4.03. Defenses

There are a number of defenses that a lawyer sued for malpractice can raise.  The first is that the plaintiff cannot establish one of the elements of a negligence claim:  that no attorney-client relationship existed, that the lawyer owed the plaintiff no duty, there was not breach of the duty owed, lack of causation, or lack of damages.  Depending on the jurisdiction, the lawyer can also seek to shift some percentage of fault to the plaintiff through comparative negligence. 

The lawyer can also claim that the statute of limitations has run on the malpractice claim.  There are two views of when the limitations period begins to run.  The first is the continuous representation approach, which states that the statute begins to run when the representation is ended.  The second is the discovery rule approach.  In these jurisdictions, the statute does not begin to run until the plaintiff becomes aware (or should have become aware) of the lawyer’s negligence.  The continuous representation approach is more favorable to lawyers because a claim could be barred before the plaintiff even learns it exists.

Loretta Lawyer represented Clarence Client in a lawsuit against Client’s home- owner’s association.  The court ruled against Client on all issues in the case.  Lawyer prepared an order consistent with the court’s holding – and sent it to the court.  Lawyer then told Client “our attorney client relationship is now at an end.”  Three weeks later, Lawyer learns that the court has lost the final order she prepared.  Therefore, she prepared another order and sent it to the court.  Subsequently, Client brings a malpractice suit against Lawyer.  The statute of limitations is 3 years.  The client did not bring it within 3 years of the statement that representation was terminated, but did bring it within 3 years of the lawyer resending the final order to the court.  If the jurisdiction follows the continuous representation approach, should the case be dismissed? Moonlight Enterprises v. Mroz, 797 S.E.2d 536 (Va. 2017)

No.  The court noted that, under the continuous representation approach, the statute of limitations on a malpractice claim does not begin running while the lawyer is providing services on the matter.  Here, the last professional service provided by Lawyer was resending the final order to the court.  Therefore, since the client filed the suit within 3 years of the last service provided, it was not filed beyond the statute of limitations.

The lawyer can assert the attorney judgment defense (also known as the judgmental immunity rule or the error of judgment rule).  This defense is justified by the fact that tactical decisions made in a matter are left to the lawyer, and the lawyer cannot be held liable for good-faith decisions that, in hind sight, appear to be incorrect. The defense recognizes that a lawyer does cannot guarantee an outcome in a case.  It also recognizes that there is more than one valid way to proceed in a case and that a client should not be able to recover from an attorney because they can locate another attorney willing to second-guess the tactical decisions of the first.  So, for example, if the lawyer is faced with an unsettled area of law and makes a tactical decision on how to proceed – anticipating how the issue will be settled – the lawyer cannot subsequently be held liable if his good-faith belief was mistaken.

Finally, the lawyer may assert as a defense the litigation privilege. This privilege protects individuals (including lawyers) from liability for communications made in a judicial proceeding, by litigants or others authorized by law, in the course of furthering litigation, that are connected to the matter.

One question that arises is whether this privilege protects a lawyer from malpractice liability for statements made in the course of representation. In Buchanan v. Leonard[1], a case of first impression, the New Jersey Court held that the privilege did not apply to malpractice claims by a client against their lawyer. In that case, a lawyer hired by an insurance company to represent an insured, disclosed harmful information to the insurance company (which ultimately denied insurance coverage based on the disclosure). The client brought a malpractice action alleging that the disclosure constituted legal malpractice – a violation of the duty to maintain client confidences. The court rejected the lawyer’s claim that the statements made could not be the basis of liability because of the litigation privilege. The purpose of the privilege, the court noted, was “to afford litigants access to the courts without fear of harassment by later lawsuits, avoid the proliferation of lawsuits, and facilitate crucial functions of the trier of fact.” These goals are not furthered by allowing a lawyer to escape liability for violation of a legal standard to her client.

The case of Frechtman v. Gutterman[2] examines an interesting twist on the issue. A lawyer sued a client for defamation for statements made in a letter after a fee dispute arose. The letter included statements such as: “We do not believe you adequately represented our interests.” * “We believe your failure to act in our best interest in reference to certain matters upon first engaging in the matter may equate to misconduct, malpractice and negligence.” * “We believe that your future representation on this matter only became necessary as a result of mistakes and oversights made by you as acting counsel.” * “We believe that we should not pay for the value of services for which any misconduct or counsel oversight relates to the representation for which fees are sought.” The lawyer argued that the client was disparaging the lawyer merely to avoid paying a fee. The question was whether the client’s statements were of opinion (not subject to defamation) or fact (defamation suit could continue). Court found the statements were: (1) disparaging and (2) there was publication (third-party company employee prepared the letters). The court held that, taken in context, the statements were better understood as opinion than fact: “while the use of words such as misconduct and malpractice may, viewed in isolation, seem to be assertions of provable fact or claims supported by unstated facts, viewed in their context these statements amount to the opinions and beliefs of dissatisfied clients about their attorney’s work.” As to the litigation privilege, the court held that the letters were absolutely privileged as an extension of the litigation privilege. The court also noted that public policy supported free and open communications between attorneys and their clients – clients should not have to self-censor what they tell their lawyer.

[1] 52 A.3d 1064 (Sup. Ct. N.J. 2012)

[2] 979 N.Y.S.2d 58 (2014)