Legal Malpractice FAQ

Are all these failures to file, or to file on time, Legal Malpractice?

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.

Can I file a legal malpractice case and also file a separate disciplinary complaint against the attorney?

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.

Can I receive an honest evaluation on whether I have a case, or are all attorneys going to stick up for their fellow colleagues?

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.

Do I have to deal with my former attorney?

No, your new lawyer will handle everything.

Do I need to get an out-of-town attorney to handle my legal malpractice case?

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.

Does the legal malpractice attorney take it all?

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.

How do I know if I can trust another attorney?

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.

How do I pay my new attorney?

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.

How do the legal costs get paid?

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.

How long do I have to bring a legal malpractice claim against my former attorney?

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.

How long do I have to bring a legal malpractice claim?

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.

How long does a legal malpractice case take?

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.

How  much  does  a  legal  malpractice  attorney  usually  take  if  they  are successful?

Generally, legal malpractice attorneys charge a fee of 33.3% to 40% of the gross recovery.

I am not sure if I have a case, what should I do?

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.

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?

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.

If I call a legal malpractice attorney will that call be kept confidential?

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.

If I sue my former attorney and I lose, will I have to pay for the costs he expended in defending himself?

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.

What compensation will I receive if my legal malpractice claim is successful?

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.

What If My Lawyer Was Acting on Behalf of Someone Other Than Me?

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.

What is a conflict of interest?

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.
Under some circumstances, even if all clients are aware of the conflict and agree to the lawyer’s representation in spite of it, the lawyer is absolutely prohibited from accepting or continuing the representation:

? A lawyer may not represent a client if the representation is prohibited by law.
? A lawyer may not represent a client if representing that client will require the lawyer to pursue a claim by one client against another client in the same proceeding.

What is legal malpractice?

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.
What Kinds of Documents Do Not Need to be Filed by a Fixed Deadline, and How Can I Suffer Consequences for a Delayed Filing When No Deadline Exists?

Real Estate Records
Documents that must be filed for public record typically are not subject to a fixed filing
deadline. Documents covering real estate transactions are the most commonly
encountered. Filing in a timely manner may be necessary to protect a person’s interest
in a residential or commercial lease. Filing may also be necessary to protect a person’s
or entity’s interest in an oil and gas lease, or in the oil and gas beneath a property.
Especially if the underground oil and gas is owned by someone other than the owner of
the surface, the person’s interest in the oil and gas should be filed for record as soon as
possible.
Interests in real property that are not recorded can be transferred to third parties by the
apparent owner—the owner of land beneath which oil and gas is present, or the owner
of commercial property that has been leased to someone else. Some wrongful transfers
of property subject to unrecorded interests can be corrected by the courts. However,
undoing a wrongful transfer of your interest will likely involve long and costly litigation
that may not fully restore rights lost as a result of your lawyer’s failure to file the
necessary documents.
Similarly, one who has performed work on real estate but has not been paid may file a
mechanic’s lien to ensure that the real estate won’t be transferred to someone other
than the debtor before the worker is paid. Your lawyer’s failure to record your lien may
preclude you from ever being paid.
? Bankruptcy Filings
If you are a secured creditor—e.g., one who holds a lien or mortgage on property
owned by someone filing a bankruptcy petition—you will receive preferential status in
the bankruptcy if your mortgage or lien has been recorded. Even though you may not be
fully paid, you should be entitled to recover the property rather than see it sold to pay off
other creditors. Any lawyer involved in establishing the lien or preparing mortgage
documents on your behalf should file evidence of these transactions with the county real
estate records. If the proper documents are not filed, you may forfeit any available funds
to which you are entitled.
If your home or business property is in foreclosure, filing a chapter 13 bankruptcy may
enable you to keep the property if you can make payments during the bankruptcy to
resolve the debt that led to the foreclosure. While there is no deadline for filing
bankruptcy, the case should be filed as soon as possible, preferably before any sale of
the property. A timely bankruptcy petition should delay any potential sale and enable
you to retain the property by making all scheduled payments. If the property is sold and
the sale has been confirmed before your bankruptcy petition is filed, your right to
redeem the property will be forfeited.
Let’s say your wages are being garnished because of a judgment against you, or your
driver’s license has been suspended because you caused a car accident without
insurance. Filing bankruptcy can stop the garnishment, or enable you to get your license
back. There is no set deadline for filing either a chapter 7 or chapter 13 bankruptcy.
However, the longer it takes your lawyer to file the bankruptcy, the longer your wages
will continue to be garnished or your license will be suspended.

What Kinds of Documents Must Be Filed By a Specific Deadline?

