Legal malpractice elements

In Donahue v. Shughart, Thomson & Kilroy, P.C., et al., 900 S.W.2d 624, 626 (Mo. 1995), the court listed the four elements of a legal malpractice action.  They are: (1) that an attorney client relationship existed, (2) that the attorney acted negligently or in breach of contract, (3) that such acts were the proximate cause of the plaintiffs’ damages, (4) that but for defendant’s conduct the plaintiffs would have been successful in prosecution of their underlying claim.  Id., citing Boatright v. Shaw, 804 S.W.2d 795, 796 (Mo. App. 1990).

(Note: some cases exclude the word “prosecution” when stating the fourth element.  See Bross v. Denny, 791 S.W.2d 416, 421 (Mo. App. 1990).)

The court in Donahue listed the six factors to determine whether an attorney-client relationship existed between the attorney and a non-clientDonahue at 629.  These factors are: (1) the existence of a specific intent by the client that the purpose of the attorney’s services were to benefit the plaintiffs, (2) the foreseeability of the harm to the plaintiffs as a result of the attorney’s negligence, (3) the degree of certainty that the plaintiffs will suffer injury from attorney misconduct, (4) the closeness of the connection between the attorney’s conduct and the injury, (5) the policy of preventing future harm, and (6) the burden on the profession of recognizing liability under the circumstances.  Id.   

The court in Donahue stated that the predominant inquiry for determining whether the attorney-client relationship exists between the attorney and one not in strict privity with the attorney is “whether the principal purpose of the attorney’s retention to provide legal services was for the specific benefit of the plaintiff.  Id. at 628.