HomeLawyer ArticlesCan You Sue a Lawyer for Malpractice in Australia?

Can You Sue a Lawyer for Malpractice in Australia?

By now, you’ve probably heard of someone suing their lawyer after they messed up a personal injury case or lost another type of legal matter. Can this happen in Australia? If so, how does the legal system handle these cases?

This article will address these questions and more, as we look at some common situations that lead to legal malpractice claims as well as different aspects of the legal system surrounding them and what happens when you try to sue your lawyer for malpractice in Australia.

What is Legal Malpractice?

Legal malpractice is when a lawyer fails to provide legal services that are of an acceptable level of skill and competence. If you have been injured as a result of your lawyer’s negligence, it may be possible for you to file a legal malpractice claim.

As with any type of professional negligence claim, you will need to show that your lawyer’s actions fell below what would be expected from other competent lawyers in similar circumstances and resulted in your injury.

 There are a few ways that you can file a legal malpractice claim. The first way is to file your claim directly with your lawyer’s professional association or regulatory body.

If they fail to investigate your complaint within a reasonable time, you may be able to take legal action against them. It is also possible for you to sue your lawyer directly, just as if you are suing any other person or organization in court.

Before You Sue Your Lawyer

While it’s very tempting to sue your lawyer for malpractice in Australia, several conditions need to be met before you do so. If you’re thinking about making a legal malpractice claim against your lawyer, there are a few things you should know about what qualifies as professional negligence. The first step is determining whether or not your attorney has a duty of care towards you.

 Whether or not your lawyer has a duty of care is largely determined by whether they have been retained to provide a certain service. If you’ve hired an attorney for legal representation, and they’re failing to meet your needs during litigation, you may have grounds for filing a malpractice claim.

 Your lawyer may also have a duty of care if they were hired to handle a specific transaction. If you’ve retained your attorney to help you find investors for your startup, and they fail to secure investment, you may be able to file a malpractice claim against them.

Another criterion to meet before filing a malpractice claim is determining whether or not your lawyer’s breach of duty has caused you harm. If your lawyer has been acting negligently, but your case hasn’t been adversely affected, then you don’t have a malpractice case.

Make sure also that your attorney didn’t act in bad faith; unless it can be shown that they took action against their interests to cause damage to yours, there may be no grounds for legal action.

You should be aware that there are strict time limits for filing legal malpractice claims in Australia. Generally speaking, if you want to sue your lawyer, you need to file notice within two years of finding out about their negligence—and you must actually file suit within three years from when that negligence occurred.

What Are the Reasons Why You Would Want to Sue a Lawyer?

You can sue your lawyer in Australia if you feel they have displayed professional negligence. Professional negligence refers to a failure on behalf of a lawyer to exercise due care and skill in carrying out their duties.

If your lawyer has failed to carry out their professional duties, you may have grounds for legal malpractice in AU. Unfortunately, there are many reasons why you may feel that your lawyer has failed to provide you with adequate service. These include

1. Your lawyer did not follow correct procedures

If your lawyer has failed to carry out their professional duties, you may have grounds for legal malpractice in AU. The law dictates that all appropriate steps must be taken by a lawyer when acting on behalf of a client.

2. You believe that your lawyer has been dishonest with you

Lawyers are duty-bound to serve their clients honestly and truthfully; if they do not, they could potentially face disciplinary action or even a court case if they were deliberately dishonest.

3. You did not feel supported by your lawyer’s office staff

Similar to point 1 above; legal professionals must maintain a high level of communication with all parties involved throughout every stage of proceedings.

4. You felt pressured into accepting inadequate representation

As we discussed earlier, there can be many reasons why you might feel unsatisfied with your lawyer’s service. Despite this fact, however, you must remain objective during any legal proceeding as emotions can run high at times.

5. Your lawyer failed to provide you with quality legal representation

Your lawyer’s job is to act on your behalf and provide you with sound legal defines to protect your rights. If they fail to do so, they may have broken their duty of care towards you as a client and you may be able to make a professional negligence claim.

Steps On How You Sue a Lawyer?

To sue a lawyer for professional negligence, you must show they’ve breached their duty of care to you. This means that a court must be satisfied that your lawyer didn’t provide an adequate standard of care. But what is an adequate standard? The legal test used in AU is similar to that used in other countries such as England, Wales Northern Ireland, and Canada.

Step 1: Show you suffered harm or loss

If you’re going to sue a lawyer for professional negligence, it helps if you can show that your lawyer’s mistake harmed you.

Step 2: Find a specialist

There are several types of legal professionals in AU, including solicitors and barristers. Each is regulated by different laws and tribunals. Lawyers who have particular expertise can be sought out to help with matters related to their area of law.

Step 3:  Decide on your claim or defence

The type of claim you might bring against a lawyer will depend on whether you suffered any loss or harm because of their negligence.

Step 4: Consider making an insurance claim

It’s possible to make a claim directly against your lawyer’s professional indemnity insurance if they have it. This can be a useful way to resolve minor matters but is unlikely to be viable for more serious complaints.

Step 5: Take legal action

If your lawyer’s malpractice has caused you loss or harm, and you can prove it, you may be able to sue them for damages. However, pursuing a professional negligence claim is very different from other forms of personal injury litigation.

Step 6: Prepare for court

The rules governing what’s permitted in a courtroom differ depending on whether you’re suing a solicitor or barrister.

Step 7: Prove your case

There are several possible ways to prove that your lawyer’s negligence caused you loss or harm. These include expert evidence, documentary evidence, and witness statements.

Step 8: Wait for the ruling

Once a court has found in your favour, it will issue a ‘judgment’. This document sets out how much you’re owed in damages and interest. What types of lawyers can be sued?

Conclusion

Suing your lawyer can be hard work: if you’re looking to make a professional negligence claim, you need to understand that it can be hard work. Even if your lawyer accidentally makes a mistake or is aware of malpractice, there’s no guarantee that they will accept responsibility for it.

Instead, they may try and pass responsibility onto another party, deny any wrongdoing occurred at all or blame someone else entirely. It might take time before your claim gets to court, so you must be able to handle negative feedback from both yourself and those around you.

FAQs

1. How Long Do I Have to File a Professional Negligence Claim Against My Lawyer in AU?

Professional negligence claim against your lawyer must be brought within six years of when you should have known that you could bring an action against them.

2. Can I Receive Compensation from His/her Error or Miscalculation?

If you believe that your lawyer made an error that has caused you significant injury and suffering, it’s time to seek legal representation and file a legal malpractice lawsuit against him/her in courts of law.

3. Can I Submit More Than One Formal Complaint Against My Australian Attorney?

Yes, there is no limit to how many times you can submit a malpractice complaint against your attorney in AU

4. How Does a Court Determine Whether an Attorney Was Actively Negligent?

The court will carefully look at several factors to determine whether your attorney was actively negligent in representing you and caused you to harm as a result of his or her negligence.

5. Who Decides if My Case Goes to Trial or Not?

There are many different kinds of claims that you can file against a lawyer for malpractice, but only some will be heard in front of a judge and jury at trial.

References

  1. https://www.shine.com.au/service/professional-negligence/claims-against-lawyers
  2. https://gibbswrightlawyers.com.au/publications/negligence-disputes-australia
  3. https://lawhandbook.sa.gov.au/ch01s05.php
  4. https://www.legalzoom.com/articles/how-to-sue-your-lawyer
  5. https://lawhandbook.sa.gov.au/ch14.php
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