Departures or Mistakes

Author: Andrew Lavoott Bluestone
Date: June 28, 2013


What is a departure from good and accepted practice? Another way of asking this question is to ask whether the attorney possesses a reasonable degree of skill and is familiar with the rules regulating practice in actions of the type which the attorney undertakes. Is the attorney familiar with the principals of law which are well settled in the practice of law.

Reasonable care means that degree of skill which is commonly used by an ordinary member of the legal profession. It is important to note that the rules of legal malpractice do not require that the defendant meet the highest levels of specialization. In law there is little specialization, and while all attorneys are required to know the rules of practice, and the well settled principals of law, no one is required to be the very top of his/her field.

This is important, because a defendant can successfully defend mistakes and claims of legal malpractice by saying, in essence, “sure, there were better ways of doing this, but the procedure I chose showed a reasonable degree (if not the best or highest degree) of skill.

When an attorney fails to exercise the degree of care, skill and diligence commonly possessed by a member of the legal profession, there is often a recognized and predictable result. A case is dismissed, a time limit is not met, papers are not filed in the right court, the wrong party is sued, a poor investigation is undertaken, an incorrect losing argument is made.

In most of these examples, it’s obvious that the attorney did not act with the reasonable degree of skill that is required. Does it matter whether the rest of the work is very good? Does that excuse the mistake that was made.

For the most part, the answer is no. It does not matter whether the catch-up, or the attempt to fix a problem is very subtle, very smart, or even very good. So long as it is not successful, it will not excuse the original mistake.

No attorney guarantees results, and cases never are brought on the basis that the attorney guaranteed success, and then failed. What is far more common is that the claim is made that the attorney was ignorant of the rules of practice, or failed to comply with discovery rules, or failed to prepare an adequate stipulation, or failed to show up at court on a specific day, or failed to file his papers on time.

Other claims might be that the attorney violated the Code of Professional Responsibility or its successor, and that there was a conflict of interest, or the attorney intentionally failed to undertake some aspect of the work. More often, there is a dispute over whether the attorney chose among several reasonable strategies, and chose one that did not succeed. This issue is known as the “attorney judgment rule. ” In general the selection of one among several reasonable courses of action does not constitute malpractice, and the court will decide this issue based on the attorney’s reasonable explanation of why he did exactly what he did.

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