Elements

“In a legal malpractice action arising from a civil proceeding, the elements are

1. the duty of the attorney to use such skill, prudence, and diligence as members of his or her profession commonly possess and exercise;
2. a breach of that duty;
3. a proximate causal connection between the breach and the resulting injury; and
4. actual loss or damage resulting from the attorney's negligence.”

Duty

The California Rules of Professional Conduct sets forth particular duties attorneys owe to their clients. (Mirabito v. Liccardo (1992) 4 Cal.App.4th 41, 45). However, they do not by themselves create a civil cause of action. (Rules Prof. Conduct, rule 1-100(A); Noble v. Sears, Roebuck & Co. (1973) 33 Cal.App.3d 654, 658).

Breach of Duty

“[B]reach of duty is usually a fact issue for the jury. If the circumstances permit a reasonable doubt whether the conduct violates the standard of due care, the doubt must be resolved by the jury as an issue of fact rather than of law by the court.” (Kurinij v. Hanna & Morton (1997) 55 Cal.App.4th 853, 864).

Proximate Causal Connection Between the Breach and Resulting Injury

Plaintiffs must meet “the well-established requirement in negligence cases that the plaintiff establish causation by showing either (1) but for the negligence, the harm would not have occurred, or (2) the negligence was a concurrent independent cause of the harm.” (Viner v. Sweet (2003) 30 Cal.4th 1232, 1241.)

For example, “[i]n a litigation malpractice action, the plaintiff must establish that but for the alleged negligence of the defendant attorney, the plaintiff would have obtained a more favorable judgment or settlement in the action in which the malpractice allegedly occurred.” (Id. at 1241).

“‘Ordinarily, proximate cause is a question of fact which cannot be decided as a matter of law from the allegations of a complaint […] Nevertheless, where the facts are such that the only reasonable conclusion is an absence of causation, the question is one of law, not of fact.” State Dept. of State Hospitals v. Superior Court (2015) 61 Cal.4th 339, 353

Actual Loss or Damages

“Actual injury occurs where the plaintiff suffers any loss or injury legally cognizable as damages based on the asserted errors or omissions of an attorney [...] The fact of injury or damage need not be recognized or noticed by the plaintiff. (Britton v. Girardi (2015) 235 Cal.App.4th 721, 733). “The mere breach of a professional duty, causing only nominal damages, speculative harm, or the threat of future harm—not yet realized—does not suffice to create a cause of action for negligence.” (Budd v. Nixen (1971) 6 Cal.3d 195, 200.)

For malpractice suits after settlement, the Court of Appeals has questioned “whether the client can prove that the settlement is ‘out of the ballpark’ of reasonable settlements based on the merits of the action, taking into account the costs and inherent risks and uncertainties of trial.” (Barnard v. Langer (2003) 109 Cal.App.4th 1453).) “The standard should be whether the settlement is within the realm of reasonable conclusions, not whether the client could have received more or paid less.” (Id. at 1462, fn. 13.)

Statute of Limitations

Code of Civil Procedure § 340.6:

(a) An action against an attorney for a wrongful act or omission, other than for actual fraud, arising in the performance of professional services shall be commenced within one year after the plaintiff discovers, or through the use of reasonable diligence should have discovered, the facts constituting the wrongful act or omission, or four years from the date of the wrongful act or omission, whichever occurs first. If the plaintiff is required to establish his or her factual innocence for an underlying criminal charge as an element of his or her claim, the action shall be commenced within two years after the plaintiff achieves postconviction exoneration in the form of a final judicial disposition of the criminal case. Except for a claim for which the plaintiff is required to establish his or her factual innocence, in no event shall the time for commencement of legal action exceed four years except that the period shall be tolled during the time that any of the following exist:

1. The plaintiff has not sustained actual injury.
2. The attorney continues to represent the plaintiff regarding the specific subject matter in which the alleged wrongful act or omission occurred.
3. The attorney willfully conceals the facts constituting the wrongful act or omission when such facts are known to the attorney, except that this subdivision shall toll only the four-year limitation.
4. The plaintiff is under a legal or physical disability which restricts the plaintiff’s ability to commence legal action.

(b) In an action based upon an instrument in writing, the effective date of which depends upon some act or event of the future, the period of limitations provided for by this section shall commence to run upon the occurrence of that act or event.

Beginning of the Period

The CCP § 340.6 tolling provisions are exclusive. (CCP § 340.6(a); Laird v. Blacker (1992) 2 C4th 606, 618). For purposes of CCP § 340.6(a)(1), “actual injury” occurs “when the client suffers any loss or injury legally cognizable as damages in a legal malpractice action based on the asserted errors or omissions.” (Jordache Enterprises, Inc. v. Brobeck, Phleger & Harrison (1998) 18 C4th 739, 743; see Adams v. Paul (1995) 11 C4th 583, 588-589).

