New Jersey Legal Malpractice FAQ

Proving that a lawyer committed malpractice can be complicated. The simplest element of a malpractice claim is usually proving that an attorney-client relationship existed between you and the lawyer (in other words, the lawyer owed you a duty of care). It is also necessary to prove:

-Breach of duty. Lawyers make mistakes. In some cases, the client will be unhappy with the outcome even if the lawyer did not make a mistake. To prove malpractice, you must show that the lawyer’s mistake amounted to negligence—that the lawyer acted in some way that a reasonable lawyer would not.
-Financial loss. You must also show that you experienced some financial loss because of the lawyer’s negligent mistake. Sometimes, it is simple to show loss—for example, if your client refused to pay over your settlement award. In cases where your claim is based on the fact that you would have won the underlying case “but for” the mistake, proving the loss is much more complex

Lawyer malpractice can take many forms, including:

-Missing deadlines,
-Failure to adequately prepare for a case or researching the relevant law adequately,
-Stealing or misappropriating client funds,
-Settling or resolving your case without your permission,
-Breaching the duty of loyalty by representing you even though the lawyer had conflicts of interest,
-Breach of contract,
-Illegal or unfair billing practices,
-Breach of confidentiality.

The problem with a lawyer who isn’t returning your calls is that you probably do not know whether your lawyer is working diligently on your case. A lawyer’s failure to promptly return phone calls might mean that you should evaluate the professionalism of your lawyer and retain someone else instead. If you are reluctant to fire your lawyer, try emailing your lawyer and noting how long it’s been since your phone call has been returned. This will begin to create a paper trail if something goes wrong in the future.

Proving that your lawyer’s malpractice caused you to lose an underlying case requires knowledge of two areas of law:

-Legal malpractice law, and
-The area of law relevant to your initial case (for example, personal injury law or medical malpractice).

In some cases, we will essentially begin your initial case from the beginning to establish how a reasonable lawyer would have handled your case. We then have to show how your lawyer’s malpractice impacted the results. To win compensation, we must show that it is “more likely than not” the case that you would have won, or won additional compensation, absent your lawyer’s malpractice.

Lawyers frequently make estimates about what a case is worth at the outset. Any number of factors can contribute to what a judge or jury actually awards. Your lawyer does, however, have a duty to represent you competently and zealously. If your lawyer failed in that duty and that’s why your compensation award was lower than expected, you may have a case.

In short, the answer depends upon how the lawyer acted and whether the lawyer represented you competently. Friendship with other lawyers involved in a case is not, in and of itself, a conflict of interest. Lawyers who work in the same community often know each other and most are able to avoid any conflict of interest even if a friendship does form. Close relationships that impact the way your lawyer is representing you can, however, create an actionable conflict of interest.

A lawsuit is usually not your first remedy in a billing dispute. Our lawyers can analyze your fee agreement with your lawyer to determine whether your lawyer abided by the terms you agreed upon when preparing the bill. In some cases, it may be a simple matter of asking your lawyer to provide a breakdown of the charges and documentation supporting the expenses.
We may also be able to negotiate a lower fee. If the lawyer is unwilling to negotiate and the bill is above and beyond what you agreed to pay, we have several options. We can:

-Sue your lawyer for a refund if you have already paid the bill,
-Sue your lawyer for breach of contract (breach of your fee agreement),
-File a complaint against your lawyer with the New Jersey lawyer disciplinary committees.

Generally, yes. Clients may fire their lawyer at any time unless the judge has ordered otherwise (which sometimes happens if you are about to begin trial and you have no legal basis for firing the lawyer). Your lawyer is required to provide you with your client file—our lawyers can help you obtain this and provide a formal letter to your old lawyer terminating the relationship.

We can also help you understand whether you will be required to pay your old lawyer for services rendered up until the point when the relationship was terminated (you may be required to compensate the lawyer for expenses and time spent working on your case, depending upon your fee agreement).