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Table of Contents    Cover

Featured Article March 1999
Lawyer vs. Lawyer

Plaintiffs' attorneys should carefully evaluate eight critical elements before accepting a legal malpractice case 

By Boyd S. Lemon 

Boyd S. Lemon has practiced law in Los Angeles for 33 years with an emphasis on legal malpractice and other civil litigation matters. He has been retained as an expert witness in legal malpractice and attorney's fee disputes in more than 200 cases and frequently writes and lectures on these subjects. 

Attorney Jane Doe is a civil litigator who has primarily handled personal injury cases during her 10 years of practicing law. Client John Smith, who found Doe's name in the yellow pages, telephones and asks if she handles legal malpractice cases. Knowing that she could certainly accommodate some more business and figuring that a legal malpractice case is no different than any other civil litigation matter, she says, "Sure." After listening to the client's 15-minute version of the facts, she tells the client, "You have a dead bang winner." The attorney and the client meet, and the attorney hears more details of the client's tale of woe. 

The client's former attorney had filed a wrongful termination case against the client's former employer but did nothing afterward. The former attorney not only failed to take any steps to begin the discovery process but allowed the case to be dismissed under Code of Civil Procedure Section 583.420, the discretionary failure-to-prosecute statute-a performance clearly below the standard of care required of attorneys. To make matters worse, the former attorney never told the client that the case had been dismissed. In fact, the client only found out about the dismissal when the former attorney's failure to return telephone calls led the client to visit the courthouse and review the court file. 

Smith tells Doe that he would have recovered millions of dollars from his wrongful termination case because, after 23 years of impeccable employment, he was terminated for reporting to a company vice president that his immediate superior was having a sexual relationship with one of his coworkers. Doe concludes that the former attorney was clearly negligent in not prosecuting a seemingly meritorious case and asks Smith to sign a retainer agreement. Within a few days, Doe files an action against the former attorney for legal malpractice. 

Is a happy ending in store for the client and his new attorney in this scenario? Unfortunately, for both of them, the denouement is disappointingly typical. One year after the filing of the malpractice claim, the attorney is served with a motion for summary judgment on the ground that, as a matter of law, the alleged negligence of the former attorney caused no damage. According to the motion, even if the former attorney had prosecuted the underlying case, the client would have lost as a result of three factors: 1) the coworker admitted to initiating the sexual relationship in a deposition in a related case, 2) the client was terminated because of a long history of substance abuse, and 3) the client's employer filed a bankruptcy petition, so a judgment for the client would not have been collectible. 

As the numerous nonsuits and defense verdicts in recent legal malpractice cases attest, unmeritorious legal malpractice cases are proliferating.1 Many cases should never have been filed in the first place, and the results include unhappy plaintiffs, their frustrated attorneys, justifiably resentful defendants, and a waste of judicial resources. The path that ends with a decision on whether or not to represent a client in prosecuting a legal malpractice case has a number of twists and turns. Actions without merit usually represent a failure by attorneys for plaintiffs to properly evaluate those aspects of their cases that make legal malpractice an unusual cause of action with few parallels to other civil matters. 

What are some of the peculiar factors that make legal malpractice cases unique? First, there is always an underlying litigation or transaction to evaluate. Second, the statute of limitations that applies to legal malpractice actions is extraordinarily complex and difficult to apply. Third, ethical principles are not only frequently germane but may affect the outcome of the case. Finally, the litigants include lawyers. Attorneys must analyze these factors in addition to the specific legal elements that constitute a cause of action for negligence before taking a case. 

Like any other case founded on negligence, the elements of a legal malpractice claim are: 1) duty, 2) breach of duty, 3) proximate cause, and 4) damage.2 These elements of a legal malpractice case are well established and widely known, as is the fact that the heart of a legal malpractice case is the attorney's breach of duty-the failure of an attorney to possess and use the level of skill, knowledge, and care that is ordinarily possessed and used by attorneys under similar circumstances.3 However, breach of duty is not the element that presents the most serious pitfall to a plaintiff's attorney in a legal malpractice case. Therefore, the temptation to focus first on the attorney's conduct should be resisted. 

Instead, the elements of a legal malpractice case should be evaluated in the following order: 1) causation, 2) the statute of limitations, 3) damages, 4) breach of duty, 5) duty, 6) defenses other than the statute of limitations, 7) whether the defendant attorney has sufficient insurance coverage, and 8) the jury appeal of the case. 

