Concept

Client's Own Conduct

Civil liability to client, including malpractice

Client's Own Conduct

A client's own conduct can reduce a malpractice recovery, defeat it, or bar it altogether. Restatement (Second) of Torts § 281(d) supplies the premise by adding a fourth condition to negligence liability: the actor is liable only if the other “has not so conducted himself as to disable himself from bringing an action for such invasion.”¹ The earlier conditions look to the lawyer, asking whether the lawyer owed a duty, breached it, and legally caused a loss. This one looks to the client.

In a malpractice case the client's conduct does its work in three ways. The client's own negligence can reduce the award. The client's disregard of the lawyer's advice can defeat the claim by breaking the link to causation. The client's own fraud can bar the suit. Each doctrine is narrow, because clients hire lawyers for knowledge they lack and courts do not charge a client with fault for trusting counsel. What counts against a client is the client's own wrongdoing or disregard of advice, and reliance on the lawyer does not.

Comparative Fault

Comparative fault reduces a negligence plaintiff's recovery by the plaintiff's own share of responsibility for the harm, and courts apply it to legal malpractice.² The defense does not always depend on a statute. When the Massachusetts comparative negligence statute did not cover economic harm from legal malpractice, the court in Clark v. Rowe so held and then adopted a modified comparative fault defense as a common-law rule, relying on the public policies behind the statute.³

The theory pleaded limits the defense. Comparative fault answers a claim based on negligence but not one based on intentionally tortious conduct, and whether it answers a claim that the lawyer acted recklessly depends on state law. In a fiduciary-duty claim, the client's carelessness helps the lawyer only if the breach was merely negligent, not if it was intentional.⁴ The classification of the claim therefore decides which defenses the lawyer has.

A lawyer can act only on the facts and instructions the client supplies. A client who withholds information or ignores direction therefore contributes to the loss, and making the lawyer pay all of it would charge the lawyer for the client's share. In Western Fiberglass, Inc. v. Kirton, McConkie and Bushnell, a Utah appellate court treated the client as 50 percent at fault because the client failed to keep the lawyers informed and failed to follow their instructions.⁵

The same logic stops short of a client who simply trusted counsel. In Michael E. Greene, P.A. v. Leasing Associates, Inc., a Florida appellate court held that a client cannot be found comparatively negligent for relying on a lawyer's erroneous advice or for failing to correct a lawyer's errors.⁶ Dependence is the point of the engagement. A client able to spot a drafting error or a misstated rule would not need a lawyer, and a defense that faulted the client for missing the error would be available in every case and would leave the lawyer's duty with little content. Signing a document receives the same treatment. A federal court in TCW/Camil Holding LLC v. Fox Horan & Camerini, LLP found the client not contributorily negligent for signing documents when the firm had never advised him of their legal effect.⁷ A signature is still evidence of what the client knew, and a Georgia appellate court found no malpractice in Berman v. Rubin where a well-educated client had signed every page of the document.⁸ The signature alone therefore settles nothing in either direction, and the decisions look to what the client knew or was told.

The two lines of cases turn on who controlled the information. The Utah client kept its lawyers uninformed and ignored their instructions, so its own choices helped shape the loss. The client in TCW signed without the advice the firm had never given him, so the loss traces to the firm's silence. An exam stem that recites withheld facts or ignored instructions describes the first line, and a stem that recites a client who signed what the lawyer prepared and relied on the lawyer's assurance describes the second.

Disregarded Advice

A client who ignores the lawyer's advice presents a different problem from the one comparative fault solves. Comparative fault assumes that the lawyer's negligence helped cause the loss and divides responsibility between lawyer and client. A client who was warned and chose another course raises an earlier question: did the lawyer's conduct cause the loss at all? The New Jersey Supreme Court in Conklin v. Hannoch Weisman recognized that when a client violates the professional's instructions or advice, the analysis is one of causation, not contributory negligence.¹⁰ That framing follows from § 281(c), which requires that the lawyer's conduct be a legal cause of the loss.¹¹ A loss that the client's own contrary decision explains does not meet that test.

