What if my lawyer does not do the job? Ask the Lawyer ...Middle East

Q: A lawyer charged me ample money to review a matter. I asked him to either bring a lawsuit to recover damages against a company, or find someone who has the expertise. He assured me that he would do one or the other. Now I find out no lawsuit was brought, and am told it is too late to file. Can I sue him?

P.S., Long Beach

A: You are inquiring about whether you have a legal malpractice claim against the attorney. This means not simply that the lawyer was careless, but also that his or her conduct fell below the standards of competence in the legal community. Often that requires an evaluation by an objective expert who goes over the details and pertinent records, and can indicate one way or another. The lawyer has, however, a heightened duty of loyalty to the client. Where it gets particularly challenging is not just answering if the lawyer’s conduct constitutes malpractice, but also determining if there would have been a better outcome for you otherwise.

In sum, if you have a legal malpractice case, it means both that the lawyer’s conduct will be deemed incompetent, and that “but for” that incompetence you would have prevailed, or recovered more, or had a notably better outcome. Thus, this question: If the lawyer had filed the lawsuit you wanted to pursue, would you have prevailed? Are there demonstrable damages?

As to the deadline to file a legal malpractice claim, Code of Civil Procedure Section 340.6 provides that civil actions against a lawyer for “wrongful acts or omissions, other than for actual fraud,” must be filed within the earlier of: (a) One year after you discover (or reasonably should have discovered) the attorney’s wrongful conduct, or (b) Four years from the date when the wrongful conduct actually occurred. Note, it is “the earlier of,” although on limited occasions, there may be a basis to assert that the deadline was “tolled.” Bottom line, consult with qualified counsel about whether or not you have a claim, and if it makes good sense to go forward.

Q: What can I recover if my lawyer committed malpractice?

A.S., Beverly Hills

A: The first response here is that “it depends”. For example, did you lose a case, spend a lot of money doing so, and now have liability that should be placed at the feet of the lawyer? Or, did you have a case that was not brought, and is now time barred (such as the reader above)? The nature of the claim will play a role.

Generally, the damages in a legal malpractice case can include the value of the claim lost, and emotional distress if that injury “naturally ensues” from the bad acts. Recovery of what was paid to the lawyer sounds in contract, whereas legal malpractice is based in tort. Research thus indicates you cannot get back what you paid, but talk this out with your lawyer; perhaps you overpaid, or had to defend against a claim where you had to pay an attorney to represent you because of the other lawyer’s malpractice. Lastly, punitive damages typically are not recoverable in legal malpractice, but talk out with your attorney as well whether there is any realistic chance to pursue punitives in your situation.

Ron Sokol has been a practicing attorney for more than 40 years, and has also served many times as a judge pro tem, mediator, and arbitrator. It is important to keep in mind that this column presents a summary of the law, and is not to be treated or considered legal advice, let alone a substitute for actual consultation with a qualified professional.

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