No one imagines that attorneys are incapable of error. For this reason, there is a process for claiming professional malpractice when their performance dips below an expected standard.
In our experience, most lawyers try to follow professional guidelines in their work. But besides being a profession, the law is a business, and lawyers are human and lose sight of ethical considerations. Lawyers can be incompetent. They can also be predatory against their own clients. The range of malpractice is extensive.
When the offense rises to the level of malpractice, you have the right to demand redress.
These are the kinds of mistakes most often encountered. Note that not every error amounts to malpractice.
- They miss deadlines, which leads to losing a case. Lawyers sometimes wait too long to file a suit, allowing the statute of limitations to expire.
- They make poor decisions. A lawyer may make apparent errors in the work they do: advising clients, drafting pleadings, discovery and evidentiary presentation, hiring competent experts, and many other matters. The general rule of thumb is that if actions taken are reasonable but don’t work out, that is not malpractice.
- Conflicts of interest. Lawyers may not “work both sides of the street,” representing clients with opposing interests. They are not supposed to represent opposite interests, either, such as a public utility and a citizens group focusing on energy. Lawyers are not allowed to serve on the board of a client company.
- They let bad habits and personal problems affect their practice.Lawyers can be competent for years, but then be brought down by substance abuse, gambling or emotional issues. They are still expected to do capable work for clients. Some lawyers are natural workaholics, and this tendency to overload starts to show in their work.
- Lousy communication.Lawyers are obliged to be crystal clear in the promises they make and the expectations they set. Phone calls should be answered. Decisions should always be documented.
- Poor screening.Sometimes lawyers take on clients that are not appropriate, or that they know they cannot help.
- Slipshod research.Lawyers are obliged to investigate cases and the law about them thoroughly, and to keep up with changes in the law. Poor documentation is at the base of many client complaints.
- Billing disputes. Many malpractice suits arise from disagreements over the fees charged or inadequate documentation of how fees are calculated. For example, many clients are astonished at how out-of-pocket costs accrue over time. Lawyers are expected to explain this part of the business to clients, but disputes are still frequent.
How we work
Again, not every accusation makes for a strong malpractice claim. In our practice, we hear far more complaints from clients than we can represent. We look for clear-cut cases of blatant wrongdoing that have a strong chance of success.
It is essential to be selective in the cases we take. The truth is, fewer than 5 percent of our cases go to trial. The reason is that we choose carefully. When a case is strong, the other side will want to settle out of court to limit costs.