What is considered Legal Malpractice?
Legal Malpractice is the failure of an attorney to properly perform his/her duties in or before a Court, giving rise to damages to the client. Legal Malpractice is similar to medical malpractice, accounting malpractice, accounting malpractice, insurance agent malpractice and other forms of malpractice, except that the analysis is of attorneys. Legal Malpractice can be the negligent conduct of litigation , or the negligent conduct of transactional matters. Once there is negligence and damages of the client, a professional liability case arises. The elements of legal malpractice are breach of a professional duty and damages. Sometimes, insurance carriers are involved as they are with accountant malpractice and other professional errors. Legal Malpractice cases are not "torts" as many thankfully believe. A legal malpractice case is a separate civil action.
Times You Need a Legal Malpractice Attorney
Here are a few indications that you may be in need of the legal expertise of a Chicago legal malpractice attorney:
- Client Negligence Problems: Failure to file a case on time or simply forgetting about the case altogether. If you find yourself in this situation, it’s a good opportunity to give us a call and see what can still be accomplished.
- Breach of Contract Problems: Some of the contractual agreements can go awry. In Chicago county or circuit courts it is not uncommon to see a conflict of interests between the attorney and the client. In these situations, we always recommend talking to a professional lawyer such as a Chicago legal malpractice attorney to explore your options.
- Conflict of Interest Problems: The aforementioned scenario is not unusual in many cases. Chicago accounts for a handful of legal malpractice situations that are carried out against the client, by the attorney. If you feel as if your attorney may have been negligent, you should definitely consult with a legal malpractice attorney.
Selecting the Right Legal Malpractice Lawyer in Chicago
When choosing a legal malpractice attorney to handle your case in Chicago, there are a number of factors to consider. It is important to choose an attorney who is qualified and has the right experience to handle your case. It is also important to choose an attorney who has some local expertise, as this can be an important asset.
Qualifications are the first factor to consider. Look for an attorney who has a JD degree from an accredited school and is licensed to practice in Illinois. You want to know that your attorney has received formal training and is skilled in the law.
Once you have established that a potential attorney is qualified, it is time to look at experience. Consider how long the attorney has been in practice and whether he or she has handled cases like yours before. Past experience is important to find an attorney who knows how to handle your case properly and has made mistakes that could be avoided this time around.
Another important factor in choosing an attorney is their local expertise. An attorney who has many years of experience in the Chicago area is going to know the judges, rules and procedures that apply in this area, which can help your case succeed.
Finally, it is a good idea to read through client reviews online before you choose an attorney to represent you. Past clients will be able to give you valuable insight about the attorney’s performance in their case. If you are happy with what you see and hear, you may be able to find a qualified attorney to take your legal malpractice case.
How a Legal Malpractice Case Works
You’ve never thought of suing your lawyer, have you? You’ve trusted them to do the best for you, and you’ve always accepted that result was the best outcome. But, sometimes people have questions, and sometimes that question leads to an inquiry about looking at the possibility that what you had was legal malpractice. People don’t want to sue their lawyer, but sometimes that desire is a bit short-sighted, because it is ultimately your life and justice that will be served.
So, you think that you have an attorney-client relationship with a lawyer. You’ve spoken with them, hired them, and the court knows you’re connected. But there is more. The job of being a lawyer is to represent clients loyally and to uphold the law even if certain results are not what the client wanted. Lawyers owe duties to their clients and to the court. When lawyers fail to act in accordance with these duties, they may not be subject to criminal penalties, but they are subject to civil actions for damages in the event that a client suffers damages as a result of the lawyers’ malpractice. To establish a legal malpractice claim, a plaintiff must prove that he or she had an attorney-client relationship with the defendant attorney and that the defendant’s failure to adhere to the applicable standard of care caused harm to the client. The two prong test that needs to be met will be discussed below.
