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William B. Esq.
William B. Esq., Lawyer
Category: Consumer Protection Law
Satisfied Customers: 4188
Experience:  I am a civil litigation attorney representing individuals and businesses.
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in regard to malpractice ... does a client need to sit on his

Customer Question

in regard to malpractice ... does a client need to sit on his hands even when he knows the car is going to crash, thus tangible damages have occurred ... or can if be stopped with a malpractice lawsuit or some other action before the car crashes.

Please keep in mind my getting rid of this attorney leaves me in a bind with time to get someone else up to speed, but I'm thinking there must be some form of request that can be made for extra time.

some of the issues, taking 9 months to produce a complaint, telling me 8 times it would be ready ..this went on for months ... he then filed such a sloppy complaint .. the defendant needed clarification on a more definitive statement ....it's been delays, lying, submitting documents without my knowledge without being able to review .. things got out of hand last week when I was told a settlement meeting had been set up supposedly nine days previous to him telling me ..i suspect this was told to me to delay more time .. as we come towards the 90 day mandatory arbitration deadline .. something not in my best interest .. Ask whatever details you need i know its an odd question
Submitted: 1 year ago.
Category: Consumer Protection Law
Expert:  William B. Esq. replied 1 year ago.

 

CalAttorney2 :

Dear Customer, thank you for choosing Just Answer. I would like to assist you with your issue today.

CalAttorney2 :

Unfortunately, this is not an "odd" question at all.

CalAttorney2 :

You do have a duty to mitigate damages in a lawsuit (including a legal malpractice lawsuit), however, there is a definite advantage to keeping the same attorney in a case despite their continued incompetence (maintaining a continuous front to the opposing side, reduced cost in getting new counsel up to speed, and potentially the same outcome regardless of counsel).

CalAttorney2 :

However, if you have a continued history of an attorney fouling your case, and you lack faith in their basic ability to represent you, with an arbitration looming, it may be worthwhile to seek new counsel. A new attorney can come up to speed within this short period of time and prepare a substantially more competent case than someone who cannot get the matter together in this period of time and you can hopefully develop a reasonable level of faith in their services.

CalAttorney2 :

You can still file a legal malpractice lawsuit against your current attorney in the event that his breach in the duty of care (professional negligence) caused you to suffer a lesser recovery than you would have absent his actions, even if you retain new counsel afterwards. Unfortunately you are not entitled to the cost of retaining new counsel unless you can prove that his actions eventually caused a substantial impairment on your ultimate recovery.

Customer :

i suppose, what additional info could make the situation more clear

Customer :

Oh really not odd.. funny

Customer :

hi -- kind of an odd question

Customer :

ok .. just realized you answer above .. im sorry ..

CalAttorney2 :

My experience with malpractice matters is that the case is starting to dip close to trial or arbitration but it is too late to really make a difference. Your case is 90 days out (approximately) which gives you enough time to get new counsel in and hopefully get prepared for a decent prosecution of the matter. Your discovery may be impaired to some level, but you can probably recover.

Customer :

because this has been ridiculous it's like the lawyer is begging me to file an ethics complaint so he can get out of the case

Customer :

My attorney has delayed things to the point we are like 8 days from the initial scheduling conference, which in DC usually means forced arbitration

Customer :

yep

Customer :

we haven't gone through discovery

CalAttorney2 :

You need new counsel.

Customer :

so this far in we should have asked for all the documents that would have brought about settlement quickly

CalAttorney2 :

While arbitration may make sense for many cases, depending on your case and if you have the option still open, without having discovery completed or even started, foregoing your right to trial is a big decision (at least in my humble opinion - other attorneys and parties may differ).

