Victims of legal malpractice sometimes seek to bring suit under a breach of contract theory, for various reasons. One reason is because in many states, the winning party in a breach of contract case can receive reimbursement of their attorneys fees. Another reason is that in most states, the statute of limitation for breach of contract is longer than the statute of limitation for negligence or other theories commonly asserted against attorneys.
Breach of contract claims against attorneys are rarely successful, because the person bringing the suit must show that the attorney breached a specific promise in the attorney client agreement that would not normally exist, but for the contract. Merely showing that the attorney failed to satisfy the general duty of professionalism and competence cannot be a basis for a breach of contract claim.
For example, in Pittman v. McDowell, Rice & Smith Chartered, 12 Kan. App.2d 603, 752 P.2d 711 (Kan. 1988), the attorney specifically agreed in the attorney/client agreement to make a journal entry and failed to do so. This is not part of an attorney’s general duties, so the case was allowed to proceed under a breach of contract theory.
On the other hand, in Keonjian v. Olcott, 216 Ariz. 563, 169 P.3d 927 (Ariz. App. 2007), an attorney was hired to draft a deed and drafted it wrong, causing damage. The client sued under a breach of contract theory, but the court held that drafting a deed correctly was part of an attorney’s general duty of competence, not specifically related to anything in the contract that otherwise would not be covered by the duty of competence, so the breach of contract claim was dismissed.
Most states have a rule of professional responsibility governing lawyers which states that a lawyer may not take a loan from a client or do business with a client unless: 1) the transaction is objectively fair; 2) the client has been given a fair opportunity to consult with an unrelated attorney; and 3) the client gives thorough, informed consent in writing.
Most transactions between a client and their lawyer do not meet all of these criteria. For instance, in Hicks v. Clayton, 67 Cal. App.3d 251, 136 Cal. Rptr. 512 (Cal. App. 1977), Clayton had done minimal legal work for Hicks in the past and later purchased a home from Hicks. When the two fell out, Hicks sued Clayton for fiduciary breach. Clayton convinced the trial court to largely ignore the fact he had once been Hicks’ attorney and prevailed. On appeal, the Court of Appeals reversed, holding: “The uncontradicted evidence is that Clayton was and had been at the time of the buying of his client’s house, the attorney for Hicks. Hicks trusted Clayton. In connection with the contract of the sale and purchase of (the house), Clayton did not advise Hicks to get independent counsel.” The Court went on to rule against Clayton, for failure to meet all criteria.
Conflicts arise in many ways. One of the most common is when an attorney chooses to represent multiple parties in a matter, usually in order to make more money and the parties’ interests become adverse, but the lawyer does not withdraw.
In Kelley v. Buckley, 193 Ohio App.3d 11, 950 N.E.2d 997 (Oh. App. 2011), Buckley helped both members of a married couple surnamed Kelly with their legal affairs, over many years. When Mr. Kelly died, Buckley began representing his business partner in settling out Mrs. Kelly’s share of the business.
At the same time, Buckley used his pre-existing relationship with Mrs. Kelly to assure her that he would see to it she was treated fairly, while working behind her back to prejudice her interests in favor of his main client, her husband’s former partner. The Ohio Court of Appeals held that this was an impermissible conflict of interest, after Mrs. Kelly sued Buckley for fiduciary breach.
In Perez v. Kirk & Carrigan, 822 S.W.2d 261 (Tex. App. 1991), Perez crashed a Coca Cola truck he was driving into a school bus, killing twenty one children. Attorney Kirk was hired by Perez’ boss and showed up to interview him the following day. Kirk assured Perez he could trust him, took a confidential statement and turned it over to the District Attorney, so he would file criminal charges against Perez, which he did. The trial court dismissed Perez’ subsequent claim, on the theory that Kirk was never his attorney, but the Texas Court of Appeals reversed holding that Kirk’s actions created an implied attorney client relationship.
Negligent supervision occurs when a senior attorney with supervisory authority over a junior attorney fails to supervise the junior attorney as a reasonable and prudent senior attorney would have under the same or similar circumstances.
For instance, in Madden v. Aldrich, 58 S.W.3d 342 (Ark. 2001), Madden was a senior attorney with supervisory authority over junior attorney Humphrey. Madden heard from a number of clients that Humphrey promised them an opportunity to adopt a baby, took their money to accomplish this task and then cut off contact with them. Madden did nothing.
Humphrey promised the Aldriches that he would help them adopt a baby. He took $7500 from them for this purpose and then did nothing. Humphrey absconded and was unavailable for service of process, so the Aldriches sued Madden. Madden sought to shift the blame to Humphrey, but the case went all the way to the Arkansas Supreme Court, which held that there was more than sufficient evidence to find Madden liable for a negligent failure to supervise Humphrey.
One example of an intentional act case by a client against their attorney is common law fraud. Under cases like Strategic Diversity v. Alchemix Corp., 666 F.3d 1197, 1210 (9th Cir. 2012), the client must show: 1) a representation of fact; 2) its falsity; 3) its materiality; 4) the representer’s knowledge of its falsity or ignorance of its truth; 5) his intent that it should be acted on in a manner reasonably contemplated; 6) the injured party’s ignorance of its falsity; 7) the injured party’s reliance on its truth; 8) the injured party’s right to rely thereon; and 9) consequent and proximate damages.
All elements must be satisfied, often according to a heightened standard of proof. All elements were found to be satisfied in Day v. Rosenthal, 170 Cal. App.3d 1125, 217 Cal. Rptr. 89 (Cal. App. 1985), where the Court concluded that the actress Doris Day’s attorney had stolen from her and actively lied about it for decades.