Treating the problem as causation has two consequences. First, the point becomes a gap in the client's own case instead of a defense the lawyer must raise, because the client must show that the lawyer's conduct, and not the client's choice, produced the loss.¹² Second, the result is all or nothing. A comparative-fault finding discounts the award by a percentage, while a failure on causation or breach leaves the client with nothing. The First Circuit in Sierra Fria Corp. v. Donald J. Evans, P.C. reached that result at the breach step, finding no breach by a lawyer whose warnings the client had not heeded.¹³

Hypothetical Illustration

A lawyer tells a landlord in writing that a lease termination takes effect only if the notice goes by certified mail, and that email will not satisfy the lease. Preferring speed, the landlord sends the notice by email, the tenant stays, and the court holds the notice ineffective. A second landlord also sends an email notice, but that landlord's lawyer never mentioned how the lease required notice to be delivered, and no one told the landlord that email would fail. Each landlord sues the lawyer for the rent lost while the tenant stayed. The first landlord's loss traces to a choice made against clear advice, so the lawyer's conduct caused none of it and the recovery is zero. The second landlord's loss traces to the lawyer's silence. If staying silent breached the standard of care, the claim goes forward, and the landlord is not charged with fault for relying on counsel to know what the lease required.

The line between this doctrine and comparative fault turns on whether the client's decision accounts for the whole loss or only part of it. A client who defied a clear warning against the very course that produced the loss usually accounts for all of it, and the claim fails on causation. A client whose lapses joined a loss that the lawyer's own negligence also helped produce, as in Western Fiberglass, shares the cause with the lawyer. An exam stem that says the client insisted on a course or declined the lawyer's written advice points to causation, and a stem that says the client relied on the lawyer's assurance points to a claim the client's conduct does not touch.

In Pari Delicto

In pari delicto, a Latin phrase meaning “in equal fault,” is the harshest of the three doctrines, because it can end the suit however careless the lawyer was. It bars a client from recovering from a lawyer for a loss that flows from the client's own fraud or wrongdoing.¹⁵ In Whiteheart v. Waller, a North Carolina appellate court barred a client from suing his lawyers for malpractice connected with cases in which he had continued to assert interests he did not have, conduct that exposed him and the lawyers to a claim for malicious prosecution. The bar applied despite the lawyers' many violations of ethics rules.¹⁶ The Vermont Supreme Court in State v. Therrien barred a client who, with her late husband, had committed fraud from suing lawyers accused of negligently allowing the couple to execute the deeds and complete the land transfers that made up the fraud.¹⁷

The bar fits what a malpractice award is for. The award restores the position competent legal work would have produced, and when the loss is the consequence of the client's own wrong, awarding it would shift the cost of the wrong to the lawyer and let the client keep what the wrong was meant to gain. Lawyers who help carry out a client's fraud may face discipline, and the opening section of this chapter separated that system from the civil claim, so the lawyers' misconduct in Whiteheart answers to the bar and does not revive the client's suit. That is § 281(d) at work in the malpractice setting: a client who took part in the wrong has so conducted himself as to disable himself from bringing the action.

Hypothetical Illustration

A client instructs a lawyer to prepare a loan application that reports twice the client's actual income, and the lender later calls the loan due because of the overstated income. The client sues the lawyer for the resulting loss, arguing that a careful lawyer would have refused to prepare the application. The loss flows from the client's own fraud, so in pari delicto bars the suit. A second client gives the lawyer accurate income figures, and the lawyer's office transposes two digits so that the application overstates income by the same amount. The client has no reason to suspect the error and signs, and the lender again calls the loan due. The wrong here is the lawyer's, so the claim proceeds on the ordinary elements, and the signature makes the client neither a participant in a fraud nor a comparatively negligent signer.

The doctrine reaches only the client who took part in the wrong. A client who knew nothing of the fraud, or whose only link to it is a signature on a paper the lawyer prepared, is not a participant, and the usual elements of the claim decide the case. An exam stem that says the client directed, knew of, or profited from a false statement or a sham transfer signals the bar, and a stem that says the lawyer's office made a mistake the client could not have seen leaves the claim intact.