Legal Malpractice FAQ

What are common defenses to malpractice?

Do I have to fire my lawyer before consulting with a malpractice lawyer

What will it cost?

Is there any time limit for when I can sue my lawyer?

What are some of the practical problems in suing my lawyer?


What are common defenses to malpractice?

It is important to understand the defense tactics your former lawyer might raise when you sue him. This list is not meant to be exhaustive. Each case is highly fact sensitive, and there is no substitute for detailed analysis of your case by a competent attorney. Here are a few of the typical arguments defense lawyers might use to try to fight your legal malpractice claim:

"You failed to bring suit against your attorney within the applicable statutory time period." See Is there any time limit for when I can sue my lawyer? set forth below.

"You had no attorney-client relationship with the attorney." This comes up in a variety of situations, where you may have received legal advice but the attorney did not open a case, or where you had hoped to benefit from the lawyer's work for another person. It is important to remember, however, that there are instances where an attorney can be held liable even to non-clients, especially if the non-client can show he reasonably relied upon the lawyer's work.

"You did not hire the attorney to do the thing you say he failed to do." This is called the "scope of representation" defense. A typical example: you hire a lawyer to handle a residential real estate closing, for a property on which you hope to build an additional structure. After the closing, you find out there is a town by-law prohibiting your construction plans. If you sue that lawyer, he will assert the defense that his only job was to handle the closing plus the routine ordinary things that go with that, and that you did not hire him to investigate the legal requirements for further construction on the premises.

"You are guilty of contributory negligence." This is a way of asserting that even if your lawyer was negligent and you suffered damages because of it, you did something careless that caused a portion of those damages, for which you, not your lawyer, should be held accountable.

"You cannot prove that there is a causal connection between the legal malpractice and the damages you suffered." In the event of business losses, such as lost profits resulting from the failure of an attorney to properly document a business deal, it is sometimes difficult to determine whether the business terms themselves, as negotiated by the parties, or market forces in general caused the loss, rather than any failure of the part of the attorney.

"You would have suffered the same damages even if the attorney had not been negligent." This defense is asserted when it appears that, even if a latter-day Clarence Darrow had been your lawyer, you would have lost the underlying case anyway.

"You may have suffered losses, but they were caused by a third party or by forces over which the attorney had no control."

These defenses and others could be asserted depending on the specific facts of your case. Thorough preparation and deep understanding of the law is required to meet the challenge presented by these defenses.

Do I have to fire my lawyer before consulting with a malpractice lawyer?

Not at all. You are free to seek a confidential consultation with me at any time. Frequently, clients see warning signs of attorney inattention, such as repeated failure to return telephone calls and mail, a feeling of being left in the dark, or other perceived problems. Sometimes there are innocent explanations, and the problem can be remedied. I have often assisted people with such problems, in a way that helps repair their relationship with their original attorney. Sometimes the problems do in fact reflect a malpractice situation. In any case, feel free to contact me.

What will it cost?

There is no cost for an initial telephone consultation with me. Effective client service is first and foremost based on an understanding about the economic terms of the lawyer/client relationship. It helps avoid later misunderstandings, and this is always discussed in detail, at no charge, during the initial telephone consultation. The exact terms of representation will be set forth in a written fee agreement. For general informational purposes, set forth below are examples of my firm's general billing practices:

Contingent Fees

I am able to handle most meritorious attorney malpractice claims, personal injury claims and other claims seeking an award of monetary damages on a contingent fee basis. A contingent fee, as approved by the Supreme Judicial Court of Massachusetts, is a fee that is paid only upon a successful outcome in your case, and is charged as a predetermined percentage of that outcome. My usual and customary contingent fee in legal malpractice cases is 35% of the recovery. If there is no successful recovery, you will owe no fee. For clients who prefer to go with an hourly fee arrangement, I provide a retainer agreement and an estimated budget.

Initial Consultation/Review Retainer

There is no charge for an initial consultation, which may take place by telephone or via internet. The purposes of the initial consultation are threefold: (1) for you to have your questions clearly answered; (2) for you to determine if what I have to offer fits well with your expectations; and (3) for me to make an initial determination as to whether your case has sufficient legal/factual merit for both of us to invest the time, energy and cost it will take to bring about a successful result.

