While some mistakes may typically be at issue in a legal malpractice claim, there is generally no such things as a typical legal malpractice claim. Legal malpractice claims are usually very fact intensive and as such, even when the facts appear straightforward, more often than not there are unique circumstances which dictate whether a lawyer will actually be found liable.
What’s more, since legal malpractice claims may appear to be like any other form of litigation, lawyers will sometimes think that they can best respond to a legal malpractice threat without any outside help. However, lawyers which lack experience with legal malpractice claims may actually make things worse by taking steps which in fact foreclose some potential defenses.
As such, every lawyer should understand some of the most common defenses against legal malpractice claims so that if they are ever faced with such a claim, they will know how to appropriately respond. We’re going to look at some key issues which may indicate whether there is any actual exposure or even whether the client decides to pursue a claim.
Never Downplay the Importance of Engagement Letter
When being sued for legal malpractice, an engagement letter can be an attorney’s first line of defense. They can be used in several ways, such as defining specifically who was and who wasn’t the client, including the scope of the representations, in accordance with California Rule of Professional Conduct 1.2(b), which states that “a lawyer may limit the scope of the representation if the limitation is reasonable under the circumstances, is not otherwise prohibited by law, and the client gives informed consent.”
If someone other than the client files suit, or if the client sues for something that was outside the scope of the representation, the lawyer can use the engagement letter to rebut allegations. Courts have indeed granted motions to dismiss or even summary judgment in such situations where the complaining party alleges the lawyer owed duties which were not actually defined in the engagement letter.
If the engagement letter does not specifically include a scope or if there is no actual engagement letter, then it will likely be assumed that the representation was a general one, serving all purposes, and this can increase the risk of liability. By clearly defining their roles, a lawyer can rebut any claim that they were under obligation to perform certain tasks which they did not think about when beginning the representation.
Not Every Mistake Means Malpractice
A lawyer can make mistakes, and those mistakes can sometimes be serious. However, regardless of the severity of their error, one cannot equate making a mistake with the legal principle of liability for malpractice. Causation is extremely important to a legal malpractice case even in cases where there has been a clear breach of duty. Since causation is not always clear, one of the most common and actually successful defenses to a legal malpractice claim is the lack of causation.
In many cases, a plaintiff seeking to recover will be required to prove that their lawyer breached one of their duties and that resulted in them losing the case. This typically requires evidence that the representation would have otherwise succeeded, which can be quite difficult to prove.
Litigating an issue of causation will sometimes shift focus from the lawyer’s conduct to the merits of the underlying case. Lawyers may be obligated to notify clients of errors in some scenarios, but some lawyers will take that obligation a little too far and actually admit liability of suggest that an unwanted result was caused by their mistakes. Legal malpractice claims will actually not be typically actionable if the results would have been the same regardless of whether the lawyer had made a mistake or not.
The Judgmental Immunity Doctrine
Sometimes there is a fine line between an apparent error and a strategic decision which, among reasonable alternatives, did not turn out well for the client. In some jurisdictions, California included, a lawyer can rely on the judgmental immunity doctrine, which relieves them from a finding of liability even if there was an unwanted result because of an “honest error in judgment concerning a doubtful or debatable point of law.”
While not actual immunity in a traditional sense, this doctrine can actually provide compelling arguments against holding a lawyer liable for a judgment call when the practice of law is sometimes inherently uncertain.
If the state law is unclear, a lawyer can inform their client of the risks of taking certain actions based on the possibility that their suggestion may not be consistent with the law. If things turn out badly, lawyers can invoke the judgmental immunity doctrine based on the fact that they made a reasonable judgment call when they made their suggestion to their client.
Lawyers cannot control the outcome of their clients’ cases and despite giving it their best efforts, mistakes can happen when practicing law. Lawyers can, however, take some steps to ensure that if an alleged mistake occurs, they will be able to defeat a legal malpractice claim.