Court reaffirms legal-malpractice plaintiff's burden of proof of causation

By William R. Kiendl

A legal-malpractice plaintiff must prove that a lawyer's advice caused him harm, the Washington Court of Appeals reaffirmed in a recent decision.

In Smith v. Preston Gates & Ellis LLP, 135 Wn. App. 859 (2006), Terry Smith had agreements with a contractor for improvements to realty. Smith later signed a contract with a company to provide a log home for the property. Smith approached his employer, the Preston Gates law firm, for advice as to agreement with the contractor to erect the log home. One of the firm's attorneys spent six hours reviewing the agreement and advising Smith.

The project proved vastly more expensive than Smith could afford. Smith discovered that the contractor had engaged in fraud and overbilling. By the time the home was completed, it had consumed most of Smith's assets. Smith could not afford to live in the home, so he sold it and sued the contractor. Smith sued Preston Gates, alleging that had the firm advised him as to the risks of entering into the agreement with the contractor, he never would have proceeded. Smith alleged damages of more than $1.7 million. Preston Gates moved to dismiss, arguing that Smith had failed to show a causal connection between the advice he had received and the damages he alleged. The trial court agreed and dismissed the action. Smith appealed.

The Court of Appeals reiterated that a legal-malpractice plaintiff must show that but for the attorney's conduct, he would have obtained a better result. Smith provided no evidence that had the lawyer advised him differently, he would have achieved a better outcome, and the court affirmed.