The “Tactical Immunity” Doctrine in Legal (Mal)practice

As we discussed on Monday, not everything a lawyer does is subject to malpractice liability.

The fact that a lawyer loses a case, or that a client does not obtain the outcome he or she wanted does not necessarily mean the lawyer committed professional negligence.

While clients should seek professional counsel if they believe their attorney has committed legal malpractice in the handling of the client’s issues, clients should also realize that losing a case (without more) does not always mean the client has a malpractice claim against the lawyer who handled the case or issue.

One example of this occurs when the lawyer’s judgment, though based on a good faith tactical decision and/or interpretation of the law, does not obtain the outcome the client wanted.

WHAT IS TACTICAL IMMUNITY, AND HOW DOES IT RELATE TO LEGAL MALPRACTICE?

Where a lawyer makes a good faith decision regarding trial (or negotiation) tactics, but loses the case, courts have held that the tactical decision (by itself) did not constitute malpractice. A leading Federal case in this area, Woodruff v. Tomlin (6th Cir. 1980 – 616 F.2d. 924) states that “There can be no [malpractice] liability for acts and omissions by an attorney in the conduct of litigation which are based on an honest exercise of professional judgment.” (emphasis added)

California courts have supported this idea, and the concept that clients suing for malpractice cannot simply be “second-guessing” a lawyer’s tactical decisions.

This doctrine has a sound public policy basis and justification: if a client could “Monday-morning quarterback” the lawyer’s tactical decisions after the case is over, every client who loses a case could simply find a lawyer willing to sue the first attorney for malpractice–thereby choking the courts with malpractice cases based on revisiting the original lawyer’s judgment. Not only is this bad for our congested court system, but it’s bad for the legal practice too. Lawyers would become less willing to assist clients with complicated cases, due to the possibility of “second-guess” malpractice claims after the fact.

The general rule is that legal malpractice, and an attorney’s professional judgment, must be evaluated at the time the service was rendered–not with the full advantage of hindsight and later experience.

Only if the attorney’s conduct otherwise meets the standard for legal malpractice: breach of a recognized legal duty which causes measurable damages to the client, can a malpractice claim prevail.

Clients may not always be happy with the results of a lawyer’s services, but “unhappy outcomes” do not always indicate malpractice. This is why it’s so important for clients to seek experienced counsel from an attorney who specializes in malpractice actions — it often takes experienced counsel to determine whether the outcome was “displeasing to the client, but not resulting from professional negligence” or whether the attorney did, in fact, commit malpractice.

Never use this or any other Internet article to determine whether you have a malpractice claim against your current or former lawyer. Obtain a consultation from an experienced malpractice attorney, without delay.