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South Texas Law Review





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Attorneys, like all professionals, face civil liability when their action or inaction causes harm to a client. When an attorney fails the client, the claim most often asserted, and the claim that is typically most appropriate, is a legal malpractice claim. A legal malpractice claim is based on negligence.' Thus, the elements of a legal malpractice claim are (1) a duty, (2) a breach of that duty, (3) the breach proximately caused injury to the plaintiff, and (4) damages occurred.

Still, attorneys find themselves in a different circumstance than the average litigant. An attorney is not responsible for the client's underlying

harm. The attorney represents the client who is opposite another party in litigation or negotiation, and it is often the other person in the lawsuit, arbitration, or negotiation who causes the underlying harm. Maybe the other side caused an auto accident or took advantage of the client in a business deal. When the client turns on the attorney for a harm caused by another, which the attorney allegedly could have prevented, the attorney has a form of derived responsibility for not protecting the client or obtaining for the client the best recovery.

Sometimes the attorney, as a zealous advocate for the client in transactional work and litigation, may offend the other side-leading to hard feelings and the occasional lawsuit by someone the attorney never represented.

This paper examines a few defenses that, for the most part, are specific to attorneys when they find themselves as a defendant instead of an advocate.



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