3:5 Breach of Contract Versus Negligence

• Jurisdiction: Arizona

§ 3:5 Breach of Contract Versus Negligence

There is a presumption that a failure by an attorney to perform adequately in representing a client is a tort,^[70]not a breach of contract: “(a)s a matter of public policy, attorneys, accountants, and other professionals owe special duties to their clients, and breaches of those duties are generally recognized as torts. The essential nature of actions to recover for the breach of such duties is not one ‘arising out of contract,’ but rather one arising out of tort — breach of legal duties imposed by law.”^[71]

The reason for the presumption that duties of an attorney are imposed by law and not by contract is that it would be too easy for lawyers to limit or eliminate their own liability to a client if the relationship were purely contractual.

While the contractual agreement between the attorney and the client does not alter the standard of care or change the attorney’s liability for negligence, a client may also sue for breach of contract, if the contract requires the lawyer to do a specific act which would not be part of their general duties as an attorney: “(a) malpractice action may be founded on contract if ‘the duty breached is not imposed by law, but is a duty created by the contractual relationship, and would not exist ‘but for’ the contract.’ Resolution Trust Corp. v. Western Tech., Inc., 179 Ariz. 195, 199, 877 P.2d 294, 298 (App. 1994) (quoting Barmat v. John and Jane Doe Partners A-D, 155 Ariz. 519, 523-24, 747 P.2d 1218, 1222-23 (1987)). However, without ‘some special contractual agreement or undertaking . . . a professional malpractice action does not ‘arise’ from contract, but rather from tort.’ Id.”^[72]

Courts have gone even further, holding that breach of contract may only be alleged in cases of nonperformance; poor performance of the specific promise that would not exist but for the contract still constitutes negligence, not a breach of contract: “‘(o)nly if there is a specific promise contained in the contract can the action sound in contract, and then only to the extent the claim is premised on the nonperformance of that promise.’ Collins v. Miller & Miller, Ltd., 189 Ariz. 387, 395, 943 P.2d 747, 755 (App.1996). The key word is ‘nonperformance,’ and the distinction to be drawn is that between nonfeasance and malfeasance. The fact that an attorney may have carried out a task ‘in a negligent manner, in violation of the duty imposed on him by law to represent his client in accordance with the...