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Second opinion] It looks as though I have a possible legal…

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second opinion] It looks as...
second opinion] It looks as though I have a possible legal malpractice case on my hands for an attorney I retained and hired and then almost immediately after I paid the retainer amount, he has failed to show up in court 2 days and lied about several other items stating he did them but I found out later that he not only didn't complete the items but he didn't even attempt them.
Submitted: 8 months ago.Category: Legal
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Answered in 28 minutes by:
9/19/2017
Lawyer: legalgems, Lawyer replied 8 months ago
legalgems
legalgems, Lawyer
Category: Legal
Satisfied Customers: 13,017
Experience: Just Answer consultant at Self employed
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Hello! I will be reviewing your question and posting a response momentarily; if you have any follow up questions please respond here. Thanks!

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Lawyer: legalgems, Lawyer replied 8 months ago

I am very sorry to hear this.

Legal malpractice can be based on negligence and contract law.

Negligence is defined as a failure to perform with the level of care that someone of ordinary prudence would have exercised under the same circumstances. The behavior usually consists of actions, but may consist of omissions when there is some duty to act. This cause of action has 5 elements: the existence of a legal duty to exercise reasonable care; a failure to exercise reasonable care; harm caused by the negligent conduct; physical harm of actual damages; and proximate cause (reasonably foreseeable damages).

For breach of a contract, there is a material breach (goes to the very heart of the matter) and an immaterial breach (money damages will help compensate the plaintiff).

In cases of material breach, the party not in breach may revoke their acceptance, so goods/payment are returned.

For immaterial breach, the plaintiff is compensated by the defendant paying for the damages (ie cost of repair).

For malpractice it is either the cost of legal fees to rectify the situation, or economic damage to the plaintiff.

The bar can also sanction the attorney in addition to any civil judgment.

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Customer reply replied 8 months ago
Hired an attorney. Paid over $3,100.00 retainer to have him handle a custody revision due to new evidence brought forth showing my ex husband was being negligent and abusive to my son. He promised to get a TRO, an initial hearing and serve my ex-husband for the hearing. I retained him on Aug. 16th. He went to court for me on Aug. 17th for an emergency ex parte hearing and got the TRO granted with no visitation of the child. Then he stated court would be scheduled 14 days from that date and he would serve my ex.
It was after that, that everything went downhill fast. It was like he felt that the TRO, which literally took 30 minutes in prep on paperwork by his legal assistant. We showed up and were at court for 30 minutes at the most. Judge granted immediately and I was given documents. After that I immediately started getting asked to pay the attorney another 3,500? I was thinking that in one day, without, an actual hearing, he has not used my retainer yet.
Court was set for Aug. 30th. I explained to the attorney that my ex routinely avoids being served by never opening his door. And even stated that he may have to use the three day consecutive serving method where they process server would just serve my acts each day three days in a row at different times per day and then submitting an affidavit to the court that he was unable to reach the respondent and then get stamped by the judge to leave the paperwork on his front door.The attorney and his legal assistant agreed and said they would do that.If you days later, assuming my ex-husband had been served, he kidnap my child from afterschool program and refused to return him. When the police were called and I stated that he was violating a restraining order he stated that he has not been served with any documentation so therefore he is not in violation. That caused me to question my attorney. I called the attorney office and they stated that they have been having a hard time serving my accent that he had actually not been served yet. I knew I have a doctors appointment that my ex-husband had the following morning that my son told me about so I gave them the name, address, and time of a doctors appointment to give to the process server. The legal assistant took the information and agreed and yet they still did not give the paperwork to the process server. Long story short, after waiting days and days I finally demanded confirmation of process server getting the documents. After begging and pleading and a lot of back-and-forth his legal assistant finally provided me a verification from the process server and it shows that they did not even give the paperwork to the process server until 5 PM on Friday, August 25th. A process server did follow through correctly once he finally received the documentation and attempted the three day serve, went to court to get it stamped and was finally effective at serving the paperwork leaving it on my ex-husband's door on Tuesday, August 29th at 2*****was scheduled the following day! I did not know that the process server had not been given the paperwork in a timely manner until after the hearing date of the 31st. I called my attorney's office asking to prepare for the court hearing which they stated they will just see me in the morning before the hearing time at 9 AM. I spoke to the legal aid that morning of the court hearing to get verification of presiding court room number. I paid for parking and walked into the court room to find my attorney in the hallway preparing for another case telling me that the case had been reset. I was surprised since I didn't see my ex or my ex's attorney. I asked what happened before I got there. He said that the opposing counsel's "legal aid showed up and they agreed to Just reset the hearing date since they were not retained until the night before." Something didn't seem right because my son had mentioned that his dad had gotten and attorney several weeks prior.That is when I asked is legal aid to provide me verification that my ex-husband had actually been served because I wanted to make sure that my attorney had served him with the correct three day notice requirement. It was then that I found out what the documentation that my ex was served the day before court. That court hearing was never valid and it would have had to be reset. I should not have been made to drive downtown and pay for parking and go in to be told a lie by my attorney as to why the hearing was being reset. My attorney didn't want to admit that he had dropped the ball and didn't give the paperwork to a process server in time to serve my ex with the 3 day advance requirements. He wanted to make it sound like it was being reset due to something my ex husband had done wrong. Additionally, he then later tried to state that he was charging me for an "entire court day" that day because "he had to show up to court to get the hearing reset. So he wanted to charge me $300.00 an hour for 8 hours that he wasn't even
Customer reply replied 8 months ago
There. He was there in another case and working with another client when I got there at 8:45 am.
Customer reply replied 8 months ago
That is only the first instance in which I felt he was being dishonest and seemed to be unaware or not practicing law correctly.
Customer reply replied 8 months ago
I then realize that the kidnapping of my son would have been avoided had he given the documents to a process server right away and gotten him served. Then my ex would not have been able to claim he "can't violate something he hasn't been served with."
Lawyer: legalgems, Lawyer replied 8 months ago

