This posting is by no means an attempt to give you legal advice, but rather to share what I learned after investigating the need for either a legal malpractice attorney or an ethics attorney. You have arrived at my blog because you have some understanding of legal malpractice, but let us begin with a definition as defined by Wikipedia.
“Legal malpractice is the term for negligence, breach of fiduciary duty, or breach of contract by an attorney that causes harm to his or her client. This occurs when an attorney acts in his or her own interest instead of fulfilling a duty to act in the client’s interest, to the detriment of the client. A claim for legal malpractice may also arise when an attorney breaches the contract pursuant to which the client is represented.”
Deciding what type of attorney to choose from is dependent on the merits of your case, and the outcome you hope to achieve. By this, I mean, do you merely want to see your negligent attorney reprimanded by the State Bar, are you seeking damages, or, perhaps both? My journey began here, and I quickly arrived at an answer after speaking to a couple of legal malpractice attorneys. The litmus test is straightforward…the amount of the damages or attorney refunds you are seeking to collect. I will describe these two different types of attorneys below, and address the monetary issues to help you decide the route best for you.
Legal Malpractice Attorney
A legal malpractice practice attorney is best known for filing civil lawsuits involving legal malpractice. This civil lawsuit is filed directly against your attorney and would not include the State Bar. If the damages you are seeking are substantial and you have a good case, then the options that follow should be considered.
Civil Lawsuit on Contingency Fee Basis
A contingency fee is a legal fee for services that are payable to an attorney only if there is a favorable result. A contingency fee agreement requires an attorney to invest on their part, and their standard one-third contingency fee has to make it profitable. Moreover, the attorney has to be very confident in the strength of a case, and the damages need to be hard dollars or compensatory damages. Soft dollars, such as mental suffering, loss of use, or punitive damages might come into play in your state, but legal malpractice attorneys are only after actual damages.
The thought of a legal malpractice suit is where I began my journey. I was furious about what had happened to me and sure that I had grounds for a legal malpractice suit. So as soon as I completed the documentation on my case, I began to shop it around with legal malpractice attorneys. However, after talking to some different attorneys, I arrived at the same answer: If my damages were not in the $100,000 range, then there was no attorney interested in taking my case on a contingency fee basis.
Civil Lawsuit on Hourly Fee Basis
An hourly fee agreement requires you to pay an attorney a retainer to take your case. And since the specialized legal malpractice attorneys prefer the more significant lawsuits on a contingency, this route requires you to invest more money in attorney fees. I would have had to hire an hourly civil attorney and pay a $2,500 – $3,500 retainer, with his total billing approaching the $7,500 range. The complexity of my case and a trial were factors driving up the cost. Considering that I was seeking a refund of $5,500, it was cost prohibitive.
I also learned that it was going to be very difficult to prove some of my allegations regarding damages. For example, I was seeking damages from my attorney for neglect by stating that she could have collected attorney fees from the opposing party. My attorney could have done this in the settlement or at trial, had it gone there. But after a subsequent legal consultation, I learned that my case was entirely too weak to win on those merits.
If you feel you have a good case for damages or breach of contract, then I recommend you visiting Avvo’s Contracts & Agreements or Legal Malpractice & Negligence sections to find a legal malpractice attorney in your state. You can begin by asking free questions or purchasing one of their very affordable consultation packages.
Ethics & Professional Responsibility Attorney
An Ethics & Professional Responsibility attorney is one that is involved with matters regarding the professional licenses of attorneys. Primarily, their representation consists in defending attorneys against the State Bar disciplinary agency, and the violations of the Rules of Professional Conduct that they broke. However, some Ethics & Professional Responsibility attorneys will represent the public or clients of negligent attorneys.
Going the route of an Ethics & Professional Responsibility attorney does not exclude you from recovering some of your attorney fees, but it does preclude you from recovering damages. There is a subtle distinction, and the critical difference is unearned fees. Simply put, you will not be able to collect more than you paid your attorney in legal fees.
Finding an ethics attorney to represent you will take some work; however, I would encourage you to seek legal consultation by visiting Avvo’s Ethics & Professional Responsibility section, to find an attorney in your area. Avvo has the absolute best attorney directory and offers some very affordable introductory consultation packages. You can even ask free questions to get started.
I will close this post by recommending an alternative approach if the attorney fee refund that you are seeking does not justify hiring a legal malpractice attorney or ethics attorney. The lacking return on investment was the case for me, and why I wrote Dispute It – A Layman’s Guide on How to Get an Attorney Refund & File a Bar Grievance to help others who are in this position.
Kenneth R. Gilley is the President of Kenneth R. Gilley & Co., LLC, a small digital marketing company. He is the author of the e-book, Dispute It – A Layman’s Guide On How To Get An Attorney Refund & File A Bar Grievance, and regularly contributes to his blog, MyLegalLessons.com. Ken holds a B.S. in Marketing from McNeese State University in Lake Charles, LA, and lives in The Woodlands, TX.