Legal Question in Civil Litigation in California

Legal malpractice; excessive fees

Was represented by an attorney in a negligence claim. It was a baseless claim with evidence and testimony contradicting. Corporation and I were named with a homeowners' association as co-defendant. I requested the attorney to get me personnally removed primarily because I was acting within the scope of my employment, and, as such, the doctrine of respondeat superior could be invoked. The attorney responded with alter ego theory case citings and articles. Initially, the attorney estimated the cost to defend the case up to trial would be $7500. My settement atrategy was simple -- I will pay nothing. I also wanted to counter claim against the plaintiff, but was told that I needed to get a favorable outcome in the current case before I could proceed with a counter claim. The case was eventually settled between the plaintiff and the HOA. I was included in the settlement, but my attorney told me I had to waive costs and settle ''with prejudice.'' The attorney fees totalled almost $40,000 of which I paid $3500 in cash and $4000 in services (general contractor). Any advice on how to proceed? I cannot afford another attorney, especially if it will cost as much as my previous attorney. Doing this pro se and in forma pauperis. LOL


Asked on 11/21/08, 12:15 pm

1 Answer from Attorneys
Edward Hoffman Law Offices of Edward A. Hoffman

Re: Legal malpractice; excessive fees

Sorry, but I don't see any basis for a malpractice claim. There might be merit to your case, but if there is it is not apparent from anything you have said.

I think you have misunderstood the doctrine of respondeat superior. Assuming that the doctrine applies at all, all it means is that the employer would have to pay for the harm you caused while acting within the course and scope of your employment. It does not mean that you were entitled to be dismissed from the case. Had the plaintiff won at trial, he would have been entitled to take the money either from you or from the employer. Had he chosen to take it from you, you would then have had to get it from the company. After all, had it turned out that your company went bankrupt or otherwise couldn't afford the judgment but that you could, it would have been unjust to let you keep the money while the plaintiff recovers nothing.

Since you were not entitled to a dismissal, it could not have been malpractice for your attorney to fail to get one for you. You don't say what the basis was for your proposed cross-complaint, but if it was for bringing a meritless lawsuit then your attorney was right that you would not be able to sue until you had won the initial case. Further, because the basis on which you believed you were entitled to win was not correct, there is no reason to think you could have won such a claim even if you prevailed in the original lawsuit. I therefore see no reason to think you would have won your proposed suit against the plaintiff.

I understand your desire to pay nothing in settlement, but it is not surprising that the other side kept litigating against you when you refused to pay anything and that your legal fees went up as a result. Did you expect the other side to just give up and let you go? That's not how such things work. The plaintiff's decision to keep fighting certainly isn't malpractice on your attorney's part.

The terms of the settlement that you describe are perfectly normal, and I see no hint of malpractice from the fact that you accepted them. Besides, you were free to continue fighting if you wanted to. It is not your lawyer's fault that you finally came to your senses and realized you'd have to compromise in order to make the lawsuit go away.

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Answered on 11/21/08, 3:02 pm


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