Q1. Are all these failures to file, or to file on time, Legal Malpractice?
A. The lawyer’s failure to file in a timely manner constitutes malpractice if you were harmed as a result. To recover for malpractice, in addition to showing that your lawyer breached a duty owed to you by failing to file, you will also need to convince the court hearing your malpractice case that it was the lawyer’s failure to file—not any failure on your part or weakness in your case—that caused the harm you sustained. Proving that the lawyer’s failure was the primary cause of your damages can be difficult, but a good lawyer experienced in the areas of malpractice and the substantive legal area involved in your underlying claim should be able to assist you in obtaining a remedy for the lawyer’s misconduct.
Q2. Can I file a legal malpractice case and also file a separate disciplinary complaint against the attorney?
A. Yes, one has absolutely nothing to do with the other. Legal malpractice cases filed in court are different from complaints filed with the Disciplinary Council.
Q3. Can I receive an honest evaluation on whether I have a case, or are all attorneys going to stick up for their fellow colleagues?
A. You can be sure that you will receive an honest evaluation from a responsible malpractice attorney. This is a specialty area of law and attorneys who practice in it are interested in getting results for their clients.
Q4. Do I have to deal with my former attorney?
A. No, your new lawyer will handle everything.
Q5. Do I need to get an out-of-town attorney to handle my legal malpractice case?
A. You do not have to, however, in some cases it is better, especially if you are from a small community. Most legal malpractice attorneys do not want to take a case against a lawyer that they practice within the community. A responsible legal malpractice attorney will tell you this in the beginning.
Q6. Does the legal malpractice attorney take it all?
A. No. Most attorneys modify the fees and costs so that the client is comfortable with the resolution. No case can be concluded unless the client consents.
Q7. How much does a legal malpractice attorney usually take if they are successful?
A. Generally, legal malpractice attorneys charge a fee of 33.3% to 40% of the gross recovery.
Q8. How do I know if I can trust another attorney?
A. This may be hard, especially if you just had a bad experience with an attorney. However, not all attorneys are the same. We adhere to the high level of standards and professionalism that are expected from lawyers. Legal malpractice claims can be complicated and you will need the assistance from a lawyer. Hopefully, talking to us will restore your confidence.
Get the answers to your specific legal malpractice questions by contacting us for a free consultation. Please call 1-888-534-4850 or fill out the FREE CASE REVIEW form on the right.
Q9. How do I pay my new attorney?
A. Most legal malpractice attorneys render their services on a contingency basis. If they win, they take a percentage of the money collected. If they are not successful, no money is owed.
10. How do the legal costs get paid?
A. Most legal malpractice attorneys advance the costs associated with filing a lawsuit and retaining experts if needed. The malpractice attorney will get reimbursed from the proceeds of the money received through a settlement with, or judgment against, your former attorney. If they case is not successful, you do not have to pay your attorney back. This is the risk that your attorney assumes.
11. How long do I have to bring a legal malpractice claim against my former attorney?
A. It is normally one (1) year from the time you terminated your relationship with your former attorney. It may be longer if the legal malpractice was not discovered and there was no reason for it to be discovered for a period beyond one (1) year. In that situation, the one (1) year period begins to runs on the date the malpractice was discovered, or the date that the malpractice should have been discovered.
12. How long do I have to bring a legal malpractice claim?
A. One year from the date the attorney stopped representing you or one year from the date you should have discovered the mistake. The latter can sometimes extend the time period to bring a claim against your attorney.
13. How long does a legal malpractice case take?
A. Some cases get settled within a short period of time, for example, ninety (90) days. However, if there is a dispute as to whether legal malpractice occurred, it could take anywhere from ninety (90) days to over one (1) year.
14. I am not sure if I have a case, what should I do?
A. Because the time to file a legal malpractice case is limited, you should contact an experienced malpractice attorney immediately. There are often many lingering feelings when matters do not go well in a case, combined with many lay people weighing in on the matter. All of this becomes burdensome, thus you are much better off speaking to an experienced malpractice attorney to determine whether or not you have a case.
15. I am not sure if I have a legal malpractice case against my former attorney. Can I talk in confidence with someone without identifying my former attorney?
A. Yes. There is no need to identify your former attorney during the initial conversation. However, if you retain an Ohio malpractice attorney, the name of your former attorney must be disclosed.
16. If I call a legal malpractice attorney will that call be kept confidential?
A. Yes, we cannot and will not discuss your legal matter with the attorney you are thinking of making a legal malpractice claim against. We adhere to the highest of ethical standards.
