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Frequently Asked Questions |
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What is Legal Malpractice? |
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A lawyer commits malpractice when he or
she provides services that fail to meet the minimum standard of care of
a licensed attorney. Filing a lawsuit against an attorney for
malpractice is different than filing a grievance or complaint against
the attorney with the state Bar Association.
A lawsuit requires proof that the attorney committed negligence and
entitles the successful plaintiff to damages. A grievance with the Bar
Association is processed through the Bar’s lawyer grievance system and,
if valid, may subject the attorney to disciplinary action. Any loss a
person suffers as a result of an attorney’s actions is not recoverable
through the lawyer grievance system.
A plaintiff suing for legal malpractice must show proof, more likely
than not, of the following four elements:
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An attorney-client relationship;
- A duty of the part of the attorney to the client;
- A breach of that duty;
- As a direct and proximate result of the attorney’s negligence, the
client has suffered damages.
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What is Attorney-Client
Relationship? |
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When a client retains an attorney, an
attorney-client relationship is created. An implied attorney-client
relationship could arise if the client seeks the advice of an attorney,
is given professional advice, and relies on that advice. In many states,
an attorney owes a duty to non-clients whom the attorney knows will rely
on the services rendered and for whom the services were intended to
benefit. For example, under Washington law, a beneficiary to a will can
bring a lawsuit against an attorney who improperly prepared or executed
a client’s will, resulting in the will being held invalid.
In most circumstances you may not sue another party’s litigation
attorney for legal malpractice, however, you may still be able to file a
Bar Association grievance against him or her. |
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What is Duty of Care? |
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In general, an attorney must exercise the same legal skill as a
reasonably competent attorney. He or she must use reasonable care in
determining and implementing a strategy to be followed to achieve the
client’s legal goals. As the client’s fiduciary, an attorney must treat
as confidential all information relating to the client’s representation
and to diligently represent the client’s interests. This duty also
requires the attorney to disclose any conflicts of interest that might
impair the attorney’s ability to represent the client. |
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What is Breach of Duty of
Care? |
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An attorney breaches his or her professional duty of care if he or
she fails to provide reasonably competent representation or violates his
or her fiduciary obligations. Proving an attorney failed to provide
reasonably competent representation can be difficult. The law in many
states, including Washington, generally requires testimony from another
attorney in the same or similar field of practice to testify that the
lawyer’s actions were below the minimum standard of care. Lawyers can
disagree on whether a particular course of action is reasonably
competent. Whether an alternative course of action would have provided a
better result, often requires a trial. |
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What is Proximate
Cause/Damage? |
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A client must prove that an attorney’s breach of duty caused some
damage. To do this, the client (now the plaintiff), must show that the
damage is sufficiently related to the attorney’s breach of duty as to be
the proximate cause. This may require the plaintiff to show what would
have happened if the attorney had chosen a different course of action.
The defendant attorney often argues that the damages or injury would
have happened anyway, regardless of the actions or inaction of the
attorney. Just because a client suffers injury or damage as a result of
an attorney’s representation does not mean the attorney committed
malpractice. The attorney may have acted in the same manner as any
reasonably competent attorney would have acted. While his or her actions
may have caused the harm, if the attorney did not breach the duty of
care, he or she should not be held liable. This element of legal
malpractice is often the most difficult for a client to prove. |
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What is Statute of
Limitations? |
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Each state requires that a plaintiff file his or her legal malpractice
lawsuit within a specific period of time. This time limit is the
“statute of limitations” in most states. It varies from state to state.
Failure to file the suit within that time period will mean that the case
will be forever barred. For example, in Washington State, a plaintiff
must file his or her lawsuit within three years of the attorney’s
negligence or within three years from the date the client reasonably
should have discovered the attorney’s negligence. The statue in other
states may be as short as one or two years.
If you believe you may have a meritorious claim, you must file your case
within the statute of limitations. |
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How to Approximate Your
Damages? |
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Determining Your Damages
1) Using your best judgment and knowledge, compute the actual
monetary/economic damages you believe you have suffered as a result of
the malpractice of the attorney (or other professional) you consider
suing.
2) Do not include any estimate for punitive damages or pain, suffering,
and emotional distress in your calculations.
3) What is the dollar amount of financial and economic losses directly
attributable to the legal (or other) malpractice by an attorney (or
other professional) in this matter?Pain, Suffering, and Emotional
Damages
The majority rule in the United States prohibits a legal malpractice
plaintiff from recovering general damages. General damages commonly
include pain, suffering, and emotional distress. The only exception to
this rule, currently, is for an innocent person who has been wrongfully
convicted of a crime due to his or her lawyer’s negligence. |
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Who Are Our
Clientele? |
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We represent individuals and businesses. Although located in Seattle,
Washington, we have also litigated cases in several other states. Other
attorneys frequently refer their clients to us because of the attorney’s
reluctance to handle legal malpractice cases or the attorney’s
unfamiliarity with this unique area within the practice of law. On other
occasions, the lawyers themselves are potential witnesses in the legal
malpractice claim and may not ethically handle the legal malpractice
case for that reason. |
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What is Our Fee Structure? |
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Clients retain us under a variety of fee arrangements. We prepare a
written Retainer Agreement, which we and the client(s) both sign. The
client receives a copy of the fully-signed Retainer Agreement.
Some clients hire us based upon a “contingent fee” agreement, under
which the client only pays a fee if we achieve a recovery for the
client. The ethics rules that govern lawyers specifically authorize such
agreements in certain kinds of cases. Many clients can only afford to
hire a lawyer due to the opportunity allowed by contingent fee
agreements.
Others of our clients retain us based upon an hourly fee (plus expenses)
Retainer Agreement. We will always discuss the terms of our retention
with you prior to undertaking your representation. |
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What About Free Consultation? |
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We do not charge potential clients a fee for their initial consultation
with us. |
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Should I Contact the Law
Offices of Robert B. Gould? |
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My practice focuses on recovering for plaintiffs in legal malpractice
and other professional negligence cases. From the outset, we seek to
build a collegial client-attorney relationship. We depend on a client’s
information and input as we assess any potential representation.
A lawsuit should never be taken lightly. Insurance companies and very
capable opposing counsel offer a spirited defense. Many details of your
life may come into evidence should your case go to trial. Of course, no
one can state with certainty what a particular jury may decide.
Recognition of these factors is important.
This website is designed to help you determine an approximation of the
financial losses caused by what you believe to be negligence in your
particular case. This website also explains the four elements necessary
to prove most legal malpractice cases.
Tell Us About Your Case |
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