Elements of Malpractice

Elements of Malpractice

Rule 1.3 directs a lawyer to act with reasonable diligence and promptness in representing a client.¹ A lapse can cost the lawyer in three places. In the underlying case, the client absorbs the missed deadline. In the disciplinary system, the lawyer’s license is at stake. In a malpractice action, the client sues for compensation.

Legal malpractice is a lawyer’s failure to use the skill, prudence, and diligence that lawyers of ordinary skill and capacity commonly exercise in the tasks they undertake.² Diligence is one ingredient of that definition, so the civil standard overlaps with Rule 1.3. The civil action asks a different question, however: must the lawyer pay for the harm the lapse caused?

Because a malpractice action sounds in tort, the client must prove the elements of a negligence claim.³ The first is a duty of care, typically shown by proving an attorney-client relationship. The second is breach, which requires defining what the lawyer owed the client. The third is proximate cause, a reasonably close connection between the lawyer’s departure from the duty of care and the client’s harm. The fourth is damages, a loss of a kind the cause of action allows, properly measured. The first two elements examine the lawyer’s conduct: did a duty exist, and did the lawyer fall short of it? The last two examine the client’s position: did the shortfall produce a loss the law compensates? Carelessness that leaves the client no worse off, or a loss the lawyer’s conduct did not produce, supports no recovery. A plaintiff must therefore prove proximate cause and damages as well as the lawyer’s incompetence.⁴

Diligence failures are the best entry point to these elements, because they present each one in a clean form. Take the lawyer who accepted a matter and then let the limitations period run, the paradigm failure discussed earlier in this chapter. The engagement supplies the duty, and the missed filing supplies the breach. Whether the lost claim would have succeeded goes to causation, and its value goes to damages. Malpractice actions reach well beyond missed deadlines, since they can raise questions of competence, the scope of the representation, and divided loyalty, and plaintiffs increasingly plead breach of fiduciary duty on agency principles.⁵ A later part of this chapter takes up the fiduciary theories; this unit follows the negligence form.

The sections below take the elements in order: first whom the lawyer owes a duty, then the standard that measures breach. A third section handles judgment calls, because the standard of care does not make a lawyer liable for every choice that turns out badly. Causation and damages then complete the path from the lawyer’s conduct to the client’s compensable loss.

Duty to the Client

The duty element comes first because breach, causation, and damages have nothing to measure until the plaintiff shows that the lawyer owed that plaintiff a duty of care. In most cases the plaintiff must show an attorney-client relationship, so the duty runs only to those in privity of contract with the lawyer.⁶ Rule 1.3 points the same way, since it governs diligence “in representing a client.”⁷

That requirement sets legal malpractice apart from most negligence law. MacPherson v. Buick, in which Judge Cardozo expanded liability for defective products beyond privity of contract, is the torts decision most students remember, and for the most part the law of lawyer liability has not followed it.⁸ The difference reflects how a lawyer’s obligations are built. Loyalty, confidentiality, and diligence all run to the person the lawyer agreed to serve, and the Restatement of the Law Governing Lawyers describes a basic distinction between clients, to whom lawyers owe many duties, and nonclients, to whom they owe few.⁹ A lawyer who owed the same duty of care to everyone a piece of work might touch would be pulled in two directions whenever the client’s interests diverged from someone else’s. A lawyer negotiating for one side is supposed to advance that side’s position, and an opposing party who could sue for failure to protect its own position would turn the lawyer’s loyalty into a liability. The duty therefore follows the relationship the lawyer chose to enter.

Because the relationship is the gateway, the first practical question is who counts as a client. Whether an attorney-client relationship exists can be a question of fact, so a court may examine how the lawyer and the person actually dealt with each other instead of looking only for a formal engagement.¹⁰ The duty also reaches a prospective client, someone who has discussed forming a relationship with a lawyer, to the extent the lawyer provides legal services during the preliminary discussion.¹¹ A person who describes a possible claim and receives an evaluation of its merits has received legal services. A person who only asks for the name of another firm has received none. The duty extends only as far as the services the lawyer actually gave.

