"When All Else Fails - Sue The Lawyers"
The duty to disclose the attorney's failure to properly represent a client is an obligation which must be performed by every attorney who is faced with the task of informing their client that as a proximate result of their failure to perform they have failed the client and caused damage..
When a lawyer causes a client financial damage which is proximately resulting from their performance - that attorney continues to have a duty to inform the client of that error - and that attorney must advise the client to seek legal advise.
Contemporaneous with the moment the attorney discovers the error a conflict arises because when the error is discovered - the attorney then knows that his client has a potential claim againt the lawyer thereby creating a conflict of interest.
While painful to the attorney to discover that they have caused a client damage it is ethically required that the attorney communicate the sane to the client and advise the client of their rights on how to proceed should the client so decide to do so.
This obligation to communicate by the attorney should be communicated in a direct manner contemporaneously with the time of discovery and the attorney is well advised to be sure that they have performed their obigations leaving no doubt that the client has been notified.
Simple as this sounds the mandatory task is sometimes neglected.
In rare instances an attorney may attempt to concealed the error - but concelment will not immunize the attorney. Generally - although the time to file a claim for Legal Malpractice is limited to three years from the time of the occurance or three years from the last day when an attorney client relationship existed, but when the attorney has concealed the error from their client
that concealment by the attorney will not bar the client from proceeding upon discovery of the concealment, because an attorney owes a duty of disclosure of these errors to their client when they become known.
Thursday, July 11, 2013
Tuesday, March 15, 2011
When All Else Fails - Sue The Lawyers
It is not a newly discovered idea to sue the lawyers.
The notion that we should sue all the lawyers has been around for a long time, but in the last 20 years the practice area of legal malpractice has greatly increased.
And at the end of the day - when desired results are not obtained, it is now not an uncommon consideration that "when all else fails" consideration shifts to the option of bringing a civil action against the very same person(s) who you once trusted and confided in to bring you desired results.
It is no longer an isolated action - it is a common place event and occurrence of daily litigation to find legal malpractice actions filed not only in New York City, but everywhere and anywhere a courthouse is located.
After all - even the best attorneys make mistakes!
But the option of bringing a lawsuit against an attorney requires more than the opportunity for vented anger of revenge to succeed - and the fact remains that while everyone can make a mistake not every negligent acttion by an attorney will constitute a claim for legal malpractice.
Lawyers are not insurer!
Lawyers can make a mistake of judgment - and they can be negligent but the negligent action may not be the cause of the harm.
To constitute a claim for legal malpractice the individual or entity who files the action must initially have had an attorney client relationship.
The attorney - or law firm, must have had a duty which was not executed consistent with good and accepted practice which is a cause of pecuniary loss.
Said another way - the conduct complained of must be capable of being proven that "but for" the claimed error you would have not been damaged.
And that omission must be a proximate cause of your damage.
And the claim must be filed within 3 years of the time when the claimed omission took place or within 3 years after the last date when the attorney or lawfirm performed services to the client in reference to the specific transaction which is the subject of the legal malpractice claim.
And while this sounds simple in concept, arriving at a successful result - often is not that easy to do because in the defense of such claims it if is possible to demonstrate that any one of the elements cannot be proven, the action will fail.
This purpose of this blog will to provide general information about this interesting pracrtice area of the law so that the issues are better understood and to present a discussion on emerging issues.
To be continued........Sherwood Allen Salvan
The notion that we should sue all the lawyers has been around for a long time, but in the last 20 years the practice area of legal malpractice has greatly increased.
And at the end of the day - when desired results are not obtained, it is now not an uncommon consideration that "when all else fails" consideration shifts to the option of bringing a civil action against the very same person(s) who you once trusted and confided in to bring you desired results.
It is no longer an isolated action - it is a common place event and occurrence of daily litigation to find legal malpractice actions filed not only in New York City, but everywhere and anywhere a courthouse is located.
After all - even the best attorneys make mistakes!
But the option of bringing a lawsuit against an attorney requires more than the opportunity for vented anger of revenge to succeed - and the fact remains that while everyone can make a mistake not every negligent acttion by an attorney will constitute a claim for legal malpractice.
Lawyers are not insurer!
Lawyers can make a mistake of judgment - and they can be negligent but the negligent action may not be the cause of the harm.
To constitute a claim for legal malpractice the individual or entity who files the action must initially have had an attorney client relationship.
The attorney - or law firm, must have had a duty which was not executed consistent with good and accepted practice which is a cause of pecuniary loss.
Said another way - the conduct complained of must be capable of being proven that "but for" the claimed error you would have not been damaged.
And that omission must be a proximate cause of your damage.
And the claim must be filed within 3 years of the time when the claimed omission took place or within 3 years after the last date when the attorney or lawfirm performed services to the client in reference to the specific transaction which is the subject of the legal malpractice claim.
And while this sounds simple in concept, arriving at a successful result - often is not that easy to do because in the defense of such claims it if is possible to demonstrate that any one of the elements cannot be proven, the action will fail.
This purpose of this blog will to provide general information about this interesting pracrtice area of the law so that the issues are better understood and to present a discussion on emerging issues.
To be continued........Sherwood Allen Salvan
Subscribe to:
Posts (Atom)