Articles Posted in Issues and Insights

Insight: You should contact the Commission on Judicial Conduct for your state.  Each state has a different process for submitting a complaint, but a written submission describing the ethical violations accompanied by supporting evidence is usually required.

If the Commission believes that the judge has committed an ethical violation, it may begin disciplinary proceedings by issuing a complaint.  The judge will be given an opportunity to respond to the allegations of misconduct.

The Commission may reprimand a judge informally with or without a hearing, or could hold a formal hearing where evidence is presented and could recommend that the judge be publicly reprimanded, suspended or removed from the bench.  The Commission’s recommendation is usually then presented to the state’s highest court, which will render final judgment.

Insight: You should begin by researching the statutes of limitations on legal malpractice claims in your state.  In Massachusetts, the statute of limitations on a legal malpractice claim must be filed within three years.  However, Massachusetts, like many jurisdictions, follow the so called discovery rule in some jurisdictions, including Massachusetts, which tolls the applicable statute of limitations until the plaintiff knew or should have reasonably discovered the attorney’s negligent conduct.  Other states recognize a continuous representation rule, where the statutory period is tolled until the attorney ceases representing the client.

Failing to bring a lawsuit prior to the statute of limitations can be fatal to your malpractice claim.  You should consult a legal malpractice attorney if you think your lawyer may have committed malpractice.

Insight: You should contact the division of your state’s bar, which handles disciplinary actions of attorneys.  Each state has a different process for submitting a complaint, but a written submission describing the ethical violations is usually required.

If the reviewing authority believes that the attorney committed an ethical violation, it will likely begin disciplinary proceedings.  The attorney will have an opportunity to defend the allegations and the disciplinary committee may hold a formal hearing.  The prosecuting attorney may want you to submit an affidavit or testify at the hearing.  Typically, the disciplinary committee will hear evidence and issue a recommendation of discipline, which can include private admonition, public admonition, suspension or disbarment.  The recommended ruling will usually be submitted to the highest court in the state, which will issue a final judgment.  You can click here to find your state and information about filing an ethical complaint or grievance.

Insight:  In order to succeed in a malpractice action, you need to prove not only that your attorney made an error, but that it resulted in harm to you.  This is usually done by showing that you would have obtained a more favorable result, absent the attorney’s mistake.

If your litigation is still ongoing, it may be possible to correct the lawyer’s error.  Often, the mistake will have prevented you from succeeding in all or part of your lawsuit.  If you feel an error has been committed, it is usually best to notify your lawyer of his or her potential malpractice.  This is not always easy to do, and it usually will result in your having to hire another attorney to represent you in the pending case.

If you think your attorney has committed malpractice, you can always contact a legal malpractice attorney to get an opinion and advice on whether or not to notify your attorney, and the likely implications of doing so.

Insight: Not all ethical violations amount to malpractice, and vice versa.  For instance, when an attorney has failed to bring a claim prior to the expiration of the applicable statute of limitations, he has likely committed malpractice, but this  would not normally be an ethical violation.  However, if your attorney missed the statute, and knew it, but then failed to inform you of his mistake, he may be subject to disciplinary action for withholding the information.

Another key difference between an ethical violation and malpractice is that clients typically can seek punitive measures against an attorney for ethical violations, but can only recover monetary damages as a result of their attorney’s wrongful action, by filing a malpractice claim.

Insight: Most legal malpractice cases require expert testimony to prove that the lawyer’s conduct fell below the standard of care of a reasonable attorney acting in a similar situation.  Expert witnesses are typically experienced lawyers, who practice in the same area of law in which the malpractice occurred.  For example, in a divorce malpractice case, the expert would likely be an experienced divorce attorney.

The purpose of expert testimony is to assist the judge or jury to understand when a mistake rises to the level of malpractice, which is usually beyond the comprehension of the average person.  However, when an attorney’s negligence is so gross and obvious that a lay person would be able to comprehend the issue, an expert may not be required. An experienced malpractice attorney will usually make the call whether there is a need for an expert under a given set of facts.

Normally, the claimant is responsible for the cost of retaining an expert, but malpractice attorneys typically advance the funds, which are reimbursed when and if there is a successful result.