When you hire an attorney for a critical business dispute, the last thing you want to do is second-guess them. But when do you stop trusting that your lawyer has everything under control and start asking, “Has my attorney made a mistake we can’t recover from?”
The reality is that attorneys are a critical element of businesses, but they’re also human. Even those at the very top of their profession can make mistakes. In every trial, one side must lose and that is not necessarily anyone’s “fault.” Arguments may be persuasive to the lawyer or the client, but not persuasive to a judge or jury. That is normal for lawyers.
But sometimes there are errors that cross the line. These are not mere strategic miscalculations, but errors that come from an attorney who makes a blunder that a reasonable attorney should not make. Examples include missing a clear statutory deadline for filing claims or failing to advise a client on key legal requirements. These types of errors are malpractice and can cause enormous harm to a business or individual.
One element of my practice is counseling companies when their attorneys have gone beyond the bounds – when they have not just made a strategic miscalculation but have actually committed malpractice. It is important to identify these types of errors as soon as possible and to implement a strategy in response.
Below, I’ve broken down the key red flags that indicate your attorney may have committed malpractice, how to protect your business, and why acting quickly is essential if you suspect a mistake was made.
3 Red Flags Your Attorney May Have Committed Malpractice
When you’re in the middle of a lawsuit or transaction, it can be hard to tell whether your attorney is just being cautious or if something has gone wrong. Here are three warning signs that warrant immediate attention:
- Adverse Rulings Based on Simple or Careless Errors
This could be an adverse court verdict because your attorney missed a deadline, totally misread well-established law, or provided advice that was so clearly wrong that it caused you an injury. A top example is a blown deadline that means suddenly you don’t have a claim anymore.
Sometimes, in employment law cases for clients with businesses spanning multiple states, their law firm doesn’t consider the relevant state’s wage acts or noncompete laws, which vary widely from state to state. As a result, clients can be left with an operating or employment agreement that’s invalid on its face, which has enormous repercussions. These are examples of fairly careless errors that can cause great harm, and they usually don’t show up until you’re in court.
- You’re Not Being Provided with Updates on Material Case Matters
Lawyers are busy, but no lawyer should ever be so busy that they fail to keep you informed about material movements in your lawsuit. Red flags in this area include:
- Not forwarding court orders or judge’s rulings as soon as they come in.
- Failing to communicate settlement offers immediately.
- Going silent while critical motions are pending.
Because court dockets are public records, you shouldn’t have to guess what’s happening in your own case. If you haven’t heard from your counsel after a major milestone, follow up immediately.
- Opposing Arguments Make Sense
When you read a brief or demand letter from the opposing side, and it strikes you that the other side is making some valid points that your counsel isn’t picking up on, talk to your attorney about it. Notice how they respond when you ask hard questions. If they get defensive rather than giving you a clear, reasoned explanation of why the opposing side is wrong, it may be time for a second opinion.
Some people also turn to AI to help them figure out if what their attorney is doing in the case is appropriate. AI can be both a help and a hindrance. AI can provide laypeople with additional information and analysis that helps them understand their case and their lawyer’s advice. However, AI can also miss cases and concepts from common law – and merely consulting AI can potentially breach attorney-client confidentiality in some instances. Still, if the AI analysis causes you to question your attorney’s advice, then it is all the more reason to get clarification and possibly a second opinion.
Act Quickly If You See Red Flags
If you start to identify red flags or have any basis to believe that your attorney has committed malpractice, act quickly. Consult with an independent attorney who has expertise in plaintiff-side legal malpractice matters and who can assist you in your current case or at least advise you on whether to pursue another attorney.
Depending on your state’s jurisdiction, the statute of limitations clock can start ticking at different times. If you wait too long to see how things play out, you may permanently lose your right to bring a claim, even if the malpractice is obvious.
Need Guidance on a Potential Malpractice Claim?
If you suspect your current or former counsel committed legal malpractice in a commercial dispute, visit the Contact page of our website to schedule a confidential consultation.
