QUESTION:
In 2010 I went to arbitration and was awarded $250k. The carrier rejected the claim. Now after a mistake and a vicious divorce, the attorney still represents myself and my ex-wife. Conflict of interest. In 2010 I made an agreement with the attorney and he paid the expenses for $19,9000. Now after the mistake and 4 lawyers later, because they left the firm, I asked and was told that my ex could only find out if my mail was not secure. I agreed to a settlement and the check is cleared and ready to be disbursed, and they informed me that after 8 ½ years she is entitled to a piece based on the MSA from the divorce. Now my share has been significantly reduced and they are still finding documents that they forgot. They waived their fee and expenses to be nice. Can I request the $19,000 they took back in 2010 to be given to me in lieu of suing them?
ANSWER:
It is incumbent on plaintiff’s counsel to conduct a proper investigation of the claim so as to be able to competently advise the client about the merits of the potential cause (or causes) of action. An attorney may be liable for malpractice when his or her negligent investigation, advice or conduct of the client’s affairs results in loss of the client’s claim … as where the attorney’s incompetent investigation causes the client to prolong filing suit (erroneously thinking the claim to be nonmeritorious) until after the statute of limitations has run [See Gutierrez v. Mofid (1985) 39 C3d 892, 900, 218 CR 313, 318; Reyes v. County of Los Angeles (1988) 197 CA3d 584,591–592, 243 CR 35, 38].
While other attorney-client disputes may properly be the subject of an arbitration provision the scope of coverage must be clear and unambiguous. As the one who drafted the agreement, the attorney is chargeable with the consequences of ambiguities therein. Any uncertainty will be resolved against the attorney (CC § 1654). [Mayhew v. Benninghoff (1997) 53 CA4th 1365, 1370, 62 CR2d 27, 30; Lawrence v. Walzer & Gabrielson (1989) 207 CA3d 1501, 1506–1507, 256 CR 6, 9—provision requiring arbitration of disputes “regarding fees, costs, or any other aspect of our attorney-client relationship” applied only to fee disputes and did not cover legal malpractice claim. It would be best to seek assistance from a lawyer in order to guide you in filing your claim.
