Judgmental Immunity - Defense or Delay?*
So you've recently filed a legal malpractice case on behalf of an important new client who was (obviously) not happy with his old attorneys. Over thirty days have passed since the defendant was served with the complaint and, confident that you pled all the elements of a legal malpractice claim, you are expecting to receive an answer to your complaint. Instead, you receive a motion to dismiss. Opening the defendant's brief you see his sole argument: "Plaintiff's Complaint Must Be Dismissed Based Upon the Doctrine of Judgmental Immunity." If you are like most lawyers, you will likely ask yourself, "What is Judgmental Immunity and how did I miss it?" Relax. Your case should be safe, for now at least. The popularity of the Doctrine of Judgmental Immunity, otherwise (and better) known as the "mistake in judgment" defense, has been on the rise. However, this "doctrine" is nothing more than a repackaging of the well-established rule that attorneys will not be held liable for "mere errors of judgment." See Spivack, Shulman & Goldman v. Foremost Liquor Store, Inc., 124 Ill.App.3d 676, 683-84 (1984). It used to be rare to see this "defense" raised in a motion to dismiss because virtually every case holding that attorneys cannot be liable for a mere error in judgment also hold that an attorney will be liable "when he fails to exercise a reasonable degree of care and skill." Id. And, of course, the question of whether an attorney's advice constitutes a mere error in judgment or an actionable failure to exercise a reasonable degree of care and skill is a question of fact, usually to be decided by the trier of fact after listening to expert testimony. Id. Given this background, why are so many defense attorneys now raising the "Doctrine of Judgmental Immunity" in motions to dismiss? Is there any indication that courts have given new teeth to this "defense" or are defense attorneys dragging out a benign old friend in order to buy additional time?
*Contributions to this posting were made by Sean B. Crotty
Here are some notable "Judgmental Immunity" cases from Illinois:
Barth v. Regan, 139 Ill.2d 399 (1990)
Profit Management Development, Inc. v. Jacobson, Brandvik and Anderson, Ltd., 309 Ill.App.3d 289 (1999)
Gruse v. Belline, 154 Ill.App.3d 595 (1987)
Goldstein v. Lustig, 138 Ill.App.3d 689 (1985)
Brainerd v. Kates, 68 Ill.App.3d 781 (1979)
House v. Maddox, 46 Ill.App.3d 68 (1977)
Brown v. Gitlin, 19 Ill.App.3d 1018 (1974)
I think, that is interesting for all.