The last two elements need only be analyzed if, after evaluating the first six elements, the potential plaintiff's attorney is inclined to take the case. Also, in some cases, issues will emerge that will suggest tackling one or more of the elements out of order. For example, perhaps at the outset there is a question about whether or not the prospective plaintiff and defendant actually had an attorney-client relationship (the duty element). The potential plaintiff's attorney may decide to analyze this issue first and, even if that element can be proved, require the other elements to be so strong in the plaintiff's favor that the battle over duty can be considered worthwhile. 

Most legal malpractice cases that result in a defense verdict or nonsuit are lost not because the defendant attorney's conduct did not fall below the standard of care but because the underlying matter lacked merit. To prove causation requires a showing that the attorney's breach of duty caused damage. If the underlying matter was a lawsuit, the plaintiff must prove that but for the attorney's negligence, the client would have won his or her case-or at least would have achieved a more favorable outcome.4 It is not enough to show that a client lost his or her opportunity to litigate, as in an underlying case in which the attorney failed to file an action within the applicable statute of limitations period. In such a case, the client must prove that had the underlying action not been barred by the statute of limitations, the client would have prevailed on the merits. Courts have held that causation is not established when the plaintiff contends that but for the attorney's negligence, the underlying case would have been settled sooner and/or on more favorable terms, because such a claim is too speculative.5 

If the underlying matter was a transaction, the plaintiff's attorney must prove causation by showing that but for the attorney's breach of duty, the result for the client would have been more favorable. Examples of what constitutes a better result may include the client's property not being lost to foreclosure, the client's loan being properly secured and the security recovered, the transaction not being subject to income tax, or the contract being performed. 

For a malpractice case involving an underlying litigation matter, the nature and circumstances of the attorney's malpractice dictate what must be proved to show that the outcome would have been more favorable. If the underlying case was barred by the statute of limitations, concluded by a default judgment or summary judgment, or lost in some similar manner because of the attorney's negligence, the plaintiff client must litigate the entire underlying action. In what is commonly referred to as a "trial within a trial," the plaintiff client must present all the evidence that would (or should) have been presented in the underlying case and persuade the trier of fact that the plaintiff should have prevailed. If a trial or part of a trial took place, the transcript may be used, but additional live testimony and evidence will be necessary to show what would have happened if the attorney had tried the case in accordance with the requisite standard of care.6 As proof of causation and as part of the plaintiff's prima facie case, the plaintiff must show that the judgment that would have been obtained in the underlying action, but for the attorney's negligence, would have been collectible.7 Will a court allow a plaintiff to prove causation by the testimony of an expert witness that the underlying case would have been won if the defendant attorney had not performed negligently? Probably not, although there is no California authority directly on point. 

Attorneys considering a malpractice case for representation should analyze the causation element by scrutinizing the underlying case as if it were the case the attorney was being asked to try. Many potential legal malpractice cases involve an underlying case that probably could not have been won, or an underlying transaction that would have resulted in the same or similar loss to the client no matter what the attorney had done. A legal malpractice case with a weak underlying case should not be accepted. Attorneys who go ahead with legal malpractice cases under these circumstances probably will not prevail-and may not even have the chance to present the case to a jury. If the potential plaintiff's attorney would not have taken the underlying action, he or she should not take a legal malpractice case based upon it. 

Statute of Limitations 
Code of Civil Procedure Section 340.6 is the statute of limitations applicable to a legal malpractice action: 

(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. 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; and 

(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 such act or event. 

Section 340.6 requires litigants to perform a complex analysis with a great deal of uncertainty as to the outcome.8 In some cases, usually the simpler ones, determining when the client discovered the alleged act or omission constituting malpractice is the principal issue involved in discerning whether the statute of limitations bars an action. Other factors in the analysis include whether the mere knowledge by the client of the facts of malpractice is sufficient or whether the client had to appreciate and understand that those facts constituted or may have constituted malpractice. 

