Law can be a highly contentious field and the stakes are often very high. Litigation involving the court system is an emotional and sensitive process for the parties and their attorneys. Transactional issues such as estate planning and real estate transactions can often lead to costly errors as well. For whatever reason, when things don’t go the client’s way, there often arises allegations of misconduct or malpractice.
To prove malpractice in Michigan, a client has to prove negligence, or a failure by the attorney to do what a reasonably prudent attorney (one of ordinary learning, judgment, or skill) would have done in the same or similar circumstances. Or, the client would have to prove that the action by the attorney would not have taken under the same or similar circumstances by a reasonably prudent attorney. Simko v Blake, 448 Mich 648, 532 NW2d 842 (1995); Coleman v Gurwin, 443 Mich 59, 503 NW2d 435 (1993); see also Karam v Law Offices of Ralph J Kliber, 253 Mich App 410, 655 NW2d 614 (2002).
The four elements of negligence are duty, breach, causation and damages. The Michigan Rules of Professional Conduct (MPRC) provide the following duties owed by the attorney to the client:
- a specific duty of competence, MRPC 1.1
- a duty of diligence, MRPC 1.3
- a duty of prompt and reasonably complete communication, MRPC 1.4
- a duty of confidentiality, MRPC 1.6
- a duty to avoid conflicts of interests, MRPC 1.7–.10
- a duty to avoid the commingling of client funds, MRPC 1.15
The Michigan supreme court has held that “attorneys must only act as would an attorney of ordinary learning, judgment, or skill under the same or similar circumstances” and that “an attorney does not have a duty to insure or guarantee the most favorable outcome possible.” Simko v Blake, 448 Mich 648, 532 NW2d 842 (1995). The court stated that the decision whether to call witnesses in a case of an evidentiary hearing or trial, as long as it is done with full knowledge of the law and in good faith, is a tactical decision that the court may not question. Id. In Estate of Mitchell v Dougherty, 249 Mich App 668, 644 NW2d 391 (2002), the court followed Simko in finding that errors in judgment by attorneys acting in good faith are not actionable.
Assertions of a client’s contributory negligence usually fall within five factual patterns: (1) the failure of the client to supervise, review or inquire concerning the subject of the attorney’s representation; (2) the failure of the client to follow the attorney’s advice or instructions; (3) the failure of the client to provide essential information; (4) the client’s active interference with the attorney’s representation or failure to complete certain responsibilities regarding the subject matter; and (5) the failure of the client to pursue remedies to avoid or mitigate the effect of an attorney’s negligence. Ronald E. Mallen & Jeffrey M. Smith, Legal Malpractice §20.2 (4th ed 1996).
The leading Michigan case on comparative negligence in a legal malpractice context is Pontiac Sch Dist v Miller, Canfield, Paddock & Stone, 221 Mich App 602, 563 NW2d 693 (1997).
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