Can you sue a lawyer who abandoned your case or stopped communicating?

Every client has had a slow week from a lawyer. Abandonment is different: the lawyer stops working on the case, stops responding, or walks away without telling you or the court, and your case suffers.

The ABA Model Rules set the baseline. Rule 1.4(a) requires a lawyer to keep the client reasonably informed about the status of the matter and to promptly comply with reasonable requests for information. Rule 1.3 requires reasonable diligence and promptness, and its comment says that unless the relationship is properly ended, "a lawyer should carry through to conclusion all matters undertaken for a client." Under ABA Model Rule 1.4(a)(3) and (4), a lawyer must keep you reasonably informed about the status of your matter and promptly comply with your reasonable requests for information.

Leaving a case has its own rules. Rule 1.16(c) requires lawyers to follow court rules on notice or permission to withdraw, and Rule 1.16(d) requires a withdrawing lawyer to take reasonably practicable steps to protect the client, such as giving reasonable notice, allowing time to hire other counsel, surrendering papers and property, and refunding any unearned advance fee.

Common patterns:

• A lawyer takes a retainer and then does little or nothing.
• A lawyer changes firms and leaves clients behind without notice.
• A solo lawyer becomes ill, is suspended, or dies with no one designated to handle the files.
• A lawyer loses a ruling and never tells the client about the right to appeal.

The comment to Rule 1.3 addresses that last one. It says a sole practitioner may need a plan designating another lawyer to review files and notify clients in case of death or disability, and that a lawyer who handled a proceeding that ended badly must consult with the client about appeal before relinquishing responsibility.

Poor communication violates the ethics rules, but ethics rules do not by themselves create a right to sue. The Scope section of the Model Rules says so directly. To turn abandonment into a legal malpractice claim, you need a loss the neglect caused.

Abandonment usually causes harm in one of these ways:

• The statute of limitations ran before anything was filed. See missed deadline claims.
• The court dismissed the case for failure to prosecute.
• The other side won a default because no answer or response was filed.
• An appeal deadline passed because no one told you about it.
• A settlement offer expired because the lawyer never relayed it.

Courts treat true abandonment as different in kind from ordinary negligence. In Maples v. Thomas (U.S. Supreme Court, 2012), a death row prisoner's two out-of-state lawyers left their firm without telling him or the court, and local counsel did nothing. The deadline to appeal the denial of his postconviction petition passed. The Court explained that a client is normally bound by his lawyer's negligence, including a missed filing deadline, but that when a lawyer abandons a client without notice, the Supreme Court held in Maples v. Thomas that the agency relationship is severed and the lawyer's omissions cannot fairly be attributed to the client. That case was about excusing a procedural default in federal habeas, not a damages suit, but it shows how seriously courts view abandonment.

An abandonment malpractice claim has the standard elements: a lawyer-client relationship, a breach of the standard of care, causation, and damages. The breach is often easy to show from your contact log and an empty docket. Causation is harder.

You must show that the neglect, not something else, caused your loss, and that the underlying case had value. That usually means the case within a case: proving you would have won or gotten a better result if the lawyer had done the work. In most states, a client suing over abandonment must prove it is more likely than not, a greater than 50 percent probability, that competent handling would have produced a better result.

If the lawyer took money and did no work, you may have a simpler claim for the unearned fee. Rule 1.16(d) requires refunding any advance payment of fee or expense that has not been earned or incurred. That can often be handled through fee arbitration or, if the lawyer took the money wrongfully, through a client protection fund.

Damages depend on what the abandonment destroyed:

What happened	Typical measure
Claim lost to a deadline or dismissal	Value of the lost claim, often limited to what was collectible
Default judgment against you	The judgment, if you had a valid defense
Missed appeal	The better result a timely appeal likely would have produced
Paid but no work done	Refund of unearned fees
Delay you were able to fix	Extra fees and costs to repair it

Emotional distress from being ignored is generally not recoverable on its own in a malpractice case; see suing a lawyer for emotional distress. The most common recoverable loss in an abandonment case is the value of the claim or defense the lawyer let die.

Two sets of deadlines matter. First, the deadlines in your own case keep running while your lawyer is silent. Second, the clock to sue the lawyer starts running once you know, or should know, about the harm. California's Code of Civil Procedure section 340.6 gives one year from discovery and no more than four years from the wrongful act, with tolling while the lawyer continues representing you on the same matter. New York allows three years under CPLR 214(6).

The continuous representation rule can pause the clock while the lawyer is still your lawyer on that matter, but an abandoned client may have trouble proving when representation ended. Do not wait. Check your state on the statute of limitations table.

1. Check the court docket to see what has and has not been filed and whether any dates are coming up.
2. Send a written request for a status update and a copy of your file, by email and certified mail, with a firm date for a response.
3. Check the lawyer's license with your state bar to see whether they have been suspended or disbarred.
4. Hire new counsel if deadlines are near. You can end the relationship at any time. See how to fire your lawyer.
5. File a bar grievance for the neglect, and ask about a refund of unearned fees.

What to put in your written request

Keep it short and factual. Give the case name and number, list the dates you tried to reach the lawyer, ask for the current status and every upcoming deadline, request a complete copy of your file, and set a specific date, such as 10 days out, for a response. Say that if you do not hear back you will hire new counsel and contact the state bar. Send it by email and by a trackable mail service so you can prove it was received. A dated written request that goes unanswered is some of the strongest evidence of abandonment, because ABA Model Rule 1.4(a)(4) requires a lawyer to promptly comply with reasonable requests for information.

If the lawyer died, became disabled, or was suspended

The comment to Rule 1.3 contemplates that a sole practitioner should have a plan designating another lawyer to review files and notify clients, and refers to the ABA's model disciplinary rule allowing a court to appoint a lawyer to protect clients when no plan exists. Contact your state bar or the court where your case is pending to find out who, if anyone, has taken over the files.

If your lawyer's silence cost you a case or a deadline, a free case review takes about two minutes and can connect you with an independent attorney who handles legal malpractice claims in your state.