Washington Appellate Opinion on “Attorney Judgment Rule” May Aid Design Professionals Trying to Satisfy Standard of Care

The Washington Court of Appeals recently adopted the “attorney judgment rule” to determine when a judgment decision violates an attorney’s duty of care.  In so ruling, the Court of Appeals relied upon a similar “error in judgment rule” applied in medical malpractice actions.  Although no similar case has addressed design professionals in Washington, the court’s ruling provides a solid foundation for design professionals to argue that decisions made within a range of “reasonable alternatives” satisfy the standard of care.

An attorney may be liable for legal malpractice for failing to properly evaluate a case for settlement and other pretrial strategic decisions.  On April 24, 2014, the Washington Court of Appeals, Division Two, issued the first Washington appellate opinion recognizing the “attorney judgment rule” — Clark County Fire District No. 5 v. Bullivant Houser Bailey PC, 2014 Wash. Ct. App. Div. II 42864-4 (April 24, 2014).  The attorney judgment rule “determines when an attorney’s error in professional judgment breaches his or her duty of care.”

Clark County Fire District No. 5 arose out of a legal malpractice action filed by a local fire district and its insurer against the fire district’s previous attorney for losing a $3.2 million sexual harassment lawsuit.  The attorney moved for summary judgment on most of the legal negligence claims asserted, including allegations of failure to properly evaluate the case for settlement purposes, mishandling various pretrial matters, and failure to preserve an issue for appeal.  The trial court granted the attorney’s motion and the trial court dismissed the claims, finding as a matter of law that the attorney could not be liable to his client for “judgment decisions.”

Upon review, the appellate court found all of the conduct at issue involved the exercise of the attorney’s professional judgment.  The appellate court established a two-prong test for determining whether the “attorney judgment rule” applied, noting that an attorney cannot be liable for making an erroneous decision involving honest, good-faith judgment, if:

(1)    the attorney’s “decision was within the range of reasonable alternatives from the perspective of a reasonable, careful and prudent Washington attorney;” and

(2)   the attorney “exercised reasonable care” in making that judgment decision.

Applying this test to the case at hand, the appellate court reviewed the record and found (1) factual disputes existed as to whether the attorney’s judgment decisions regarding settlement advice, pretrial handling of the case, and failure to preserve an issue for appeal were “within the range of reasonable alternatives from the perspective of a reasonable, careful, and prudent attorney in Washington”; and (2) the opinions of the fire district’s legal malpractice experts created questions of fact regarding most of the fire district’s allegations.

Accordingly, the appellate court reversed the trial court’s grant of summary judgment in favor of the attorney on all of the fire district’s claims except two (the failure to object to the improper closing argument and the failure to file an appropriate motion in limine regarding the subject of the improper argument) and remanded the case to the trial court for further proceedings.