When no attorney-client relationship exists, the lawyer owes no duty of reasonable care, subject to two narrow exceptions: a lawyer who invites a non-client to rely on the lawyer’s opinion or services, and the intended beneficiaries of the lawyer’s work for a client.¹² Both exceptions turn on something the lawyer did, or on the purpose of the engagement. Neither turns on the fact that the plaintiff was foreseeably hurt, which is why they stay narrow.

The first exception covers a lawyer who invites reliance. The standard illustration is an opinion letter to a lender certifying that the lawyer has checked and found no liens or encumbrances on the property the client, as borrower, offers as collateral. Greycas, Inc. v. Proud is the well-known Seventh Circuit decision on a letter of that kind.¹³ The letter exists to give the lender enough comfort to lend, so the lawyer has deliberately encouraged the reliance that later causes the loss. Without a duty, the lender would bear the cost of a careless statement made to it on purpose, and lawyers could issue such letters with less care than their purpose demands.

The second exception covers the intended beneficiaries of a lawyer’s work, and its home territory is the will or trust. A lawyer who prepares such an instrument for a testator, intending to convey property to certain people, may make a drafting error, such as violating the Rule Against Perpetuities, that defeats the gift. The beneficiaries may then sue the lawyer for negligence even though they were never clients.¹⁴ Lucas v. Hamm was among the first decisions to recognize lawyer liability to non-clients in this setting.¹⁵ The reasoning follows from the purpose of the engagement. The point of the testator’s work with the lawyer was to benefit these particular people, and the testator can no longer enforce the lawyer’s duty. Letting the beneficiaries sue keeps that duty enforceable and the lawyer’s incentive to draft carefully intact. Lucas also described the Rule Against Perpetuities as a pitfall for the unwary, but that aspect of the decision has been distinguished away, and a competent lawyer is now expected to comply with the Rule.¹⁶

The word “intended” limits this exception. It reaches the people the engagement was meant to benefit, not everyone whose fortunes the lawyer’s work happens to affect, and a financial stake in the outcome does not by itself create a duty. A plaintiff who is not a client, a prospective client, someone the lawyer invited to rely, or an intended beneficiary has no claim that the lawyer was careless toward that plaintiff. Once a duty is established, the next question is what the lawyer owed within it, which is the standard of care.

Breach and Standard of Care

Breach asks whether the lawyer departed from the standard of care, the level of conduct the law expects of a defendant in those circumstances. Diligence is one ingredient of that civil standard, and Rule 1.3 states the same duty for disciplinary purposes.¹⁸ The standard supplies the yardstick, and this section covers who sets it, how it is proved, and what raises it or leaves it unchanged.

The measure in a malpractice case is the reasonable professional, not the reasonable person. The Restatement of the Law Governing Lawyers § 52(1) frames it as the “competence and diligence normally exercised by lawyers in similar circumstances.”¹⁹ Courts phrase the same idea as the skill, prudence, and diligence that lawyers of ordinary skill and capacity commonly exercise in the tasks they undertake.²⁰ The reason for tying the standard to the profession lies in what jurors can judge. A juror can decide from everyday experience whether a driver should have braked, but not whether a lawyer should have joined another defendant, requested a particular piece of discovery, or investigated title before giving an opinion. Only the profession knows what those choices ordinarily look like, so the standard is drawn from what comparable lawyers customarily do, and custom sits at the center of the analysis.

If custom defines the standard, the plaintiff must prove what the custom is, and the people who can describe it are other lawyers. A malpractice plaintiff must therefore generally introduce expert testimony to establish the standard of care and to show that the defendant failed to meet it.²¹ Two things need proof, and one expert usually speaks to both: what a reasonable lawyer in the state would have done, and how the defendant’s conduct compared with it.

