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Monthly Column - Attorney Liability: Defenses

Consistent with this monthly column on attorney liability, in adjusting a claim it is important to understand one's defenses:

Certificate of Merit: Pursuant to Pa.R.C.P. 1042.1, et seq., a professional liability claim asserted against a "licensed professional" requires a certificate of merit. A licensed professional includes "an attorney at law."

Within sixty (60) days of the filing of the Complaint (not Writ of Summons), plaintiff must file a certificate of merit signed by the attorney or party:

An appropriate licensed professional has supplied a written statement that there exists a reasonable probability that the care, skill or knowledge exercised or exhibited in the treatment, practice or work that is the subject of the Complaint, fell outside acceptable professional standards and that such conduct was a cause in bringing about the harm, or

The claim that the defendant deviated from an acceptable professional standard is based solely on allegations that other licensed professionals for whom that defendant is responsible deviated from an acceptable professional standard, or

Expert testimony of an appropriate licensed professional is unnecessary for prosecution of the claim.

A separate certificate of merit shall be filed as to each licensed professional against whom a claim is asserted.

On praecipe of the defendant, the prothonotary shall enter a judgment of non pros for failure of a certificate of merit provided that praecipe is preceded by a notice of intent (to enter judgment of non pros) for failure to file certificate of merit. When the non pros is entered, the burden shifts to the plaintiff to seek leave to open that non pros.

Prior to the lapse of the above sixty (60) day period (between the Complaint and required filing of the certificate of merit), plaintiff may seek an extension of that sixty (60) day period which, ordinarily, shall be granted.

The certificate of merit opinion statement upon which the certificate of merit relies need not be an expert opinion and, in fact, need only mirror the certificate of merit rule's language.

Unlike Pennsylvania, New Jersey allows for "substantial compliance" (as opposed to "strict" compliance) with their affidavit of merit statute. However, contrarily, once judgment is entered against plaintiff for failure to file the affidavit of merit in New Jersey (the affidavit is not filed by counsel but rather the opinion writer), a properly entered judgment for failure to file the affidavit is absolute and does not result in the burden-shifting vis-à-vis Pennsylvania's motion to open judgment of non pros. Also, in New Jersey, the sixty (60) days runs from the date of the malpracticing attorney's Answer (not the Complaint, as in Pennsylvania).

Pennsylvania courts have distinguished between an action in professional negligence and "ordinary negligence' vis-à-vis the requirement of a certificate of merit. An action in ordinary negligence does not require a certificate of merit no matter that action is alleged against an attorney. For example, an action in ordinary negligence may include a contractually obligated supervising attorney's failure to prevent the defalcation of settlement proceeds.

While Pennsylvania's certificate of merit statute is strictly construed, Pennsylvania courts have allowed the lifting of non pros for ministerial or clerical errors (such as, filing 15 instead of 16 certificates of merit - inadvertently omitting the last defendant). That said, tender of an actual expert report does not alleviate the obligation of filing the implicitly subsumed certificate of merit.

As many legal malpractice actions are begun pro se, the certificate of merit statute has effectively precluded ongoing prosecution if for no other reason than a layperson's lack of ability or knowledge vis-à-vis compliance. On the opposite hand, the certificate of merit obligation has created a sub-set of litigation over its strict compliance which is only tangentially related to the goal of the certificate of merit eliminating so-called "frivolous" litigation.

Pa.R.C.P. 1042.8 allow sanctions to be assessed against the filer of a certificate of merit who is unable to produce the underlying opinion statement following an unsuccessful prosecution (i.e., a false certification). Separately, no matter the Dragonetti statute explicitly discussing its requirement of the absence of "probable cause," it has recently been held a certificate of merit not required in a wrongful use of civil proceedings action. In harmonizing these differing positions by the courts, a compliant certificate of merit would effectively prove probable cause (so as to immunize the legal malpractice prosecuting counsel from a counter-action in Dragonetti).

