CA Legal Malpractice CLS cheat sheet

Elements of a legal malpractice claim in California: (1) the existence of an attorney-client relationship or a duty of care owed to the plaintiff; (2) breach of that duty by the attorney; (3) causation; and (4) actual loss or damage resulting from the breach. All four must be proven; failure on any one defeats the claim.

The attorney-client relationship generally arises by contract, express or implied. A duty may also run to non-clients (intended beneficiaries, joint clients, or persons the attorney undertakes to serve), which is the exception to the privity requirement.

Standard of care is that of a reasonably competent attorney practicing in the same or a similar community, exercising ordinary skill, prudence, and diligence. Expert testimony is ordinarily required to establish breach and causation unless the conduct is within common knowledge.

Breach is judged by professional norms, not by whether the attorney ultimately lost the case. A good-faith tactical or strategic choice made with informed client consent is generally not a breach.

Causation in a legal malpractice case is typically proven by the 'case within a case' method: the plaintiff must show that but for the attorney's negligence, the plaintiff would have obtained a better result in the underlying matter.

Damages must be actual and ascertainable; nominal damages alone are generally insufficient. Recoverable damages may include lost judgment or settlement value, additional costs and attorney fees incurred, and consequential damages that are proximately caused.

Common defenses: statute of limitations (one year from actual or constructive discovery of the injury, or four years from the wrongful act, whichever occurs first); no attorney-client relationship; comparative fault of the client; and the client's own settlement or release.

Actual injury in California legal malpractice accrues when the plaintiff sustains a loss, not merely when the negligent act occurs. The plaintiff must have a present, non-speculative injury before the limitations period begins to run.

Attorney fees incurred in the underlying case are generally not recoverable as damages in the malpractice action, except where the malpractice forced the client to incur fees to relitigate or defend against the attorney's error.

Statute of limitations under California Code of Civil Procedure section 340.6: the earlier of one year after the plaintiff discovers or should have discovered the facts constituting the wrongful act, or four years after the wrongful act, subject to tolling while the attorney continues to represent the client in the same matter.

Tolling exceptions under section 340.6 include: (1) the attorney continues to represent the client on the same specific subject matter; (2) the plaintiff is under a legal disability; (3) the attorney willfully conceals the facts; and (4) the plaintiff has not sustained actual injury.

Expert witness testimony is generally required to establish the standard of care, breach, and causation, except where the negligence is apparent to a layperson (e.g., missing a filing deadline). Expert declarations must be admissible and based on the applicable standard.

The 'case within a case' requires the plaintiff to prove the merits of the underlying action as a predicate to proving causation. If the underlying claim was meritless, the malpractice claim fails even if the attorney erred.

Settlement of the underlying case does not automatically bar a malpractice claim, but the client must show that the settlement was caused by the attorney's negligence and was reasonable under the circumstances.

Ethical duties (California Rules of Professional Conduct) and legal duties overlap but are not identical. A violation of an ethical rule does not by itself establish malpractice, though it may be evidence of breach.

Conflicts of interest, including concurrent representation of clients with adverse interests, can give rise to malpractice liability and disqualification. Informed written consent may cure certain conflicts but not those that are fundamentally unwaivable.

Fee agreements must be in writing where required (e.g., contingency fees, fees over $1,000 in some contexts). An unconscionable or illegal fee agreement may be unenforceable and may support a malpractice or breach-of-fiduciary-duty claim.

The attorney-client privilege and the work-product doctrine can limit the evidence available in a malpractice action; the client may waive privilege by placing the attorney's advice at issue (the 'at issue' waiver).

Punitive damages require proof of oppression, fraud, or malice by clear and convincing evidence; ordinary negligence, even gross negligence, is generally insufficient.