Going Legal – How to Find & Work With an Attorney For Your Small Business

Deciding Whether to Go Legal

As a former full-time practicing attorney and now a small business owner, I have been on both sides of the fence when it comes to the legal issues a business owner may face. This provides me with the distinct advantage of knowing when to call in an attorney for assistance, as opposed to using another professional, such as an accountant, financial planner, insurance agent, or business coach — or perhaps handling the matter myself. In addition, my background helps me to select an attorney that is the best fit for the business matter at hand. Many entrepreneurs have had limited experience deciding whether a matter needs legal attention and, if so, what type of attorney to retain, how to find the best match, and how to maximize the attorney-client relationship. As an entrepreneur, it is imperative that you understand when to “go legal,” and if you do, how to find and work with an attorney that is the best fit for your issue.

If you are confused about whether your matter needs legal attention or whether you can handle it yourself, try researching the matter on the American Bar Association’s Self-Help online center. Go to Public Resources, then Legal Help, and then Self-Help. The section is organized by state and is a user-friendly resource for determining whether a matter is complex and needs a legal expert, or whether it is something you can handle yourself.

In addition, a good business coach, especially one with a legal background, is a great sounding board to assist you in determining whether an issue is truly legal in nature, and if so, which type of attorney to retain. You would be surprised how many issues appear legal in nature, but turn out to be business decisions instead. So don’t be hasty when deciding whether to go legal!

Not All Attorneys Are Created Equal

So, assuming you have decided to “go legal” and retain an attorney, which one are you going to call? If you broke your arm, would you make an appointment with an allergist? If you had an ear infection, would you seek the advice of a surgeon? Of course not! Yet, everyday, many entrepreneurs contact and use attorneys to handle matters for their businesses that are completely outside the realm of what that attorney specializes in. Yes, attorneys specialize.

First, there is the main issue of whether your matter is civil or criminal in nature. Generally (and, thankfully!), the average legal matter an entrepreneur will face is a civil matter. Thus, you will be dealing with a civil attorney (hopefully in more ways than one). However, civil law is a huge umbrella. Typical small business matters may include incorporation, intellectual property (trademark, copyright, and patent), contract drafting and enforcement, employment or labor law issues, etc. Thus, look for an attorney that specializes in the area you need help with. Don’t be tempted to use your cousin, who is a residential real estate attorney, to assist you with a complex trademark issue. While this may be tempting in terms of saving money, it may (and often does) cost you more money in the long run if the matter is not handled properly. So match the attorney to the problem, and you are on the right track.

If you are unsure what type of legal issue you are even facing, speak up! Talk to a friend or business colleague that is an attorney, and ask his or her advice on the type of issue you are dealing with. You can also call the local bar association, or do some basic internet research to find out the area of law you are dealing with There are several sites that provide basic legal information for non-attorneys, such as Nola, FindLaw and at the Legal Zoom websites. This background research will arm you with enough terminology and basic knowledge to make the best match with an attorney whose legal practice covers the area of your business issue.

Finding an Attorney

So, now that you know the area of law, how do you find a good lawyer that practices in that area? The same way you find any other professional to assist you with your business. Referrals from friends, family and colleagues are a fantastic way to find a reputable attorney. You can also ask your local chamber of commerce, local law school, and local and state bar associations. Still can’t find an attorney that is a great match? Try Martindale-Hubbell’s Lawyer Locator online at http://www.martindale.com

Money Matters

If you’ve never worked with an attorney before, here are some basics of the legal profession with regard to money matters. Most attorneys charge by the hour, so ask what the hourly rate is, and an estimate of how many hours the matter may take. If the matter is small, or a typical one that the attorney handles often, there may be a flat fee for the entire transaction instead of an hourly rate. Be prepared to pay a fee for the initial consultation, which is standard, but not a hard and fast rule. In some cases, the attorney may require a retainer, which is money that you provide upfront that the attorney works off of as the matter progresses.

