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Harding v. Bell

April 2, 1973

HARDING ET UX, APPELLANTS,
v.
BELL ET AL, RESPONDENTS



Appeal from Circuit Court, Lane County. Edward Leavy, Judge.

Randolph Slocum, Roseburg, argued the cause for appellants. With him on the briefs were James H. Spence and Peter Nilsen, Roseburg.

Thomas H. Tongue, Portland, argued the cause for respondents. With him on the brief were Morrison, Bailey, Dunn, Cohen & Miller, Portland.

Bryson, Justice. O'Connell, Chief Justice, and McAllister, Denecke and Howell, Justices.

Bryson

Plaintiffs filed this action charging defendants, attorneys at law, with legal malpractice. The trial court sustained demurrers to plaintiffs' fourth amended complaint. Plaintiffs refused to plead further and the trial court, on defendants' motion, entered judgment for defendants on the pleadings. Plaintiffs appeal, contending that the court erred in sustaining defendants' demurrers. At oral argument, counsel for plaintiffs conceded that the challenged pleading failed to state a cause of action against defendant F. P. Stager. The principal question is whether plaintiffs' complaint states a cause of action against defendants Bell and Gehlen.

An action for negligence by an attorney is not fundamentally different from other more typical actions for negligence. The elements are duty, breach of duty, causation, and damages, and the plaintiff client bears the burden of pleading and proving every fact essential to establish these elements of his case. See Dorf v. Relles, 355 F2d 488, 492 (7th Cir 1966); Budd v. Nixen, 6 Cal 3d 195, 200, 98 Cal Rptr 849, 852, 491 P2d 433 (1971); Ishmael v. Millington, 241 Cal App 2d 520, 523, 50 Cal Rptr 592, 593 (1966); 7 CJS Attorney and Client ยงยง 155, 157(b); Wade, "The Attorney's Liability for Negligence," Professional Negligence (Roady and Andersen ed 1960). For the client who charges his attorney with misconduct in prosecuting or defending litigation, pleading and proving the element of causation have presented the most serious

obstacles to recovery. As Dean Wade explains in the article last cited, at 231-32:

"It is in connection with negligence in the conduct of litigation that the question of causation has presented its most difficult problems. Here the rule has developed that when the client lost his case he must show not only that the attorney was negligent but also that the result would have been different except for the negligence. In other words, this involves a 'suit within a suit,' and the client must show that he would have won the first suit as one step in order to win the second one.

"If the original action was lost, the client must show that the original claim was a sound one and that he was entitled to recover on it. If the defense was negligently not presented in the original action, the client must show that it was a valid one. * * *"

To the same effect are Annot., 45 ALR2d 5, 19-22 (1956); Leavitt, The Attorney as Defendant, 13 Hast L J 1, 29 (1961); and Coggin, Attorney Negligence . . . A Suit Within a Suit, 60 W Va L Rev 225, 235-36 (1958).

In pleading a legal malpractice action, the client must allege facts sufficient to show the existence of a valid cause of action or defense which, had it not been for the attorney's alleged negligence, would have brought about a judgment favorable to the client in the original action. In Milton v. Hare et al, 130 Or 590, 280 P 511 (1929), the plaintiff engaged the defendant attorneys at law to bring a suit against one Lohmire to ...


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