California Landmark Cases Addressing Legal Malpractice

To state a cause of action for legal malpractice, a plaintiff must plead "(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." (Coscia v. McKenna & Cuneo (2001) 25 Cal.4th 1194, 1199 108 Cal. Rptr. 2d 471, 25 P.3d 670.) " ' "A key element of any action for professional malpractice is the establishment of a duty by the professional to the claimant. Absent duty there can be no breach and no negligence." ' " (Moore v. Anderson Zeigler Disharoon Gallagher & Gray (2003) 109 Cal.App.4th 1287, 1294 135 Cal. Rptr. 2d 888 (Moore).) Whether a lawyer sued for professional negligence owed a duty of care to the plaintiff "is a question of law and depends on a judicial weighing of the policy considerations for and against the imposition of liability under the circumstances." (Goodman v. Kennedy (1976) 18 Cal.3d 335, 342 134 Cal. Rptr. 375, 556 P.2d 737; see Osornio v. Weingarten (2004) 124 Cal.App.4th 304, 319 21 Cal. Rptr. 3d 246 (Osornio) "the existence of the attorney's duty of care owing to the plaintiff is generally a question of law that may be addressed by demurrer".) The traditional rule in California, as in other jurisdictions, was an attorney could be held liable only to his or her client with respect to actions based on professional negligence. (See, e.g., Buckley v. Gray (1895) 110 Cal. 339, 342-343 lack of privity of contract precludes a lawyer's liability to an intended beneficiary for negligence in drafting a will and directing its execution.) "It was reasoned that there could be no recovery for mere negligence where there was no privity by contract or otherwise between the defendant and the person injured." (Lucas, supra, 56 Cal.2d at p. 588; see generally Goodman v. Kennedy, supra, 18 Cal.3d at pp. 342-344.) In Goodman v. Kennedy, supra, 18 Cal.3d at page 344, the Supreme Court explained that, in evaluating whether recognizing a cause of action for negligence would impose an undue burden on the profession, the courts should also consider whether imposing liability would impinge on the lawyer's ethical duties to his or her client. (See Moore, supra, 109 Cal.App.4th at p. 1295; Boranian v. Clark (2004) 123 Cal.App.4th 1012, 1019 20 Cal. Rptr. 3d 405.)