Being a defendant to a legal-malpractice lawsuit can be overwhelming. Even though lawyers routinely are involved in legal disputes on behalf of clients, it can feel very personal when a former client alleges that their lawyer committed an error or breach.

Lawyers receiving a malpractice claim might want to respond to the complaint aggressively and immediately, but in doing so they may prove the adage about the lawyer who represents themselves. In truth, legal-malpractice lawsuits are unlike other types of claims and have unique defenses that, if not known to the defendant, can be waived or unused.

Working with defense counsel and insurers experienced in legal-malpractice cases is a strong asset in these situations. But here are some common defenses to consider in these scary situations.

Is There Causation?

One of the biggest misconceptions about legal-malpractice claims is that a serious breach by a lawyer is enough to prove malpractice as a matter of law. However, even if a lawyer committed an obvious error or violated an ethical duty, liability is not automatic. That is because malpractice claims require not only evidence of “breach” but also that the breach caused the plaintiff’s damages. For that reason, a lack of causation is one of the most common and successful defenses to legal-malpractice allegations.

The plaintiff is typically also required to prove that but for the attorney’s error, the plaintiff’s injury would not have occurred. In litigation matters, that requires evidence that the plaintiff would have won the case for which they hired the defendant lawyer.

This is commonly referred to as proving the “case within a case.” For attorney-defendants, litigating issues of causation sometimes turns the focus away from the lawyer’s conduct and shifts to the merits of that underlying case. Similar causation issues arise when errors are alleged in transactional or regulatory matters.

For this reason, lawyers should not admit “liability” for malpractice—even if presented with overwhelming evidence of a mistake or serious error. Indeed, an error without causation generally will not sustain a claim for malpractice.

Professional Judgment Rule

Another unique defense is the judgmental immunity doctrine, also known as the professional judgment rule. This doctrine typically protects a lawyer’s well-exercised judgment, notwithstanding the outcome, where those decisions are based on the lawyer’s reasonable and professional judgment.

For example, a lawyer may decide not to pursue a particular strategy in litigation, or may decide to include or omit a specific term in a contract. With the benefit of hindsight, clients may allege that some of these judgment calls constituted errors that adversely affected the outcome of the case.

Typically this defense does not protect against overlooked errors or strategic decisions that are contrary to existing law. But otherwise, when making strategic recommendations to clients based on the lawyer’s professional experience, lawyers who document their advice and the basis for the same may be better situated to rely on this defense.

Then, if the strategy does not work out, and the client brings a malpractice lawsuit, a well-documented strategic decision may help the lawyer invoke the judgmental immunity doctrine.

Jurisdiction-Specific Defenses

Another trick of the trade is to review whether there are any procedural or jurisdiction-specific requirements for a legal-malpractice action. Some states have specific rules for legal-malpractice cases that are not required for other types of suits.

For example, in states like Georgia, legal-malpractice plaintiffs are required to attach to their initial pleading an affidavit from an expert specifying at least one negligent act committed by the lawyer. Other states have similar requirements. Courts have noted that the goal of these types of statutes is to reduce the number of frivolous malpractice suits being filed—and the failure to include an affidavit when necessary can be fatal to the claim. Thus, a defendant to a legal-malpractice action in one of these states can consider a motion to dismiss if the plaintiff failed to submit the required affidavit or if the affidavit was not compliant with the statute.

Another issue that can come up in the early stages of a case is assignability. In many jurisdictions, legal-malpractice cases are not assignable due to the unique nature of the attorney-client relationship. Therefore, a legal-malpractice complaint that is predicated on a purported assignment of rights may also support early motions practice.

What Was the Scope of the Underlying Representation?

Sometimes a lawyer may dispute whether they were actually responsible for the representation or the issue in which the error is alleged. For example, a lawyer hired to handle an asset purchase agreement may later dispute whether the representation extended to tax advice related to the transaction.

In these situations, the engagement letter for the matter may be strong evidence to defend against the claim. Engagement letters can be used to define the client (and, by exclusion, who is not a client), as well as the scope of the representation, in accordance with ABA Model Rule of Professional Conduct 1.2(c) (“A lawyer may limit the scope of the representation if the limitation is reasonable under the circumstances and the client gives informed consent”).

If a party who is not a client files suit or if a client sues a lawyer for a failure to do a task that was outside the scope of the representation, the lawyer may use the engagement letter to rebut those allegations. Courts have granted motions to dismiss or for summary judgment where a complaint alleges a lawyer owed duties outside those defined in the engagement letter. And conversely, if the engagement letter is exceedingly broad, an expanded set of duties may be assumed (potentially precluding an early dismissal).

Working with a lawyer who routinely defends legal-malpractice actions is the best way for an attorney to successfully navigate a legal-malpractice lawsuit. But by being aware of some of these insider tips, lawyers facing a claim can avoid making the situation worse.