Legal Malpractice

Malpractice History

While legal malpractice was the subject of cases as far back as the 18th century in the United States, it has only been since the 1960s that lawyers' professional liability has been significantly expanded. Unlike most other professions, lawyers pervade most aspects of economics, society, and politics, and their actions affect others in very concrete ways.

Indeed, the fact that they are necessary for the conduct of such a wide range of personal, economic, and political practices has made attorneys particularly vulnerable to public and legislative censure. As in other areas of civil law, changing social, economic, and political attitudes by legislators, judges, and the general population have shaped the extent of liability for those practicing the legal profession.

The English common law of negligence was actually first applied in the 18th century to professionals such as lawyers who professed competency in a specialized field. In Russell v. Palmer (1767) and Pitt v. Yalden (1787), the courts held lawyers liable for negligent practices in relation to their clients. In reaction to such cases, judges attempted to protect their lawyer colleagues by holding that only certain types of lawyers were liable for negligence. Nonetheless, it soon became common to hold lawyers to “an ordinary degree of skill and care” in performing their services.

The 1776 case Stevens v. White was the first case in the United States involving lawyers' liability. The defendant lawyer claimed that his client, who had suffered damages due to the lawyers' actions, had not paid for his services so that he had no duty to properly represent his client. Yet, the court found that since the attorney had originally agreed to provide services to his client, he was judged liable for negligence. In the 1880s, the landmark U.S. Supreme Court case of National Savings Bank v. Ward further clarified the laws governing legal work. The lawyer in this case was employed by a bank to investigate if the land put up as collateral by a prospective borrower was sufficient to cover the loan. The bank loaned $3,500 to the client and then accepted the property as security for the loan. However, it turned out the borrower did not actually own the land and was bankrupt. The attorney was found liable for negligence.

In defending the decision, Justice Nathan Clifford offered a definition of negligent actions by lawyers which would prevail for the next century, “When a person adopts the legal profession… he must be understood as promising to employ a reasonable degree of care and skill in the performance of such duties, and if injury results to the client from the want of such a degree of reasonable care and skill, the attorney may be held to respond to damages to the extent of the injury sustained.” He went on to say that proof of the employment relationship and a failure to perform duty in a reasonable manner were the only two prerequisites to winning a suit for negligence against a lawyer. This case thus established two precedents which would hold until the 1960s. To prove negligence, there had to be: 1) a contractual relationship between lawyer and client and; 2) a breach of duty.

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