November 19, 2013 Articles

Recent Developments in the Causation Requirement for Legal-Malpractice Claims

The Encinias case out of New Mexico could be a sea change.

By Rebecca Counts

Clients are typically limited in their ability to recover from negligent lawyers by the viability of the original claim the lawyer was hired to handle. Unless the lawyer’s misconduct precluded a viable claim, the plaintiff has not suffered damages. The causation requirement is taken for granted by courts. See, e.g., Blanks v. Shaw, 171 Cal. App. 4th 336, 357 (2009); Cecala v. Newman, 532 F. Supp. 2d 1118, 1136 (D. Ariz. 2007) aff'd, 379 F. App'x 584 (9th Cir. 2010); Smith v. Preston Gates Ellis, LLP, 135 Wash. App. 859, 864 (2006); Piscitelli v. Friedenberg, 87 Cal. App. 4th 953, 973 (2001). Even legal-ethics textbooks teach that but-for causation is an element of attorney malpractice. Susan Martyn and Larry Fox, Traversing the Ethical Minefield 76 (3rd ed. 2013), quoting Togstad v. Vesely, Otto, Miller & Keefe. 291 N.W.2d 686 (Minn. 1980).


But one recent case bucks this trend. The New Mexico Supreme Court ruled in Encinias v. Whitener Law Firm, P.A., 2013-NMSC-045, that a plaintiff can recover punitive damages for legal malpractice even when the “case within the case” is too weak to prove damagesA recent spate of opinions from multiple jurisdictions has underscored the growing importance disciplinary boards appear to place on professionalism and civility among members of the bar. An increasing number of attorneys are facing disciplinary charges for a failure to adhere to professionalism standards, which for many years may have been considered more aspirational than mandatory. While prescient authors (see, e.g., Gregory Hanthorn, “When Breaches of Professionalism Become Sanctionable,” Ethics & Professionalism, Feb. 5, 2014) have noted this trend over the past several years, reports of breaches of professional conduct appear to grow daily and serve as a warning to attorneys who appear to confuse incivility and outright rudeness with zealous advocacy in service to their clients.

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