Legal Malpractice—Analysis and Defense
Brian P. Heermance and Christopher P. Keenoy write: Litigating a legal malpractice case is generally more complex than a simple tort action but, at its core, is governed by many of the same principles. The starting point is to simply examine the elements of any negligence claim—duty, breach, causation, and damages.
October 01, 2015 at 10:14 PM
9 minute read
Litigating a legal malpractice case is generally more complex than a simple tort action but, at its core, is governed by many of the same principles. The starting point is to simply examine the elements of any negligence claim—duty, breach, causation, and damages.
Duty
Like any negligence claim, an action sounding in legal malpractice begins with the question of whether the attorney owed the plaintiff a duty of care. This element is critical in two ways – establishing the presence of a relationship with the client; and establishing the lack of a relationship with others.
Typically, attorneys have entered into a retainer agreement with their clients. However, the execution of a formal retainer agreement is not a prerequisite to establish duty as courts will look to the words and actions of the parties to determine the existence of a relationship.1 Additionally, payment of a fee is not a requirement to establish the existence of an attorney-client relationship sufficient to create a duty of care. As such, the fact that no retainer was signed and/or the fact that no fee was paid does not necessarily insulate an attorney from a legal malpractice claim.
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