Shari Klevens, left, and Alanna Clair, Dentons (photo: Courtesy Photo)

Although certain types of mistakes may commonly be at issue in legal malpractice claims, there generally is no such thing as a “garden variety” legal malpractice claim. Indeed, legal malpractice claims are so fact intensive that, even where the facts might seem straightforward on the surface, there are often unique circumstances that dictate whether the attorney will ultimately be found liable.

Moreover, because legal malpractice claims might seem like any other type of litigation, attorneys sometimes think that they can determine how to best respond to the threat of a legal malpractice claim without outside help. Unfortunately, attorneys lacking experience in defending legal malpractice claims may unknowingly make matters worse by taking actions that foreclose potential defenses.

Accordingly, it is helpful for every attorney to understand some of the common defenses to legal malpractice claims so as to know the best way to respond when faced with a lawsuit. Below are a few key issues that may dictate whether there is actual exposure or whether the client even decides to pursue a claim in the first place.

The Importance of Engagement Letters

When an attorney is sued for malpractice, the engagement letter can be the first line of defense. Indeed, engagement letters can be used to an attorney’s benefit in any number of ways, including in defining who exactly the client was (and, by exclusion, who was not a client), as well as the scope of the representation, in accordance with California Rule of Professional Conduct 1.2(b) (“A lawyer may limit the scope of the representation if the limitation is reasonable under the circumstances, is not otherwise prohibited by law, 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. Indeed, 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.

If the engagement letter does not clearly specify the scope, or if there is no engagement letter, it may be assumed that the representation was a general one for all purposes, which can increase the likelihood of liability. Instead, by clearly defining their role, attorneys can rebut any suggestion that they were obligated to perform tasks that the attorney did not contemplate at the outset of the representation.

All Mistakes Are Not Malpractice

Attorneys make mistakes, and sometimes those mistakes are serious. However, regardless of how egregious the error may be, it is inaccurate to equate committing a mistake with the legal principle of liability for legal malpractice. Indeed, the element of causation is critically important to legal malpractice cases even where there is a clear breach of duty. Because causation is not always clear, the 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 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. While attorneys may be obligated to notify their clients of errors in certain circumstances, some attorneys take that obligation too far and admit “liability” or otherwise suggest to the client that an adverse result was the result of the attorney’s actions. However, a legal malpractice claim is generally not actionable if the result for the client in the underlying matter would have been the same even if the attorney had not committed an error.

The Judgmental Immunity Doctrine

There can be a fine line between a supposed error in judgment and a strategic decision by an attorney that, among several reasonable alternatives, ultimately turned out poorly for the client. In many jurisdictions, including California, attorneys can rely on the “judgmental immunity” doctrine, which relieves an attorney from a finding of liability even where there was an unfavorable result if there was an “honest error in judgment concerning a doubtful or debatable point of law … .” Blanks v. Seyfarth Shaw, 171 Cal. App. 4th 336, 378, 89 Cal. Rptr. 3d 710, 743 (2009).

While not an immunity in the traditional sense, the judgmental immunity doctrine can nonetheless provide a compelling argument against holding the attorney liable for judgment calls amid the inherent uncertainty associated with the practice of law.

Attorneys can take advantage of this defense through preparation and through documenting the file. Where the state of the law may be unclear, attorneys can advise the client of the risks of taking a certain course of action based on the possibility that the attorney’s recommendation may turn out to be inconsistent with the law. If the client later suffers negative consequences, an attorney can then invoke the judgmental immunity doctrine on the basis that she or he made a reasonable judgment call in recommending the course of action taken by the client.

Attorneys of course cannot control the outcome of cases for their clients and, despite best efforts, mistakes happen when practicing law. However, attorneys can nonetheless take a number of steps during the representation and after an alleged mistake occurs to increase their chances of defeating a future legal malpractice claim.

Shari L. Klevens is a partner at Dentons US and serves on the firm’s US Board of Directors. She represents and advises lawyers and insurers on complex claims, is co-chair of Dentons’ global insurance sector team, and is co-author of “California Legal Malpractice Law” (2014). Alanna Clair is a partner at Dentons US and focuses on professional liability defense. Shari and Alanna are co-authors of “The Lawyer’s Handbook: Ethics Compliance and Claim Avoidance.