One thing to consider is that law firms are typically broken down into partners and associates. Partners are essentially co-owners of the firm, while associates are employees, albeit high level professional ones. Who demands the highest rates? Usually, the partners. Thus, ask yourself if you truly need a partner, or can an experienced associate handle the matter. Do you need the best litigator in the firm? Often times, the best litigator may be an associate that is still active in the courtroom, as opposed to a partner that may be more of a rainmaker bringing in business for the firm.

In some cases, for very small matters or legal research, even a law clerk or paralegal may do. Ask who is the best match, and don’t assume it is always the person whose last name is on the door.

Maximizing the Attorney-Client Relationship

I cannot emphasize enough the importance of accurate, concrete, and timely record keeping and documentation when preparing to work with an attorney, and during the relationship. An attorney will need to go on a fact-finding mission in order to best represent you and your business. Help your attorney do his or her job better by coming to the table with all of your ducks in a row. Be prompt in providing requested information, as often legal timelines are at play. Honesty is also vital when working with an attorney. The best attorney-client relationships are built on mutual trust and, thus, withholding information can make or break your case. An attorney needs all of the facts in order to make tough decisions with you about the best course of action for your business matter.

6 Key Questions to Ask Before You Hire a Forclosure Attorney

The 2008 financial crash put a lot of people out of work. It hurt business owners, emptied personal savings, destroyed American home values and lead to massive foreclosures.

What Many Homeowners Don’t Know

The crony network of big banks, financial institutions, government, politicians, the courts, and their corporately owned media have used propaganda, lies and spin doctors to convince Americans that naïve and greedy homeowners crashed the global credit markets in 2008.

They blamed the crash and current economic chaos on homeowners who bought too much house. Yes, some mortgagers made some people believe they could buy more home then they could afford. However, the blame here is often misleading.

Why? Obscene broker commissions were a big part of originating mortgages. Banks were on a tear to bundle, securitize, sell and re-sell mortgages. It lead to irregular mortgage practices.

The bigger truth has been revealed that there are no mortgages to back the mortgage-backed securities. Thus former treasury secretary Hank Paulson told taxpayers, “We must bail the banks out, or else everything will collapse.”

Iceland Let Their Banks Collapse

In fact, Iceland arrested the financial offenders and put in actual safeguards to restore the capital markets and consumer confidence. We in America got the toothless Dodd-Frank bill that makes it appear legislators are minding the store.

Banking and the financial industry needed major reforms. Instead, after the Wall Street financial crash our American banks actually got 38% BIGGER!

Too Big to Fail and Too Big to Jail

Today banks are bigger than before the economic crash and the Dodd-Frank bill does nothing significant to keep Wall Street from trashing the economy again.

Insanity is doing the same thing you’ve been doing but expecting a different result.

Fast forward and today, these quasi-patriotic cronies continue the lies and prop up the fraud on the taxpayer’s dime. They brazenly continue to cover up their partners’ crimes while still receiving a massive transfer of wealth from taxpayers without impunity.

Can You Name One Banker That Went to Jail?

By the way, in 2008 that 800 billion dollar bail out has turned into trillions out the back door of the Federal Reserve straight into bank coufers.

What few Americans realize is that crony capitalists who fleeced institutional investors out of $17+ Trillion, clouded the title on all the mortgages they originated and supposedly sold on the secondary market.

They stole our pension money, wiped out savings and now they’re still after your home. In fact, more than 4.9 million homeowners were foreclosed since the Wall Street crash and there’s more on the way.

American’s need help staying in their home. If the banks and servicers won’t deliver then where do homeowners turn for guidance through this financial maze of fraud and corruption?

Many are programmed to think, “Lawyer, that’s what I need to stand up for me, to sort out the fraud, to keep my family from being kicked into the streets.”

Are Lawyers Best Suited to Standup For Homeowners?

As Americans we’ve been conditioned to believe that the only people who can help us navigate, legal matters are lawmakers and attorneys. Fortunately, in the realm of foreclosure law, there are a few good ones.

