Grievance or Complaint
Clients always have the option of complaining about their lawyer's acts to the state bar, the office that oversees attorneys practicing in that state. If the misconduct rises to the level of a grievance, the lawyer will be reprimanded. However, the misconduct may not be malpractice.
Grievances arise out of an attorney's unethical conduct. All attorneys are bound by certain rules of ethics. Lawyer who do not comply are subject to disciplinary action by the state bar. The discipline can be a private or public reprimand, suspension of the lawyer's license and, in the most egregious of cases, the lawyer must permanently give up his law license.
How do I file a grievance against my attorney?
Contact the local bar association in your city. They should have information on how to file a grievance. There may be a form to fill out or you may just write a letter to the state bar requesting an investigation.
What do I say in my letter requesting an investigation?
Your letter should give:
- your name, address and telephone number,
- the name, address and telephone number of the attorney you want investigated (include the lawyer's full name and law firm name),
- the name of your court case (if one has been filed) including the case number,
- a description of what your attorney did or did not do that may have been incompetent, improper or unethical, and
- copies of any documents that you have, such as letters, agreements or correspondence that help support your complaint.
Can I find out if my attorney has had previous grievances filed against her or if the state bar has disciplined her?
Yes. Most states have an Attorney Registration and Disciplinary Commission (ARDC). These agencies maintain discipline information for lawyers licensed in your state.
What do I get if I win my case against my attorney for malpractice?
You recover the money you would have potentially received if you had prevailed on the underlying case. For example, if it were clear you would have been awarded $10,000 for your personal injuries, you would recover that amount.
TIP: The attorney's malpractice insurance pays the claim, plus the cost of defending the attorney.
SIDEBAR: Attorney malpractice claims have a statute of limitations just like any other claim. If the client fails to sue within the time frame set out by state law (2 to 4 years), she has lost her right to file a lawsuit.
Is it malpractice if my lawyer will not return my phone calls?
No. However, if your lawyer is not regularly returning phone calls in a timely manner (at least by the next day), you may want to consider hiring another attorney.
TIP: If leaving messages for the attorney does not work, ask for the name of his legal assistant and leave messages for that person. Typically, the legal assistant will return calls. Of course, she should have returned your calls to the attorney if he was unable to get back to you.
TIP: If communicating with you attorney's office has become impossible, fax the office detailing the dates you called and the fact that the calls were not returned. Ask him to call you with 24 hours. If you still do not hear from your lawyer, contact the local bar and make a complaint.
I hired my current attorney because she said I had a great case and could probably settle it for at least $100,000. Now she is pressuring me to settle for $10,000. Is this malpractice?
No. Lawyers should never guarantee a result, and it appears she overestimated the value of your case. However, you need to get your file, take it to another attorney and get a second opinion about the value of your claims.
I think my lawyer purposely overcharged me. What do I do?
You have several alternatives, but initially you should speak with your attorney about your concerns and ask that certain portions of the bill be cut. Most attorneys are willing to work with clients on bills. However, if you cannot get your attorney to reduce a portion of the bill, try one of the following options:
- Pay the portion you believe is reasonable, accompanied by a letter explaining your position.
- Pay the entire bill then sue in small claims court (if the amount is just a few thousand dollars) and ask for a partial refund.
- Pay the bill and file a complaint with the local bar and state agency that regulates lawyers complaining of inflated billing.
- Request fee arbitration.
SIDEBAR: Fee arbitration is a process available in most states where the client and attorney present their sides of the issue to a panel of neutral arbitrators. You should never agree to binding arbitration because you will waive your right to sue for a refund.
My divorce is final and the case has been completed, but my lawyer refuses to give back my retainer. What do I do?
Lawyers are required to return a client's retainer when the case is finished and there are no bills left outstanding. Complain immediately to the state bar that regulates attorneys. If your lawyer has "stolen" your money or mishandled it in such a way that it is gone, most state bars have a fund that will reimburse you.
My attorney has been disciplined by the state bar because of my complaint. Is this proof that he committed malpractice?
No. A malpractice claim requires that you suffered some sort of financial loss, which you would not have suffered, but for the lawyer's unethical and incompetent behavior.
EXAMPLE: If you hired the attorney to file a lawsuit for personal injuries you received in a car wreck and he did not file before the legal deadline (the statute of limitations) and you can prove you would have recovered some amount of money (either through settlement or a jury award), you may have a malpractice claim. On the other hand, if the lawsuit was filed in a timely manner but handled incompetently (the lawyer missed hearings, did not answer discovery), there is no malpractice.
SIDEBAR: A claim for malpractice cannot be solely based on the lawyer's violation of a rule of ethics or rule of conduct.
I do not think my lawyer is really working up my case. What should I do?
Talk to your attorney immediately and ask that you be kept informed of what is going on in your case by either her or her legal assistant.
TIP: Follow up with a letter setting out your expectations. If the lawyer made verbal or written promises (such as "I'll get interrogatories out by next week"), include those statements in the letter as well. The letter creates a paper trail of communication with your attorney. If the attorney still continues to neglect your case, you have proof to back up any complaint you make.