5.51 LEGAL MALPRACTICE (Approved
6/79)
A. General
Duty Owing
An
action brought against an attorney alleging negligence in the practice of law
is referred to as a malpractice action.
In this action plaintiff contends that defendant did not comply with the
standard care which the law imposes upon him/her while attending to the legal
needs of his/her client, the plaintiff.
Plaintiff contends that as a result of defendant's malpractice plaintiff
suffered injury for which damages are sought.
To
decide this case properly, you must know the standard of care imposed by law against
which defendant's conduct as an attorney should be measured.
A
person who is engaged in the general practice of law (or who is engaged as a
specialist in a given area of law)[1]
represents that he/she has the degree of knowledge and skill ordinarily
possessed and used by others engaged in the general practice of law (or as a
specialist, as the case may be). The
required knowledge and skill must be judged by the standard legal practice at
the time the attorney represented the client.
An attorney who undertakes to attend to the legal needs of a client
represents also that he/she will use such knowledge, skill and care which
attorneys of ordinary ability and skill possess and exercise. The law, therefore, imposes upon an attorney
the duty or obligation to have and to use that degree of knowledge and skill
which attorneys of ordinary ability and skill possess and exercise in the
representation of a client, such as the plaintiff in this case. This is the standard by which to judge the
defendant (a general practitioner or a specialist) in his/her representation of
plaintiff in this case.
The
law does not require that an attorney guarantee a favorable result. The law recognizes that the practice of law
according to standard legal practice will not necessarily prevent a poor
result. If the attorney has brought and
applied the required knowledge and skill to his/her client, he/she is not
liable simply because a favorable result has not been achieved or simply
because bad results have occurred. The
attorney is not an insurer, nor is he/she liable for every error in judgment or
mistake. On the one hand, he/she is not
to be held accountable for the consequences of every act which may be held to
be an error by a court. On the other
hand, he/she is not immune from responsibility if he/she fails to employ in the
work he/she undertakes that degree of reasonable knowledge and skill exercised
by attorneys of ordinary ability and skill.
Where,
according to standard legal practice, the work involves matters to be subjected
to the judgment of the attorney, an attorney must be allowed the exercise of
that judgment and he/she cannot be held liable if, in the exercise of that
judgment, he/she has, nevertheless, made a mistake or an error in
judgment. Where judgment must be
exercised, the law does not require of the attorney infallible judgment. An attorney cannot be held liable for
malpractice so long as he/she employs such judgment as is allowed by the standards
of accepted legal practice. If, in fact,
in the exercise of his/her judgment, an attorney selects one of two or more
courses of action, each of which in the circumstances has substantial support
as proper practice by the legal profession, he/she cannot be found guilty of
malpractice if the course chosen produces a poor result.
But
an attorney who departs from standard legal practice cannot excuse
himself/herself from the consequences by saying it was an exercise of his/her
judgment. If the exercise of an
attorney's judgment causes him/her to do that which standard legal practice
forbids, the attorney would be guilty of malpractice. Similarly, an attorney whose judgment causes
him/her to omit doing something which in the circumstances is required by
standard legal practice is also guilty of malpractice.
Thus,
the obligation or duty of care which the law imposes upon defendant is to bring
to his/her client that degree of knowledge and skill which are ordinarily
possessed and exercised in similar situations by attorneys or ordinary skill
and ability. The attorney is obliged to
use his/her knowledge, skill and judgment in an effort to perform the work
he/she undertakes according to standard legal practice.
If
you find that the defendant has complied with this standard, he/she is not
liable to plaintiff, regardless of the result.
On the other hand, if you find that defendant has departed from this
standard of care, resulting in injury or damage, then you should find defendant
liable for his/her malpractice.
Cases:
For definition and discussion of
the scope of the duties of an attorney to client, see Sullivan v. Stout, 120 N.J.L. 304 (E.&.A.
1938); Morris v. Muller, 113 N.J.L. 46 (E. & A. 1934); McCullough
v. Sullivan, 102 N.J.L. 381 (E. & A. 1925); Stewart v. Sbarro,
142 N.J. Super. 581 (App. Div. 1971); Passanante v. Yormack,
138 N.J. Super. 233 (App. Div. 1975). The duties of attorney to client have been
equated with those of physician to patient; thus, the charges on legal
malpractice are similar in several respects to those on medical malpractice (see Chapter 5). See Stewart v. Sbarro, supra,
quoting from the language of McCullough v. Sullivan, supra, 102 N.J.L.
381 at 385, to the effect that the duties and liabilities between an attorney
and client are the same as those between a physician and patient.
While in a particular case the
court may determine violation of the standard of care as a matter of law (see, e.g., Stewart v. Sbarro,
supra, where the Appellate Division held that no expert testimony was
required to support plaintiff's claim and that as a matter of law the defendant
attorney was negligent, and also the situation referred to in Fuschetti v.
Bierman, 128 N.J. Super. 290 (Law Div. 1974), where the court
held that the failure of an attorney to commence an action within the period of
the statute of limitations would ordinarily be considered neglect), usually the
standard of care must be established by expert testimony with the trier of fact
deciding the question of whether the attorney violated it. See,
e.g., Wright v. Williams, 47 Cal.
App.3d, 802, 121 Cal.
For the procedure involving in certain instances a
"trial-within-a-trial," see Fuschetti v. Bierman, supra,
which involved a legal malpractice claim for failure of an attorney to file a
personal injury action within the period of the statute of limitations.