The more complicated issue-and unfortunately the one that is faced most often-is determining when the plaintiff suffered actual injury as a result of the attorney's negligence, since Section 340.6 is tolled "during the time the plaintiff has not sustained actual injury." Actual injury requires "appreciable harm," according to Laird v. Blacker,9 the leading case for malpractice occurring in litigation matters, which holds that actual injury occurred when the judgment was entered against the client in the underlying case-even though the client appealed the judgment and the adverse judgment could have been reversed. Since Laird, numerous cases have made it clear that the factual settings of attorney negligence are so diverse and unpredictable that determining when actual injury occurred is an issue of fact determined on a case-by-case basis.10 

The issue of when actual injury occurs in a transactional context is just as complicated,11 as evidenced by the opinion of the California Supreme Court in Jordache Enterprises, Inc. v. Brobeck, Phleger & Harrison,12 a 1998 decision that overruled the court's 1994 ruling in ITT Small Business Finance Corporation v. Niles.13 Jordache reaffirms the principle that there is no bright-line application of the statute of limitations in legal malpractice cases, and thus each case must be decided on its facts. In ITT, the court had held that "in transactional legal malpractice cases, when the adequacy of the documentation is the subject of dispute, an action for attorney malpractice accrues on entry of adverse judgment, settlement, or dismissal of the underlying action" because "[i]t is at this point that the former client has discovered the fact of damage and suffered 'actual injury' due to the malpractice under Section 340.6."14 However, in Jordache the court conceded that ITT "cannot be reconciled with the particularized factual inquiry required to determine actual injury under Section 340.6" in accord with its prior decisions. 

In ITT the defendant attorney had prepared a promissory note and loan documents to give the plaintiff lender various security interests. The borrower proceeded to file for bankruptcy and instituted an adversary proceeding challenging the adequacy of the documents to protect the security interests. The lender retained counsel to defend the sufficiency of the documents in the adversary proceeding. Two years later the lender settled with the debtor, receiving less than the full value of its security. The ITT court ruled that actual injury did not occur until the settlement, but in Jordache the court recognized that the actual injury in ITT occurred when the lender incurred attorney's fees defending the negligently prepared documents. 

The attorney defendants in Jordache were alleged to have failed to advise the plaintiff client about liability insurance benefits covering a third party's suit against the client and did not assert a timely claim on the client's behalf. The plaintiff contended that actual injury occurred when the plaintiff settled an action against the insurer for less than the full benefits to which the plaintiff was entitled. However, the court disagreed and held that actual injury occurred when the client incurred attorney's fees defending against the insurers' assertion that the insurance claim was untimely. Thus, actual injury occurred on the first date that the client incurred economic injury that could be recovered in a legal malpractice case. 

Actual injury as a result of the attorney's breach of duty may occur when a decision adverse to the client is reached by a court or issued by a governmental agency. Actual injury occurs when a client incurs attorney's fees in an effort to correct what the negligent attorney did or failed to do, or when a settlement is reached, or when a foreclosure takes place. Under the statute the client has one year from the date on which the actual injury took place to file the action. 

If the allegedly negligent attorney continued to represent the client after the malpractice or even the actual injury occurred, the statute of limitations is tolled so long as the attorney-client relationship continues. Although this appears to be a simple principle, appearances are deceiving. For example, in one case the court held that, in a litigation matter, the filing and serving of a substitution-of-attorney form is not necessary for the termination of the attorney's representation of the client. If and when the client intends the representation to be terminated is the determining factor, unless the attorney continues to render legal services.15 Section 340.6 also is tolled if the attorney conceals the act of malpractice from the client despite the attorney's duty to inform the client of its occurrence (although the case law is limited on this point).16 

Many legal malpractice cases are barred by the statute of limitations by the time the client approaches an attorney for an evaluation, and many others are a close call. For this reason, the analysis of whether the action is time barred should be made early in the process of determining whether to represent a client in a legal malpractice case. 

Substantial Damages 
Legal malpractice cases usually are hard fought, and the causation element alone ensures that a single case can become two cases in one. Since legal malpractice cases thus tend to be time-consuming and expensive, they are not worth pursuing unless substantial damages can be proved. Damages that are less than $100,000 usually are insufficient unless the potential case is unusually simple or there are additional aspects of the case (such as fraud or conversion) that could establish viable claims for punitive damages or damages for emotional distress. In the garden-variety legal malpractice case, the plaintiff cannot recover damages for emotional distress17 or punitive damages, and intentional conduct is required for punitive damages.18 If punitive or emotional distress damages are needed to justify the economic viability of a case, it is critical to ascertain that the case involves the existence of actionable conduct in addition to mere negligence. 

