Legal Malpractice:
Note: We are primarily interested in legal malpractice claims involving mishandled personal injury claims. Since we do not practice divorce and family law or criminal law, we do not take legal malpractice claims in those areas.
Please also visit our legal malpractice website at
http://www.legalmalpracticelawfirmlasvegas.com/
Legal Malpractice happens when a lawyer fails to meet the accepted standards of the legal profession and the client suffers monetary damage. Fee disputes are different than legal malpractice. See our webpage Attorney v. Client Fee Disputes
The key to a successful legal malpractice case is pinning down exactly what professional conduct standard the lawyer violated and then showing that if the standard hadn't been violated the lawyer's client would have been much better off financially.
Unfortunately, many attorneys who commit malpractice compound their bad behavior by lying to the client and trying to get the client to believe that the loss of their case was someone else's fault. A typical "lie" involves forgetting to file suit within the two year statute of limitations and then telling the client that investigation showed the case was no good. In Nevada the statute of limitations for most personal injury cases is two years. If an attorney you hire well before the two year statute of limitations tells you two years or more after the injury that your case is no good, ask the lawyer to show you a file-stamped copy of the complaint they filed for you. If the lawyer can't produce one give us a call; the law firm you hired may have forgotten to file the complaint before it was too late.
The two easiest to prove violations of professional conduct include:
Conflicts of Interest:
Lawyers sometimes get in trouble by representing two or more people in the same case. Early in my career I was approached by a parent whose teenage child had been killed in a car wreck. The dead child's best friend was also killed in the same car. Both sets of parents were friends. Both teenagers had similar histories. (It wasn't like one was a great kid helping to support his widowed mother and the other a juvenile delinquent.) Both sets of parents wanted me to represent them. They were agreeable to splitting any recovery 50-50 between the two families. The collision was the fault of the other driver who was charged with numerous violations. Ultimately I recovered insurance policy limits of $300,000 which was divided equally between the two families. Both families agreed to waive any conflict of interest and I represented both families without any problems. BUT, if one of the teenagers had had a long rap sheet and the other a long list of achievements, it wouldn't have been fair to divide the recovery 50-50 and the same lawyer should not have represented both families. Or if the teenage driver had been partly at fault, even if most of the fault was that of the other driver, it wouldn't have been fair to split the recovery 50-50 and the same lawyer should not have represented both of them. Yet, in any of these cases, it would have been tempting for a lawyer to get the fees for representing both families.
In the past year I represented a homeowner who was one of a large number of homeowners who were previously represented by the same law firm in a construction defect case. The law firm got a large settlement against the builders. Unfortunately, one of the homeowners had a unique fact situation that just got lost among all of the other homeowners represented by the same law firm. The law firm had done a great job of getting a lot of money from the builders but it had done a terrible job of representing this one homeowner with special facts. This homeowner came to me and I won a settlement for him from his former law firm. NOTE: CONSTRUCTION DEFECT CASES ARE NOT CLASS ACTION LAWSUITS SO ATTORNEYS OWE EACH CLIENT A DUTY TO REPRESENT THAT CLIENT'S SITUATION. IN A CLASS ACTION LAWSUIT, THE LAWYER ONLY HAS TO REPRESENT THE AVERAGE CLASS MEMBER.
Failing to Meet a Crucial Deadline:
Lawsuits have to be filed within a certain time period know as the statute of limitations. (This time period depends on the type of case.) Occasionally, lawyers miss the dealine for filing the lawsuit with the result that the client's case is lost. If this happens, the client has a case against the lawyer IF the client had a good case in the first place. Although the statute of limitations for most personal injury cases in Las Vegas is 2 years, some years ago it was reduced to 1 year for most medical malpractice case. http://www.leg.state.nv.us/nrs/NRS-041A.html#NRS041ASec097. Occasionally we get calls involving lost claims because attorneys didn't realize this. Also, it sometimes happens that the lawyer sues the wrong party or fails to include the correct party in the complaint. For example, if the claim arises out of an injury in a Burger King restaurant, it may be necessary to sue the individual franchisee running that store as well as the national company.
