In my 25+ years of personal injury practice I have sued insurance companies, at-fault drivers, negligent homeowners, winter maintenance companies, police forces, etc. Unfortunately, I also have had to sue lawyers because their negligence – or, worse, misfeasance – brought harm to their clients. It was never my intention to make suing lawyers part of my legal practice, but over the past 15 years I have always had at least one or two of these claims proceeding at any given time.
These claims have involved numerous fact situations … some typical, some bizarre and some crossing into the ‘truth is stranger than fiction’ realm. Examples of these cases include:
- A lawyer who consented to her client’s claim being dismissed with no compensation yet never told the client that she had done so. The lawyer misled the client for more than 2 years after she had consented to the dismissal of the claim by telling him that she had attended a pretrial, was awaiting a trial date, and the court was backlogged.
- A lawyer who repeatedly informed the client that her claim had settled for approximately $40,000 when, in fact, there never was any settlement (and nothing had been done on the claim for 4 years). This lawyer chose to double-down on the fabrication strategy by telling his client that he had obtained a contempt order against the defendant!
- A lawyer who repeatedly told her client that the Statement of Claim had been filed with the court when, in fact, no claim had been filed.
- A lawyer who failed to file a lawsuit within two years of a motor vehicle accident in which the clients’ child had been killed. The lawyer waited 3 years before he was finally forced to disclose the error (and the subsequent lies to cover up the error) to the family.
- Lawyers who did not file their clients’ lawsuits in court in time.
- A lawyer who told her client that she had appealed a judgment on his behalf when she had not done so, and when the client insisted on seeing the Notice of Appeal, the lawyer fabricated the document.
- A lawyer who, through neglect, caused the client’s claim to be dismissed for delay and the client was ordered to pay the other side $15,000. The lawyer never informed the client about the dismissed claim or the $15,000 costs award. The client learned about the costs award when his bank account was frozen and he was unable to pay for his groceries!
Claims against lawyers fall into two broad categories: (1) negligence, and (2) misfeasance.
Lawyers (including me) make mistakes. The making of a mistake, however, does not automatically mean that the lawyer is negligent. The practice of law (especially litigation) involves lawyers making judgment calls and sometimes these calls turn out not to be correct. The key is communication: the client needs to be kept informed about litigation strategy decisions and the benefits and risks associated with these decisions.
In most of my cases where I have had to sue a lawyer for an error (e.g., missing a limitation period for the filing of a Statement of Claim), the lawyer did the correct thing and promptly informed the client about the error. Our Rules of Professional Conduct contain several provisions which spell out our obligations toward clients.
- Rule 3 – When advising clients, a lawyer shall be honest and candid.
- Rule 7 – When … the lawyer discovers an error or omission that is or may be damaging to the client … the lawyer shall
(a) promptly inform the client of the error or omission …;
(b) recommend that the client obtain legal advice from an independent lawyer concerning any rights the client may have arising from the error or omission; and
(c) advise the client that in the circumstances, the lawyer may no longer be able to act for the client.
The lawyer who promptly informs the client about the error and advises the client to obtain independent legal advice is doing the ‘right thing’. The lawyer is still acting in the client’s best interests and is ensuring that the client is protected (even often at the lawyer’s own expense).
The examples above show, unfortunately, that lawyers do not always do the ‘right thing’. Instead of being honest with their clients, some lawyers set out to cover-up mistakes – hoping, I guess, that somehow the mistakes will never come to light. Invariably this strategy snowballs and one lie is layered on top of another until eventually the snowball explodes and the truth comes out. Just like in most scandals, the cover-up is often worse than the initial act itself.
What do you do if you find yourself in a situation where you have concerns about how your lawyer is handling your matter? Here are some suggestions.
- Talk to your lawyer. If you are concerned about your lawyer’s handling of your matter, be candid with your lawyer about your concerns. Explain that you are considering hiring someone else unless your concerns are addressed. Listen to your lawyer’s explanation. Your lawyer may have a perfectly good explanation which will allay your concerns. I always urge clients to try to work out their concerns with their lawyers as switching lawyers part way through litigation will likely cause delay and may increase legal fees.
- Request copies of important documents. You should receive a copy of the documents filed with the court such as the Statement of Claim, and Statement of Defence. Better yet, your lawyer should have met with you to review the draft Statement of Claim before it is filed with the court. The more you are educated about the litigation process the better equipped you will be to make the best decisions for your matter.
- Request a timetable for your matter. It is reasonable to ask your lawyer to provide you with an expected timetable for your matter. Your lawyer should explain the steps in litigation (e.g., examinations for discovery, pretrial, mediation, etc.) and provide a rough estimate about when these events will happen.
- Ask your lawyer to copy you with correspondence. With email it is very simple to keep the client ‘in the loop’ about the litigation. My practice is to have clients copied on any emails exchanged between myself and my clerks. Not only does this practice assure clients about the status of their matters, it also allows clients to share information of which the lawyer may not be aware.
I stress that switching lawyers during litigation typically causes delay and increases legal fees. In most cases it is best to address any concerns you may have about the litigation with your lawyer directly. This kind of discussion should happen with your lawyer and not, in my opinion, with a law clerk or assistant. In most cases the lawyer will appreciate the client’s concerns and work to maintain the client’s confidence in their representation. If the lawyer, however, refuses to meet with you, copy you on important correspondence or provide you with copies of documents filed with the court, you should consider changing lawyers.