Legal Malpractice has become so complicated that
you need an expert to help figure it out.


Deptula v. Kane, 2008 WL 4906905 (2008).

VT: Real Property; Homeowners Associations

Student Contributor:  Peter J. Jannace

FACTS: Plaintiff unsuccessfully contested unpaid homeowners’ association [“HOA”] annual fees on a theory that the fees were excessive and illegal, and was warned that he could become liable for future litigation expenses if he continued to withhold payments. Several years later, HOA initiated an action to collect unpaid assessments from both plaintiff and other property owners. Plaintiff and property owners retained defendant attorney who filed and answer and counterclaims stating that the fees were excessive and illegal, violated the consumer fraud act, and had already been paid. The counterclaims were dismissed by the trial court, and the dismissal was affirmed by the Vermont Supreme Court, on collateral estoppel grounds and for “similar reasons”. The Court also affirmed an order from the trial court granting HOA attorney’s fees. Plaintiff filed this malpractice action pro-se alleging negligence, breach of contract “to provide competent legal services”, breach of fiduciary duty and violation of rule 1.7 of the Rules of Professional Conduct, which prohibits representation of clients with conflicting interests. The trial court granted summary judgment for the defendant, the plaintiff appealed.


(a) In a malpractice action where negligence has already been alleged, can an additional cause of action sounding in breach of contract arise absent any breach of a special agreement in the employment contract?  

(b) Is expert testimony required to succeed on malpractice claims for an attorney’s (1) failure to exercise the standard of care in asserting counterclaims, or (2) breach of fiduciary duty and conflicts of interest?


(a)  No. The plaintiff’s action for breach of contract “to provide competent legal services” was merely “a tort claim veiled as a breach of contract claim”. 

(b) Yes to (1) and (2). Expert testimony is required unless “a professional’s lack of care is so apparent that only common knowledge and experience are needed to comprehend it.” Evaluation of tasks “unique to the profession” require expert testimony to establish both the standard of care and whether or not it has been breached.

LESSON(s): First, you can’t have two bites of the malpractice apple by utilizing both a breach of contract and a tort theory for the same underlying attorney conduct. Second, absent behavior that rises to the level of malpractice per se (an example of which you will not find in this opinion), you must have an expert testify to establish that an attorney’s conduct departed from the standard of skill and care for the profession and was the proximate cause of the client’s harm. When in doubt, get an expert.

Tagged with: , , , , , , ,

Posted in: Vermont