Immunity:

Disciplinary Board Report: Filling a gap in Supreme Court case law regarding the liability of a disciplinary board reporter, the Pennsylvania Supreme Court has adopted 41 Pa.B. 3526 which holds,

All communications to the Board, a hearing committee, special master, or disciplinary counsel relating to misconduct by a respondent-attorney and all testimony given in a proceeding conducted pursuant to these rules shall be absolutely privileged and the person making the communication or giving the testimony shall be immune from civil suit based upon such communication or testimony.

Prior to this amendment, immunity did not extend to communications made or revealed in violation of the confidentiality requirement or were not pertinent to the proceeding. Thus, any disciplinary board reporter is entitled to absolute immunity notwithstanding that communication neither confidential nor relevant (i.e., such as, communications that are merely vindictive or tactical).

Judicial Litigation Privilege: Generally, an attorney may not be liable for pleadings or communications made towards the prosecution of a matter no matter how defamatory. That said, immunity is waived when the pleading or communication is published to a third-party (such as, newspaper).

Absolute Immunity: Generally, a judge or prosecutor is absolutely immune from any form of action (including, civil rights) arising from purported misconduct secondary to their official position. In upholding this tenet, the United States Supreme Court has held absolute immunity available to a county prosecutor who was alleged to have promulgated an office-wide policy of hiding evidence resulting, specifically, in a wrongful conviction with long-term prison sentence. But compare, the Third Circuit has recently held a prosecutor not immune for failing to alert the court, and thus, freeing a material witness from imprisonment (to procure that witness' trial testimony), when that witness' anticipated testimony was postponed - i.e., the witness was unreasonably imprisoned for a lengthy period of time due to the prosecutor's ministerial oversight in failing to alert the court so to allow that witness' perhaps interim freedom until trial was to then be re-commenced.

Contributory Negligence: Unlike a personal injury action, an affirmative defense of contributory negligence applies to a legal malpractice action given the limitations on Pennsylvania's comparative negligence statute. Contributory negligence is an absolute defense to a legal malpractice action.

By far, contributory negligence is the most striking fact defense.

For example, the failure of a client to seek substitute counsel or to, pro se, seek to correct the claimed malpracticing attorney's error may be a complete defense to that now plaintiff's legal malpractice action. Likewise, the contribution or even knowing allowance of a client towards that attorney's malpractice may also form a complete defense (such as, a client "hiding the ball" vis-à-vis facts or deadlines).

Collectibility: The inability for ultimate collection is an affirmative defense to a legal malpractice action. Being an affirmative defense, it is the malpracticing attorney's burden to prove the underlying action would have resulted in an "empty" judgment via the underlying action's defendant being "judgment proof" notwithstanding its success on the merits.

Statute of Limitations: An action in legal malpractice has a statue of limitations of two (2) years. The discovery rule applies. However, an action in breach of contract (which is often brought secondary to the legal malpractice action), has a statute of limitations of four (4) years. There has not been any precedent deliminating the damages available re legal malpractice v. breach of contract. In fact, Gorski seems to indicate a breach of contract action duplicative of legal malpractice action; thus, tacitly extending the legal malpractice statute of limitations (to be brought as a breach of contract action) to four years.

This author anticipates that Gorski's second bite at the apple will be distinguished in the near future so as to limit a breach of contract's remedy for legal malpractice relief (otherwise, there would be a legal difference in elements and limitations without practical effect).

Fee Agreement: The most effective defense to any form of attorney liability proceeding is the underlying fee agreement, which will be strictly construed against this drafter. The fee agreement should be written to anticipate any and all circumstances. As indicated in previous columns, the fee agreement may include an arbitration clause, statute of limitations shortening clause, refusal to appeal from arbitration or to an appellate court, requirement of client ongoing communications, choice of law selection clause, and otherwise as would be upheld in any contractual undertaking (i.e., subject to defenses of unconscionability, ambiguity, etc.).

Simply, a fee agreement which has a limited focus, clear scope, and well defined fee structure with provisions for client default should always be employed.

The above are the most common defenses to attorney liability. Since one's claimed liability is perhaps inevitable (if only given human error in a litigious time), to defend is to anticipate.

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