1-5 Third Predicate: Attorney's Negligence as Proximate Cause of Loss

• Jurisdiction: United States

1-5 Third Predicate: Attorney's Negligence as Proximate Cause of Loss

1-5:1 Necessity of Establishing Lawyer's Responsibility for Client's Loss

The third and final element that a legal malpractice plaintiff must plead and prove is that the attorney's negligence was the proximate cause of the plaintiff's loss.²²⁵ In other words, a legal malpractice plaintiff must prove that the lawyer's negligence more likely than not caused the client's injury.²²⁶ In the legal malpractice case of Chadwick v. Corbin,²²⁷ the court applied the general tort law rule that "[n]o damages may be recovered where losses do not usually result from or could not have been foreseen as a proximate result of a particular negligence."²²⁸ However, "once a negligent act occurs, the actor will be liable for injury flowing therefrom, unless 'an act unforeseeable to him and independent of his negligence intervenes to cause the loss.'"²²⁹

In explaining why a former client must prove proximate cause in a legal malpractice action, one court has written:

[A]n attorney who drafts documents is not ipso facto a guarantor that the documents will be litigation free or will accomplish everything that the client might want. . . . The rationale is that if there were malpractice liability under those circumstances, an attorney would in effect insure his work; but since insurance coverage ordinarily calls for premium payment, attorneys' fees would inevitably increase substantially to provide for that type of insurance.²³⁰

In Hatcher v. Roberts,²³¹ a client-mortgagor brought a legal malpractice action against its attorney contending that in the under lying foreclosure proceeding, the attorney negligently withdrew an affirmative defense of prepayment. The First District Court of Appeal found, as did the trial court, "that, under all the facts, circumstances, and law existing at the time of the foreclosure suit, the prepayment defense asserted and then withdrawn in the foreclosure proceeding could not possibly have succeeded, even with diligent preparation and litigation by" the attorney.²³² Therefore, because the attorney's acts were not the proximate cause of the client's alleged damages, no legal malpractice had taken place.²³³

Although the Fourth District Court of Appeal in Lefebvre v. James²³⁴ did not mention the lack of proximate cause as its reasoning for overturning the jury's verdict, its reversal was based on the fact that the lawyer's failure to amend the complaint to add a cause of action did not result in any damages to the client.²³⁵

The case involved damages to a farmer's livestock allegedly resulting from a problem with the feed delivered to the farmer. The company that delivered the feed went bankrupt and its insurer denied coverage based on the pleadings, which set forth a defective product theory. Negligent delivery would have been covered under the policy. The attorney considered adding a claim for negligent delivery, but did not do so because he thought the amendment would not relate back to the original cause of action and therefore would be barred by the statute of limitations.

The trial court disagreed and ruled as a matter of law that the amendment would have related back. The appellate court, agreeing with the lawyer's assessment, reversed and wrote: "[A]n amendment to the complaint alleging negligent delivery of the feed would have constituted a new cause of action, would not have related back to the filing of the claim, and would have been barred by the statute of limitations."²³⁶

The lawyers in Day v. Persels & Associates, LLC²³⁷ were accused in a class action lawsuit of preying on financially troubled consumers by engaging in a fraudulent debt settlement program. As part of their motion to dismiss, the lawyers argued that there was no proximate cause because the debts were legitimate and the consumers had no valid defenses to their enforcement. These arguments were rejected by the court because the evidence showed that had the lawyers properly defended the consumers, the amounts owed would have been substantially reduced:

[T]he plaintiff has set forth a non[-]speculative basis on which to assess damages in this case. Thus, the amended complaint alleges that "CareOne tracks statistics regarding debt settlement plans and regularly settled a consumer's unsecured debts in the range of 48 to 52 percent of original face value of a consumer's unsecured debt, based on a plan that would take 60 months to complete."²³⁸

The attorney at the center of Pitcher v. Zappitell²³⁹ represented the parents of a girl in a wrongful death case arising from a car accident. The mother was awarded $4 million while the father received $200,000. The father subsequently alleged that this disparity was due to the attorney's malpractice and conflict of interest.