Customer :

i forgot to add his rate goes up if we hit arbitration

Customer :

he's claimed all kinds of ridiculous things ... including what I suspect was him calling the defendant to settle the case without my knowledge

Customer :

he's not even had the summons issued to a bunch of 3rd party defendants

Customer :

im thinking he's settled this thing

Customer :

he's meeting with opposing counsel 3 days prior to the scheduling meeting

CalAttorney2 :

I can't comment on individual charges or acts (depending on the case, individually these things can be appropriate and even recommended). If he has settled without you, his liability is almost strict- that is a very strong position so I use it with caution, but you cannot settle a case without client consent.

Customer :

One other question that will clear things up ... he's known for almost 90 days the defendants lawyer was going to be named as a defendant .... should he have made that evident at the beginning when the complaint was filed .. not added in at the last minute?

CalAttorney2 :

You can almost never name an opposing party's lawyer as a defendant, this is a major issue.

Customer :

i realize my client rights ... i just realize his tactics by now .. list minute knowledge of major issues tries to convince me not to play lawyer .. it makes some sense their attorney and him would work together its in their own interest

Customer :

i should have reversed things .... I'm the defendant, not sure why i put plaintiff .. became the defendant when he didn't file anything for months .. I got served .. he then waited until 3 hours before response was due to file a motion

Customer :

does it make any difference with the lawyer being named because I'm the defendant,

Customer :

im calling up the legal notice filed ... summation without names etc

CalAttorney2 :

No, the reason you can almost never name a party's attorney is based on public policy against allowing suit against an attorney under the "litigation privlige" There are some very good reasons for it, but it has some unfortunate results in some cases, the legislature has decided that it is worth the injustice in these cases.

Customer :

if i send you something its basically how the case is structured do you have the ability to erase it

Customer :

it will make you maybe realize how nuts this has become

Customer :

we answered with answer. counterclaim, and claims against 3rd parties ..

CalAttorney2 :

I cannot review your case specifically (our service here is limited to providing general legal information, we cannot practice law through this forum). But I do have a good understanding of the type of situation you are in.

Customer :

 

CONDOMINIUM

T

PLAINTIFF

B

me

Defendant

My attorney

me

Defendant

CONDOMINIUM

Plaintiff Counter Defendant

Defendant Counter Plaintiff

My attorney

CONDOMINIUM UNIT OWNERS ASSOCIATIO

Third Party Defendant

TM

Third Party Defendant

L

Third Party Defendant

E

Third Party Defendant

Third Party Defendant

Third Party Defendant

H

Third Party Defendant

Third Party Defendant

Third Party Defendant

Third Party Defendant

XXXXXXXX

my attorney

Customer :

the my attorney party did not compy and past correctly

Customer :

just wanted to give you the structure which ive become the defendnant, plaintiff counter defendant, defendent counter plantiff

Customer :

i noticed the only thing i forgot to x out is my name

CalAttorney2 :

That is okay, I will send the "chat" to our moderator and ask that it be redacted.

Customer :

So you're saying when he got a copy of their complaint .. when he knew their attorney was going to be named as a defendant that should have been made aware to the other attorney

CalAttorney2 :

I understand the complexity of this matter. I cannot give you specific advice or a course of action, but an attorney that is not so vested in the matter, or apparently a party in the case, may be able to better represent your interests.

Customer :

the other attorney had no clue he was named until my attorney after all of his delays finally filed the response

CalAttorney2 :

You can name the other party's attorney, but you are running a risk of the cause of action being severed (the proper mechanism) so that any surviving claim you may have against their counsel would be tried separately from the claim against the party, allowing the attorney to fully represent his client.

Customer :

is that correct ... my attorney knew even when he filed his last minute motion the attorney was being name .. he should have said something immediately ...

Customer :

which would be not what id want at this point .. the cause of action seems solid against the lawyer .. and he's materially a part of the case ....

