CHAPTER 8 - 8-2 NEGLIGENCE

• Jurisdiction: United States

8-2 Negligence

The most common cause of action in the area of legal malpractice is negligence. The negligence cause of action has a rich history of development, dating back to such cases as Palsgraf v. Long Island Railroad Co.¹It is well known that negligence consists of four elements: duty, breach of duty, causation, and damages. All four elements are necessary to bring a negligence cause of action.²

Although all negligence causes of action must have all four elements, in the context of professional negligence, those elements are unique in many ways. For instance, duty is commonly called "standard of care" and a breach of duty is called a "deviation in the standard of care." To "prove any legal malpractice claim, a plaintiff must establish the four necessary elements: (1) an attorney-client relationship; (2) a wrongful act or omission by the attorney; (3) proximate cause; and (4) legal damages . . . Put another way, a plaintiff must prove that there existed an attorney-client relationship and that the client sustained legal injury or damage that proximately was caused by the attorney's wrongful act or omission."³ "[P]rofessional negligence or malpractice [is] defined as the failure of one rendering professional services to exercise the degree of skill and learning commonly applied under all the same circumstances by the average prudent reputable member of the profession with the result of injury, loss or damage to the recipient of those services."⁴

Unlike most negligence causes of action, these elements require, in most cases, testimony of a qualified expert. The damages in negligence cases against lawyers are almost always limited to economic, rather than noneconomic, damages involving physical and/or emotional harm or property damage, which are common in other negligence claims such as automobile and premises liability cases.⁵

8-2:1 Duty

Unlike automobile or premises liability actions causing physical or emotional harm or property damage where the tortfeasor is expected to owe a duty of care to a wide range of people, attorneys owe a duty to a more narrow range of persons or entities, such as clients, and prospective clients. Nonclients, however, are rarely owed a duty of care by an attorney acting as an attorney.

8-2:1.1 Clients and the Creation of the Attorney-Client Relationship

Attorneys owe their clients a duty to exercise reasonable care to protect them from harm and to provide services that comply with the standard of care.⁶ That duty is not all encompassing, particularly where the attorney and the client limit the scope of that duty. There are three ways to create an attorney-client relationship.

8-2:1.2 Court Appointment

In various areas of the law such as probate, criminal and family, it is not uncommon for a judge or an organization to appoint an attorney. In the probate courts, for instance, there is a statutory provision for the appointment of an attorney for an involuntarily conserved person.⁷ In criminal law, a judge must appoint an attorney to represent an indigent person pursuant the Sixth Amendment to the United States Constitution.⁸ In dissolution of marriage actions, Connecticut General Statutes⁹ provide that the parties or the court can appoint counsel for the minor child or children if it is in the best interests of the child or children. Attorneys are commonly appointed by the courts to roles that do not necessarily require an attorney, such as a court-appointed conservator of the estate and/or person or a receiver of rents. The court may appoint an attorney to serve as a guardian ad litem for a child. In class actions, under Connecticut Practice Book § 9-9(a)(1)(B), which is modeled after Rule 23 of the Federal Rules of Civil Procedure, the Superior Court is required to appoint class counsel when a class is certified.

8-2:1.3 Express Agreement

Entering into a legal services agreement is by far the most common way to create an attorney-client relationship. "Evidence of either a retainer agreement or contract between the parties is relevant to the determination" of the existence of an attorney-client relationship.¹⁰ These are sometimes called fee agreements. They are often required by law for certain cases. The Rules of Professional Conduct¹¹ require such a written agreement for most attorney-client relationships. Statutes govern agreements that involve the representation of plaintiffs in claims for personal injury, wrongful death, and property damage.¹²

8-2:1.4 Inadvertent Clients

People or entities may create an attorney-client relationship inadvertently. This may arise when advice is given to someone who is led to believe that an attorney-client relationship was created.

