Well, that depends on how you define duress and I think this would make an interesting legal concept. After our attorney failed to notify us of the default (which we had three days to correct and which he received papers for that he didn't forward) we were liable for a ton of money that emptied our life savings and told our lawyer this. We explained that due to his misconduct that we were unable to pay our rent and that after having a consultation with another attorney that all four circumstances that are required to prove attorney malpractice were easily met. Our attorney's law firm made an offer which was far more than what we eventually got and they "were preparing the contract" until the end of the month when they knew we'd be desperate. It was at this time that they withdrew their offer and told us that they'd "pay us X amount" which happened to be the same amount that I'd paid them.
We could not afford a malpractice attorney. We could not afford to pay our rent and were purchasing food from a dollar store. Our paychecks were a relief but went directly to bills, bills and more bills. The worst part is that half the attorney's fee was paid by credit card and had to be paid back immediately.
Yes, I am divorced but I certainly can blame our attorney for it since the only reason we got divorced is because we lost absolutely everything in a lawsuit where the following occured:
duty -- that the attorney owed you a duty to act properly and did not do so. Our attorney didn't even do the bare minimum, canceled prep sessions, did not know the case at hand and didn't even bother to read over the settlement before telling us that we'd go to jail if we didn't sign it.
breach -- that the attorney breached his duty: he was negligent, he made a mistake, or he did not do what he agreed to do- our retainer clearly said that we'd be represented by the firm to the best of their ability and we were not represented at all. Had I gone pro se, I'd have won this case based strictly on the fact that our landlord admitted to his wrongdoing IN WRITING. I'm talking almost 150 pages of emails that confirm that he refused basic service, locked the thermostat at a temperature that was lower than the minimum temperature allowable in the winter and an email that he mistakenly forwarded me while writing to his lawyer that stated that he wanted to "hit back" and that I was a liar after calling 311 (as was my right) and that although he was responsible for maintaining the property that he did not want me to know where he was.
causation -- that this conduct hurt you financially- damned straight. We left the apartment legally, he didn't even hand us back our security deposit although the apartment was in the exact same condition as it came in. Under the law, there was absolutely no part of the landlord's case that would have held up AND when we went to trial, the landlord committed perjury on the 4th question he was asked. Our lawyer convinced my wife (who until that point had absolutely no part at all in the case) that a settlement paid by us was in our best interests, when I protested our attorney actually told me to shut up, told my wife that I was not a lawyer and after he convinced her, he told me he couldn't represent a party that wanted opposite results. The worst part? After it was over, he said that he was late and had to be somewhere and rushed from the building.
damages -- that you suffered financial losses as a result-
In practical terms, to win a malpractice case, you must first prove that your attorney made errors in how she handled your case. Then you must show that you would have won the underlying case that the lawyer mishandled. (This second part is not required in Ohio.) Finally, you will have to show that if you had won the underlying case, you would have been able to collect from the defendant.
If our attorney had even cared a bit, he would have realized that we were legally allowed to move out. He had asked me at the beginning for 10 conditions that were wrong with the apartment and actually cut and pasted them for the answer to our lawsuit. He did less than the bare minimum and if he had put even minimal effort in, the landlord's entire case would have been thrown out of court. We had every right to expect damages of over 40,000.00 and instead we wound up paying the landlord more than 75k. Best of all, the judge held the ruling until my wife gave birth to our first child. That was great, every hope and dream we ever had died with the loss of everything we ever had and more besides.
The written admissions by our landlord were textbook examples of what NOT to write if you're a landlord. And we didn't hire the cheapest, crappiest lawyer we could find. Our attorney advertises EVERYWHERE, pays tremendous amounts to have negative reviews removed from the internet and claims to be the most successful tenant attorney in NYC. We were victims of our attorney. Victims of malpractice. Financially stripped of everything we had after we followed the law to the letter.
I refuse to believe that this is not a gross injustice that might be reheard if some type of attorney, maybe even a civil rights attorney, were to represent us.
