The attorney judgment rule in legal malpractice claims: Docs sue lawyer, or "Dog bites man"

This month, the Court of Appeals had two occasions to address the so-called "attorney judgment rule" in legal malpractice claims.  The latter rule arises when an attorney is sued for negligence and claims as a defense that he or she is not responsible for a bad outcome as the decisions he or she made were in accordance with sound professional judgment.  It is a common defense in all professional malpractice cases that the allegedly erroneous action was actually an exercise of judgment in accordance with the standard of care of other reasonable professionals in the same field.  For example, if a trial attorney makes a considered tactical decision not to call a particular expert because the witness will do more harm than good, and that judgment is not an identifiable error at the time, he or she cannot be sued for that decision if the case is ultimately lost. 

The Court of Appeals addressed this concept in Shannon v. Foster, Swift, Collins and Smith, where two married doctors sued their attorney for poor judgment in representing them at a real estate closing.  The attorneys had disclosed but did not resolve multiple conflicts of interest involving the realtor and two banks.  The trial court had dismissed the claim, citing the attorney judgment rule, however, the Court of Appeals reversed and reinstated it. 

The Court held that to constitute a defense to a legal malpractice action, the exercise of judgment must be a "reasonable" one based on zealous representation of the client's interests.  Under the circumstances presented in this case, the Court of Appeals held that it was for a jury to decide whether the attorneys had fulfilled their duty to the doctors. 

Glenn Underwood had less success when his former attorneys invoked the defense.  He had been sued by his siblings with regard to his management of family real estate interests.  He hired and fired several attorneys, including the Bullard Anderson firm, and also appeared in the case as his own attorney, before losing a substantial judgment to his family for abusing his fiduciary duty to them.  He then filed a malpractice claim against the latter firm alleging that they had caused his bad outcome.  The Court held that his conclusory allegations were not supported, factually, and that simply alleging violation of the Rules of Professional Conduct did not prove that the attorneys actually caused him to lose his claim.

Perhaps one interpretation of these two results, handed down on the same day, would be that if you appear to have cheated your family, you had better be suing a lawyer who appears to have put another client's interests ahead of yours....