Lawyer Malpractice Or Negligence?

[Parthalan]

On 2-5-2010, our 15 year old daughter was hit and killed by an impaired driver. We are not from this area, and have no family here. We had followed the recommendation of a friend and hired an attorney locally, our friend knew this lawyer, and in our state of mind, we were in no condition to properly research his background. We trusted our friend, and our friend trusted this lawyer, so we retained him. Normally, I would do lengthy research into an attorney if I did not know them personally. Unfortunately, this was a situation that was foreign to all of us, and honestly, you are in somewhat of a fog in the first few weeks. We depended on others at times to make our way through this nightmare. The following is what has happened:

1.   Never told us he was actually an adoption lawyer. I found this out when I started doubting his ability to handle the case we had brought him.

2.   On February 22, 2010 I had asked when he would be filing the lawsuit. He said he had to get the probate forms filed first, but could not do this because there was a problem with the death certificate. He said it had not been filed yet. There was a question as to the cause of death. I thought this was odd. There had not been an autopsy due to the fact that the driver had not been charged. And the coroner had told us the cause of death 2 days after the crash. I subsequently found out that the lawyer had lied. The death certificate had been filed on February 8, 2010. There was no reason for the delay in filing probate.  Once he had finally filed probate, he never told us that there had to be monthly accountings done. I was made aware of this fact a couple of days ago. Probate was filed on 2-26-2010.

3.   When there was still no lawsuit filed a few weeks later, I again asked when this would be done. The probate had finally been filed, so this excuse was no longer valid. I was told that he was waiting for the MAIT report from the highway patrol. This was originally to be ready on 3-5-2010. But, of course there was a delay. When the report finally came out on 3-19-2010, I was the one that told him it was ready, and he informed me that he would go and get it that day. I waited all day for him to call, and all weekend. I finally called him on Monday 3-22-2010. I was unable to get in touch with him until Friday, 3-26-2010. It was at this point that I learned that he had not received the MAIT report. He had instead, without my knowledge entered into an agreement with my Nationwide Adjuster to “share” the MAIT report. He was waiting on her to get the report and give him a copy. He never consulted with us, at any time. He knew how anxious I was to have answers to questions that only the MAIT report could answer. I was furious. He knew he was wrong, but didn’t expect me to know he was wrong, let alone call him on it. 4.   When he finally received the report—the following Thursday afternoon, April 1, 2010, the driver’s insurance company called and made an offer, and he just stopped looking at the MAIT report. He called us to his office the following evening, and informed us of the offer. We told him that our instincts were to not accept. He asked us to think about it, we asked him to continue on as if nothing had been offered—and continue on the path to the suit. I wanted a suit filed. 5.   Up to this point, he had done nothing. He had only stalled the process and ignored all information I had brought him concerning the driver and his lifestyle that lead to questions of his sobriety at the time of the crash. We had told him from the beginning that the insurance was being handled by professionals in the industry, and since he had no knowledge of insurance or insurance company practices, this was a good thing. He was to focus on the wrongful death of my daughter, against the driver, the county and the HOA of the neighborhood where the crash happened. I gave him all the information he needed to bring these suits forward. I had found the evidence of their negligence myself. He did nothing

6.   Then he told us that he had been discussing this case with another attorney, a close personal friend”. He informed us that this attorney had taken it upon himself to call the driver and “drill him” about his finances. I was stunned. Not only had he discussed this with someone else without our knowledge, but had given this other person enough detail that he was able to contact the driver at home and question him. When I finally confronted him about this the following day, his story had changed to the fact that the driver had contacted the other attorney for representation. The other attorney declined due to the fact that the driver had no assets. And therefore would be unable to pay for his services. I do not know what the truth is. I just knew he had lied…again.(There came a point where we also found out that he is friends with the attorney that the driver called from the scene that night.)

7.   I confronted him shortly thereafter, and he tried to explain all of his lies and misdeeds away, but was unable to due to the fact that I had proof of nearly all of my claims, and he had nothing to back up his assertions. It was at this point that he began to talk only to my husband, and not me.

