D. COMPARATIVE FAULT
Appellate courts in South Carolina have not addressed in detail whether a defendant-attorney may assert the affirmative defense of comparative or contributory negligence in a legal malpractice case. In Shealy v. Walters, the Supreme Court acknowledged that the defendant had alleged contributory negligence on the part of the plaintiff, and while the court did not address this allegation further in its opinion, it did not suggest that such a defense could not be raised.50
The vast majority of jurisdictions that have considered the availability of comparative fault as a defense to a legal malpractice action have held that the defense is available.51 Based on the court's mention of comparative fault in Shealy and the overwhelming majority of courts that recognize comparative fault as a defense in a legal malpractice action, it appears certain that...
