Lawyer dimissed case without consent. Is this legal malpractice?
Recently on our legal forum a user asked, “I was involved in a serious car accident. I tried to negotiate with the insurance company, and I was not able to reach a settlement agreement. I hired a personal lawyer to file a personal injury claim and help me with my case. My expectation was that my lawyer would fight the case for me, taking it to court if necessary. I just found out my lawyer settled my case without my consent or my knowledge. Is this legal malpractice and what can I do about it?”
What is legal malpractice?
Legal malpractice is negligence on the part of a lawyer when they breach their fiduciary duty or their contractual duty and this breach causes their client harm or loss. Consider, however, simply not winning your case is not grounds for legal malpractice.
How do I prove legal malpractice?
Proving legal malpractice will require you to prove, through sufficient evidence, that your attorney did not use the ordinary skill and care that another lawyer, in a similar situation and under similar circumstances would have used. For example, you cannot expect a first year defense lawyer who has never argued a murder case to have the same level of experience and expertise as Johnny Cochran.
Next, you will have to prove that your attorney made errors in handling your case, and in some states, you may also have to prove that you could have won if the errors had not been made. Additionally, you will need to prove that these errors caused loss, which may require proving that you could have collected payment for your loss from the defendant or you could have received more compensation than you received from the settlement.
Common examples of legal malpractice
Legal malpractice is very difficult to prove, but just because it’s difficult to win your legal malpractice case does not mean that there are not legitimate examples of malpractice or that you should not pursue your case. So what are some common examples of legal malpractice?
- Your lawyer fails to file your case within the statute of limitations.
If you have hired a lawyer and signed a representation agreement, you have the expectation that they will file your claim before the statute of limitations expires. If they fail to do this and you lose your right to sue, you may be able to file a legal malpractice claim if you have evidence that the other party is responsible for your injuries, their actions caused your loss, and you could have collected compensation. Proving the other driver had the ability to pay you for your injuries could be key to proving your attorney’s actions actually caused you loss.
- Your attorney refuses to work on your case.
If you have hired a personal injury lawyer you have the expectation that they will diligently work on your case. If your attorney fails to provide the level of service another attorney in a similar situation would have provided, you may be able to prove malpractice, although if your case is ultimately dismissed you would need to prove that if the lawyer had done the work properly you would have won your case, which can be difficult to prove.
- Your lawyer settles your case without your consent or approval.
Now, this is the question you specifically asked about. What happens if your lawyer decides to settle your case without your consent or authorization? This is generally considered malpractice, but there is one caveat: you may have to prove that the settlement was less than what you could have received if you had not settled.
While most personal injury lawyers are hardworking and dedicated to helping their clients get the best legal help possible, there are negligent lawyers. Whether it’s through intentional or unintentional actions, some lawyers simply fail to perform their legal duties.
The good news is you may have legal recourse against an attorney who is negligent, especially if their negligence caused you loss or additional injury. The bad news is winning a legal malpractice case against a lawyer can be very difficult, and the amount of compensation you could possibly recover must be weighed against the time, effort, and money it will take for you to win your malpractice case.
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