“Judgmental Immunity” in Legal Malpractice
WHAT IS THE JUDGMENTAL IMMUNITY DEFENSE ?
The “judgmental immunity doctrine” protects attorneys from liability for legal malpractice in many cases involving unsettled points of law.
Courts do not expect, or require, lawyers to predict how a court will settle or resolve an unsettled issue or point of law. As a result, if a lawyer makes a reasonable or honest mistake in judgment regarding unsettled legal issues, court generally will not consider that error to be malpractice.
ATTORNEYS MUST PERFORM REASONABLE RESEARCH AND MAKE REASONABLY INFORMED DECISIONS.
Whether the law is unsettled or not, attorneys must perform “reasonable research” and make “informed decisions” regarding the legal principles applicable to a client’s case or issue. If research (or the attorney’s own knowledge and experience) reveal alternatives to relying on unresolved points of law, the attorney should advise the client of the alternatives and, where the client is capable of understanding the options and making a decision about the course of the case, the attorney often must rely on the client’s decision. Where the client cannot make a reasonably informed decision, the attorney should exercise caution before relying on unsettled points of law if another alternative exists.
However, it is not necessarily malpractice, or even inappropriate, for an attorney to proceed on an otherwise legitimate claim simply because the issue is unresolved. In many cases, attorneys must rely on partially–or even completely–unresolved issues of law in order to properly pursue a client’s case. Whether or not reliance on or pursuit of unresolved legal issues is appropriate is highly fact-specific and cannot be determined without an analysis of the specific facts and laws at issue in the client’s individual case.
HOW DOES A LAWYER ESTABLISH A PRIMA FACIE CASE FOR JUDGMENTAL IMMUNITY?
Attorneys wishing to claim the judgmental immunity doctrine as a defense must prove:
— The attorney advised the client (or made the relevant decisions in the case) after reasonable research and that the advice represented a reasonably informed judgment regarding the client’s individual case; and
— That the relevant law was unsettled as of the time the advice was given.
“Informed judgment” probably requires more than reading one or two cases, but the exact requirements will differ based on many factors, including the attorney’s experience, research performed (for this client and for similar matters), and the facts and circumstances of the client’s case or issue.
Disclaimer: THIS ARTICLE IS FOR INFORMATIONAL PURPOSES ONLY, AND DOES NOT CONSTITUTE LEGAL ADVICE OR CREATE AN ATTORNEY-CLIENT RELATIONSHIP BETWEEN THE AUTHOR AND ANY PERSON. Your rights and experiences may vary. Never use an article like this one to evaluate your legal claims. Speak with an experienced lawyer promptly to obtain a personalized evaluation of your claims, possible damages, and options. You may lose or compromise your rights if you delay in consulting legal counsel. Legal claims against lawyers or other third parties are a complicated topic. If you believe you have a claim against an attorney who failed to provide you with competent representation, consult an experienced lawyer immediately for an evaluation of your possible rights and claims.