A legal malpractice case against a former attorney must be filed within two years of the date that the client knew or should have known that the former attorney made a mistake, and that the mistake may have caused some harm. This deadline is not affected by the filing of an appeal, or by any other steps taken to reduce the impact of the attorney’s mistake. Thus, a client who believes his or her attorney has committed malpractice must act in a timely fashion to prosecute a legal malpractice claim. The claim should be filed in the state and county where the attorney works or resides, or where the underlying case arose.
Lawyers are considered employees of their law firms. Thus, in a legal malpractice, the law firm where the negligent attorney worked can be held vicariously liable for the misconduct of that attorney. Because legal malpractice insurance policies vary, it is probably the best practice to sue both the attorney and his or her law firm, in order to increase the likelihood that the claim will be covered by insurance proceeds. If a negligent attorney did not have malpractice insurance, and a judgment is entered against that attorney, the former client will have to look to the personal assets of that attorney in order to collect the judgment. Such assets may include, but are not limited to, the attorney’s salary, his home, and his bank account.
Common lawyer mistakes include missing the deadline for filing a case, thereby preventing the case from going forward, or missing a deadline while a case is pending, thereby causing the case to be dismissed. Examples of the latter type of mistake include failing to timely disclose expert witnesses, or failing to timely respond to a motion for summary judgment. If a lawyer negligently causes a client to lose an underlying case, the lawyer can be required to pay the monetary value of all of the benefits that the client would have received from the underlying case. Thus, if the underlying case was a personal injury matter, the negligent lawyer can be held liable for the full monetary value of the client's injuries. Similarly, if the underlying case was a divorce matter, and the client lost out on maintenance or child-support proceeds due to the lawyer's negligence, the lawyer can be held responsible for the full monetary value of those maintenance or child-support proceeds.
Legal malpractice cases are different from all other types of lawsuits, because the former client must prove the “case” against his former lawyer, as well as the “case within a case.” In order to prove the “case” against the lawyer, the former client must show that the lawyer acted negligently in his or her representation of the client. Common acts or omissions that can constitute negligence include missing the statute of limitations or some other deadline, filing a case in the wrong court, or failing to adequately prepare for a hearing or trial.
In order to prove the “case within a case,” the former client must show that, if not for the lawyer’s negligent acts or omissions, the former client would have achieved a better result in the underlying case. For instance, a former personal-injury plaintiff must show that his or her recovery would have been greater, a former divorcing party must show that his or her maintenance obligations or parenting time would have been different, and a party to a business transaction must show that the outcome of the transaction would have been more favorable. If a former client can prove the “case” against his or her former attorney, as well as the “case within a case,” he or she can recover the value of the losses caused by the attorney’s malpractice.
For a client whose former attorney negligently caused the client harm, legal malpractice cases can be difficult, but rewarding. If a client believes former counsel may have committed legal malpractice, he or she should consult with independent counsel at the earliest possible opportunity.
Disclaimer: This answer was provided by an attorney selected to Super Lawyers, and is intended to be an educated opinion only. This answer should not be relied upon as legal advice, nor construed as a form of attorney-client relationship.
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