Perhaps, as a result of an attorney's negligence, a client was forced to settle a case for an amount less than what the client would have otherwise settled for. The attorney may have delayed filing the complaint (arguably creating a statute-of-limitations defense), or failed to raise a meritorious legal theory, or neglected to uncover a material fact or witness favorable to the client. Damages probably cannot be recovered for the difference between what the underlying case settled for and the result that would have been achieved if the attorney had performed competently, because a determination of how a case might have been resolved under different circumstances is too speculative. An attorney would most likely need to prove that if the case had been tried under the circumstances of a timely filing of the complaint or the additional legal theory, fact, or witness had been presented, the plaintiff would have won the case-and the damages would be the difference between the amount of the settlement and the amount of the award that the trier of fact concludes the plaintiff would have received. 

Breach of Duty 
The attorney's duty is breached when the attorney fails to use a degree of care, skill, or knowledge that is commonly possessed and used by other attorneys in the community,19 which is defined as statewide and indeed may be nationwide. An attorney would have difficulty carrying the burden of persuading a court or jury that the standard of care in the attorney's community is lower than statewide or nationwide standards. To some degree, evaluating a case requires the attorney considering the representation to have an opinion as to whether the potential client's prior attorney performed below the requisite standard of care. However, in all but the most obvious cases, attorneys should discuss the facts objectively with at least one other attorney on this issue. If the case is filed, an expert witness will have to be retained to testify that the prior attorney performed below the requisite standard of care. A few dollars spent before the case is filed to determine if a qualified expert would give such an opinion will bring dividends later on. The expert also may have some ideas that could be used during discovery. 

The so-called attorney judgment rule frequently comes into play in the breach-of-duty analysis. Under the attorney judgment rule, a common law doctrine,20 an attorney is performing within the standard of care if he or she simply exercises reasonable judgment on a matter, even if that judgment turns out to be erroneous.21 The rule similarly applies to an error of judgment on an unsettled proposition of law (or a settled proposition of law that is not reasonably determinable), as well as an error in tactical judgment.22 The plaintiff seeking to pursue a claim of legal malpractice has a heavy burden to bear if the plaintiff's prior attorney had simply made a strategic decision that turned out to be wrong. Indeed, the plaintiff must show that the attorney did not exercise reasonable judgment, which is determined by whether or not the decision would have been made by any reasonable attorney under the same set of circumstances. 

However, a case that involves attorney judgment should not be automatically rejected. A careful analysis is necessary. For example, unreasonable judgment would seem to be present if an attorney subjects the client to an undue risk by taking action on the client's behalf that is affected by an unsettled law-especially if the attorney does not advise the client of the risk as well as the uncertainty of the law. Cases in this area often will turn on whether the attorney advised the client sufficiently with enough information for the client to make an informed decision. For example, the law may be uncertain as to whether certain activities require a state license. An attorney performs below the standard of care if the attorney does not advise the client that 1) the law is unsettled, 2) the client's activities may require a state license, and 3) if the client does not obtain a state license and a court ultimately determines a license was necessary, the client will not be able to recover unpaid compensation. 

The attorney judgment rule would not be a defense when an attorney fails to interview or depose a witness that any reasonable attorney would have interviewed or deposed23-even though decisions on taking depositions are strategic. The attorney judgment rule is meant to prevent Monday morning quarterbacks from critiquing an attorney who exercised reasonable, but flawed, judgment.24 Courts will probably grant motions for nonsuit in such cases. 

Breach of duty frequently arises when an attorney represents a client in an area of law that is usually practiced by specialists (though not necessarily recognized as a specialty by the State Bar). The attorney has a duty to perform in accordance with the standards performed by specialists, whether or not the attorney is qualified as such. Nonspecialist attorneys have the duty to consult with a specialist, or they must educate themselves so that they will acquire the same knowledge possessed by a specialist.25 

The so-called negligent entrustment theory also may emerge in the course of a breach-of-duty analysis. When an attorney refers a client to another attorney, the referring attorney may be liable for the other attorney's negligence if the referring attorney, in the exercise of reasonable care, knew or should have known that the referred-to attorney would act incompetently or was not competent to undertake the representation.26 In addition, attorneys who have a consulting, referring, or of-counsel relationship may be liable under some circumstances for each other's negligence.27 The failure to execute, file, and serve substitutions of attorney when a case is referred to another attorney may be evidence of a continuing duty to the client that may result in a failure to act that, in turn, constitutes a breach of duty. Likewise, an attorney's failure to inform a client in a transactional matter that the attorney is no longer working on the matter could constitute evidence of a continuing duty, and a failure to act would be a breach of that duty. 