The Restatement¹³ provides an analysis for determining whether an attorney-client relationship has been created. "A client's manifestation of intent that a lawyer provide legal services. . . . may be manifest from surrounding circumstances."¹⁴ "Like a client, a lawyer may manifest consent to creating a client-relationship in many ways. The lawyer may. . . . . indicate consent by action."¹⁵ "Whether the lawyer is to represent the organization, a person or entity associated with it, or more than one such persons and entities is a question of fact to be determined based on reasonable expectations in the circumstances. Connecticut courts have generally followed such an analysis."¹⁶

"An attorney client relationship is established when the advice and assistance of the attorney is sought and received in matters pertinent to his profession."¹⁷ "The burden of proving the attorney client relationship is on the party claiming the existence of the relationship."¹⁸

In Dunham v. Dunham,¹⁹the Connecticut Supreme Court noted that whether an attorney-client relationship exists is an issue of fact on which the alleged client bears the burden of proof. The trial court had determined that the issue would be submitted to the jury regarding whether the defendant attorney represented the plaintiff at the time the plaintiff waived his right to contest a will. The defendant attorney—plaintiff's brother—had represented the plaintiff in other matters, e.g., a previous car accident and a current zoning dispute. The Supreme Court determined that in light of representation in those various other matters, the jury could decide if there was an attorney-client relationship related to the will matter.

The court in Distefano v. Milardo²⁰reached the opposite conclusion. In that case, the Supreme Court held that the fact that a client's son indirectly benefited from various estate planning instruments prepared by an attorney and the fact that the attorney gave the client's son fatherly advice about his father's alcoholism did not create a attorney-client relationship.²¹ In addition, the court in Distefano further determined that the client's son's request of the attorney to establish a conservatorship and that the attorney created a form for setting up a conservatorship was also insufficient to establish an attorney-client relationship.²²

In Durante v. Martinez,²³the Superior Court held that a finding that an attorney-client relationship existed cannot be based simply on the subjective belief of the plaintiff. Some objective evidence is required. In that case, the plaintiff alleged that the defendant was the attorney for a joint venture to purchase and build on real property. In looking to determine whether an attorney client relationship existed, the court turned to the Restatement of the Law Governing Lawyers.²⁴ The court resolved an issue of whether one's status as an attorney for a joint venture results in that attorney also representing an individual in that joint venture. The court in Durante looked at such factors as the size of the joint venture, the nature and extent of the attorney's engagement, the kind and extent of the attorneys contacts between the attorney and individual and whether the attorney had access to certain kinds of personal information. The court in Durante concluded that merely conducting the closing for the joint venture did not mean that the attorney represented any individual.

8-2:1.5 Duties to Nonclients

The Connecticut Supreme Court has held that "[a]s a general rule, attorneys are not liable to persons other than their clients for the negligent rendering of services."²⁵ In elaborating upon this rule and holding that a defendant attorney owed no duty to a nonclient third party, the Connecticut Appellate Court stated that this rule has been fashioned as a matter of public policy. The obligation of an attorney to focus her entire devotion to the interest of the client would be seriously undermined were the rule different.²⁶

The Connecticut Supreme Court reasoned that it must take care not to adopt rules which "interfere with the attorney's duty of robust representation of the interests of his or her client."²⁷ In addition to public policy considerations, in order to determine whether an attorney owes a duty of care to a nonclient, one needs to consider "additional factors" such as "the foreseeability of harm, the proximity of the injury to the conduct complained of [and] the policy preventing future harm."²⁸

That no duty is owed to a nonclient would appear obvious in matters involving litigation. But the no-duty rule expands to nonlitigated "transactions involving contractual negotiations [that] involve parties with adverse interests . . . Courts usually have rejected the contention that the attorney for a seller, buyer, lender or mortgagor owed a duty to another party. Unlike a will that involves one 'side,' a sales transaction involves two sides with adverse interests."²⁹

The Connecticut Superior Court granted a motion to strike a claim for breach of fiduciary duty and negligence by a real property buyer's attorney against an attorney who, in representing the seller of the property, had released the majority of the funds to his client that he had received from the buyer's attorney for the sale of the...