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Dutt v. Kremp12/22/1992
ttenuation of professional standing without reasonable cause.
Turning not to certain aspects of the majority's legal analysis, I note first my disagreement with the majority's conclusions regarding probable cause and the role it played in this case. The majority endorses for adoption in Nevada the probable cause rule announced in Sheldon Appel Co. v. Albert & Oliker, 765 P.2d 498 (Cal. 1989). With due respect to the California Supreme Court, I do not find its reasoning either sound or persuasive on the point. In adopting an “objectively tenable” standard for determining probable cause, the Sheldon Appel Co. court concluded that “the adequacy of an attorney's research is not relevant to the probable cause determination.” Id. at 510. In so ruling, the California court disapproved dictum in Tool Research & Engineering Corp. v. Henigson, 120 Cal.Rptr. 291 (Ct.App. 1975), to the effect that “an attorney's reasonable investigation and industrious search of legal authority is an essential component of probable cause.” Id. at 509.
It appears to me that the Sheldon Appel Co. rule is in essence a rule of happenstance. In other words, if, in evaluating the issue of
[108 Nev. 1076, Page 1088]
probable cause, a court concludes that the action was objectively tenable when filed, then there is a proper basis for finding probable cause for filing the action despite a provable condition of complete ignorance on the part of the plaintiff's attorney regarding the merits of the action when the complaint was filed. I am of the opinion that the “objectively tenable” rule adopted in Sheldon Appel Co. tends to reward indolence, ignorance, indifference or exploitiveness by focusing on the ability of the defendant attorney and his counsel to produce, after the fact, a semblance of objective tenability that would satisfy the probable cause standard of the California court.
I am persuaded that the rule embraced by the Supreme Court of Arizona in Bradshaw v. State Farm Mut. Auto. Ins., 758 P.2d 1313 (Ariz. 1988), is more appropriate. Holding that the test for probable cause is both subjective and objective, the Bradshaw court stated that “ he initiator of the action must honestly believe in its possible merits; and, in light of the facts, that belief must be objectively reasonable.” Id. at 1319 (citing Haswell v. Liberty Mutual Insurance Co., 557 S.W.2d 628, 633 (Mo. 1977)); Restatement § 675 comment c; PROSSER & KEETON ON THE LAW OF TORTS (5th ed. 1984) § 120, at 893 (emphasis in original text).
Under the Bradshaw view, an inexperienced attorney's failure to research, consult, interview and meaningfully prepare before filing a complaint would be relevant in determining whether the attorney could have entertained an honest belief in the possible merits of his or her client's cause of action. Moreover, the second prong of the Bradshaw test requires that the attorney's honest belief be objectively reasonable. The latter test thus becomes a form of validation of the former. Assuming the attorney has a modicum of legal ability that has been adequately focused on meaningful research and evaluation, it is logical to expect that the attorney's honest belief regarding the merits of the client's cause of action will be endowed with an aspect of objective reasonability.
Moreover, at least in the more esoteric and complex areas of litigation, such as medical malpractice, I disagree with both the majority and the Sheldon Appel Co. court in concluding that an
[108 Nev. 1076, Page 1089]
attorney is entitled to rely entirely on what the client has said in determining whether there is probable cause to file an action. A client ma
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