Question: I was in a bad car accident: I was turning left and had the green light, when a very big truck smashed into me from behind. I called an acquaintance who is a personal injury attorney and within a few days he had reviewed my case and I had signed an agreement with him that said he would represent me in both my medical case against my own insurance company and also in my case against the guy who hit me.
Within a couple of weeks, he called me in for a conference. He told me that the guy who hit me was a cousin of someone who worked in his office. He said that he could represent me for my medical bills and told me he would not charge me for that service. Then he told me that he could not represent me against the guy who hit me because it was a conflict of interest. Is that legal?
Answer: An attorney always has to provide a standard of care to his clients. By this, we mean that he has to act ethically and in the best interests of his client.
There are certain things for which an attorney can be professionally reprimanded, some of these include co-mingling (mixing) client funds with personal funds, violating confidentiality (telling someone about your case) and conflicts of interest. Generally speaking, an attorney is required to do a “conflict check” before he takes you as a client. Your attorney did not do this.
Is this legal malpractice? It might be, and it might not. While it is against ethical rules to have a conflict between two parties, there also must be some damage attached to the attorney’s actions. In other words, are you worse off because your attorney did not do a conflict check?
In your case, your attorney notified you right away, long before the statute of limitations for your case had run out. A statute of limitations is a time frame within which a claim must be brought or the claim is no longer valid. In Florida, the statute of limitations for your car accident claim is 4 years.
Given that he told you within a few weeks of your accident that he could not represent you, his actions had very little effect on your ability to find a new attorney and file your case. In the event, however, that he had handled your case for years before becoming aware of the conflict, and that your case was financially affected by his inaction, you may have a claim against him for legal malpractice. An experienced professional malpractice lawyer could help make that determination.