Society relies on professionals to guide, to treat, to represent and to know. We place an extraordinary amount of trust in their advice. The first lesson to be learned from medical self-diagnosis on the Internet is that a little knowledge can be very dangerous. The same is true of researching and handling even common legal issues. There are too many complications, too many exceptions, and too many potential courses of conduct for the ordinary mortal to wade through.
In law, some simple questions can be answered with confidence by almost anyone. Whom do you sue in a given situation? How long do you have to commence the action? Where can the case be brought?
However, even in such simple questions, there are finer gradations of choice. Who is a necessary party? Is there any toll on the statute of limitations? Of several venues, is one better than another?
What is true for law is often true for medicine. Which is the older profession is an old question; both have ancient parallel histories. Self-regulation is the rule for both and each has developed deep and impressive internal rules of professional conduct. Each requires extensive education and testing to join a pre-historic and socially revered cadre. Both require a long apprenticeship before acceptance into the guild.
There is a similar intellectual bias for both. Both claim that their decision-making apparatus is unique, internally regulated and virtually unassailable. Both claim the “judgment rule.” In medicine, it is aptly summed up in the well-known medical aphorism originally attributed to Armand Trousseau (1801-1867): “Medicine is an art and not a science.” For lawyers, it was most forcefully stated by the Court of Appeals in Rosner v. Paley, 65 N.Y.2d 736 (1985). A “mere error of judgment” need not rise to the level of malpractice. When several other alternatives might have been pursued, “selection of one among several reasonable courses of action does not constitute malpractice.” For this concept the Court of Appeals looked back to 1897.
The history of this doctrine is deep. Byrnes v. Palmer, 18 A.D. 1 (2d Dept. 1897) was decided by the Court of Appeals more than 120 years ago. The court held that “It is undoubtedly true that an attorney is only bound to exercise the ordinary reasonable skill and knowledge of his profession, and is not liable for every error of judgment or opinion as to the law.” Byrnes, 18 A.D. at 5.
Even older is Montriou v. Jefferys, 2 Car. & P. 113 (1825). There, Chief Judge Charles Abbot, 1st Baron Tenterden of England, stated that “No attorney is bound to know all of the law; God forbid that it should be imagined that an attorney, or a counsel, or even a judge, is bound to know all the law, or that an attorney is to lose his fair recompense on account of an error, being such an error as a cautions man might fall into.” “In a litigation a lawyer is well warranted in taking chances. To some extent litigation is a game of chance. The conduct of a lawsuit involves questions of judgment and discretion as to which even the most distinguished members of the profession may differ. They often present subtle and doubtful questions of law. If in such cases a lawyer errs on a question not elementary or conclusively settled by authority, that error is one of judgment for which he is not liable.” Attorney fees have always been sacrosanct.
Put another way, the divide seems to be between the elementary mistake (think: statute of limitations) and the complex error (think: a lousy expert.) Many a defendant attorney will win dismissal on the “attorney judgment” rule.
‘A Good Story’
Over the past 50 years, litigation has become more intense, more detailed, more document based, more expert supported and has started to involve vast amounts of data previously unknown. As discovery has become much more complex the general practice of legal malpractice litigation has correspondingly deepened. The judgment rule remains strong, and routinely applied. Bison Capital Corp. v. Hunton & Williams, 2019 NY Slip Op. 30894(U) (S. Ct. New York) Moreover, the Appellate Division still relies upon the Byrnes case, using the very same language. “It follows that selection of one among several reasonable courses of action does not constitute malpractice. Attorneys are free to act in a manner that is ‘reasonable and consistent with the law as it existed at the time of representation’ without exposing themselves to liability for malpractice.” Bua v. Purcell & Ingrao, P.C., 99 A.D.3d 843 (2d Dept. 2012); Darby & Darby v. VVSI Intl., 95 N.Y.2d 308 (2000); Noone v. Stieglitz, 59 A.D.3d 505 (2d Dept. 2009).
