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
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
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.