You can indeed sue a lawyer or law firm for errors and omissions or if they act below the standard of care that would be expected of a reasonable lawyer under the circumstances. When working with a lawyer, you have the right to competent legal representation, litigation privilege, confidentiality, and transparency. A breach in any of these rights can make a case for lawyer misrepresentation or lawyer negligence.
Keep in mind that “guarantee to win” is not part of your lawyer’s duty of care. So, losing a case may not be valid grounds for suing your lawyer unless the lawyer’s negligence had something to do with the loss.
Building a strong case against a lawyer can be tricky. This article explains how to go about suing your lawyer. Read on to learn when to sue a lawyer, how to do it, and the challenges you will likely face.
Common Reasons for Suing a Lawyer
Lawyer misrepresentation, misconduct, or negligence can mean many different things depending on the client-lawyer relationship and the lawyer’s role in a particular case. Here are five common scenarios where you can file a lawsuit against your lawyer:
Misrepresentation of Facts or Law
Court cases are argued based on facts and the law. In most cases, a lawyer’s main job is to find and organize facts and structure the arguments based on their understanding of the law. A lawyer who represents a client without fully understanding the facts or the law pertaining to the case violates their duty of care to the client.
Breach of Fiduciary Duty
The contract between a client and a lawyer is a strict fiduciary relationship. The fiduciary, the lawyer in this case, is legally obligated to protect the client’s best interests in the best possible way. Fiduciary duties revolve around trust and confidence, requiring the lawyer to act with the utmost honesty, fairness, loyalty, candour, and good faith on behalf of the client.
A lawyer can be held accountable for breaching their fiduciary obligations, for instance, by serving their own interests in a case.
Negligence in Legal Representation
Negligence means acting below the standard duty of care. If a lawyer jeopardizes your case by making a mistake that would otherwise be avoided by a competent lawyer in the same situation, you can sue them for negligence.
Here are some examples of negligence in legal representation:
- Administrative errors
- Missing deadlines
- Poor professional conduct
- Lacking due diligence
- Losing case documents, files, or evidence
Breach of Contract
In every client-lawyer relationship, either party owes the other stringent contractual obligations. The terms of the contract may vary widely between lawyers, clients, and cases. But every lawyer has a duty to uphold their obligations under the contract.
Conflict of Interest
A conflict of interest arises when the lawyer is unable to represent you fairly due to the nature of the case or their relationship with the opposing side. For instance, if the lawyer represents two opposing sides at the same time, that’s a conflict of interest and will interfere with the lawyer’s ability to represent either side adequately or fairly.
Right to Competent Representation
Competent legal representation requires the lawyer to demonstrate legal knowledge, skills, thoughtfulness, professional conduct, and preparedness when representing a client. The Canadian judicial system allows persons the right to counsel to inform them of their rights and obligations during trial and how to exercise them.
A competent lawyer owes you the following rights:
- Right to lawyer-client confidentiality. This is known as solicitor-client privilege. It allows you to communicate freely and candidly with the lawyer. Also, communications between a lawyer and their client must be kept confidential.
- Right to be informed about your case. Your lawyer should be clear about the nature of your case and how it’s going. For example, you should be aware of the case’s strategies, the laws governing the case, possible counters for the opposition, and the case’s timeframes.
- Right to make decisions regarding your representation. A lawyer only speaks or argues on your behalf; they should not make decisions for you. Even with legal counsel, you reserve the right to decide on important matters related to the case.
- Rights related to legal fees and expenses. Legal fees and payments are stipulated in the lawyer-client agreement. It should be clear how much you’ll pay, what you’ll pay for, and when you’ll pay right from the get-go.
Essential Elements Needed to Sue Your Lawyer
Malpractice lawsuits are in many ways similar to personal injury cases. You must do these six key things to win in legal malpractice claims:
1. Establish a lawyer-client relationship
First, you must show that the lawyer owed you a duty of care. That means establishing that you indeed hired the lawyer for legal counsel or representation or signed a lawyer-client contract. The terms of the contract should establish the lawyer’s duties and obligations to you as their client.
2. Prove negligence or breach of duty
This is the trickiest part—proving that the lawyer breached their duty of care. Demonstrate that the lawyer broke the contract, acted negligently, had a conflict of interest, engaged in fraud, overstepped their fiduciary responsibilities, or violated your rights.
3. Demonstrate causation
Show that the lawyer’s actions or failure to act resulted in damages. The point here is to demonstrate how the lawyer’s conduct, malpractice, or negligence led to specific damages (both financial and non-financial).
5. Document damages
Document all the damages incurred and quantify them in terms of monetary losses. The damages could include undue legal liabilities, financial loss, emotional distress, etc. The sum of damages forms a big part of the final compensation claim.
6. Collect evidence and witness testimonies
As the plaintiff in a legal malpractice case, you bear the burden of proof. It’s up to you to collect and present evidence that proves the lawyer’s wrongdoing and your right to compensation. The evidence could be in the form of documents, contracts, witness testimonies, digital media, etc.
Challenges in Proving Legal Malpractice
Proving legal malpractice is not easy. To win in a malpractice or professional negligence case against your lawyer, you must prove that the lawyer mishandled your case, resulting in losses. To do so, you’ll need concrete evidence, such as expert testimony and clear documentation.
You must also be prepared to counter the lawyer’s defences. Here are three of the most common defences the lawyer might throw at you during trial:
- No causation. The lawyer refutes the link between their actions and your damages.
- Beyond the scope of representation. The lawyer claims their actions were outside the lawyer-client relationship and, hence, beyond their duty of care.
- Honest error in professional judgment. The lawyer claims they made the best decisions within their professional capacity at the time—only that those decisions turned out poorly.
Suing a lawyer for malpractice can be a waste of time and money if you don’t have all the right facts and evidence. Before you file a claim, consult a legal malpractice lawyer to see if you have a strong enough case.
FAQs About Suing a Lawyer
What is considered legal malpractice?
Legal malpractice happens when a lawyer represents or advises you in a manner that falls below the acceptable standard of legal representation or practice. Examples of legal malpractice include:
- Professional negligence
- Violation of client’s rights
- Poor conduct
- Breach of lawyer-client contract
- Violation of fiduciary duties
- Conflict of interest
- Deliberately subpar legal representation
What is the statute of limitations for suing a lawyer?
According to the Limitations Act of 2002, claimants have up to two years (from the date of discovering a claim) to file for compensation. The statute of limitation for suing a lawyer is two years.
Can I sue my lawyer for a bad outcome?
You cannot sue a lawyer simply for losing a case or a bad outcome. But you can sue your lawyer if their negligence, misconduct, errors, or malpractice is to blame for any undesired outcomes.
Get Expert Guidance on Suing Your Lawyer
Suing a lawyer for legal malpractice is quite the challenge. You’ll need an experienced, knowledgeable, and skilled lawyer to bring a negligent lawyer to justice. With his extensive knowledge and 35+ years of experience in civil litigation, Allan Rouben can provide you with winning legal counsel and competent representation. Contact Allan Rouben today for a free consultation and case evaluation.