Defining the contours of legal malpractice in Washington

Schmidt v. Coogan, No. 88460-9 (Wash. Oct. 9, 2014).

Plaintiffs’ attorneys, when sued for legal malpractice, sometimes raise the issue of uncollectibility: even if I had won the case for you, they say, the judgment wouldn’t have been collectible (because the defendant was insolvent, for example). In other words: no harm, no foul.

But is uncollectibility an element of a legal malpractice claim that the former client must plead and prove? Or is it an affirmative defense—which would then put the burden on the defendant attorney? Surveying other jurisdictions and weighing the policy concerns, the Washington Supreme Court decides that, at least in Washington, it’s an affirmative defense. This holding is announced through a plurality of three justices and a dissent in which two justices join.

The case also asks whether damages for emotional distress are available in a legal malpractice action. The court’s answer is something like “usually not.” Such damages, the court says, are available only “when emotional distress is foreseeable due to the particularly egregious (or intentional) conduct of an attorney or the sensitive or personal nature of the representation.” A different majority of seven justices appears to endorse this holding.