Is it Malpractice if a Lawyer Refuses to Take a Case?
LAWYERS ARE NOT REQUIRED TO TAKE ON EVERY CASE A PROSPECTIVE CLIENT BRINGS THEM
While there are circumstances in which a lawyer may be required, or strongly encouraged, to take a case, those circumstances rarely involve truly “private” legal matters. In other words, no, it often (and, in most cases, usually) is not malpractice for a lawyer to refuse to accept a case.
In fact, a lawyer should not take a case if (s)he believes that doing so would disadvantage the client, if the lawyer has a conflict of interest, if the lawyer believes (s)he could not provide competent representation, or if taking the case would (or even is likely to) place the attorney in a situation where (s)he might commit professional negligence (i.e., legal malpractice) or break any of the other rules governing lawyers’ conduct.
In situations like that, it’s the lawyer’s duty not to accept the case.
A SINCERE BELIEF THAT A CASE LACKS MERIT USUALLY IS A DEFENSE AGAINST MALPRACTICE CLAIMS
Lawyers are not supposed to pursue legal actions that lack merit. Where a lawyer has a genuine, honest belief that the client’s claims or defenses do not have a legal foundation (and do not present a good-faith argument for a change to or an extension of the law as it currently exists), the lawyer not only can refuse to take the case (or withdraw as counsel, if the lawyer’s opinion about the case changes in the course of representation), but often has an obligation to do so.
If the client or prospective client claims the lawyer’s actions were malpractice, the lawyer’s good faith belief that the case lacks merit is a defense against the malpractice claim. (Note that this does not necessarily absolve the lawyer of all liability, depending on how the lawyer handled the refusal and withdrawal process, but generally speaking, it is a defense.)
LAWYERS DO HAVE A DUTY TO COMMUNICATE THE REFUSAL TO TAKE THE CASE
Where a lawyer refuses to take a case (or withdraws as counsel) the lawyer is required to communicate the refusal, rejection, or withdrawal clearly and (particularly in the case of withdrawal) as required by law. Basically, the lawyer needs to explain to the client, clearly (and preferably in writing), that the lawyer is refusing to take the case. This is necessary to avoid misunderstandings and to ensure there is no implied-in-fact attorney-client relationship.
If there are important deadlines involved in the client’s matter (for example, dates when a filing or response is due to a court), the lawyer may also need to warn the client about those deadlines, and the consequences of failing to meet them. Whether or not the failure to do so constitutes malpractice must be evaluated on a case-by-case basis, and depends on a variety of factors, including (but not limited to) the lawyer’s behavior. If you think you did not receive a proper warning, or proper notice, after a lawyer refused to take your case, contact an experienced malpractice attorney as soon as possible for an evaluation of your legal rights. You may lose or compromise your rights if you delay.
Disclaimer: THIS ARTICLE IS FOR INFORMATIONAL PURPOSES ONLY, AND DOES NOT CONSTITUTE LEGAL ADVICE OR CREATE AN ATTORNEY-CLIENT RELATIONSHIP BETWEEN THE AUTHOR OR ROSS LAW AND ANY PERSON. Your legal rights and experiences may vary. Never use an online article (including this one) to evaluate your legal rights or claims. Consult an experienced attorney promptly to obtain a personalized evaluation of your claims, potential damages, and the various legal rights and options available to you.
You may lose or compromise your rights if you delay in consulting legal counsel. Most legal claims (and defenses), as well as legal and court procedures, are complicated and fact-dependent. If you believe you have a claim against someone who injured you, a lawyer who represented you in a previous lawsuit, or any other legal claim, consult an experienced lawyer immediately for an evaluation of your individual rights and claims.