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.
? Summary Judgment
Summary judgment is a relatively common procedure for eliminating seemingly weak
claims based on a written motion in lieu of trial. If you have a strong case or defense,
you may avoid the time and expense of trial if your lawyer files a motion for summary
judgment on your behalf. If your lawyer fails to file such a motion, there is no penalty
other than the cost and delay of a potentially unnecessary trial.
However, if an opposing party files a summary judgment motion against you, your
lawyer must file a written response within the time set by court rules or by the trial judge.
If your lawyer fails to respond to your opponent’s motion on time, the court may grant
that motion, divesting you of your right to a trial. You can appeal, but appellate courts
are often reluctant to reverse a summary judgment if your lawyer can’t demonstrate
good cause for failing to respond to your opponent’s motion on time. Your only hope
may be a legal malpractice claim against your lawyer.
? Discovery Documents
During a lawsuit, all parties have the right to request information from other parties
concerning their respective claims and defenses. This process, known as “discovery,”
can include requests for documents, requests for answers to written questions
(interrogatories), and requests for the responding party to admit some or all allegations
in the requesting party’s complaint. Responses to discovery requests are subject to time
limits.
Unlike a failure to file a complaint before the statute of limitations expires, courts can
grant permission for your lawyer to file discovery documents after the deadline has
passed. However, the court can sanction you and/or your lawyer for any failure to
provide those documents by the deadline.
If the court excludes evidence from trial or otherwise limits your ability to present your
case due to a failure to meet a discovery deadline, you may appeal that ruling if you
lose the case. If the trial court’s ruling was arbitrary or contrary to law, a court of appeals
can reverse the ruling and give you another chance. If the appellate court upholds the
trial court’s ruling, you may lose an otherwise winnable case.
? Appeals
If you lose a case at trial, or before trial based on, e.g., a motion for summary judgment,
you have a right to appeal. However, your lawyer must file a notice of appeal within 30
days after the judgment is final. Failure to appeal within 30 days terminates your right to
appeal, regardless of how strong your case may be. When a notice of appeal is not filed
on time, there are no second chances.
? Administrative Cases
There are numerous types of administrative cases, which begin with a determination by
an administrative body, such as the motor vehicles bureau and Social Security. While
initiating an administrative claim may not have a set deadline, there are deadlines that
must be met once the claim has been filed. Delayed claims for benefits to which you
may be entitled may reduce the amount you receive. For example, the date on which
you become eligible for Social Security disability benefits may be based on the date on
which your claim is filed. While you may ultimately be awarded disability benefits, a
delayed filing date may result in a loss of benefits between the date you became
disabled and the filing date. If your monthly benefit is $1,000, every year that the filing is
delayed will cost you $12,000 in lost benefits.
Administrative decisions can typically be appealed to either a state common pleas court
or a federal district court. Deadlines for these appeals are as rigid as deadlines for a
legal case commenced in court.
? Bankruptcy Filings
If someone who owes you money files a bankruptcy petition, you will receive a notice
requiring you to file a proof of your claim in the bankruptcy court. Even if you have no
security interest—a lien or mortgage—in property owned by the debtor, there may be
some assets that can be sold to pay part of the debt owed to you. If your lawyer fails to
file this claim within the time provided in the notice, you will probably forfeit any amount
that you otherwise might have recovered from the bankruptcy estate.

What should I do if my lawyer has a conflict of interest?

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.

If your former lawyer compromised your interests due to a conflict of interest, the consequences can be serious. Not only do you need to act as soon as possible, but you need to determine whether your situation involved a conflict of interest, and if so, whether that conflict resulted in legal malpractice. If you believe you have a case against your former lawyer, you should reach out to an experienced, full-service law firm with expertise in a wide range of legal practice areas and a proven track record of success in handling legal malpractice cases.

Like so many others who have placed their trust in us, you can count on Slater & Zurz LLP to thoroughly evaluate your legal malpractice claim, answer your questions, and advise you concerning whether to proceed and what to expect. Call or email our team of motivated, determined professionals for a free consultation. We’re here to serve your legal needs with persistence, dedication and the drive to win.

When Does a Lawyer’s Failure to File Documents Constitute Legal Malpractice?

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.

When is representation by a particular lawyer or law firm prohibited?

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.

When is representation by the same lawyer or law firm prohibited?

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?

When is representation by the same lawyer permissible?

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.

When is representation by the same lawyer prohibited?

Now let’s say that your spouse has a drug problem, and you want custody of the kids with only supervised visits for your spouse. Meanwhile, although you both agree that you should have primary custody, your spouse wants regular, unsupervised visits on weekends and holidays. In this situation, you cannot be represented by the same lawyer. The lawyer may have to argue that your spouse is not fit to have the kids without supervision because of the drug problem. Because the lawyer might have to pursue a claim against your spouse in the same proceeding, the lawyer can’t represent both of you.

Where does the money paid in legal malpractice cases come from? The attorney who committed legal malpractice or some other source?

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.