Change and the Standard of Care
Change and the Standard of Care
By Diane L. Karpman, immediate past chair, LACBA Professional Responsibility & Ethics Committee. Karpman of Karpman & Associates in Los Angeles represents attorneys in disciplinary matters and is an expert consultant and witness on legal ethics issues. The opinions expressed are her own.
I bet you’re reading this because you know that lawyers have affirmative obligations to keep abreast of the law. Since the law is in a never-ending state of flux, we must read and constantly engage in "reasonable research" — because things change.
The lynchpin of the attorney-client relationship is trust. Our clients trust us because they believe we’ll exercise our honest and independent judgment — judgment based upon knowledge of the past, personal experience, and information obtained from research. Lawyers are immune from liability if an issue involves an unsettled proposition of the law. This is known as the "venerable judgmental immunity rule", and it’s universally accepted.
To obtain the protection of the judgmental immunity rule (i.e., we aren’t liable for mistakes in unsettled areas of the law), we have to conduct reasonable research. The foundational basis of this rule "is the nearly absolute responsibility of attorneys to educate themselves about general laws, statutes, and legal propositions considered well defined." (Mallen & Smith, Legal Malpractice, (5th ed. 2000) V-3, §18.4, page 8) We aren’t clairvoyant and cannot see the future. To receive protection from the error of judgment rule, we must keep abreast of information generally known to the profession. General information includes information available in textbooks, court decisions, general literature in the profession, and knowledge that can be obtained by reasonable research. Smith v. Lewis (1975) 13 Cal. 3d 349.
Professional negligence comes in two varieties: simple generic "vanilla" mistakes usually called standard of care and those that are substantially more serious, which can be categorized as breach of fiduciary duties or breach of the standard of conduct. This is a subtle distinction that few lawyers understand. Let’s consider the impact and accessibility of information on these two different standards that govern our obligations.
The standard of care imposes liability on lawyers for negligence in the performance of their professional duties. The attorney-client relationship creates a duty to exercise the knowledge, skill, and ability ordinarily possessed and exercised by other lawyers similarly situated. The standard of care is transitory, dynamic, malleable, and ... moving, due to modern technology. Critical information was once written on papyrus or delivered by the pony express. We once sent letters, Federal Express, and facsimiles. Now we push a button to send e-mail.
The standard of conduct is static, eternal, and expresses our fiduciary duties of confidentiality, loyalty, and honesty, as defined by the Rules of Professional Conduct and the State Bar Act. Therefore, regardless of how we transmit information — by smoke signals or a message in a bottle — the content must be truthful, accurate, and an expression of our best reasoned judgment.
We live in the Information Age. Knowledge is instantly accessible via the Internet. This can complicate our lives. Sometimes we feel bombarded with too much information. A relevant decision that once would have taken months to be published in a book can now arrive online within an hour. What was once defined as "reasonable research" may be dramatically changing sometime soon.
Slow down — Take a deep breath. And remember, a digital search of 20 or 40 cases no longer requires pulling down heavy volumes and re-shelving them. Information, the predicate for the exercise of judgment, is available instantaneously. When suddenly struck by an idea, you don’t have to get dressed, schlep to the law library, park your car, find change for a photocopy machine, yada, yada, yada... But you do have to boot up — and always ask questions.
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