The term ‘legal malpractice’ is both a rising and evolving concept. It is a rising concept because as a term of art, it didn’t exist in the lexicon of the common law until the late mid-20th Century. It is an evolving concept because the meaning of the term has matured greatly since first coming into common usage in the middle of the last century.
At least one authoritative treatise on the subject of legal malpractice has opined that “... there is little consensus on, or even discussion of its meaning.”1 This was certainly true for the first half of the 20th Century when legal malpractice cases were exceedingly rare. Even academics and commentators seldom discuss subjects that don’t or only marginally exist. The reason for this scarcity of discussion and commentary is clearly demonstrated by conducting searches for the term ‘legal malpractice’ in series one through four of the California Appellate and Supreme Court reports.2
Reported Cases in California Involving Legal Malpractice
In the original California Appellate and Supreme Court reports (1850 - 1934) the term ‘legal malpractice’ does not appear once in an advanced word search. Thus, it could fairly be said that in the context of the common law in California and most other jurisdictions until only a few decades ago, legal malpractice, both in theory and practice, was almost non-existent and certainly not in common usage in the vocabulary of the common law.
In the Second Series of California Appellate and Supreme Court reports (1934 - 1969), the same word search turns up a mere 36 hits.3 Still a rarity. In the Third Series (1969 - 1991), there is a total of 836 hits for the term ‘legal malpractice’. This amounts to an increase of over 2,000% and reflects both a linguistic and societal change in attitudes toward lawyers and legal malpractice. In the California Appellate Reports 4th Series (1991 - present), the number of hits for legal malpractice increased to 1,463. From a quantitative perspective alone, these statistics tell us a lot about the evolution and role of legal malpractice in the law today. They also tell us something about the etymology of ‘legal malpractice’.
All of the 36 hits for legal malpractice in the Second Series of California Appellate and Supreme Court reports arose out of only 15 cases. The holdings in 11 of the 15 cases dealt with statute of limitations issues; two dealt with duties of an attorney, one with the necessity of expert witness testimony in legal malpractice cases, and one with the defense of contributory negligence. What this paucity of cases tells us about the meaning of the term has more to do with its novelty than its etymology. In other words, out in the real world, it is only within the past 50 years or so that clients have began to look at lawyers like other tortfeasors and seeking remedies for the damages they inflicted.4 As to the meaning and derivation of the term, let’s look to the obvious source.
Black’s Law Dictionary Treatment of Legal Malpractice
The 1st Edition of Henry Campbell’s Black’s Law Dictionary was published in 1891. In it the primary term ‘legal malpractice’ is nowhere to be found, nor in fact is the word ‘malpractice’. What is found is the Latin term ‘Mala Praxis’. The definition is: “Malpractice; unskillful management or treatment. Particularly applied to the neglect or unskillful management of a physician, surgeon or apothecary.” Interestingly, in connection with the subject at hand, the term next proceeding mala praxis is the term ‘Mala In Se’. The term next following ‘mala praxis’ is the term ‘mala prohibita’. This 19th Century troika of ‘mala’ terms is significant in the development of the term legal malpractice.
‘Mala In Se’ is defined as, “Wrongs in themselves; acts morally wrong; offenses against conscience.” Mala Prohibita is defined as, “Prohibited wrongs or offenses; acts which are made offenses by positive laws and prohibited as such.” How these terms coalesce with the later developed term legal malpractice is explored below.
The 2nd Edition of Black’s Law Dictionary was published in 1910. Again, the term ‘legal malpractice’ was not included, but the word ‘malpractice’ did appear for the first time as a primary word. It was defined: “As applied to physicians and surgeons, this term means generally, professional misconduct towards a patient which is considered reprehensible either because immoral in itself, or because contrary to law or expressly forbidden by law. In a more specific sense, it means bad, wrong, or injudicious treatment of a patient professionally and in respect to the particular disease or injury, resulting in injury unnecessary suffering or death to the patient and proceeding from ignorance, carelessness, want of proper professional skill, disregard of established rules or principles, neglect, or a malicious or criminal intent.(citations)” Note that in its infancy, the word “malpractice” applied almost exclusively to physicians and encompassed both mala in se and mala prohibita components.
The 3rd Edition of Black’s, published in 1933, still did not include the term ‘legal malpractice’, but did expand the application of the term and make a prophetic reference. Malpractice was defined as: “Any professional misconduct, unreasonable lack of skill or fidelity in professional or fiduciary duties, evil practices or illegal or immoral conduct.(citations) As applied to physicians and surgeons, this terms means, generally, professional misconduct towards a patient which is considered reprehensible either because immoral in itself or because contrary to law or expressly forbidden by law. ¶ In a more specific sense it means bad, wrong or injudicious treatment of a patient, professionally and in respect to the particular disease or injury resulting in injury, unnecessary suffering, or death to the patient and proceeding from ignorance, carelessness, want of professional skill, disregard of established rules or principles, neglect or a malicious or criminal intent.(citations).” Then the following appears:
“The term is occasionally applied to lawyers and then means generally any evil practice in a professional capacity, but rather with reference to the court and its practice and process than to the client.” In other words, in its infancy, the bad practice of lawyers was a concept involving such matters as procedure, decorum, respect, and deference - not breach duties owed to the client.
