Areas of Practice – Legal Malpractice
Legal Malpractice
Like doctors, attorneys must adhere to applicable standards to protect the interests of their clients. To succeed in a legal malpractice lawsuit the following must be proved:
- the existence of an attorney-client relationship;
- that your attorney either by doing something or failing to do something violated or breached the required duty of reasonable care owed to you;
- the attorney’s breach of duty was a cause of damages or injury; and
- you did in fact suffer injury, loss or damage.
A poor result or bad advice alone is not sufficient to be successful on a claim of attorney malpractice. Alleging legal malpractice should not be done before many factors have been evaluated by an attorney experienced in the field of professional malpractice law. John Alton has the experience, knowledge and resources to advise you on these issues.
When an attorney agrees to handle a matter for you, he or she impliedly represents that he or she possesses the required degree of learning, skill and ability necessary and that he or she will exercise reasonable and ordinary care and diligence in the use of his or her skill and in the application of knowledge to the client’s case.
A lawyer is obligated to provide services on a par with other attorneys acting under similar circumstances. Expert testimony from a lawyer must be presented in support of an attorney malpractice claim.
The following are examples of legal malpractice:
- A lawyer may miss the statute of limitation leaving an injured person without any legal remedy.
- An attorney may fail to respond to motions or attend court hearings.
- An attorney may fail to properly investigate a client’s legal matter.
- An attorney may be negligent in the performance of duties during trial.
As soon as you realize you may have a legal malpractice claim, you should promptly contact John Alton because the deadline for suing a lawyer is one year from the date on which the attorney last represented you. To evaluate the malpractice claim, John Alton will need to review the entire file of the attorney in question and may need to retain the services of an expert witness to assist in the review and evaluation of your malpractice claim.
After investigating and evaluating your malpractice claim, John Alton will advise you whether your potential claim is one he is willing to pursue on your behalf. John Alton’s representation is almost always on a contingent fee basis. There is no fee for investigation if John Alton decides he is unwilling to handle the case.
Legal Malpractice Topics
What is legal malpractice?
Legal malpractice is negligence on the part of a lawyer representing a client. The issue is whether the lawyer exercised that degree of care, skill and diligence that lawyers of ordinary skill and knowledge commonly possess and exercise in a particular area of the law.
If you believe that your lawyer may have been negligent, you need to consult with an experienced legal malpractice attorney who can help you determine whether you have a provable legal malpractice claim.
What are the typical malpractice claims?
Claims of professional negligence are based upon a lawyer’s failure to exercise that degree of care, skill and diligence that lawyers of ordinary skill and diligence commonly possess and exercise.
The majority of legal malpractice cases fall under the heading of professional negligence. However, depending on the nature of the action or inaction and whether it involves ethical or statutory violations, there may be independent causes of action available to the aggrieved client. John Alton has experience in the pursuit of a variety of legal malpractice theories, including but not limited to the following:
- Negligence: The most common underlying reason for a legal malpractice case is professional negligence. The traditional elements of a negligence suit apply to negligence claims against the lawyer such that the plaintiff must prove:
- there was a duty owed to him by the lawyer;
- the lawyer breached that duty;
- the breach proximately caused the plaintiff injury; and
- damages resulted.
Proving the breach requires expert testimony. In order to establish the causation element, the plaintiff must essentially prove that his claim or defense would have been successful if not for the attorney’s negligence.
- Breach of Fiduciary Duty: The relationship between lawyer and client is highly fiduciary in nature and requires proof of undivided loyalty on the part of the lawyer. The essence of a claim for breach of fiduciary duty strikes at the integrity and fidelity of the attorney. The attorney-client relationship is one of good faith requiring candor, openness, honesty and the absence of concealment or deception. A breach of fiduciary duty arises when a lawyer improperly benefits from the representation of the client by, for example, subordinating the client’s interests for the lawyer’s interests, improperly retaining the client’s funds, improperly using client confidences, failing to disclose conflicts of interest, taking advantage of the client’s trust, engaging in self-dealing or making misrepresentations to the client regarding any of these issues.