17. If I sue my former attorney and I lose, will I have to pay for the costs he expended in defending himself?
A. No. Our legal system generally does not require the losing party to pay the winning party’s costs and fees. There is a small exception in some federal court cases, however, most legal malpractice cases are brought in state courts and therefore this situation would not apply.
18. What compensation will I receive if my legal malpractice claim is successful?
A. You are entitled to receive the lost damages that you are able to prove. Like any other lawsuit, a financial award is not given because someone made a mistake. Punitive damages are only available in rare cases. The law compensates people for what they lost and rarely punishes anyone for what they did.
19. What If My Lawyer Was Acting on Behalf of Someone Other Than Me?
A. Lawyers have a duty to zealously represent their clients’ best interests. A conflict of interest may seriously compromise that ability. In many cases, a conflict of interest can lead to legal malpractice. Malpractice occurs when a lawyer owes a duty to a client, but fails to act with the same degree of skill and diligence as a reasonably competent lawyer in similar circumstances, resulting in harm—typically, financial loss—to the client.
There are many competing factors that determine what constitutes a conflict of interest, as well as exceptions in which a lawyer may represent a client despite a known conflict. Therefore, it’s always best to consult a full service law firm with significant experience in handling legal malpractice cases for advice concerning your particular case.
20. What is a conflict of interest?
A. Many states have similar rules defining what constitutes a conflict of interest. In Ohio, conflicts of interest fall into two broad categories. The first is a conflict involving opposing interests between or among two or more clients of the same lawyer. In the second category, the lawyer’s ability to make decisions in the client’s best interest is compromised by either (1) the lawyer’s responsibilities to a former client or a third person, or (2) the lawyer’s own personal interests.
A lawyer must consider potential conflicts before taking on a new client. A lawyer or law firm is expected to have a system in place to discover and address potential conflicts before accepting a new client. In general, a lawyer should not accept or continue representing a client if a conflict of interest exists. However, there are exceptions. A lawyer may represent clients with conflicting interests if the lawyer can competently represent each client, and if each client gives informed, written consent.
21. What is legal malpractice?
A. When an attorney does something that is professionally wrong and causes you a provable financial loss. For example:
Not filing a case on time.
Not presenting the correct legal information.
Not presenting your case correctly.
22. What Kinds of Documents Must Be Filed By a Specific Deadline?
A. Commencement of a Lawsuit: Statutes of Limitations
As you probably know, a lawsuit must be filed before the statute of limitations expires. In Ohio, statutes of limitations apply to every type of lawsuit a client might want to file.
Statutes of limitations vary, depending on the nature of the lawsuit. If a lawsuit is not filed within the applicable limitations period, the client loses the right to pursue that claim.
Tort claims, based on the failure to exercise ordinary care to protect others from a foreseeable harm, typically have a two-year statute of limitations in Ohio. However, some tort claims—notably legal and medical malpractice—have shorter, one-year time limits for filing. While the time limit for many tort claims begins to run on the date the injury is incurred (e.g., the date of an accident), the time limit for other claims does not start to run until the client has reason to know that he or she has been harmed. Contract claims have longer limitations periods than tort claims. Claims based on a statute may have a different statute of limitations, indicated in the statute creating the legal claim. Although some tort claims, including malpractice claims, may also involve a contract or fee agreement, the claim will be subject to the shorter statute of limitations applicable to the specific claim.
A competent lawyer should know, based on the facts of your case and the lawyer’s prior experience and/or legal research, when the statute of limitations will expire, and should file your lawsuit before that date. A full-service law firm that handles a wide variety of cases is in the best position to recognize when your previous lawyer missed a critical deadline, to know whether the former lawyer’s failure was in fact malpractice, and to ensure that your legal malpractice case is filed within the limitations period.
23. What should I do if my lawyer has a conflict of interest?
A. Act quickly! If your lawyer is still representing you in a court case or handling a legal transaction for you, speak up! Your lawyer has a duty to explain any conflict of interest that may affect you. If you initially consented to be represented by the same lawyer who represents another party but no longer feel comfortable with the arrangement, you should discuss it with your lawyer as soon as possible.
