Attorney Malpractice If you believe an attorney representing
you has failed to provide you with adequate representation,
you may have the basis for a legal malpractice claim against
the attorney. Each case is unique, but there are circumstances that frequently
appear in matters involving legal malpractice:
- Fee Agreements and Billing
- Conflict of Interest
- Failure to Communicate
- Statute of Limitations
Fee Agreements and Billing
Texas law requires that if an attorney agrees to handle a case in return for
a portion of the recovery ("contingency fee" case), there must
be a written fee agreement signed by the attorney and the client. It is the
attorney's responsibility to prepare a valid fee agreement. If you have a
dispute over fees owed to your attorney, and you have no written fee agreement,
you may wish to speak to a malpractice attorney concerning your matter. Conflict of Interest
An attorney has a fiduciary duty to avoid conflicting interests - a conflict
of interest arises whenever an attorney's independent judgment on behalf
of a client may be affected by a loyalty to another party. There is a potential
conflict of interest when:
- An attorney represents multiple claimants in an aggregate
settlement (common when a disaster injures many individuals,
all of whom hire the same attorney);
- An attorney represents both sides in a matter where potentially
the parties' interests may conflict (i.e. representing both
buyer and seller or both parties in a divorce);
- An attorney belongs to a large firm, the likelihood of
a connection with potential defendants, or their respective
insurance companies, is greater;
- An attorney cannot clearly identify who is the client;
This final scenario is common in legal malpractice suits
arising from estate work and from the creation/representation
of new business entities. Examples are: If an attorney drafts
a trust for a client, then the personal representative robs
the trust following the death of the client, do the named beneficiaries
of the trust have a claim against the attorney? Or, an individual
approaches his attorney and requests legal services involving
the start-up of a corporation with several partners. After
incorporating, is the individual, the group of individuals
or the corporation the client? The attorney should always be
able to clearly identify the client - and should discuss this
with all involved parties so there is no confusion over whose
interests the attorney is serving.
Additionally, an attorney may have personal interests which conflict with those
of the client, such as when the attorney needs money and is willing to settle
a case cheap for immediate payment of a contingent fee. Failure to Communicate
Your claims should never be compromised without your full knowledge or consent
- thus a demand for settlement should never be made on your behalf without
your full authority. The better practice is for the attorney to prepare an
advice letter, providing a professional opinion as to the value of your claims.
The advice should also recommend a settlement range and asking your permission
for making a specific opening demand. Likewise, a settlement cannot be accepted on your behalf
without your approval. You have the final say. Conversely,
your attorney is obligated to inform you of any settlement
offers, even if the offer is lower than what you indicated
you would accept. You also have the right to be fully informed of the status
of your case. Ask questions and insist on answers which you
understand - your lawyer has a duty to provide clear explanations
that enable you to make informed decisions regarding your case. Good lawyers communicate often and well with their clients,
particularly personal injury clients. If months go by without
word on your case, investigate what is happening. Litigation
is a slow process, but an aggressive attorney usually can progress
a case quickly enough to at least justify monthly updates. Statute of Limitations
The statute of limitations is a deadline established by statute by which time
you must file your lawsuit or be forever barred. For most personal injury
matters, this period is two years. Thus, you have two years from the date
of your injury, or, more precisely, when you knew or should have known that
you had suffered an injury, in which to file your claims. In Texas, injury
cases and most other “torts,” have a two-year statute of limitations.
Breaches of agreement and fraud cases have a four-year period. Calculation of your deadline is usually straightforward,
ask your attorney when your statute of limitations period expires
and mark it on your calendar. Surprisingly, for something that
is so elementary, around 15% of all legal malpractice cases
result from failure on the part of the attorney to file suit
timely. Legal malpractice cases may also involve neglect of the file
by the attorney, failure by the attorney to abide by court
orders and discovery requirements, failure to conduct adequate
discovery, or improper conduct such as sexual advances by the
attorney. If your attorney drastically reduces the valuation
of your case without a clear reason, there may be cause for
being suspicious of the attorney's motives. Many cases where
the attorney has "overlooked" a critical detail are
settled quickly before the client is allowed to learn of the
attorney's negligence. If you feel you may have a legal malpractice
claim against your present attorney, you may wish to pursue
a claim even before the underlying litigation, the case the
negligent attorney is or was handling, is concluded. If you have questions about your attorney's conduct,
and you wish to discuss your matter with an experienced malpractice
attorney, please call 713 942-9898, email Dana
LeJune & Associates or fill-out our Free
Case Review form. Back to top
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