§15.1 Elements of a Legal Malpractice Claim

• Jurisdiction: Washington

I. ELEMENTS OF A LEGAL MALPRACTICE CLAIM

The Washington Supreme Court outlined the elements of a legal malpractice claim in Hizey v. Carpenter:⁴

To establish a claim for legal malpractice, a plaintiff must prove the following elements: (1) [t]he existence of an attorney-client relationship which gives rise to a duty of care on the part of the attorney to the client; (2) an act or omission by the attorney in breach of the duty of care; (3) damage to the client; and (4) proximate causation between the attorney's breach of the duty and the damage incurred.⁵

"[O]nce an attorney-client relationship is established, the elements for legal malpractice are the same as for [other] negligence [claims]."⁶ The plaintiff bears the burden of proof in establishing these elements.⁷

Hizey applies to malpractice claims arising from civil matters. In malpractice suits arising in criminal cases, two other elements have been added to Hizey's four: (1) the claimant must have sought postconviction relief, and (2) the claimant must prove "actual innocence."⁸

A. Existence of an Attorney-Client Relationship and Standing by Nonclients

Both clients and, in some limited circumstances, nonclients have standing to assert malpractice claims.

1. Clients

As noted in Hizey v. Carpenter,⁹ a lawyer's (current or former) client has standing to raise a malpractice claim. In Washington, the general rule for determining whether an attorney-client relationship exists (or existed) was set out in Bohn v. Cody1¹⁰ and is controlled by case law rather than the Rules of Professional Conduct.¹¹

The Washington Supreme Court in Bohn articulated a two-part test.

• The first element is subjective: does the client believe that an attorney-client relationship has been formed?¹²
  
  
• The second element is objective: is the client's subjective belief reasonable under the circumstances?¹³
  
  

As the Supreme Court noted in Bohn, "[t]he relationship need not be formalized in a written contract."¹⁴ Rather, it may be inferred from the conduct of the parties.¹⁵ In either event, the primary question is "whether the attorney's advice or assistance is sought and received on legal matters."¹⁶

The determination of whether an attorney-client relationship exists is a question of fact. ¹⁷ As such, this issue is generally for the jury in a malpractice case unless all of the material facts are undisputed.¹⁸

The Washington Supreme Court in Kommavongsa v. Haskell¹⁹ left open the question of whether legal malpractice claims can be assigned generally. The court in Kommavongsa held, however, that a malpractice claim cannot be assigned to an adversary in the same proceeding.²⁰ Applying Kommavongsa, the Court of Appeals in Kim v. O'Sullivan²¹ concluded that assigning the proceeds of a malpractice claim to an adversary and then allowing the adversary to control a subsequent malpractice claim is also prohibited.²²

2. Nonclients

Traditionally, only a lawyer's client had standing to bring a malpractice claim.²³ This limitation was rooted in the concept of privity of contract.²⁴ As the only party with a direct contractual relationship with the lawyer, only the client had privity, and therefore, only the client had standing to assert a malpractice claim.²⁵

In recent years, however, Washington has begun expanding the scope of malpractice liability to some nonclients as well. This trend began in 1985 with Bowman v. Two.²⁶

The Supreme Court in Bowman, although affirming the dismissal of a malpractice claim by a nonclient, recognized two distinct theories of malpractice liability to nonclients that had been developed in, respectively, California and Illinois. The California "multi-factor balancing test" looked at a number of considerations including "‘the extent to which the transaction was intended to affect the plaintiff, the foreseeability of harm to him, the degree of certainty that the plaintiff suffered injury, the closeness of the connection between the defendant's conduct and the injury, and the policy of preventing future harm.'"²⁷ The Illinois "third party beneficiary test" required that a plaintiff "‘must allege and prove facts demonstrating that they are in the nature of third-party intended beneficiaries of the relationship between the client and the attorney in order to recover in tort.'"²⁸

Following Bowman, the Supreme Court again recognized the "multi-factor balancing" and "third party beneficiary" tests in Stangland v. Brock.²⁹ Nonetheless, it affirmed the dismissal of the plaintiff nonclients' malpractice claim on other grounds. Four years later in Bohn, however, the Supreme Court both reiterated the two tests and applied them.³⁰ In doing so, the Supreme Court reversed the dismissal of a malpractice claim by a nonclient and remanded the case to the trial court for consideration of whether the lawyer owed the nonclient a duty under either the "multi-factor balancing test" or the third-party beneficiary test.³¹

