Ordinarily, people consult a trial attorney at a time when they are under the stress and strain caused by a significant problem in their life. Perhaps they have suffered medical negligence, they are in the throes of a divorce or they are being sued in a business dispute. They seek legal guidance, of course, but they also desire reassurance that their lives will eventually resume a state of normalcy. The very best lawyers are good listeners, problems solvers and genuinely sympathetic to the particular needs of their client. The foundation of every attorney/client relationship is trust. At first, the client may be reluctant to genuinely place their full confidence in their lawyer. This is understandable. Trust is earned over time. Indeed, most attorneys work hard to earn their client’s trust and achieve their client’s goals. Regrettably, there are those instances each year when some lawyers will actually compound their client’s problems due to inattention and malfeasance.
According to the American Bar Association’s “Profile of Legal Malpractice Claims” publication, incidence of legal malpractice are most common in the area of Personal Injury law- (19.96% of claims); Real Estate- (16.46% of claims); Family Law-(9.58% of claims); and, Estate, Trust, and Probate law-(8.63% of claims).
When a lawyer makes a mistake, there are nearly always significant and undesirable consequences for the client. Legal malpractice may take many forms:
- Failure to meet court deadlines;
- Failure to act within the statute of limitations;
- Failure to return phone calls or communicate with a client;
- Failure to resolve conflicts of interest;
- Failure to know the law or perform adequate research;
- Abuse or misuse of a client’s trust account, including commingling trust account funds with the attorney’s personal account; and,
- Failure to adequately prepare for hearings and trials.
The only remedy under these circumstances is for the client to pursue a legal malpractice claim against the lawyer. Most, but not all lawyers, maintain malpractice insurance to cover incidence such as those listed above.
There are things a client can do, however, to minimize the chances of suffering the consequences of attorney neglect. For example, clients should take an avid interest in their case. This means establishing early on that you expect frequent updates from your attorney. Clients should expect to see their case progress over time. When things appear stagnant, the client should request a meeting with the attorney. This kind of client participation ensures that the attorney is on their toes and always looking to move the case forward to a resolution.
Dino M. Colucci, Esquire, is a founder of Colucci, Colucci, Marcus & Flavin, P.C., a law firm dedicated to representing victims of neglect. He is also an adjunct Professor of Law at Suffolk University Law School.