AUSTRALIAN LEGAL NEGLIGENCE

Legal negligence is the failure of a lawyer to render competent professional service to a client. When you hire a lawyer to represent you, that attorney is obligated to render competent professional service. If your attorney is incompetent and you suffer damages as a result - then your attorney may be liable for your damages.

YOUR ATTORNEY'S OBLIGATIONS

All lawyers are subject to strict standards of professional responsibility. These standards stated as codes of professional conduct that are established by State bar associations. Although the rules will vary from State to state, some basic ethical and professional rules your lawyer must follow include:

• Your lawyer must represent you ethically, zealously and within the bounds of the law
• He/she must competently analyse legal issues & exercise knowledge of the applicable law
• Your lawyer must communicate with you in a timely and effective manner
• Your lawyer owes you, as the client, a duty of loyalty. Your lawyer can't simultaneously represent you and another client with legal interests that conflict with yours.
• For so long as he or she represents you, your lawyer is required to follow your directions in handling your case unless those directions are illegal
• Your lawyer must keep your personal property separate from his or her own property and must keep your money in an escrow account.
• Except in rare circumstances, your lawyer is required to keep client confidences confidential
• Lawyers usually are prohibited from having personal relationships with their clients
• Unless he/she obtains your informed written consent, your lawyer is prohibited from taking on representation that is adverse to your interests.

If a lawyer fails to abide by these rules, he or she can be disciplined by any bar association of which they are a member. It's possible the lawyer may even be disbarred for serious violations. Criminal prosecution is also a possibility. And a failure to comply with the rules may be the basis for a negligence action.

COMMON TYPES OF LEGAL NEGLIGENCE

There are three major areas of liability, with the most common used in attorney negligence cases being negligence:

Negligence: An attorney owes a duty to the client to perform all work relevant to a case with the standard of care expected of the "average" attorney in the same or a similar situation. If your attorney did not treat your case as well as an average attorney should, then your attorney was probably negligent in handling your case. Your attorney may have committed negligence and can be held liable for any damages you suffered as a result.

Breach of fiduciary duty: An attorney is to act in the best interests of his client. When an attorney puts his own interests or those of a third party before that of the client, a lawyer may be breaching his “fiduciary duty” to the client. You can sue your attorney for the damages you suffered.

Breach of contract: When you hire an attorney, you sign a retainer agreement. The agreement is a contract that defines the relationship between the lawyer and client. The agreement - like all contracts - lists the role, expectations and obligations of each party. If he fails to do what the contract obligates him to do, then he has committed negligence and you may be able to recover damages.

EXAMPLES OF LEGAL NEGLIGENCE

There are many ways an attorney can commit negligence. Common examples are:

Legal blunders: If your attorney makes outrageous mistakes, such as missing court dates and deadlines, failing to properly submit documents to the court, or otherwise being irresponsible, your attorney may have committed negligence.

Bad checks: If your attorney sends you a check from his own account for damages you've won, and the check bounces, your attorney may have committed negligence.

Settling without your permission: If your attorney settles a case without your permission, your attorney may be liable for negligence.

Failing to contact you: If your attorney has not returned your phone calls or responded to your letters for a long period of time, he may have committed negligence.

If you think your lawyer has acted improperly, the first thing you should do is file a complaint with your attorney's State Bar Association. The Bar Association is an organization that licenses and regulates attorneys for each individual state. The Bar Association cannot, however, help you recover any damages you've suffered. To recover damages, you have to sue your attorney in court.

WINNING A LEGAL NEGLIGENCE CASE

In a legal negligence case, you must prove four points:

1. Your attorney owed you a duty to act properly
2. Your attorney breached that duty by acting negligently, not following through with the agreement or making mistakes which an average attorney would not have made
3. Your attorney's behaviour caused you damage. This includes proving that the results of your case would have been different had the attorney acted properly
4. You suffered a financial loss as a result of the behaviour

Proving that your attorney committed negligence can be difficult. You have to know exactly what constitutes negligence and show that your attorney actually committed negligence. An experienced negligence attorney can help you determine whether or not you're a victim of attorney negligence. Additionally, a lawyer can file a lawsuit on your behalf and help pursue your attorney negligence case in court if necessary.