## Facts

- Mia Machado-Miller worked for The Empire Company in its California office but received instructions and pay from Oregon.
- Her employment contract included a three-year noncompetition clause and an Oregon choice-of-law provision.
- After resigning in January 1997, she joined a California competitor and allegedly took two Empire clients.
- Empire sued her in Oregon to enforce the noncompete; the matter proceeded in federal court, where Empire obtained injunctive relief and the parties later settled.
- Machado-Miller was represented in the Empire litigation by Mersereau and Mersereau & Shannon, LLP.
- She later sued her former attorneys for legal malpractice, alleging they negligently conceded Oregon law applied rather than arguing for California law, under which the noncompete would likely be unenforceable.
- The trial court entered judgment for the attorneys, and Machado-Miller appealed.

## Issues

1. Whether counsel breached the professional standard of care by conceding Oregon law governed the noncompetition dispute instead of pursuing a California choice-of-law and public-policy argument.
2. Whether, absent the alleged negligence, it is more likely than not that the underlying court would have applied California law and refused to enforce the noncompetition agreement.
3. Whether the plaintiff satisfied causation in litigation malpractice by proving, through a case-within-a-case showing, that she would have obtained a materially better result in the underlying action.

## Decision

- The Oregon Court of Appeals affirmed judgment for the defendants.
- The court held Machado-Miller failed to prove that conceding Oregon law was outside the range of reasonable professional judgment under the circumstances.
- The court also held she failed to prove causation because she did not show it was more likely than not that a California-law argument would have changed the outcome in the underlying noncompete litigation.

## Legal Principles

- Legal malpractice requires proof of an attorney-client relationship, breach of the applicable standard of care, causation, and damages.
- In litigation malpractice, causation generally requires a case-within-a-case showing that the client probably would have achieved a better result absent the alleged negligence.
- An attorney is not liable for malpractice merely for declining to pursue an alternative legal theory when its likely success is uncertain and the chosen approach falls within reasonable professional judgment.
- A contractual choice-of-law clause with substantial contacts to the chosen state may reasonably be treated as governing, even when another state has a strong policy disfavoring the contract provision at issue.

## Conclusion

The court affirmed for the attorneys because the plaintiff did not prove that conceding Oregon law was professionally unreasonable or that asserting California law would probably have prevented enforcement of the noncompetition agreement and improved the result in the underlying case.


Machado-Miller v. Mersereau & Shannon, LLP, 180 Or. App. 586, 43 P.3d 1207 (Or. Ct. App. 2002)