D. Problems Encountered after a Lawyer is Hired

You have the right to change lawyers at any time if there is a valid reason. Valid reasons include improper or unethical conduct, conflicts of interest, malpractice by the lawyer, etc. If you are dissatisfied with the lawyer's conduct or the way the matter is progressing, consult another lawyer for an opinion. Do this before taking action, because you need a professional opinion to tell whether the lawyer acted correctly or incorrectly.

Never fire the lawyer until a replacement is hired because you may be unrepresented and the case could be prejudiced or dismissed. If you fire the lawyer, you may be required to pay for the value of work rendered. You may also have to go to court to settle the issue of legal fees and the return of your papers since some lawyers assert a lien on the file. However, these potential problems should never impede you from taking action if warranted.

If you have evidence that the attorney misused funds for personal gain or committed fraud, you may file a complaint with the state grievance committee or local bar association. Don't be afraid to do this. All complaints are confidential. You cannot be sued for filing a complaint if it is later determined that the lawyer did nothing wrong.

Another alternative is to commence a malpractice lawsuit against the lawyer. Legal malpractice arises when an attorney fails to use "Such skill or prudence as lawyers of ordinary skill commonly possess and experience in the performance of the tasks they undertake." This doesn't mean you can sue if your lawyer gets beaten by a better attorney. You can sue only if he or she renders work or assistance of minimal competence and you are damaged as a result. You can also sue for malpractice when there is a breach of ethics (like the failure to remit funds belonging to a client) in addition to suing for breach of contract and/or civil fraud.

The following are examples of lawyer malpractice:

• Settling a case without your consent

• Procrastinating work on a matter (for example, neglecting to prepare will after being paid and before the client dies)

• Charging grossly improper fees and failing to provide detailed, accurate time sheets to compute fees

• Failing to file a claim within the requisite time period (the statute of limitations)

• Failing to keep you advised of major developments in a matter to your detriment

• Failing to disclose that a conflict of interest exists (such as neglecting to inform you that the lawyer or someone from his law firm previously represented your opponent)

Consult another lawyer before embarking on any of these courses of action to learn if you have a valid claim. An honest and unbiased lawyer will also tell you what steps should be taken to protect your rights.

Counsel Comments:More lawyers are now willing to testify against each other. If your complaint to a state's disciplinary board is viable, it will be investigated (the process may take months). An investigative committee will decide whether the case should be given a hearing. After a thorough investigation, the board may make recommendations for disciplinary action against the professional, including a formal reprimand, suspension from practice, or revocation of the lawyer's license (which is rare). You may file a private lawsuit against the professional in addition to requesting that such an investigation ensue. In such a lawsuit, the lawyer will generally carry malpractice insurance and be defended by lawyers from his or her insurance carrier. Deciding whether or not malpractice has actually occurred is a question of fact to be decided by a judge or jury. Due to the complexity of most malpractice cases, and the fact that the lawsuit will typically be vigorously defended, it is critical to seek advice from a skilled lawyer.