Attorney distrust: did it cost you your case?
Statistics show that legal malpractice has become more frequent in the past three decades. There are several cases where a client loses confidence in the capabilities of his lawyer, because the latter aggravated the situation, instead of solving the problem. If you have suffered damages due to the misconduct of your lawyer, this may be due to his negligence or deliberate action, you may consider the possibility of applying a legal action for negligence. However, providing a legal statement of malpractice can be difficult, as it often involves a thorough search for relevant arguments and supporting evidence. Despite the existence of actual damages, there are other factors that need to be studied to determine whether a lawsuit is filed for legal negligence.
indemnification
If the client can prove that the negligence or unlawful action of a lawyer, claimed in damages, can be compensated by filing a lawsuit about the trial. However, there are cases where the damage is not easy to establish. In such cases, the California Supreme Court ruled that damages can still be awarded, even if the existence and cause of such damage is difficult to determine. However, for the most part, damages based on speculation or the mere threat of future harm are usually not awarded by the courts of California.
Clients are likely to be more successful with the recovery of so-called “direct” losses. This is damage that was a direct result of a lawyer’s negligence or misconduct. For example, in the event that a lawyer wrongfully advises his client to file for bankruptcy and sell his house at a lower price than its market value, the court is likely to award the client with damages in the amount of what he lost from the sale. In another case, a California court awarded damage to a doctor due to the loss of his good reputation and an increase in premiums for his medical insurance against negligence due to the negligence of his lawyer.
If a client can have clear and convincing evidence that a lawyer can be held accountable for fraud, anger or harassment, even punitive damages can be reimbursed, see California Civil Code § 3294. However, claimants-clients who were Denied compensation compensatory damage will not incur punitive damages. In general, it is more difficult to prove the existence of punitive damages, as the courts usually require specific facts to prove that a lawyer acted with oppression, fraud or anger. In one rare case, the appellate court awarded punitive damages in connection with the “conscious neglect of the plaintiff’s responsibility” by a lawyer. In this case, the lawyer, who was also a doctor, advised his client to postpone the operation in order to strengthen their medical suit, although he was aware of the urgency of the operation.
In addition, if the claimant of the claimant has lost his claim for punitive damages resulting from an explosion, it is very illegal that the courts will award him penalties in court proceedings for negligence claims. The California Supreme Court ruled that such damages are based on speculation, and plaintiffs should not incur damages that cannot be proven with certainty. Otherwise, attorneys would be at greater risk of liability, which would increase the cost of negligence insurance.
Carelessness lawyer
In the case of legal negligence based on the negligence of a lawyer, the courts will consider four factors. First, a claimant client must show that a human rights lawyer is required to apply the skills, prudence and diligence required from his profession. Secondly, there must be evidence that the lawyer has not fulfilled the above obligation. Thirdly, client-stainiff must also show that a violation of his duty by a lawyer resulted in the damage he incurred. Finally, as mentioned above, customer-stainiff must provide evidence of the existence of such damages, and not just speculation. According to the California Supreme Court, claimants-clients who are facing criminal charges must prove their real innocence before they can file a lawsuit against their lawyers. Thus, clients who have been found guilty of criminal proceedings will not be allowed to participate in their attorneys and civil damages. The exception to this rule is negligent action, which is not based on the quality of legal services provided by a lawyer. For example, a dispute about payments between a client and a lawyer may still be prosecuted in court, even if the client has been indicted by the criminal court, since such a dispute is a mere deprivation of lawyer’s practice.
Typical cases of malpractice
The most common cause of abuse of official position is the refusal of a lawyer to meet the deadlines set by the Civil Procedure Code, as well as other deadlines for filing applications established by law. As stated above, lawyers must apply the necessary skill, prudence and diligence in the provision of legal services. Failure to file a lawsuit, initiate legal proceedings or initiate action under the so-called statute of limitation may establish a strong requirement for legal negligence.
A lawyer can also be held accountable if the court in the underlying case issues a default sentence against its client because of his inability to file a petition, see California Code of Civil Procedure § 585. Also, if he does not give up his client from the default By filing a petition in a timely manner, within six months after the default decision is made, the client will have another reason for filing a claim of abuse of official position against him, suggesting that this movement could have eshnym.
It is also possible to hold a lawyer accountable for the impossibility of increasing the viability of the defense in legal proceedings. In such cases, however, the client-stainiff should show that protection that was not claimed can be proved in court and would lead to a more favorable result. In one case, for example, a California state court refused to pay damages in the form of a fine because the lawyer decided to leave weak defense.
In general, lawyers are required to comply with their clients. especially with regard to legal decisions concerning their substantive rights. Failure to follow these instructions may be the basis for action related to the galaxy. In one case, for example, a California court brought a lawyer to justice for failing to file a complaint, despite his client’s specific instructions for doing so.
However, the courts believe that a lawyer can make decisions without the consent of his client, if the powers were given in the agreement. Decisions regarding procedural matters are also cases in which lawyers can act independently. California courts have not yet determined how to distinguish between procedural issues and legal decisions. Thus, the establishment of legal action on negligence, based on the inability to serve customers; instructions may present several problems. On the other hand, the courts have consistently argued that lawyers are not required to follow instructions that may lead to illegal or unethical behavior. In addition, a lawyer may reject a case if he determines in good faith that the case has no merit.
Another common basis for legal negligence is settlements. According to the California Rules of Professional Conduct, a lawyer must provide his client information relating to the settlement, such as the amount and conditions of the offer, see Rule 3-510 of the California Rules of Professional Conduct. To be successful with the act of negligence, client-stainiff must prove three things. First, there must be evidence that the attorney did not inform the client about the settlement (or part of the settlement). Secondly, the client-stainiff must confirm that he would accept the offer of settlement if he knew about it (or had sufficient information about it). Finally, evidence should be provided that the client would benefit more from the settlement than the actual case. The amount of damage in such a case would be determined by the difference between the actual outcome of the case and the fact that the claimant’s client would have received from the settlement proposal.
Statute of limitation
In general, clients can file a claim for legal negligence one year after the discovery of circumstances that support a claim of abuse of official position, or four years after a lawyer committed an unlawful act, whichever comes first, see Civil Procedure California Code of § 340.6 (a) However, there are exceptions to this general rule, which may extend the statute of limitations by giving plaintiffs more time to file a claim. For example, periods when a lawsuit cannot legally initiate legal action on negligence against his lawyer will be considered tolled. The same applies to cases where the lawyer-lawyer still represents the claimant-client in the same case when it comes to misconduct of a lawyer. In such cases, the deadline for taking legal action on negligence may be exceeded.
Finding legal advice
The success of the legal negligence proceedings will mainly depend on the evidence and arguments that confirm the claim that the lawyer was negligent in the presentation of his client. Even procedural issues, such as determining the applicable time limit, can also cause some problems. Thus, in cases when it comes to complex problems, advising a lawyer who has experience in dealing with legal violations is inevitable in order to prevent further damage to the client.
Sources:
California Code of Civil Procedure
California Rules of Professional Conduct
For further reading:
George Lindal JD, California Torts, 2012
Suzan Herskowitz Singer, Responsibilities of Attorney and Client Rights, 2003
Robert W. Schackner, Esq., How & When to Sue Your Lawyer, What You Need to Know, 2005
