Legal malpractice is a type of negligence in which a lawyer does harm to his or her client. There is a standard that needs to be breached by typically it will concern lawyers acting in their own interests, and lawyers breaching their contract with the customer. One of the most common cases is when lawyers fail to act on time for clients.
You can also opt to complain about your lawyer to The State Bar of California. When you file a complaint against your lawyer with the State Bar, they are investigated by the Office of Chief Trial Counsel. Following this, a decision is made on the grievance, and if the attorney is at fault, they could even face suspension.
In theory, the relationship between a lawyer and his client should be pleasant, warm and simple. That is, a relationship of understanding and collaboration between parties. However, experience shows that, in most cases, the relationship between a lawyer and his client is problematic, to say the least.
Although have a common goal, see, win the case, there are a number of obstacles that can make it difficult to achieve that common goal. The best idea in the cases is that parties maintain patience and sanity and talk to resolve their differences. However, only a part of the drawbacks can be solved, while there is a part that are simply unsolvable.
Clients require their lawyers to represent them in an appropriate manner and according to their needs. as we cannot control the events of our lives, it is inevitable that at some point we need a professional in the legal area. And when that time comes, it is advisable that we are prepared and know how to correctly choose our lawyer.
In the following article, we will examine some of the disadvantages that are present in the relationship between a client and his lawyer. Also, we will discuss the alternatives that a client has in case his lawyer is not doing his job properly. But we will also provide some elements and parameters to effectively determine if the lawyer is fulfilling his role.
1. How to know if my lawyer is doing his job correctly
Before rushing to take unnecessary measures against our lawyer, it is necessary that we first determine if our lawyer is not fulfilling his role. Keep in mind that not every setback in a case implies inefficiency on the part of the lawyer.
In general, cases have a high level of complexity. There are some simpler than others, of course, but most can be extremely difficult cases. And when this happens, there is a chance that the lawyer will lose the case, even if it is good. There are situations that will surpass the skills and experience of a professional lawyer.
Now, if the case is not going exactly in your favor, do not rush to blame your lawyer. The most advisable thing is that you sit down to talk with him, to know what is happening, what the lawyer is doing to overcome the obstacles, and so on.
This may not work as expected, but it is likely that you learn new things: perhaps the lawyer will pay attention to you and detect any error in the procedures he has carried out. But it can also happen the other way around: perhaps you will realize that the case is complex, that the fault doesn’t lie in the lawyer and that your suspicions were not correct.
The effectiveness of this method depends on many factors, lawyer’s professionalism and personality, as well as your ability to contain emotions. It does not matter if you are a reserved person who does not speak frequently: you are obliged to talk to your lawyer, unless you want things to get worse.
2. Yes, you can fire him
Once you have talked to him or her and you have analyzed each of his procedures, as well as the elements of the case, you can draw a conclusion. If your suspicions have been confirmed and, indeed, the lawyer is not acting as it should be, then you can opt for the classic option: fire him.
People often think that lawyers cannot be fired, so they are tied hands and are forced to tolerate the inefficiency of their lawyer. However, it is a false belief: lawyers can be dismissed and you can do it at any time.
“What if I signed a commission agreement with my lawyer?” … That’s not an obstacle to firing a lawyer, so you’re free to do so even if you’ve signed a commission agreement.
Regarding the moment, it is possible to make the dismissal at any stage of the case; that is, you can fire your lawyer either at the time a lawsuit is filed; before the trial; It is even possible to dismiss a lawyer during a trial (in fact, it is common to see changes of lawyer by a client during the trial).
However, it is necessary to note that, if you wish to dismiss your lawyer during a trial, you will require the judge’s permission.
3. Recommendations in case of dismissing your lawyer
Probably, you are asking yourself how to fire your lawyer and it is really a simple procedure that does not deserve a section: you only need to notify your lawyer and the judge (if necessary) in writing.
At the same time, you should be aware of the fact that the dismissal of a lawyer entails a series of consequences for which you must be prepared. Let’s examine three of them, which are the most important:
3.1. The first of the consequences is that you must do the payment of all the debts that you have contracted with your lawyer, as well as the commissions that are stipulated in the contract that you have signed with him. So, before firing your lawyer, make sure you have the necessary amount of money to pay those debts.
3.2. Second, the dismissal of your lawyer can mean a legal representation vacuum. There have not been few cases in which, after a dispute between the lawyer and his client, the latter has fired the first, and the client has been left without legal representation. To counteract this problem, it is imperative that you have a new lawyer prepared to immediately replace the lawyer who has been fired.
3.3. Also, keep in mind that the new lawyer you hire is another hit for your pocket. Additionally, if the new lawyer was hired during the trial, he will need time to get up to speed, examine all the elements of the case and formulate a defense that is supposed to be better than the previous one. And obviously, this new lawyer will charge something extra for that “familiarization” job.
4. Find a second opinion
Given the reasons above, there is no doubt that dismissal is a drastic measure and it is recommended that it be the last option to be considered. A better alternative is preferable: a second opinion.
A second opinion is probably the best alternative if you have the suspicion that your lawyer is not doing his job correctly and you do not intend to fire him.
Not only a second opinion (of another lawyer and / or professional, of course) means less expense, as opposed to dismissal; in addition, a second opinion allows you to compare the perspective of your lawyer with the perspective of another professional. This way, you can confirm your suspicions … or know if you were really wrong.
But make sure of two things: first, confirm he is a qualified, professional and experienced lawyer. It does not make sense for you to hire another inefficient lawyer (if yours actually is), as you will get the same opinion. Second, provide him a copy of all documents, evidence, and so on., relating to the case. If you leave out the smallest detail, you can produce an alteration in the perspective of this second lawyer.
5. Sue for professional negligence
An attorney who fails to do their job properly may be incurring professional negligence. In case you did not know, lawyers are professionals who must adhere to a code of ethics: a set of rules that prevent a lawyer from acting or performing procedures that directly contravene the interests of his client.
Not necessarily all the inefficient lawyers are that way for professional negligence or as they are violating some of the norms of their code of ethics, but evidently there are and there is a probability that your lawyer is one of them.
If you have the slightest suspicion that your lawyer is being negligent, do not hesitate to consult with another professional to file a lawsuit against that negligent lawyer. However, it is important that you be careful with the steps you take: lawsuits for professional negligence against lawyers are difficult to win. So, if you do not act correctly or do not have the necessary evidence to win the case, avoid this option.
At the same time, you must keep in mind that the last thing you want to is to have the concern of two cases at the same time: the one that your old lawyer was handling; and the lawsuit against that same lawyer. The level of stress and anxiety that can result from handling two cases is high enough to cloud your judgment and cause you to make the wrong decisions.
But if you decide to sue your lawyer for professional negligence and you win the case, you can be sure that it will have been worth it, as you will be entitled to compensation that will allow you to recover from the damage caused by the negligence of your old lawyer.
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