Claims against professional advisers follow a common structure across
professions.
Duty. To the client, arising from the engagement. To non-clients only in
narrow circumstances — where the professional knew the work was for the
non-client’s benefit and guidance, which is the negligent misrepresentation
route.
Standard of care. What a reasonably prudent practitioner in the field would
have done in the circumstances, established by expert testimony in nearly all
cases.
Causation. The most difficult element. In legal malpractice, the case within
a case: the claimant must prove that but for the negligence, the underlying
matter would have had a better outcome, and that the resulting judgment would
have been collectable.
Damages. Actual loss, with lost opportunity and consequential damages
subject to the usual limits. Fee disgorgement in cases of breach of fiduciary
duty.
Limitation. Occurrence or discovery depending on the state, with continuous
representation tolling in several jurisdictions and statutes of repose in
others.
Defenses. Comparative fault of the client, judgmental immunity for
reasonable choices among strategies, the client’s own decisions, and failure to
mitigate.
Certificates of merit required at filing in many states, with dismissal for
non-compliance.
