Does your attorney owe you a duty?

In many legal malpractice actions, one of the principal questions to be asked (and answered) is whether the defendant attorney owed a duty to the plaintiff client in the course of the attorney’s representation of said client. In most instances, the answer is a resounding yes. However, not every relationship between an attorney and client will result in such a duty. To determine whether a duty exists, several factors must be considered. This post will highlight two important ones. 

The nature of the agreement – The first step in determining whether an attorney owed a duty to a client is to review and analyze the nature of the agreement between the parties. Depending on the language of the retainer agreement, it may contain an expressed duty that the attorney must adhere do. In some instances, the retainer will include an implied duty that the attorney will all things reasonably necessary to zealously represent the client.

The scope of representation – Aside from the retainer agreement, the attorney’s role must be clearly articulated or understood between the parties. In some instances, the scope of representation is written in great detail on the first page of the retainer. However, there are other instances where the scope of representation changes, but the retainer is not properly updated to reflect the parties’ new understanding. In these instances, a legal malpractice may arise.

If you are unsure of whether your attorney owed you a duty, whether it is a fiduciary duty, a duty of loyalty or a duty to use due diligence, an experienced legal malpractice attorney can help. 

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