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Legal Malpractice? Trying to handle rationally

Discussion in 'Lawyers, Legal Practice, Ethics & the Bar' started by JasonS, Jan 14, 2020.

  1. JasonS

    JasonS Law Topic Starter New Member

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    Jurisdiction:
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    The short version: Hired a Lawyer to handle my divorce. In his billing, I found many discrepancies. There were instances where he billed me while representing other clients, instances where line items were duplicated on the bill, and instances where he just plain charged for things he did NOT do.

    I scheduled an appointment to discuss these issues with him (December 2018). We sat down and even though he admitted to some inaccurate charges, just wanted to know the total of the charges in dispute. After I walked him through my concerns with the bill, he informed me he would be filing a lawsuit against me, in order to get all his money. I asked if he could take a look at the concerns and we could come up with an agreed balance. He has chosen to blow me off and there has been no further conversation.

    I did a lot of research and I believe what he is doing is waiting for the 2 year mark to run up. I was able to learn (via google, so maybe true??) that if he files a lawsuit, I can file a malpractice claim. The catch is, that I have to claim malpractice within 2 years because of the statue of limitations? I also understand a malpractice claim can be detrimental to a legal practice, and the claim alone, whether he wins or loses, can make it difficult for him to obtain insurance. This is why I believe he is waiting for the 2 years to run up - because he can then file a lawsuit without any repercussions.

    I believe that 2 year mark is coming this spring. My question is, what should I do? I tried to be civil, but he has no intentions of that. What do I need from him, a bill showing zero balance, or?? Should I try to make contact with him, or do I just move forward with a malpractice claim?

    Thanks in advance for any advice!
     
    Last edited: Jan 14, 2020
  2. JasonS

    JasonS Law Topic Starter New Member

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    Looks like I was wrong, maybe the statute of limitations is 6 years? According to Michigan legislature page:

    REVISED JUDICATURE ACT OF 1961 (EXCERPT)
    Act 236 of 1961

    600.5838b Action for legal malpractice; commencement; limitation; definitions.

    Sec. 5838b.

    (1) An action for legal malpractice against an attorney-at-law or a law firm shall not be commenced after whichever of the following is earlier:
    (a) The expiration of the applicable period of limitations under this chapter.
    (b) Six years after the date of the act or omission that is the basis for the claim.
    (2) A legal malpractice action that is not commenced within the time prescribed by subsection (1) is barred.
    (3) As used in this section:
    (a) "Attorney-at-law" means an individual licensed to practice law in this state or elsewhere.
    (b) "Law firm" means a person that is primarily engaged in the practice of law, regardless of whether organized as a sole proprietorship, partnership, limited liability partnership, professional limited liability company, professional corporation, or other business entity. Law firm includes a legal services organization.



    Either way, I would still like to bring resolution to the issue so it's not haunting.
     
  3. PayrollHRGuy

    PayrollHRGuy Active Member

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    I can think of nothing you can do to bring the matter it an end other than paying him the full amount he billed you for. You could sue him but that is going to cost you more than he is billing your for with a better than even chance that you would not win.

    Have you paid him the amount you think you owe?
     
  4. army judge

    army judge Super Moderator

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    It is often easier to resolve these matters by filing a complaint against the attorney with the regulatory body that licenses attorneys in your state.


    The Attorney Grievance Commission of Michigan is dedicated to protecting the public and maintaining the integrity of the legal profession. The Commission, seeks to encourage and promote the ethical practice of law and the highest standards of professionalism by members of the Bar. In carrying out functions of evaluating complaints and enforcing ethical standards for lawyers, the Commission

    This is the link to Attorney Grievance Commission of Michigan that addresses disputes between client & attorney:

    Welcome to Attorney Grievance Commission

    Attorney Discipline Board - State of Michigan

    Request for investigation form:

    http://www.agcmi.org/investigation/docs/AGC RI Form.pdf

    Your Michigan Attorney Discipline Board:

    Attorney Discipline Board - State of Michigan
     
    JasonS likes this.
  5. zddoodah

    zddoodah Well-Known Member

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    If your former lawyer sues you, you can indeed file a counterclaim for malpractice. You have to do that within some period of time after the accrual of the cause of action. A cause of action "accrues" when all of the elements have occurred. In the case of legal malpractice, the elements are the performance of work below the standard of care of a reasonable attorney in your area and consequent damages to you.. It appears that the applicable statute of limitations (SOL) is six months, not two years. Where did you get the idea it is two years?

    Anonymous strangers on the internet to whom you provided absolutely no information about the potential malpractice claim (and who have only the most scant information about the billing dispute) cannot intelligently comment on this.

    I don't really understand this question. Nothing in your post would suggest that the attorney would give you "a bill showing zero balance" (unless you pay him).

    Nope. MCL 600.5838b is what is called a statute of repose. You can google to read about the difference between an SOL and a statute of repose, but note that subsection (1)(a) states that an action for legal malpractice shall not be commenced after the earlier of the applicable SOL or six years. The applicable SOL appears to be MCL 600.5838, which I linked above.

    Query where you obtained information about the amount in dispute given that it's not mentioned in either of the OP's posts in this thread.
     
  6. adjusterjack

    adjusterjack Super Moderator

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    A billing dispute is not malpractice so there is no tit for tat there.

    If he sues you for breach of contract (not paying your bill) you get to defend on the items in error.

    At this point your best bet is a fee dispute with the regulatory agency referred to by Army Judge.
     
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  7. PayrollHRGuy

    PayrollHRGuy Active Member

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    Educated guess that a partial amount of a divorce case cost would be less than a legal malpractice case.
     
  8. Tax Counsel

    Tax Counsel Well-Known Member

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    Just based on what you have said here there is no malpractice claim. Errors in billing are not malpractice. What you and your lawyer have is a contract dispute. If he sues you for that, you defend the claim. As Army Judge indicated, often the better way to go with these disputes is make use of the state Bar fee dispute resolution program.

    Legal malpractice means that he did or failed to do something during the course of representing you that was below the minimum level of skill that a competent attorney would exercise. So, if the lawyer failed to file a complaint in court for you to sue someone before the statute of limitations had run that may be malpractice because any competent lawyer would check what the statute of limitations for the claim is and ensure the complaint is filed timely. You also have to prove that you suffered some kind of loss as a result of the claimed negligence. So unless he botched up your case somehow and you ended up worse off as a result there is no legal malpractice case to be had. If you bring a malpractice claim and have no basis for it, you could be hit with sanctions for making a frivolous claim. So be careful with that. I suggest you not file a malpractice claim without first consulting a lawyer who practices in the area of legal malpractice.
     
  9. Highwayman

    Highwayman Well-Known Member

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    How do you know this? How do you know WHAT he was doing during any given time?
     
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