Each legal malpractice action is unique. They are very fact-intensive, and they depend on the underlying representation’s circumstances. Legal malpractice defense is also a continuously evolving area of law, changing with every appellate decision.
When a lawyer is accused of legal malpractice, they can speak with their firm’s in-house counsel for advice. When a lawsuit alleging legal malpractice is actually filed, the stakes can seem very high. Many lawyers mistakenly assume that these lawsuits are like any other litigation claims or that general litigators can successfully identify the unique defenses and risks that a legal malpractice claim poses. In reality, this area of the law typically needs specialized knowledge and experience to defend.
Let’s look at some tips specifically meant for the legal malpractice defense arena. By knowing some common defenses to such claims, lawyers can adapt their own habits and build up their defenses should a lawsuit ever come.
Carefully Review the Engagement Letter
There are many law firms that condition the opening of a new matter on getting a signed engagement letter. When dealing with legal malpractice suits, the engagement letter can serve as strong evidence for the defense. These letters can be used to define the client and the scope of the representation in accordance with ABA Model Rule of Professional Conduct 1.2(c) (“A lawyer may limit the scope of the representation if the limitation is reasonable under the circumstances and the client gives informed consent”).
A lawyer can use the engagement letters to fight allegations if they are being sued by a party who was not a client, or if they are being sued for failing to do a task that was outside their scope of representation.
If an engagement letter is not used, the terms of the representation may have to be recreated based on other evidence. Otherwise, it may be assumed that the representation was a general one for all purposes, which might increase the chances of liability.
Using an engagement letter to define your role and anticipate the terms you would want in writing in the event of a claim may greatly help you defeat a lawsuit alleging professional negligence.
Invoke the Judgmental Immunity Doctrine
Every lawyer can sometimes make an error in judgement. They may choose not to pursue a particular strategy at trial or they may choose to dismiss an apparently viable claim in favor of another one. Afterward, the client may allege that some of these judgement calls were mistakes that cost them their case.
There are, however, many jurisdictions that recognize the “judgmental immunity” doctrine. This usually protects attorneys from liability for malpractice in the case of decisions made based on their reason and professional judgement.
Attorneys can use this in their favor through preparation, by making recommendations to clients and document their advice and the basis for that advice. If the strategy fails and the client brings a malpractice suit, a documented strategic decision is likely to help the attorney invoke the judgmental immunity doctrine.
A Mistake Is Not Necessarily Malpractice
There are many malpractice complaints which allege grave errors or breaches in judgment by an attorney, but legal malpractice cases are unique in that liability does not automatically attach, even in the case of an attorney who committed an error or violated his ethical obligation. The reason for that is that the element of causation is extremely important to cases involving legal malpractice. The most common and successful defense against legal malpractice allegations, in fact, is a lack of causation.
In many cases, a plaintiff seeking to recover will typically be required to prove that the attorney breached a duty while they were representing the plaintiff, and as a result, the plaintiff lost that underlying case. This analysis, which is sometimes called the “case within a case,” typically requires proof that the underlying representation would have been successful, which can be difficult to prove.
Litigating issues of causation can sometimes turn the focus away from the attorney’s conduct and instead focus on the merits of the underlying case. Since the majority of cases are resolved in favor of the defendant attorney on issues of causation, most attorney make sure not to admit “liability” for malpractice upon making a mistake. Even in the case of a grave mistake, a mistake without causation is usually not actionable.
Verify the Procedural Requirements
Savvy legal malpractice defense lawyers know to first check whether the lawsuit complies with all the procedural requirements. There are some states which have specific procedural requirements that are unique to legal malpractice actions, and they are often meant to reduce the number of frivolous claims.
If a legal malpractice lawsuit doesn’t follow the procedural requirements of the jurisdiction, a motion to dismiss could be appropriate.
Most legal malpractice defendants would probably be best served by hiring a defense attorney who was expertise in the area, but what we mentioned above are just some steps attorneys can preemptively take to help their chances of defeating a future legal malpractice claim.