Imagine a personal injury case in which the attorney advocates at trial for his client, arguing that his client's injuries were medically caused by the accident and that the jury should award $1.5 million in damages. The client loses the case, discovers that his lawyer failed to introduce critical evidence at trial, and sues his lawyer for malpractice. Defense counsel in the malpractice case intends to argue that the case was always a loser, so there were no damages. Can the plaintiff refer to the defendant lawyer’s arguments at trial in the underlying case, in order to establish or to bolster his claim that the underlying case-within-a-case was sound and valuable?
There are a few cases around the country in which courts disallow the introduction of statements of the defendant lawyer in the underlying case advocating for the client’s position, if offered to establish or bolster the points the lawyer made, in order to support damages in the malpractice case.
The rationale is grounded more in policy than in traditional evidence analysis. Jurisdictions that have circumscribed the use of such evidence seek to avoid chilling a lawyer's zealous advocacy for his/her client's position through fear that such advocacy may be used against the lawyer in a subsequent malpractice action.
Washington and Oregon have not addressed this issue. That does not mean that the defense would not or could not seek to similarly restrict such evidence by the plaintiff, but there would be no binding precedent and the defense would essentially be asking the trial court to make new law.
Due to the risk that a court in Washington or Oregon might follow suit by joining the majority of the few jurisdictions whose appellate courts have announced a rule restricting such evidence, the client should understand that statements about the merits and value of the case by underlying counsel are more reliable material for use in a later malpractice case if they are made outside of the courtroom or court pleadings, and perhaps even outside correspondence with opposing counsel. Private discussions, and better yet, written correspondence, between lawyer and client do not invoke the concerns used to justify restrictions on the use of such evidence. A lawyer is not supposed to engage in zealous advocacy to his client, only for his client, when and where it counts. Confidential lawyer-client communication is the time for candid honesty.