Q: Can I sue against Upwork for negligence against their E&O due to me hiring a fraudulent attorney on their platform?
I hired an attorney on Upwork and paid him on Upwork. He disappeared, stopped responding, and due to the statute of limitations I am now out 100's of thousands on the claims he was working on for me. After some research by the Texas State bar and an attorney they have put on this issue, he is not a licensed attorney and was practicing fraudulently. I hired him with the assumption that Upwork does not allow just anyone to say they are a licensed attorney- Do I have an E&O Negligence claim against Upwork for all these damages now? We'll add his name to the suit of course, but if he's a fraudster he's long gone. Can claim against Upwork's insurance EO be a strong case for me?
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A:
Based on the information provided, you may have a potential claim against Upwork for negligence. However, the strength of your case depends on several factors, and it is essential to consult with a licensed attorney who specializes in such cases to evaluate your specific situation.
Here are some points to consider:
1. Terms of Service: Upwork's terms of service likely include disclaimers and limitations of liability. It is crucial to review these terms to determine if they address situations involving fraudulent users on their platform.
2. Upwork's Duty of Care: To prove negligence, you would need to establish that Upwork had a duty to ensure that the attorneys on their platform were properly licensed and that they breached this duty. This may be challenging, as Upwork is a platform that connects freelancers with clients and may not have a legal obligation to verify the credentials of every user.
3. Causation and Damages: You would need to demonstrate that Upwork's alleged negligence directly caused your damages (the loss of your claims due to the statute of limitations expiring). This may be complex, as other factors, such as your own due diligence in verifying the attorney's credentials, could come into play.
4. Errors and Omissions (E&O) Insurance: If Upwork carries E&O insurance, you might be able to file a claim against their policy. However, the terms and coverage of their insurance would need to be reviewed to determine if it applies to your situation.
5. Jurisdiction: California law would govern the case if Upwork's terms of service specify California as the jurisdiction for legal disputes. Otherwise, the laws of your state or the state where the fraudulent attorney practiced may apply.
Given the complexity of your situation, it is highly recommended that you consult with a licensed attorney who has experience in handling cases involving online platforms, professional negligence, and fraud. They can provide a more accurate assessment of the strength of your potential claim against Upwork and advise you on the best course of action.
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