Legal Mal: The Basics

While potential legal malpractice claims all too often take up free rent in attorneys’ minds, most lawyers could use a refresher on the basics.

“That would be malpractice” is too quickly used to dramatically capture any mistake but the truth is most problems don’t meet the elements to amount to legal malpractice.

Most states require four elements (some combine #3 and #4):

1. Privity

2. Breach

3. Proximate Cause

4. Damage

PRIVITY

The privity requirement stems from the attorney-client relationship and most states require “absolute” or “strict” privity. Generally, only clients can sue their lawyers for malpractice. ‘Near-privity,’ usually found in special circumstances, is an exception that can extend liability to non-clients.

Privity highlights the importance of clearly delineating who is and who is not the client, in writing, and ensuring compliance with the ethics rules when communicating with non-clients.

BREACH

Breach of the standard of care usually requires expert opinion, although in certain circumstances a lay jury can make the determination. The standard varies by jurisdiction but is usually a bit blurry – typically something like a reasonable attorney in the defendant-attorney’s circumstances. Thankfully, 20/20 hindsight is not applied and attorneys are generally protected by the “judgment call doctrine” allowing lawyers to make reasonable professional decisions, even if those ultimately aren’t successful.

Breach illustrates the importance of subject matter expertise and the need to avoid ‘dabbling’ outside of your usual practice areas without appropriate education and support.

PROXIMATE CAUSE

Proximate cause is typically “but for” cause, showing that but for the act or omission of the lawyer, the client would not be damaged. The “innocence requirement” in the criminal legal malpractice context illustrates proximate cause well: if a criminal defendant was convicted or accepted a plea, that must be vacated before a legal malpractice claim can be brought. The logic is that the criminal defendant was actually guilty of the crime so no act or omission of the attorney could have caused their conviction.

Proximate cause is a reminder to use a bespoke retainer agreement to strictly limit the scope of services to only the exact work being performed.

DAMAGE

Almost all jurisdictions allow only pecuniary loss; dollar damages. Emotional distress, loss of liberty, hypothetical lost business, etc. are generally not recoverable. Collectibility – the actual value of any lost verdict or deal – can also be a piece of the element and/or a defense.

The damage element shows that not every mistake is malpractice or even a problem but emotional distress and loss of liberty are very real – and we need to insulate clients from any damage, recoverable in legal malpractice or not, as much as possible.

Understanding the elements of legal malpractice allow lawyers to approach each client from a risk management perspective at the outset. Your client intake should be just as much about the client’s goals as your defense.

Your clients are your primary source of risk, and not just for legal malpractice claims. Accepting and understanding that reality is the first step towards safer practice.

An ethics-based approach built on practical education, systems, plans, and teams can isolate your firm’s key areas of risk and transform them into areas of opportunity.

With some simple steps you can be a better lawyer and a safer lawyer.