What is Lawyer Breach of Contract?
The clearest way to define a lawyer breach of contract claim is to consider the definition of a legal contract itself: "a promise that has legal force or an exchange of promises." In this context, a lawyer’s promise is to perform in accordance with the ethical and professional standards of the state in which he/she practices, and the consequences (which are defined by state law) if he or she breaches that contract.
Examples of breaches of the ethical and professional ‘contract’ can take many forms, including:
- Failing to perform on your behalf. For example, by failing to respond to an opposition’s discovery in a timely fashion, which can cause all discovery to be barred.
- Failing to communicate with you. For example: a failure to inform you of a serious offer, so that you can make an informed decision .
- Failing to exercise diligence. For example, by failing to preserve evidence, which may hamper your case overall.
- Taking an offered settlement on your behalf that is less than you desired, without consulting you first.
- Failing to investigate. Constructing a case means exploring, imagining, planning for, and predicting the possibilities. It is like framing up a house. Failure to investigate means failure to do this work.
- Backdating a document. In this case, the issue can be whether or not there was an impact on your case as a result of the breach.
- Falsifying evidence. Again, the issue can be whether the evidence actually made an impact on you. In other words, did it actually hurt your case?
- Working with or treating an adversary unfairly. For example, if the circumstances involved bribery or intentional bad faith.
Common Reasons Lawyers Breach Contracts
Common Causes of Breach of Contract by Lawyers
When a lawyer does not perform as promised under a contract, that is a breach of contract. With that in mind, let’s take a look at some common ways that this can happen with lawyers.
Lawyers investigating their man or woman about town often run into trouble that can lead to breach of contract claims. If your attorney has promised that they would conduct an investigation of the other parties in your case, an investigation that is a prerequisite to filing a lawsuit, and they don’t….then you might have a claim for breach of contract against them. This could also involve an allegation that your lawyer failed to perform services under your contingent fee agreement with them. Obviously, this is a very common and unfortunate predicament. This can be accentuated by attorneys that delegate their work to others in their offices who may drop the ball. Never forget, attorneys are responsible for the actions of their staff in most cases when a claim is made against the law firm. A breach of a mortgage/deed of trust/purchase loan agreement or commercial lease agreement may also form the basis of a breach of contract against a lawyer if it is in connection with a contingency fee agreement or representation agreement with that lawyer. Again, all of these types of contracts can be considered "bilateral contracts" (i.e. contracts that are reciprocal two way agreements), or "unilateral contracts". A unilateral contract makes a promise in exchange for performance of a specific act. These types of contracts can often been illustrated by insurance contracts, which is a type of contract between the insurer (insurance company) and insured (you). A bilateral contract, on the other hand, can be illustrated by a loan between two parties. Both parties have obligations under the agreement.
Penalties Lawyers Face
Disciplinary Actions: A Contract Breach’s Impact on a Lawyer’s License
Specific consequences apply to lawyers who breach contracts. For instance, consider the Mississippi Bar Disciplinary Board of the Mississippi Supreme Court v. Anderson case. In it, a public defender accepted $11,250 for legal fees. He also agreed to file a declaratory judgment action on behalf of a defendant in a homicide case, submit supplemental discovery responses that were due, and investigate complaints against agency employees. He did so without reviewing the case files and essentially didn’t do those things.
The lawyer did no work on the case, and the defendant, the one who put up the money for the lawyer, got mad. So the defendant filed a grievance against the lawyer, which is the client’s right under the Rules of Professional Conduct.
The Mississippi Supreme Court suspended the lawyer’s license for 90 days for violating the following Rules of Professional Conduct:
We have also said that a contract to perform legal services for compensation constitutes the practice of law by consent. A lawyer who neglects to fully perform a professional employment is in violation of the Rules of Professional Conduct, which if true, amounts to a rule violation that is willful and improper, and as such constitutes a violation of Rule 8.4(c) expressly prohibiting conduct of this nature.
What to Do if Your Lawyer Breaches a Contract
One of your options, if you believe you have a breach of contract dispute with your lawyer, is to file a grievance with the appropriate State Bar Association. Your State Bar Association is, essentially, the Supreme Court’s gate-keeping organization for all the lawyers who want to hang out a shingle and practice law. The State Bar Association has specific rules that you can use to determine whether or not the lawyer you’re dealing with is in good standing with the State Bar Association. You can also use the State Bar Association’s Rules and Regulations to determine if your attorney has violated any of these rules. If they have you will be able to file a grievance with the State Bar Association and request that the State Bar investigate the matter on your behalf.
Another option depends on the type of law at issue. For example, if you have a contract dispute with a personal injury lawyer, you may be able to submit a complaint to the Client Security Fund if the lawyer has stolen money owed to you. If the lawyer engaged in fraud, you may have other possible recourse. Please be aware that most of these funds are used to compensate clients when their lawyers have stolen money, or have committed fraud upon the client. Because your lawyer did not steal money from you, you may not be eligible for this type of compensation.
