Proximate Cause: The Final Defense in Legal Malpractice Cases

I. INTRODUCTIONWhen I was in private practice, a lawyer asked me appeal a judgment that had been rendered against him in a malpractice action.1 The attorney had made a mistake in the legal description of land encumbered by a mortgage that he was retained foreclose.2 His error delayed the sale of the property, giving the mortgagor time raise the money required redeem, i.e., pay the foreclosure judgment.3 The attorney's client sued him for malpractice, seeking recover the loss of the increased value of the property.4 A jury awarded the client $55,000 in damages.5Because there was no question that the attorney had been negligent,6 I was at first reluctant take the appeal until I thought of proximate cause. What was the attorney retained do? Obtain the property for his clients? No; he was retained foreclose the mortgage.7 And this he did, despite his admitted negligence in placing an incorrect legal description in the certificate of sale, resulting in a delay in the sale of the collateral. The appellate court agreed with me and reversed the judgment on the grounds that the attorney's negligence did not proximately cause his client's claimed damage-the inability acquire title the collateral that had appreciated in value.8Ever since then, in my practice and in my teaching, I have proclaimed the virtues of proximate cause-the last line of defense in an attorney malpractice case. When a plaintiff establishes every element of malpractice except proximate cause, the defendantattorney may be able defeat recovery by showing that the plaintiff has failed in her burden of establishing the attorney as the legal source of her damages.9This article analyzes that last line of defense in civil malpractice cases.10 As someone who has also been sued for malpractice, I know the pain of being served with a complaint by a former client alleging negligence.11 I seek not show lawyers how be negligent and get away with it, but how analyze a proper defense a client's pique about some injury that had not one whit do with his lawyer's conduct.12 Additionally, clients would be well-advised understand the requisites for establishing an attorney malpractice claim: an appellate court once fined a plaintiff-client $10,000 for a frivolous appeal in a malpractice case successfully defended by the attorney.13II. THE ELEMENTS OF ATTORNEY MALPRACTICEMost courts describe attorney malpractice as a form of tort,14 but it has also been observed that these actions are contract claims but with tort concepts applicable such as proximate cause, contributory negligence, etc.15 The five elements of a prima facie case of attorney malpractice are as follows:16 (1) an attorney-client relationship;17 (2) a duty imposed upon the attorney due that relationship to exercise the ordinary care of a reasonably competent attorney acting in the same or similar circumstances;18 (3) a breach of that duty by the attorney;19 (4) damages sustained by the client,20 (5) which are a proximate result of the breach of duty.21 Usually the cause of action does not lie until the client sustains some damage and has discovered (or should have discovered) that damage.22These prima facie elements can also be looked upon as lines of defense. Thus, generally, if an attorney-client relationship does not exist, the client's action against the attorney will fail.23 Despite the existence of the attorney-client relationship, the attorney's duties might also be specifically limited by contract, so long as the client consented the limitation after appropriate consultation.24 In addition, if the attorney exercised the ordinary care of a reasonably competent attorney in the course of his representation, there is no breach of duty and the plaintiff-client will not prevail.25 Further, if the client did not sustain damages, even if the attorney was negligent and breached his duty, there can be no recovery.26 Finally, even when an attorney breaches a duty owed the client, and the client incurs an injury, the client's case will come nothing unless his damage is the proximate result of that negligence. …