Everyone makes mistakes. There’s no way around it. But sometimes those mistakes come at the most inopportune times, such as when you’re going through a divorce. When you discover that your lawyer has made an error that resulted in a major setback in your divorce – such as losing a portion of assets or getting a bad deal on child custody – it is understandable that you’d be upset.
You might wonder in such circumstances if you’re able to sue your lawyer. As bizarre as it may sound, you are in fact allowed to sue your own attorney for legal malpractice. However, it isn’t easy to do so.
A Note on Malpractice Insurance
As observed by attorney Jeffery L. Robinette, even the most skilled and experienced lawyer can make a mistake that ultimately sinks a case. But experienced lawyers generally come prepared for legal malpractice suits by purchasing insurance coverage for malpractice claims. In fact, in many states, law firms that are set up as professional limited liability companies (PLLC) are required to meet coverage minimums.
This is important to note because if you decide to pursue claims against an attorney without legal malpractice insurance, even if you are able to prove legal malpractice, it may be difficult to obtain compensation.
Inherent Difficulties
Why is it so hard to pursue damages for legal malpractice? Well, for one, in most divorce cases, a mistake that affects custody, alimony, or child support can be reversed after the fact by way of a petition for modification. After filing a petition for modification (with a new lawyer) courts can often change the action that caused you the grievance. A modified ruling would then render most legal malpractice claims moot.
Secondly, even if you were able to modify the ruling, you still might want to seek compensation for the attorneys’ fees linked to your previous lawyer. But, it should be noted, malpractice insurance doesn’t generally cover claims solely seeking remuneration for fees, so it may be quite difficult to get that money back.
Proving Legal Malpractice
You may be able to pursue legal malpractice claims if you have already approached another attorney and this attorney has indicated that there is no possible way to change an initial ruling. To that end, you’d have to prove that there are in fact grounds for such a case. This can be difficult.
First of all, you must be able to show that there was an attorney-client relation at the time of the malpractice. Then you must be able to prove one of the following:
- That your attorney was negligent
- That there was a breach of contract
- Or that there was a breach of fiduciary duty
These are some of the more common justifications for pursuing damages for legal malpractice. Of these three, most people pursue damages on the basis of negligence.
To prove negligence you must show that your lawyer failed to act reasonably when compared to an ordinarily competent attorney. Then, and this is perhaps the more difficult part, you must demonstrate that the breach directly resulted in financial loss.
Course of Action
Before making any moves, you should consider your options. For instance, you might consider switching lawyers if it’s still early enough and you are allowed to do so. If you can’t hire another attorney and you believe that you are dealing with legal malpractice, you should contact a lawyer in your area who has specific experience in legal malpractice cases. He or she will help you determine if you have a case and what the best course of action might be.
