WPI 107.04 Legal Malpractice—Negligence—Standard of Care

Use this instruction in all cases involving a claim against an attorney for professional negligence. Do not use WPI 10.01 (Negligence—Adult—Definition); the ordinary definition of negligence should not be used in a malpractice case.

Use WPI 107.06 (Legal Malpractice—Negligence—Burden of Proof) with this instruction.

Use the bracketed final sentence only if the jury could reasonably interpret the evidence to mean that a poor outcome proves that the attorney was negligent.

In appropriate cases, language regarding the exercise of judgment may be added to this instruction. For further discussion, see the Comment.

Contours of the standard of care. The elements of a legal malpractice action are: duty of care; breach of the duty; proximate cause; and damages. Hizey v. Carpenter, 119 Wn.2d 251, 260–61, 830 P.2d 646 (1992); Stangland v. Brock, 109 Wn.2d 675, 679, 747 P.2d 464 (1987). A state-wide standard of care applies to Washington attorneys. Hizey v. Carpenter, 119 Wn.2d at 261; Cook, Flanagan and Berst v. Clausing, 73 Wn.2d 393, 396, 438 P.2d 865 (1968); see also Mallen, 2 Legal Malpractice § 20:6 (2017 ed.) (summarizing the law from other jurisdictions and concluding that a state-wide standard is the most logical and commonly used approach).

Poor legal outcome. The instruction includes a bracketed sentence indicating that a poor legal outcome, by itself, does not establish an attorney's negligence. An attorney

Cook, Flanagan and Berst v. Clausing, 73 Wn.2d 393, 395, 438 P.2d 865 (1968); Ward v. Arnold, 52 Wn.2d 581, 584, 328 P.2d 164 (1958); Bank of Anacortes v. Cook, 10 Wn.App. 391, 400, 517 P.2d 633 (1974).

Exercise of judgment. Practitioners will need to decide in a particular case whether it would be appropriate to supplement this instruction to address the exercise of judgment, or whether it would be preferable to simply instruct the jurors on the general standard of care for attorneys. Any instructional language on this issue must be carefully considered. See generally Cook, Flanagan and Berst v. Clausing, 73 Wn.2d at 396; Clark County Fire Dist. No. 5 v. Bullivant Houser Bailey P.C., 180 Wn.App. 689, 324 P.3d 743; Halvorsen v. Ferguson, 46 Wn.App. 708, 735 P.2d 675 (1986); see also Mallen, 2 Legal Malpractice § 19:1 et seq. (2017 ed.) (discussing cases from other jurisdictions).

Rules of Professional Conduct. The Rules of Professional Conduct (RPC) do not alone create the standard of care for malpractice liability, and violation of the RPC does not give rise to an independent cause of action for negligence. See Hizey v. Carpenter, 119 Wn.2d 251, 258–59, 830 P.2d 646 (1992); Mallen, 2 Legal Malpractice § 20:11 (2017 ed.) (concluding that the general rule in other jurisdictions is that violation of an ethics rule alone does not create a cause of action). The standard of care that applies to a particular case may or may not be based on language from the RPCs, depending on the circumstances at issue. Hizey v. Carpenter, 119 Wn.2d at 262. An instruction that uses language from the RPCs must not identify the RPCs as its source; doing so could mislead jurors into concluding that a violation of the RPCs by itself constitutes malpractice. Hizey v. Carpenter, 119 Wn.2d at 265–66. Similarly, an expert may testify using language from the RPC but may not directly refer to the RPC. Hizey v. Carpenter, 119 Wn.2d at 265–66; Hetzel v. Parks, 93 Wn.App. 929, 935, 971 P.2d 115 (1999). See also Eriks v. Denver, 118 Wn.2d 451, 824 P.2d 1207 (1992) (whether there has been a violation of the RPC is a question of law and not of fact.)

Expert testimony. Expert testimony is generally required to establish whether there has been a breach of the applicable standard of care in a legal malpractice action, unless the alleged breach of the standard of care is a matter within the common knowledge of laypersons. Walker v. Bangs, 92 Wn.2d at 858; Geer v. Tonnon, 137 Wn.App. 838, 850–51, 155 P.3d 163 (2007). Accord Slack v. Luke, 192 Wn.App 909, 916–17, 370 P.3d 49 (2016).

Standard of care for non-lawyers who are practicing law. Non-attorneys who engage in an unauthorized or unlicensed practice of law are held to the same standard of care as attorneys. Bowers v. Transamerica Title Ins. Co., 100 Wn.2d 581, 586–89, 675 P.2d 193 (1983); Burien Motors, Inc. v. Balch, 9 Wn.App. 573, 577–78, 513 P.2d 582 (1973). In a case against a non-lawyer who is attempting to practice law and allegedly commits what would be malpractice for a lawyer, this instruction should be modified to reflect the non-lawyer's status and explain that the standard of care for attorneys applies nonetheless.

Certain categories of para-professionals are authorized but not licensed to prepare legal documents; whether the attorney standard of care applies to a person who assists another with a legal matter is decided on a case-specific basis. Compare In re Marks, 91 Wn.App. 325, 335, 957 P.2d 235 (1998) (non-attorney friends of plaintiff helped prepare plaintiff's will; Court of Appeals found that this constituted the practice of law and attorney standard of care applied) with In re Estate of Knowles, 135 Wn.App. 351, 143 P.3d 864 (2006) (merely filling out a pre-printed will form does not constitute practice of law); In re Shepard, 169 Wn.2d 697, 239 P.3d 1066 (2010) (holding that an attorney acted unethically when he allowed non-attorneys to discuss with clients the costs and benefits of living trusts and to select specific living trust documents for the clients); but see Cultum v. Heritage House Realtors, Inc., 103 Wn.2d 623, 694 P.2d 630 (1985) (holding that licensed real estate brokers or licensed salespersons are authorized to complete lawyer-prepared earnest money agreements, provided that in doing so they comply with the standard of care of an attorney).

See WPI 107.00 (Introduction) concerning Limited License Legal Technicians.

References. General discussions of an attorney's standard of care are found in DeWolf & Allen, 16 Washington Practice, Tort Law & Practice § 16.31 (4th ed.), and in Mallen, 2 Legal Malpractice, Chapter 20 (2017 ed.).