Shortly after Bohn, the Supreme Court merged the two tests in Trask v. Butler.³² The Supreme Court's reasoning was twofold. First, it viewed the tests as being "indistinguishable in that their primary inquiry focuses on the purpose for establishing the attorney-client relationship."³³ Second, it wanted to "eliminate any confusion to trial courts" on which test to apply.³⁴ As merged into what the Trask court called a "modified multi-factor balancing test," the elements are:

The intent to benefit the plaintiff is the first and threshold inquiry in our modified multi-factor balancing test, which we construe to have the following elements:

(1) the extent to which the transaction was intended to benefit the plaintiff;

(2) the foreseeability of harm to the plaintiff;

(3) degree of certainty that the plaintiff suffered injury;

(4) the closeness of the connection between the defendant's conduct and the injury;

(5) the policy of preventing future harm; and

(6) the extent to which the profession would be unduly burdened by a finding of liability.

Thus, under the modified multi-factor balancing test, the threshold question is whether the plaintiff is an intended beneficiary of the transaction to which the advice pertained. While the answer to the threshold question does not totally resolve the issue, no further inquiry need be made unless such an intent exists.³⁵

The full contours of the modified multi-factor balancing test remain to be defned.³⁶ Thus far, however, the circle of nonclients with standing to raise a malpractice claim remains fairly narrow.³⁷

Author's Commentary Although determining whether an attorney-client relationship exists can present difficult factual issues, they are just that—fact questions that are typically very case specific. The two-part test in Bohn v. Cody³⁸ provides a useful practical tool for resolving these fact issues in a coherent way. The scope of liability to nonclients, by contrast, holds more problematic legal issues despite the Supreme Court's attempt to bring analytical clarity to this area in Trask v. Butler.³⁹ The Court of Appeals in Strait v. Kennedy⁴⁰ included a lengthy and well articulated footnote describing the practical uncertainty surrounding Trask's melding of the tort-based "multi-factor balancing test" with the contract-based third-party beneficiary test—particularly as it related to the somewhat broader concept of "affect" in the former and the narrower term "benefit" in the latter.⁴¹ The Court of Appeals observed: After Trask, the first factor to be considered is "the extent to which the transaction was intended to benefit the plaintiff[.]" With this exception, the factors to be balanced under the multifactor balancing test created by the California courts are identical to the factors under Washington's modified multifactor balancing test. The full parameters of this change in wording have yet to be explored by Washington appellate courts. At first blush, given standard dictionary definitions of the words "affect" and "benefit" and the contract-based origins of the third-party beneficiary concept versus the tort-based origins of the multifactor balancing test as developed in California, Washington's modified test would seem to be narrower than the test applied in California. Because the Washington courts now use the modified test pronounced in Trask, and because the modified test is a combination of the third-party beneficiary test and the multifactor test developed in California, the contract-based third-party beneficiary concepts may not be conceptually superfluous in Washington, at least under some fact patterns. Still, "even under the California balancing test, the predominant inquiry has generally resolved to one criterion: Were the services intended to benefit the plaintiff?" Thus, it is possible that, in practice, the test as applied in California is the same as the test now applied in Washington. Id. (citations omitted). The Court of Appeals in Strait went on to note that it was not necessary to resolve the potential distinctions it outlined because those differences would not affect the outcome of the case before it. As a practical matter, that may be the situation in many cases. But as the Strait court noted, in at least some cases, the distinction between the broader concept of "affect" and the narrower concept of "benefit" might not be as "indistinguishable" as the Supreme Court postulated in Trask. Particularly in instances when groups of nonclients (whether, for example, investors, home- or condominium-owner association members, lenders, or the like) have arguably relied on a lawyer's opinion, the distinction may make a significant difference in the scope of a lawyer 's malpractice liability.⁴² If the test is framed in terms of "affect," groups of nonclients may arguably have standing that they would lack under the narrower concept of "benefit."

B. Standard of Care

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