If you believe a former lawyer had a conflict on a matter the lawyer handled for you, and if you believe you were harmed as a result of that conflict, the lawyer may have committed malpractice. You have only one year in which to sue your lawyer after (1) you should have recognized that your lawyer was committing malpractice based on a conflict of interest, or (2) your lawyer ceased representing you in the matter in which the malpractice occurred—whichever is later. Because of the time limits, it’s important to act quickly if you suspect that your lawyer has compromised your position based on a conflict of interest.
Rely on a full-service law firm to handle your legal malpractice case.
24. When Does a Lawyer’s Failure to File Documents Constitute Legal Malpractice?
A. Much of the work lawyers do involves filing various documents. Often, there are deadlines by which documents must be filed. Even when there are no fixed deadlines, a lawyer’s delay in filing certain documents can permanently impair a client’s rights. You might wonder why a simple failure to file a document “on time” could destroy your rights. After all, once the unfiled document is discovered—particularly if the lawyer’s error was unintentional, or the failure to file was discovered right away, and no one was harmed by the delay—shouldn’t that remedy the problem? Sometimes courts will relieve clients of any harsh consequences arising from the lawyer’s failure to file on time. However, sometimes the law requires that the prescribed sanctions for the lawyer’s failure to file be imposed on the client. In those cases, the client’s only remedy is a malpractice claim.
25. When is representation by a particular lawyer or law firm prohibited?
A. If your lawyer’s interests are directly adverse to yours, he or she should not represent you. Obviously, if you were sued, you wouldn’t hire a lawyer who was a close friend or family member of the person who sued you.
If you have a claim against a corporation, and your lawyer is on the corporation’s board of directors or has a large investment in the corporation, your lawyer should not represent you in pursuing that claim. Your lawyer’s interests are directly opposed to yours. A lawyer cannot be expected to separate his or her fiduciary duties to the corporation as a director, or his or her personal financial interests, from the duties owed to you as the client.
Or, say you were wrongly convicted of a crime because your lawyer was incompetent. Your strongest ground for appeal would be ineffective assistance of counsel. Your trial lawyer should not handle your appeal because of a conflict of interest: if the court of appeals found that your lawyer did not effectively represent you, the conviction would probably be overturned, and you would also have a malpractice claim against the lawyer. To avoid a malpractice claim, your trial lawyer might not tell you about his or her errors at trial, and either convince you that you had no grounds for appeal, or appeal on other grounds not likely to succeed.
26. When is representation by the same lawyer or law firm prohibited?
A. What if you own a business, and the lawyer who handles your business transactions also represents a company that won’t pay you for services you provided? That lawyer can’t represent both you and the other company in your lawsuit against that company. The lawyer would have to assert claims on behalf of one client—you—against another client—the company—in the same proceeding.
Now imagine that a different lawyer in your lawyer’s firm represents the company that won’t pay you. The law firm’s conflicts check system should alert the firm to the conflict, and the firm should not represent you in any suit against the company that refuses to pay you. Let’s say that because of its relationship with the company, your lawyer’s firm has information that the company regularly denies its obligations and refuses to pay for services. This creates a conflict that cannot be waived: does the firm owe you a duty to use this known pattern of misconduct in your case against the company, or does the firm owe the company a duty to keep quiet about the company’s history of evading its debts, possibly causing you to lose your case?
27. When is representation by the same lawyer permissible?
A. Say you and your spouse want to end your marriage, and generally agree on how to divide your property, including the house, vehicles, tools, pets, etc.; whether either of you will pay spousal support, and for how long; and who will have custody of the children. Your interests may conflict to an extent: there may be property that both of you would like to have; the spouse making any payments may want to pay less while the recipient may want to receive more; and each of you may want more time with the children.
A lawyer can advise you about what to expect based on the law and your circumstances (income; the children’s needs; how to divide joint financial accounts). If you and your spouse can agree on all the important issues, one lawyer may handle the matter provided that the lawyer explains the conflict to both of you and how it may affect you, and you both consent. Alternatively, the lawyer may represent one of you with the understanding that the other spouse will rely on that lawyer but may retain his or her own lawyer if problems arise.
28. Where does the money paid in legal malpractice cases come from? The attorney who committed legal malpractice or some other source?
A. Attorneys practicing in the State of Ohio are required to carry malpractice insurance or notify their clients at the beginning of their representation that they do not have insurance. Most attorneys have insurance, however, the amount varies by attorney.
If you believe you have a legal malpractice claim against an attorney anywhere in Ohio, please contact us for a free consultation and case evaluation. Call us at 1-888-534-4850 on any day of the week including weekends and evenings or send us a website message.