The shield afforded by the attorney judgment rule is wide, but limited to that which is reasonable. The attorney must “offer a reasonable strategic explanation.” Ackerman v. Kesselman 100 A.D.3d 577, 579 (2d Dept. 2012); Pillard v. Goodman, 82 A.D.3d 541, 542 (1st Dept. 2011) “Under the attorney judgment rule, an attorney’s ‘selection of one among several reasonable courses of action does not constitute malpractice.’” Rosner v. Paley, 65 N.Y.2d 736; Bua, 99 A.D.3d 843. To establish entitlement to the protection of the attorney judgment rule, an attorney must offer a “reasonable strategic explanation” for the alleged malpractice. Pillard, 82 A.D.3d at 542. The outcome is strongly dependent on a good story.
When the attorney’s story trends toward a good explanation, with a plausible scenario, courts will side with the attorney. The Appellate Division routinely describes arguments that an attorney departed from good and accepted practice as one that amounts to “nothing more than dissatisfaction with the attorney’s strategic choice,” which cannot support a claim of legal malpractice. Tantleff v. Kestenbaum & Mark, 131 A.D.3d 955, 958 (2d Dept. 2015); Pere v. St. Onge, 15 A.D.3d 465 (2d Dept. 2005). On the whole, the cases indicate a bias towards “judgment” with the attorney winning dismissal.
There has been successful opposition to the judgment doctrine, but it is infrequent. One successful case is Kowalska v. Budin, Reisman & Schwartz, P.C., 5 A.D.3d 196 (1st Dept. 2004) where the court found insufficient “defendants’ argument that limiting the target of the underlying lawsuit to the Board of Education was a non-actionable exercise of judgment as a matter of law.” This was a labor law claim. Defendant attorney started the case only against the Board of Education but not against the property owner (City of New York) or the general contractor. Plaintiff claimed negligence in the failure to sue all parties. The court found defendant’s explanation insufficient. “More relevant is the reasonableness of their decision not to bring suit against the property owner.”
In another finding for plaintiff, the court wrote: “To establish entitlement to the protection of the attorney judgment rule, an attorney must offer a ‘reasonable strategic explanation’ for the alleged negligence.” Ackerman v. Kesselman, 2012 NY Slip Op 7260 (2d Dept. 2012). Plaintiff was an officer of an LLC. The LLC entered into an employment agreement which it breached. Plaintiff was not a party to the agreement, did not sign the agreement individually and bore no personal liability under the employment contract. Nevertheless, he was sued, and the attorneys failed to move for dismissal. Eventually, judgment was entered against the plaintiff. The legal malpractice complaint sufficiently alleged that there was no apparent strategic reason for allowing plaintiff to remain a party to the arbitration, which exposed him to potential liability for the LLC’s breach of contract.
However, many more examples of successful “strategy” defenses are found. In Hand v. Silberman, 15 A.D.3d 167 (1st Dept. 2005), plaintiff was involved in an administrative proceeding and claimed injury when she was directed to undergo drug or alcohol testing. As a trial strategy, her attorneys entered into a stipulation “that the employer had a reasonable suspicion that she was using alcohol or drugs” in order to minimize testimony on that issue. When defendant attorneys entered into the stipulation it was “a strategy to avoid emphasis on plaintiff’s pre-test conduct and to concentrate on her claimed reasons for failing to submit to the test.” The legal malpractice case was successfully defended on this strategic choice.
The choice not to call a witness was “clearly a reasonable strategic decision which did not constitute malpractice.” L.I.C. Commercial v. Rosenthal, 202 A.D.2d 644 (2d Dept. 1994). “Mishandling” of an economics witness at the trial, or the effect of an interim settlement upon a tribunal were insufficient. Pacesetter Communs. v. Solin & Breindel, P.C., 150 A.D.2d 232 (1st Dept. 1989). The failure to use all of the allotted time in oral argument and the failure to specifically address all of the issues on an appeal was a strategic decision not actionable. Holmberg, Galbraith, Holmberg, Orkin & Bennett v. Koury, 176 A.D.2d 1045 (3d Dept. 1991). Consolidation of one action with another is a reasonable strategic decision, even if an error. Brill & Meisel v. Brown, 2012 NY Slip Op 32107U.
