Written by attorney Jonathan Craig Reed

Legal Malpractice and Fee Disputes with Attorneys

I get many calls from people who are unhappy with their former attorney. The first thing I try to do is determine if the call is about a fee dispute or actual legal malpractice. If it is about a fee dispute and a Nevada attorney is involved I advise the client that the State Bar of Nevada, 702-382-2200, offers a free arbitration service for people who have a complaint about a fee charged by a Nevada attorney. Even if the client has already been sued by the attorney to collect a fee, the lawsuit can often be put on hold while the dispute goes to the Bar's free arbitration service if the client wants. Clients can represent themselves in the State Bar's fee arbitration procedure in the sense that the state Bar which administers the program is used to dealing with people representing themselves. If a lot of money is involved the client may want an attorney to represent them in that proceeding. Like other attorneys I typically will only represent a client in a fee dispute if the client pays me an hourly rate with a retainer up front.

On the other hand, if the call is really about some big dumb mistake the attorney made that hurt the client significantly, then we have a legal malpractice case which I and many other attorneys are willing to take on a contingent fee. (We don't get paid unless we win.)

The requirements of a legal malpractice case are technically that: 1) The attorney made a mistake that was not just a mistake of judgment but was a mistake that was so bad that the conduct violated normal standards in the legal profession, and 2) The client suffered real damages as a result of that mistake. As a practical matter a third requirement of a legal malpractice case is that the mistake the attorney made is easy for the new attorney to understand and sell to a jury. Also, as a practical matter the attorney must be good for any judgment obtained in a legal malpractice lawsuit. Here are some examples of good legal malpractice cases:

Missed Deadline:

An attorney might fail to file suit before the statute of limitation runs. Or an attorney might file suit but the complaint might be defective and get dismissed and then it is too late to file again. For example, in Nevada a medical malpractice complaint must have attached expert affidavits explaining what the defendant health care provider did wrong. If such affidavits were not attached to the complaint the complaint would be void.

Conflict of Interest:

Suppose three people are in a car and a drunk driver slams into the car and kills or injures all three. Suppose also that the only insurance available is $100,000 liability policy to cover all three claims. If there is death or serious injury what is a fair division of the $100,000? One attorney cannot represent all 3 claimants unless all three "waive the conflict."

Very Difficult Legal Malpractice Cases:

Sometimes the client loses the case after spending a lot money. Naturally, the client is very unhappy and feels that the attorney either made a mistake or deliberately oversold the client on filing a lawsuit and paying the attorney a lot of money to do so. While the vast majority of my colleagues are honest there are some attorneys out there who encourage an aggrieved client to file suit, regardless of the chances for success, as long at the client is good for a large retainer and being sued for the rest of the bill. Unfortunately, this is a difficult legal malpractice case because the dishonest attorney will: 1) Argue that the client told him one thing, but after the case got going, less favorable facts were discovered, and 2) The attorney never promised a result and since the initial client-attorney conversation was never recorded who can say who is telling the truth?, and 3) the law wasn't that clear to begin with but the client understood the risk and wanted to file suit.

There is no point in suing an attorney for legal malpractice if the attorney will not be good for any judgment you get. If the attorney does not have malpractice insurance this is a bad sign. In Nevada you can go the state Bar's website and go to "Find an Attorney" and put in the attorney's name and find out if the attorney has malpractice insurance. It is a good idea to avoid attorneys who don't have malpractice insurance.

Attorneys Who Sue Clients Over Fees:

Good attorneys are very reluctant to sue clients over fees. If an attorney is representing a client on an hourly basis and the client gets behind on paying the bill the attorney has the option of moving to withdraw on the basis of non-payment. Maybe the attorney will decide not to withdraw because he or she likes the client and feels the client has already paid what the client can afford. Or maybe the attorney will keep representing the client because the attorney figures the client will eventually pay if he or she can. But occasionally, an attorney keeps representing the client because the attorney figures he or she can alway sue the client for the fee at the end of the case, win or lose, and the client is good for the money. For Clark County, Nevada (which includes Las Vegas), you can go online and see if an attorney has been a plaintiff if any lawsuits. If the attorney has, you can go to the courthouse and review for free the cases where the attorney has been a plaintiff. If the attorney has a record of suing many clients for fees this may be suggestive of a pattern of abusing clients.

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