In the typical legal malpractice case, duty is not an issue, because the attorney-client relationship establishes the necessary duty. However, if an act or omission occurs and the potential defendant has not yet begun the representation or has terminated the representation, no duty arises. There are several factors that must be considered in determining whether an attorney-client relationship exists in unusual circumstances. Further, an attorney may have a duty to a third party that is not the attorney's client, but extensive research is necessary to evaluate whether the element of duty for a legal malpractice claim can be satisfied.28 

Other Affirmative Defenses 
Other affirmative defenses, in addition to the statute of limitations, have been known to rear their ugly heads in legal malpractice actions. All possible affirmative defenses should be considered and evaluated, particularly those that arise most frequently: 

  • Comparative negligence.29       
  • Mitigation of damages.      
  • A provision in the written retainer agreement that requires the arbitration of legal malpractice actions.30       
  • An offset claim, such as the defendant attorney's claim against the client for unpaid fees.      
  • Standing (raised when there is a question whether the plaintiff and the defendant had an attorney-client relationship).      
  • Unclean hands.31       
  • Collateral estoppel.32       
  • A release33 that is effective only after the malpractice has occurred, such as a provision in a settlement for attorney's fees.      
  • Ratification, which occurs when a client learns of his or her attorney's malpractice and engages in conduct that "ratifies" the malpractice as unobjectionable.34
Although it is a time-consuming and burdensome task, an attorney should not take a legal malpractice case unless he or she has reviewed the file of the defendant attorney.35 Clients rarely have a complete understanding of what their former attorneys have done and not done and the reasons for those acts and omissions. Therefore, a review of the file usually reveals facts that the client has not communicated. Rule 3-700(D) of the Rules of Professional Conduct grants clients the absolute right to obtain their files from their former attorneys. An attorney must give the original file promptly to their clients upon request, with a reasonable amount of time permitted for the attorney to make a copy of the file at his or her own expense.36

Insurance Coverage and the Prelitigation Letter 
The decision to sue an attorney who does not have applicable malpractice insurance coverage involves consideration of a variety of factors. Does the attorney have sufficient recoverable assets? Could bankruptcy prevent a substantial recovery? Determining whether the attorney who may have committed legal malpractice has sufficient insurance coverage is a material issue in evaluating whether to pursue a plaintiff's case. Prior to filing a malpractice case, there is usually no means to determine if the attorney is covered by insurance if the attorney does not want to disclose that fact. Also, if an attorney says that he or she does not have insurance coverage, it is not wise to rely on that representation. Of course, it does not hurt to ask, and an affirmative answer is a representation on which it is reasonable to rely, because the attorney is not likely to intentionally misrepresent that fact. Of course, attorneys may believe they are covered when they are not, but that would be unusual. 

One method that could yield the answer to the question of whether the attorney has insurance coverage is the prelitigation letter, which is simply a letter to the attorney who is the potential defendant stating that, based upon the facts related by the attorney's former client, the author of the letter intends to file an action against the recipient for legal malpractice on behalf of the former client. 

The letter should: 

  • Persuasively explain the basis of the action, including how the alleged conduct of the attorney caused damage and the approximate amount of the damage.      
  • State that the investigation is not complete and that the letter itself does not intend to include a complete description of all acts and omissions of malpractice or all damages.      
  • Suggest that the attorney recipient submit a copy of the letter to the attorney's errors and omissions carrier.      
  • Invite the attorney to explain the attorney's position on the matter.
Although a prelitigation letter may elicit silence, a threat to sue for malicious prosecution, or simply a general denial, these responses may nevertheless contain valuable information that could lead to a rethinking of the validity of the client's case. If the attorney's reply mentions that the claim has been submitted to the attorney's carrier, or if the carrier responds directly, then the prelitigation letter will have achieved the result of discovering whether the attorney has malpractice insurance.

