A. Definition

• Library: Elements of Civil Causes of Action (SCBar) (2021 Ed.)

A. Definition

Legal malpractice is ordinarily considered a negligence action,¹ although the prevailing view is that it embraces any professional misconduct whether breach of the standard of care (negligence) or of fiduciary obligations.² An action for legal malpractice may not, however, be based on breach of an express warranty to obtain a specific result.³

The action usually involves an attorney's representation of a client in a civil matter, although it may derive from representation in criminal matters.⁴ The essence of the tort is a deficiency in the quality of legal services. This distinguishes it from other actions. For example, actual fraud by an attorney would not be a basis for malpractice since the behavior is not unique to the legal profession and does not concern the quality of legal services to any greater extent than would dishonesty by a lay person.⁵ Breach of an express contract, since it involves failure to perform a promise rather than deficiency in the quality of legal services, would also not constitute malpractice.⁶

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Notes:

^[1]Note, Floyd v. Kosko, 285 S.C. 390, 391, 329 S.E.2d 459, 460, n. 1 (Ct. App. 1985) (where client sued attorney for breach of contract, negligence and professional malpractice court said it discerned "no difference in the...