Has anyone on here had to sue their own attorney?

[millerc507]

We have had a very long, drawn out battle in what was supposed to be a straight and simple Chapter 7 with no exemptions at our attorney's advice. Now we are faced with a $30000 Chapter 13. We think our 7 trustee will settle for $15000. We are getting a loan from my dad who is also an attorney, but does not deal with BK, and hopefully can receive our discharge.
Anyway, my dad has discussed our case with some of his colleagues who deal with bankruptcy and they all concur that legal malpractice has occurred. The complications have to deal with a non-perfected lien that we told our attorney from day one that we were concerned might be an issue. Long story short, the trustee objected to our discharge and has filed a preference suit against my dad for $56K. My dad released the lien based upon our attorney's advise resulting in the suit from the trustee.
We are offering that our law firm pay the $15K necessary to settle the 7. However, if they do not accept--which they know they screwed up--he is planning to take them to court for any amount required to settle, legal fees, emotional duress, lost wages, you name it.
Has anyone else ever had to sue their attorney for legal malpractice. I might add this is a huge firm in the Raleigh area.

[HHM]

You can try to sue...but malpractice cases are VERY HARD to win in the first place, and even harder to win against bankruptcy attorney's. First off, you hired the attorney for a bankruptcy, advising you in a specific way regarding a lien may be considered outside the scope of representation. Keep in mind, BK lawyers are NOT really there to help you plan a BK, they are there to represent you during the BK.

Without more info on the backgroup of the specifics of what you think was malpractice, it would be hard to say...but just realize, malpractice suits are an uphill battle that most clients lose except in the most obvious of circumstances. And they are costly.

[heather307]

His recommendation was to file chapter 7 because he said the 1st and 2nd liens were valid, therefore creating no equity. Turns out, the 2nd was avoidable and thus considered preferential since it was to my dad. Our attorney should have known this since we asked about it on multiple occasions, bringing up the fact that the deed was not recorded until months after the transaction took place. The trustee intended to avoid the 2nd lien and step into the shoes of the lienholder. As a "solution" my attorney asked if my dad would cancel the lien before the trustee could file the motion to avoid the lien himself. My dad did so at his request. The trustee in response has filed suit against my dad for a post petition transfer and is suing him for $56000.
Is it not our attorney's job to make recommendations based upon their legal "expertise" in their field? If we can not count on their "expertise" for recommendations then I guess we should all file pro se. Why pay an attorney the big bucks to check everything if they aren't going to do what they are paid for? Everytime we have followed his advice, we keep getting in deeper and deeper.

[FreshLikeADaisy]

Miller (and Heather), I don't know anything about suing an attorney, but I am surprised that you have not yet placed a complaint with the NC Bar, especially since your father is an attorney himself. That is well worth doing, and may even help your case because it is a separate action from a lawsuit: if the Bar found in your favor, that could only assist any legal case you might have. Good luck!!!

[heather307]

We are filing a grievance with the bar association, probably on the trustee and our attorney. Had our attorney suggested we wait six more months prior to filing none of this preference stuff would have been an issue. He could have also suggested my dad release the lien prior to filing and then we could have claimed our homestead exemption. They also listed all of our debt as joint and when we questioned it at the signing we were told it didn't make a difference. All our debt is individual--one or the other of us. Turns out later, had it been listed as individual we could have used the tenancy in entirety argument since all the issues are over the equity. It has been a comedy of errors. My dad feels the trustee is tying to extort him personally because he can see that he has deep pockets. We told our attorney going into this if there were any issues with the liens we could not file because my dad could not be effected by any of this . . . and here we are, my dad being served. My dad has told our attorney to contact their malpractice carrier and inform them of what has gone on in this case. He told them a settlement would be much cheaper than putting it in front of a jury and going after lost wages, emotional duress, etc. etc. We knew they had messed up because our attorney has literally been at our beck and call since the 341 when the trustee suggested there was a problem with the lien.

[HHM]

Sorry to hear about your situation...but even if you had waited 6 months, hell, you could have waited 4+ years, and that 2nd lien to you farther could have been avoided.

Trustee's can avoid certain transfers up to 10 years back.

I am not trying to be a downer, but you have to understand that you are fighting an uphill battle. Granted, I don't know that much about your case, but based on what you described so far, I doubt you could win a malpractice case.

[millerc507]

My dad is most upset about the fact that he is now being sued because he released the lien--at our attorney's request. If our attorney thought to do it post petition, why not pre-petition and none of this would have been an issue. I'm upset about the fact that the debt was listed incorrectly and it does in fact make a difference how it was listed--when we were told it did not.
I don't expect much out of it. It would be nice if they settled but I am not betting the farm on it. Again, the biggest issue is that my father has been brought into an adversarial proceeding that without the bad advice from my attorney would not have been an issue.