4-7 Judgmental Immunity

• Jurisdiction: United States

4-7 Judgmental Immunity

Generally speaking, an attorney who acts with reasonable care and skill will not be held liable because his or her predictions about the law, or tactical decisions made in pursuing the client's case, turn out to be wrong.²³⁸ This is known as the "judgmental immunity" doctrine. It also is called the "error-in-judgment" rule.

Crosby v. Jones²³⁹ arose from an automobile accident. The Joneses hired Crosby to represent them. Crosby agreed to release the other driver and pursue only the driver's employer. The employer was granted summary judgment, which was affirmed on appeal. The Joneses then sued Crosby for malpractice.

The trial court granted Crosby summary judgment, finding that his decision to release the driver was amply supported by existing precedent. The Second District Court of Appeal reversed, holding that the issue should have gone to the jury because the law Crosby had relied on recently had become unsettled.²⁴⁰ In reinstating the summary judgment for Crosby, the Florida Supreme Court wrote:

Florida has long held that an attorney may be held liable for damages incurred by a client based on the attorney's failure to act with a reasonable degree of care, skill, and dispatch. . . . This does not mean, however, that an attorney acts as an insurer of the outcome of a case. Good faith tactical decisions or decisions made on a fairly debatable point of law are generally not actionable under the rule of judgmental immunity. . . .
The rule of judgmental immunity is premised on the understanding that an attorney, who acts in good faith and makes a diligent inquiry into an area of law, should not be held liable for providing advice or taking action in an unsettled area of law. . . .
At the time Crosby entered the dismissal in this case, this Court had clearly stated that section 768.041(1), Florida Statutes (1973), abolished the common law rule that a discharge of one joint tortfeasor discharged all other tortfeasors. Sun First Nat'l Bank v. Batchelor, 321 So. 2d 73 (Fla. 1975) . . . .
When Crosby entered the dismissal with prejudice, our decision in Batchelor was over ten years old, the Restatement and the case law in Crosby's own district supported his action, and the only case law to the contrary was the opinion issued outside of Crosby's district in Walsingham v. Browning, 525 So. 2d 996 (Fla. 1st DCA 1988) . . . .
Although, in light of Walsingham, the law on this issue could have been construed to be unsettled at the time Crosby entered the dismissal, the law was strongly in his favor and the law of his own district supported his action. The fact that the Second District . . . relied on Walsingham in finding that the dismissal barred the subsequent claim against the passive tortfeasor should not subject Crosby to a malpractice claim or require him to defend his action before a jury. This is exactly the type of situation that the error-in-judgment rule was designed to cover. Thus, a contrary conclusion would effectively eliminate the error-in-judgment doctrine in this state.
Further, we conclude that there was no duty to inform the Joneses of the conflicting case law on this issue under these circumstances. . . . Attorneys cannot be placed in the position of having to accept direction from clients on intricate interpretations of the correct or current state of the law. The attorney, not the client, is the individual trained to interpret the law. This does not mean that an attorney should never be required to inform a client regarding a conflict in the law; however, when an interpretation has been made as to the state of the law in a given district and that interpretation has a proper basis of support, an attorney should not be required to compromise a reasoned judgment by having to factor into the judgment the client's reasoning on a fine point of law.²⁴¹

The attorney's good faith and diligent inquiry are questions of fact. The appellate court in DeBiasi v. Snaith²⁴² indicated that the attorney's actions in failing to timely seek a motion for certification were not "fairly debatable" and did not deal with an "unsettled area of the law" to which judgmental immunity would apply; thus, it reversed summary judgment in the attorney's favor.²⁴³ The DeBiasi court held that "Crosby v. Jones teaches that the lawyer who seeks the protection of judgmental immunity must have acted in good faith and made a diligent inquiry into that area of the law."²⁴⁴ Because the issues of good faith and diligent inquiry remained unresolved, the "case was not ripe for summary disposition."²⁴⁵

Judgmental immunity does not relieve an attorney from the duty to exercise ordinary care. Both Crosby and DeBiasi were relied on in Sauer v. Flanagan and Mani-otis, P.A.²⁴⁶ Sauer sued her attorneys, alleging that they failed to properly advise her regarding her rejection of a $1 million offer of judgment. The...