Matthew Weisberg

Every professional has the right to use their "professional judgment." That is, a mal result does not necessarily mean malpractice if the adverse result was causative of the use of the professional's judgment.

The professional judgment rule immunizes against a negligence action as effectively eliminating the necessary element of standard of care deviation.

A lawyer cannot be held liable for malpractice as long as he uses judgment that is expected by the standard of accepted legal practices and has researched all the applicable principles of law necessary to render that judgment. If, in fact, you find that in the exercise of judgment this lawyer selected one of two or more courses of action, each of which in the circumstances has substantial support as proper practice by the legal profession, you should not find a lawyer liable for malpractice if the course chosen produces a poor result, see Pa. SSJI 15.30 (Civ)–Lawyer Malpractice: Standard of Care.

How is the minority accepted legal practice determined? Said differently, in this "two schools of thought" jury instruction, how are the majority and minority standards of care established?

In reading the pattern jury instruction alone, it would appear the jury determines upon a "battle of the experts." However, pattern jury instructions are suggestions—not necessarily reflective of the law.

It is clear that an attorney is not a guarantor of success: "An attorney at law is not liable to his client for a failure to succeed, resulting in loss to the client, unless this is due to his mismanagement of the business entrusted to him through bad faith, inattention or want of professional skill … for loss to his client, resulting from the lack of measured professional duty and attainments, he must be held liable; and such loss forms an equitable defense to his demand for compensation," (quoting Enterline v. Miller, 27 Pa. Super. 463, 467 (1905)). "There is no presumption that an attorney has been guilty of a want of care, arising merely from a bad result. To the contrary, an attorney is presumed to have discharged the duties of his representation until the opposite has been made to appear," (quoting Mager v. Security Insurance Groups, 368 F. Supp. 418, 422 (E.D. Pa. 1973), aff'd, 507 F.2d 1338 (C.A.3 1974).

"An attorney does not ordinarily guarantee the soundness of his opinions, and accordingly is not liable for every mistake he may make in his practice. He is expected, however, to possess knowledge of those plain and elementary principles of law which are commonly known by well-informed attorneys, and to discover those additional rules of law, although not commonly known, may readily be found by standard research techniques." See Smith v. Lewis, 530 P.2d 589, 595 (Cal. 1975).  "… An attorney should and must use his or her best judgment, but should not be held liable for errors in strategy that only appear in hindsight." However, "… the attorney may not hide behind the 'exercise of judgment' defense if errors are caused by ignorance."

The pattern jury instructions' subcommittee note is illustrative of the ambiguity of the professional judgment rule.

In Bailey v. Tucker, 621 A.2d 108 (1993), the Supreme Court held that a criminal defense attorney may not be legal malpractice negligence prosecuted by a putative legal malpractice plaintiff (former client) until criminal exoneration. As to damages, Bailey stands for the proposition that even post-exoneration, the legal malpractice plaintiff's attorney must prove the underlying criminal defendant (now: legal malpractice plaintiff) "actually innocent."

In reaching the above result, the court reasoned that—as a matter of public policy—a criminal defense attorney is immune prior to her client's exoneration from a legal malpractice action to foster that attorney's use of attorney professional judgment, among other public policy reasons.

But, Bailey's professional judgment reasoning is dicta (and, further, the case is specifically differed from legal malpractice arising out of civil prosecutions).

Notwithstanding, the pattern jury instructions' subcommittee note, cases therein, and Bailey, speak to the well-established professional judgment rule akin to legal malpractice actions (as in all professional liability complaints). That said, this author has not found a Pennsylvania Supreme Court case explicitly adopting the above-referenced pattern jury instruction espousing the professional judgment rule—but, perhaps because it is so well-recognized.

How does one prove an attorney defendant's use of professional judgment?

That attorney's own testimony about the mechanisms employed to reach the course of action albeit with an adverse result is paramount. Said another way, the attorney herself can testify as to why the strategy was employed as well as the foundation for that choice.

An expert can buttress that testimony (or even provide additional bases).

The lack of the legal malpractice plaintiff's expert's testimony regarding the attorney defendant's deviation from the standard of care, as well as foundation thereupon that opinion, would be seemingly an absolute defense: except the Supreme Court has never adopted the requirement of a legal malpractice expert.

In Lentino v. Fringe Employee Plans, 611 F.2d 474 (1979), the U.S. Court of Appeals for the Third Circuit held that no expert testimony should be required as the judge is the legal expert (i.e., can make her own decisions if a bench trial or can give jury instructions in a jury trial). In a plethora of workers' compensation cases—of all places—it has been repeatedly held that an expert may not state legal conclusions.

Thus the irony: there appears two schools of thought as to whether even an expert is required in a legal malpractice matter. The most accepted route is that a legal malpractice expert is required by the plaintiff. If a professional judgment defense is mounted so too for the defense.

Case law itself may lend to the foundation necessary to defend upon a minority school of thought theory. If the weight of authority favors a majority position but is not explicitly dispositive then it could be argued the attorney defendant's reasoned choice is itself a minority position if buttressed by experience, research, case law or the like.

Who decides?

The pattern jury instruction indicates the jury decides. However, since the professional judgment defense is a mix of fact and law, summary judgment may be appropriate (even preliminary objections).

In this author's view the professional judgment rule is not employed enough, likely because it is often ineffectual. It is arguably ineffective because ours is one of the few professions where the adverse result is accompanied by a judicial opinion supporting it.

While the malpractice may seem evident upon the court's underlying opinion, that opinion may not even be admissible in the legal malpractice action because the attorney was not a party thereto (e.g., the attorney was not a party for collateral estoppel or res judicata purposes).

Regardless that the attorney was not a party, the underlying adverse opinion seems always to creep in and can be practically dispositive of liability.

If, for example, there is statutory ambiguity. And, the court rules against the ultimately legal malpractice attorney defendant's argument in favor of dismissal then that opinion may seem dispositive of that attorney's liability. The court said what the statute was (and presumably backed it up with rules of construction if not precedent). But, it is this situation that regards the professional judgment rule; absent pure negligence, the attorney may have had a reason to argue notwithstanding the dispositive adverse result.

The professional judgment rule should be employed more. Underlying opinions should not be admitted so readily. A "battle of the experts" scenario does not necessarily impair summary judgment from being granted. An expert may not even be necessary since the court is the judge of the law (while the jury is the judge of the facts).

An attorney should be free to argue a minority or even a position of first impression without legal malpractice ramification.

Matthew B. Weisberg is the managing partner of Weisberg Law. He focuses his practice on consumer and individual rights throughout Pennsylvania and New Jersey. Weisberg Law represents victims of legal malpractice and other professional negligence resulting in financial injury, fraud, civil rights violations, consumer abuse and foreclosure actions. Contact him at [email protected].