Lead to Gold: The Elements Of A Legal Malpractice Claim

Lawyers are tempting targets – while it is estimated only about 60% of U.S. attorneys carry malpractice insurance, we’re generally seen as a deep (enough) pocket.

Given the nature of our adversarial system, at least one party ‘loses’ every lawsuit, inviting claims.

Sometimes mistakes happen and genuine claims follow but a creative, alchemist-plaintiff’s attorney can usually find something in a file to latch on to bring a good-faith claim. If the complaint can survive a motion to dismiss, the cost of defense alone often prompts settlement.

The elements of a legal malpractice claim generally parallel other torts (in some states three and four are combined) but contract-esque law seeps in too:

1. privity
2. breach
3. proximate cause
4. damage

Privity – often even overlooked even by attorneys, only the client can sue a lawyer for malpractice. While some states push the boundaries to a ‘near-privity’ relationship, where the lawyer knows a non-client is relying on their work, most states continue with the absolute privity requirement.

Breach – the lawyer’s act or omission must fall below the standard of care. This is generally the prevailing practice of a reasonable, similarly situated attorney in the community. Typically the Rules of Professional Conduct do not establish the standard of care, but often can be introduced as evidence of a breach. This element often requires expert opinion.

Proximate Cause – an attorney can be completely negligent but if that did not cause damage, there’s no legal malpractice. Generally, states apply a “but for” causation standard. This is illustrated by the “innocence requirement” where a criminal defendant is barred from suing their lawyer if they plead guilty or were convicted and that verdict stands. Sometimes, the value of the underlying litigation or transaction comes in to play under the “collectability rule” – if the underlying value is zero, then the negligence didn’t cause any damage.

Damages – generally, a legal malpractice plaintiff must show actual and ascertainable pecuniary loss. Speculative or hypothetical damages are not recoverable. Emotional damages, loss of liberty, etc. – anything not directly connected to dollar damages – are not usually recoverable. While attorney’s fees to prosecute a legal malpractice claim are usually barred by the American Rule, attorney’s fees needed to cure or mitigate the malpractice are often viable.

If any of the elements are not established, the claim fails.

Since clients are your primary source of risk – consider each element throughout every representation.

Plan for disaster BEFORE it strikes and use the elements to preempt an alchemist-plaintiff’s attorney.