your attorney has a very strong incentive to win your case. If you have a legal malpractice case against your attorney, that type of agreement is quite common, and you will have to pay only if your case is won.
The Legal Process for Malpractice Cases in Texas
Filing a claim for legal malpractice in Texas involves a fairly straightforward legal process, but putting the pieces of that process together requires attention to details. Failure to complete an important step of the process can result in having your case dismissed.
Proving a claim of legal malpractice requires you to show five things: a breach of the duty of competence, a breach of the duty of diligence, harm, and loss. Take for example, a client who has a collection matter, explains the situation to an attorney, and leaves. In that scenario, you have the client, the failure to act, and some damages arising from the failure to take action (such as the loss of the debt itself if he later files for bankruptcy or if the applicable statute of limitations on the collection claim runs). However, proving the damages will be much more difficult than if you had specific proof of damages, such as photographs of the destroyed property or bills for the damages caused.
Assuming your Texas attorney fails to represent you competently, there are a couple of statutory requirements that hurt more clients that they help. An expert report is required within 120 days of the filing of the lawsuit; otherwise, the case will be dismissed. That requirement is often used by overly aggressive defense attorneys seeking to intimidate clients in the hopes that the clients do not follow through with the filing. Other times, it’s used as an excuse to require both clients and attorneys to expend considerable amounts for no real reason other than to avoid work that a layperson is unlikely to be able to do.
If you have a case that you believe is worth pursuing, hire a qualified Texas legal malpractice attorney to help you. Just remember that the bulk of the responsibility for success or failure will ultimately fall on you. The failure of your attorney to perform will always be a serious consideration, but your attorney can’t hold your hands and drag you along if you’re the ones who refuse to do what needs to be done.
Proving Legal Malpractice Problems
While the judiciary wants to hold its own to a high standard of professional responsibility, it also is aware that one, and perhaps the most difficult aspect of legal malpractice litigation is the requirement that plaintiff prove "underlying case" viability. On the one hand, pro se clients in "good faith" believe that they were damaged by the resulting settlement, and by their lawyer’s actions. On the other hand, lawyers are understandably unwilling to serve as "experts" in the underlying case. See, for example cases like: Weitzman v. Stein, 673 A.2d 988 (Pa. 1996) Meyer v. McCameron, 669 A.2d 332 (Pa. 1995) Rizzo v. Schiller & Schiller, 1979 A.D.2d 299, 602 N.Y.S. 2d 211 (App. Div. 1st Dept. 1993) Spaght v. Bozzo, 116 AD2d 582, 499 N.Y.S. 2d 542 (App. Div. 2nd Dept. 1986) Fornabaio v. Baird, 127 Misc.2d 246, 484 N.Y.S. 2d 771 (N.Y.Civ.Ct. 1985). Recently the Texas Supreme Court has clarified just how difficult it is to prove damages and loss of chance under THYBULLOS v. KOSTORIS (Supreme Court of Texas, 99-0651, 9/21/2001). Thy-bul-alos. n. 1. The loss of chance of a better recovery, or a better right. 2 . A lessening of the opportunity of a successful outcome on another legal claim, resulting from the negligent act or failure to act of an attorney. Heims v. Solomons, 8 S.W.3d 331, 334 (Tex.App.-Houston [14th Dist.] 1999). However, for the alleged malpractice to be actionable, it must have resulted in damage to [plaintiff]. Creditwatch, 127 S.W.3d at 753; see Ryals v. Rogers, 874 S.W.2d 736, 739 (Tex. App.-Houston [1st Dist.] 1994, writ denied). Thus, causation is an element of appellant’s legal malpractice claim, i.e., that there was a connection between appellees’ conduct and appellant’s alleged damages. Along with causation, the elements of a legal malpractice claim include: (1) employment of the attorney; (2) ‘neglect’ by the attorney of a ‘professional obligation’ to the client; and (3) the fact that this ‘neglect resulted in and was the proximate cause of the loss of the suit’ being prosecuted. Amigo Broad., LP, 121 S.W.3d at 903 (quoting Alexander v. Turtur, 146 S.W.3d 110, 114 (Tex.App.-Houston [1st Dist.] 2004, pet. denied)). It is undisputed that [plaintiff] had the burden of pleading and proving all of these elements.
