Recommending a Settlement (Continued from page 27)


been associated with the underlying trial, and the plaintiff can use the declaration filed by the attorney, the letters written to the insurance adjuster, the initial settlement demands and all the positive things the attorney told the client about the case as admissions to prove liability and damages.


Thomas, 351 Md. at 541-42, 718 A.2d 1201.24


WHAT DOES THIS MEAN? In articulating the “no reasonable at-


torney” standard, Prande purportedly set out to provide the legal system (and thus attorneys) a level of protection (but not immunity) from claims questioning attor- ney judgment calls, particularly in the area of settlement advice.25


That protection,


however, is illusory because the “reason- able” attorney presumably is one that acts within the standard of care. As observed by the Court of Appeals


in Thomas, the standard of care for legal malpractice originally was set forth in Cochrane v. Little, 71 Md. 323, 332, 18 A.2d 698, 701 (1889) and reaffirmed in Kendall v. Rogers, 181 Md. 606, 611, 31 A.2d 312, 314 (1943). It provides: [E]very client employing an attorney has a right to the exercise, on the part of the attorney, of ordinary care and diligence in the execution of the busi- ness intrusted to him, and to a fair average degree of professional skill and


24


The dissent would have affirmed a judgment in the amount of $25,000 representing the reasonable settlement value of the case as determined by the jury even though there apparently was no evidence that $25,000 would have been offered in settlement. Id. at 542, 718 A.2d at 1201.


25


Prande, 105 Md. App. at 655-66, 660 A.2d at 1064-65


knowledge; and if the attorney has not as much of these qualities as he ought to possess, and which, by holding him- self out for employment he impliedly represents himself as possessing, or if, having them, he has neglected to em- ploy them, the law makes him responsible for the loss or damage which has accrued to his client from their deficiency or failure of applica- tion.


Thomas, 351 Md. at 530, 718 A.2d at 1195, quoting Cochrane, supra, and Kendall, supra. By requiring the plaintiff to allege and


prove that no “reasonable” attorney would have given the settlement advice in dis- pute, Prande did no more than require the plaintiff to prove that the defendant at- torney failed to exercise “ordinary care and diligence” and “a fair average degree of professional skill and knowledge.” Com- pare MPJI 27:6 (“A lawyer is negligent if the lawyer does not use that degree of care and skill which a reasonably competent lawyer acting in similar circumstances would use.”). Consequently, despite its intention,


Prande did not establish a heightened level of protection from malpractice claims in- volving the exercise of professional judgment.26


Instead, Prande exposed


Maryland trial attorneys to liability for “judgment calls” thereby eliminating the argument that Fishow v. Simpson, 55 Md. App. 312, 462 A.2d 540 (1983) (holding that a counsel’s choice of trial tactics can- not be the basis for a malpractice claim)


26


As a practical matter, even if there were a true distinction in the standards articulated by Prande and Thomas, it is difficult to imag- ine that an expert of the opinion that settle- ment advice was unreasonable under the cir- cumstances (Thomas) would not also be of the opinion that no reasonable attorney would have recommended settlement (Prande).


reflects adoption of the “judgmental im- munity” rule.27 If there were any question following


Prande whether attorneys in Maryland could avoid malpractice liability by assert- ing the conduct being challenged involved an honest exercise of professional judg- ment, Thomas unequivocally answered the question in the negative – “[Judgment] calls, if challenged, can be examined in the light of the traditional standard ap- plicable to professional negligence actions.” 28 Ultimately, this is a proper result. The issue in any professional negligence claim is not whether the professional exercised judgment. Judgment is inherently in- volved in any professional activity. Irrespective of the profession involved, the issue is whether the defendant’s exercise of professional judgment was reasonable under the circumstances in light of the applicable standard of care. Thus, in the context of attorney malpractice, merely characterizing an act or omis- sion as a matter of judgment does not end the inquiry. The issue remains as to whether the attorney has exercised a reasonable degree of care or skill in representing his client.


Gelsomino v. Gorov, 149 Ill. App. 3rd 809, 814, 502 N.E.2d 264, 267 (1986). The practice implications of Prande


and Thomas are clear. Irrespective of the possibility of tort liability, attorneys are ethically bound to exercise diligence and competence in the handling of clients’ affairs.29


raised by Prande and Thomas should not 27


“Judgmental immunity” is a doctrine pro- tecting attorneys from malpractice claims arising from the exercise of professional judg- ment. See generally, RONALD E. MALLEN & JEFFREY M. SMITH, LEGAL MALPRACTICE, §§ 17.14, 29.7 (4th


ed. 1996). It has been ap-


plied to deny legal malpractice claims assert- ing failure to present relevant evidence at trial, inadequately cross-examining witnesses, failing to offer necessary expert witness tes- timony, and other matters found to be in- herently ones of professional judgment. See, e.g., Woodruff v. Tomlin, 616 F.2d 924, 930 (6th Cir.1980), cert. denied, 449 U.S. 888, 101 S. Ct. 246, 66 L. Ed. 2d 114 (1980); Hudson v.Windholz, 202 Ga. App. 882, 416 S.E.2d 120 (1992); Simko v. Blake, 448 Mich. 648, 532 N.W.2d 842 (1995); Rorrer v. Cooke, 313 N.C. 338, 329 S.E.2d 355 (1985); Stricklan v. Koella, 546 S.W.2d 810 (Tenn. App. 1976).


28Thomas, 351 Md. at 529, 718 A.2d at 1195. 29MD. RULES PROF. CONDUCT §§ 1.1, 1.3.


28 Trial Reporter Winter 2000


Thus, the potential for liability


Page 1  |  Page 2  |  Page 3  |  Page 4  |  Page 5  |  Page 6  |  Page 7  |  Page 8  |  Page 9  |  Page 10  |  Page 11  |  Page 12  |  Page 13  |  Page 14  |  Page 15  |  Page 16  |  Page 17  |  Page 18  |  Page 19  |  Page 20  |  Page 21  |  Page 22  |  Page 23  |  Page 24  |  Page 25  |  Page 26  |  Page 27  |  Page 28  |  Page 29  |  Page 30  |  Page 31  |  Page 32  |  Page 33  |  Page 34  |  Page 35  |  Page 36  |  Page 37  |  Page 38  |  Page 39  |  Page 40  |  Page 41  |  Page 42  |  Page 43  |  Page 44  |  Page 45  |  Page 46  |  Page 47  |  Page 48