Alabama Legal Malpractice Explained
Legal malpractice occurs when a lawyer damages a client’s case by failing to provide the level of service, standard of care, or expertise that is required for the situation. In Alabama, legal malpractice exists when there is duty, breach of duty, direct connection between the breach and injury, and damages. Errors or omissions happen in a wide variety of cases. For example, a lawyer might file the wrong suit for a client. Let’s say that a client wants to sue a company for an injury they suffered, but the lawyer, through oversight, files the case in the wrong court. This oversight can amount to legal malpractice .
Some other examples of legal malpractice might be:
A lawyer giving the client poor advice about a contract to sign
Advise the client to take an action that would result in major tax penalties
Failing to return a client’s call within a reasonable amount of time
Failure to file an appeal by the legal deadline
Or, in the case of real estate, advise a client to purchase a property and not disclose that it needs major repairs or structural work that would cost thousands of dollars.
One of the key legal definitions we should all understand is: A contract needs an offer, acceptance, and consideration. A contract also needs mutual assent or agreement, as well as every party being competent to give a valid agreement. If a lawyer fails in their duty to draft, explain, or explain changes to a contract, and this results in damages, then it can be considered legal malpractice.
Clients Rights in Legal Malpractice Suits
Clients always have a right to investigate a case of legal malpractice. When a client suspects negligence by his attorney, he has a right to demand an accounting of the files held by the attorney and to receive a copy of his file. Some states recognize the concept known as "closure letters" meaning the attorney will notify the client of the date on which the file will be destroyed and the right of the client to obtain the file before it is destroyed. In Alabama, there is no requirement that the client be given any notice.
Our clients sometimes ask us whether we are suing their former attorney, because if we are, they do not want that attorney to know that they have retained new counsel. We always tell clients that it cannot matter who knows what about his or her representation by the defendant lawyer. The ethics rules require complete candor by the client, and the better practice is to be completely forthright with the attorney in the new case about the former attorney’s alleged malpractice.
It is very important for clients to preserve evidence of their attorney-client relationship and possible malpractice. That includes obtaining a copy of the file and retaining all communications exchanged by the attorney and any possible co-defendant, such as an insurance company. These documents will be extremely important to a legal malpractice attorney.
Characteristics of an Effective Legal Malpractice Lawyer
When seeking to hire a legal malpractice lawyer in Alabama, the most vital qualification to look for is specialization. Legal malpractice is not something that all lawyers are equipped to handle. In fact, your current attorney may not even realize that he or she is guilty of malpractice. That’s why it can be so beneficial to consult with someone who has specialized their practice around defending such actions. This is also a good way to weed out which members of the Alabama Bar have an honest interest in helping you if you’ve experienced legal malpractice. The first thing to do is to search for someone who has an established reputation for specializing in legal malpractice. For example, ask your other attorney if he’s ever heard of the specialist you’re thinking of consulting. Once you’ve selected a good number of potential candidates, it’s a good idea to ask each of them how many cases like yours they’ve handled, and of those cases, how many were successful. You’ll want an attorney who has a long history of trial experience handling cases similar to your own. You don’t want someone who has only recently graduated from law school, as it takes years of experience and exposure to really know the ins and outs of a case. Finally, you should interview your attorney at length to judge whether or not he or she is someone you feel you can trust. Legal malpractice is an unfortunate experience that generally leads clients to believe that their life is over, while a legal malpractice attorney can help guide the way back to the top. Choose the right one and you’ll be back to normal in no time.
Process of Filing a Legal Malpractice Lawsuit
Steps to Filing a Legal Malpractice Claim in Alabama
Should have a pre-complaint notice of intent to file suit.
Should sign a fee agreement with the proposed legal malpractice lawyer. The fee agreement should be as detailed as possible.
Should sign a representation letter giving the proposed legal malpractice attorney all necessary authority to obtain your file and effectively represent you against the lawyer. This includes signing authorizations to obtain all records, transcripts, depositions and attorney statements (if available).
