The basic elements of legal malpractice are three:
- There is an attorney-client relationship.
- The lawyer breached their duty of care to the client.
- The breach harmed the client.
Today we focus on the duty of care. It can be a hard concept to define and depends on the nature of the legal work undertaken for the client. The client’s legal, personal and business goals also help shape the duty. The scope and definition of an attorney’s duty of care also may vary some among the various jurisdictions in the U.S. – federal, state or territory.
Common themes in the duty of care
Words that often come up in this discussion is that the duty of care is a “reasonable” one and is that of an “average” lawyer. In other words, legal counsel must not (but may) perform stellar work, just average, acceptable legal work and no unreasonable standards must be met.
The duty of care, or standard of care, is difficult to define and inadequately addressed in cases and legal publications, according to an article on the State Bar of Wisconsin’s website by an attorney who serves as an expert witness on this very issue in legal malpractice cases. The author points out other terms often used in this context – skill, judgment, knowledge, diligence, prudence.
Perhaps he means that the required duty of care is that which meets the level or type of care that a lawyer should provide in a particular legal matter, involving these attributes like diligence, prudence, knowledge or others. The author defines the standard of care as “what a reasonably prudent lawyer would do or refrain from doing under the same or similar circumstances,” an objective assessment of competence.
The duty of care can be hard to nail down
In most attorney negligence or malpractice cases that go to trial, the parties must use a legal expert (like the author referred to above) to establish what the reasonable standard of care is that a lawyer is alleged to have violated in the suit. Sometimes it is clear: use a careful calendaring system so you do not miss any deadlines for filing. But sometimes it is not at all clear.
An example from the article is whether an attorney can draft a contract with only the terms the client specifically requested. What if the client expressed goals they wanted to meet through the agreement and they did not know that to meet those goals, additional terms were necessary? Did the attorney act with prudence and skill to only draft provisions specifically asked for without advising the client about others that would be necessary? What about customary terms in the particular industry that the client did not know about? These kinds of cases are often far from clear.
Anyone who has questions about the duty of care and whether their lawyer met or breached it should speak with a knowledgeable legal malpractice attorney to break down their situation and analyze the nature and parameters of the duty of care in those circumstances.