There are many other potential claims against lawyers. This website is not intended to provide an exhaustive review of those claims. If you believe you have been injured as a result of your lawyer’s conduct, it is important to discuss the facts of your situation with a lawyer skilled at evaluating such claims. Because the deadline for filing a legal malpractice case is short, you should contact John Alton as soon as you believe you have a legal malpractice claim. He accepts most cases on a contingent fee basis.
Is there a deadline to file a legal malpractice lawsuit?
The deadline in Ohio to file a legal malpractice case is one year from the date on which you were last represented by the lawyer or in which you discovered or should have discovered you were injured as a result of legal malpractice, whichever occurs later. Since the date on which one should have discovered there is a basis for a legal malpractice action is subject to debate and interpretation, John Alton highly recommends that you contact an experienced trial lawyer concerning your potential legal malpractice claim as soon as possible after the attorney-client relationship terminates. It is imperative that a lawyer advise you as soon as you believe you have been injured by legal malpractice. If you have a question regarding whether the deadline for suing a lawyer has expired, you should contact John Alton by completing the contact form located on this website or calling him at 1-888-525-8662.
Does the client own the file at the lawyer’s office?
The file of the client is the property of the client and not the lawyer. The file includes pleadings, discovery, correspondence, memoranda and research. A lawyer may not refuse to provide you with your file on the basis that you owe the lawyer money. If the lawyer wants to keep a copy of your file for his or her records, the copy must be made at the expense of the lawyer – not you. If you have any questions concerning your rights or the retrieval of your file, please contact John Alton by competing the contact form located on this website or calling 1-888-525-8662.
What ethical rules govern a lawyer’s conduct?
The Ohio Rules of Professional Conduct that became effective on February 1, 2007 govern the conduct of all Ohio lawyers. The first section of the rules describes in detail the duties of a lawyer in representation of a client. First and foremost among them is to provide competent representation which requires the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation. A lawyer shall also act with reasonable diligence and promptness in representing a client, reasonably consult with the client about the means by which the client’s objectives are to be accomplished, keep the client reasonably informed about the status of a matter and comply as soon as practicable with reasonable requests for information from the client.
All lawyers should be familiar with the ethical Rules when representing, advising and guiding the client in a transaction or through litigation. Unfortunately, some lawyers ignore these guidelines and subject themselves to discipline. When lawyers are advising clients, the Rules governing conflicts of interest, fee agreements and confidentiality are sometimes ignored or not followed. If this occurs, a client needs to recognize the rights and duties owed to him or her.
- Conflicts of Interest: A lawyer shall not represent opposing parties in the same litigation or a person whose representation involves a substantially related matter in which the person’s interests are “materially and directly adverse” to the interests of another client. In the latter scenario, a lawyer can continue representation if he or she believes his representation will not be materially affected and each client consents to such representation after full disclosure.
- Fee Agreements: Typically, there are two different types of fee arrangements between client and lawyer – hourly and contingent. Although hourly agreements need not be written, the nature and scope of the representation and the basis or rate of the fee and expenses for which the client will be responsible must be communicated to the client preferably in writing before or within a reasonable time after commencing the representation, unless the lawyer is representing a client whom the lawyer has regularly represented on the same basis as previously charged. Contingent fee agreements must be in writing done by the client and the lawyer and shall state the method by which the fee is to be determined, including the percentage that shall accrue to the lawyer in the event of settlement, trial or appeal; litigation and other expenses to be deducted from the recovery; and whether such expenses are to be deducted before or after the contingent fee is calculated. The agreement shall clearly notify the client of any expenses for which the client will be liable regardless of whether the client is the prevailing party.
- Confidentiality: The lawyer shall not reveal information relating to the representation of the client, including information protected by the attorney-client privilege, unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation, or permitted by the ethical Rules.
