The Washington Supreme Court outlined the elements of a legal malpractice claim in Hizey v. Carpenter, 119 Wn.2d 251, 260-61, 830 P.2d 646 (1992):
To establish a claim for legal malpractice, a plaintiff must prove the following elements: (1) [t]he 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.
"[O]nce an attorney-client relationship is established, the elements for legal malpractice are the same as for [other] negligence [claims]." Id. at 261 (citing Bowman v. Two, 104 Wn.2d 181, 185, 704 P.2d 140 (1985)). A plaintiff bears the burden of proof in establishing these elements. See Hansen v. Wightman, 14 Wn. App. 78, 88, 538 P.2d 1238 (1975). The Supreme Court in Schmidt v. Coogan, 181 Wn.2d 661, 665-70, 335 P.3d 424 (2014), concluded, however, that collectability of an underlying judgment is not an element of a legal malpractice claim. Rather, in Schmidt, the Supreme Court classified collectability as an affirmative defense to mitigate or eliminate damages. Id.
Comment 22 to the Scope of the Rules of Professional Conduct notes that "[n]othing in these Rules is intended to change existing Washington law on the use of the Rules of Professional Conduct in a civil action." RPC Preamble and Scope cmt. 22; see Hizey, 119 Wn.2d 251. In Hizey, the Supreme Court held that an asserted violation of the professional rules cannot be cited verbatim as evidence of the failure to meet the standard of care in a legal malpractice case. Instead, the RPCs can be taken into account by an expert in formulating an opinion on the standard of care and its asserted violation.
| Example: | Under Hizey, an expert in a legal malpractice case could not say "this lawyer violated RPC 1.1 on competence," but could instead say "lawyers have a duty to competently represent their clients and, in my opinion on the facts of this case, the lawyer here did not meet that standard of care." |
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Comment 22 does not mention a parallel case, Eriks v Denver 118 Wn.2d 451, 456-61, 824 P.2d 1207 (1992), in which the Supreme Court held that the RPCs could be both cited and used as specific evidence in determining whether a lawyer breached a fiduciary duty.
Hizey applies to malpractice claims arising from civil matters. In malpractice suits arising in criminal cases, two other elements have been added to Hizey's four: (1) the claimant must have sought post-conviction relief; and (2) the claimant must prove "actual innocence." Actual innocence is proof by a preponderance of evidence that the claimant is innocent, as opposed to "legal" innocence—meaning failure to prove guilt by a reasonable doubt. Ang v. Martin, 154 Wn.2d 477, 482-83, 114 P.3d 637 (2005); accord Piris v. Kitching, 185 Wn.2d 856, 375 P.3d 627 (2016) (reaffirming the broad scope of the "actual innocence" requirement); see also Falkner v. Foshaug, 108 Wn. App. 113, 122-23, 29 P.3d 771 (2001) (distinguishing "Alford" pleas, which do not conclusively admit guilt); Powell v. Assoc. Counsel for Accused, 131 Wn. App. 810, 813-15, 129 P.3d 831 (2006) (declining to extend the "innocence requirement" to malpractice in criminal sentencing proceedings when the sentence involved was beyond what the trial court was legally authorized to impose).
(1) Existence of an attorney-client relationship and standing by nonclients
Both clients and, in some limited circumstances, nonclients have standing to assert malpractice claims.
(a) Clients
As noted in Hizey, a lawyer's current or former client has standing to raise a malpractice claim. 119 Wn.2d at 261. In Washington, the general rule for determining whether an attorney-client relationship exists was set out in Bohn v. Cody, 119 Wn.2d 357, 832 P.2d 71 (1992). See also Teja v. Saran, 68 Wn. App. 793, 795-96, 846 P.2d 1375, review denied, 122 Wn.2d 1008 (1993) (applying Bohn ); accord Oxford Sys., Inc. v. CellPro, Inc., 45 F.Supp. 2d 1055, 1059 (W.D. Wash. 1999) (also applying Bohn). The Washington Supreme Court in Bohn articulated a two-part test. The first element is subjective: Does the client believe that an attorney-client relationship has been formed? 119 Wn.2d at 363 ("The existence of the relationship 'turns largely on the client's subjective belief that it exists.'"). The second element is objective: Is the client's subjective belief reasonable under the circumstances? Id. ("The client's subjective belief, however, does not control the issue
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unless it is reasonably formed based on the attending circumstances, including the attorney's words or actions."). Whether an attorney-client relationship exists is generally a question of fact for a jury. See Stiley v. Block, 130 Wn.2d 486, 501-02, 925 P.2d 194 (1996).Comment 17 to the Scope section of the RPCs notes that "[f]or purposes of determining the lawyer's authority and responsibility, principles of substantive law external to these Rules determine whether a client-lawyer relationship exists." RPC Preamble and Scope cmt. 17. Bohn, 119 Wn.2d 357, remains the leading case on this point. Accord In re Disciplinary Proceeding Against Egger, 152 Wn.2d 393, 410-11, 98 P.3d 477 (2004).
The Washington Supreme Court in Kommavongsa v. Haskell, 149 Wn.2d 288, 291, 67 P.3d 1068 (2003), left open the question of whether legal malpractice claims can be assigned generally. The Kommavongsa court held, however, that a malpractice claim cannot be assigned to an adversary in the same proceeding. Id. Applying Kommavongsa, the Court of Appeals in Kim v. O'Sullivan, 133 Wn. App. 557, 137 P.3d 61 (2006), review denied, 159 Wn.2d 1018 (2007), found that assigning the proceeds of a malpractice claim to an adversary and then allowing the adversary to control a subsequent malpractice claim is also prohibited. In Kenco Enterprises Northwest, LLC v. Wiese, 172 Wn. App. 607, 612-15, 291 P.3d 261, review denied, 177 Wn.2d 1011 (2013), the Court of Appeals also barred a malpractice claim based on Kommavongsa when an opponent in the underlying litigation acquired the company that held the malpractice claim.
(b) Nonclients
Traditionally, only a lawyer's client had standing to bring a malpractice claim. See generally Bohn, 119 Wn.2d at 364-65; accord Trask v. Butler, 123 Wn.2d 835, 840, 872 P.2d 1080 (1994). In recent years, however, the scope of liability for malpractice has been extended to include some nonclients as well. The Supreme Court in Bohn discussed the evolution of this expansion. See 119 Wn.2d at 365. The Supreme Court noted that two general theories had been advanced in this regard. Under the first, which was rooted in contract law, a lawyer could be held liable for malpractice by a nonclient if the nonclient was an intended third-party beneficiary of the attorney-client relationship involved. Id. Under the second, which was based on tort law, a lawyer could be found liable under a "multi-factor balancing test" that "‘focused on whether the attorney's services were intended to affect the plaintiff
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[nonclient].'" Id. (quoting Stangland v. Brock, 109 Wn.2d 675, 680, 747 P.2d 464 (1987)).The Supreme Court in Trask merged the two tests into what it called a "modified multi-factor balancing test":
| The multi-factor balancing test and the third party beneficiary test were independently created by separate state courts to determine whether an attorney owes a duty to a nonclient. The two tests are indistinguishable in that their primary inquiry focuses on the purpose for establishing | |||
