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Adams & Clark, PC
Attorneys at Law

Suite 200
520 East Portland Street
Phoenix, Arizona 85004

(602) 258-3542
(602) 258-1377 FAX


Common Defenses to Attorney Malpractice


It is important to understand the defense tactics your former lawyer might raise when you sue him. This list is not meant to be exhaustive. Each case is highly fact intensive, and there is no substitute for detailed analysis of your case by a competent attorney. Here are a few of the typical arguments defense lawyers might use to try to fight your legal malpractice claim:

"You failed to bring suit against your attorney within the applicable statutory time period." Your case must be filed with the statute of limitations or you may lose your right to sue your former lawyer.

"You had no attorney-client relationship with the attorney." This comes up in a variety of situations, where you may have received legal advice but the attorney did not open a case, or where you had hoped to benefit from the lawyer's work for another person. It is important to remember, however, that there are instances where an attorney can be held liable even to non-clients.

"You did not hire the attorney to do the thing you say he failed to do." This is called the “scope of representation” defense. If you sue that lawyer, he will assert the defense that he was not hired to perform duties that may have been related to your case but not requested by you. 

"You are guilty of contributory negligence." This is a way of asserting that even if your lawyer was negligent and you suffered damages because of it, you did something careless that caused a portion of those damages, for which you, not your lawyer, should be held accountable.

"You cannot prove that there is a causal connection between the legal malpractice and the damages you suffered." In the event of business losses, such as lost profits resulting from the failure of an attorney to properly document a business deal, it is sometimes difficult to determine whether the business terms themselves, as negotiated by the parties, or market forces in general caused the loss, rather than any failure of the part of the attorney.

"You would have suffered the same damages even if the attorney had not been negligent." This defense is asserted when it appears that, even if the best lawyer in the world performed the services, you would have lost the underlying case anyway.

"You may have suffered losses, but they were caused by a third party or by forces over which the attorney had no control." These defenses and others could be asserted depending on the specific facts of your case. Thorough preparation and deep understanding of the law is required to meet the challenge presented by these defenses.