Division I of the Washington Court of Appeals in Seattle recently discussed the professional judgment rule in Dang v. Floyd, Pflueger & Ringer, PS, Wn. App.2d, 2022 WL 9732289 (Oct. 17, 2022). Under that rule, a lawyer is generally not liable for legal malpractice if the lawyer was simply exercising reasonable professional judgment.
The plaintiff doctor in Dang argued that his defense counsel in a regulatory hearing before the Washington Medical Quality Assurance Commission made decisions on witnesses and exhibits that led to an unfavorable outcome. The defendant law firm in the subsequent legal malpractice case moved for summary judgment relying on the professional judgment rule. The trial court granted the motion. The Court of Appeals affirmed.
Although the facts involved in Dang are case-specific, the Court of Appeals’ opinion includes a very useful summary of both the procedural and substantive aspects of the professional judgment rule.
On the procedural side, the Court of Appeals held that the professional judgment rule is not an affirmative defense that must be pled in a defendant’s answer. Rather, the court viewed the rule in the context of legal malpractice as essentially rebuttal evidence that the standard of care had been met.
On the substantive side, the Court of Appeals outlined the way the professional judgment rule plays out:
In general, an error in professional judgment or in trial tactics, without more, does not subject an attorney to liability for legal negligence merely because the professional judgment or tactic led to a disadvantageous outcome. … The attorney judgment rule is dependent on the attorney arriving at a professional judgment or trial tactic while exercising the standard of care consisting of “the degree of care, skill, diligence, and knowledge commonly possessed and exercised by a reasonable, careful, and prudent lawyer in the practice of law in this jurisdiction.” …The attorney judgment rule reflects that a range of strategic approaches may be reasonable and within the standard of care in a given representation, notwithstanding that a reasonable strategy based on an appropriate evaluation may not lead to the desire outcome.
Dang both clarifies the procedural point and offers a thorough summary of the substantive aspects of the professional judgment rule.
Mark Fucile. Mark handles professional responsibility, regulatory and attorney-client privilege matters throughout the Northwest. He has chaired the WSBA Committee on Professional Ethics and is a co-editor of the Bar’s publications “Law of Lawyering in Washington” and the Legal Ethics Deskbook. He can be reached at 503-224-4895 or mark@frllp.com.
