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Hints on When to Sue Your Attorney

July 27, 1989|JEFFREY S. KLEIN

The last person anyone would probably choose to sue is a lawyer. Why drag someone into court who thinks of it as a second home? But when your own lawyer's misconduct has cost you money, filing a malpractice suit is one option to consider.

A legal reform group in Washington has published a new book that can help you decide whether to sue your lawyer. It can also help you find a lawyer to file the suit if you decide to do it. The Directory of Lawyers Who Sue Lawyers, published by HALT, helps you assess your chances of winning; it also has a state-by-state listing of attorneys who accept legal malpractice cases.

(HALT does not guarantee the quality of the lawyers listed but believes that it might be difficult to find a lawyer who would sue another one and listed those attorneys who have handled such cases or who said they would be willing to do it.)

Other Options

Before suing your lawyer, there are other options you should consider. If your attorney has violated the professional ethical rules imposed by state law, you can complain to the State Bar of California, which has the power to reprimand the lawyer, or in an extreme case, even move to disqualify him or her from practicing law. Disbarment usually occurs only when an attorney has shown a pattern of serious unethical conduct, such as complete disregard for a client's case or stealing a client's money.

Even if the State Bar reprimands your attorney, that doesn't help pay the bills, because the State Bar can't order the lawyer to return any money you've lost as a result of his conduct. However, the State Bar does operate a Client Security Fund, which pays clients who have lost money or property because of a lawyer's dishonest professional conduct. In 1987, the fund paid out $1.5 million in claims. But the process can take years, and payment is made only after an attorney has been formally disciplined.

Toll-Free Number

To contact the State Bar to complain about a lawyer, or find out more about the Client Security Fund, call toll-free (800) 843-9053.

If your fight with your attorney is about a bill, you should try fee arbitration. In most cases, state law requires arbitration of lawyer-client fee disputes. The Los Angeles County Bar Assn. operates a fee arbitration program. Call (213) 627-2727 for more information. And the State Bar publishes a pamphlet explaining what you can do when your lawyer's bill is too high. Send a self-addressed, stamped, business-size envelope to State Bar Pamphlets, 555 Franklin St., San Francisco, Calif. 94102.

But if you're determined to sue, here are some things you should know. Your chances of winning are not great, statistically speaking. In a 1986 American Bar Assn. study of legal malpractice claims filed with insurance carriers, 63% received no compensation, and clients who didn't settle won only 1.2% of the cases in court, according to the HALT directory.

Malpractice cases are usually complex, plus you have a difficult opponent--a lawyer. Your task is especially difficult if you have just lost a case at trial and want to show that your attorney's misconduct was the reason for your loss. In effect, you'll have to litigate two cases at the same time: the original one you lost, to show that you should have won, and the one against the lawyer for malpractice. Some malpractice cases can be relatively straightforward: for example, if your attorney fails to file a lawsuit within the statutory time limit (the statute of limitations).

In most lawsuits against your ex-attorney, you'll either try to show that he was negligent or breached his contract for services. There are four basic elements of the case, according to HALT:

--You had a client-attorney relationship.

--The lawyer acted in a way that violated a duty to you.

--The lawyer's violation of that duty caused you injury. (This doesn't mean only personal injury, such as a broken leg.)

--You suffered monetary loss because of your injuries.

Even if you can prove all of that, the lawyer may still be able to show that his misconduct was just an error in judgment, not legal malpractice, or that the misconduct did not legally cause your losses.

The HALT Directory sells for $10. You can order it by writing HALT at 1319 F St. N.W., Suite 300, Washington, D.C. 20004.

Klein cannot answer mail personally but will respond in this column to questions of general interest about the law. Write to Jeffrey S. Klein, Legal View, The Times, Times Mirror Square, Los Angeles 90053.

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