However, when it comes to ferreting out truth or fraud in your foreclosure, few attorneys (Real Estate attorneys included) are equipped or have any desire to fight as hard as a regular educated homeowner.

It’s a fact that no one will ever care more about saving your home than you. If staying in your home is not all that important, then most attorneys will do. But buyers beware.

How Do You Choose the Right Lawyer in Foreclosure Matters?

I’ve personally talked with hundreds upon hundreds of homeowners all across America who routinely pay from $1,000 to $30,000+ in attorney’s fees plus monthly retainers and still loose their home. This is more common than you’d think.

I ask homeowners, “What was the attorneys strategy? Was it to help you buy time until you are evicted or actually stay in your home?”

Many homeowners had not thought the end game through. How often do we hire attorneys? There are no Consumer Reports on America’s best foreclosure strategies, fighting bank fraud or attorneys.

Most Americans are busy trying to make a living, caring for loved ones, keeping their heads above water and would rather avoid the legal realms. Who can blame them?

So, unless new information is introduced it makes perfect sense that many homeowners don’t know what to ask to hire an attorney or figure out what makes one effective over the next.

When it comes to defending your home, the following basic questions will get most homeowners started.

The following six questions came from an interview with Justin James. He is the founder of The Foreclosure Relief Network, a company dedicated to helping homeowners stand up for their legal rights.

The company with its network of private investigators, paralegals and law firm was developed to educate and arm the American consumer with the information necessary to protect families and property against the unlawful actions of banks.

Mr. James emphasizes that “Every homeowner who suspects mortgage fraud or are in foreclosure or about to be, needs to be educated.

They need to know upfront if an attorney will work on your behalf or instead see you as a tool to collect fees while they stall things off in court. By asking these basic but key questions, this is knowable.”

You want to interview an attorney just like you would choose a doctor, dentist, CPA or a contractor to work on your home. You want a good fit.

Write Your Questions Down

Mr. James suggests that before you phone or visit an attorney in person, have your questions written down and refer to them.

6 Key Questions to Ask Before You Hire an Attorney to Get a Modification or Defend Your Home Against Banks

  1. Do you feel that the banks and their servicers commit mortgage security and/or foreclosure fraud? (Yes) Correct answer.
  2. Do you believe that if a bank shows up with a piece of paper that alleges it’s the original Note-do you still believe there’s a chance of winning court? (Yes)
  3. Are you willing to challenge the banks claim of ownership of the note, mortgage, chain of title, etc.? (Yes)
  4. Are you willing to cross exam a witnesses? (Yes)
  5. Will you challenge and call a robo-signer as a witness? (Yes)
  6. Are you willing to be that attorney at the party that went up against the big bankers or challenged a court that seems to lean in favor of big banks? (Yes)

If you get so much as one “no” to the above questions then be aware, your situation may be at cross-purposes with this particular attorney.

To the few that are actually competent and not bluffing their way into your back pocket, these basic but telling questions are not difficult to answer.

Other than the details of your situation, each question does not require you as homeowner to expound any further. Either they know it or they don’t. Either they believe banks can do no wrong or believe in justice for homeowners.

When to Walk Away

Bottom line is that if the attorney interviewed is…

  • Not comfortable breaking down your chain of title if necessary
  • Does not believe the bank is ever wrong about a note or mortgage
  • Not willing to challenge the bank or the courts
  • Not willing to cross examine a witness…

Then why are you there? Why should they take your money? Don’t give them a dime Pack your bags and find another attorney or other expert to interview. Consider…

Who’s Paying Your Bill?

You are paying the attorney for a service. You wouldn’t go into a car dealership and say…

“I’ve got $400 a month to spend on a vehicle. Just give me whatever you got to drive.”

You’d be surprised how many people would accept poor treatment when it comes to attorneys. Why?

Because some homeowners are intimated and think, the lawyer knows more. That’s usually true about civil law matters. That’s when a good educated attorney makes sense.