The second client’s claim fails for want of proof about the standard, and a bad outcome alone does not fill that gap. Students often assume that an unfavorable result carries a malpractice claim along with it. The breach element asks how the defendant’s conduct compares with what comparable lawyers do. The result of the underlying matter answers a different question, which the causation and damages elements take up later.

The standard is generally determined on a statewide basis, so a lawyer in Buffalo can testify that a lawyer in Schenectady was negligent.²² That rule helps the plaintiff, who can draw an expert from anywhere in the state and need not find a local lawyer willing to criticize a neighbor. It also fits the work, because the statutes, court rules, and doctrines a lawyer must master apply across the state and do not change at the city line.

A lawyer who claims special skill is measured against a higher bar. A lawyer who holds herself out as a specialist, for example by claiming to be an expert in international taxation, may be held to the heightened standard of care of lawyers who are experts in that field.²³ The mechanism is reliance. A client who picks a lawyer because of advertised expertise pays for that expertise and depends on it, and measuring the lawyer against general practitioners would let her collect the benefit of the claim while escaping its cost.

The specialist rule only raises the bar and never lowers it. An exam stem that mentions a lawyer’s narrow practice or special training, with no holding out of expertise, invites the wrong inference that the standard has changed. The trigger is the lawyer’s own representation of expertise to clients.

Rules of professional conduct are relevant to the standard of care, but courts generally do not give them per se effect, in the way they treat a safety statute in an ordinary negligence case.²⁴ Violating a safety statute can itself establish negligence. Violating a conduct rule is evidence the plaintiff may use, and an expert may rely on it, but the factfinder must still decide that the lawyer departed from what reasonable lawyers do. The reason lies in the purpose of the rules. They protect the public through discipline, where the question is whether the lawyer fell below the minimum the profession demands, while a civil suit asks whether this defendant must compensate this plaintiff. A lawyer who neglects a file in violation of Rule 1.3 can therefore face discipline on one track while the client must still prove breach with ordinary evidence on the other. The next section takes up another feature of the standard: a professional is generally not liable for every judgment that turns out badly.

Judgment Versus Due Care

Breach is more than a single question about carefulness. Descriptions of a professional’s standard of care usually dwell on knowledge and skill, yet two further elements run alongside them: the exercise of a discerning judgment, and the use of due care in applying the professional’s skill and knowledge.²⁶ Courts treat the two quite differently, so sorting an alleged error into one or the other usually predicts whether the claim is strong or weak.

Judgment carries real protection. A professional is generally not liable for a mere error of judgment, and for lawyers that covers tactical decisions and decisions on a debatable point of law, so long as the attorney exercises best judgment. Crosby v. Jones states the rule in those terms.²⁷ The reason is that such choices involve discretion on which competent lawyers honestly differ. Where the law is unsettled or the strategy is a close call, one careful lawyer will go one way and another will go the other, and only one of them can turn out to be right. A rule that made the lawyer pay whenever the chosen path lost would judge the decision by an outcome nobody could know in advance. It would also push lawyers toward timid choices built to look defensible in hindsight instead of choices best for the client. The protection therefore attaches to the quality of the choice, measured by what was reasonable when it was made.

Due care concerns how carefully the lawyer carries out the steps of the work once the skill and the decisions are in place. These steps are mechanical rather than discretionary, and because they implicate no professional judgment, courts are more likely to find liability when they are botched. The prime illustration for lawyers is failing to file suit before the statute of limitations runs, and the medical counterpart is failing to read the test results on which a diagnosis depends.²⁸ The logic runs opposite to the judgment protection. No honest difference of professional opinion exists about whether a complaint should be filed before the deadline expires, so the lawyer has no discretion to defend and no debatable question to point to. Oversight is the only explanation, and oversight is exactly what the due-care element exists to catch.

