Can I sue my attorney and his firm for malpractice and collect from their insurance carrier?

Asked 12 months ago - Brooklyn, NY

I had a 50h hearing but my attorney never filed a lawsuit by the time I found out the statue of limitation had past. Furthermore, I found out my attorney was a full-time employee at 2 different firms, which is a conflict of interest and neither firm knew until now. One of the firms is offering me some money from the attorney's personal account, however, I've been adamant that I want to know if they have malpractice insurance no one will give me a straight answer. My attorney claims he has no malpractice insurance but I know him to be lest then truthful also wouldn't his firm have to have insurance. My lawsuit was for a trip and fall which resulted in me breaking my foot and was part of the catalyst for me losing my employment. My doctor informed me that I will need surgery on my foot.

Attorney answers (7)

  1. Joseph Leonard Ciaccio

    Contributor Level 12

    4

    Lawyers agree

    Answered . It's possible for your attorney to not have insurance, it's not required.

    You should speak to a legal malpractice attorney ASAP to discuss a possible case.

    Joseph L. Ciaccio is a New York attorney with the Law Offices of Joseph M. Lichtenstein, P.C. (medicalattorneyny.... more
  2. Ryan M. Finn

    Pro

    Contributor Level 13

    3

    Lawyers agree

    Answered . If you file a lawsuit they must disclose the existence of insurance. If it is a firm then chances are they had insurance. Smaller firms and solos are less likely to carry insurance.

    PLEASE READ THIS DISCLAIMER * I very much like to offer my advice and guidance to those in need. It is why... more
  3. Alfred C. Laub

    Pro

    Contributor Level 10

    3

    Lawyers agree

    Answered . Legal malpractice cases are traditionally more difficult than a conventional personal Injury case. I have been handling these types of cases for more than 30 years and essentially it is a "case within a case". That means that the underlying case must be proved, in addition to proving the malpractice of the lawyer. The failure to prove one or the other will cause the entitled claim to fail.

    Before getting started, it is imperative that both claims be investigated and evaluated. The. Statute of limitations for the municipal claim is 1 year and 90 days and the legal malpractice claim has a 3 year statute. It is critical to know the exact nature of your lawyer's negligence before moving forward.
    Alfred Laub
    THE LAUB FIRM P.C.
    Committed to Helping People Reclaim Their Lives
    www.justice1.com

    The underlying facts for each situation are unique. Any responses given are for informational purposes only and... more
  4. Andrew Lawrence Weitz

    Pro

    Contributor Level 17

    3

    Lawyers agree

    Answered . Blowing a statute of limitation is a violation of a statute and is therefore in a category known as negligence per se. That is, the transgression in and of itself constitutes negligence. The next question is whether that negligence is a departure from good and accepted legal practice in New York. Any reasonable person will have to conclude, yes. The final inquiry in this chain is whether the malpractice is the proximate cause of your damages. Since you are forever barred from filing this lawsuit and the malpractice caused this bar, we have a putative causal connection but we do not yet have damages. To establish damages, one must prove that s/he would prevail in the underlying case.

    It takes a lawyer familiar with both the requirements of proving a malpractice case and proving the underlying case to do a proper job here. A trip and fall is no longer an easy case, even in Brooklyn. The de minimis defense and the open and obvious defense are prevailing more and more often. Juries are more cynical than ever. Picking a jury for a legal malpractice case involves, essentially, picking jurors for two cases. The rub is that a person may be a good juror for one branch of the case but not the other. Picking a jury in this context is partially about minimizing conflicts.

    My point is, many claim to do malpractice and many do. You need a lawyer who understands the requirements of proving the malpractice case and proving the underlying tort (in this case) case.

    I am a co-author of WEITZ ON AUTOMOBILE LITIGATION: THE NO FAULT HANDBOOK. The opinions expressed in this answer... more
  5. Mitchell Jan Birzon

    Pro

    Contributor Level 13

    3

    Lawyers agree

    Answered . While legal malpractice cases pose significant issues, letting a statute of limitations expire when you have a credible claim is indicative that you may have a case to pursue. Have a legal malpractice attorney retained and make sure claims are investigated not only against the attorney but also against both firms as well. I am sure that our firm and the other attorneys who responded to you would be glad to discuss your case.

  6. Christian K. Lassen II

    Pro

    Contributor Level 20

    3

    Lawyers agree

    Answered . You can certainly have a local legal malpractice lawyer investigate.

  7. Eric Edward Rothstein

    Contributor Level 20

    1

    Lawyer agrees

    Answered . If the lawyer has insurance and timely notifies the carrier it will defend and indemnify the lawyer. I handle lots of legal malpractice cases and many lawyers don't have insurance.

    I am a former federal and State prosecutor and have been doing criminal defense work for over 17 years. I was... more

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