When information about the attorney's insurance coverage, or lack thereof, cannot be determined before an action is filed, the potential plaintiff's attorney may still make the decision to bring suit with the knowledge that, as soon as Code of Civil Procedure Section 2030(b) permits, Form Interrogatory 4.1 can be served to require the now defendant attorney to state under oath whether he or she has insurance coverage and if so, the limits of liability. 

Prelitigation letters are a wise tactic-and not only for determining whether an attorney has insurance coverage. A letter gives a client's former attorney the opportunity to explain why the client's contentions are without merit. This chance for the other side to respond will provide evidence of the plaintiff's good faith and absence of malice in the event of a subsequent malicious prosecution case. 

Jury Appeal 
The popularly held belief that juries do not like attorneys may very well be true as a general proposition, but juries also do not like clients who they believe are dishonest or take advantage of attorneys-and they do like some attorneys. Therefore, evaluating the impact that the potential client and the defendant attorney could have on triers of fact as part of the overall decision on whether a legal malpractice case is worth taking should include more than the simple assumption that juries do not like attorneys. If the potential client would be unusually unattractive to a jury for any of the many reasons that people are sometimes unattractive to juries, then the fact that juries generally do not like attorneys may not matter. Further, the defendant attorney may appear extremely likeable, ethical, and professional, in which case the jury may be very reluctant to find that he or she has committed malpractice. 

If the attorney evaluating the malpractice case is not personally acquainted with the potential defendant, it will be impossible to evaluate the extent of the attorney's capacity to sway the jury with a positive demeanor without inquiring of others who may know the attorney (with appropriate confidences kept). The fact that the potential defendant may be well regarded in the legal community as highly competent will be of little significance because juries generally will not know this. 

If an evaluation of all eight elements crucial to a legal malpractice case leads to the conclusion that the potential plaintiff probably can prevail, then it is reasonable to file the action. The elements should be weighed against each other to discover if the difficult burden of proving one element may be countered by the ease of proving another. For example, a tricky and troublesome statute-of-limitations issue may be offset by an extremely strong underlying case or the prospect of very substantial damages. Clearly, a case with both a troublesome statute-of-limitations element and insubstantial damages is not an economical one to bring. 

Thorough evaluations of all potential legal malpractice cases can only lead to fewer unmeritorious cases-not to mention a reduction in the number of disappointed plaintiffs and irate defendants. Society in general, and the legal profession in particular, will be the beneficiaries

1 Claims are being paid nationwide at the rate of $5.8 billion per year, and the average attorney in the nation will submit a claim to his or her carrier three times in a career, according to representatives of CNA, one of the largest underwriters of attorney errors and omissions insurance in the United States. They said that legal malpractice claims are definitely a "growth industry." CNA, Risk Management for Attorneys 7-9 (1997).

2 Neel v. Magaña, Onley, Levy, Cathcart & Gelfand, 6 Cal. 3d 176 (1971). 

3 BAJI 6.37; Wright v. Williams, 47 Cal. App. 3d 802 (1975); Ishmael v. Millington, 241 Cal. App. 2d 520, 523 (1966). 

4 Thomas v. Lusk, 27 Cal. App. 4th 1709 (1994) (a good review of earlier cases); Sukoff v. Lemkin, 202 Cal. App. 3d 740 (1988). 

5 Thompson v. Halvonick, 36 Cal. App. 4th 657 (1995). 

6 4 Mallen & Smith, Legal Malpractice §§32.8 et seq. (4th ed. 1996). 

7 Floro v. Lawton, 187 Cal. App. 2d 657 (1960). 

8 For a discussion of the complexities of the application of the statute of limitations to a legal malpractice action, see Sindell v. Gibson, Dunn & Crutcher, 54 Cal. App. 4th 1457 (1997); Jordache Enterprises, Inc. v. Brobeck, Phleger & Harrison, 18 Cal. 4th 739 (1998); and Robert W. Denton, For Whom the Limitations Toll, Los Angeles Lawyer, Feb. 1999, at 39. 

