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Breach of Contract Lawyer

A “tort” involves a duty imposed without benefit of a contract, such as the duty not to run a red light and hit someone with your car. By contrast, a “contract” imposes duties established by a legally enforceable agreement. “Legal malpractice” is the failure of an attorney to act as a reasonable and prudent attorney in the same or similar circumstances would act, causing damages. There is a presumption that legal malpractice is a “tort” not a “breach of contract.” Barmat v. John and Jane Doe Partners AD, 155 Ariz. 519, 523, 747 P.2d 1218 (Ariz. 1987).

This is a fancy way of saying an attorney’s duties to their client are those generally imposed upon all attorneys, not just those set forth in the attorney’s contract for employment. The reason this is important is that if legal malpractice were treated primarily as a breach of contract, it would be too easy for lawyers to limit or eliminate their own liability to a client, by simply drafting a legal employment contract favorable to themselves. Court recognize this and so treat legal malpractice as a “tort,” which involves general duties imposed without reference to any contract.

However, sometimes clients want to sue their attorney under a breach of contract theory, not just for the “tort” of legal malpractice. This is almost always because the statute of limitation for breach of contract is six years and the statute of limitation for legal malpractice is two years. Plaintiffs who have blown the two year deadline but are still within the six year deadline frequently try to characterize their claims as breach of contract, rather than legal malpractice.

A client may sue an attorney for breach of contract only if: 1) the contract for legal employment requires the lawyer to do a specific act which would not be part of their general duties as an attorney; and 2) if there was total nonperformance of those specific acts required by the contract. Poor performance of the specific promise in the contract still constitutes legal malpractice, not a breach of contract.

Breach of contract claims were allowed in Asphalt Eng’rs., Inc. v. Galusha, 160 Ariz. 134, 136, 770 P.2d 1180, 1182 (App.1989) and Towns v. Frey, 149 Ariz. 599, 721 P.2d 147 (App. 1986), because the attorney promised to do a specific thing that is not a general duty imposed on all attorneys and then totally failed to perform. In other cases involving poor performance, as opposed to total nonperformance, the courts have refused to allow breach of contract claims.