It is possible in a legal malpractice case for an attorney to use a scope of representation defense. For the person filing the charges against the lawyer, it helps to understand this concept to avoid the use of the defense.
The New York State Bar Association explains a scope of representation defense would be a claim from the attorney that the details of the malpractice charge fall outside of the agreed-upon representation between him or her and the other person.
When a person hires an attorney, he or she usually does so for a specific reason. The client pays a retainer to secure the help of the lawyer for specific legal matters. If in the course of working with the attorney, the client gets advice outside the scope of the original matter, it may not fall under the retainer. Therefore, the attorney would not have a duty of care in that matter, so if he or she offered advice that did not work out, there is no recourse to go after him or her for malpractice.
To avoid this issue, it is essential for a person to secure an agreement covering any and all legal advice the attorney gives throughout the attorney-client relationship. If the original agreement is very specific or narrow, then the lawyer could try the scope of representation defense against any malpractice claims.
One important thing to note about this defense is it does require the client to agree to limit the scope of representation. If there is no agreement, then it will be difficult to use the defense.