Legal malpractice is a significant problem.

Statistics indicate that the number of legal malpractice cases is increasing. Possible reasons for this discrepancy include increased consumerism, higher client expectations, better educated clients, the need for more specialized legal skills, and the growth in similar fields of litigation.

The two leading areas where claims are made of legal malpractice are Personal Injury (Plaintiff) and Real Estate. Over half the claims alleged an error in litigation.

But lawyers won't sue other lawyers! Many people assume it is difficult or impossible to get a lawyer to represent them in a claim against another lawyer. Sometimes, in a small legal community like Hawaii, you will have to go to more than one lawyer, but if your case has merit, you will probably be able to find an attorney to sue another attorney.

Attorney's Duty to a Client: Attorneys have serious ethical and legal obligations to their clients. The Attorney-Client relationship usually establishes a "fiduciary duty." This is the highest duty the law imposes. It requires the attorney to exercise the "utmost care," and treat the interests of the client as if they were the attorney's own interests. The client is entitled to place complete trust and confidence in the lawyer, and rely on their advice.

In a majority of cases, the client hires a lawyer to handle a specific matter. Once both the attorney and client consent to working with one another on a matter, the attorney has a "fiduciary duty" to protect his or her client's interests. This duty is owed only to the client. An attorney generally does not have any duty to protect the interests of a third-party, adverse party, or non-client.

There are some exceptions to these extensions of duty to third-parties or non-clients. Specifically, if the non-client was supposed to have been a "direct" beneficiary of the work done by the attorney, then the attorney may be obligated to the non-client such that a lawsuit can be initiated by the non-client. However, this exception is void for any situation where the non-client's interests conflicted with the attorney's client.

Conflicts of Interest: Generally, lawyers are not allowed to represent you if they have a "conflict of interest". This duty to the client is extremely strict and demanding (requiring the lawyer to treat the client's interest with the "utmost" care).

Statute of Limitations: In Hawaii, generally, cases of legal malpractice must be filed within six years of when the plaintiff knew or should have known that a claim existed against the defendant attorney. However, you should never wait that long. Sometimes, related claims need to be filed within 2 years of when the misconduct occurred.

Fee Agreements: It is always a good idea to have a written fee agreement with your attorney. The agreement should clearly spell out the scope of the work assignment, the fees, the costs, and all other understandings between the parties. Verbal fee agreements are almost never a good idea. If your attorney wants to represent you without a written fee agreement, you should ask why.

Fee Disputes Sometimes a client does not think their attorney committed malpractice, but does think the bill is unreasonable. Sometimes this can result from simple miscommunication. Sometimes there may be administrative errors. Sometimes there may be an attempt to defraud the client by padding or double-billing. There are audit companies and other professionals which can review legal bills and tell you whether your legal bill is reasonable. Often, it is relatively easy to work out some discounts with law firms, especially when smaller dollar amounts are at stake.