Reasons to File a Lawsuit Against an Attorney
In our almost 30 years of handling legal malpractice cases, we have seen just about everything you can imagine for reasons to file a complaint against an attorney. All practicing lawyers have a fiduciary duty to their clients. The “fiduciary duty” is the highest duty imposed by law. This means that the lawyer MUST always put the client’s interest ahead of their own. Legal malpractice typically involves cases where an attorney has made a mistake or committed an error in judgment, known as “negligence.” However, and unfortunately, there are also cases where lawyers don’t just make mistakes, but instead, they knowingly and intentionally make decisions that are not in their client’s best interest, and often put the attorney’s interests ahead of the client, thereby giving rise to claims for “breach of fiduciary duty.”
Regardless of intent, the fiduciary duty is an obligation that is incredibly important, and if that duty is not upheld, the lawyer in question should be held accountable. Whether it be legal malpractice or a breach of fiduciary duty, Ross Sears II with Sears Crawford is here to protect the rights of the clients and hold attorneys accountable. Here are common reasons to file a complaint against an attorney.
Please note that not all complaints against an attorney for violating ethical rules merit a legal malpractice claim. Contact Ross Sears at Sears Crawford at (713) 223-3333 for a free case evaluation.
What is the most common complaint against lawyers?
The most common complaints that we hear from clients about their lawyers involve lack of communication.
Here are a few examples of common complaints that rarely constitute malpractice:
- Disappointing results: Just because you lose your case at trial, or settle your case for an amount less than you think it is worth, does not necessarily mean that your attorney has committed malpractice. However, if you do believe malpractice may have been committed, it may be smart to get a second opinion from a legal malpractice attorney.
- Poor or lagging communication: A lawyer not returning calls on time, while incredibly frustrating, does not constitute malpractice. This conduct by an attorney can lead to the client filing a grievance with the Texas State Bar, but it does not necessarily mean malpractice has been committed, such that it would give rise to the need to file a lawsuit.
- Friendly communication with the opposition’s attorney: This is pretty standard, and is not a conflict of interest. The Texas Lawyer’s Creed mandates that attorneys be civil and professional with the court and opposing counsel. Therefore, just because your attorney is civil and polite to the opposing counsel or the court, does not mean there is a “conspiracy” or that your attorney is “selling you out.” The rules for lawyers require that they obey by their loyalties to the profession, as well as their client. However, the client should always come first, as long as it does not violate the lawyer’s duties as an officer of the court.
Violations of the established standards of conduct (State Bar Disciplinary Rules) are generally resolved by the Texas State Bar, which is often moved to action by filing a grievance with the State Bar of Texas, while legal malpractice is often taken to court by the client and a legal malpractice lawyer.
What is considered legal malpractice? What is not?
What is legal malpractice? Legal malpractice takes place when an attorney “acts, or fails to act” how a reasonable and prudent attorney would act or not act under the same or similar circumstances, AND that act or omission causes damages to the client.
Here are some breaches of legal duties that often constitute malpractice:
- Failure to know or apply the law: Lawyers will often attempt to take on a case outside of their field of expertise.
- Failure to calendar: Bad planning, missed deadlines, neglect of your case.
- Failure to obtain client consent: This often applies to settling cases without client consent.
- Fraud: Any sort of deception for unlawful gain.
- Misuse of finances/overbilling: This would typically involve misappropriation of client funds or excessive hourly billing.
- Inadequate discovery/investigation: This applies to when an attorney does not adequately identify key information about a case during its early stages (i.e. witnesses, depositions)
Suing a lawyer for malpractice requires that it be proved that your lawyer had an obligation (duty of care) to you, they breached that obligation, and that breach of obligation has caused you damage.
What is fiduciary duty?
Fiduciary duty is the lawful imposition of your attorney’s obligation to act in your best interests. They must put your interests in front of their own and keep you fully informed, hiding or obfuscating no pertinent information. Any self-dealing or withholding is in direct opposition to their lawful duty. There are a few ways in which an attorney can breach their fiduciary duty:
- Failure to maintain confidentiality
- Breach of the duty of fidelity and loyalty
- Miscommunication or not offering the full truth
- Self-dealing or conflict of interest
While breach of fiduciary duty is technically distinct from mere “legal malpractice”, the two have the ability to overlap. Breach of a lawyer’s fiduciary duty can lead to the imposition of Punitive Damage, in addition to the actual underlying damages. The distinction between a legal negligence or legal malpractice and a breach of fiduciary duty claim can be tricky, and serve as an example of why anyone seeking to file a complaint against an attorney should seek excellent and trustworthy representation.
How to file a complaint against an attorney in Texas
If you have had the misfortune of experiencing any of these reasons to file a complaint against an attorney, there is good news: you have some recourse. You can file a complaint against your attorney with the State Bar, you can fire them and get another lawyer to salvage your case, or you can sue them for malpractice, depending on the status of your case — but you should have representation that you can trust at your side. Don’t go up against an attorney without another attorney.
At Sears Crawford, we sue lawyers because our clients always come first, and our obligation is to our clients and our profession. “Super Lawyer” Ross Sears has approximately 30 years of experience successfully handling legal malpractice cases of all types. He is Board-Certified in Personal Injury Law which includes legal malpractice.
If you are interested in taking action against a former attorney call Ross Sears II at (713) 223-3333 or contact us online to schedule a free consultation. We are here to help you get what you deserve.
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