[textbook]Traversing the Ethical Minefield Problems, Law, and Professional Responsibility by Susan R. Martyn (z-lib.org)(1) (1)

which occurred in Togstad and Sickler, commonly allege legal malpractice and usually
require expert testimony.
To establish legal malpractice, Togstad, Sickler, and Bayview agree that a plaintiff must
prove four elements: the existence of a client-lawyer relationship, breach of a professional
duty of care, causation (actual and proximate), and damages. 10 The requirement that a
plaintiff establish a relationship with the professional is an application of the Palsgraf rule
that the plaintiff must be foreseeable, or in other words, must be one to whom a duty is
owed. 11 Expert testimony is not only admissible but is almost always required to establish
breach of the standard of care. Causation rules may be modified due to the special expertise
of professionals or the kind of harm professional lapses can cause. Finally, proof of damages
often requires more precision than that demanded by ordinary negligence cases.
Professional-Client Relationship A breach of fiduciary duty or malpractice suit requires a
showing of a professional relationship that creates a professional duty. In Bayview, there was
no dispute that an express client-lawyer relationship existed, because the law firm expressly
agreed to represent an identified client. Togstad illustrates how courts also can find implied
client-lawyer relationships when prospective clients reasonably rely on a lawyer’s legal
advice. 12 Sickler illustrates how a lawyer’s duty extends to those who are direct and
intended beneficiaries of the client and reasonably rely on the lawyer’s assistance. 13
Breach of a Professional Duty A plaintiff must prove not only that a client-lawyer
relationship existed, but also that it existed with respect to the acts or omissions that form
the basis of a malpractice suit. This rule recognizes that client and lawyer, within limits, can
agree to limit the scope of representation to certain specific matters. 14
Once both the client-professional relationship and the scope of representation are
established, courts require lawyers to “exercise the competence and diligence normally
exercised by lawyers in similar circumstances.” 15 Because jurors usually lack familiarity with
what a particular professional should do, this general malpractice standard requires expert
testimony to establish the required standard of care. 16 Lawyers are granted professional
discretion, but only within the range of choices made by reasonably competent
practitioners under similar circumstances. 17 When experts disagree (as they did in Togstad
and Sickler), the jury decides the appropriate standard of care.
Because lawyers are professionals licensed by the state, any lawyer licensed in the same
jurisdiction can give expert testimony which will be admissible. 18 Violations of the Rules of
Professional Conduct are relevant and admissible to prove a breach of the professional
standard of care, but do not constitute negligence per se. 19 Lawyers also have been held
responsible for failing to understand the intricacies of a specialized task, or for failing to
refer to a specialist who can competently provide the specialized service. 20 Specialty
designations can be established by state regulations, or by expert testimony of a lawyer who
claims to practice in a specialized area. 21
In legal malpractice actions, courts recognize three common knowledge exceptions for
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