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Clemenza Concierge

Let down by a professional you hired

When your lawyer is the problem

It's a hard position to be in. You hired a lawyer because you had a problem, and now the lawyer is part of it: the case was dismissed because papers were never filed, a deadline passed while your calls went unreturned, or a settlement was accepted that you never agreed to.

You may feel awkward asking another lawyer to look. You should not. Lawyers are held to rules for exactly this reason.

Tell us what happened

What usually has to be shown

In most states, a claim against your lawyer needs three things. First, the lawyer was acting for you. Second, the lawyer failed to use the skill and care a reasonable lawyer would have used. Third, that failure caused you a loss you can measure.

The third part is often the hardest. If the mistake lost you a case, you usually have to show you would have won, or done better, had the lawyer done the job properly: proving the original case inside the new one.

Common ways it happens

The situations that most often lead people to ask:

  • A filing deadline missed, so the case could never be brought.
  • Your clear instructions ignored.
  • A settlement accepted without your permission.
  • A conflict of interest, meaning the lawyer was also acting for someone whose interests were against yours, without telling you.
  • Money held for you, in what is called an escrow or trust account, used or not returned.
  • Advice on a deal or a will that missed an obvious problem.

What to do now

Ask the lawyer, in writing, for a copy of your file, and keep every email and letter. Don't sign a release, a new fee agreement or anything else that changes your arrangement until someone independent has looked at it.

Sometimes the original matter can still be saved, for example by an appeal or a request to reopen it. That may matter more than a claim against the lawyer, and it can have its own short deadline, so say so if a decision in the original matter is recent.

Money a lawyer took or never returned

If a lawyer took money that belonged to you, several routes may be open: a claim against the lawyer, a complaint to the body that disciplines lawyers, and in many states a client protection fund that reimburses clients of dishonest lawyers (New York's is the Lawyers' Fund for Client Protection). Using one doesn't rule out the others.

What helps to have ready

  • Your retainer or engagement agreement with the lawyer.
  • The papers from the original matter, including any dismissal or decision.
  • Your emails and texts with the lawyer, especially any about deadlines or settlement.
  • Bills, statements and proof of every payment you made.
  • The name of any new lawyer now working on the original matter.
  • A short timeline of what you asked the lawyer to do and when.

Where we fit in

A lawyer at our firm looks at your case. If we take it and another firm is better placed to lead it day to day, we choose that firm from firms we have vetted for their expertise and track record, and we stay responsible for your case with them.

Questions people ask

I disagree with my lawyer's strategy. Is that malpractice?

Usually not by itself. Lawyers are allowed to make reasonable judgment calls that don't work out. The question is whether the choice was one no careful lawyer would have made, and whether it cost you.

My lawyer says the mistake can be fixed. Should I wait?

Sometimes a mistake can be corrected. But the lawyer who made it has their own interests at stake, so get an independent view quickly, because waiting can let a time limit run.

I only want my fee back. Is there a simpler way?

Sometimes. Some states, New York among them, have programs that resolve fee disagreements without a lawsuit. If your concern is really the bill rather than a loss, that may be quicker.

More about let down by a professional you hired

This page explains things in general terms. It is not legal advice about your situation, and the law differs from state to state.