But when it comes to foreclosure, commercial law and challenging the banks-think again. I would challenge you to think outside the box.

Defend Yourself? Really?

Others will say, “YES BUT you can’t defend yourself against fraud or a foreclosing bank. You must have an attorney.” Many homeowners felt that way in the beginning. However…

We now know plenty of average homeowners who’ve been educated and succeeded with the guidance of companies like The Foreclosure Relief Network.

But, what few homeowners at first realize is that attorneys are not traditionally schooled in banking and finance.

In fact, I’ve interviewed some well informed average homeowners who educate their attorneys.

You Deserve to Know What You are Getting for Your Time and Money

If your prospective attorney is the real deal, they will understand your need to interview. That’s why it’s important to know…

  • What does the attorney actually believe about banks and foreclosure?
  • Make them lay their cards on the table. Time is of essence.

You simply want to insure that you are investing your energy and money wisely into a winning strategy and NOT prolonging what many attorneys feel is an inevitable foreclosure.

It’s a little known fact that if you, as a homeowner are educated and have a complete and correct strategy then foreclosure is NOT always inevitable.

Follow The Money

If you hire an attorney that did not adequately answer these questions, then be advised you, your family and your home may be taken for a professional ride.

According to Mr. James extensive experience with homeowners, banks and courts across America, rare is the attorney who will answer your call, who will fight banks on behalf of your homeowner and constitutional rights.

Most attorneys will not intentionally do you harm because they genuinely believe what they believe. That banks can do no wrong is just part of their many years of education and training.

As important, attorneys take an oath to protect corporations. It’s what they do.

That said… put yourself in the attorney’s shoes for just a minute. They have a lot of competition. A title, though impressive is no guarantee of success. They are businessmen and women and for many economic times are tough like many homeowners.

Yes, attorneys enjoy a measure of prestige but that doesn’t pay the bills. Like you and I, they have to make a living or find a way to survive. Just make sure it’s not at your expense.

Who Has More Money? Influence?

A homeowner called Mr. James and was livid because he spent over $7,500 on an attorney who believed that his counsel had defected to the bank side.

Even with documented fraud (common today) as the centerpiece of his defense against the bank, this homeowner lost his home.

The homeowner asks, “Who’s got more money here? The Big American Bank or me as homeowner?”

Do you think you’ll ever see this homeowner’s story on the evening news? It’s not likely. Remember who owns and controls media, advertising and reporting.

Of course I don’t expect you to believe any of this. Check it out for yourself.

Bank Walks Away

Speaking of a good homeowner story, while working on this article one of Mr. James clients called about Quiet Title action which forces a bank to produce valid documents.

The banks have to prove they have ownership before they can foreclose. In today’s heavily securtized financial system that’s more and more difficult for banks to validate unless they manufacture documents from thin air. This is known as robo-signing and yes, it’s illegal.

Gary is out of the Midwest. He applied several times for a modification and then found himself in foreclosure. He suspected bank fraud. Gary began looking and found a young and hungry attorney out of law school.

The attorney had not yet adopted “a bank can do no wrong” attitude. However, the first hurdle was overcoming this attorney’s lack of knowledge on foreclosure fraud, banking and securitization, etc.

Remember few attorneys have this profound knowledge, seek it out or even believe it’s possible to help a homeowner to win. It’s not taught in law school.

To compensate, Gary began working with Mr. James to gain the education, knowledge, legal templates and strategies. This also saved him thousands of dollars in attorney’s research fees.

Gary reported that his homework paid off and the bank walked away. Finding a lawyer willing to listen was the exception in this case. However, keep in mind that…

The Courts Are Available to All Homeowners

Remember, you as an American citizen have constitutional rights.

An attorney is not the only way to stand your ground against bad behaving banks. In fact there are far more effective strategies homeowners can and do take every day.