9 Laird v. Blacker, 2 Cal. App. 4th 606 (1992). 

10 Jordache, 18 Cal. 4th 739; Adams v. Paul, 11 Cal. 4th 583, 588 (1995); Sindell, 54 Cal. App. 4th 1457. 

11 See Denton, supra note 8. 

12 Jordache, 18 Cal. 4th 739. 

13 ITT Small Business Finance Corp. v. Niles, 9 Cal. 4th 245 (1994). 

14 Id. at 258. 

15 Hensley v. Caietti, 13 Cal. App. 4th 1165 (1993); Baltins v. James, 36 Cal. App. 4th 1193 (1995). 

16 Code Civ. Proc. §340.6(a)(3); Bustamante v. Haet, 222 Cal. App. 2d 413 (1963). 

17 Merenda v. Superior Court, 3 Cal. App. 4th 1 (1992). 

18 Civ. Code §3294. 

19 BAJI 6.37. 

20 See Stanley v. Richmond, 35 Cal. App. 4th 1070 (1995). 

21 2 Mallen & Smith, supra note 6, §§17.1-17.18. 

22 Smith v. Lewis, 13 Cal. 3d 349 (1975); Kirsch v. Duryea, 21 Cal. 3d 303 (1978). See also 2 Mallen & Smith, supra note 6, §§17:1-17:18. 

23 See, e.g., Woodruff v. Tomlin, 616 F. 2d 924 (6th Cir 1980). 

24 See 2 Mallen & Smith, supra note 6, §17.14. 

25 Horne v. Peckham, 97 Cal. App. 3d 404 (1979); Wright v. Williams, 47 Cal. App. 3d 802 (1975); Ishmael v. Millington, 241 Cal. App. 2d 520, 523 (1966); Cal. Rules of Professional Conduct Rule 3-110; Smith, 13 Cal. 3d 349. 

26 Horne, 97 Cal. App. 3d 404. 

27 1 Mallen & Smith, supra note 6, §5.9. 

28 For cases on the issues that arise regarding the formation of the attorney-client relationship, see Corcoran v. Arouh, 24 Cal. App. 4th 310, 315-16 (1994); Neel v. Magaña, Onley, Levy, Cathcart & Gelfand, 6 Cal. 3d 176, 181 (1971); Houston General Ins. Co. v. Superior Court, 108 Cal. App. 3d 958, 964 (1980); Malloy v. Fong, 37 Cal. 2d 356, 372 (1951); Farnham v. State Bar, 17 Cal. 3d 605, 612 (1976); Kane, Kane & Kritzer, Inc. v. Altagen, 107 Cal. App. 3d 36, 40 (1980); Brandlin v. Belcher, 67 Cal. App. 3d 997, 1001 (1977); Fox v. Pollack, 181 Cal. App. 3d 954, 959 (1986); Beery v. State Bar, 43 Cal. 3d 802, 811-12 (1987); Miller v. Metzinger, 91 Cal. App. 3d 31, 39 (1979). 

29 A client may be held comparatively negligent in a legal malpractice case under appropriate facts and circumstances. Theobald v. Byers, 193 Cal. App. 2d 147, 150 (1961); Kirsch v. Duryea, 21 Cal. 3d 303 (1978); Martin v. Hall, 20 Cal. App. 3d 414 (1971); 2 Mallen & Smith, supra note 6, §§20.1 et seq. 

30 See Powers v. Dickson, Carlson & Campillo, 54 Cal. App. 2d 1102 (1997). 

31 A client who sued his or her lawyer for legal malpractice after the client committed perjury because the client's lawyer allegedly told the client to lie was barred from recovery by the doctrine of unclean hands. Blain v. Doctor's Co., 222 Cal. App. 3d 1048 (1990). 

32 Briggs v. Lawrence, 230 Cal. App. 3d 605 (1991); Ruffalo v. Patterson, 234 Cal. App. 3d 341 (1991). 

33 Donnelly v. Ayer, 183 Cal. App. 3d 978, 984 (1986). 

34 For example, an attorney includes a provision in a contract that the client later contends was contrary to the client's interests and therefore constituted negligence on the attorney's part. If the meaning and effect of the provision would be clear to a nonlawyer, and the client after reading the provision signed and performed the contract, the attorney could argue that the client ratified the alleged negligence. The affirmative defense of assumption of the risk also could be applicable. See 2 Mallen & Smith, supra note 6, §§20.2 and 20.3. 

35 Of course, this step may have to be eliminated if the statute of limitations is about to run and the client does not yet have the file. 

36 See the discussion under Cal. Rules of Professional Conduct Rule 3-700(D).

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