11 Trial Lawyer • Fall 2023 can potentially be used to educate a fact finder on the standard of care or duties owed by the attorney). Clients generally go to attorneys for what they do not know about a legal situation and may not even know what questions to ask, which is precisely why attorneys are required to have informed consent to limit the scope of representation. Simply because a client did not explicitly ask the attorney to perform a task, does not mean it is not within the scope of representation. It is incumbent on the attorney to define, and if necessary, limit the scope of representation consistent with the ORPC, otherwise the attorney may be responsible for harm to a client from an unintended relationship. If all else fails, blame the client Many legal malpractice defendants also seek to blame their former clients for the poor result by alleging that the client was comparatively at fault for the harm. However, many of the purported “comparative fault” defenses are simply allegations of a failure to mitigate damages in disguise. The importance of the distinction between these defenses cannot be understated, especially in the context of a legal malpractice case. For example, a client seeks their attorney’s representation on terminating a lease agreement because the client does not want the lease to renew. The attorney determines that the client must give notice of termination at least six months prior to the end date or it automatically renews for another five years. The attorney sends the notice of termination only five and a half months prior to the end date. The client is harmed because they are required to buy out the remainder of the renewed lease term. To support a comparative fault (or contributory negligence) defense in the context of a professional malpractice case, the aggrieved client must (1) be negligent and (2) cause or contribute to the negligence of the attorney (and the resulting harm to the client). See Son v. Ashland Cmty Healthcare Servs., 239 Or. App. 495 (2010).1 The Court of Appeals explained what kind of conduct may lead to comparative fault in Son in the context of a medical malpractice case, [A] plaintiff’s negligent conduct can form the basis of a comparative fault defense when it relates and contributes to the negligent treatment at issue in the malpractice claim. We recognized examples of such conduct, including (1) failing to follow medical instructions, (2) refusing or neglecting prescribed treatment, or (3) intentionally giving erroneous, incomplete, or misleading information which is the basis for the medical care or treatment. Id. at 290-91. Applying these principles to the above example, if the client failed to give their attorney a copy of the lease or instructed the attorney that the lease ended three See Legal Questions p 12 We are thrilled to extend our heartfelt congratulations to Johnston Law Firm’s Senior Counsel, Rob Kline, on his well-deserved election as President of the Oregon Trial Lawyers Association (OTLA). Rob’s dedication and exemplary service to the legal community shines brightly, making this new leadership role a fitting recognition. Here’s to a successful tenure as President! CONGRATULATIONS, ROB! www.johnston-lawfirm.com Attorneys Marc Johnston (left) and Rob Kline in Johnston Law Firm’s mock courtroom Johnston Law Firm has proudly served injured Oregonians for 14 years. When you work with us, you have a tenacious personal injury trial team with a combined 43 years of experience that is seasoned and prepared to maximize client and case results. Bicycle Crashes Personal Injury Pedestrian Injuries Workplace Injury Wrongful Death Motor Vehicle Collisions Trucking Collisions
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