Should have the new legal malpractice attorney review file. It is important for the new lawyer to review the file before the deadline to allow assessment of the case. Some legal malpractice lawyers, once hired, may oppose acting quickly in reviewing the file.
Should have an assessment of case made at earliest possible date.
Should have remedial action sought at earliest possible date.
Should retain all relevant evidence. Evidence in adverse agency may be useful.
Should consider pre-suit mediation.
Should file complaint and serve defendants in timely manner.
Expenses of Hiring a Legal Malpractice Lawyer
When it comes to hiring a legal malpractice attorney in Alabama, there may be costs involved in the process. For some attorneys, clients are simply required to pay a retainer fee, or a lump sum upfront, much like a standard attorney-client arrangement. However, once the retainer is used up, the relationship typically becomes closer to an hourly arrangement . Attorneys will deduct the time they spend working on the case from this retainer throughout the process, and only continue to bill at the end if the retainer runs out. Some legal malpractice attorneys do not charge a retainer fee, but use an hourly or contingency fee. In many instances, financial arrangements with attorneys can be negotiated.
Legal Malpractice Case Results in Alabama
A comprehensive review of leading AL legal malpractice decisions renders the following possible outcomes:
- An attorney is responsible for an entire $171,000 settlement payment by a new firm allegedly due to the predecessor firm’s negligent acts, along with $200,000 in lost fees and greater than $40,000 in additional expenses.
- A $95,000 legal malpractice settlement is offset by $45,000 in fees and costs from the underlying case.
- Damages paid ($5,000) plus full $10,000 in legal fees and costs on claim file are awarded the Plaintiff for legal malpractice.
- A $6,000 legal malpractice verdict is rendered in favor of an Alabama client suing his former attorney for failing to prosecute his case. The existence of "concurrent" negligence does not absolve the Attorney from culpability under the facts of the case as the client was unaware of the possible defense of "concurrent" negligence.
- A legal malpractice claim is dismissed on the grounds that Plaintiff failed to plead necessary elements of malpractice.
- A judgment against an Attorney and in favor of a legal malpractice Plaintiff in the sum of $7,776. The case involves medical malpractice component in which the Plaintiff argued that the negligence of the Defendant/Physician caused her to sustain injuries which resulted in pain and suffering in excess of $1 million, and which required surgery.
- A legal malpractice verdict in the Plaintiff’s favor is rendered for $5,000. The 1st. DCA affirmed a judgment in favor of a Florida attorney in a legal malpractice action where the lower court found the attorney had not committed malpractice.
- A breach of contract law suit results in damages in the sum of $4,772.81 together with costs.
Advantages of Legal Counsel
When faced with a legal malpractice nightmare, it is crucial to locate an experienced and proven attorney who specializes in this type of practice. Due to the complex nature of these cases, a general practitioner is not equipped to take on such matters. This is why working with an experienced legal malpractice attorney is so important.
After examining your specific case, legal malpractice attorneys will determine whether you have a valid claim against your former counsel. They will also determine the related substantiated damages and the best strategy for pursuing an action in court. Legal malpractice attorneys handle malpractice cases from start to finish and can refer the case to trusted attorneys with related legal specialties if necessary. Sometimes dealing with a different type of law is avoided by filing an action with an alternative or legal malpractice statutory arbitration program , which usually results in a more favorable settlement. Your legal malpractice attorney will advise you on the best course of action to take.
Unfortunately, it is common for an affected party to not know much about legal malpractice. This often leads to potentially misleading statements from attorneys, who may try to convince a client that their case has merit when it really does not. Experienced legal malpractice attorneys will give you an honest opinion when reviewing your case, regardless of how it may affect them. A great deal of information is available on the internet about the legal malpractice process, and honest legal malpractice attorneys will refer you to those resources when they are more suited to assist you. Be wary of legal malpractice attorneys who promise you a miracle, as the aftermath of a legal malpractice incident is not something that can be fixed easily.
