Competence & Malpractice · 6-12% of the exam
12.1.1The Four Theories of Liability and the Negligence Framework
Why
Discipline punishes the lawyer but returns nothing to the client who lost money. Malpractice law exists to make that client whole, and it reaches for the ordinary negligence framework to do it. Because the measure is what a reasonable lawyer would have done, the same framework protects lawyers from being judged by hindsight whenever a matter turns out badly.
Plain English
Malpractice may be pleaded as negligence, an intentional tort, breach of fiduciary duty, or breach of contract; negligence is the tested track.
Duty is the skill, care, and diligence a reasonable attorney would bring to a like matter, owed to clients, prospective clients absent a clear disclaimer, intended beneficiaries, persons the lawyer invited to rely on the work, and outsiders who reasonably relied on an unauthorized act. A well-informed judgment call within the range of reasonable choices is not a breach; a plaintiff proving no financial loss recovers nothing.
Legal malpractice: four theories and the negligence elements
Four points on the theories of liability, and the first is the track the rest follows:
- Negligence: duty, breach, causation, damages; the most-tested track
- Intentional tort: an intent-based claim covering conduct such as misrepresentation, misuse of client funds, malicious prosecution, or fraud
- Breach of fiduciary duty: violations of loyalty, confidentiality, or fair dealing
- Breach of contract: express or implied promise to use ordinary skill and care
Four points on duty, and the third one raises the bar:
- Standard of care: apply the skill, care, and diligence that a reasonable attorney would bring to a like matter
- Owed to:
- current clients;
- prospective clients unless the lawyer clearly disclaimed the representation;
- intended third-party beneficiaries of the legal service;
- persons the lawyer invited to rely on the opinion or work product; and
- outsiders who reasonably relied on something the lawyer did without authority
- Higher standard: if a lawyer represents to a client that they possess greater competence or will exercise greater diligence than normally demonstrated, the lawyer is held to that higher standard; the trigger is the representation made to the client, not formal certification alone
- Respondeat superior: negligence by a secretary, paralegal, law clerk, or similar staffer acting within the scope of employment is charged back to the supervising lawyer
Two points on breach, and the first says what breach is not:
- A judgment call reached on adequate information and within the range of reasonable choices is not a breach, even if the outcome disappoints; the yardstick is reasonable attorney conduct, not perfection
- Breach examples: failing to research a findable answer; failing to refer a difficult matter to a specialist when a reasonably prudent attorney would have done so
Two points on damages, and the second is where a proven breach still loses:
- A plaintiff must prove recoverable losses, including direct losses and indirect but foreseeable losses
- A plaintiff who suffered no financial harm loses the malpractice claim even if breach is proven
Example 1
Ex. 1
Lena held board certification in tax law and, at the initial meeting, described her practice as covering complex trust administration, implying superior expertise. The client retained her to draft a revocable living trust. Lena omitted a clause preserving the trust's tax status when the settlor died, an omission a competent general practitioner could make but a lawyer holding herself out in complex trust administration would not. The court held the trigger for the higher standard was not the certificate but the representations Lena made at retention. Hold the certificate to one side; what Lena said at the first meeting is what the court held to.
Trap
Trap
Tip
Questions · 2
Q 01ch12-e01
Question 1 of 2 · Rule 1.8
Attorney represented Client, a regional freight carrier, in a contract dispute with a fuel supplier. Attorney read the supply agreement, researched the controlling case law, and retained an economist to model the two remedies available. Choosing between an immediate suit for rescission and a demand that the supplier perform, Attorney concluded that rescission left Client in the stronger position and filed on that theory. The trial court ruled for the supplier. Evidence developed afterward showed that a performance demand would probably have produced a larger recovery for Client. Client then sued Attorney for the difference between the two figures. Is Attorney subject to civil liability?
Keys 1 to 4 choose.