Legal Malpractice in PA: What Is It, Really?
To sue anyone for money in Pennsylvania, the party bringing suit needs two things: (1) a valid claim for negligence or breach of contract, for example, and (2), the plaintiff must commence suit within the appropriate statute of limitations: 2 years for negligence, 4 years for breach of contract.
So What, Then, is “Legal Malpractice”?
Your claim against your lawyer could be construed as one for breach of contract or negligence.
On the one hand, when you hired your lawyer, you retained him (or her) pursuant a contract for representation. In fact, the rules require lawyers to put in writing every agreement for representation. See PA Rule 1.2(c), requiring a client’s informed consent to representation, which must be in writing.
That said, contact or no written contract, every lawyer has a common law duty to his client to exercise professionalism or due care, i.e., he shall not be “negligent.” Guy v. Liederbach, 459 A.2d 744, 501 Pa. 47 (1983).
So a claim for legal malpractice sounds like both negligence and breach of contract. If so, for example, is it true that your claim for legal malpractice can be filed after two years (statute of limitations for negligence) so long as it’s within four years (time limit to sue for breach of contract)?
Can Really be Both?
Many judges say “no,” citing the “gist of the action doctrine,” which can prevent a party from characterizing his claim as both negligence and breach of contract.
But recently, the PA Superior Court has weighed in, specifically in regard to legal malpractice.
Poteat v. ASTEAK, 2024 P.A. Super 52 (Pa. Super. Ct. 2024)
In Poteat, above, the Plaintiff paid a criminal defense lawyer $7,500 for competent legal services and representation (“Retainer Agreement”) in defense of criminal charges for possession with Intent to Deliver drugs (“PWID”). The trial court convicted the plaintiff anyway, sentencing him to 5 to 10 years’ of incarceration.
Plaintiff then filed a pro se petition (without a lawyer) pursuant to the Post Conviction Relief Act (“PCRA”) alleging ineffective assistance of trial counsel for failing to file a speedy trial motion pursuant to Pa.R.Crim.P. 600 (“Rule 600”) as well as a motion for credit for time served. The PCRA court found Appellees to be ineffective in their legal representation of Appellant and granted Appellant a new trial.
The Plaintiff also sued his (former) criminal defense lawyer for legal malpractice. Only, Plaintiff failed to file suit within two years of the harm from the lawyer’s alleged negligence. The question, then, was whether Plaintiff’s claim for legal malpractice was for negligence, only, or whether the longer 4 years statute of limitation for breach of contract would apply?
The Trial Court’s Decision: No Valid Claim for Legal Malpractice
The trial court agreed with the defendant-lawyer, claiming two things: one, the plaintiff failed to plead a specific claim for breach of contract and two, since the only viable claim could be for negligence, only, the statute of limitations had run.
PA’s Superior Court Disagrees and Reverses
As to Plaintiff’s alleged failure to plead a claim for breach of contract, the superior court opined that every contract for legal services includes an implicit duty of due care, even if not stated expressly in the contract:
The trial court, however, ignores the holding in Bailey v. Tucker, 621 A.2d 108, 115 (Pa. 1993), in which the Pennsylvania Supreme Court addressed the special nature of an attorney-client agreement and the terms implicit in such an agreement. Our Supreme Court explained that “an attorney who agrees for a fee to represent a client is by implication agreeing to provide that client with professional services consistent with those expected of the profession at large.” Id. (emphasis added).
But What About the “Gist of the Action”?
The Superior Court opined:
The trial court also erred by invoking the gist of the action doctrine to extinguish Appellant’s rights provided for in the Retainer Agreement. The gist of the action doctrine is generally “designed to maintain the conceptual distinction between breach of contract claims and tort claims. As a practical matter, the doctrine precludes plaintiffs from re-casting ordinary breach of contract claims into a tort claim.” Mirizio v. Joseph, 4 A.3d 1073, 1079 (Pa. Super. 2010).
Thus, the superior recognized that a claim for legal malpractice is one for both breach of contract and negligence (tort), since the duty to the client is at the heart of both actions. The superior court ultimately held:
Even though the duty that Appellees undertook in the contract with Appellant is similar to the duty that a plaintiff could assert in a malpractice claim, the gist of the action doctrine does not authorize the trial court to 1) re-characterize a contract claim as a tort claim and, thus, extinguish a plaintiff’s rights that the parties agreed to in a contract and then 2) dismiss the complaint on the grounds that the statute of limitation bars the tort claim. Accordingly, we reverse.
Implications For Future Cases
Poteat v. ASTEAK, 2024 P.A. Super 52 (Pa. Super. Ct. 2024) is no surprise to our civil litigation lawyers. For years, the appellate courts have treated all malpractice claims (legal and medical) as ones for both breach of contract and negligence (tort).
As such, with most types of “malpractice” claims, the plaintiff seeking a recovery will not be limited to (a) the two years statute of limitations for tort or (b) the “benefit-of-the-bargain” type damages allowed in contract law.
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