Attorneys retained to provide expert support or testimony aren’t immune from malpractice claims under the witness-immunity doctrine simply because their services included or intended to include expert testimony. That’s the gist of the Michigan Court of Appeals’ decision in Voutsaras v Bender, one of the first published decisions this year.

That legal-malpractice case arose out of a lawsuit involving the foreclosure of a commercial mortgage and note made by a husband and wife. The husband and wife hired several attorneys and their law firm (referred to in the opinion as “the law firm defendants”) to represent them in the foreclosure proceedings. The law firm defendants, in turn, hired two attorneys and their respective law firms (referred to in the opinion as the “Mogill defendants”) to provide litigation support and expert testimony at trial. Unfortunately for the husband and wife, the foreclosure proceedings came to an end when the trial court granted summary disposition in favor of the opposing party.

The wife passed away shortly thereafter, and her estate sued the law firm defendants and the Mogill defendants for legal malpractice. As to the malpractice claim against the Mogill defendants, the estate alleged that they “breached their duty to the estate by failing to properly investigate the facts required to formulate their opinions, failing to understand the applicable standards, and failing to provide a competent professional opinion.” However, the trial court dismissed the malpractice claim against the Mogill defendants. The trial court determined that the witness-immunity doctrine, which immunizes witnesses from liability for the consequences of their testimony, protected the Mogill defendants.

But the Court of Appeals reversed. The Court held that “licensed professionals owe the same duty to the party for whom they testify as they would to any client, and witness immunity is not a defense against professional malpractice.” In reaching this holding, the Court recognized that the case presented an issue of first impression in Michigan. Turning to decisions from the United States Supreme Court and seven other states’ appellate courts, the Court concluded that attorneys retained to provide expert support and testimony cannot be “absolutely immunized from professional malpractice claims where they already owed a duty of professional care, merely because part of their retention included the provision of expert testimony.” This, the Court explained, would extend the witness-immunity doctrine too far.

The Court was very careful, though, to make clear that its decision applied only to cases in which the expert’s testimony was allegedly incompetent, not to cases in which the expert’s testimony was simply unfavorable. The Court explained that, “to the extent [the estate] may assert that the Mogill defendants gave testimony that was unfavorable to [the estate], such assertions unambiguously run afoul of the witness immunity doctrine in Michigan.” However, the Court continued, “whether witness immunity protects the Mogill defendants from giving professionally incompetent testimony, which might or might not be favorable, was clearly not a matter considered” in previous cases.

The Court also limited its decision to resolving the issue of “whether defendants are immune from liability” only. The Court expressly declined to address the Mogill defendants’ argument that the estate failed to establish the existence of a legal duty. The Court presumed, for the sake of argument, that the Mogill defendants breached their professional duty to the estate. But the Court ultimately left that issue for the trial court to resolve.

What this Decision Means for Attorneys

Although Voutsaras v Bender resolves an issue of first impression in Michigan, the decision itself is quite narrow: Attorneys—and, most likely, other licensed professionals—whose conduct may fall below the requisite standard of care aren’t immune from liability for malpractice simply because their services included or intended to include expert testimony.

Collins Einhorn Appellate Attorney Peter J. Tomasek

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