§15.2 Defenses to a Legal Malpractice Claim

• Jurisdiction: Washington

II. DEFENSES TO A LEGAL MALPRACTICE CLAIM

This section examines three principal defenses to a legal malpractice claim: (1) negating the elements of a claim, (2) comparative fault, and (3) the statute of limitations.¹¹¹

A. Negating the Elements of a Claim

The plaintiff in a legal malpractice case bears the burden of establishing the elements of a claim: the existence of an attorney-client relationship; an act or omission that breached a duty of care; damages; and proximate cause.¹¹² As a practical matter, therefore, the primary defense to a legal malpractice claim is to negate one of those required elements.¹¹³

B. Comparative Fault

As noted in Section I.C., above, a claimant's own comparative fault may be raised by a defendant lawyer in a legal malpractice case under RCW 4.22.005.¹¹⁴ In Hansen v. Wightman, for example, the Court of Appeals stated that a client's failure to provide a lawyer with information necessary to carry out a representation might, under some circumstances, constitute contributory fault.¹¹⁵Comparative fault is treated as an affirmative defense, and therefore, a defendant lawyer bears the burden of proving the client's asserted comparative fault.¹¹⁶ Comparative fault is a question of fact for the jury.¹¹⁷

C. Statute of Limitations

The limitations period for legal malpractice is three years.¹¹⁸ The discovery rule applies to legal malpractice claims.¹¹⁹ Therefore, the limitations period does not begin to run "until the client discovers, or in the reasonable exercise of diligence should have discovered, the facts which give rise to the cause of action."¹²⁰ Moreover, "[t]his rule does not require that a plaintiff have knowledge of the cause of action itself; rather, only the ‘facts' that give rise to that cause of action must be known to start the running of the statute."¹²¹ A claimant need not know the final monetary value of an injury; rather, it is the injury itself and the knowledge of that injury that are relevant for limitations purposes.¹²² "The application of the discovery rule generally is a question of fact [for the jury]."¹²³

The Washington Court of Appeals has recognized the "continuous representation" rule.¹²⁴ Under that rule, the statute of limitations is tolled for the period in which the same lawyer (or law firm) continues to represent the client in the same matter in which the alleged malpractice occurred.¹²⁵ In April 2011, the Court of Appeals concluded in Hipple v. McFadden¹²⁶that determining whether an attorney-client relationship has ended in a particular matter is a question of fact and turns on whether the client reasonably expects continued representation.

Author's Commentary As a practical matter, negating the elements of a claim is the principal vehicle for defending most legal malpractice actions. The use of the term "negating the elements" should not be read as implying that the defendant has an affirmative burden of proof in this regard. The burden of proof remains on the plaintiff to prove the case. Rather, "negating the elements" should be thought of as pointing out the potentially fatal flaws in a...