Case Studies (with Outcomes)
Take, for example, the case of Dretke v. Southwest Securities, Inc., 2011 U.S. Dist. LEXIS 143440 (N.D. Tex. Dec. 13, 2011). After Dretke’s attorney failed to file a timely appeal following a bench trial, she discovered the corporation she had been attempting to sue, Southwest Securities, Inc., had filed for bankruptcy while the window for appeal was still open. Although the Fifth Circuit eventually granted an extension to file a notice of appeal with the bankruptcy court, the attorney who represented Dretke in the appeals process later died of cancer and the presiding bankruptcy court ruled the appeal untimely and dismissed her claims. Relying on precedent, the U.S. District Court for the Northern District of Texas refused to allow new attorneys to enter the case and represent Dretke anyways. The court determined she did not have a good faith basis under Local Rule 83.14 to file a motion to appear pro hac vice for the new attorney because neither attorney had sought to file an interlocutory appeal before the deadline. Under Local Rule 83.14, "No attorney may, without leave of Court, appear in any case or proceeding by permission who is not a member of the bar of this Court, other than a visiting attorney who is a member in good standing of the bar of the highest Court in which the attorney maintains an office . . . ." Local Rule 83.14. According to the rule, an attorney wishing to appear in a case is required to argue he has been granted permission to practice in the court granting such permission and the attorney or clients are expected to periodically follow up in cases where he or she files a motion for pro hac vice appearance until either the court allows or denies that motion. When the attorneys for both Southwest Securities, Inc. and Dretke appeared at the hearing on Dretke’s motion for reconsideration, however, the court took no action in relation to the motion. In another case involving a similar assertion of an appeal having never been filed in Texas, a local bankruptcy court ruled under a different outcome as published in Bank of America v. Brooks (In re Brooks), 406 B.R. 759 (Bankr. N.D. Tex. 2009). Taking a more lenient approach than the court in Dretke v. Southwest Securities, the Bankruptcy Court for the Northern District of Texas held the time for filing a notice of appeal must be strictly enforced by the courts. In the underlying action, Brooks retained an attorney who did not file a notice of appeal on time while a second attorney who was involved in the case multiple years later agreed to take the appeal on behalf of Brooks. The court barred the second attorney from filing a late notice of appeal on behalf of Brooks because such an appeal is a nullity and did not have merit. In such instances, clients are well advised to investigate legal representation that would make them avoid such defendants as were represented by the attorneys in Dretke v. Southwest Securities and Bank of America v. Brooks.
Avoiding Legal Malpractice Problems
One way in which individuals can minimize the risk of legal malpractice is by doing research before hiring an attorney. While finding an attorney through a personal referral is a common way, this may not always be the best option. Researching online can be one of the better options. There are websites for every state’s bar association, and searching the state’s website can provide valuable information. There are also many third-party review sites available to consumers, and reading reviews from others who have hired the attorney can be informative.
Individuals should also consider what areas of law the attorney practices. Many attorneys have specialties and limit their practice to specific types of law. Finding an attorney who specializes in the area of law relevant to the situation is a key step in a successful relationship. For example, an individual who needs a divorce should look for a family law attorney, while someone filing for bankruptcy should seek a bankruptcy attorney.
Another aspect of hiring an attorney is signing a written retainer or representation agreement. Doing some research first can help individuals know what should be included in the retainer or representation agreement. The retainer or representation agreement should have appropriate payment terms, so the consumer does not lose money if the attorney does not perform as promised. The agreement should also outline what the attorney is responsible for.
Elderly individuals are more likely victims of possible attorney misconduct. It is important for the elderly to be particularly vigilant when hiring, working with and paying an attorney. It may also be worthwhile for the elderly to hire an attorney who has experience working with the elderly. Even if not all attorneys specialize in working with the elderly, it is still helpful to find one who has experience with clients in that age group.
Attorneys can take various steps to reduce the likelihood of being sued for legal malpractice. One of the most basic of these steps is keeping the client reasonably informed. This can relate to the case, as well as to the fee. For example, the attorney should keep the client informed of the status of the case, inform the client of any potential obstacles to the resolution of the case and inform the client of any changes to the client’s invoice.
Attorneys can also avoid legal malpractice by being open and communicative. If an attorney is having difficulty with a client matter, the attorney should work on finding a solution with the client. An attorney should not overly criticize a client or other involved parties because it will not help the client emotionally or financially, and it may result in the client filing a legal malpractice suit. While breaking bad news is never easy, it is important to be direct and honest with the client.
Importantly, attorneys should know the law. In general, attorneys should keep updated on laws and rules in their practice areas. Ignoring new laws can result in negative consequences for clients, which negatively impacts the attorney, as well.
Frequently Asked Questions: Legal Malpractice in Texas
There are some common questions that come up when a prospective client is considering a legal malpractice case or is not sure whether there has been legal malpractice in Texas:
Q. Does legal malpractice routinely occur?
A. No, the majority of attorneys are competent and take care of their clients cases in a professional manner. There is no need to be unduly concerned, as legal malpractice does not happen all that often specifically because the majority of attorneys do a good job with their work.
Q. Are there cases where there was no legal malpractice?
A. Yes, there are many cases of mistakes that do not rise to the level of malpractice. That is why it pays to have the case reviewed by an experienced legal malpractice attorney who sees them on a daily basis.
Q. How can I find out if I have had legal malpractice?
A. Talk to a legal malpractice attorney who knows how to spot it. The best way to find one is to look on the internet for a Legal Malpractice Lawyer or a Legal Malpractice Attorney, or go to your state or county’s bar association for a referral.
Q. Will I have to sue my attorney?
A. In legal malpractice cases , ultimately yes. There is more than one side to a story, and the attorney will have his side. The only way to sort through the issues and to find out what really happened is to file a lawsuit.
Q. This sounds expensive, will I be paying thousands of dollars out of my pocket?
A. More likely not. The best legal malpractice attorney will accept a case on a contingency fee basis, meaning he or she gets a piece of the pie at the end of the case versus paying thousands of dollars upfront. As a corollary, it will be very difficult to find an experienced, qualified legal malpractice attorney who will simply take your case for "nothing" without a contingency fee.
Q. How long do I have to bring a suit for legal malpractice?
A. In Texas, you have two years from the negligent incident or the time you should have discovered the incident to bring the suit against the attorney. However, there can be a tolling of the statute of limitations, so it is best to seek out legal advice sooner rather than later.