The majority of homeowners do not realize that with the right kind of education they can in fact represent themselves in court. It’s referred to as Pro Se’, a petitioner or simply an American citizen. Often it’s an effective option. Here’s why.

The fact is that the courts cannot hold a regular homeowner to the same standard as they do lawyers. It turns out that with an effective strategy, presented properly, defending yourself against banks often leads to settlements.

Mr. James reports that he sees it everyday and as the courts become more educated, the tides are shifting in favor of homeowners.

Some homeowners combine the idea of Pro Se’ (without an attorney) along with private mortgage investigations to uncover irregularities that stop foreclosures.

Bottom Line-Trust Your Gut

Remind yourself that if your home is worth defending then no one will ever fight for your home like you can.

After interviewing the attorney, if you can’t say yes, then SAY NO FOR NOW.

Keep looking. If the attorney doesn’t feel right-move on. There are viable alternatives. Do your homework.

Finally, if you have a compelling enough why and are willing to do a little legwork, then there are resources that can help you to learn how to stay in your home and prevail even without an attorney.

Attorneys

These days, people seem to need an attorney for any and everything. Whether it be buying property, divorce, civil lawsuits, criminal defense, even buying a horse. Attorneys are available for every need and can be found to fit any budget.
Many people find that choosing an attorney can be a painful process. There are so many things to consider including experience, price, and availability. One of the biggest problems for people is that they cannot find an attorney suited for exactly what they need and end up severely disappointed.

There is no shortage of attorneys anywhere. Shop around, ask questions, and research the right kind of attorney for you. Choosing the right attorney makes a huge difference in the outcome of your issue. If you need an attorney to defend you in court, make sure he or she has been trained in criminal law and also make sure they have dealt with a situation similar to your own. Some attorneys specialize in felony cases, others in misdemeanors. If your attorney has previously been through the process that you will soon go through, it will be much easier. Your attorney can coach you and guide you if you are confused or indecisive. Other attorneys do not deal in lawsuits or crimes, they are specifically trained to aid in the creation of contracts. Any time you buy or sell something, you usually have to sign a contract agreeing to certain terms, these attorneys helped the seller or buyer come up with these terms and write them out officially. There are attorneys who specialize in different areas of business such as restaurants, appliances, or pets. Their job is to create a contract, or terms of sales agreement, in which their client will not be liable should any malfunction occur. Not only do these attorneys create the contracts, but they can also help you understand them before you sign them. Unfortunately, the numbers of divorces are rising and thus the number of divorce attorneys is rising with them. These attorneys are trained to aid in the process of divorce and in the process of distributing the couple’s assets. They work with you and the other attorney to come to an agreement between the couple or in court, should it lead there. They can analyze the marriage and suggest an appropriate compromise.

In any situation, attorneys can be expensive. Some offer their services for free to those who qualify and others are very expensive. Their rates, however, do not decide their availability. Expensive attorneys and cheap attorneys are very busy and, no matter what their cost, may not be available when you need them while other attorneys may have very open schedules.

People’s needs for an attorney may vary and the attorney market reflects these needs. Do your research, ask friends for recommendations, and ask questions before you decide. You need to be comfortable with your attorney and confident in his or her abilities because they are not working alone, they are working with you.

Hiring an Estate Planning Attorney – 7 Things to Know Before You Do

The Top 7 Things to Know Before You Hire a Wills, Trusts or Estate Attorney

You should consider several different questions before you sign an agreement with any attorney, but this is even more important when it comes to hiring a wills, trusts or estate attorney. This attorney will address sensitive family and financial issues that range from helping you pass assets on to your children and close family members, to protecting you from unnecessary taxes, to helping you determine the best person to make medical decisions on your behalf. This is why you need to know the answers to the seven questions discussed in this special report.

#1: Does the attorney offer a free consultation and will he explain what will happen at this initial meeting?