“Discovery of any appreciable and actual harm from the attorney's negligent conduct establishes a cause of action and begins the running of the limitations period.” (Laird, supra, 2 Cal.4th 606, citing Budd v. Nixen (1971) 6 Cal.3d 195, 201). Even a suspicion of wrongdoing triggers a duty to file a malpractice action. (Peregrine Funding, Inc. v. Sheppared Mullin Richter & Hamptom LLP (2005) 133 Cal.App.4th 658, 685).

Tolling

The limitations period on a malpractice claim against an attorney is not tolled when an attorney’s subsequent role is only tangentially related to the legal representation the attorney provided to the plaintiff. (Lockton v. O’Rourke (2010) 184 Cal.App.4th 1051, 1068.)

Damages

Emotional Distress Damages

The general rule is that “emotional distress damages are not generally recoverable in cases of attorney malpractice related to litigation.” (Camenisch v. Superior Court (1996) 44 Cal.App.4th 1689, 1697). This rule is founded upon public policy. (Id.). “[W]here more than ordinary negligence is alleged, an attorney’s misconduct may support the recovery of emotional distress damages if the distress ‘naturally ensues from the acts complained of.’” (Smith v. Superior Court (1992) 10 Cal.App.4th 1033, 1038, quoting Merenda v. Superior Court, supra, 3 Cal.App.4th 1, 6).

Liability to Nonclients

“[A]n attorney will normally be held liable for malpractice only to the client with whom the attorney stands in privity of contract, and not to third parties.” (Borissof v. Taylor & Faust (2004) 33 Cal.4th 523, 529). However, an attorney may be liable to a third-party for professional negligence. (St. Paul Title Co. v. Meier (1986) 181 Cal.App.3d 948, 951.)

Will and Trust Beneficiaries

Courts have extended an attorney's duty of care to nonclients, specifically will and trust beneficiaries, in limited circumstances. (Lucas v. Hamm (1961) 56 Cal.2d 583). Whether an attorney owes a duty to a nonclient beneficiary “is a matter of policy and involves the balancing of various factors.” (Id. at 588; Osornio v. Weingarten (2004) 124 Cal.App.4th 304, 330; Paul v. Patton (2015) 235 Cal.App.4th 1088, 1095–1096; Moore v. Anderson Zeigler Disharoon Gallagher & Gray, 109 Cal.App.4th 1287, 1298).

Experts

A retained expert can sue the attorney who retained him or her for equitable indemnity when the expert has been sued for malpractice by the client, even though the client had not sued the attorney. (Forensis Group, Inc. v. Frantz, Townsend & Foldenauer (2005) 130 Cal.App.4th 14, 39-40).

Co-counsel

When a client is represented by two law firms in the same underlying case and chooses to sue only one of the firms for malpractice, the firm accused of malpractice may cross-complain against the other firm for equitable indemnity. (Chodos v. Cole (2012) 210 Cal.App.4th 692, 702-704).

In Relation to other Causes of Action

Breach of Contract

Because an attorney undertakes to perform his or her duties pursuant to a contract with the client, the attorney’s failure to exercise the requisite skill and care may also constitute a breach of the express or implied terms of the contract between the client and the attorney. (Neel v. Magana, Olney, Levy, Cathcart & Gelfand (1971) 6 Cal.3d 176, 180-181).

Breach of Fiduciary Duty

Breach of Fiduciary Duty is distinct from a claim of professional negligence. (Stanley v. Richmond (1995) 35 Cal.App.4th 1070, 1086).

Anti-SLAPP Statute

Legal malpractice claims are generally not barred by Code of Civil Procedure § 425.16. (Kolar v. Donahue, McIntosh & Hammerton (2006) 145 Cal.App.4th 1532). “A malpractice claim focusing on an attorney's incompetent handling of a previous lawsuit does not have the chilling effect on advocacy found in malicious prosecution, libel, and other claims typically covered by the anti-SLAPP statute […] This is vastly different from a third party suing an attorney for petitioning activity, which clearly could have a chilling effect.” (Kolar, supra, 145 Cal.App.4th at p. 1540.) Furthermore, malpractice claims are not barred by the litigation privilege under Civil Code section 47, subdivision (b). (Kolar, supra, 145 Cal.App.4th at pp. 1540-1541).

“For purposes of the anti-SLAPP statute, a claim by an attorney against other attorneys for equitable indemnity in connection with a claim of attorney malpractice is not distinguishable from a client's claim against an attorney for malpractice. The claim for indemnity is still grounded in allegations of attorney malpractice. Indemnity and malpractice may be different causes of action, but that does not mean that the claim for indemnification based on malpractice should be treated differently than a malpractice claim for purposes of whether the anti-SLAPP statute is applicable.” (Chodos v. Cole (2012) 210 Cal.App.4th 692, 703–704, emphasis in original).