If your lawyer fails to disclose a conflict of interest or a significant term of the fee agreement or fails to protect your confidential information, you may have a basis to file a grievance against that lawyer with the State of Ohio Disciplinary Counsel. You may also have a basis for a legal malpractice case. Therefore, it is important to consult with an experienced attorney familiar with the Ohio Rules of Professional Conduct. John Alton served on the Ethics and Grievances Committee of the Columbus Bar Association for three years.
If you have questions regarding the ethical rules governing Ohio lawyers or a violation of these rules, you should contact John Alton by completing the contact form located on this website or calling 1-888-525-8662.
Can a client dispute a lawyer’s fee?
A client can dispute a lawyer’s fee. Typically fees charged by a lawyer do not constitute a basis for a legal malpractice claim. However, complaints against a lawyer pertaining to fees charged may be brought to the attention of the State of Ohio Disciplinary Counsel or certain local bar associations, e.g. Columbus Bar Association at (614) 221-4112 or www.cbalaw.org. The Columbus Bar Association fee dispute committee provides that the client and lawyer can resolve their fee dispute by binding arbitration.
If you have questions about a potential fee dispute, do not hesitate to contact John Alton by completing the contact form located on this website or calling 1-888-525-8662.
How can a client pursue a claim against a lawyer for malpractice?
Many people want to find out how to sue Ohio lawyers for legal malpractice. John Alton has more than 30 years of experience guiding clients through similar questions about a difficult area of the law.
The first step is to determine if malpractice occurred. People often mistake poor representation for legal malpractice. A client can have one without the other. That is why it is important to contact an experienced legal malpractice attorney to assess the situation objectively. Second, the client needs to retrieve the original file. A careful review of a client’s file is necessary to determine the facts and legal issues presented in the underlying representation in order to determine if malpractice occurred. Third, a legal malpractice lawsuit must be filed within the one-year statute of limitation.
If your attorney missed important deadlines, settled your case without your approval, failed to notify you of conflicts of interest or otherwise mishandled your case, you need an experienced malpractice lawyer to protect your rights. John Alton can readily review your file to determine whether legal malpractice has occurred and identify any remedies that may be available to you.
If you have questions regarding the actions or inactions of your lawyer, you should contact John Alton by completing the contact form located on this website or calling 1-888-525-8662.
What are they typical hurdles in a legal malpractice case?
There are many challenges inherent in proving legal malpractice. John Alton has assisted clients in a variety of legal malpractice disputes. While some of the lawsuits involve large nationally recognized law firms, others involve solo practitioners. No matter the number of attorneys involved or the nature of the underlying issues, legal malpractice cases can involve several hurdles including:
- The Privity Rule: Ohio law generally prohibits non-clients from suing lawyers. Without an attorney-client relationship, a person has no cause of action for injuries sustained due to a lawyer’s malpractice. The attorney-client relationship is a contractual relationship in which the attorney agrees to render p[professional services. A written contract with a lawyer is not necessary to have an attorney-client relationship, although it is the common and recommended practice. Thus, the attorney-client relationship can extend to preliminary consultations in some instances.
- “The Case within the Case”: Not only must the client prove professional negligence, the negligence must have caused collectible damages in the underlying case. Although the Ohio Supreme Court case of Vahila v. Hall, to some extent changed the requirement that “the case within the case” also be proved, from a practical standpoint not only must the damages have been collectible in the underlying action, one must also prove that recovery would have occurred in that action if the attorney had not been negligent.
- Expert Testimony: Attorney malpractice cases often become a “battle of the experts” similar to medical malpractice cases. Thus, it is mandatory that the legal malpractice attorney select an expert witness whose skill, reputation and credibility is on par with any expert selected by the defendant lawyer’s attorney.
These are the most common challenges facing claimants in legal malpractice cases, but are not the only ones. It is wise for those considering a legal malpractice action to contact an attorney who is experienced and knowledgeable in legal malpractice to guide one through the process.
If you have any questions concerning legal malpractice, you should contact John Alton by completing the contact form located on this website or calling 1-888-525-8662.