An attorney should offer you a free, no hassle consultation. First, meeting him or her will help to put you at ease and will give you a chance to discuss your case in a frank manner. You will also have a chance to ask questions and to determine if this is an attorney whom you can trust to address your legal concerns. Second, it gives the attorney the opportunity to ask you questions and to learn more about your case. You might discover that you do not get along very well with this attorney. Conversely, the attorney may realize that your case is not the type that he wants to take or is not related to his field of expertise. For this type of relationship to work in an effective and productive manner, both you and your attorney need to be able to work together comfortably.

#2 Does the attorney offer a flat fee for the services that he will perform and will this be put in writing?

Every attorney should use a written agreement, which is known as a retainer agreement. In this agreement, the attorney should clearly state the fee that you will be charged and honor this agreement. The attorney should clearly explain the fee, the services that he will perform, and should also clearly explain the options that are available to you to pay this fee. You should not sign this agreement until you understand how much you will be charged, what the attorney will do for you, what information he will need from you, any deadlines involved, and any other obligations that you are required to perform. You should always feel free to ask the attorney questions if you do not understand something in the agreement or otherwise. You should also ask about the expected completion of the work.

A flat fee encourages the attorney to work in an efficient manner and also prevents you from receiving an unexpectedly large bill upon the completion of the services. This can happen if it takes the attorney longer to complete the work than he initially thought.

#3 Does the attorney guarantee his service? Will he refund your money if you are not completely satisfied?

Your attorney works for you and is being paid to help you plan your estate. You should not tolerate an attorney that will not refund your money if you are not completely satisfied with the work. Additionally, your attorney should be willing to revise your documents that he is initially drafting. However, after he has drafted them and you have expressed your satisfaction, you should not expect the attorney to revise these documents unless you have kept the attorney on retainer. Please note that no attorney will guarantee results if your matter is being litigated in court.

#4 Will the attorney help you make wise choices about insurance, saving for your children’s college, and retirement planning?

Your attorney should help you make decisions about the most appropriate documents and vehicles to accomplish your estate planning objectives, but should also assist you with buying insurance, saving for college, planning for retirement, and all of the other challenging decisions that will arise. In fact, your attorney should have a team of trusted advisors in place in order to help you make the best possible decisions.

If your attorney is unable or unwilling to advise you on these matters, then you should seek out an attorney who will do so. Having such an attorney will prevent you from making expensive and unnecessary mistakes, and will save you time in having to hunt for additional advisors.

#5 Does your attorney have a process in place to respond to your phone calls and emails quickly in case questions arise? Will your attorney keep you informed about how your matter is progressing?

Your attorney should be able to answer your phone calls, emails, and questions quickly. You are paying this attorney for service and for professional guidance and attention, not just for the drafting of your estate planning documents. How often have you heard from friends and loved ones about an attorney that takes days, weeks or more to respond to phone calls? Do not tolerate such unprofessional behavior. Ask your attorney about this and if he is unable to convince you that he has such a process in place, then continue your search for an attorney that will get back to you in a time efficient manner.

#6 Does your attorney have a process for helping you capture and pass on not only your physical and financial wealth, but also your intellectual and spiritual assets, as well as what is important to you?

Some attorneys recognize that wealth is not measured solely by your net worth, by the value of your brokerage and retirement accounts, but is also measured by who you are as a person. Your intangible assets, such as lessons that you have learned over a lifetime of building wealth, or the wisdom you have accumulated through your life experiences that you would like your children to know more about, are very valuable, almost priceless. These should not be forgotten.

When deciding whether to hire an attorney, be sure to select someone who will help you capture, document, and pass on all of your assets, including those intangible ones that are often overlooked.

#7 Will your attorney make sure that your assets are structured and owned in the right way?

You could hire an attorney at the largest firm around and pay him an exorbitant fee, but if your assets are not titled and owned in the right manner, then the plan that he created will not work for you. The attorney that you plan to hire should be willing to ensure not only that your documents are drafted correctly, but also that your assets are structured properly.