Lawsuits have to be served within a certain time after they are filed. In Nevada's state courts the deadline is usually 120 days under N.R.C.P. 4(i) http://www.leg.state.nv.us/courtrules/nrcp.html Failure to make timely service can result in dismissal. I won a case against another law firm which filed suit on time but for some reason never got the complaint and summons served in a timely manner resulting in dismissal of the case. A recent Nevada Supreme Court decision, Saavedra-Sandoval v. Wal-Mart Stores, 126 Nev. Adv. Op. No. 55 (December 30, 2010), emphasizes that the court are serious about dismissing cases which are not timely served under this rule unless there is a very good reason.
I recently took a case against a personal injury attorney who does a lot of tv advertising. The client hired the tv lawyer 3 days after his car accident. A year later the other driver sued the client. The client promptly took the complaint against him to his tv lawyer. The client's auto insurance company defended him, but told him it would not represent him on his own case. The tv lawyer should have filed a compulsory counter-claim under N.R.C.P. 13(a), but did not. Instead the tv lawyer waited until 3 days before the two year statute of limitations ran to file suit. The other driver's insurance then got the client's lawsuit dismissed because it should have been filed as a compulsory counterclaim.
N.R.C.P. 16.1 imposes another deadline on the attorney for the Plaintiff, the necessity to file a 16.1 Joint Case Conference Report. A recent Nevada Supreme Court Case, Moon v. McDonald Carano Wilson, L.L.P., 126 Nev. Adv. Op. 47 (December 16, 2010) affirmed a district court dismissal of a case for failure to comply with this deadline.
There are many other deadlines that can cause the dismissal of a lawsuit. If a lawsuit has been lost because the lawyer failed to meet a crucial deadline and IF the underlying case was good, and IF the client suffered substantial financial loss as a result, there is a good malpractice claim. Then if the lawyer you are suing has malpractice insurance or assets you can recover. Of course, if the lawyer you are suing is a drunk who is about to get kicked out of the bar for neglecting many clients and has no malpractice insurance you may have a great case that isn't going anywhere.
Stealing from Clients:
The worst kind of stealing from clients happens when an attorney takes a client's settlement and "burrows" it without telling the client. This is an offense that can get the lawyer disbarred. To help prevent this N.R.S. 686A.325 requires that in a third party claim (where the client is making a claim against someone else's insurance), the insurance company, if it sends its check to the client's lawyer must also notify the client directly in writing of the payment in all cases in which the payment is $5,000 or more. In addition, the Nevada State Bar maintains a client's security fund to pay clients defrauded by their lawyers. For details on this program see http://www.nvbar.org/clientsecurityfund.htm Due to limited resources, the maximum claim to any one person paid out by this fund is $50,000 and it could be less, depending on the fund's status.
A smaller, harder to detect form of stealing in the case of personal injury cases is for the lawyer to deduct from the client's settlement the full amount of the medical bills and then to compromise the medical bills and pocket the difference without telling the client. That is stealing. A client should always ask the personal injury attorney to give them a disbursement sheet showing how the settlement money will actually be distributed. Some attorneys stay on the right side of the law by stating in their retainer agreement that they are entitled to a 1/3 fee on all discounts they negotiate on medical bills. At Reed & Mansfield we believe that part of the service you are paying for when you hire a personal injury attorney is that the lawyer will do everything possible to negotiate a reduction in your medical bills and that no extra fee should be charged for this service.
But Most Complaints About Lawyers are Much Harder to Evaluate:
We get many calls from clients who paid their former attorney a great deal of money on an hourly basis and then got an unhappy result from the Court. The file may take up one or more boxes. Unless the client can focus in on a particular event of alleged malpractice in that case, we simply cannot afford to take the time to evaluate the case for free.