Any grievances can be directed to the attorney to see if they can rectify it tp the customer's satisfaction; if not then the next step would be
1. file a civil suit for negligence/breach of contract

2. file a complaint with the bar

3. seek a motion to vacate any orders due to negligence, inadvertence, mistake.

#3 is a common option when there is legal malpractice.

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Lawyer: legalgems, Lawyer replied 8 months ago

And yes, that is correct; a person needs to have actual service (personal) of a court order in order to be held in contempt -but actual kidnapping is criminal so it can be prosecuted at the criminal level (local law enforcment)

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Customer reply replied 8 months ago
I have tried to file grievances with the attorney and to open lines of communication and offer options for remedy. He denies any misconduct whatsoever and states that he will not continue to work my case unless I pay him an additional $3100.00
Lawyer: legalgems, Lawyer replied 8 months ago

If an attorney is not responsive then the client would need to hire another attorney to complete any outstanding work or to seek an order vacating any prior orders, and then to pursue possible legal remedies.

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Customer reply replied 8 months ago
I still have a family law issue that I need resolved but I have now had my son kidnapped by my ex, had my ex break into my home and car, had child protective services involved and then my ex called and threatened my employer in which they just "laid me off." Stating it was just easier to let me go rather than deal with the harassment. So I'm now jobless. I have a temporary restraining order at least against my ex husband but i don't know how long it lasts. I have been forced due to safety and financial reasons to leave the state and move home to California where I have family and support. I am thinking that the best way to proceed is to immediately fire the current attorney and request for a motion for continuance on a supposed court hearing set for this Thursday. At least the last I heard from my attorney he stated that the new court date was Aug. 21st of which it would be the 3rd time he has "reset" a hearing date.
Lawyer: legalgems, Lawyer replied 8 months ago
I am so sorry you are having to deal with all that. How horrible. Yes, it would be important to have legal counsel ready to act on your behalf, with someone that you feel comfortable with. Unfortunately we can't give referrals but you can contact the local bar for a referral.
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Customer reply replied 8 months ago
I can't afford it. I am asking from a pro se perspective. Do I fire current attorney. I sent an email to him requesting to release him yesterday. He sent me documentation on a hearing set for the 21st at 8:30 am for judge to approve him withdrawing. Yet we have a court hearing scheduled that day for 9:00 am?
Lawyer: legalgems, Lawyer replied 8 months ago

Unfortunately we can only provide information and cannot advise a certain course of action as to what the customer should do (this is a public forum and providing direction would be legal advice which requires an attorney client relationship, attorney fee agreement, conflict of interest check, full review of court file, etc).

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Lawyer: legalgems, Lawyer replied 8 months ago

Hello again; just checking in to see how things worked out;

If you have no further questions a positive rating is most appreciated (at no additional cost to you) and allows the site to credit my account for the time spent assisting you!

if you have further questions please don't hesitate to reach out to me here on Just Answerand I will do my best to get you the requested information.
Thanks!

The above information is for educational purposes only. A consultation with a private attorney is recommended so they can apply the law to your specific facts, and suggest the best course of action. An attorney can be located here:
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