B. Specialist,
Duty of [2]
A
specialist in a given area of law is one who devotes special study and
attention to the practice of a particular field of the law. An attorney who holds himself/herself out as
a specialist in a particular field of law represents that, with regard to
his/her specialty, he/she has and will employ not merely the knowledge and
skill of a general practitioner but that he/she has and will employ that
special degree of knowledge and skill (ordinarily) (normally) possessed and
used by the average specialist in his/her field. Accordingly, when an attorney holds
himself/herself out as a specialist and undertakes as such work for a client,
the law imposes the duty upon that attorney to have and to use that degree of
knowledge and skill which is (normally) (ordinarily) possessed and used by the
average attorney who specializes in the practice of that particular field of law.
C. Expert Testimony to Prove Standard Of Care
Negligence
is conduct which falls below a standard of care required by law for the
protection of persons or property from foreseeable risks of harm. In the usual negligence case, it is not
necessary for plaintiff to prove the standard of care by which defendant's
conduct is to be measured. In the usual
case, such as an automobile negligence action, it is sufficient for plaintiff
to prove what the defendant did or failed to do, and what the circumstances
were, and then it is for the jury to determine whether the defendant exercised
such care as a reasonably prudent person would have exercised for the safety of
others. The standard of care is
reasonable prudence to avoid injury to another, and the jury, in effect,
supplies that standard by deciding what a reasonably prudent person would have
done in the circumstances.
In the usual legal malpractice case,
however, jurors are not qualified to supply the standard of care by which to
measure the defendant's conduct. Based
upon their common knowledge alone, without technical training, jurors normally
cannot know what conduct constitutes standard legal practice. Therefore, ordinarily, when an attorney is
charged with negligence in the representation of a client, the standard of
practice by which his/her conduct is to be judged must be furnished by expert
testimony, that is to say, by the testimony of persons who by knowledge,
training or experience are deemed qualified to testify and to express their
opinions on legal subjects.
Where
the subject matter of the claim is such that jurors cannot determine the
standard of conduct and any departure therefrom on the basis of their common
knowledge as laypersons, then as jurors they should not speculate or guess
about the standards by which the average attorney should conduct
himself/herself in the circumstances. In
a case such as this, you as jurors must determine what is standard legal
practice from the testimony of the expert witnesses who have been heard in this
case. After deciding what the standard
of care is, what standard legal practice is in the circumstances of this case,
you as jurors must then determine whether defendant has conformed with or
whether defendant has departed from that standard of care.
Cases:
See in this regard the cases concerning
expert testimony set forth in Part A, supra. If the failure of attorney performance is so
clear that professional negligence may be found without the aid of expert
testimony, this instruction is unnecessary.
Wright v. Williams, 47 Cal.
App.3d, 802, 121 Cal.
D. Common
Knowledge May Furnish Standard of Care
Negligence
is the failure to comply with the standard of care required by law to protect a
person from foreseeable risks of harm.
Negligence in an attorney's legal practice, which is called malpractice,
is the attorney's failure to comply with the standard of care required by law
in the representation of his/her client.
Usually it is necessary to establish the standard of care by expert
testimony, that is, by testimony of persons how are qualified by their
training, study and experience to give their opinions on subjects not generally
understood by persons who lack such special training or experience. In the usual case, standard legal practice by
which to judge defendant's conduct cannot be determined by the jury without the
assistance of expert legal testimony.
However,
in some cases, such as the case at hand, the jury may determine from its common
knowledge and experience the standard of care by which to judge defendant's
conduct. In this case, plaintiff
contends that defendant violated the duty of care he/she owed to plaintiff by
doing _________________/by failing to do __________________. In this case, therefore, it is for you, as
jurors, to determine, based upon common knowledge and experience, what skill
and care the average attorney practicing in defendant's field would have exercised
in the same or similar circumstances. It
is for you as jurors to say from your common knowledge and experience whether
defendant did something which the average member of his/her profession would
not have done or whether defendant failed to do something or failed to take
some measure which the average member of his/her profession would have done or
taken in the circumstances of this case in the representation of the plaintiff.
[Where there has been expert legal testimony
as to the standard of care but the standard is one which can also be determined
by the jury from its common knowledge and experience, the jury should determine
the standard of care after considering all the evidence in the case, including
the expert legal testimony, as well as its own common knowledge and
experience.]
After
determining the standard of care required in the circumstances of this case,
you should then consider the evidence to determine whether defendant has
complied with or departed from that standard of care. If you find that defendant has complied with
that standard of care, he/she is not liable to plaintiff, regardless of the
result. If you find that defendant has
not complied with the standard of care, resulting in injury or damage to
plaintiff, then you should find defendant guilty of malpractice and return a
verdict for plaintiff.
Source: https://njcourts.gov/attorneys/civilcharges.html
[1] Caveat: With the exception of R. 1:39
(Certification of Attorneys as Trial Attorneys), the Supreme Court has not
promulgated rules authorizing attorneys to represent themselves as specialists. However, while there is no case law on the
subject, the Committee is of the opinion that a charge imposing the duties of a
specialist may be appropriate in a particular matter where the attorney has
represented or held himself/herself out to the client as a specialist in such
matters. Such charge would also of
course be appropriate in a matter involving an attorney certified as a trial
attorney pursuant to R. 1:39.
[2] Caveat: See
the caveat concerning a charge imposing the duty of a specialist set forth at
Part A, supra.
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