In the seminal case of Simko v Blake, the Michigan Supreme Court defined the parameters of what’s become known as the “attorney-judgment rule” in the legal-malpractice context. The Court held that an attorney isn’t liable for “mere errors in judgment” if the attorney had a good faith, honest belief that his or her acts or omissions were well-founded in law and in the best interest of the client. Since Simko, the attorney-judgment rule has often been successfully used as a defense to legal-malpractice claims.
Recently, the Michigan Court of Appeals issued two opinions in which it addressed the attorney-judgment rule in the context of legal-malpractice claims arising out of deficient legal research. In Estate of Knudsen v Attorney and Ali v Attorney, the Court reversed summary-disposition orders in favor of attorneys. In both cases, the Court found that the trial court applied the wrong standard for the attorney-judgment rule.
In Knudsen, the clients claimed that the attorney committed legal malpractice by failing to bring a claim against municipal entities under federal admiralty law, which would’ve bypassed governmental immunity. The attorney argued that his research, which consisted of reviewing 30-50 case summaries on Yahoo.com, had revealed no basis to bring a claim under admiralty law. The clients argued that cursory research on a non-legal search engine isn’t enough to pass muster under the attorney-judgment rule. The trial court found that although the attorney had made a mistake, he hadn’t made a “gross error.” From that premise, the trial court concluded that the clients didn’t have an actionable legal-malpractice claim based on the attorney-judgment rule.
The Court of Appeals reversed, finding that the trial court erred in “misapplying” the attorney-judgment rule. The Court found that ample precedent supported a claim under admiralty law. By the same token, the Court found that the attorney’s legal conclusion—which was the product of deficient legal research—was wrong. The Court held that the attorney-judgment rule didn’t protect the attorney’s “judgment” not to plead a claim under admiralty law.
In Ali, the attorney represented the client (the employer) in an action for breach of an employment contract. The underlying matter resolved with a case evaluation award in the employee’s favor. After the matter resolved, the attorney advised the client to file a declaratory action to prevent the employee from seeking future net profits. Successor counsel later settled the declaratory action with the employee, who received additional settlement funds. In the subsequent legal-malpractice action, the client alleged that the attorney’s advice to file the declaratory action conflicted with prevailing case law. The attorney argued that the attorney-judgment rule protected his advice to file the declaratory action, which, in his view, had a valid legal basis. The trial court granted summary disposition in favor of the attorney, characterizing the attorney’s advice to file the declaratory action as “conceivable.”
The Court of Appeals reversed, again holding that the trial court applied the wrong standard under the attorney-judgment rule. Like Knudsen, the Court found that no valid support existed for the attorney’s interpretation of the law. Had the attorney conducted sufficient research, he would’ve discovered “plenty of case law” and authority establishing that he had no basis to advise the client to file a declaratory action.
What this Means for Attorneys
Despite these recent decisions, the attorney-judgment rule is alive and well in Michigan. When there’s a gray area or unsettled law as to a particular legal issue, an attorney’s decision to bring—or not bring—a specific claim should be protected by the attorney-judgment rule. The attorney-judgment rule protects attorneys who give strategic advice or make a tactical decision based on a good faith, honest belief that the advice or decision is well-founded in law. But in these two cases, the attorneys failed to conduct the preliminary research needed to inform their strategic decisions going forward. Conducting little to no research, or using a non-legal search engine, is not a “judgment call” or tactical decision, and advice flowing from inadequate legal research won’t be protected.