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.

The duty/privity requirement ensures that an attorney's obligations toward his client are unaffected by worrying about the impact of his representation to others. It also serves as protection for attorneys from defamation suits brought by adversaries or others as statements made in the course of litigation are entitled to absolute privilege.2 Attorneys are afforded absolute protection with regard to relevant statements made in judicial or quasi-judicial proceedings so that they may speak freely and zealously represent their clients without fear of reprisal or financial hazard. It should be noted, however, that privity does not provide an absolute shield for an attorney from all liability from others. For example, an attorney may be liable to a non-client if he perpetrated a fraud or assisted his client in committing a fraud.3