WPI 107.00 Introduction

Three categories of legal malpractice actions. Legal malpractice actions may be based on three distinct theories: negligence; breach of fiduciary duty; and breach of contract. See Bowman v. Two, 104 Wn.2d 181, 187, 704 P.2d 140 (1985) (legal malpractice actions may be framed either as a tort or a breach of contract); Shoemake v. Ferrer, 143 Wn.App. 819, 831–32, 182 P.3d 992 (2008) (legal malpractice actions may be based on breach of fiduciary duty), affirmed on other grounds at 168 Wn.2d 193, 225 P.3d 990 (2010); Kelly v. Foster, 62 Wn.App. 150, 154–55, 813 P.2d 598 (1991) (legal malpractice may be based on breach of fiduciary duty); DeWolf & Allen, 16 Washington Practice, Tort Law & Practice § 16.28 (4th ed.) (addressing tort and breach of contract); Mallen, 1 Legal Malpractice § 8:1 (2017 ed.) (addressing negligence, breach of fiduciary duty, breach of contract, and fraud).

The three types of legal malpractice actions, although related, have important differences. For example, negligence-based actions and fiduciary-based actions both sound in tort, and in most cases the two causes of action have similar elements. The third type of malpractice action has entirely different elements, which are based on contractual principles rather than tort principles. In these contract-based actions, the plaintiff must prove a failure to perform a contractual term, rather than negligent performance of the contract. See DeWolf & Allen, 16 Washington Practice at § 16.28 (4th ed.); Owens v. Harrison, 120 Wn.App. 909, 915–16, 86 P.3d 1266 (2004).

Organization of chapter. Instructions for the most common type of legal malpractice action, those based on negligence, are provided in WPI 107.01 through 107.08. Legal malpractice actions alleging a breach of fiduciary duty are addressed in three instructions. See WPI 107.09 through 107.11. Legal malpractice actions based on a breach of contract are not covered in this chapter; instructions for these actions can be adapted from the pattern jury instructions for contract cases found in WPI Chapters 300 through 303.

Questions of law and fact. The standard of care is usually addressed by the judge as a matter of law in pre-trial motions, rather than by the jury. In some cases, questions of fact may need to be resolved by the jury. The Comments for several instructions address issues of law and fact.

Alignment of parties. Legal malpractice claims sometimes are asserted by the defendant, rather than by the plaintiff, such as when a client brings a counterclaim to an attorney's action to collect a fee. For such cases, the blank lines designated “(name of plaintiff)” and “(name of defendant)” will need to be filled in with the other party's name.

Statute of limitations. The type of malpractice action can also determine the applicable statute of limitations. A three-year limitation period applies to legal malpractice actions that are based on negligence or breach of fiduciary duty. RCW 4.16.080(3); Davis v. Davis Wright Tremaine, L.L.P., 103 Wn.App. 638, 644–55, 14 P.3d 146 (2000) (negligence); Meryhew v. Gillingham, 77 Wn.App. 752, 755, 893 P.2d 692 (1995) (fiduciary duty); Simburg, Ketter, Sheppard & Purdy, L.L.P. v. Olshan, 109 Wn.App. 436, 447, 988 P.2d 467 (1999) (fiduciary duty). A six-year limitation period, however, applies to malpractice actions that are based on written contracts. See RCW 4.16.040 (statute of limitation for actions based on written contract); Davis v. Davis Wright Tremaine, L.L.P., 103 Wn.App. at 649–55 (six-year statute applies to legal malpractice actions that arise out of express or implied terms of a written contract; three-year statute applies to legal malpractice actions that are based on negligence).

Washington follows the discovery rule for negligence-based legal malpractice claims, so that the statute of limitations does not start to run until the client discovered, or in the exercise of reasonable diligence should have discovered, the facts that give rise to his or her malpractice claim. Peters v. Simmons, 87 Wn.2d 400, 406, 552 P.2d 1053 (1976). Also, the Court of Appeals has adopted the continuous representation rule, which tolls the statute of limitations until the end of the attorney's representation of the client in the same matter from which the malpractice arose, even if the client had earlier knowledge of the facts giving rise to his or her malpractice claim. Hipple v. McFadden, 161 Wn.App. 550, 557–58, 255 P.3d 730 (2011); Janicki Logging & Constr. Co. v. Schwabe, Williamson & Wyatt, P.C., 109 Wn.App. 655, 662–63, 37 P.3d 309 (2001).

Jury instructions usually are not needed for statute of limitations issues. These issues frequently are resolved by summary judgment as a matter of law. If factual issues preclude summary judgment, then jury instructions can be drafted to fit the applicable statute and the facts of the case. For example, when the applicable statute is RCW 4.16.080 (which sets a three-year limitation period and has a discovery rule), and when the facts of the case do not trigger the continuous representation rule, the following approach could be used:

The instruction, or a companion instruction, would need to set forth the essential elements.

Reference. For further discussion of the applicable statutes of limitations, see DeWolf & Allen, 16 Washington Practice, Tort Law and Practice § 16.35 (4th ed.) (includes discussion of the discovery rule and the continuous representation rule).

Consumer Protection Act (CPA) claims. A legal malpractice claim may be accompanied by a CPA claim. Pattern jury instructions for CPA cases are found in WPI Chapter 310. The CPA applies to the entrepreneurial aspects of a law practice. See the Comment to WPI 310.09 (Definition—Trade or Commerce).

Criminal defense cases—Distinction between legal malpractice and ineffective assistance of counsel. The standard for a legal malpractice case in the handling of a criminal case differs markedly from the standard for a claim of ineffective assistance of trial counsel in the appeal of a conviction. An ineffective assistance of counsel claim on an appeal of a criminal conviction involves a significantly lesser standard and the case law discussing that standard is not applicable in a legal malpractice context. For a discussion of the requirements for proving ineffective assistance of counsel, see generally In re Crace, 174 Wn.2d 835, 840, 280 P.3d 1102 (2012), and State v. Reichenbach, 153 Wn.2d 126, 130, 101 P.3d 80 (2004).

By comparison, for a claim of legal malpractice at a criminal trial, the convicted defendant must prove actual innocence by a preponderance of the evidence. See Ang v. Martin, 154 Wn.2d 477, 482–86, 114 P.3d 637 (2005). The actual innocence requirement does not apply when the alleged malpractice results in an unlawfully excessive sentence following a guilty plea. Powell v. Assoc. Counsel for Accused, 131 Wn.App. 810, 129 P.3d 831 (2006).

The actual innocence requirement does apply when the alleged malpractice consists of a delay in resentencing a defendant following an appellate ruling that his offender score had been incorrectly calculated. Since the term of confinement at resentencing remained within the broad discretion of the trial judge, Powell, which concerned a wholly illegal sentence, was distinguishable. Piris v. Kitching, 185 Wn.2d 856, 375 P.3d 627 (2016).

Limited License Legal Technicians (LLLT). In 2013, the Washington Supreme Court authorized the limited practice of law by Limited License Legal Technicians (LLLT). APR 28. The purpose of the rule is “to authorize certain persons to render limited legal assistance or advice in approved practice areas of law.” APR 28(A).

These pattern instructions seem applicable to Limited License Legal Technicians (LLT), within the scope of the limited license to practice law under APR 28. If an LLLT is the alleged negligent professional rather than an attorney, the instructions may need to be modified. See APR 28 and LLLT RPC. No case law is available as of the publication of this edition of the pattern instructions.