As we have previously discussed, when the attorney client relationship does not end well litigation frequently ensues. The retainer agreement will generally provide that the client remains responsible for all reasonable legal fees and expenses incurred to the date the relationship is terminated.

The client may commence an action against her former law firm alleging legal malpractice, or in response to an action for outstanding legal fees she may assert counterclaims alleging among other causes of action: (1) legal malpractice; (2) breach of fiduciary duty; (3) aiding and abetting breach of fiduciary duty; and (4) breach of contract. The validity of the causes of action is generally tested in motions to dismiss and/or for summary judgment. In order to survive the motions, distinct damages arising from separate facts must be alleged and exist between the various causes of action based on negligence and those based on intentional acts. If the allegations in the different causes of action stem from the same or similar facts and do not specify distinct sets of damages, courts will hold the causes of action are duplicative and dismiss all but one, usually the malpractice claim. The breach of contract cause of action is rarely determined to be independent of the malpractice claim.

The Different Causes of Action

In order to successfully claim both legal malpractice and breach of fiduciary duty claims there must be allegations of different facts and different damages. Another significant difference is the timing of the offending actions. The alleged malpractice arises or occurs during the time the lawyer or law firm represented the client. The fiduciary causes of action may arise from activities after the retention was completed or terminated.