Cook, Flanagan and Berst v. Clausing, 38735
| Citation | 73 Wn.2d 393,438 P.2d 865 |
| Decision Date | 21 March 1968 |
| Docket Number | No. 38735,38735 |
| Court | United States State Supreme Court of Washington |
| Parties | COOK, FLANAGAN & BERST, Co-partners, Respondents, v. H. P. CLAUSING and Marjorie S. Clausing, his wife, and the community they compose, Glen Deer and Keitha Deer, his wife, and the marital community they compose, and as joint adventurers, Appellants. |
Kumm, Maxwell, Peterson & Lee, F. Robert Lee, Seattle, for appellants.
Davies, Pearson, Anderson & Pearson, Wayne J. Davies, Tacoma, Horswill, Keller, Rohrback, Waldo & Moren, Pinckney M. Rohrback, Seattle, for respondents.
This is an appeal from a judgment entered upon a jury verdict awarding attorney fees.
The issue framed by the defendants' answer to the plaintiffs' complaint, and by the defendants' counterclaim and plaintiffs' reply thereto, is whether the plaintiffs' attorneys negligently performed services, and if so, whether they were liable for damages resulting therefrom to the defendants.
The jury returned a verdict in favor of the plaintiffs, awarding them $4,500 for services performed, and necessarily found against the defendants on the malpractice issue.
The defendants' assignments of error are directed to three instructions given by the trial court on the issue of negligence, and to the failure of the court to give an instruction proposed by the defendants.
The defendants in their argument place primary emphasis upon the trial court's alleged error in giving instruction No. 16:
An attorney is not liable for a mere error of judgment if he acts in good faith and in an honest belief that his acts and advice are well founded and in the best interest of his client. In the absence of an express agreement, an attorney is not an insurer or guarantor of the soundness of his opinion or of the successful outcome of litigation or of the validity of an instrument he is engaged to draft.
The defendants contend that the instruction is erroneous because it fails to qualify the statement, that an attorney is not liable for 'a mere error of judgment if he acts in good faith and in an honest belief that his acts and advice are well founded and in the best interest of his client,' with the proviso that such an error in judgment must itself fall short of negligence if the lawyer is to be protected from liability.
We agree. The instruction is patently misleading and standing alone is an incorrect statement of the law.
The plaintiffs argue, however, that this instruction is correct when considered with the other instructions given, particularly the trial court's instructions Nos. 12 and 13. This argument might have been tenable had those instructions been full and correct statements of the law. Instruction No. 12 reads:
An attorney at law, when he enters into the employ of another person as such, undertakes that he possesses a reasonable amount of skill and knowledge as an attorney, and that he will exercise a reasonable amount of skill in the course of his employment, but he is not ordinarily a guarantor of results and is not liable for the loss of a case unless such loss occurred by reason of his failure to possess a reasonable amount of skill or knowledge, or by reason of his negligence or failure to exercise a reasonable amount of skill and knowledge as an attorney.
We agree with the defendants that this instruction is also erroneous. It fails to set forth a standard for the degree of skill and knowledge that an attorney undertakes to exercise on behalf of his client. In a case based on an allegation of negligent malpractice, it is essential for the guidence of the jury that the court set forth in its instructions the applicable standard of conduct against which the actions complained of are to be measured.
The Restatement (Second) of Torts, § 299A (1965), states the standard as follows:
Unless he represents that he has greater or less skill or knowledge, one who undertakes to render services in the practice of a profession or trade is required to exercise...
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...¶ 27 Washington courts never have expressly adopted the judgmental immunity rule, but they have applied similar principles. In Cook, Flanagan & Berst v. Clausing, our Supreme Court addressed an error of judgment jury instruction, which stated, “An attorney is not liable for a mere error of ......
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