Legal Malpractice: Frequently Asked Questions
- How do I know if my attorney has committed malpractice?
Legal malpractice occurs when an attorney is negligent in representing you in some way and that negligence causes you harm. To show that an attorney committed legal malpractice, you must be able to show that the attorney represented you, that they “breached the standard of care” during that representation and that the breach caused you harm.
- What does “breached the standard of care” mean?
The “standard of care” is the degree of skill, care and diligence ordinarily possessed and exercised by lawyers in similar situations. An attorney breaches the standard of care when the lawyer does not act in a manner that would be considered generally acceptable in the profession. An attorney may breach the standard of care in several ways. One common act of malpractice occurs when an attorney fails to pursue a claim in a timely fashion and lets the statute of limitations expire on the claim. Missing a statute of limitations is a clear violation of the standard of care. Attorneys may also breach the standard of care in other ways that are much less obvious including failure to comply with ethical obligations imposed by the State Bar of Georgia or representing you despite a conflict of interest, to name a few. You should consult with an attorney who specializes in legal malpractice to determine whether your former attorney was negligent.
- What type of harm can I recover for?
Typically, you must be able to show that your attorney’s mistake caused you financial harm in some way (i.e., it caused you to lose some amount of money). Often, financial harm is easy to calculate by looking at the documents from the case in which the attorney was representing you.
Although legal malpractice frequently causes emotional distress or psychological harm, this type of mental stress is not usually recoverable in legal malpractice cases.
- Are all legal malpractice cases worth pursuing?
Not all legal malpractice claims are worth pursuing.
In Georgia, the only people who can testify about the standard of care in legal malpractice cases are licensed attorneys. To file a valid legal malpractice lawsuit, you must first obtain an expert affidavit from another attorney that supports the claim that your former attorney was negligent. This affidavit must be filed with your complaint. If you do not file this affidavit with your complaint, you cannot prevail on your lawsuit. Hiring an expert to review the case and sign the affidavit can be very costly.
After litigation ensues, legal malpractice lawsuits can get very pricey because they are typically very document intensive and usually require several depositions. To prevail in the legal malpractice lawsuit, you must be able to show that you would have succeeded in the “underlying lawsuit” (i.e., the claim that you hired the attorney to pursue in the first place). This means that your legal malpractice attorney has to obtain all of the evidence relevant to the underlying lawsuit and get testimony from all parties involved in that suit in addition to obtaining all evidence related to your former attorney’s negligence. Expenses associated with proving both your underlying lawsuit and your legal malpractice lawsuit are very high.
Because of the immense time and expense involved, legal malpractice lawsuits with damages less than $100,000 are often not cost-effective to pursue.
- What do I need to do to get a consultation regarding a legal malpractice case?
Before consulting with a potential client about a legal malpractice lawsuit, we need to get some basic facts and information about your case. Specifically, we need to know the name of the attorney that you hired, what firm they worked for, the date they were hired, a short explanation of what you hired them to do, and the outcome of the claim. If your attorney sent you any correspondence indicating that they missed a deadline, such as a statute of limitations, it is important that you tell us about this correspondence. Please fill out our consultation request form here.
After we check our system to make sure we do not have any conflicts and look over your brief facts, we will have a better idea of whether you may have a viable claim. We will then contact you about your potential case.
- Are there any types of legal malpractice cases that you do not take?
Typically, we do not pursue legal malpractice cases involving criminal representation, custody disputes, or before damages for emotional distress without any accompanying monetary harm. Although you may have a valid legal malpractice claim in any of these scenarios, proving damages in these types of cases is extraordinarily difficult.
- Will you take my case if it only involves a dispute in the amount of fees charged?
We do not usually take cases that only involve a dispute in the amount of fees your attorney charged. However, if your attorney failed to give you money from your settlement or stole funds that were owed to you, we may be able to help you pursue your claim.
For other fee disputes, such as a claim that your attorney charged you a rate higher than agreed upon, overbilled for certain things, or failed to return an unearned portion of your retainer, we recommend that you contact the Fee Arbitration Service offered by the State Bar of Georgia. The State Bar offers fee arbitration free of charge. For more information on this service, please contact the State Bar of Georgia at (404) 527-8750 and ask for the Fee Arbitration Department.
- If I don’t have much paperwork how do I prove the malpractice?
If you believe your attorney was negligent in pursuing your claim, you should always ask your attorney for your complete file. As the client, you own your file and your attorney is obligated to give it to you. Often, we can determine whether your attorney committed malpractice by reviewing the file.
We can also use documents filed with the court, emails and other correspondence to establish a malpractice case. These cases are very fact specific and the documents needed to establish malpractice vary from case to case. There is not usually one specific piece of paperwork that establishes malpractice.
- I want to sue an attorney but he is well known. How do I know you don’t know them or won’t divulge my information?
Our first step in determining whether to take a case is to run a conflict check. If we have any conflicts that would prevent us from pursuing the claim, we tell you about the conflict immediately and we do not obtain any additional information about the case. Regardless of whether we take your case, we are ethically bound to keep all communications that we have with you confidential. We will not divulge any of your information to people outside of our firm, even if we know the attorney that you contacted us about.
- What is the difference between a legal malpractice claim and a Bar Complaint?
A legal malpractice claim is a lawsuit brought by a client against his former attorney. The court system has authority over the claim and it proceeds as a lawsuit. You can even ask for a jury to hear your case. If you win your case, a monetary judgment may be entered against your former attorney for a sum of money that the lawyer is obligated to pay you as compensation for his negligence.
A Bar Complaint, also known as a Bar Grievance, is a claim filed with the State Bar of Georgia alleging that your attorney was unethical in some way. The State Bar of Georgia is the administrative body that governs attorneys and their licenses. After a Grievance is filed with the State Bar, it will investigate the claim. If the State Bar believes it has sufficient evidence to support the claim, it may ask the Supreme Court of Georgia to discipline the attorney, which may lead to suspending an attorney’s license to practice law or even disbarment. You, as the former client, do not receive any monetary award from a Bar Grievance.
- Will you represent me in pursuing a Bar Complaint?
No. We do not usually represent clients or lawyers in Bar Grievances.