When hiring an attorney, individuals are seeking help in what is likely one of the most stressful times of their lives. Whether they have been injured, charged with a crime, or wronged in some way, the attorney is their partner to achieve the best outcome. However, not every attorney is a good attorney. Additionally, even attorneys who seem completely competent make mistakes. Mistakes on the part of an attorney can often be costly for the attorney and – worse yet – for their client.
It is a lawyer’s top responsibility to uphold the law while being committed to their client. While it is true that lawyers are imperfect human beings with lives outside the courtroom, they all have to do everything possible to avoid malpractice. It can cost them their career, and (in some cases) it can cost their clients even more.
If you believe you have been a victim of legal malpractice in New York, contact Sullivan Papain Block McGrath & Cannavo P.C. today. We have been recognized as one of the top law firms in New York and have the reputation and experience to handle your case. We have no problem holding our fellow lawyers responsible for their actions.
Conflicts of interest occur when the interests of the attorney conflict with the best interest of the client. In this case, the lawyer’s main error is a failure to immediately disclose the conflict. In some cases, the attorney does not realize the conflict exists, and can often make that case in their own defense. In other cases, they willfully conceal the information, which is malpractice.
When a stenographer or other assistant working on behalf of an attorney makes a grievous error regarding the case, such as an incorrect legal description, incorrect numbers, or any other error that was not discovered by proofing on the part of the attorney, it is a clerical error. This does not apply to a subordinate or non-lawyer neglecting to follow instructions laid out by the attorney, but it does apply to written errors on documents the attorney is responsible for that enter a court of law.
If an attorney searches for a public record pertinent to his or her case but does not disclose the correct findings, it could result in malpractice. Examples include patent laws, trademark laws, and pertinent information regarding a plaintiff or defendant. Additionally, if the attorney creates findings that are claimed to be from public record but cannot prove that they completed a public record search, it is a fabrication of public record. Malicious intent is not always the case, as sometimes it is human error. However, if an attorney does not perform due diligence with public records it is solely their fault if it has an adverse impact on the client’s case.
Certain mathematical errors can raise a flag for malpractice, particularly regarding tax law. Real estate and tax lawyers are especially vulnerable to these errors and must exercise increased caution as part of their daily work. However, this type of malpractice applies to any attorney who may negatively impact their client’s case with a math-related error.
This type of malpractice is quite simple. If the client lays out specific instructions for the attorney and the attorney goes against them, the client can claim malpractice. Even if the attorney believes his or her actions to be in the client’s best interest, it is a breach of trust and fiduciary responsibility to the client to go against their wishes.
Though missing a deadline may seem like an minor mistake, it can result in malpractice if the stakes are high. It is better to fail in completing a task by a deadline after trying to do so, than to make no calendar notification or goal to complete an important task at all. This type of malpractice centers on negligence to understand the importance of a deadline. In other words, the attorney should never miss a deadline, but especially not due to the fact that they showed indifference to the deadline and how it might affect their client.
When there is no defined deadline for filing a document, but filing it keeps the client’s best interest first, that may be grounds for malpractice in some cases. Real estate and tax attorneys face many sensitive timelines for filing paperwork on behalf of a client. Though a firm deadline may not exist, there is a clear timeline for what is in the best interest of the client.
Failure to apply a law that the attorney understands is different from failing to apply a law that the attorney does not know or does not understand. However, both instances are potential malpractice. This occurs when the lawyer uses his or her own reasoning to supersede the law they know to be correct, or when he or she inadvertently files documents that contradict a law. An example is an attorney who understands that certain elements must be included in divorce papers, but he or she leaves those elements out because, in his or her opinion, they do not apply to this case. This omission may also be done purely from negligence.
If the attorney fails to inform the client of any findings or events that will affect their case, it is a form of malpractice. Additionally, presenting anything in a court of law that the client is not aware of is a serious error for many reasons.
As with failing to inform a client of information, tactics, or other pertinent elements of a case, failing to ask the client’s permission to use evidence, information, or certain tactics is a severe form of malpractice – especially when actively in court.
Failing to react to a deadline or engagement that is on the docket can be grounds for malpractice. This could include not showing up or calling to say that he or she cannot be present, or could include not meeting a clerical deadline in the calendar.