Do not be afraid to ask these questions before you hire an attorney to work with your family on legal planning matters. When you find an attorney that says yes to these questions, hire him or her quickly before the practice fills up and he or she stops taking on new clients. Asking these questions and hearing the right answers before you engage a lawyer to work on your wills, trusts, and estate will ensure you put in place legal planning for your family that will work when you need it.

Attorney Negligence: Did It Cost You Your Case?

Attorney Negligence: Did It Cost You Your Case?

Statistics show that legal malpractice claims have become more frequent for the last three decades. There are several instances where a client loses confidence in the abilities of his lawyer because the latter made matters worse instead of providing a resolution to the problem. If you suffered damages due to your lawyer’s wrongful conduct, may it be due to his negligence or intentional act, you may consider the option of bringing a legal malpractice action. However, proving a legal malpractice claim could be challenging as it often involves extensive search for appropriate arguments and corroborating evidence. Despite the existence of actual damages, there are other factors that need to be examined to determine whether a claim of legal malpractice should be filed.

Damages

If the client can prove that the attorney’s negligence or wrongful act resulted in damages, such damages could be recovered by filing a legal malpractice lawsuit. However, there are cases where damages are not easily ascertainable. In such cases, the California Supreme Court held that recovery of damages could still be awarded even if the existence and the cause of such damages are difficult to determine. On the most part, however, damages that are based on speculation or mere threat of future harm are usually not awarded by California courts.

Clients are likely to be more successful with the recovery of so-called “direct” damages. These are damages that have been the direct result of an attorney’s negligence or misconduct. For instance, in a case where an attorney wrongfully advises his client to file for bankruptcy and sell his home for a lower price than its market value, the court is likely to award the client damages to the extent of what he lost from the sale. In another case, a California court awarded damages to a physician due to the loss of his good reputation and the increase in premiums for his medical malpractice insurance due to his attorney’s negligence.

If the client can show clear and convincing evidence that the attorney can be held liable for fraud, malice or oppression, even punitive damages may be recovered, see California Civil Code § 3294. However, client-plaintiffs who have been denied the award of compensatory damages will not be entitled to punitive damages. In general, it is more difficult to prove the existence of punitive damages as courts usually require specific facts to prove that the attorney acted with oppression, fraud or malice. In one rare case, the court of appeals awarded punitive damages due to an attorney’s “conscious disregard of plaintiff’s safety”. In that case, the attorney, who was also a physician, advised his client to postpone the surgery in order to strengthen their medical malpractice lawsuit even though he knew about the urgency of a surgery.

Furthermore, if the client-plaintiff lost his claim for punitive damages in the underlying action, it is very unlikely that courts will award him punitive damages in a legal malpractice lawsuit. The California Supreme Court held that such damages are based on speculation and plaintiffs should not be entitled to damages that cannot be proven with certainty. Otherwise, lawyers would be exposed to more risks of liability, resulting in an increase in the cost of malpractice insurance.

Attorney Negligence

In a legal malpractice action based on the attorney’s negligence, the courts will look into four factors. First, the client-plaintiff needs to show that the attorney-defendant has the obligation to apply the skill, prudence and diligence required from his profession. Second, there has to be proof that the attorney failed to fulfill the above mentioned duty. Third, the client-plaintiff also needs to show that the attorney’s breach of his duty resulted in the damages he suffered. Lastly, as mentioned above, the client-plaintiff needs to present evidence of the existence of such damages and not just mere speculation. According to the California Supreme Court, client-plaintiffs who are facing criminal charges need to prove their actual innocence before they can bring an action against their attorneys. This way, the clients who have been found guilty by a criminal court would not be allowed to go after their attorneys and recover civil damages. An exception to this rule is a malpractice action that is not based on the quality of legal services provided by the attorney. For instance, a fee dispute between the client and the attorney can still be pursued in court even if the client was charged by a criminal court because such a dispute merely involves the attorney’s billing practices.