Here the diligence duty reconnects with the malpractice standard. A lapse in diligence, such as a missed deadline, a file left untouched, or a follow-up never made, is typically a mechanical failure and not a failed judgment call. The missed limitations period that the earlier discussion called the most common real-world violation of Rule 1.3 therefore becomes, in a civil suit, the easiest claim on which to prove breach. The plaintiff’s expert needs to say only that a reasonable lawyer calendars the date and files in time, and the defense has no strategic rationale to offer in reply. That ease belongs to breach alone, since causation and damages must still be proved. An exam stem that describes a lawyer who did nothing and later calls the inaction strategy tests the same point. Judgment means an actual choice among options, and a lawyer who never acted cannot turn an omission into a tactical decision by describing it that way afterward.

Claim studies point the same direction: procrastination, failure to follow up, and lost files figure among the most commonly alleged errors, and each is a mechanical lapse of the due-care kind.²⁹ The label never decides the question, though. Inadequate discovery is a judgment call when the lawyer weighed the cost of another deposition against its likely value and skipped it, and it is neglect when the lawyer never got around to it.

The judgment protection has limits that an exam answer should respect. It covers decisions made in the exercise of best judgment, yet a lawyer’s honest best effort can still fall below the accepted standard, because the standard is measured by what lawyers of ordinary skill do, and sincerity does not settle it. In Wood v. McGrath, North, Mullin & Kratz, the court held that a recommendation to settle, made without disclosing that the agreement conceded issues the client might have won, was not an exercise of best judgment.³⁰ A lawyer who advises a deal without telling the client what it gives up has not made the informed, discerning choice the protection assumes. Courts have also grown wary of the jury instructions that carry the protection into the courtroom. Pleasants v. Alliance Corp. found that a mistake-of-judgment instruction, still widely used, wrongfully injects an element of subjectivity into the evaluation of the standard of care, and Passarello v. Grumbine found that a similar instruction in a medical malpractice case posed a palpable and substantial risk of confusing the jury.³¹ A jury told that a professional is not liable for using best judgment may conclude that good faith is enough, when the real question is whether the judgment itself met the objective standard.

Causation

Proximate causation is the third element, a reasonably close connection between the lawyer’s departure from the standard of care and the harm the client suffered.³³ A lawyer who lets a limitations period run violates Rule 1.3 whatever later happens to the client’s claim,³⁴ but the malpractice plaintiff needs more than the violation. Proximate cause is a policy-based inquiry into fairness. Even when the lawyer factually caused the harm, liability fails where imposing it would be unfair, as where the loss was unforeseeable, where it fell outside the risks that made the lawyer’s conduct tortious, or where many intervening forces contributed to it.³⁵

The preceding section showed that a missed deadline is the easiest breach to prove, since no judgment call stands behind it. That ease moves the contest to causation, where many missed-deadline claims succeed or fail. Tort liability compensates losses the breach produced, and a client whose claim was lost to a missed deadline has lost the chance to win that claim. The loss exists only if the claim would have produced a recovery. The malpractice court must therefore reconstruct the original lawsuit, and the client must show that, with timely action, the client would have recovered. This is often called proving the case within a case, because the plaintiff in effect tries the underlying claim a second time inside the malpractice suit. Without that requirement a client could collect for a claim that never had value, and the lawyer would pay for carelessness as if it had destroyed something real.

A stem about a missed filing date supports liability only if it says something about the quality of the lost claim.

The two lawyers behaved identically, and the only fact that moved the answer was the merit of the underlying claim. The second lawyer is not cleared everywhere, since letting the period expire is still a failure of diligence that can draw discipline. As earlier parts explained, discipline and malpractice answer different questions, so the absence of damages on one track leaves the other untouched. The usual exam error is to read a vivid description of the lawyer’s inattention, such as months of ignored calls and an unmarked calendar, as proof that the client can recover. Carelessness establishes breach, and recovery requires that the carelessness cost the client a claim worth something.