This claim affects lawyers who are not tax lawyers, but advise their client in a way that shows they did not consider the tax implications for that client. This could be a financial situation, a scenario of divorce or custody, or any other case that involves tax implications. There is cross-over in this type of malpractice with “failure to know or apply the law.” However, ramifications are specific regarding tax law.
This applies when an individual or client believes the attorney represents him or her, though the attorney does not believe he or she is their representative. Failure to establish a client relationship falls on the attorney. Likewise, problems arise if the reverse is true – the attorney believes himself or herself to be the representative for someone who does not believe that to be true. Clear contracts of representation prevent this confusion.
This type of malpractice is not complicated. An attorney who loses pertinent files or evidence in his or her care is accountable for the error, particularly if the loss impacts the client’s case negatively.
This is a common scenario where the client believes the lawyer could have created a more positive outcome in a trial had they uncovered or produced different (or more) evidence. Often times, the client is reacting emotionally and does not have a valid claim. Sometimes, however, the attorney has missed or neglected significant evidence and should be held accountable.
The claim of slander (or libel) occurs when anyone believes the lawyer is committing slander against the client or opposition.
It is possible for anyone to make this claim, accusing the attorney of malicious intent, malicious prosecution, or general abuse of the judiciary process for an unlawful outcome. This is one of the most serious forms of malpractice.
The area of fraud covers many malpractice areas, such as fraudulent evidence, tax fraud, or insurance fraud. Additionally, it could include the attorney misrepresenting his or her knowledge, skill, track record, or overall practice.
A third party can accuse an attorney of a violation of civil rights in a trial, or in the operation of their practice. It does not pertain to the representation of a client on the grounds of civil rights in a case where the attorney makes a mistake in the trial or representation. It does pertain to client abuse and discrimination.
If the attorney is abusive, dishonest, or manipulative toward the client – particularly in a manner that creates a negative legal outcome – he or she is committing malpractice. In addition to career ramifications, this could have to serious personal ramifications, including even arrest.
If the attorney fails to follow up with the client, a witness, or any other personnel pertinent to the case, it can create grounds for malpractice, as well as issues with a trial.
Only attorneys may be sued for legal malpractice; however, attorneys may be sued as a result of the errors of non-attorneys employed, retained or associated with the attorney working under the attorney’s supervision. In evaluating attorney malpractice as a result of the conduct of an employee, attorney supervision of the employee and their work is a key consideration.
An attorney must take competent and reasonable steps to safeguard information relating to the representation of a client from inadvertent or unauthorized disclosure. Additionally, an attorney must take steps to ensure that a client’s electronic information is not lost or destroyed. An attorney must have competence to protect and evaluate the nature of potential threats to a client’s electronic files and utilize appropriate hardware to do so. If an attorneys lacks the appropriate competence to do so, the attorney must retain an expert consultant who does have such competence.
The statute of limitations is the applicable time period within which certain kinds of legal actions may be commenced. A legal action must be commenced within the statutory period, or the action is forever waived. The statute of limitations varies depending on the jurisdiction and type of claim asserted. Attorneys must both correctly determine the applicable statute of limitations, and timely commence the action within that timeframe.
At the outset of litigation, an attorney must diligently investigate all possible defendants and commence the legal action against the appropriate parties within the applicable statute of limitations time period. Attorneys are obligated to not only identify the proper defendant, but also correctly name the defendant in the pleadings – whether that be an individual, private corporation or municipal entity. Generally, an attorney should name all potential defendants in the initial filings to avoid the expiration of the statute of limitations.
There are many, widely varying forms of malpractice. These examples are some of the most common, but there are many more specific and nuanced examples. Attorneys are not infallible or immune to human error, but it is imperative for them to strive to avoid mistakes.
According to CPLR 214(6), the statute of limitations for legal malpractice claims in New York is three years from the date of the incident. If you believe you have been the victim of malpractice by an attorney, you must act quickly. You may not only be facing your original legal issues but also the new task of charging them with malpractice. The attorneys at Sullivan Papain Block McGrath & Cannavo P.C. can help you navigate your legal malpractice case. Contact us today.