Peter Catania | October 8, 2021 | Personal Injury
If you feel like your attorney has not represented you well, you may be left wondering what you can do. The answer to this question depends on the stage of your case.
If your case has not reached a jury verdict, you can replace your lawyer and try to fix the damage. If a jury returned a verdict against you, you could try to appeal the verdict.
It also depends on the mistake your attorney made. Sometimes, attorneys and clients simply have a difference of opinion. You might not have any right to correct or sue the lawyer if they used a reasonable but unsuccessful legal strategy.
Here is some information about your options when your attorney makes a mistake in your case.
Your Rights in Your Legal Representation
Your rights concerning your lawyer are usually outlined in three places:
When you hire your lawyer, you will sign a fee agreement. This contract contains the terms of engagement. It will probably not explain when you can fire or sue your lawyer, but it will explain whether you owe the lawyer a fee if you replace them in the middle of the case.
Will you need to pay a lawyer for botched representation? It may depend on the seriousness of the mistake and when the mistake happened.
If the “mistake” was merely a difference in opinion, you probably need to pay the lawyer a fair fee for their time on the case. If the lawyer’s mistake affected your rights, you might not need to pay a fee.
When clients hire lawyers, they act as independent contractors. As a result, Florida contract law will define the rights and duties owed between lawyers and their clients.
You can fire a lawyer anytime you want — for any reason or no reason. But since a contingent fee lawyer cannot collect a fee until the end of the case, you may need to pay the fired lawyer. Florida law will determine when you need to pay a fired lawyer and how much.
Florida law will also determine whether you have a claim against the lawyer for legal malpractice. Under Florida law, a lawyer can commit legal malpractice if they fail to provide reasonable legal representation under the circumstances.
Florida Rules of Professional Responsibility
Florida lawyers must follow Florida’s Rules of Professional Responsibility. The Florida Bar and Florida’s courts can discipline a lawyer who violates the rules of professional responsibility. Disciplinary action can include censure, restitution, suspension, or disbarment.
When a lawyer violates ethical rules, a client can file a grievance with the bar. The Florida Bar will investigate the matter. This investigation might include speaking to the aggrieved client.
At the end of the investigation, the bar might start disciplinary proceedings to punish the lawyer and seek to make the client whole.
Actions You Can Take Against Your Lawyer
Lawyers can make a lot of different mistakes. The nature of the mistake will determine the action you can take against your lawyer.
Firing Your Lawyer
As mentioned previously, you can always fire your lawyer. You can fire your lawyer for a mistake, a difference of opinion, or just because you do not like the way they look at you. The only issue will be whether you owe a fee to the lawyer for the work they have already completed.
Filing a Disciplinary Complaint
Lawyers must comply with many ethical rules. These ethical rules govern everything from the way the lawyer bills you to how often they must update you on your case.
If your lawyer’s conduct violates Florida’s ethical rules, you can file a complaint. For example, suppose that you cannot reach your lawyer after many phone calls and emails. The lawyer did not miss any deadlines, and your case was not affected, but you could not get updates for several weeks.
You could file a disciplinary complaint against the lawyer for violating Rule 4-1.4 of the ethical standards. This rule requires lawyers to keep clients reasonably informed about the status of their cases and respond to all reasonable requests for information.
Since your rights were not affected, you might not have a claim for legal malpractice. But the Florida Bar might punish the lawyer for violating the rules.
Filing a Malpractice Lawsuit
You can file a lawsuit for legal malpractice when the lawyer fails to provide reasonable representation under the circumstances. To meet the standard of reasonableness, the lawyer must show that they did everything a reasonable lawyer would have done in the same circumstances.
Not every mistake amounts to malpractice. A harmless error could give you cause to fire the lawyer, but it might not give you a basis for a lawsuit or a disciplinary complaint.
For example, suppose that your lawyer missed a deadline to reply to a claim denial. The insurer accepted the late reply and did not close your claim. A harmless error will probably not give you cause for a malpractice claim.
On the other hand, suppose that your lawyer missed the statute of limitations to file your personal injury lawsuit. As a result, you lost your right to sue the at-fault driver for your injuries. In this case, you suffered real harm due to the lawyer’s negligence. You could sue the lawyer for malpractice.
Actions You Can Take to Fix Your Case
Some mistakes cannot be fixed. For example, you probably cannot fix an expired statute of limitations.
You can fix other mistakes by hiring a new lawyer. If a lawyer messes up the negotiations with a claims adjuster, a new lawyer could restart negotiations.
But you might need to live with some mistakes. If your lawyer makes a mistake in litigation, court rules might not allow a new lawyer to fix the original mistake. Likewise, if your lawyer accepts a settlement that you do not like, you will not usually be able to change the outcome.
Hire the Right Lawyer
Most cases go smoothly. But occasionally, mistakes will happen. You can reduce the risk of mistakes by hiring the right lawyer.
Review disciplinary records, talk to former clients, and interview lawyers carefully before choosing one to represent you. If your lawyer makes a mistake, talk to a new lawyer to find out what you can do to address the issue.