Similarly defensible was a legal malpractice case against product liability attorneys after judgment in favor of plaintiff was vacated on the basis that the expert presented was unqualified. Once the expert was deemed unqualified, judgment in favor of plaintiff was vacated and dismissed. The legal malpractice case was successfully defended on the basis that selection of even an unqualified expert was a “reasonable exercise of their judgment regarding how to proceed in the trial of the underlying action.” Dimond v. Kazmierczuk & McGrath, 15 A.D.3d 526 (2d Dept. 2005).
A failure to include a mortgage provision in the terms of a foreclosure sale shifting the burden for payment of the transfer taxes to the purchaser was strategic and not actionable. Pere v. St. Onge, 15 A.D.3d 465. A physician was charged with professional misconduct on the claim that he had sexual relations with women upon whom he performed abortions, and that he lied concerning his history of drug abuse. He was able to negotiate a settlement and agreed to a one- year suspension of his license and then unsuccessfully sued his attorney on the basis that a better choice would have been to accept a revocation, for he could then have reapplied for the license and would have been in a “better position.” This claim failed. Holschauer v. Fisher, 5 A.D.3d 553 (2d Dept. 2004).
An oft-cited case in the First Department is Dweck Law Firm v. Mann, 283 A.D.2d 292 (1st Dept. 2001). “Attorneys may select among reasonable courses of action in prosecuting their client’s cases without thereby committing malpractice, so that a purported malpractice claim that amounts only to a client’s criticism of counsel’s strategy may be dismissed.”
Other examples of dismissals based upon judgment calls are: choosing to prosecute a RICO claim to the exclusion of all others. Ideal Steel Supply v. Beil, 55 A.D.3d 544 (2d Dept. 2008). The Third Department cogently stated this side of the argument: Defendant “challenges some strategic choices and cites alleged missteps by plaintiffs during the course of their representation. However, the record of the Family Court custody proceedings reveals that [attorney] Stiglmeier’s advocacy ‘did not fall below the ordinary and reasonable skill and knowledge commonly possessed by a member of the profession.’ Holmberg, Galbraith, Holmberg, Orkin & Bennett v. Koury, 176 A.D.2d 1045 (3d Dept. 1991); indeed [attorney] Stiglmeier assertively placed a cogent theory before the court, and with few exceptions, proper and timely objections were made, and appropriate and relevant questions were asked on direct and cross-examination.” Bixby v. Somerville, 62 A.D.3d 1137 (3d Dept. 2009). Potential or different tactics in a child custody contest were not sufficient departures for a legal malpractice case. Alter & Alter v. Cannella, 284 A.D.2d 138 (1st Dept. 2001).
The take-away from the question of judgment vs. departure is that there is little consistency in this highly fact-based yet subjective area. Courts lean toward finding judgment over malpractice. The rule is very clearly stated in Dweck. A reasonable strategic course of action taken by the attorney is immune to legal malpractice actions. If the criticism amounts only to questions of strategy, there will be a dismissal of the legal malpractice case. What is a clear departure from good and accepted standards to one court is a strategic sally, and not actionable to a different court. When no reasonable strategic reason can be stated there will be actionable legal malpractice. Which of the two polar opposite outcomes is reached is itself a judgment call.
Andrew Lavoott Bluestone is a Manhattan-based attorney specializing in legal malpractice litigation and is board certified in legal malpractice by the American Board of Professional Liability Attorneys. He is an adjunct law professor and the author of the New York Attorney Malpractice Blog, at blog.bluestonelawfirm.com.