§ 5.02 LEGAL MALPRACTICE SUMMARY
This section summarizes the elements of a legal malpractice claim and discusses other theories of lawyer civil liability.
[1] Elements of a Legal Malpractice Claim
The Washington Supreme Court, in Hizey v. Carpenter, 119 Wn.2d 251, 260-61, 830 P.2d 646 (1992), outlined the required elements of a legal malpractice claim:
To establish a claim for legal malpractice, a plaintiff must prove the following elements: (1) The existence of an attorney-client relationship which gives rise to a duty of care on the part of the attorney to the client; (2) an act or omission by the attorney in breach of the duty of care; (3) damage to the client; and (4) proximate causation between the attorney's breach of the duty and the damage incurred.
[a] Client and Nonclient Standing
As the Hizey court noted, a legal malpractice claimant must ordinarily be a current or former client of the lawyer or law firm involved. Id. at 260.
In Washington, the existence of an attorney-client relationship is governed by case law rather than the RPCs. The Washington Supreme Court, in Bohn v. Cody, 119 Wn.2d 357, 363, 832 P.2d 71 (1992), established a two-part test for whether an attorney-client relationship exists. The first element is subjective: does the client subjectively believe the lawyer is representing the client? The second element is objective: is the client's subjective belief objectively reasonable under the circumstances? Both elements of the test must be met for an attorney-client relationship to be recognized. At the same time, neither a written agreement nor payment is necessary for an attorney-client relationship to be found, provided the two elements of the Bohn test are...