Sometimes, if it is not possible for me to evaluate your case properly in an initial consultation, I may ask that you pay a retainer for further document and legal review, in order to determine if your case is meritorious. If you agree to do so, your full retainer amount will be credited against any contingent fee earned in your case. However, there is never any charge for an initial telephone consultation, and you have no obligation arising from our consultation. Whether or not you hire me, your consultation and everything about it is kept in the strictest confidence.

Is there any time limit for when I can sue my lawyer?

There is a very serious time limit, which varies from state to state. In Massachusetts, you have three years from the date you knew or reasonably should have known that some error or omission by your attorney caused you some appreciable harm, even if you are not yet sure what the nature or extent of the harm may be. If you do not file your malpractice suit in court by that date, you are forever barred from doing so. The statute of limitations for suing an attorney for malpractice may differ in your state. You should never, ever, do your own calculations of when your statute if limitations period begins or ends. Only after a thorough review by a competent lawyer can this question be answered with any degree of certainty. The safe way to handle this is to consult with a competent attorney as soon as you can after you first learn that something has gone wrong with your case that you suspect is the fault of your attorney.

What are some of the practical problems in suing my lawyer?

Some of the Best Lawyers Represent Lawyers

Your former lawyer, especially if he is insured for legal malpractice, will be represented by outstanding legal counsel hired by the insurance company. Some of the best firms in Boston represent lawyers sued for malpractice. These lawyers are paid by the hour to carefully scrutinize each claim, and to make sure that every available legal and factual defense is brought to bear against you. If you had been represented by a firm of such diligence in the first place, you probably would not be looking at this lawyer malpractice web site now. I have dealt successfully with all the major lawyer malpractice defense firms in and around Boston, with effectiveness based in part on my reputation, built over 27 years, for professional, practical, creative and aggressive representation of my clients.

"I Can Do No Wrong"

Your former lawyer probably has the attitude that he did no wrong, before he even thinks about what actually happened. He will be telling his insurance company and or his lawyer that he will not authorize any settlement with you. While fortunately under most malpractice insurance policies the insured has no meaningful right to block a settlement, this can cause a hardening of the defense position. The art of persuasion meets few greater tests than a recalcitrant lawyer looking to evade responsibility for his actions. Understanding the psychology of the players is an essential element of success in legal malpractice cases.

No Insurance Coverage

This may shock you: there is no requirement in Massachusetts that lawyers have malpractice insurance coverage. Moreover, there is no database of lawyer insurance coverage. There is no way to find out if a lawyer has insurance coverage other than finding out from the lawyer himself. A surprising number of lawyers these days are "going naked", i.e., they've decided to practice law without insurance. With large and medium sized firms, this is rarely the case, but many smaller practices and solo practitioners take the risk of representing you without any insurance, forcing you to face the risk of no recovery if they cause you any harm.

Blown Insurance Coverage

No matter how strong your malpractice claim may be, it will have little chance of providing the compensation you need if your former lawyer somehow carelessly does something that destroys his malpractice insurance coverage.

Lawyer malpractice insurance policies run from year to year. Their fine print says in effect that if the lawyer has any reason to believe he might have committed any malpractice during the previous year, or any reason to believe a claim might be brought against him, he must tell his insurer about it when he fills out his renewal application. This latter scenario encompasses situations where you've verbally or in writing blamed the attorney for something that happened in the case, even if it was just angry words. If your lawyer does not tell his insurer about such matters at policy renewal time, and you make your formal claim after that, the insurer can refuse to participate. Once again, the person who gets hurt is you.

As soon as you think you may have been harmed by your lawyer's actions, call a competent malpractice lawyer. Do not delay. If you do delay, your former lawyer's malpractice policy may be coming up for renewal, and he may neglect to tell his insurer about your possible claim. Timely notice of claim to your former lawyer and to his insurer can prevent the blown insurance coverage problem.

Expert Witnesses

The practice of law, like medicine, engineering, etc, is considered by our courts to be a profession whose requirements are beyond the knowledge of lay jurors. This is where expert witnesses come in. While I have been qualified to act as an expert witness in legal malpractice, no lawyer can both represent you and be your expert witness. Accordingly, in most cases I must hire one or more legal experts to be prepared to educate the malpractice jury as to what was below-average about your former attorney's work, what she should have done differently, and how it affected the outcome of your case. Expert witnesses can be expensive.

The "Case Within A Case" Requirement

Especially if the underlying case involved litigation, we may have to prove as part of your malpractice case that you would have prevailed on the underlying litigation.