Is my attorney responsible for costs of their clearcut negligence?

February 7, 2021 2:47 AM

My lawyer goofed and cost me some money, but not a 'sue for malpractice' amount of money.

I've just gone through a divorce, and I kept the house as part of the settlement. This necessitated a mortgage refinance. The proceeds of the new loan went to my lawyer, who would theoretically write checks to cover various closing costs. Simultaneously the whole practice moved to a new office building, and some things got misplaced in the shuffle. My lawyer forgot to pay off the original loan, with the result that I had two mortgages on the same property for several weeks until I caught the error and brought it to their attention. The payoff delay resulted in about $400 in excess interest charges. This wasn't the only error that they made and I caught, but it's the only one that had consequences beyond delay and annoyance.

Is there any clear-cut ethical rule stating that an attorney is responsible for the cost of such mistakes, or is this likely to be my tough luck?

posted by anonymous to Law & Government (6 answers total)

Irrespective of the rules they should be interested in making this right for you because their business relies, at least in part, on reputation. Have you approached the managing partner and asked them to compensate you?
posted by koahiatamadl at 3:26 AM on February 7, 2021 [10 favorites]

Absolutely they should reimburse you for this (I’m a lawyer in the UK). Set it out clearly in a letter or email, with details of the amount of interest. Copy it to the senior partner of the practice. If you don’t get anywhere, follow their internal complaints procedure. If you don’t get anywhere with that, approach your local regulatory body.

However, I wouldn’t expect that you would need to escalate this: your description sounds clear cut, and it ought to be routine to reimburse you.

I’m a lawyer in the UK, and that’s how it would work here.

Good luck
posted by JJZByBffqU at 4:56 AM on February 7, 2021 [1 favorite]

I agree. When an error like this is made, a letter politely but firmly requesting restitution is in order, and typically repayment is made promptly. A loss of this amount is negligible in a law firm's cash flow.
posted by yclipse at 5:08 AM on February 7, 2021

Not your lawyer, no idea what jurisdiction you are in, this isn't legal advice, but: the cost and potential damage of a short and simple note to the state bar association about this issue would be well beyond the cost of simply reimbursing you and making it right, which is what they should want to do anyway. Write a clear letter where you explain all of the facts without any judgment and make a specific request for the restitution you are entitled to. In the letter, state that you would like to resolve this amicably but reserve your rights to recover in small claims court and to elevate the matter to the state bar if it isn't resolved. Send it to the managing partner of the law firm. It will get resolved.
posted by JakeWalker at 5:10 AM on February 7, 2021 [6 favorites]

That’s too bad. With the facts you provided it sounds like they screwed up. Unless there is something else at play they should cover it. $400 is pretty small change in the scope of these transactions.

This is Very Bad in terms of what I have experienced from lawyers and brokers in real estate. Everyone I know in this area works especially hard to get these things exactly right. Reputation is the most important professional asset for these people.

Also, it may have been structured that the closing payments were not technically the lawyer’s money, it could be client money held in trust by the lawyer for specific use. It sounds subtle but it’s the difference between the lawyer taking a fee and it’s their money, vs the lawyer spending your money on your behalf. Misuse of client funds is Double Extra Bad - it can lead to professional ethics discipline or disbarment.

Basically if you are not spitting fire you should be. If you haven’t done so you should call and email every day. If a week goes by and no response:

“Dear Attorney,

Please see attached mortgage statements showing Mortgage 1 is not paid off and is still accruing interest. You stated that you would pay off this loan in full immediately after closing date of DATE. Any further delay, even if the loan is paid in full, could cause me to suffer financial
Injury when late payment history shows up on my credit report.

If this loan is not paid off immediately I will report this misuse of funds (or) failure to operate in clients best interest to your bar association.”

One last thing to consider, based on a lot of legal/lawyer questions that come up on AskMe. IANAL but I am married to one. Most lawyers love to argue and will do it for sport. If you are a kind person and you are worried your email or call to a lawyer is too direct or stern... don’t be. If this lawyer is in family law they probably get 20 messages a day containing the worst of human behavior. And this is the field they chose! Directness is not rudeness - it is appreciated and appropriate.
posted by sol at 5:30 AM on February 7, 2021 [1 favorite]

Did you ask your lawyer to reimburse you this $400?
posted by slateyness at 11:43 AM on February 7, 2021 [1 favorite]