Managing Issues with Your Lawyer

You may be upset with a lawyer you engaged to undertake legal work for you for a variety of reasons.

You may be upset with a lawyer you engaged to undertake legal work for you for a variety of reasons. Perhaps your lawyer has failed to keep you up to date on your case, to fulfil deadlines, or to do what you consider to be excellent work. Perhaps your lawyer has handed you a bill that is much in excess of what you consider fair. Whatever the details of your issue are, you are certain that something is wrong with your professional connection. These questions address the most common grounds for comlaints against lawyers and give advice on how to deal with them.

1. I’ve lost faith in my lawyer. Can I let him go?

Yes, you have the right to discontinue a relationship with a lawyer at any time, but unless he’s genuinely bad, it’s usually not a good idea unless you have another lawyer lined up or intend to handle the case yourself.

2. I sacked my attorney, but I still need my file. How can I get it?

Request or sign a permission authorising any new attorney to get it. You are entitled to your file even if you have a fee disagreement with your previous counsel or simply have not paid him or her.

3. My lawyer is not responding my calls. Is this unethical?

No. However, it is a warning sign of impending doom. Investigate why your lawyer isn’t responding your calls. (He or she might be rushed, impolite, ill, or procrastinating.) Examine the possibility that your lawyer is avoiding you for a valid cause – you could be overly demanding. A excellent technique to handle this problem is to send or fax the lawyer a simple note outlining your communication difficulties and requesting a phone conversation or meeting to re-establish or reestablish your connection. If this fails, consider dismissing the lawyer and/or filing a formal complaint with your state’s attorney regulating body.

4. My counsel seemed to have abandoned my case. Is this unethical?

The longer your attorney ignores you and your case, the more probable it is that malpractice has occurred. You must move swiftly to ensure that your matter is properly handled and, if required, retain the services of another lawyer. A decent starting step is to write or fax a letter outlining your concerns and requesting a meeting.

5. My lawyer clearly botched my case. Can I sue her for professional negligence?

Unfortunately, winning a malpractice lawsuit is very difficult. Malpractice simply implies that the lawyer did not use the standard skill and care that other attorneys would use in dealing with a comparable issue or case under similar circumstances. To put it another way, in order to be held accountable for malpractice, your lawyer must have made a severe error or handled your matter inappropriately or incompetently.

To win a malpractice action against an attorney, you must demonstrate four key points:

obligation – the attorney owed you a responsibility to perform correctly.

breach – that the attorney failed to perform his or her duties, was careless, made a mistake, or did not accomplish what he or she committed to do.

causality – that this behaviour caused you harm, and

Damages imply that you sustained financial losses as a consequence of the incident.

Causation might be your most difficult challenge. You must show both the malpractice action against your attorney and the underlying matter that the lawyer bungled in order to win a malpractice lawsuit. Then you must demonstrate that if you had won the original case, you would have been able to collect from the defendant. For example, suppose you were struck by a vehicle while crossing the street and hired a lawyer who failed to submit your claim on time. You file a malpractice suit and easily establish the driver’s liability. However, in order to win the malpractice action against your lawyer, you must also establish that the driver had money or insurance. You won’t win your malpractice case if you can’t establish that the driver had assets that might have been used to pay the penalty, even though the lawyer plainly botched it and the driver was definitely at fault.

6. My case was dismissed in court because my lawyer did not do his or her job. Is this a reason to sue my lawyer?

Maybe. Your lawyer is liable for whatever money you may have won if the matter had been handled correctly. Your challenge will be to demonstrate not just that your lawyer bungled the matter, but also that if handled effectively, you might have won and collected a judgement.

7. My lawyer first said that my case was worth six figures, but afterwards insisted on settling for pennies; may I sue the lawyer for the difference?

No. To persuade you to employ her, your lawyer may have given you an exaggerated assessment of the worth of your case. Get your lawyer’s file and get a second opinion on your case. Consider changing attorneys if another credible lawyer feels you are being told to settle for too little.

8. Can I sue my lawyer if he settles my case without my permission?

Yes, but you’d have to show that the settlement your lawyer reached was for less than the value of your lawsuit.

9. I noticed my lawyer playing tennis with the opposing counsel; is this a violation of professional ethics?

No. There is nothing unethical about opposing lawyers playing tennis, bridge, golf, or engaging in other ordinary social activities. However, if they discuss your case (on the tennis court or elsewhere) and your lawyer reveals whatever you said in confidence, it would be a clear breach of your attorney’s obligation to you.

Even if mingling with opposing counsel is not a breach of ethical guidelines, how you learned about it might definitely make a major impact in the actual world. If your lawyer informed you that he sometimes played tennis with the opposing counsel when you initially discussed your case, you certainly had the option of hiring a another lawyer if this disturbed you. But what if, after being grilled by the opposing attorney during your deposition, you go to the tennis court for a game, only to run across your lawyer playing with the legal barracuda who just attempted to devour you for lunch? When you initially met, your attorney should have told you about his social contact with the other lawyer. Although your attorney has not infringed any professional responsibility to you by neglecting to do so, you may desire to change counsel.

10. My lawyer issued me an unexpectedly large bill. What can I do to help?

You don’t have to pay it right immediately. Request a meeting with the lawyer to address your concerns. If you are not happy with your lawyer’s explanation, request a bill reduction. If the lawyer refuses, try submitting a nonbinding fee arbitration request to a state or local bar organisation. Arbitration is a procedure in which your fee disagreement is resolved by a neutral decisionmaker. The term “nonbinding” signifies that you have the option to reject the arbitrator’s ruling. Before agreeing to arbitration, get the guidelines from your state or local bar organisation. If the arbitration is going to be handled by attorneys who may be prejudiced against you, don’t agree to a binding outcome—that is, a conclusion you can’t reject.

11. I’m concerned that my lawyer may have misused part of the retainer money I paid. What am I supposed to do?

If you have reason to believe that your lawyer has misappropriated any funds held in trust for you, file a complaint with your state’s attorney regulating office as soon as possible. Although regulation of lawyers is lax in most states, complaints about stealing clients’ money are almost always taken seriously and acted on promptly. When attorneys are discovered stealing, a few jurisdictions have cash set up to repay clients.