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My family law attorney seems to have abandoned my case. 7…

My family law attorney...

My family law attorney seems to have abandoned my case. 7 years of promises, and over 100k in fees, still without a custody trial.

Lawyer's Assistant: Because laws vary from place to place, can you tell me what state this is in?

CA

Lawyer's Assistant: Has anything been filed or reported?

There have been multiple OSC's and two 730 evaluations. The last 730 was 4 years ago. That 730 was very favorable to me, but my attorney has never filed for the trial since that 730

Lawyer's Assistant: Anything else you want the lawyer to know before I connect you?

I'd like if the malpractice attorney also does family law, in hopes that he couls also become my new family law attorney

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Answered in 15 minutes by:
7/18/2017
RayAnswers
RayAnswers, Lawyer
Category: Family Law
Satisfied Customers: 48,231
Experience: 30 years as a family law lawyer .
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Hi and welcome to JA. Ray here to help you today.Please bear with me a few moments while I review your question and respond.

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You will need two separate lawyers malpractice and family law two totally different lawyers.Certainly it is well past time to fire current family lawyer, you may well have a malpractice case to pursue as well.

Lawyer referral here

Contact the State Bar for help

Reference to suing for legal malpractice

The statute of limitations on claims against a lawyer in California is either 1 or 4 years if the claim arises out of a civil matter. It is different for criminal matters. The relevant statute is California Code of Civil Procedure section 340.6. That section is reproduced below [emphasis ours].

(a) An action against an attorney for a wrongful act oromission, other than for actual fraud, arising in the performance ofprofessional services shall be commenced within one year after theplaintiff discovers, or through the use of reasonable diligence shouldhave discovered, the facts constituting the wrongful act or omission,or four years from the date of the wrongful act or omission, whicheveroccurs first. If the plaintiff is required to establish his or herfactual innocence for an underlying criminal charge as an element ofhis or her claim, the action shall be commenced within two years afterthe plaintiff achieves postconviction exoneration in the form of afinal judicial disposition of the criminal case. Except for a claim forwhich the plaintiff is required to establish his or her factualinnocence, in no event shall the time for commencement of legal actionexceed four years except that the period shall be tolled during thetime that any of the following exist:

(1) The plaintiff has not sustained actual injury.

(2) Theattorney continues to represent the plaintiff regarding the specificsubject matter in which the alleged wrongful act or omission occurred.

(3) Theattorney willfully conceals the facts constituting the wrongful act oromission when such facts are known to the attorney, except that thissubdivision shall toll only the four-year limitation.

(4) The plaintiff is under a legal or physical disability which restricts the plaintiff's ability to commence legal action.

(b) Inan action based upon an instrument in writing, the effective date ofwhich depends upon some act or event of the future, the period oflimitations provided for by this section shall commence to run upon theoccurrence of that act or event.

Application of the statute of limitations can be tricky, and if you get it wrong the mistake amounts to a death sentence for the case. The safest way to proceed is to file a legal malpractice case within one year of the date of the negligence or of the date the lawyer last represented you. Those events usually provide the clearest and safeest cutoff dates. However, even in those instances there can be issues that need to be properly analyzed in order to determine the proper date. For example, just because a lawyer has not executed a substitution of attorney form does not mean that lawyer is still representing you for purposes of the statute. Also, not everything a lawyer does for you will be considered continuing representation. If the lawyer simply passes along documents sent to him by the other side without commenting or advising you on the contents that lawyer may not be engaged in continuous representation. Because of the severity of the consequences of a missed statute, if you have any questions you should contact an attorney immediately.

2. What damages am I entitled to recover if I sue my lawyer?

In a legal malpractice case, you are entitled to recover whatever damages you should have received in the underlying case had the lawyer not been negligent. This means that if you had a dispute over a contract that would have paid you $50,000 in the absence of the lawyer's mistake, you can recover $50,000 from the lawyer. In addition to proving the amount of damages that should have been awarded in the underlying case, a legal malpractice plaintiff also has to prove those damages were collectible from the defendant in the underlying case. Sometimes proving this is easy because the defendant has insurance coverage or substantial assets, but you will not be able to collect $2 million from a lawyer for screwing up a case against an indigent defendant.

3. I would have been entitled to punitive damages in my original case, if I sue my lawyer can I recover punitive damages from him/her?

No. You can only recover whatever compensatory damages the lawyer's mistake cost you, not punitive damages. Punitive damages are designed to punish conduct that goes beyond mere negligence and deter the person they are assessed against from engaging in that conduct in the future. California Courts have determined that it would be inequitable to assess punitive damages against a merely negligent lawyer when there is no conduct beyond negligence to be deterred.

You want to terminate the current lawyer in writing and ask for return of your client files.

I appreciate the chance to help you today.Thanks again and the best.

If you can positive rate 5 stars it is much appreciated.

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Also consider filing a bar complaint here

Filing an attorney complaint. You may also call the State Bar's multilingual intake hotline at(###) ###-####(in California) or(###) ###-####(outside California) to request a complaint form or discuss the complaint-filing process.

Why File a Complaint Against an Attorney - State Bar of California

Thanks again.

RayAnswers
RayAnswers, Lawyer
Category: Family Law
Satisfied Customers: 48,231
Experience: 30 years as a family law lawyer .
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