A refinement arises when the client changes lawyers before the harm becomes final. The law sometimes holds that, although one person set the stage for harm, responsibility for preventing it shifted to someone else. That happens generally where the first person did everything possible to prevent the harm, or where the other person’s failure was so unforeseeable, bizarre, or abnormal that blaming the first would be unfair.³⁶ In malpractice the question comes up when a negligent lawyer is replaced by a second lawyer who fails to find the problem and fix it. Some decisions hold that when the duty of care shifts from the original lawyer to the successor, liability shifts too, provided the successor had the opportunity to undo or avert the harm.³⁷ The better view is that engaging a new lawyer does not insulate the earlier lawyer from liability for antecedent negligence that played a substantial role in causing the harm.³⁸

The better view rests on foreseeability. Dilatory inaction is a foreseeable consequence of a lawyer’s error, because a client who has been misinformed or neglected is the client least likely to notice the problem in time, and a successor who also misses it has not done anything so strange that the first lawyer’s responsibility disappears. The first lawyer also usually cannot claim to have done everything possible, since that lawyer created the problem. Lopez v. Clifford Law Offices, P.C. involved a firm that declined a prospective client’s case and wrongly advised the client about the limitations period. The client then consulted another lawyer, who also declined before the period expired, and the Illinois Appellate Court held that this consultation did not absolve the firm.³⁹ No successor ever accepted the matter, so no one had taken over a duty, and the client had merely had a chance to find help. In Gefre v. Davis Wright Tremaine, LLP, the Supreme Court of Alaska followed the broader approach under which even an actual engagement of new counsel does not insulate the earlier lawyer.⁴⁰

The successor-counsel question therefore adjusts the causation analysis at its edges. The main inquiry remains whether the lawyer’s breach cost the client a claim that would have produced a recovery.

Damages

Damages are the fourth element, and without them the first three have nothing to support. Because a malpractice claim sounds in tort and follows the structure of negligence, the claimant must prove damages, which calls for attention both to the type of damages the cause of action allows and to how they are measured.⁴² Rule 1.3 reaches neglect when it occurs, whether or not the client ends up worse off,⁴³ but the civil claim does not. The first three elements concern the lawyer’s conduct and its link to the harm, and this last element concerns the loss itself.

A wrong without damages supports no claim because of what tort recovery is for. A malpractice award is meant to put the client where the client would have stood had the lawyer performed properly, so the award answers a loss and nothing more. A lawyer whose carelessness leaves the client in that same position has taken nothing from the client, and a payment in that situation would be a windfall rather than compensation. Punishing the careless act is the job of the disciplinary system, which, as discussed earlier, runs on a separate track with a separate purpose. That separation is why a lawyer can face a disciplinary charge for a lapse that gives the client no civil claim.

In a missed-deadline case the loss the client has suffered is the claim itself, so the measure of damages follows from the causation inquiry. Proving causation already requires the client to reconstruct the underlying lawsuit and show that timely action would have produced a recovery. That same reconstruction supplies the amount, because the value of the client’s claim that the lawyer’s acts destroyed or reduced is often the measure of what the client lost. Causation and damages therefore draw on one body of proof, with causation asking whether the client would have recovered and damages asking how much. The defendant can contest both, since a lawyer may concede the missed date and still argue that the lost claim was worth far less than the client says.

The lawyer in that scene remains answerable on the disciplinary track, since Rule 1.3 reaches the missed date regardless of what followed, but the client’s civil claim fails at the fourth element. A lapse that leaves something behind produces the opposite result.

Both lawyers missed a date and both fell below the standard of care, so the fact that moved the answer is whether the lapse took something of value from the client. The usual exam error is to treat proof of breach as enough for recovery. A stem that describes sloppy calendaring in vivid detail and then adds that the problem was fixed before any harm has described a claim with no damages.