25 Legal Malpractice

• Library: Elements of Civil Causes of Action (SCBar) (2015 Ed.)

25 Legal Malpractice

A. Definition

Legal malpractice is ordinarily considered a negligence action,¹ although the prevailing view is that it embraces any professional misconduct whether breach of the standard of care (negligence) or of fiduciary obligations.² An action for legal malpractice may not, however, be based on breach of an express warranty to obtain a specific result.³

The action usually involves an attorney's representation of a client in a civil matter, although it may derive from representation in criminal matters.⁴ The essence of the tort is a deficiency in the quality of legal services. This distinguishes it from other actions. For example, actual fraud by an attorney would not be a basis for malpractice since the behavior is not unique to the legal profession and does not concern the quality of legal services to any greater extent than would dishonesty by a lay person.⁵ Breach of an express contract, since it involves failure to perform a promise rather than deficiency in the quality of legal services, would also not constitute malpractice.⁶

B. Elements

The elements required to prove a claim of legal malpractice are:

(1) the existence of an attorney-client relationship;
(2) breach of a duty by the attorney;
(3) proximate causation; and
(4) damage to the client.⁷

C. Elements Defined

1. Attorney-Client Relationship

There must be an attorney-client relationship for a legal malpractice action to be brought.⁸ The existence of the relationship is usually considered an issue of fact and does not therefore, unlike other aspects of the action, require expert testimony.⁹ Though there does not appear to be a South Carolina case on point, it seems generally agreed that the attorney-client relationship may be either express or implied.¹⁰ There is some debate about whether a non-client may bring an action for malpractice, but it has not reached South Carolina. Although it appears that a plaintiff in an attorney malpractice action may have to be in privity with the attorney, the issue has never been specifically addressed in South Carolina, and the Court of Appeals recently declined the opportunity to do so.¹¹ The general rule is that attorneys are immune from liability to third parties arising from performance of professional activities as an attorney on behalf of and with the knowledge of a client.¹² If, on the other hand, the attorney breaches some independent duty to a third party, there may be liability for that breach, although the action would then not be one for malpractice.¹³In Stiles v. Onorato,¹⁴ the South Carolina Supreme Court decided that attorneys may be held liable for a tort where, in addition to representing a client, the attorney breaches an independent duty to a third person or acts in his or her own personal interest, outside the scope of representation of the client. The South Carolina Supreme Court, however, refused to adopt a rule that would extend the liability of an attorney to those in privity with his or her client.¹⁵

The Restatement of the Law Governing Lawyers provides that a law firm is subject to liability for injury caused by a wrongful act or omission of a principal or employee of the firm acting in the ordinary course of the firm's business or with actual or apparent authority. A principal of a firm organized other than as a general partnership without limited liability may be vicariously liable, under the Restatement, for the acts of another principal or employee, and principals of a firm organized as a general partnership without limited liability may be liable jointly and severally with the firm.¹⁶

2. Breach of Duty

An attorney is not required by law to be infallible and there is thus no liability merely because an attorney has made a mistake.¹⁷ The South Carolina Supreme Court has rejected as a matter of law that a bad result is evidence of a breach of the standard of care.¹⁸ The Court of Appeals has added that for there to be a breach of duty, an adverse result in the underlying litigation would have to be reasonably foreseeable.¹⁹ The plaintiff must establish the duty owed and its breach. While the duty a lawyer owes a client may derive from a contract, more often it is implied by law. That implied duty requires that an attorney perform to a standard of care that will protect a client from harm caused by the attorney's actions and to use his or her best judgment and utilize reasonable and ordinary care and diligence in both the exercise of professional skill and application of professional knowledge.²⁰ As the South Carolina Supreme Court has said:

An attorney, who contracts to prosecute an action on behalf of his client, impliedly represents that he possesses the requisite degree of learning, skill, and ability, which is necessary to the practice of his profession; that he will exert his best judgment in the prosecution of the litigation entrusted to him; and that he will exercise reasonable and ordinary care and diligence in the use of his skill and in the application of his knowledge to the cause of his client.²¹

