Here is an interesting fact scenario courtesy of the Legal Profession Blog: a client retained a lawyer to pursue an employment discrimination claim. The attorney did not respond to the employer's motion for summary judgment and the case was dismissed. The client then turned around and sued the attorney for malpractice arguing he was negligent in handling the case, but the trial court dismissed the complaint because the plaintiff could not establish the element of cause in fact. Because the original case appeared to be very weak, it did not look that the client would have won the original case had it not been for the negligent conduct of the attorney.
As any first year torts student knows, this is the so-called "case within the case" problem that legal malpractice plaintiffs face. They have to argue and prove that they would have won the original case and this is extremely difficult to do in most cases.
Interestingly, the court found a way around it. The court remanded on a contract claim to consider damages for the lawyer's failure to do the work for which he had been paid.
There is another point I find interesting about this scenario and that is whether the facts support the imposition of discipline. Does the fact that the client could not support his claim of malpractice mean that the attorney's conduct should be 'excused'?
Obviously not. If the attorney's conduct reflects that he violated his duties of competence and diligence (and it certainly looks like it does in this case), the court should refer the case to the disciplinary authorities regardless of the ruling on the malpractice question. In this case, it appears that there had been a disciplinary hearing already but the court does not explain what had been the basis for it.
The opinion is available here.