How your attorney can commit legal malpractice even if you win

There are many ways an attorney can commit legal malpractice. All it takes is a violation of your good faith that results in real damages.

In earlier articles, we looked at how attorneys can miss deadlines or make incompetent arguments that can cost you your case. However, these aren’t the only actions that could cost you a case. Nor do you need to lose your case to have a legal malpractice case on your hands.

Rule 1.4.1

California attorneys must follow the law as well as the California Rules of Professional Conduct. These Rules set one standard against which all attorney conduct is measured. If your lawyer fails to live up to these standards, you can offer that failure as proof he or she was negligent or acting in bad faith.

However, that still leaves the matter of damages. Again, to win a legal malpractice case, you need to prove both liability and damages.

This is where Rule 1.4.1 may come into play. Taken along with other provisions, it means that your attorney owes you clear communication about any potential settlement. This includes:

  • The size of the settlement
  • Any terms and conditions
  • Enough background in the law for you to make a reasonably informed decision

Accordingly, you might find liability and damages due to poor communication if your attorney:

  • Settles your case without your approval
  • Neglects to mention your opponent offered to settle
  • Doesn’t communicate all the details of a settlement
  • Encourages you to settle without first making sure you understand the offer

These are just a few examples, but you can imagine many more. Especially given how many cases settle instead of going to court.

You may feel like the settlement is a “win,” but you might later learn something that gives you reason to doubt your attorney had your best interests at heart. Perhaps your settlement was significantly smaller than other, similar cases settled at the same time. Or maybe it came with surprising restrictions. Either way, you shouldn’t walk away from a settlement only to learn that your attorney withheld some valuable information.

Professional communication is required

The Rules of Professional Conduct do not require your attorney to give you his or her cell number and to serve at your beck and call. But they do demand that your attorney keeps you in the loop. When something comes up that could affect your case or its resolution, you should generally be the first to know. You should be the one to decide, and you should be able to make informed decisions.

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