The attorney moved for and was granted summary judgment, in part because the father failed to introduce sufficient evidence of causation. In reversing, the Fourth District Court of Appeal held that this was error because it improperly shifted the burden of proof to the non-movant.²⁴⁰ The court noted, however, that summary judgment is available where the lawyer "can show unequivocally that there was no negligence or that plaintiff's negligence was the sole proximate cause of the injury."²⁴¹

1-5:2 Alternative Reasons for Client's Loss

An attorney will not be liable if "some separate force or action is the active and efficient intervening cause, the sole proximate cause or an independent cause"²⁴² or if it was not his or her responsibility to investigate.²⁴³ However, if the attorney sets off a chain of events resulting in harm, or if the intervening cause is foreseeable, his or her negligence may be considered the proximate cause notwithstanding the intervening cause.²⁴⁴

1-5:2.1 Lawyer Followed Client's Instructions

It is malpractice for a lawyer to fail to follow a client's instructions.²⁴⁵ The issue in Boyd v. Brett-Major²⁴⁶ was whether the attorney followed the "explicit directions" of her clients.²⁴⁷ The jury found that the clients had instructed their attorney to delay, rather than win, a mortgage foreclosure case brought against them (so as to maintain their relationship with the bonding company). It therefore concluded that the lawyer had not committed malpractice when she decided not to plead the defense of failure to file an affidavit. Had the lawyer done so, the bonding company would have been unable to proceed.

The clients appealed the jury's verdict. Finding no cases on point in Florida, the Third District Court of Appeal cited a Nebraska Supreme Court decision for the following proposition:

It is not the role of an attorney acting as counsel to independently determine what is best for his client and then act accordingly. Rather, such an attorney is to allow the client to determine what is in the client's best interests and then act according to the wishes of [the] client within the limits of the law.²⁴⁸

The Boyd court was not impressed by the argument that its ultimate holding in favor of the attorney would allow lawyers to avoid liability by saying they followed their client's instructions.²⁴⁹

The lawyer in Lawyers Professional Liability Insurance Co. v. McKenzie²⁵⁰ was sued for the profit allegedly lost by a client who had to go through two foreclosure sales before the litigation was complete. In the first foreclosure sale, the mortgagor did not redeem the property, and the client-mortgagee was the highest bidder at the sale. The mortgagee had been negotiating with a third party to purchase the property after the completion of the foreclosure. After the sale, the lawyer realized that the legal description was wrong, which ultimately resulted in the scheduling of another foreclosure sale. Before the second sale, the mortgagor located a buyer for the property who satisfied the mortgage. The court found that the "attorney, though negligent, did in fact do what he was employed to do. He foreclosed on the mortgage and [the client] received all that she was entitled to under the terms of the instrument. She did not prove that [the attorney's] negligence was a proximate cause of her failure to get the property back."²⁵¹

Similarly, the lawyer in Snaith v. Haraldson,²⁵² who drafted balloon mortgage language and represented both the mortgagor and mortgagee, had no liability to the mortgagor for failing to include a statutorily required legend, because the oversight did not cause any damages to the mortgagor.²⁵³

1-5:2.2 Client's Case Lacked Merit

In Bolves v. Hullinger,²⁵⁴ an attorney filed an untimely employment discrimination claim on behalf of his client. In letting the lawyer off the hook, the appellate court explained that "[t]here was a complete absence of evidence" that the employer had violated the law.²⁵⁵ Because no damages were available in the underlying action, the attorney's "negligence in allowing the statute of limitations to expire on the federal claim did not result in damage to [the client]."²⁵⁶

Similarly, the creation of a trust for asset protection purposes was not the proximate cause of loss in Steffen v. Gray, Harris & Robinson, P.A.²⁵⁷ because it would not have prevented assets from being subject to a disgorgement order for civil contempt.²⁵⁸ Proximate cause also was not established in Hanson v. Fowler, White, Burnett, P.A.,²⁵⁹ where the client's loss was due to the failure of a federal district court judge to apply his prior rulings after appeal.²⁶⁰

In Rivero v. Howard,²⁶¹ the plaintiff sued his former lawyer for allowing the statute of limitations to run on two matters: (1) a false arrest lawsuit against the plaintiff's former girlfriend and a Miami-Dade detective and (2) a malicious prosecution lawsuit against the Miami-Dade State Attorney's Office and the Miami-Dade Police Department. In response, the lawyer argued that there was no basis for either lawsuit because probable cause had existed at the time of the client's arrest. The trial court agreed and entered summary judgment...