As published in The Daily Report

Many legal malpractice complaints allege serious errors or breaches in judgment by attorneys. However, legal malpractice cases are unique because liability does not automatically attach, even if an attorney committed an error or violated his ethical obligation.

No two legal malpractice actions are exactly alike. They are highly fact-intensive and dependent on the circumstances of the underlying representation. Legal malpractice defense is also an ever-evolving area of law, expanding and shifting with every appellate decision.

When a client accuses an attorney of committing legal malpractice, the attorney may speak with her or his firm’s in-house counsel for advice. When a client actually files a lawsuit alleging legal malpractice, the stakes can seem very high. One mistake that some attorneys make in facing legal malpractice lawsuits is to assume that they are like any other litigation claim or that general litigators can adequately identify the unique defenses and risks of a legal malpractice claim. Rather, this area of law often needs specialized knowledge and experience to defend.

Here are a few tricks of the trade that are unique to the legal malpractice defense arena. By being aware of some common defenses to these claims, attorneys can try to adapt their own habits and build up their defenses in case a lawsuit ever comes.

Review the Engagement Letter

Many law firms condition the opening of a new matter on obtaining a signed engagement letter. In the event of a legal malpractice suit, the engagement letter can be strong evidence for the defense. Indeed, engagement letters can be used to define the client (and, by exclusion, who is not a client), as well as the scope of the representation, in accordance with ABA Model Rule of Professional Conduct 1.2(c) (“A lawyer may limit the scope of the representation if the limitation is reasonable under the circumstances and the client gives informed consent”).

If a party who is not a client files suit, or if a client sues an attorney for a failure to do some task that was outside the scope of the representation, the attorney can use the engagement letter to rebut those allegations. Courts have granted motions to dismiss or summary judgment in this context where a complaint alleges an attorney owed duties outside those expressly defined in the engagement letter. Ratonel v. Roetzel & Andress, L.P.A, 2016-Ohio-8013; AmBase Corp. v. Davis Polk & Wardwell, 866 N.E.2d 1033, 1036-37 (N.Y. 2007). On the other hand, if the engagement letter is “facially broad” without carveouts, certain duties may be assumed such that dismissal is not appropriate. Barack v. Seward & Kissel, LLP, 2017 WL 4023141 (S.D.N.Y. Sept. 12, 2017).

If no engagement letter is used, the terms of the representation may have to be re-created by other evidence. Or, it may just be assumed that, if there was no engagement letter, the representation was a general one for all purposes, which can increase the likelihood of liability.

Attorneys who use their engagement letters to define their role—and anticipate what terms they would want in writing in the event that there is ever a claim—may be better positioned to defeat a lawsuit alleging professional negligence.

Many legal malpractice complaints allege serious errors or breaches in judgment by attorneys. However, legal malpractice cases are unique because liability does not automatically attach, even if an attorney committed an error or violated his ethical obligation. That is because the element of causation is critically important to legal malpractice cases. In fact, a lack of causation is one of the most common and successful defenses to legal malpractice allegations.

In many legal malpractice actions, a plaintiff seeking to recover is typically required to prove that the attorney breached a duty during the representation and, that as a result of that breach, the plaintiff lost that underlying case. This analysis, sometimes referred to as the “case within a case,” usually requires evidence that the underlying representation would have necessarily been successful, which can be quite a high bar.

Litigating issues of causation sometimes turns the focus away from the attorney’s conduct and focuses instead on the merits of the underlying case. Because a great number of cases are resolved in favor of the defendant attorney on issues of causation, most attorneys will take care not to admit “liability” for malpractice upon committing a mistake. Even in the event of a serious error, an error without causation is generally not actionable.

The Judgmental Immunity Doctrine

Sometimes an attorney makes an error in judgment. The attorney may elect not to pursue a certain strategy at trial or may elect to dismiss a seemingly viable claim in favor of another. In hindsight, clients may allege that some of these judgment calls constituted errors that cost the client their case.

However, many jurisdictions recognize the “judgmental immunity” doctrine. This doctrine typically protects an attorney from liability for malpractice for those decisions made based on the attorney’s reasoned and professional judgment.

Attorneys can take advantage of this defense through preparation. In making recommendations to clients on issues of strategy, attorneys can take steps to document their advice and the basis for the same. If the strategy does not work out, and the client brings a malpractice suit, a documented strategic decision may help the attorney invoke the judgmental immunity doctrine.

Check the Procedural Requirements

Another tip known to savvy legal malpractice defense lawyers is to confirm whether the lawsuit complies with all procedural requirements. Some states have specific procedural requirements unique to legal malpractice actions, often aimed at reducing the number of frivolous claims. For example, Georgia requires legal malpractice plaintiffs to attach to their initial pleading an affidavit from an expert specifying at least one negligent act committed by the attorney. O.C.G.A. § 9-11-9.1.

If a legal malpractice fails to follow the procedural requirements of the jurisdiction, a motion to dismiss may be appropriate.

Although most legal malpractice defendants are best served by hiring a defense attorney with expertise in the area, the above are some preemptive steps attorneys can take to help increase their chances of defeating a future legal malpractice claim.