§15.3 Theories of Lawyer Liability

• Jurisdiction: Washington

III. OTHER THEORIES OF LAWYER LIABILITY

This section briefly surveys three other primary theories of lawyer liability—breach of fiduciary duty, breach of contract, and violation of the Washington Consumer Protection Act.

A. Breach of Fiduciary Duty

A lawyer owes clients a fiduciary duty.¹²⁹ A lawyer's breach of a fiduciary duty may form the nucleus of a legal malpractice action.¹³⁰ But it can also be framed as an independent cause of action.¹³¹ Even if a claimant has not sustained a specific financial loss as a result of the lawyer's breach of fiduciary duty, the lawyer may still be ordered to return the fees involved.¹³² Although the resolution of predicate facts remains the province of the jury, whether a lawyer has breached a fiduciary duty based on a concurrent violation of the professional rules is a question of law.¹³³ As such, a court in a fiduciary duty case— unlike in a legal malpractice case—can specifically consider applicable Rules of Professional Conduct in determining whether a lawyer breached a fiduciary duty.¹³⁴ As with a legal malpractice claim, a breach of fiduciary duty claim must generally be grounded on an attorney-client relationship unless it satisfes the multi-factor balancing test described in Section I.A.2., above.¹³⁵

B. Breach of Contract

A lawyer may be held liable for a breach of a written professional services contract.¹³⁶ Washington authority suggests, however, that such an action will only arise when a lawyer has guaranteed the client a specific result in an engagement agreement and then failed to achieve that result.¹³⁷ General statements in an engagement agreement simply outlining the scope of services to be performed or promises to "‘act on [the client's] behalf to the best of our [the firm's] ability'" or to provide the client with "‘high quality legal counsel'" do not meet this standard.¹³⁸

C. Consumer Protection Act

Lawyers are potentially liable under the Washington Consumer Protection Act¹³⁹ for the business aspects of their practices—i.e., the acquisition and management of business and how fees are determined, billed, and collected.¹⁴⁰ The elements of a CPA claim require an act or practice that "(1) is unfair or deceptive, (2) occurs in the conduct of trade or commerce, (3) affects the public interest, and (4) causes (5) injury to the plaintiff in his or her business or property."¹⁴¹ Traditional negligence issues are not subject to the CPA because they "go to the competence and strategy of lawyers, and not to the entrepreneurial aspects of practice."¹⁴² But if the conduct at issue was motivated by the lawyer's objective to increase profits or gaining clients, then it may fall within the CPA.¹⁴³ The question of whether conduct falls within the "entrepreneurial aspects of practice" is generally a fact issue for a jury.¹⁴⁴

A CPA claimant "need not show the act in question was intended to deceive, but that the alleged act had the capacity to deceive a substantial portion of the public."¹⁴⁵ "‘[K]nowing failure to reveal something of material importance is "deceptive" within the CPA.'"¹⁴⁶ Although many CPA claims focus on deceptive acts, it is important to underscore in the legal context—particularly as it relates to fees— that the CPA also proscribes "unfair" acts.¹⁴⁷

In 2009, the Washington legislature amended the CPA to add RCW 19.86.093(3) so that a claimant can now meet the "public interest" element by showing that the unfair or deceptive act at issue "(a)...