Hi, thanks for submitting your question today. First off, your complaint in this matter isn't one of breach of contract under Michigan law; it is one of negligence - i.e., attorney malpractice. Indeed, you are alleging malpractice on behalf of an attorney you retained to pursue a malpractice claim against another attorney. See Brownell v Garber
, 199 Mich App 519, 522; 503 NW2d 81, 82 (1993)
to prove claim of malpractice against an attorney (negligence by the attorney) , a plaintiff must prove (1) the existence of an attorney-client relationship, (2) negligence in the legal representation
of the plaintiff, (3) that the negligence was the proximate cause of an injury, and (4) the fact and extent of the injury alleged. Charles Reinhart Co. v. Winiemko,
444 Mich. 579, 585-586, 513 N.W.2d 773 (1994). Further, where the alleged malpractice results from the failure to diligently pursue or timely file a client's claim, a plaintiff seeking to establish the third and fourth elements of the claim, i.e., proximate cause and damages, must show that but for the attorney's alleged malpractice she would have been successful in the underlying suit. Id.
at 586, 513 N.W.2d 773; Basic Food Industries v. Grant,
107 Mich.App. 685, 691, 310 N.W.2d 26 (1981)Estate of Mitchell v Dougherty
, 249 Mich App 668, 676; 644 NW2d 391, 396 (2002).
Third, I'm not sure if you considered filing a claim with the attorney grievance commission against this attorney, because both the fee arrangement and the handling of the matter sound actionable to me. And, the grievance commission may very well prosecute the matter for you to get your fee back. You can file a charge with the grievance commission at this website
. But if you want more than your fee back (i.e., you want your fee and plus what you fee you were owed from your first attorney) you will need to prove the five elements listed in the Estate of Mitchell case - 1) the existence of an attorney-client relationship, (2) negligence in the legal representation of the plaintiff, (3) that the negligence was the proximate cause of an injury, and (4) the fact and extent of the injury alleged, and (5) that you would have been successful in that suit but for your attorney's non-action.
I believe this answers your question. However, if you need clarification or have follow-up questions regarding this matter, I will be happy to continue our conversation – select the Reply to Expert or Continue Conversation button. If you are otherwise satisfied with my response, please leave a positive rating as it is the only way I am able to get credit for my answers. Thank you, XXXXX XXXXX wish you all the best with this matter.