LEGAL MALPRACTICE

We are one of a few law firms that actually represent clients against their former or present attorney for legal malpractice throughout all of New York State. We do not take the suing of a lawyer or a law firm for legal malpractice or any other related claim(s) lightly. We only file cases where we truly believe that legal errors or mistakes have occurred and but for those errors or mistakes you have incurred actual harm and financial damages. Not all mistakes and errors that lawyers can make will legally form the basis for a legal malpractice action or other related claim(s).
 

If a lawyer's mistake or error has caused you actual harm, the law does permit the client to be fully compensated for their financial harm commonly referred to as "pecuniary losses". In legal malpractice actions the law further permits interest at the rate of 9% to be recovered and added to the amount of the actual financial loss to the client. The interest is measured by going back to the date the legal malpractice occurred. 

Legal or lawyer malpractice is a growing area of the law. In the not to distant past such actions were rarely filed. Even today, legal malpractice law suits are not particularly favored by the trial courts and, of course, by many lawyers themselves. I have included some common errors and mistakes that  lawyers can and do make which may be the basis for a legal malpractice action. These errors and mistakes may take the following form: 

            Failure to follow or know the law or telling the client something that isn't true according to the law. Other examples: 

• Inadequate  knowledge or investigation into the underlying facts, the actual amount  of available insurance coverage(s), not identifying of all those who  are liable to the client, the amount of the full assets belonging to  those liable to the client, the untimely disclosure to the client of all  their related claims and legal rights to collect from the liable party  for all their lawful damages;

• Missed  liens or rights to subrogation or the denial of other benefits a client  is or could be receiving which should have been known and addressed  prior to any settlement of the law suit;

• Inadequate  settlement of a client’s claims or the settlement of valid claims for  less than full value because of the malpractice or errors committed by  the lawyer;

• Missed  deadlines by failing to timely file a law suit, make a claim for  under-insurance and/or uninsured coverage, filing a Notice of Appeal,   complying with prior orders of the court, timely paying settlement  proceeds, failing to file a Notice of Claim within 90 days after the  incident against governmental entities or municipalities or school  districts and/or failing to commence a law suit within a year and 90  days after the incident against governmental entities or municipalities  or school districts;

• Failure  to properly present and/or to preserve all claims and rights of the  client prior to and during the trial, including but not limited to  making or timely making important motions or asserting counter or cross  claims, carefully reading important documents and pleadings, timely  noticing the other side of experts who will testify at trial, presenting  all material evidence in support of the claims of the client and calling to testify all material witnesses;

• Conflicts of Interest;

• Errors or omissions that resulted in a lawsuit being dismissed or prevented claims from being asserted;

• Improper legal advice that you relied upon to your detriment and which caused you actual harm;

• Dishonesty or deceit in a pending legal action in violation of section 487 of the Judiciary Law; 

• Breach of fiduciary duties such as loyalty, self dealing by placing the interests of the lawyer above those of their client or by revealing a client’s confidential or privileged communications or information; 

• Failure  to inform a client or to get the consent of a client on significant  matters involved in the law suit such as settlement offers and demands;

• Failure to follow the lawful instructions or directions of the client.

There are many other instances of lawyer errors and mistakes that can form the basis of a legal malpractice or other action against a lawyer that are not listed above. If you have any questions about what you believe were errors and mistakes or other conduct committed by your former or present lawyer, it is best to call the New York or New Hampshire phone numbers found on the home page and "talk"directly with me.  

                                OTHER TYPE ACTIONS AGAINST LAWYERS 

In addition to a client’s claim of legal malpractice against their former  or present lawyer, if a lawyer "intentionally" engages in conduct against their client's interests, the law may provide the client with additional legal remedies against the lawyer. They may include punitive damages or treble damages. Three of these additional legal remedies may be for the lawyer's “breach of fiduciary duties” owed to the client or for a violation of "section 487 of the  Judiciary Law” which are briefly discussed below. 

                              BREACH OF CONTRACT/RETAINER AGREEMENT

Your written retainer agreement with a lawyer to represent you is a valid written contract. Its contents may be regulated by Statute or Rule. Typically, the contract specifically spells out what the lawyer is to do and what the client is to do. All contracts have an "implied" requirement that each party will exercise "good faith" in the performance of all their part(s) of the contract, even if it is not specifically written into the contract.

                                          BREACH OF FIDUCIARY DUTIES

The law provides and requires that the attorney-client relationship be and is very special and unique type of relationship. The attorney-client relationship is required to be, and must be, based on the utmost trust and loyalty owed to the client by the attorney. Anytime an attorney puts their own self interests (financial or  otherwise) above those of their client or when the attorney breaches the client’s confidentiality, loyalty or trust, the law in New York may permit a claim and action to be filed against the attorney for “Breach of Fiduciary Duty”.

A  claim for a breach of fiduciary by the attorney may be a separate claim in addition to a claim for legal malpractice if the facts and damages that support it are different. In serious breach of fiduciary duty cases, often involving intentional or unconscionable behavior by the attorney, you may have any legal fees you paid the attorney refunded by a process know as disgorgement of their fees. This process may result in a return of all or part of the legal fees paid to the attorney. 

                            VIOLATION OF SECTION 487 OF THE JUDICARY LAW

In addition to a breach of fiduciary duties owed to a client, there is also a very old rule dating all the way back to the times of the King of England. Present day there is a statute that follows that same rule and it is contained in section 487 of the Judiciary Law. It concerns an attorney's deceit directed towards their own client or to any other party to a pending action or to the Court itself.  

It applies only to the intentional conduct of an attorney during a pending legal action and not to mere negligence of an attorney. A client who is able to prove a violation of this statute by their former or present attorney may be entitled to recover from the attorney three (3) times the value of their actual pecuniary damages. The statute reads: 

“An attorney or counselor who:

             1.  is guilty of any deceit or collusion or consents to any deceit or                 collusion, with intent to deceive the court or any party; or,

              2. Willfully delays his client's suit with a view to his own gain; or 

              3. Willfully receives any money or allowance for or on account of                any money which he has not laid out, or becomes answerable for

Is guilty of a misdemeanor, and in addition to the punishment prescribed  therefor by the penal law, he forfeits to the party injured treble damages, to be recovered in a civil action.” 

Even though its violation by a lawyer is a class B misdemeanor, it is rarely, if ever, "criminally prosecuted" by any District Attorney. It can be prosecuted by you in a "civil action".  

If you have any questions about whether or not your attorney may have committed legal malpractice or breached their contract/retainer with you or breached their fiduciary duties to you or engaged in any conduct that you believe may be the basis for a violation of section 487 of the Judiciary law, your best course of action is to call me directly at either of the phone numbers on the Home page so we can "talk" about them.  

The  materials contained in this website are for information purposes only  and not meant to be and should not ever be construed as legal advice. Viewing this website is not intended to nor does it ever create any attorney-client  relationship. Our practice and all information on this website is limited to the laws of the State of New York. This is attorney advertising.