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:
- Simultaneous representation of a man and a woman in divorce proceedings.
- Simultaneous representation of two businesses who are suing each other.
- Representation of a client whose interests conflict with those of a present or former client.
- Lawyer’s private interests conflict with his professional interests – taking a case against a close personal friend.
- Lawyer, or anyone related to or associated with the lawyer, has a direct or indirect financial interests in the outcome of the case.
What Other Actions by a Lawyer Can Lead to a Malpractice Claim?
There are several actions a lawyer can commit leaving him liable for malpractice:
- Mishandling Client Funds – Each client is entitled to his own separate client trust account separate from lawyer’s or law firm’s accounts.
- Holding Himself Out as Specialist – If a lawyer holds himself out as an specialist in a particular field of law and does not possess the necessary knowledge to qualify as an expert, he could be liable for malpractice.
- Ignoring Client’s Requests – If a lawyer ignores the requests, demands, or desires of his client which results in a case settling in a manner you did not approve, you might have a malpractice claim against that lawyer.
- Failing to File Claim – If a lawyer fails to file your claim in a timely manner, causing you to lose a chance to win your case, if you can prove that you would have won the case if it had been filed on time, then you should be able to recover damages.
- Failing to Disclose a Settlement – Lawyers cannot settle cases without a client’s approval unless the client had already given the lawyer specific instructions about future settlement offers.
- Conduct Business with Client – A lawyer should not conduct business transactions with a client, benefit from a client’s loan or credit, or guarantee, or acquire a financial interest in a client.
- Manage Another Company – A lawyer should not occupy a position within a company that would result in confusion as to whether he is acting as a lawyer or a manager at any given time.
- Investing Client Funds – A lawyer should not invest the client’s funds in a venture related to or associated with the lawyer or the law firm for which the lawyer works as well as any other venture in which the lawyer has a vested personal interest.
What If I Gave My Attorney Permission to Commit an Action That Constitutes 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,
I Think My Attorney Has Committed Malpractice. What Should I Do?
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.
Do I Need a Lawyer?
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.