You also have the option of filing a lawsuit against the lawyer for breach of contract. In the previous section we distinguished between express contracts , and implied contracts. If you had an express contract, you generally have to perform your obligations under that contract before you can sue the lawyer for breach of contract. If you had an implied obligation, however, then you generally do not have to perform your side of the contract before you sue them. On the other hand, depending on your jurisdiction, some courts will require that you perform your side of the contract before you sue for breach of contract. Please consult a licensed attorney in your jurisdiction for specifics as to whether or not you have to perform your obligations before suing for breach of contract.
If you have sued the lawyer for breach of contract please be aware of the adverse consequences you will likely face. Most law firms have in-house counsel who are specialists in malpractice claims. If you sue your lawyer for breach of contract, your lawyer’s law firm may invoke the conflict clause in your retainer agreement requiring your lawyer to step down from your case. Your lawyer’s law firm’s in-house counsel will likely be assigned to your case, and will go after you with great prejudice. It is unlikely that a breach of contract case will get far in the hopes of settlement given the emotional toll that a breach of contract case is likely to take on the lawyer. That said, if you have a valid point you should not hesitate to call a malpractice lawyer.
Avoiding Lawyer Breach of Contract
There are a few ways that clients and lawyers can prevent lawyer breach of contract issues. First, in almost every case the client should get a written retainer agreement from the attorney. This does not mean that oral agreements cannot be enforceable. Oral agreements commonly are. However, in most cases a written agreement, at a minimum is going to make things easier to prove. And, if the attorney failed to follow the written agreement, that is an added bonus for the client.
Second, ask a lot of questions. Be sure you understand what fees you will be charged, how the attorney will bill you (hourly, flat fee, contingency), the scope of the work to be done, and most importantly the costs you will be responsible for. Most attorney work can be split into two parts: services and expenses or costs. The services and fees should be spelled out in detail. If there is any confusion, ask for clarification. Costs should be broken down by type (deposition costs, discovery costs, court filing fees, etc) when possible. If there is any dispute with the attorney billing, or billing of costs, the client should ask for documentation when the bill is received.
Third, when an attorney fails to follow the retainer agreement, if that is something that causes an issue, then you should consult with another attorney about the issue. If the attorney is charging more now than agreed upon for the same work, you should speak up. However, if you just don’t like the result or the way the attorney is proceeding with the case, that does not mean you have a valid complaint.
For some legal issues, there is not much grey area. Either the attorney does what is stated in the retainer agreement or he/she/they do not. For other issues, such as billing disputes, there may be some grey area on what was agreed to.
One of the best ways for a client to protect themselves is to have a good idea of what is actually going on with the case. An attorney may not be keeping you up to date on your case so things seem fine externally but internally there is another story. Hire a lawyer who will properly and timely communicate with you. There are many good litigating attorneys who will do that.
Probably the first way to protect yourself from lawyer breach of contract is to hire a quality and reputable attorney who is not likely to commit a lawyer breach of contract against you. Look online, ask friends, check with the local bar association. There are many reputable attorneys out there.
Another way to prevent law firm breach of contract is to carefully read the entire retainer agreement. You should also keep in regular contact with the attorney to make sure you know what is going on and to make sure he/she/they is doing everything he/she/they agreed to do.
Lawyer Breach of Contract Case Studies
Alexis F. vs. Corrielus, 2012 WL 1258172 (E.D. Va. Apr. 13, 2012)
Fact Pattern: Alexis contracted with her attorney to handle her mother’s estate. The retainer agreement stated that the fee was contingent on recovery in the case. Despite this agreement, the attorney neglected to file the petition to open the estate until six months after the mother died. During that time, the attorney failed to communicate with Alexis, caused unnecessary penalties and interest to be levied on various estate-related debts, and mismanaged the estate so severely that it lost its ability to recover substantial funds. Once the estate was finally opened, the attorney refused to fully account for his fees and ultimately never managed to collect anything for Alexis.
Results: Alexis sued her former lawyer for breach of contract. The trial court agreed with Alexis and dismissed the law firm’s related tort claims.
Lessons Learned: Contracts with your attorney matter and they are enforceable in court. If an attorney does not perform under the agreement, seeking a legal remedy for damages is often the best option.
Doe v. Venango, 2011 WL 2182394 (W.D. Pa . May 31, 2011)
Fact Pattern: Christopher Pennman was a Child Protective Services worker who went to the Pennman home to interview Christopher Doe about the killing of his brother, Christopher Doe, Sr. Independently, Pennman brought along a criminal defense attorney – Bradley C. Venango. Venango interviewed Doe in front of the CPS worker. That night, Venango published on his public blog statements about Christopher and the killing, including:
"[H]aving had them coming to [his brother’s] home on behalf of the [Department of Children and Youth Services] as well as having the mere suggestion by the same to cooperate with their investigation, I felt it prudent to proceed with advising my client of his fifth amendment right, as well as that he was entitled to confer with an attorney of his choosing."
Doe sued both Pennman and Venango for trespass, tortious interference with evidence, making public confessions before criminal charges were brought, and other tort claims. Venango moved for summary judgment but the court found that there were enough facts and issues for the case to proceed to trial.
Lessons Learned: Venango was able to avoid summary judgment on several claims. However, he may be drawing a new avenue of trouble for himself if all of the claims are litigated.