Establishing the Duty Element
Plaintiffs must demonstrate that a defendant attorney owed them a duty in order to prevail on a legal malpractice claim . In the case of an attorney working as an individual, a simple retainer or other written document will usually suffice. Simple e-mails can also testify to the existence of that relationship where they memorialize the agreement for services. In the case of a corporate defendant, it is not legally sufficient for one client to ask another attorney at the defendant firm to represent him in the case of the legal malpractice suit, thereby creating an attorney-client relationship between the plaintiff and the attorney who represent that attorney sued in the original case in which the client-filed suit was originally brought.
Establishing the Standard of Care Element
Establishing the Standard of Care Element for legal malpractice cases is the test of Actions that Deviate from the Standard of Care. The general rule followed in establishing the standard of care for attorneys is that a lawyer must have and will exercise the "knowledge, skill and ability commonly possessed by a reasonable, careful and diligent lawyer practicing law in the same or similar circumstances." A lawyer is not liable for legal malpractice if the legal malpractice suit arises out of his strategy or defense as long as the attorney used reasonable judgement in selecting what method to use. That is to say, if a lawyer chooses the direct approach to a case instead of a more indirect method, the lawyer will not be liable for failing to choose the best method. The Plaintiff must show how the Defendant attorney against whom suit was brought deviated from the generally accepted professional standards. Expert testimony is usually required to set forth the requisite standard of care.
What are the Possible Outcomes and Remedies in Legal Malpractice Cases
The possible outcomes of a legal malpractice case could include arbitration or adjudication. Despite the less formal sounding name, arbitration is a legal dispute resolution process similar to mediation but much more formal, requiring a final decision by the arbitrator(s). Like a formal trial, in arbitration, the arbitrator(s) hear the evidence, acts as the judge and jury and issues a decision, which is binding (although with a limited right of appeal).
Judgments following a legal malpractice trial can be contested through the post-trial or appellate court system. Further, however, an attorney may even be liable for criminal acts of fraud that occur as part of a legal malpractice case.
Remedies for legal malpractice can include:
Restitution
Compensatory damages
Punitive damages or sanctions
Injunctive relief
Rescission
Reformation of a contract
Declaratory judgments
Collateral Attack
Disciplinary Procedures
Common Questions about Chicago Legal Malpractice Lawyers
1. Do legal malpractice attorneys charge a retainer?
There are many different structures and attitudes when it comes to legal fees in legal malpractice. Some legal malpractice attorneys will want a minimum fee/retainer of $5,000 to take your case. Others will have no upfront fee at all because they see a strong case and a likely tripling of their fee as a great investment. It really depends on the legal malpractice attorney. Shop around for someone you feel good with but please, do not wait too long to hire a lawyer or you may lose the time to bring the case at all due to statutes of limitations.
2. If I do not pay, will the legal malpractice attorney still try to help me?
That depends on the legal malpractice attorney. With an upfront payment, they will be weathering the storm. With a contingent payment structure, they have nothing to lose by helping out. A flexible law firm may even structure success fees or result fees so that you will not be penalized for how the case progresses.
3. Are there any hourly legal malpractice attorneys in Chicago?
Of course, some legal malpractice attorneys will take those cases, but you and the legal malpractice attorney must agree that they really do not want the case on those terms . Perhaps they only want clients they are committed to handle for the long haul (God bless them for that!). Some legal malpractice attorneys are coding their time to set up a bill and never send it. That is mostly for their own records. What is important is to see if the legal malpractice attorney really wants your case and what form of compensation would work with you.
4. Do legal malpractice attorneys even stay in a case they become involved in? Sometimes you will see a change of attorneys in the middle of a case. It does not mean that the case is lost or that there was something wrong with the attorney you had. Many times it is an internal conflict in the firm or a problem with their schedule that gets in the way of proceeding like they want to proceed. You cannot let this discourage you from pursuing the case at hand.
5. How bad is it when an attorney makes a mistake?
There is really no way to quantify how bad it gets when an attorney makes a mistake. Sometimes it can be catastrophic and sometimes it can be just a minor problem. It all depends on the situation and circumstances. The question you really need to ask yourself is whether your case would have had a better outcome had the original attorney not made the alleged mistake.