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Ethics/Professional Responsibility

Aug. 19, 2021

5 lousy reasons to fire and sue your lawyer

Legal malpractice claims are most often caused by failures to communicate and can be avoided by successful two-way communication. We all know this in our legal bones. Even with the best of communications between client and attorney, legal malpractice cases will be filed.

Louie H. Castoria

Partner, Kaufman, Dolowich & Voluck LLP

425 California St 21st Fl
San Francisco , CA 94104

Phone: (415) 926-7601

Fax: (415) 926-7601

Email: lcastoria@kdvlaw.com

UC Berkeley Boalt Hall

Louie is a mediator with CourtCall Online Dispute Resolution, a member of the Mediation Society, a mandatory settlement officer with the San Francisco County Superior Court, and an adjunct professor of law at Golden Gate University. He won his first U.S. Supreme Court on July 1, 2021.

Legal malpractice claims are most often caused by failures to communicate and can be avoided by successful two-way communication. We all know this in our legal bones. Even with the best of communications between client and attorney, legal malpractice cases will be filed. I've defended a lot of them and have been a defendant in two. I don't mind admitting that. Both were settled quickly and cheaply. Besides, two claims are below the norm for a 41-year career There are some good reasons to fire and sue your lawyer. Here are five bad ones.

"She charges too much!"

Litigation can be like war, using only slightly more genteel means. It doesn't have to be that way, but all too often one side or both look at a civil lawsuit in a very uncivil way. Even when all counsel are playing nicely in the judicial sandbox, none of them has control over what will happen -- hence the virtually universal case law holding that an attorney is not a guarantor of the outcome of a case.

I may tell my client that I need to take five depositions and file one motion for summary adjudication to narrow the case, and then settle or prepare for trial. Sounds simple enough, but another attorney in the case is filing a motion to dismiss, and looking to take 15 depositions if it's denied, plus planning to serve several, thick sets of written discovery. So much for my well thought out, efficient plan.

As an insurance defense litigator (most of the time) I'm required to submit early budgets in my cases. Some need to be highly detailed, others more general. In large cases, I call the other counsel and ask how many depositions they plan to take, and who the deponents are, as there are likely to be duplications. Doing so doesn't limit what attorneys in the case might need to do, but it's a good place to start.

Another way to avoid the "charges too much" objection is to have a staff person, perhaps in the billing department, or if you're solo, your teenager, look at your total billings in cases that went to conclusion in your most frequent case types. Find the highest, lowest, and the mean, median, and mode, and share those with the client. These amounts are intended as guideposts, not guarantees. That should be made clear in writing.

If these strategies don't avoid fee disputes, most counties and some large city Bar Association have free or low-cost fee arbitration programs that can resolve billing disputes.

A word of advice: don't sue your client to collect fees until after the malpractice statute of limitation has expired.

"He lost the case!"

These things happen. In a case that goes to verdict and judgment, it is almost certain that at least one party will lose the case, and possibly both will if the amount awarded it is less than one party's expectations and greater than the other's.

Losing is a fact of life, not a ground for malpractice. The problem with losing, apart from a disappointed client, is that no lawyer's file is so completely bulletproof that an expert witness can't concoct some relationship between the lawyer's work on the case and its regrettable result. But, client disappointment isn't malpractice. The standard of care for lawyers is to adhere to the level of practice of other lawyers in the same type of case and the same or similar venue.

In malpractice cases following a bad result there is a concept of the "case within a case." Simply put, the plaintiff's malpractice attorney must prove that a reasonably competent attorney had a better than even chance of winning the case, but for the error made by the defendant attorney. That can be a tough road to hoe, but there are some malpractice expert witnesses who will find an error underneath every stone.

Settling cases, a good idea in any event, is not a sure-fire way to avoid a malpractice claim, thanks to so-called "settle and sue" cases. The standard to win such a case is considerably higher than the duty of care standard in ordinary malpractice cases. In a "settle and sue" case the plaintiff must prove to a legal certainty that a better result would have been obtained, but for the settlement.

"She doesn't keep me in the loop and give me a chance for input."

This is an easy one to avoid. Some lawyers find and clients find it too impersonal, but it's a good idea to mix written communications with clients with oral ones. For those unwritten communications, send an email confirming what was discussed or recommended. I recently defended a client who had meticulously documented each communication with the former client, now the malpractice plaintiff. A retired judge, acting as a mediator, got it settled very inexpensively.

"He overstaffed the case!"

It's an unfortunate fact of modern legal practice that most firms should install revolving doors in their ornate entryways. The longest time I spent in any firm was 33 years, two months, and 16 days. I've been in my current firm for seven years. I guess I just can't keep a job.

I do a lot of interviewing for our office and see several resumes in each round of interviews in which a seven-year career may include as many different firms. There are a lot of good reasons to leave a job: health, relocation, assisting aging parents, you name it. But it is nice to see a résumé that says the attorney has stayed with a firm long enough to get the chair warm. I used to call frequent jumpers "kangaroos," but real kangaroos objected.

But I digress.

When clients see attorneys entering a case on a bungee cord and quickly leaving the same way, it causes concern. "Why are there so many names on this invoice?" The best way to answer the question is to preempt it. "Dear Ms. Client, I know you've enjoyed working with my colleagues, Efrem and Judith. Unfortunately for me, Efrem is on an extended leave and Judith has left the firm to pursue work in intellectual property. To stay on top of the case, I have asked two other colleagues with similar levels of expertise to work with me on the file. We will not bill you for any start up time these two talented attorneys, Elmer and Jennifer, incur. Please feel free to communicate with them as you would with me."

Note: Some clients, especially large companies or insurers, want to approve attorney reassignments before they are made.

"She wasn't prepared."

We would like to be ready for anything in litigation. That is a good aspiration, but not a realistic one.

There are always surprises. The judge denies a motion in limine you thought was a sure bet. The jury foreman falls ill, and is replaced by an alternate juror, the one you least wanted to see in the jury box. Despite meticulous preparation, your client or your expert makes crucial, irretrievable mistakes in testifying under oath.

Maybe instead of being ready for anything, we should be prepared to roll with the punches. It's a good idea to have Plan B at the ready, or to call a colleague during a recess in the trial when the unexpected occurs. When it comes to surprises, two heads are better than one.

That these things happen doesn't mean you were "unprepared." You were prepared for the case that was expected to be heard, not the one that came by surprise.

A close friend and former California State Bar President told me, "Every case is really three cases: the one that walks in your door, the one you learn about only through discovery, and the third, most important, one, the one the jury hears at trial." I sometimes tell a client that aphorism when I'm feeling pressured to give a guarantee of the outcome. You can't be prepared for everything.

There are genuine legal malpractice cases, of course. In my view the five circumstances described above aren't among them. 

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