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What is “Judgmental Immunity” in Legal Malpractice?


Generally, lawyers are expected to possess the degree of knowledge, and exercise the degree of reasonable care, that competent lawyers exercise when engaged in the practice of law. California lawyers are also supposed to know, or to discover, rules of law which can be readily found using standard research techniques.

These standards may sound less than precise, but facts and circumstances evaluation of a lawyer’s actions can establish whether or not the lawyer acted properly in a given situation.



When representing clients on issues involving unsettled or uncertain points of law, California lawyers have a duty to engage in reasonable research in order to determine (or try to determine) the legal principles applicable to the client’s situation. Following this, the lawyer has a duty to analyze those principles and make a reasonably informed decision upon which (s)he can advise the client regarding a proposed course of action.

The law does not require attorneys to predict or anticipate the way a court will resolve unsettled or uncertain legal questions. If a lawyer makes an “honest error in judgment” about a debatable point of law, the lawyer will not be held liable for malpractice (at least, not for that reason alone).*

However, if the lawyer’s diligent research reveals a more settled or less risky alternative to proceeding under an unsettled point of law, the lawyer has a duty to inform the client of the issues and potential alternative, so the client can make an informed decision about how best to proceed. If the client is not capable of making an informed decision, the attorney should evaluate whether proceeding on an unsettled point of law or cause of action is a reasonable course of action.



Generally speaking, a lawyer attempting to claim judgmental immunity from malpractice liability must prove:

1.  The law that applied to the client’s situation was unsettled at the time the attorney rendered the advice upon which the malpractice allegation rests; and

2. The attorney engaged in reasonable research and advised the client (or acted) on the basis of reasonable, informed judgment.

Judgmental immunity can be a tricky defense to claim, or to understand. If you believe you have a malpractice claim against a lawyer, consult with an experienced attorney before you accept any compromise or settlement of your legal rights.

* Davis v. Damrell (1981) 119 CA3d 883, 174 CR 257.


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 online article (including 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. Malpractice (professional negligence) claims are complicated and fact-dependent. If you believe you have a claim against an attorney who represented you, or any other type of legal claim, consult an experienced lawyer immediately for an evaluation of your personal rights and claims.

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