California Bar Journal
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On psychics, lollygagging and best judgment

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Diane KarpmanDon't let anyone characterize your conduct in reading this paper as lollygagging. You tell them that you are conducting "reasonable research" in order to obtain the protection afforded by the judgmental immunity doctrine. "The basis of judgmental protection is the nearly absolute responsibility of attorneys to educate themselves about general laws, statutes and legal propositions considered well defined." (Mallen & Smith, Legal Malpractice, V3, 18.4) You have an affirmative obligation to review decisions, statutes, and "to keep up with the general literature of the profession."

Lawyers are not clairvoyants;  therefore in exercising your judgment you do not have to be correct. The basis of the attorney-client relationship is trust, and clients trust that you will honestly exercise your judgment in advising them of alternatives. "Judgment" must be based upon evaluation of facts, investigation and research. It is simply not just . . . smoke and mirrors.

Judgmental immunity requires that the area of law be categorized as "uncertain, unsettled, doubtful or debatable." For example, inconsistent appellate court decisions can establish "uncertainty." A dissenting opnion can support an arousement that the concept is "debatable," as can evaluation and discourse in the legal press, which is further justification for you to be reading the paper.

The availability of the judgmental immunity doctrine in legal malpractice is further complicated by the lawyer's role. Is the lawyer acting as an advisor or an advocate? Trial lawyers take the facts as they find them and seek to prevail. Tactics and strategy can shift with each witness. Trial lawyers may still be protected by the "case within the case" causation requirement for legal malpractice.

The goal of advisors or transactional lawyers is to impact or shape the future, by virtue of drafting or construing wills, contracts and other instruments. The luxury of time requires that full advice regarding alternatives be given to the client. However, remember that clients are not required to follow our sage reasoned advice. Clients have few if any "rules."

In a real life case, a lawyer was retained by a psychic to negotiate an infomercial. It was a bad deal and the lawyer told the client to reject the offer; however, since the psychic could "see" the future, he accepted it and subsequently sued the lawyer for malpractice. To give you a flavor of the litigation, during depositions, the psychic would chime in with: "Let me read your aura." Obviously, this drama occurred in Los Angeles, and eventually the lawyer won against this weak, tenuous and unproved claim. In essence, the client was claiming that although he rejected the lawyer's advice, the lawyer became the guarantor of the deal, although the lawyer did not cause the harm.

The "causation" requirement for legal malpractice is currently uncertain, debatable and unsettled and is being reviewed by the Supreme Court, in Viner v. Sweet. Lawyers are easy targets for psychic clients and others. The harsh glare of hindsight presents a bull's eye for a client to label a lawyer as negligent even if they received a lawyer's best informed judgment.