Competence & Malpractice · 6-12% of the exam
12.1.2Causation: The Case Within a Case
Why
A lawyer's mistake and a client's loss are two separate facts, and the first does not automatically produce the second. Without a causation requirement, any client who lost a case could convert that loss into a claim against their own lawyer, whether or not the case was ever winnable.
Plain English
The injury must be one that would not have occurred but for the lawyer's negligence. Where the lawyer lost or failed to file a case, the malpractice plaintiff must prove the underlying claim would have succeeded — a second case tried inside the first. If that claim was meritless, no recoverable harm follows, though discipline may still be warranted; a bar complaint requires no harm at all.
Causation in malpractice
Four points on causation, and the last two switch to the discipline track:
- But-for causation: the injury would not have occurred but for the lawyer's negligence
- "Case within a case": to recover for a case the lawyer lost or failed to file, the malpractice plaintiff must prove the underlying claim would have succeeded
- If the underlying claim was meritless, the lawyer's breach caused no recoverable harm; the malpractice claim fails even though discipline may still be warranted
- A client may file a bar complaint regardless of harm; discipline does not require the underlying case to have been meritorious
Example 1
Ex. 1
Omar retained an attorney to sue a contractor for breach of an oral agreement. The attorney miscalculated the filing deadline and filed eleven days late; the court dismissed. At the malpractice trial, Omar produced witnesses who described the agreement's terms and the contractor's failures. The evidence went unrebutted. The court found the original claim would have succeeded. Causation was satisfied, and Omar recovered judgment for his losses. Erase the unrebutted witnesses from Omar's malpractice trial and the eleven late days buy him nothing.
Trap
Tip
Questions · 1
Q 01ch12-e03
Question 1 of 1 · Rule 1.8
Client retained Attorney to sue a former business associate for taking inventory from a warehouse the two of them owned together. Attorney entered the wrong date on the office calendar, allowed the limitations period to expire, and the suit was dismissed as untimely. Client then sued Attorney to recover the value of the lost claim. At the malpractice trial the proof established that the inventory had moved under a written consignment agreement Client signed years earlier, which gave the associate a complete answer to the conversion claim. Client offered no evidence that the underlying suit could have survived that agreement. Is Attorney subject to civil liability?
Keys 1 to 4 choose.