We get calls from clients who claim their former attorney who lost their case misrepresented his or her experience in that type of case. This could be a good claim if it can be proved. Unfortunately, most representations are oral and hard to prove. For this reason if an attorney wants your case and claims experience in cases like yours it is a good idea to ask the attorney to send you a letter describing his or her prior experience in similar cases. If the attorney won't put a representation he or she just made in writing, you've been warned. You can also go the Nevada Bar's website, look up the attorney and see if the Nevada Bar has disciplined the attorney for misconduct. The website will also tell you if the lawyer carries malpractice insurance. If they don't you are warned that if the lawyer ruins your case you may not be able to collect. Here's the Nevada State Bar website link to check an attorney out: http://www.nvbar.org/FindALawyer.asp
We often get calls from a client who says, "Attorney B told me Attorney A committed malpractice but Attorney B doesn't do malpractice cases." We'll talk to you in a case like this, but keep in mind that since Attorney B doesn't do malpractice cases, Attorney B may have been thinking, "Attorney A might have committed malpractice, I should point this out to the client, but since I don't do malpractice cases, I'm not going to take the time to carefully investigate whether Attorney A really did commit malpractice."
We get calls from clients who actually have a judge's opinion criticizing their former attorney. Again, we are happy to talk to the client and see the file. However, the judicial criticism alone does not necessarily make the malpractice case. The critical opinion from the judge that would suggest a great legal malpractice case would say that the client lost a great case through their attorney's incompetence. That sort of criticism from a judge is very rare.
Statute of Limitation for Filing Suit Against Attorney:
N.R.S. 11.207(1) provides that an action against an attorney for malpractice must be filed within 4 years after the plaintiff sustains damage or within 2 years after the plaintiff discovers or through the use of reasonable diligence should have discovered [the malpractice]. This can create a very long time in which to sue. For example, suppose an attorney writes a pre-nuptial agreement which is legally defective but which looks fine to a non-lawyer. Suppose that 10 years later the client gets a divorce and the pre-nuptial agreement is held to be invalid. In this case the client would have 2 years after discovering the invalidity of the pre-nuptial agreement to sue. (Of course, to be successful in a lawsuit, the client would have to also show that he or she would have done better in the divorce division of property if the pre-nuptial agreement had been upheld.)
N.R.S. 11.207(2) provides addtionally that this time limit tolled (extended) during any period in which the attorney conceals any act, error or omission [relevant to the claim].
Incidentally, this statute also applies to malpractice actions against veterinarians.
Do Attorneys Have to Have Malpractice Insurance?
At this time few states require attorneys to have malpractice insurance. However, about half the states, including Nevada, require attorneys to advise their state bar whether they have malpractice insurance and the state bar then makes this information publically available. In Nevada you can find this information about an attorney at http://www.nvbar.org/FindALawyer.asp
Defenses to Legal Malpractice Actions:
Generally if the lawyer makes a judgment call or if the issue has not been settled by the state supreme court (if a matter of state law) it is not malpractice if the attorney makes a decision that in hindsight is not good. For example, in many criminal trials the defendant wants to testify. But, in many cases if the defendant does testify the prosecution can bring up a prior crime that the defendant committed that otherwise couldn't be mentioned. (For example, the defendant in a bribery case was convicted of stealing a car when he was 19; if the defendant testifies, the prosecution can bring up the prior crime to impeach his honesty; if the defendant remains silent during the trial the prosecution can't bring up the car theft conviction.) This is a tough decision for the defense because the jury may well think that a defendant who doesn't testify is guilty. Defense attorneys typically involve the defendant in this decision. But if the advice the attorney gives leads to a conviction there in legal malpractice case because the lawyer made what in hindsight was a losing decision.
In many bankruptcy cases the lawyer must apply to the court for approval of their fees. (This is true in many other cases such as probate cases in Nevada involving a fee over $3,500.) Some bankruptcy judges rule that if the client does not object to the fee application the client has waived any claim of legal malpractice because the bankruptcy court already passed judgment on the quality of the legal services in approving the fee. Conversely, if the bankruptcy judge criticizes the attorney in a written opinion, the written opinion may go a long way toward proving legal malpractice, but there then remains the issue of how much damages the client suffered and whether these damages were offset by the court chopping the fee request.
In some cases, such as the Nevada Asset Protection Trust--we don't offer these trusts--there may be a special statute shielding attorneys from liability.
Contact Information:
Reed & Mansfield
6655 W. Sahara Ave., Suite B-200
Las Vegas, NV 89146
phone: 702-343-0494
regular business hours: 9am-5pm (Pacific Coast time) M-F
most days: We will also take your call between
7am-9pm including weekends and holidays
(c) by Jonathan C. Reed 2010