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LegalKnowledge, Attorney
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Does this delay causing a problem of malpractice of my attorney? My

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Does this delay causing a problem of malpractice of my attorney? My case was filed in September last year. My attorney has been slow in every step when the case turned to his move. I have communicated to him a couple of time about my concern of his slowness. The example below shows how did he dragged the case. On May 13, the first hearing was conducted. By the way, from September 13 of last year to May 13 of this year, it took eight months to reach the step of warning order attorney. I agree the defendant used the procedure to delay the case. But my attorney has been dragging when he supposed to handle the case at his turn. In the first hearing, the judge asked the plaintiff to do two tings. 1) collect eveidence (show evidence). 2) mediation. It is almost two months since that hearing. I have figured out all the detail of where and whom to contact to get evidence. The only thing I asked my attorney to do is to get subponea or court order in order to get DEA and Medicaid report because of HIPPA regulation. My attorney also suppose to contact the defendant's attonrey to communicate and arrange mediation or communicate to court about the mediation. I have given my attorney my bottomline of settlement and asked him to communicate. But none of the two things happends as of today. I have been keep asking him to give me update of the status about he has done. Mostly he said he is busy with other cases. Everytime I asked him when I can call him to discuss. He typically told me after 2:00pm in the afternoon. When I called him, he never answer the phone. I then followed up with email telling him I called at the time he suggested and left voice. I then asked him again when to call him again. He then give another time. When I called again, the same thing happened. I am pretty by the 1st anniversary of the case filing, even the evidence permission cannot obtained from the court. I wanted several times to terminate the him. In summary, he never treat my case attentively. If I do not asked him, I am sure noting will happend since May 13. I understand it takes time to collect evidence. But I feel he is not acting a way professionally. I wonder whether this is a malpractice or not. What should I do?

Hi! I will be the professional that will be helping you today. I look forward to providing you with information to help solve your problem.

Good evening. I certainly understand the situation and your concern. What you described above is a situation that MAY lead to a possible malpractice claim. In order to prove the lawyer is liable for the malpractice and damage in your case, you would need to prove one of the three major theories of liability: negligence (literally malpractice, missing an important statute that could play a major role in the client’s case), breach of fiduciary duty (fiduciary duty is a duty when a client entrusts something to the renderer of the services, such as money given to the broker as an investment), breach of contract (an interruption of contract for various reasons).

To prevail in a legal malpractice claim in Kentucky, you must prove:

that an attorney-client relationship existed,
that the attorney deviated from the applicable standard of care (what a reasonable and competent attorney would do under the same circumstances), and
that such deviation caused you financial harm.

As such, it is possible that at this point you could fire your attorney and retain new counsel, who you think will move the case along and act in your best interest and file a complaint with the Bar, at the same time. If the attorney is not acting professional, find new counsel. You dont have to settle and work with someone who does not have your best interest at heart. Dragging his feet and having to always remind him to do things, it not necessarily malpractice at this point. It is what could possible result from his actions, that could give you the claim.

Please let me know if you have any follow up questions or need any clarification on something which I stated above, prior to rating me. Also, please remember to rate my service with 3, 4, or 5 faces/stars, before exiting the site, so I can receive credit for my help. I hope you found it to be Excellent! Only rate my answer when you are 100% satisfied. If you feel the need to click either of the two faces/stars on the left, please STOP and reply to me via the "REPLY TO EXPERT or CONTINUE CONVERSATION "button. I want to make sure your experience with the site was as pleasurable as possible and that you are satisfied with the help I provided.
Customer: replied 4 years ago.

Thanks for the answer. I totally agree with your analysis. Regarding what need to prove in KY, I put my comment below. Besides, collecting evidence, I think mediation does not have a ground if the plaintiff and defendant has no common ground in terms of settlement. Now the defendant is not responding on settlement. I think my attorney need to sort this out agressively instead of finding a mediator(s) without any understaning of the bottomline of both parties. Or he needs to convince the judge to abandon the mediation request.

that an attorney-client relationship existed, -- We do not have a contract between attorney and client. But the actual email and work he did can prove the existance of such relatonship.

that the attorney deviated from the applicable standard of care (what a reasonable and competent attorney would do under the same circumstances), -- This is a tricky part. But I have all the record timeline of the services (sheriff, special bailiffs, and warning order attorney). For all of these services, I believe this is a process (assuming if he acted timely) of at most 5 months. But it actually took 7 months because of not acting timely on his part, is it a ground? I see this kind of pattern. The same pattern after May 13, the first hearing. Now, it is almost two months, he didn't get a subpoena. He told me the judge can sign electronically to get this in one day.


that such deviation caused you financial harm.-- The witnesses are harder to find as time goes by. I am paying billing on the business in lawsuit. The biggest risk is the defendant transfer his asset away so that no meanful collection. The proof may only be show after I receive the judgement.

If you retained this attorney to represent you, there should have been an agreement for services/retainer agreement. I am not sure why the attorney would take the case and fail to lay out the terms, conditions and cost of representation. This could subject him to a complaint. Moreover, there is no one specific way in which an attorney needs to handle a case. While he may not be working as fast as you would like, it could be as a result of a heavy case load which he is trying to manage. Something taking two extra months when he is still within the time allowed, is not grounds for deviation.
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Customer: replied 4 years ago.

To follow up on the previous question


I heard if there is no attorney-client contract, the default (i.e. his charge of hourly rate) applies to his fee. Let's say, I wait for another two months and he sitll does nothing, can I consider him abandon the case and sue him for mal-practice if the delay causes collection issue? Without attorney-client agreement, is he still bounded by common sense rule? If he has heavy work load, why my case is not on his agenda even if the case is at time sensitive stage?

If his delay causes you to suffer damages, then you could have a claim. The damages needs to be shown. Why wait another two months if you can fire him today and retain new counsel, to move the case along? If he has a heavy case load he needs to balance his time and stay on top of his cases. It is not an excuse to neglect your case. If he is doing nothing on your case, call and ask him why. Demand answers as the client. You do not have to sit and wait for something bad to happen if you do not think he is acting in your best interest.
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