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Ask TexLaw Your Own Question
TexLaw, Attorney
Category: Legal
Satisfied Customers: 4430
Experience:  Lead trial/International commercial attorney licensed 11 yrs
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Sir, A legal mal practice case. Under contract the attorney

Resolved Question:


A legal mal practice case.

Under contract the attorney was to prosecute a financial institution for allowing $1.0M to be withdrawn from a trust that required three signatures or two with the third disenting.

The financiial institution allowed $1.0M to be removed with only two signatures.The will says three signatures or the third must disent in writing. For 18 years the financial institution required 3 signatures or disent from the third trustee for every transaction.

Is the attorney who committed mal practice liable for the $1.0M or does the plaintiff need to prove where the $1.0M ended up.
Submitted: 5 years ago.
Category: Legal
Expert:  TexLaw replied 5 years ago.

Zachary D. Norris :

In what jurisdiction was the trust located?

Zachary D. Norris :

And what did the attorney do which you claim is malpractice

Customer: replied 5 years ago.

The attorney and financial institution were located in Chicago.

Two express contracts were signed $20,000 retainer for each and 1/3rd of any recoveries

First prosecute the financial institution.

Two prosecute two trustees for not accounting for 18 years and also having a legally incapacitated grantor sign a trust amendment to their benifit

Two Neurologists within two days of the signing of the amendment diagnosed the grantor without capacity.The amendment was for the sole benifit of the trustees

The trustees in their declarations admitted they had the trust documents.

The Neurologists were on call to prove incapacity of the grantor at the time of signing the trust amendment.

After 17 months the attorney resigned without prosecuting either case and in fact did not even start discovery.
Expert:  TexLaw replied 5 years ago.
Before you can file a legal malpractice lawsuit against the attorney, you have to finish your pursuit of the original claim against the financial institution.

Also, an attorney who has filed a lawsuit cannot simply resign. He/She must withdraw from representation, which is a legal filing that the attorney made (must ask permission from the court). Generally, after beginning a lawsuit, a court will not allow an attorney to withdraw unless there is another attorney who can replace the withdrawing attorney.

If you are close to trial, and are unable to secure new counsel because the one you had resigned, and you end up losing the trial as a result, then you could sue your attorney for mal practice.

However, the attorney's failure to do discovery does not automatically qualify as malpractice unless it causes you to end up losing the case.
Customer: replied 5 years ago.
The attorney was paid $20,000 and 1/3rd of the recovery to sue the financial institution.He did nothing.

The court allowed the attorney to withdraw.A second attorney at mydirection settled the trust case as I had expended all the money I was able to and the attorney who withdrew knew this.

Two depositions and an order to compel documents was all that was needed in the trust case.Nothing was done in the financial case.

Expert:  TexLaw replied 5 years ago.
This probably is not the answer you want to hear, but as you settled the case for a lesser amount, it is highly unlikely that you will be able to recover the entire $1M.

However, the attorney definitely doesn't sound like he did his job, and he took the case on a contingency basis and so should have completed the job. I would sue the attorney for breach of contract to try and get the $20k back and combine this with a suit for legal malpractice in an attempt to claim the $1M. The suit is possible, but the recovery under the breach of K is more probable than for the entire $1M for malpracitce. Definitely take the case to an attorney for a more thorough analysis.

Good Luck and let me know if you need any further information.

TexLaw and 5 other Legal Specialists are ready to help you
Customer: replied 5 years ago.

Here is the worst part of it.An attorney I hired to represent my aunt as executor was present when my attorney filed his motion to withdraw.Without objection the Judge granted the motion and then this attorney representing my aunt substituted in for my children and I,

Should this attorney not have explained to me we do not have to allow my current attorney to resign.If we object the attorney would be compelled to honor his contract with me.

I did not attend the hearing as I was not asked to.Why would the attorney not advise me to object to the attorney's motion to withdraw.

He knew once that happened my case was over.
Expert:  TexLaw replied 5 years ago.
The attorney who took over when your attorney withdrew was under no legal obligation to tell you anything until he became your new attorney, which was after the other attorney had already withdrawn.

I think you need to consult a mal practice attorney near you to give you a more detailed review of your case.
Customer: replied 5 years ago.
If my past attorney filed a motion to resign,a second attorney told me he would attend the hearing,did not object,did not advise me of my rights and as he allowed the first attorney to resign at the same time he substituted in for me and my children,he was already my aunts attorney,did he not have the obligation to first get my authority to substitute in and advise me that we did not have to agree to my first attorneys motion to resign.He took all of on his own.

I had no idea we could have stopped my first attorney from resigning as if I objected he would have been obligated to continue the case based on our contract.

Had I been advised I could have stopped his resignation I never would have agreed.
Expert:  TexLaw replied 5 years ago.
I understand your situation. However, my answer stands. The other attorney is not going to advise you of something like that, especially when he is in court and the judge allows your attorney to withdraw. The other attorney is not under any obligation in that regard. As I've said before, and I believe I've given you a complete answer, you need to consult a legal malpractice attorney for a more complete review of your case. This is the only option you have at this point. You can't go back into court on the case you just settled because its over, and was ended at your direction. There is a slight possibility you can get the previous attorney for malpractice in the full $1M amount, if you can show that he did something that absolutely prevented you from winning that amount (ie, you would have won the case with competent counsel). This is a very hard thing to prove. But, since you paid him $20,000, and he resigned and did not perform the work you paid him for, he likely also breached his contract.

I've spent as much time with you as I'm allowed. Please press Accept as I will not be paid for any of the time I have spent with you unless you do so.
TexLaw and 5 other Legal Specialists are ready to help you