A conflict of interest is a simultaneous representation of parties with opposing interests without their consent. The following are conflicts of interest that can lead to a malpractice claim:
There are several actions a lawyer can commit leaving him liable for malpractice:
Consent to an action that is considered malpractice is a defense only if the client’s consent was informed and only if consent could be a defense to that particular action. Some actions require the informed consent be in writing.
Consent is informed only if you were fully knowledgeable about all the possible risks and consequences of a legal action. Suppose you are charged with a crime and the prosecutor is offering a plea deal. After consulting with your attorney, you accept the plea deal. If your attorney explained all the legal consequences of trial and possible sentences a judge could give, your consent to the plea deal would be an informed consent.
Informed consent is only a defense to legal malpractice for certain actions. Most strategic actions, such as accepting a plea bargain or a settlement, can be defended if informed consent is given. Confidentiality and scope of representation can also be waived through informed consent.
However, other actions will always be considered legal malpractice regardless the client’s consent. Examples of actions that cannot be waived through consent include: negligence, disclosure of representation to third parties, and sex with a client,
The first thing you should do is file a complaint with your attorney's State Bar Association. The Bar Association is an organization that licenses and regulates attorneys for each individual state. The Bar Association cannot, however, help you recover any damages you've suffered. To recover damages, you have to sue your attorney in court.
In some cases, the Bar Association will take no action against your attorney. This should not prevent you from suing your attorney in court because the Bar Association uses a different standard to judge attorneys than a court would use. Victims of crime will often recover damages from the criminal defendant in civil court even if the criminal court finds the defendant not guilty. The same holds true for the Bar Association and malpractice suits; even if the Bar Association doesn’t discipline your attorney, you can still recover damages.
Proving that your attorney committed malpractice can be difficult. You have to know exactly what constitutes malpractice and show that your attorney actually committed malpractice. An experienced malpractice attorney can help you determine whether or not you're a victim of attorney malpractice. Additionally, a lawyer can file a lawsuit on your behalf and help pursue case in court if necessary.
Last Modified: 11-22-2017 09:01 PM PSTLaw Library Disclaimer
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