Typical Cases of Malpractice

The most common basis of malpractice action is the failure of an attorney to adhere to the deadlines set by the Code of Civil Procedure as well as other statutory filing deadlines. As mentioned above, attorneys are expected to apply the required skill, prudence and diligence in providing legal services. The failure to file a lawsuit, initiate a proceeding or bring an action within the so-called statutes of limitation could constitute a strong claim for legal malpractice.

An attorney can also be held liable if the court in the underlying case issues a default judgment against his client due to his failure to file a pleading, see California Code of Civil Procedure § 585. Furthermore, if he fails to relieve his client from the default by filing a motion in a timely manner, namely within six months after the issuance of the default judgment, the client would have another ground to file a malpractice lawsuit against him assuming that the motion could have been successful.

It is also possible to hold an attorney liable for not raising viable defenses in a legal action. In such cases, however, the client-plaintiff needs to show that the defenses that were not asserted can be proven in court and would have led to a more favorable result. In one case, for instance, a California court denied the award of damages to the plaintiff because the attorney decided to leave out weak defenses.

In general, attorneys have an obligation to adhere to their clients’ preferences particularly with regard to legal decisions involving their substantive rights. The failure to follow these instructions can be a basis for a malpractice action. In one case, for instance, a California court held an attorney liable for his failure to file a complaint despite of his client’s specific instructions to do so.

However, courts have held that an attorney can make decisions without his client’s consent if authority has been given in an agreement. Decisions involving procedural matters are also instances where attorneys can act independently. California courts have not yet drawn the line as to how to differentiate procedural matters and legal decisions. Thus, establishing a legal malpractice action based on the failure to adhere to clients’ instructions could pose several challenges. On the other hand, courts have consistently held that attorneys are not obliged to follow instructions that can result in an illegal or unethical conduct. Furthermore, an attorney can reject a case if he determines in good faith that the case lacks merit.

Another frequent basis for a legal malpractice action involves settlements. According to the California Rules of Professional Conduct, an attorney needs to provide his client specific information pertaining to the settlement such as the amount, and the terms and conditions of the offer, see California Rules of Professional Conduct Rule 3-510. To be successful with a malpractice action, a client-plaintiff needs to prove three things. First, there has to be evidence showing the attorney’s failure to inform the client about the settlement (or parts of the settlement). Second, the client-plaintiff needs to attest that he would have accepted the settlement offer if he had known about it (or had sufficient information about it). Last, evidence should be presented that the client would have benefited more from the settlement than the actual outcome of the case. The amount of damages in such a case will be determined by the difference between the actual outcome of the case and what the client-plaintiff would have received from the settlement offer.

Statutes of Limitation

In general, clients can file a legal malpractice lawsuit one year after the discovery of circumstances that support the malpractice claim or four years after the attorney’s act of misconduct, whichever comes first, see California Code Civil Procedure § 340.6(a). There are, however, exceptions to this general rule that could prolong the periods of limitation, giving plaintiffs more time to file a lawsuit. For instance, periods where the plaintiff is physically unable to bring a legal malpractice action against his attorney will be considered as tolled. The same applies to cases where the attorney-defendant is still representing the client-plaintiff in the same case where the attorney’s misconduct is at issue. In such cases, the time limit for bringing a legal malpractice action could be exceeded.

Seeking Legal Advice

The success of a legal malpractice lawsuit will mainly depend on the evidence and arguments which will support the claim that the attorney has been negligent in representing his client. Even procedural matters such as determining the applicable deadline could pose some challenges as well. Thus, in cases that involve complex issues, consulting a lawyer who is experienced in legal malpractice cases is inevitable in order to prevent the occurrence of further damages to the client.

Sources:
California Code of Civil Procedure
California Rules of Professional Conduct

For further reading:
George Lindahl J.D., California Torts, 2012
Suzan Herskowitz Singer, Attorney Responsibilities & Client Rights, 2003
Robert W. Schachner Esq., How & When to Sue Your Lawyer, What You Need to Know, 2005