Customer :

explain that

CalAttorney2 :

You should have had some sort of discussion that there was at least an issue. I do not like to second guess an attorney even when reviewing a file (I do a lot of legal malpractice work myself), and doing it through this forum is much more difficult. But what I see here, is that your attorney has failed to communicate throughout the case (a cause for legal malpractice), has failed to communicate major dates within the case (arbitration and settlement conferences), and has failed to identify significant issues which will compromise trial and/or settlement. He is now having major settlement discussions with a party outside of your presence. This creates a significant problem.

Customer :

ive thought the damages against their attorney would be a large part of settlement ... lets just say he was caught lying for his client, creating false billing records ... and was aiding the plaintiff

Customer :

you got it

Customer :

so how to i put a stop to it

Customer :

he's done nothing else ive told him not to do ...

Customer :

My attorney has repeatedly lied to me in writing which is bizarre, and he waited to the very last minute to finally file a response .. which he would not give me .. had to go to the court house myself :)

CalAttorney2 :

You need to put your attorney on formal notice, write him a letter telling him you expect to be aprised of all dates, and want to be involved in all settlement communications (you can ask to be informed before conveying offers and after one is received).

CalAttorney2 :

You can be most effective through getting new counsel, but by placing him on notice with a formal warning you may be able to curb his most abusive behaviors.

Customer :

ok , I've done that ... but he continues .. i think he just feels that I'm an idiot and can tell me what he wants... lets just say its impossible for their attorney to have offered settlement on the day he said they did .. he didn't know weekend protocol for filings over the weekend .. they "called" before they could have even seen it

Customer :

he doesn't know the facts well either ... thats become evident, and he's negotiating at this point .. how can i allow that without readying my self to sue him after he's done? ..

Customer :

so this isn't totally bizarre?

CalAttorney2 :

This isn't totally bizarre (it is totally unacceptable), but the best you can do short of hiring a new attorney is to prepare yourself as best as possible with the facts and the law and tell him not to talk to anyone without talking to you first.

Customer :

The fact he never bothered to serve the third party or anyone else summons ... what does that tell you? he's known what he was going to do ... settle with the attorney ... i dont have any other explanation

Customer :

ill tip a lot higher for all the questions

CalAttorney2 :

He is simply committing a huge number of errors that are easily documented in a legal malpractice case. The only thing left is for you to suffer damages. I sincerely XXXXX XXXXX you are able to win the suit so that there is no need for a malpractice claim, but in the event there is one he has documented a case against himself.

Customer :

It's almost like i need to lay out the documentation for him that says .... malpractice is pretty evident .. but i know i cant do that ..

Customer :

the no summons issue what does that tell you

Customer :

or kind of imply

Customer :

he actually filed the response too late to even serve any of them with 20 days notice of initial scheduling conference ...

CalAttorney2 :

It can go two ways - one is that he intentionally did not do so for some reason (it would be rampant speculation as to why); the second would be that he was delinquent in doing so and was therefore negligent. I would gather from the fact that he was delinquent in all of his other filings that he is simply disorganized or lazy causing him to miss these dates.

Customer :

he knew though .. it was intentional kind of like the lawyer knowing he was a defendant at the last minute was intentional .. the response was so filled with errors it seemed like it didn't matter which would be explained by "settling"

Customer :

How do I know there not moving forward with their lawsuit without the lawyer ... if they are, then I can't even bring in the 3rd parties .... it makes no sense ,,,, I'm thinking his meeting with their attorney 3 days before the intiial meeting ,,, is done so to give me no time .. The other attorney's office called July 22 .. why wait until August 13th to settle with him

CalAttorney2 :

It is entirely possible that it was intentional, and that he did it in concert with the other attorney. If you believe that your attorney is actively acting against you in this matter (or at least passively representing you at best) the only thing I can offer is for you to find new representation. While it is possible to recover money lost in a bad judgment through a malpractice suit it is far more difficult than putting on a strong case in the original suit. (Malpractice claims are complex and lengthy).

Customer :

I need to get another attorney thats more than obvious now ... this is out of my control ... do I use a consumer protection lawyer?

