My Attorney Screwed Up My NYC Personal Injury Case…What Are My Rights?

If your attorney screwed up your NYC personal injury case, you might be the victim of legal malpractice. If your attorney’s malpractice costs you money, you are entitled to full compensation.

You can file a lawsuit or seek a private settlement with your attorney. You can also report the attorney to the New York State Bar Association for professional discipline.

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What is Legal Malpractice?

Just as you can sue a doctor for medical malpractice, you can sue a lawyer for legal malpractice. Remember that no attorney can legitimately guarantee a favorable outcome in your case, any more than your doctor can guarantee that your surgery will be successful.

Consequently, to win a legal malpractice claim, it is not enough to show that you lost your case. After all, nearly every case has a winner and a loser.

Instead, you must show that your lawyer failed to meet the professional standard of care with respect to your case. Accordingly, not every error a lawyer makes amounts to legal malpractice—it must be serious enough to constitute professional negligence.

The standard is inherently ambiguous because few ironclad rules can tell you what does and does not add up to legal malpractice. Some professional standards do apply, however.

The Four Elements of a Legal Malpractice Claim

You must prove the following elements to win a legal malpractice claim:

The Lawyer Owed You a Duty of Care

That means an attorney-client relationship must exist. You can prove this by producing the contingency fee agreement that you entered into with the attorney. Typically, an initial consultation will not establish a duty of care if you do not proceed to hire the lawyer.

The Lawyer Breached their Duty of Care

What did the lawyer do wrong? To establish that your lawyer’s wrongdoing amounts to legal malpractice, you might need an expert witness to testify on your behalf.

The witness will testify to what a “reasonable attorney” would have done under the circumstances your lawyer faced when they breached their duty of care to you. The witness will probably need to be an attorney in the same field or a legal scholar (a law professor, for example).

You Suffered Losses

The losses you will complain of regarding a personal injury case will almost certainly be financial. To prove this claim, you must have lost your case or won a smaller amount than you should have; otherwise, no harm was done.

Your Lawyer’s Misconduct Caused the Losses You Suffered

You must also prove causation—that the outcome of your case would have been more favorable to you but for your lawyer’s misconduct. Proving a hypothetical like this is a challenging task.

You must prove each of these four elements on a “preponderance of the evidence” basis. A preponderance of the evidence means evidence that establishes a greater than 50% likelihood that your claim is true.

Examples of Attorney Behavior That Could Amount To Legal Malpractice

Following are some examples of attorney behavior that likely amounts to legal malpractice:

Missing the statute of limitations deadline to file a lawsuit: In most New York personal injury cases, you must file a lawsuit, if at all, within three years of the date of the injury (certain exceptions apply). If your attorney misses the deadline, the judge will dismiss your claim.
Approving a settlement without your authorization: This is certainly attorney misconduct because a lawyer may not accept a settlement without their client’s authorization. To win a legal malpractice claim, however, you must also prove that your lawyer settled your claim for less than it was worth.
Misusing money belonging to you: Stealing client funds is a serious matter. You should file a legal malpractice lawsuit to get your money back. Fortunately, New York has established a lawyer malpractice fund that can reimburse you if your lawyer steals from you.
Failing to properly check for conflicts of interest before representing you: If a conflict of interest exists, your lawyer must either refuse to represent you or disclose the conflict of interest, depending on the situation.
Disclosing your confidential case information to the other side, to the press, or to anyone you did not authorize: Like stealing your money, this offense is very, very serious. Your lawyer is subject to a near-absolute duty to keep confidential nearly all information relating to their representation of you.

Other actions may rise to the level of attorney misconduct. It’s best to consult a lawyer regarding the alleged malpractice to see if you have a valid claim.

Examples of Attorney Behavior That Probably Don’t Amount To Legal Malpractice

It is easy to mistake offensive behavior or an unfavorable outcome for attorney malpractice. It is even easier to mistake an ordinary error by your attorney for malpractice.

Following are some circumstances that probably do not amount to legal malpractice:

Playing golf or otherwise socializing with the attorney for the other side: This is completely normal in the legal profession. If your lawyer disclosed confidential information, however, it’s an entirely different story.
Recommending that you accept a settlement for less than your claim is worth: Although this is reprehensible, it probably does not amount to legal malpractice.
Failing to return your phone call: Missing a single phone call probably does not constitute legal malpractice unless it is a critical phone call that your lawyer should have anticipated. Completely ignoring you, by contrast, might well add up to legal malpractice.
Anything your lawyer does or doesn’t do, no matter how incompetent it may be, if it doesn’t render you worse off than you otherwise would have been: If you are trying to press a losing claim, there is little that your lawyer can do that would amount to legal malpractice.

Many situations constitute “gray areas,” meaning a legal malpractice claim could go either way. Schedule a consultation with a lawyer if you’re unsure of your chances.

Reporting Your Attorney To the New York State Bar Association

If you suffered no tangible harm from your lawyer’s misconduct, you might be unable to win a legal malpractice case. Even if this is so, you can still find justice by reporting your lawyer to the New York State Bar Association. The Bar Association will investigate, and they might impose sanctions on your lawyer up to and including permanent disbarment.

This approach won’t win you any money unless your lawyer stole from you or caused other losses, but it might provide you with a sense of closure.

You Probably Need an Attorney To Handle a Legal Malpractice Claim in NYC

Legal malpractice cases are tough to win regardless of who is representing you. They are virtually impossible to win if you represent yourself. Find an attorney with experience winning legal malpractice claims, and schedule a consultation with them. Be persistent—you might find it difficult to find an attorney willing to file a claim against a member of their own profession.

Contact or call Law Offices of Jay S. Knispel Personal Injury Lawyers, to get legal assistance in Manhattan at (212) 564 2800.