Changes in Washington Practice (#2) / Legal malpractice as reflected in the Washington Pattern Jury Instructions

November 13, 2013

Washington State LawThis is installment #2 in a continuing series of Changes in Washington Practice Reports.

New legal malpractice instructions were added to the Washington (State) Pattern Jury Instructions in January, 2013 (as described in the May, 2013 pocket part to volume 6 of the Washington Practice series).

The new chapter (Ch. 107) is titled “Legal Malpractice”.

Three theories of legal malpractice actions are listed: “negligence, breach of fiduciary duty, and breach of contract.” Relevant cases are cited.

Instruction WPI 107.01 is provided for use “when there is a factual dispute concerning the existence of an attorney-client relationship”.

The three elements of such a relationship, which must be proven by the plaintiff, are that the plaintiff sought or received advice on legal matters; believed that the defendant was acting as the plaintiff’s attorney; and that this belief was reasonable based on the circumstances.

WPI 107.02 addresses a possible duty by an attorney to a non-client, and “rarely will be needed”. As noted, “the instruction…should…set forth the specific factual disputes….”

WPI 107.03 is a special verdict form for use in such cases.

WPI 107.04 is an instruction to be used “in all cases involving a claim against an attorney for professional negligence”.

An optional statement is to be included “only if the jury could reasonably interpret the evidence to mean that a poor outcome proves that the attorney was negligent”.

WPI 107.05 “sets forth the standard of care for attorneys who hold themselves out as having special expertise in an area of law….”

As noted, the Washington Supreme Court has concluded that “(attorneys who hold themselves) out as specializing…will be held to a standard of performance…(of such)…specialists.”

This is a cautionary warning to all attorneys who often represent themselves as specialists in an area of practice.

WPI 107.06 “sets forth the plaintiff’s burden of proof” for such negligence actions.

WPI 107.07 and WPI107.08 address proximate cause and damages in such actions.

WPI 107.09 addresses an attorney’s fiduciary duty; an attorney “owes the highest duty of fidelity and good faith to the client….”

Breach of the fiduciary duty and damages are covered in WPI 107.10 and WPI 107.11.

All Washington attorneys have much to gain by putting themselves in the position of an attorney who is the defendant in a legal malpractice action, and reading over these instructions, and thinking carefully about his or her customary practice patterns might be interpreted in such a setting.

Washington Practice volumes 6-6A, Washington Practice Jury Instructions—Civil, are authored by the Washington Supreme Court Committee On Jury Instructions. Additional extracts, summaries and other legal resource materials regarding these volumes may be found in Methods of Practice, volumes 1 to 1C of Washington Practice, by Cheryl Mitchell and Ferd Mitchell of Mitchell Law Office.