Taking action against a negligent lawyer 

Janet S. from San Anselmo asks this week's question:

Q: "I hired an attorney four years ago to represent me in a personal-injury case for an accident that happened in San Francisco. The attorney was my neighbor and she said that she was experienced in handling these types of cases. I signed a contingency-fee agreement to start my case. Whenever I would ask about my case, she would tell me that everything was going well. I never saw or heard of any work being done on my case. About one month ago, she came to me and told me that I didn't have a case and that I should just drop the whole thing. I looked on the computer in San Francisco to check on my case and it said that it was dismissed for not responding to discovery over a year ago. When I asked my lawyer what had happened, she told me not to worry about it she would fix it. What do I do? What rights do I have? Can I sue my attorney? I found out that she was an immigration lawyer and not a personal-injury lawyer."

A: As an attorney, I apologize for how you have been treated by a fellow member of the American Bar Association. Unfortunately, lawyers are not immune from having bad actors in our midst.

First, let me help you understand what I think happened. It appears that your lawyer did file a case and failed to respond to written discovery (questions) served on you through them. When that happens, the asking party can make a motion to compel responses and for monetary sanctions. If the court orders responses and they aren't provided, the party can go back to court and ask for terminating sanctions for failure to obey the court's order. If that is not opposed or no reasonable explanation is given, the case can be dismissed. That is what appears to have happened. Why your attorney did not respond to the questions and/or the court order is unknown to me. It is unacceptable.

Lawyers are governed by the Rules of Professional Responsibility. They can be found on the State Bar of California's website at www.rules.calbar.ca.gov. Rule 3-110 requires that a lawyer act competently and to only accept assignments in areas they have sufficient skill and experience to adequately preform the requested service. If your neighbor did not have experience and skill as a personal-injury lawyer and, as a result, your case was dismissed, then that would be a rule violation and also evidence of malpractice.

Rule 3-500 requires that a lawyer keep their client reasonably informed about significant developments relating to the representation. Your lawyer had a responsibility to advise you of matters such as the discovery that had been requested of you, the motion to compel answers, and the sanctions and dismissal of your case. Failure to have done so is grounds for a negligence action and a state bar complaint.

Based on the information you provided, it appears that you may have a malpractice action against your lawyer for failing to act as a reasonably competent attorney. It is not enough to prove that your attorney was negligent in causing your case to be dismissed. You have to prove that, but for her negligence, you would have won your underlying case and the amount you would have been awarded. In essence, you have to try a case within the case.

Pursuant to Section 340.6 of the California Code of Civil Procedure, you have to file your case within one year after you discovered, or reasonably should have discovered, the facts that constitute malpractice or four years from the date the malpractice occurred, whichever comes first. This time period may be extended under certain circumstances such as where the lawyer has lied to you during the period of continued representation.

Given your knowledge of the dismissal of your case, you should take action promptly to pursue a legal action against your attorney. You may also file a complaint with the state bar, which prosecutes lawyers for unprofessional conduct. It can issue discipline up to and including license revocation.

Your situation exemplifies why people should carefully select an attorney and, in the case of a personal-injury action, hire a firm that has significant experience and a proven track record of success.

Christopher B. Dolan is owner of the Dolan Law Firm. Email questions to help@dolanlawfirm.com.

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