Lawyer Ann Adams and paralegal Ben Burns have been hired by client Carl Carlson to sue a grocery store where Carl, who is 85, fell down when he Slipped in a puddle of water in the produce aisle. Ann delegates the task of preparing the complaint to Ben. Ben miss-calendars the date that the answer must be filed and the statute of limitations passes.
What are Carl's remedies?
Can he name Ben as a defendant if he brings a lawsuit?
What kind of lawsuit can he bring?
What will Happen if he reports the matter disciplinary authorities?
Is the failure to file the complaint on time an ethical breach?
Can Ann and/or Ben be disciplined for this conduct by the state supreme court or any other disciplinary authority?
What if Ann already has a private removal on her record for a similar violation?
What if three other clients have reported Ann for failing to return call and show up for court dates?
Carl engaged an attorney to represent his interests. Missing a statute of limitations is a major breach of duty for an attorney. Carl has a number of possible causes of action:
1. Breach of contract - Adams was hired to perform a specific task. She did not do what was expected of her. The thing here is that as this is a personal injury case, most such retainer contracts are on a contingency basis, which means that the attorney does not get paid unless she obtains money for the client. Under such circumstances, it is unlikely that Carl has contract damages. This may leave him a negligence cause of action -
2. Negligence/Professional Malpractice - Here must show a duty, a breach of the duty, and causation leading to his damages. An attorney is expected to meet certain professional standards. One of which is to make sure that cases are put into suit before the statute of limitations is met. This was obviously not done. The question is whether Carl suffered damages, and if so whether the failure to file suit is the cause ...
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