The 4th Edition of Black’s Law Dictionary was published in 1951 and had two revisions; the first revision was in 1957 and the second in 1968. The 4th Edition and both revisions contained essentially the same definition and reference as the 3rd Edition of Blacks.
The sea change came in the 5th Edition of Black’s Law Dictionary, published in 1979. For the first time the term ‘legal malpractice’ appeared as a standalone term under the word malpractice. The appearance of the term ‘legal malpractice’ reflected both a maturing of the meaning and application the word ‘malpractice’, and an underlying change in social attitudes toward lawyers. This change is reflected in Black’s definition of both the word ‘malpractice’ and the term ‘legal malpractice’. Malpractice was defined as: “Professional misconduct or unreasonable lack of skill. This term is usually applied to such conduct by doctors, lawyers, and accountants. Failure of one rendering professional services to exercise that degree of skill and learning commonly applied under all the circumstances in the community by the average prudent reputable member of the profession with the services or to those entitled to rely upon them. It is any professional misconduct, unreasonable lack of skill or illegal or immoral conduct.”
The term ‘legal malpractice’, according to the 5th Edition of Black’s,“Consists of failure of an attorney to use such skill, prudence, and diligence as lawyers of ordinary skill and capacity commonly possess and exercise in performance of tasks which they undertake, and when such failure proximately causes damage it gives rise to an action in tort.” Stated differently, by 1979 the term ‘legal malpractice’ had reached a new level of maturity as lawyers joined the ranks of other common tortfeasors such as automobile drivers, premise owners, manufacturers and physicians and surgeons.
Forwarding to the 7th Edition of Black’s Law Dictionary was published in 1989. In it, the term ‘legal malpractice’ appears in first position as a subcategory under ‘malpractice’ but with significant changes. Malpractice is artfully defined as “An instance of negligence or incompetence on the part of a professional. To succeed in a malpractice claim, a plaintiff must also prove proximate cause and damages. Also termed professional negligence.”
Legal malpractice in the 7th Edition of Black’s defined as: “A lawyer’s failure to exercise the degree of care and skill, prudence, and diligence that an ordinary and reasonable lawyer would use under similar circumstances. Also termed attorney malpractice.” The 8th (1999) and 9th (2009) Edition of Black’s uses the same definition as the 7th, reflecting perhaps the full development and meaning of the term legal malpractice.
The social and etymological maturity of the term legal malpractice’ is reflected in the fact that the 8th and 9th Editions of Black’s Law Dictionary have continued to use essentially the same definition, now for over 30 years. In place of the explicit mala in se (evil and immoral) and mala prohibita (a violation of law) language in the older definitions, the dictionary definition now utilizes the words care, skill, prudence and diligence as an expansive integration of both the mala in se and mala prohibita concepts in the meaning of the term legal malpractice.
Conclusion
As demonstrated above, the term legal malpractice is a relatively new addition to the language of the law. Its evolution and social role, however, may have already arrived at homeostasis, a relatively stable state of linguistic and social equilibrium. What this means to the modern practitioner is that all players in the game (attorneys, clients, judges and juries), now share the same understanding and appreciation of not only the meaning of the term legal malpractice, but its role in maintaining the balance between the attorney’s prerogatives in selecting strategy and tactics and the clients’ right to competent, ethical representation.
James S. Rummonds
311 Bonita Dr, Aptos, California 95003, United States
(831) 688-2911
www.legalmallaw.com
James S. Rummonds specializes in all types of legal and professional malpractice, civil and business litigation, and personal injury, throughout California, including, the Central Coast, Central Valley and the entire Bay Area. James is also the author of numerous articles on civil trial practice and legal ethics, a columnist, and was a contributing editor to West’s two volume set on Civil Trials and Evidence.
1. Mallen & Smith, Legal Malpractice, 5th, § 1.1, Pg. 2
2 For purposes of this discussion all research references to California Appellate and Supreme Court cases are from AccessLaw.
3( The 36 hits in the Cal 1st series included a total of 14 cases, 13 of which dealt with the applicable statute of limitations.
4 This is not to suggest that legal malpractice cases were literally non-existent prior to the mid-20th Century. Since the late 1800s, the courts had consistently held that liability would be imposed on attorneys for want of such skill, prudence and diligence as lawyers of ordinary skill and capacity commonly possess and exercise. See, e.g., Gambert v. Hart (1872), 44 Cal. 542, 552; Estate of Kruger (1900), 130 Cal. 621, 626; Moser v. Western Harness Racing Assn. (1948), 89 Cal.App.2d 1, 7; Armstrong v. Adams (1929), 102 Cal.App. 677, 684.
