Can You Bring a Legal Malpractice Suit Even if Your Case Settled?

Legal malpractice is generally defined as failing to adhere to the professional duty of care that an attorney owes to clients. Usually, a malpractice claim is lodged after the client received a disappointing result in an underlying court case. But does the client have the right to sue if the case below settled?

The short answer is yes. You can sue for malpractice even if your underlying case never saw the inside of a courtroom. However, proving malpractice in a settlement scenario presents unique challenges. Courts generally presume that settlements are entered into voluntarily, which can make it difficult to argue that the settlement was the result of attorney negligence or misconduct.

The attorney’s duty of care requires him or her to act with the diligence and promptness expected of an attorney of similar ability and training under the circumstances. This includes adequately preparing for and researching the case, effectively communicating with the client and acting in the client's best interest at all times. When the attorney fails to adhere to this duty in any respect, it could lead to an unfair or inadequate settlement

Here are specific types of conduct that can justify a legal malpractice claim:

• Misrepresentation or fraud — If an attorney misleads a client about the strength of their case or pressures them into settling under false pretenses, this could constitute malpractice. For example, if an attorney assures the client that their case is weak when it is not, to coerce them into accepting a low settlement offer.

• Failure to investigate or prepare — An attorney's failure to properly research or prepare a case can leave the client in a weaker bargaining position and lead to a less favorable settlement. This might include failing to gather key evidence or neglecting to consult with necessary experts.

• Conflict of interest — If an attorney has a personal or financial interest that conflicts with the client's interest, such as a desire to settle quickly to move on to other cases or personal relationships with the opposing party, this could compromise the attorney's ability to advocate effectively for the client.

• Failure to communicate — Attorneys must keep their clients informed about significant developments in their case, including settlement offers. Failure to communicate such offers, or to adequately explain the implications of accepting or rejecting them, can be grounds for a malpractice claim.

• Failure to negotiate effectively — If an attorney accepts an unreasonably low settlement without attempting to negotiate more favorable terms, this might also be seen as a breach of their duty of care.

To succeed in a legal malpractice lawsuit based on a settlement, the client must prove that but for the attorney’s negligence, a better settlement or verdict would have been likely. This often requires expert testimony from other legal professionals who can attest to the average recoveries for similar cases in the same geographic area. Since settlements are typically confidential, comparing the settlement to verdict sizes in similar cases can be a useful way to gauge whether the attorney made a substandard effort. A professional malpractice attorney can build the strongest case possible in this regard.

The firm of Hemmer Wessels McMurtry PLLC in Fort Mitchell represents people across Kentucky who have been victims of legal malpractice. Call us at 859-344-1188 or contact us online to learn how we can help you.