Suing an Attorney for Breach of Contract

 

While an attorney usually signs a written contract agreeing to represent a client, known as a “retainer,” the grounds upon which an attorney may be sued are generally not contractual.  This is for the benefit of the client, in that it prevents the attorney from drafting a contract hugely to the attorney’s advantage.

Duties of an Attorney

Regardless of what is in the retainer contract, the law imposes a duty of care and duties of honesty, loyalty and fidelity on an attorney relative to the client. For this reason, suits against attorneys are generally under a negligence or fiduciary breach theory, not a breach of contract theory.

Some clients do want to sue for breach of contract, often because the statute of limitation for breach of contract is usually longer than the statutes of limitation for negligence and fiduciary breach.

Courts have determined that in order to sue their attorney for breach of contract, a former client must show:

1) The contract requires the lawyer to do a specific act; and

2) That specific act would not have been part of their normal duties as an attorney.

Jeanes v. Bank of America, 40 Kan. App. 2d 281, 191 P.3d 325 (Kan. App. 2008); Desilva v. Baker, 208 Ariz. 597, 96 P.3d 1084 (Ariz. App. 2004).

Breach of Contract Example Cases

For instance, in Hill v. Williams, 74 Conn. App. 654, 813 A.2d 130 (Conn. App. 2003), the retainer stated that the lawyer would represent the client in four separate, specifically identified litigations. The lawyer did not represent the client in any of the four cases and the client sued for breach of contract. The appellate court held that the retainer identified a specific act and representing the client in the four named suits was not a general duty imposed on all attorneys, so the breach of contract claim could proceed.

Similarly, in Towns v. Frey, 149 Ariz. 599, 721 P.2d 147 (Ariz. App. 1986), the attorney agreed to file a specifically named lawsuit and did not do so.  The client was allowed to proceed in breach of contract because the retainer identified a specific act in the contract which was not a part of the general duties of an attorney. See also, Pittman v. McDowell, Rice & Smith, 12 Kan. App. 2d 603, 752 P.2d 711 (Kan. App. 1988) (attorney agreed in retainer to make specific journal entry and did not do so, client allowed to proceed in breach of contract).

On the other hand, in Torrez v. Edwards, 107 P.3d 1110 (Col. App. 2004), the client tried to sue for breach of contract under the theory that the retainer promised “professional and competent legal services.” The Court found that this was a duty imposed on every attorney and threw out the breach of contract claim, leaving the client to proceed only under a negligence theory.

Likewise, in KPERS v. Reimer & Koger Assoc., 262 Kan. 110, 936 P.2d 714 (Kan. 1997), a promise to provide “sound and appropriate legal services to R&K” was held to be no more than the basic duty of competence imposed on every attorney and the breach of contract claim was dismissed.

Contact a Breach of Contract Attorney

If you’ve worked with an attorney that was not holding their end of the required contract, talk to our breach of contract attorney today. We’ll help explain your legal situation and help you recover compensation. Contact us using our online form or call (800) 955-3457 to start building your case.