CalAttorney2 :

If the meeting is not until Aug. 13, you have time to get a good civil litigator on board to handle a settlement meeting.

Customer :

i understand about the malpractice suit being a huge pain

CalAttorney2 :

Look for a civil litigation attorney.

Customer :

ok ...

Customer :

ok

Customer :

new attorney contacting them

Customer :

one last question .. contacting his law firm.. but new attorney ...have been told they may protect me so their protected .. This is Akin Gump great firm just i got the jackass

CalAttorney2 :

You are represented by Akin Gump?

Customer :

Am I correct in stating that if the 3rd parties have not been served .. actually no one has been served .. with 12 days until the intial settlement conference ...there can be no initial settlemt conference .. This is important for me to know so I can feel confident booting him

Customer :

yes akin gump attorney

Customer :

i know .. the name may scarre them into settlement ... the guy i assume must be a differnt lawyer outside of this case ...though as I said billing etc is outside of the firm ... again another last minute detail i was provided :)

Customer :

though he is doing this on the side outside of akin gump ... though sends all email etc from akin gump account ....

Customer :

he had a conflict of interest 3 months in .. and his father who's an attorney became the "offical" attorney though ive never met him nor has he been involved ... are you laughing yet..its ridiculous

CalAttorney2 :

Akin Gump should be able to provide you with a different attorney - immediately. Try contacting the managing partner for the office (Anthony Pierce), and if that doesn't work you can try contacting someone in their primary management structure, but they should take care of it promptly.

Customer :

ok i was told that .. should i have another attorney get things together before i make such a request

CalAttorney2 :

You can do what you like, I would simply request another attorney given the short amount of time you have before the hearing. You are paying for services and have a right to be represented by an attorney of your choice. (You have the option of taking your business elsewhere).

Customer :

you may have missed the part that he kept this off the books....

Customer :

i need to go elsewhere and see what they suggest ...

CalAttorney2 :

I would do that then. While having a large firm like that take on your case has a certain amount of heft behind it, it is not necessary to win a case, and it does add a significant amount of billing to it through the "tiered billing" structure so if you need to go elsewhere, that would be an entirely appropriate step, and would assure you that there is no further contamination of your case.

Customer :

yeah why fight akin when im trying to get another person in place...but will there be a initial scheduling conference ... how can there be? no summons served ,, their attorney is needing to remove himself ..whos going to show at the initial meeting ? I need to get another attorney ... i realize that more than ever .. youve been of great help ,,,

CalAttorney2 :

You can usually get a motion to continue these matters based on new counsel. It is a very straight forward motion to write, it does not take a great deal of familiarity with the case so your new attorney can write it quickly and file it with the court even if they have to do so on an "ex parte" basis. You need to advise the new attorney of the pending dates immediately so that they can plan accordingly and deal with these timelines. The fact that there has been no service may or may not be a basis for the court to hold up the proceedings (some judges may say that the failure of a party to properly serve documents is not the Court's problem and lack of diligence is not a basis to delay the proceedings - obviously this is a reason for the new attorney to request the continuance, but in and of itself it may not constitute a basis to continue).

Customer :

yeah I think at the initial scheduling conference their is a motion to do just that .. but i need to get everything in place ......if you could see the response you'd laugh .. copied and pasted from similar case my damages of physical pain and high medical bills don't exist .. though he had them in there ... thank you for your help .. i would hope this is an isolated occurence but i suspect most may not even know whats going on behind the scenes .. anyway.I very much appreciate the help ..

Customer :

can you make sure my name is XXXXX XXXXX of the one area ....

CalAttorney2 :

I will refer it on to the Moderator and follow up.

Customer :

thank you .... have a good night

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William B. Esq., Lawyer
Satisfied Customers: 4188
Experience: I am a civil litigation attorney representing individuals and businesses.
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William B. Esq.
William B. Esq.
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I am a civil litigation attorney representing individuals and businesses.