What is Legal Malpractice and How Do You Deal with It

[rak48rak48]

My question involves legal malpractice in the state of Tennessee.

I have read a number of articles about legal malpractice and could interpret them in a number of ways. For instance:

If a lawyer is pushing you to take a less favorable offer because it favors him being paid quicker versus holding out for what is fair (more) and in your best interest, is it considered a conflict of interest and legal malpractice?

If a lawyer does not know the state statutes in your case and the area of law he claimed to know competently and instead takes 6 months to search case law and build a position while on the meter, and then opposing counsel introduces the statute in court which the judge confirms, is this legal malpractice and can you recover fees and losses?

If a lawyer completely misrepresents the law to you and you make a decision based upon his representation, can you sue for legal malpractice and recover fees and losses?

And finally, if you discover these things while the lawyer is representing you, how do you deal with the issue of malpractice during his representation. Getting a new lawyer is not an answer here because the client is on the second lawyer and both could be considered for legal malpractice lawsuits.

[Mr. Knowitall]

It is not malpractice to advise a client of plea offers or to suggest that an offer is in the client's best interest.

It is not malpractice to be unaware of every statute in your state of practice.

When a client suggests that he has had multiple lawyers and that each is probably guilty of malpractice, with each new lawyer the odds go up that the actual problem lies with the client.

You have given no context for any of this. If you want somebody to comment on what happened, tell us what happened.

[rak48rak48]

I am trying to be concise in terms of my question but if detail is required then sobeit.

I am a supporter/friend of the client. She is a Russian mother of a 21 year old son. She married her US spouse in Russia and then acquired a green card to come to the US. Four years later he was killed in an accident. Her knowledge of US law is zero. She has been taken advantage of by some lawyers. Prime feeding ground. She has been in probate for almost 4 years on an estate that was worth maybe $1million. There is a vindictive elder son that hated her from day one, threatened her and her son's life at the funeral and promised them they would get nothing from the estate. A restraining order was granted. Two weeks later he was appointed the executor granted and approved by the same judge who signed the restraining order as the probate case was opened.

She lived in fear on the farm she shared with her deceased husband and her son. Her first lawyer advised her to concede to the widows share in TN versus staying with the will. He told her that she would get 20% of the estate and the rest would be equally divided between the elder son (executor) and her son whom had been legally adopted by the deceased. Thus 20% + 40% would be 60% of the entire estate. This was a gross misrepresentation of the provision in the TN law. Under this advice, she agreed and later found out that what was represented by the lawyer was grossly inaccurate. Her lawyer told her that the funds that she received as the beneficiary of her deceased IRA would not come into the estate on this basis, which was completely the opposite of the law.

After firing her first lawyer when she caught him lying to her about a hearing and decision, she hired a new lawyer. This new lawyer spent a considerable amount of money becoming familiar with the case. Upon his completion he failed to advise her that the statutes that govern taking the widows share also allow her to return to the original will prior to a final judgement. Financially taking the widows share produced little to no benefits yet this fact was never pointed out to her. There are only a small number of statutes in this area of law and based upon this lawyer's representation of his experience and knowledge of probate and wills, he should have known this. She was the one that asked if she could return to the will and he then pursued a path of case law to support arguing this point. He spent 6 months drawing up his argument and the day prior to the hearing, opposing council indicated that seeing that the TN statutes clearly allow this that they would not contest it. Upon hearing this and the court finding it as well, she was dumbfounded about why this was not presented over 6 months ago.

My questions revolved around legal malpractice. She has been taken advantage by these lawyers. On top of all this the executor has lied in court, forged documents and ignored almost all of the court issued orders. He has completely depleted the estate assets except for the real property. He never paid any debts and co-mingled all the estate funds with his own and declared the estate insolvent. I will ask questions about these and other items in the proper forums though.

I am only concerned about the legal abuse of the lawyers and the system in this instance. Her current lawyer does agree that her prior lawyer should be sued for legal malpractice and that he would even testify. But now I have seen his own incompetence and I an very worried for her.

[Mr. Knowitall]

If she doesn't trust her current lawyer, she has the option of changing to a different firm.

If she wants the case reviewed for possible malpractice litigation she should consult a lawyer in her state who specializes in legal malpractice, and make the entire case file available to the lawyer.