Recent Developments in Legal Malpractice Litigation

By Elizabeth Hyatt

In its important decision, Crowe v. Tull, the Colorado Supreme Court held that lawyers may be liable for deceptive trade practices under the Colorado Consumer Protection Act (the Act). § 6-1-105, C.R.S. Until the Crowe decision, it remained unclear whether a lawyer could be held liable under the Act. Some argued that a lawyer should never be held liable under the Act because Colorado lawyers are regulated separately by the Colorado Supreme Court. Others argued that a lawyer should be exposed to liability under the Act only for actions taken in “the business of law,” and not for actions taken during the “practice of law.” In its well-reasoned opinion, the Colorado Supreme Court rejected these arguments outright.

Lawyer liability under the Act is significant, since the Act provides for the recovery of attorneys fees and, sometimes, treble damages, which normally are not recoverable under general lawyer malpractice tort claims.

Possible claims under the Act might be based on statements by the lawyer concerning the quality of his or her legal services; a failure to disclose the lawyer’s inexperience in a certain area of law; or any false representation or over-billing. However, a client must satisfy the multiple elements of the deceptive trade practices claim, which include a showing that the unfair or deceptive trade practice significantly impacts the public as actual or potential consumers of the lawyer’s services, and a showing that the trade practice caused the client’s injury.

Although a deceptive trade practices claim against a lawyer may be difficult to prove, it is a potentially valuable claim worth considering in the face of lawyer wrong-doing.