This general standard of care is, however, insufficient to assess specific circumstances of alleged malpractice.²² The plaintiff must ordinarily, therefore, establish the specific duty of care required and its breach by expert testimony except where the negligence is so obvious that it is within the ambit of common knowledge and experience and no special learning is needed to evaluate the defendant's conduct.²³ Thus, South Carolina courts generally require expert testimony.²⁴

One standard for evaluating professional conduct is the Rules of Professional Conduct.²⁵The rules alone, however, do not give rise to specific causes of action or presumptions. In Smith v. Haynsworth, Marion, McKay & Geurard,²⁶ the South Carolina Supreme Court noted that the preamble to the rules states their violation should not give rise to a cause of action or create any presumption that a legal duty has been breached; however, the court held that the rules may, in appropriate cases, be relevant and admissible to assess the duty of an attorney in a malpractice action.²⁷ The court also decided the standard of care is statewide.

The South Carolina Supreme Court has held an attorney owes no duty to a prospective beneficiary of a nonexistent will and, therefore, even if the attorney negligently failed to timely draft a will and arrange for its execution, the prospective beneficiaries of the estate could not maintain a cause of action for legal malpractice.²⁸

Another source for evaluating the standard of care is the Restatement. It provides a lawyer:

who owes a duty of care must exercise the competence and diligence normally exercised by lawyers in similar circumstances. Proof of a violation of a rule or statute regulating the conduct of lawyers:

(a) does not give rise to an implied cause of action for professional negligence or breach of fiduciary duty;
(b) does not preclude other proof concerning the duty of care or the fiduciary duty; and
(c) may be considered by a trier of fact ... to the extent that (i) the rule or statute was designed for the protection of persons in the position of the claimant and (ii) proof of the content and construction of such a rule or statute is relevant to the claimant's claim.²⁹

3. Proximate Causation

The plaintiff must show that the attorney's breach was the proximate cause of the injury sustained. The South Carolina Supreme Court has said:

Proximate cause requires proof of: (1) causation in fact and (2) legal cause.
Causation in fact is proved by establishing the injury would not have occurred "but for" the defendant's negligence. [citation omitted] Legal cause is proved by establishing foreseeability. [citation omitted] Although foreseeability of some injury from an act or omission is a prerequisite to establishing proximate cause, the plaintiff need not prove that the actor should have contemplated the particular event which occurred. The defendant may be held liable for anything which appears to have been a natural and probable consequence of his negligence. [citation omitted] A plaintiff, therefore, proves legal cause by establishing the injury in question occurred as a natural and probable consequence of the defendant's negligence.³⁰

Unless the evidence shows reasonable persons could not disagree, the question of proximate cause is one for the jury.³¹ The burden of establishing proximate cause requires the plaintiff to prove he or she would have obtained a better result in the underlying matter if the attorney had exercised reasonable care, which does not require a demonstration of ultimate success but only that a valuable right has been lost.³²

In a legal malpractice case the issue is whether the lawyer's breach harmed the client by negatively impacting resolution of the legal problem at issue. In non-litigated matters, generally applicable principles of causation and damages apply.³³ In the context of civil litigation, if the result would have been the same regardless of what the lawyer did or did not do, there is no causal relationship between the breach of duty and the loss suffered by the client.³⁴ An attorney is not, therefore, liable where, despite his or her negligence, the client had no viable claim or no meritorious defense to an action.³⁵ This is often referred to as the "case-within-a-case concept"for which the test is an objective one.³⁶

Litigation concerning a criminal prosecution against the plaintiff presents a variation. The Restatement says: "A convicted criminal defendant suing for malpractice must prove both that the lawyer failed to act properly and that, but for that failure, the result would have been different, for example because a double-jeopardy defense would have prevented conviction."³⁷

4. Damage to Client

The client must have suffered damages as a result of the lawyer's negligence in order to maintain the action.³⁸ While failure to show likelihood of success in an underlying action may be considered an inability...