Q: What should I do if I think I have a claim against my lawyer for malpractice, but the matter is ongoing and he or she is still representing me?
A. Whether to proceed with the underlying case
This is a common issue. A client cannot, at the first sign of a serious mistake which might handicap the client’s position in a lawsuit, for instance, simply quit and go after his/her lawyer for malpractice.
A client has a duty to mitigate (lessen) damages if he/she expects to ever be in a position to prosecute a claim for legal malpractice later. The client should therefore do everything reasonably necessary and appropriate to advance the underlying claim, even if it has been compromised.
That said, a client is not expected to engage in futile efforts. Each case is different, but for example, if a lawyer’s mistake results in an adverse ruling on a motion depriving the client of his/her ability to present certain evidence at trial, under many circumstances the client should still try the case. However, if the evidence was critical, lynchpin evidence for which there was no substitute, then the decision, for instance, to settle the case instead of try it may not present significant impediments to a legal malpractice case for damages.
Similarly, suppose a lawyer mishandles a case, resulting in an adverse ruling before trial, the client gets another lawyer who tries the case, handicapped by the earlier lawyer’s mistake, and loses. Suppose that, after the trial, the second lawyer recommends against an appeal of the adverse ruling (or other adverse rulings), and the client sues his/her fist lawyer for malpractice. The defendant lawyer might argue that the client’s failure to appeal within the time limitations was a failure to mitigate damages, and that the second lawyer committed malpractice by failing to recommend an appeal.
If there were good appeals, the argument might have some merit. However, it is not a failure to mitigate damages if the appeal was highly dubious. Such factors as cost of the appeal, and exposure to pay the other side’s attorney fees if the appeal is lost, can have an impact on whether the client’s failure to appeal was reasonable, or was an unreasonable failure to mitigate damages.
My general approach to such questions is to play it safe – close calls favor action rather than inaction. For the most part, the fewer excuses you can give to the defendant lawyer at trial in the malpractice case, the better. However, each case must be evaluated on its own unique facts and circumstances.
B. Whether to hire replacement counsel
If a client faced with a lawyer’s mistake in an ongoing case decides to proceed with representation in the underlying matter, the question remains, should the client fire and replace the lawyer? That depends. Firing the lawyer might be an easy call if the lawyer’s mistake or pattern of mistakes reveals a skill level that leaves the client with little confidence the matter will be competently handled going forward.
Similarly, the nature of the mistakes could even create a conflict of interest on the lawyer’s part, requiring a substitution of counsel. The lawyer might perceive that losing the case on the merits of some issue unrelated to his/her malpractice might be the best insulation from a claim that the malpractice caused the loss.
For instance, assume the lawyer made an obvious mistake which destroyed the client’s ability to claim a large component of damages the client might otherwise have been allowed to recover in a breach of contract case. Assume the case continues to trial to recover a smaller amount of remaining damages. The lawyer (consciously or subconsciously) might now have common cause with the defense, in that a verdict that there was no breach of contract could be his/her "get out of jail free" card. If there was no breach of contract, then any mistake the lawyer might have committed relating to damages for breach of contract made no difference.
This kind of potential conflict might be waivable, but the client should strongly consider a substitution of counsel even if there are no concerns about general competence (even good lawyers make mistakes). Often under these circumstances the decision will be made for the client, as counsel seeks to withdraw based on a real or claimed non-waivable conflict of interest. That is particularly the case if the client complains about the mistakes and openly blames the lawyer during the representation.
One advantage of proceeding with the same lawyer in the underlying matter is that it will be impossible for the lawyer to blame the "new guy." It is not uncommon for the negligent lawyer who is replaced to blame, in a subsequent malpractice case, the next lawyer who took over for any adverse result, whether at trial or in a transaction, for instance. If the negligent lawyer sees the matter through, it will be harder to blame other attorneys, though he/she may still try to blame the client. In addition, if the matter is very close to trial, the risks associated with trying to change horses so late in the race could outweigh any benefits of having what the client may perceive as better representation.
If a malpractice case is contemplated, it is best for the client to seek legal malpractice representation before the matter is concluded. However, care should be exercised to ensure that malpractice counsel’s scope of work does not unwittingly make the malpractice attorney a witness to his/her own case, conflicting malpractice counsel off the case, and to ensure that attorney-client privilege between malpractice counsel and client is not waived. (These subjects are complex and beyond the scope of this article.)
Special care should be exercised in regards to settlements of matters compromised by suspected malpractice. See "If I believe my lawyer committed malpractice, and my case is ongoing, what impact might a settlement of the case have on my legal malpractice claim?"