Changing Lawyers and Suing for Legal Malpractice

Attorney Answer

You can change lawyers, and you may be able to sue the one you have — but those are two different questions, and the clock on the second is short and has probably already started. Deal with the live case first.

A client is generally free to take their case to a different attorney. A new lawyer will want the file before deciding whether to take it on, and there are usually fee and lien questions to be worked out between the old and the new attorney, which are handled between them rather than by you. None of that is a reason to wait. What matters is the sequence: get the file, get a second opinion on the case, and do both before any deadline in the existing case passes.

The malpractice clock is set by Cal. Code Civ. Proc. § 340.6(a). An action against an attorney for a wrongful act or omission, other than for actual fraud, must be commenced within one year after the client discovers, or through reasonable diligence should have discovered, the facts constituting the wrongful act or omission, or within four years of the act or omission itself — whichever comes first. Read that twice. The one-year period runs from when you knew enough, not from when someone confirmed it for you, and a reader who has already concluded that their lawyer did not do the job may well have started it. How the section applies while the underlying case is still going is exactly the question to put to a malpractice attorney now rather than later.

Be clear-eyed about the standard, though. Dissatisfaction is not malpractice. Having to take your own photographs, and being left in the dark about the case, is a real complaint about service, and it is not by itself the thing a malpractice claim is built on. Such a claim generally requires showing both that the lawyer fell below the standard of care and that it changed the outcome — that with competent handling the case would have gone better. Only a lawyer who has read the file can tell you whether that is here.

The underlying case was against a city, and that matters to any review of it. Cal. Gov't Code § 911.2(a) requires a claim for injury to a person to be presented to a public entity not later than six months after the cause of action accrues, before any lawsuit. Whether that claim was presented, and when, is one of the first things a reviewing attorney will look for, because it shapes both the case and any assessment of how it was handled.

What you can do

1. Ask your lawyer in writing, today, for a complete copy of your file — pleadings, correspondence, discovery, the court's orders, and anything else in it. Keep a copy of the request and the date.

2. In the same letter, ask him in writing for the current status of the case and the exact deadline for any appeal.

3. Take the file to a different attorney for a second opinion before you pay the $10,000, and before any appeal deadline runs. Appeal deadlines are set by court rules, are short, and are generally not extendable.

4. Ask the State Bar of California about both of its programs for this situation: it takes complaints about attorney conduct and runs a fee-arbitration program for fee disputes.

5. Ask the new attorney specifically about Cal. Code Civ. Proc. § 340.6(a)'s one-year and four-year limits, and about whether your one year has already started.

6. Keep every receipt, invoice, email and text about the money you have already paid and about what you were told.

Most lawyers offer a brief initial call at no cost, and a few minutes on your specific facts is worth more than any general guidance, including this page.

⏱ Time limits apply. Three clocks matter here, and all of them are short. The claim against the city was governed by Cal. Gov't Code § 911.2(a), which requires a written claim within six months of accrual. A claim against your attorney is governed by Cal. Code Civ. Proc. § 340.6(a): one year from discovery of the facts, or four years from the act or omission, whichever comes first. And any appeal in the existing case has its own deadline, set by court rules and shorter than either. Which of them are still open depends entirely on the dates in your file, so take it to a local attorney this week rather than working it out from a page.