Saturday, November 2, 2013

Word of the Month for November 2013: Legal Malpractice

money money money
As a LAW Librarian, I tend to gravitate towards legal publications.  One such publication is the Daily Journal.  On October 15, it published an article "State Bar determined to pursue nonlawyers" which was about the California State Bar's determination to prosecute people who practice law without a license

This, of course, is all a ruse to draw away attention from the fact that 1) those who practice law without a license don't pay bar fees (at about $500 a year), 2) those who practice law without a license sometimes do it better than those who do practice with a license, and 3) if the bar were to have the power to prosecute persons who practice law without a license, it would take monies away from the courts (who, as most everyone knows, is a cash cow for the state).

The problem with all of this is that the State Bar has once again failed to address the issue that most people care about; what to do with attorneys who take people's money (in the form of a retainer) and then fail to fully and fairly represent their clients' interests.  Which all brings us to our word of the month: LEGAL MALPRACTICE.

According to Black's Law Dictionary, legal malpractice is defined as a lawyer's failure to render professional services with the skills, prudence, and diligence that an ordinary and reasonable lawyer would use under similar circumstances.  Basically, someone who could do the job but didn't.

Example 1: Attorney Moe practices bankruptcy law.  Let's say, defendant Dan comes Moe wanting Moe to represent him (Dan) in an unlawful detainer action.  Times are tight so Moe takes the case and manages to file the petition but fails to appear at the hearing and the case is taken off calender.  Oops.

Example 2:  Attorney Larry (who has been practicing for 20 years) accepts a new client (and collects her retainer).  Larry never files the complaint, the limitation of actions period runs, and the client loses the chance to file suit.  Ouch!

Example 3:  Attorney Curly has worked on a case and has recently reached a settlement deal.  Client does not want to settle.  Without telling client, Curly signs the settlement offer and convinces Client it's the best Client will get.  Client gets mad and demands his case file.  Curly says no and refuses to give Client access to Client's case file.  Doh!

In each instance, there is an issue of possible legal malpractice (I have to say possible because there's always a chance the jury will go the other way).  When people come into the library madder than a wet hen having been burned by an attorney, I tell them to file a claim with the California State Bar.  Often, however, people are often told by people at the State Bar that "they" (the State Bar) won't do anything until after the person sues the lawyer (and wins) - but who has money/time for that?!

For those that want to read up on legal malpractice (and/or find out how to avoid it), might I suggest you take a look at:
Yep, practicing law can be a real mine-field.  If you do it right, there is a sense of fulfillment that can't be beat.  If not, well....