4.02. Malpractice

Attorney malpractice is a cause of action brought in tort by a client (although there are limited situations where a non-client can sue an attorney in malpractice) against his/her lawyer for breaching a duty to the client during the course of representation.  A malpractice claim is different from enforcement of an ethical obligation through the disciplinary process.  One of the primary goals of a disciplinary action is to protect the public from unethical lawyers.  A malpractice claim, on the other hand, is intended to provide a remedy to a particular client for harm caused by the lawyer.  In this sense, a disciplinary action is forward looking (protect future clients and deter future misconduct), whereas a malpractice suit is backward looking – seeking to compensate a client for financial harm previously caused by a lawyer.  Another important distinction is the party bringing the claim.  In a disciplinary action the state brings and pursues the claim (in fact, if a client files a complaint they have no right to have the complaint pursued or to challenge the dismissal of the claim).  On the other hand, a malpractice claim is brought by an aggrieved client and pursued by the client through private counsel. 

Because a malpractice claim is a form of negligence, the plaintiff must demonstrate all of the traditional elements in a negligence claim: (1) duty, (2) breach, (3) causation, and (4) damages.  In addition, because the claim is premised on the attorney-client relationship, the client must also establish that an attorney-client relationship was formed.  It is true that there are some narrow exceptions to this – where a non-client can bring a malpractice case.  Those rare circumstances will be discussed below.  Each of these elements must be established by a preponderance of the evidence.