In a legal malpractice action, a plaintiff may recover against his or her attorney under a trespass (negligence) or an assumpsit (breach of contract) theory. Historically in Pennsylvania, there was a clear distinction between legal malpractice claims sounding in breach of contract and those sounding in negligence.
For many years, consistent with general law regarding breach of contract, our courts maintained three elements are necessary to plead properly a legal malpractice cause of action for breach of contract: (1) the existence of a contract, including its essential terms, (2) a breach of a duty imposed by the contract and (3) resultant damages. The merits of a breach of the contract claim arising from legal representation were historically determined according to the specifics of the terms of the contract itself. Our courts repeatedly held a plaintiff does not state a true contract cause of action for legal malpractice by merely averring in the complaint that his or her “attorney failed to exercise the requisite duty of care.” (See Hoyer v. Frazee, 323 Pa.Super 421, 424, 470 A.2d 990, 992-93 (1984)). Historically, to sustain such a claim, a plaintiff was required to show the lawyer failed to follow the client’s specific instructions or otherwise breached a specific provision of the contract. In Rogers v. Williams, 420 Pa.Super. 396, 401, 616 A.2d 1031, 1033 (1992), it was ruled that a client may sue an attorney for legal malpractice on an assumpsit theory only “when the attorney failed to follow a specific instruction of the client.” Allowing a plaintiff to proceed with a contract claim based upon a generalized allegation of breach of duty was seen as merely sidestepping the two-year statute of limitations for a legal malpractice claim sounding in negligence.
