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McIntire v. Lee2/19/2003
ble standard of care in representing the client is a question of fact to be determined through expert testimony and usually cannot be decided as a matter of law." Cook v. Continental Cas. Co., 509 N.W.2d 100, 103 (Wis. Ct. App. 1993) (quotation omitted). The judgmental immunity doctrine provides, however, that an attorney will generally be immune from liability, as a matter of law, for acts or omissions during the conduct of litigation, which are the result of an honest exercise of professional judgment. See Woodruff v. Tomlin, 616 F.2d 924, 930 (6th Cir. 1980); Sun Valley v. Rosholt, Robertson & Tucker, 981 P.2d 236, 239-40 (Idaho 1999); Mallen, supra ยง 30.8, at 428-31. While we have not formally adopted the judgmental immunity doctrine, we provide the same protection in professional liability cases. See Morrill v. Tilney, 128 N.H. 773, 779 (1986) (stating that a professional is not liable for errors in judgment).
As one court has noted, " ather than being a rule which grants some type of immunity to attorneys, [the judgmental immunity doctrine] appears to be nothing more than a recognition that if an attorney's actions could under no circumstances be held to be negligent, then a court may rule as a matter of law that there is no liability." Sun Valley, 981 P.2d at 240 (quotation omitted). As with any negligence case, however, it is axiomatic that if there is a genuine issue of material fact about the reasonableness and care exercised by an attorney, then the issue must be submitted to the jury. Id.; see also Morrill, 128 N.H. at 780 (rejecting defendant's argument that he was immune from medical malpractice liability since a reasonable jury could find that his conduct fell below the requisite standard of care).
There was evidence introduced here that could lead a reasonable jury to conclude that the defendants failed to exercise a reasonable degree of skill and care in representing the plaintiff. The plaintiff's expert witness, Attorney Laufer, testified extensively to this effect, pointing out numerous deficiencies in the defendants' representation of the plaintiff. "While his testimony was not uncontroverted, the jury was free to accept or reject the testimony of all the witnesses, in whole or in part." Morrill, 128 N.H. at 780. Thus, we cannot hold that the defendants' actions in representing the plaintiff did not breach the standard of care as a matter of law. The trial court, therefore, did not err in denying the defendants' claim that they were immune from malpractice liability.
Affirmed.
NADEAU, J., concurred; BARRY, J., superior court justice, specially assigned under RSA 490:3, concurred.
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