Wednesday, January 18, 2012
The Idaho Supreme Court has held that a legal malpractice claim (and a related breach of contract claim) dies with the client.
Justice Horton dissents on the contract claim:
The majority expresses its concern that "[a] holding to the contrary would create a per se breach of contract action in every legal malpractice action." I would first note that this is a gross overstatement. The position I espouse only applies in instances involving express contractual undertakings. In this case, no one forced [the attorney] to enter into a contract prescribing the manner in which he would represent the client. Had he not elected to identify the manner in which he would perform his services, his duty to his client would be imposed by law, this action would sound in tort, and I would be joining with the majority.
I, too, have a concern for the result of this appeal. There is a very real concern that the decision of this Court will reinforce the perception, shared by many in our society, that courts will go out of their way in order to protect members of the bar. My position, which I believe to be well-grounded in existing law, simply recognizes that lawyers do not hold a special place in society that insulates them from the type of liability that any other party to a contract would face.
The claim involved allegations that the attorney failed to properly advise the client (who had been rendered a quadriplegic in an accident) of the effect of a settlement and release. (Mike Frisch)