Posted by diverdan on 6/11/03

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Legal malpractice today is a difficult thing to define.
Using the dictionary definition a reasonable and abstract
idea of what attorneys shouldn't do comes to mind. The
definition, though, is too generic for this discussion. The
Desk Guide to Legal Malpractice defines malpractice in the
sense of quality of legal service and conduct of the
lawyer. It says, "conduct on the part of the attorney that
is not unique to the legal profession and does not concern
the quality of professional services is not considered to
be malpractice."
If someone wanted to file a malpractice suit against
his/her attorney, how could he/she go about defining what
was unreasonable practice? The most common bases for
malpractice are professional negligence and breach of
fiduciary obligations. Professional negligence and the
standard of care was defined in Stephens. A breach of
fiduciary duty involves a breach of the attorney's
responsibility to the client for his/her undivided loyalty
and confidentiality. This may also be known as privity. The
professional negligence involves a standard of care and the
fiduciary duty, some courts say, is the standard of
conduct. Attorneys are bound by a trust when working for a
client; breaking that trust is a breach of the fiduciary
obligation. Note that some states will approach malpractice
in a contractual sense; others approach it in a tort sense.
The fundamental difference between these two approaches,
for the purpose of this discussion, is the statute of
limitations is longer and the measure of damages more
limited in contract actions. There may also be implications
related to the fiduciary duty and negligence. Discussion of
those issues in that context are beyond the scope of this
writing. Suffice it to say that although cases may have
been decided using a contract approach, courts usually
found that attorneys had contracted to exercise a degree of
skill and care required by tort standards.

To establish negligence in a legal malpractice suit four
elements are required

Duty
The attorney-client relationship existed. The American Bar
Association, in its Desk Guide to Legal Malpractice, states
that an attorney owes a duty to the client to be competent -
- possess a certain amount of legal knowledge, skill and
judgment -- and diligent --or use that skill and knowledge
zealously and faithfully on behalf of the client.
Breach
Attorney's actions involved a breach of duty. In other
words, the actions in question are compared to the standard
of an attorney who possesses reasonable diligence with
his/her clients and reasonable competency. To be
actionable, by the ruling in Stephens, the breach must be
more than a mistake. It must be something recognizable as
standard in the area of expertise. No one attorney is
expected to know all the law all the time, but each
certified attorney is expected to use the knowledge and
training to the best of his/her abilities.
Injury
Damages sustained by the plaintiff. There are two degrees
of injuries that can be used. Which standard is used varies
among jurisdictions. The majority view is that the injury
must constitute actual, present damages to the client's
interests. The threat of possible damages is not
considered. The essence of this view is that a malpractice
case is to seek a civil remedy for harm inflicted
wrongfully on a client, not to vindicate rights of injured
parties. The minority view only requires the plaintiff to
show nominal damages or that hisher status after the event
is one different from the where he/she would have been but
for the attorney's negligent actions.
Causation
Attorney's acts or omissions were the proximate cause of
damage. The injury sustained must have a "proximate cause"
relationship between the breach and an injury suffered by a
client. It requires that but for the attorney's actions,
the client's injury would not have been sustained.
The burden of proof in a negligence action normally lies
with the plaintiff. The preponderance of the evidence is
the required standard of proof in a typical malpractice
case. In the common vernacular this means that the
plaintiff must only show what would probably have occurred
without the malpractice in order to secure judgment. The
exception to the burden of proof rule is the breach of the
fiduciary duty owed by the defendant attorney. Some
jurisdictions have found that if a fiduciary duty is owed
by the attorney to the client, the burden of proof for
adequate care then shifts to the attorney. Both the
malpracticing attorney and his/her firm may be liable to a
client. This duty runs from each attorney in the firm to
each client of the firm.
The statute of limitations in malpractice cases was
originally found to run from the time of injury. Unlike
medical malpractice, legal malpractice usually occurs in a
fiscal sense and is more quickly caught and remedied by
financial restitution.

One of the first cases involving legal malpractice heard by
the U.S. Supreme Court was Savings Bank v Ward. This
particular case, heard in 1879, set the precedent for the
standard of care required by attorneys. In the brief the
court stated

[I]t must not be understood that an attorney is liable for
every mistake that may occur in practice, or that he may be
held responsible to his client for every error of judgment
in the conduct of his client's cause. Instead of that, the
rule is that if he acts with a proper degree of skill, and
with reasonable care and to the best of his knowledge, he
will not be responsible.[Emphasis added

What is Legal Malpractice?, 6/11/03, by diverdan.

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