Although certain types of mistakes may commonly be at issue in legal malpractice claims, there generally is no such thing as a “garden variety” legal malpractice claim. Indeed, legal malpractice claims are so fact intensive that, even where the facts might seem straightforward on the surface, there are often unique circumstances that dictate whether the attorney will ultimately be found liable.

Moreover, because legal malpractice claims might seem like any other type of litigation, attorneys sometimes think that they can determine how to best respond to the threat of a legal malpractice claim without outside help. Unfortunately, attorneys lacking experience in defending legal malpractice claims may unknowingly make matters worse by taking actions that foreclose potential defenses.

Accordingly, it is helpful for every attorney to understand some of the common defenses to legal malpractice claims so as to know the best way to respond when faced with a lawsuit. Below are a few key issues that may dictate whether there is actual exposure or whether the client even decides to pursue a claim in the first place.

The Importance of Engagement Letters

When an attorney is sued for malpractice, the engagement letter can be the first line of defense. Indeed, engagement letters can be used to an attorney's benefit in any number of ways, including in defining who exactly the client was (and, by exclusion, who was not a client), as well as the scope of the representation, in accordance with California Rule of Professional Conduct 1.2(b) (“A lawyer may limit the scope of the representation if the limitation is reasonable under the circumstances, is not otherwise prohibited by law, and the client gives informed consent.”)