8.   He spent most of the time in the couple of months or so, discussing our religion, faith and our marriage and family issues. There was very little discussion regarding the actual case. I had informed him that these discussions made me very uncomfortable. I had hired him as an attorney, not a spiritual advisor. He ceased the constant religion discussions with me, but kept them up with my husband. He seemed to know that this is what my husband needed, and my husband became very attached to him. They would exchange Bible verses, and the lawyer would encourage my husband to pray with him. He seemed to know this was the way to get to my husband, who was desperately searching for answers of his own. While I was searching for earthly answers, my husband was searching for spiritual answers. He desperately needed to know why God had taken our daughter, and was despondent with the thought of our daughter not being in Heaven. I am lucky in as much as that was not a dilemma for me. I knew my daughter’s heart and soul; it was something we discussed often, maybe that is why I did not fall into that particular trap. 9.   I became aware of situations where the lawyer would speak with my husband, and relay information to him with the caveat that he should not tell me, that it may “upset me”. This was usually information regarding things that the driver’s insurance company’s attorney would allegedly relay to the lawyer. My husband would of course tell me. The simple fact that this lawyer would even suggest that my husband keep things from me regarding this case is appalling and disturbing. 10.   The last time was when he told my husband to keep an alleged threat made by the attorney representing Allstate. We have finally gotten the media to pick up this story. The SC Highway Patrol let the man that had killed my daughter leave the scene after he admitted to taking narcotics the night of the crash. The man was charged with nothing, did not even receive a ticket. He was permitted to drive himself home. The HP messed up. Well, the media has picked up our story, and there have been articles written regarding the misconduct of the SCHP as well as the driver.(There is nothing in any of the articles that is not concrete proof, either by audio, video or in writing.)So, when my husband came home and told me that the lawyer had told him that Allstate’s attorney had asked him if he had heard of the stories being written about the crash, and he acknowledged that he had, he stated that Allstate’s attorney said that if these stories continued that they would sue us for slander. I knew at that point that this lawyer had crossed the line. I knew that he was lying, again. A. written words in the context she was speaking of was not slander, but libel. B. We did not write the stories, so that was irrelevant. C. This attorney represented Allstate. She was not retained by the driver. She has no concern about the driver’s situation. But the most important thing is the simple fact that there were absolutely no false statements in either story that was published.  

Is this negligence or malpractice? I have tried numerous times to separate from this lawyer, but until recently, my husband was adamant about not separating from him. This man has caused problems between my husband and me on numerous occasions. I do not trust him, and I have documented proof of the times he has lied, stalled or just plain ignored my requests and questions. My husband has finally agreed that he has not done what he was supposed to do, but feels that the lawyer is owed some money. I completely disagree. This man has done nothing, has hindered more than helped. He has caused more heartache and problems than anyone has ever caused in our 22 years together. He has even caused more problems in our lives in the past five months than loosing our daughter. That is a pain that we have no control over, and we pulled together as a couple and as a family,(we have three boys as well). This man is the only thing that has caused serious discord in our relationship as a couple and as a family. This lawyer informed us that he has kept no record of charges for us. He said that if it meant our marriage—he would not take any money. Really? I say he gets no money because he has done nothing but cause problems and heartache. What can I do? My instincts are to report him to the ethics board. My husband still believes he has done nothing more than take on a case he is not qualified for. I have tried to tell him that in and of itself is basis for a complaint!

[Akinlana]

Lera,

I am sorry to hear about your daughter.

You have described a breach of fiduciary duties. An attorney breaches his/her fiduciary duties by: 1) lying to the clients; 2) acting incompetently; 3) not being diligent in the representation; and 4) not putting the clients' interests first.

The actions you describe are certainly below the standard of care of an attorney, however, it only is a viable legal malpractice case if there are damages due to the breach of the standard of care.  Since the case is still pending, it does not sound as it is ripe for malpractice.  I suggest you fire this attorney and hire a good competent attorney to take over.  It is important to trust you counsel and to chose counsel with whom you can communicate with freely.  You can terminate the representation at any time.

You should also speak to a legal malpractice attorney regarding any potential causes of action, including breach of fiduciary duty.

I wish you the best at this very difficult time.

Very truly yours,

Paul D. Friedman, M.A., Ph.D., J.D.