As we have covered in other posts, for insurance purposes, a “claim” is any demand for damages made against an attorney in the course of providing professional services. Not surprisingly, an actual legal claim requires a little more to be viable in court.
In general, a lawyers professional liability claim has three elements: 1) proof that the lawyer owed a professional duty to the complainant; proof that the lawyer—or her agent—breached that duty; and proof that the claimant suffered quantifiable monetary damage as a direct result.
Let’s look at each element in turn.
Duty to the complainant
This element has two subparts: did the lawyer owe a duty to the particular complaining party and, if so, what exactly was it?
Legal professional liability law has evolved to expand the scope of a lawyer’s professional obligations to include a range of people beyond the “client” who came into the lawyer’s office. The definition of a “client,” or someone to whom the lawyer may become duty-bound, rests in perception and implied duty: if the complainant can establish that he reasonably understood, based upon the lawyer’s actions and words and all the circumstances, that the lawyer would be looking out for his interests, that is enough. The burden is on the defendant lawyer to show that the belief wasn’t reasonable, in order to limit the reach of her legal responsibilities.
This means that you could find yourself facing potential liability toward someone you did not actually consider to be a client, including your client’s family members, other parties in a business transaction, or even sometimes opposing parties, depending upon the circumstances.
Breach Of Duty
Once a complainant establishes that a lawyer owed them a professional obligation, they must then establish the full extent of that duty, and that the attorney—or an agent—failed to fulfill some essential portion thereof. This can be tricky for the client, especially when the underlying representation required the attorney to exercise professional judgment about how to proceed in the midst of a litigation or negotiation: it may be difficult to prove that the attorney’s “failure” to call a witness was, in fact, a breach of duty, or that another strategy was recklessly negligent. Other claims are easier to prove, like when an attorney misses a deadline, or releases information to the wrong party, or overlooks an essential element of the claim she was asked to pursue.
Causation And Damages
A standard element of any negligence claim, the challenge for legal malpractice plaintiffs is often the causation part of this equation. Again, this is especially true for litigation representations; when the trial judge’s ruling may have tipped the balance for the client, it is hard to connect the client’s resulting losses directly to the lawyer’s actions or inactions. But in many representations the complainant can relatively easily draw a line from your breach of duty directly to their loss, leaving calculating your liability the only remaining dispute in the case.
Posted by Emma Sepke
Emma Sepke is a marketing specialist who leads the digital and content marketing efforts at Protexure Insurance Agency, Inc. Before joining Protexure, Emma graduated from Iowa State University with a Bachelors of Science in Marketing.