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Behrens v. Behrens6/22/2005
of care in fulfilling his duties. To decide otherwise would allow professionals to avoid responsibility for the very duties they undertake to perform. A doctor, for example, might be able to avoid liability for negligently treating an injured person because the patient negligently ranhad run a traffic light and was injured. Such a result would be clearly unsound.
Steiner Corp. v. Johnson & Higgins of California, 996 P2d 531, 533 (Utah 2000) (internal citation omitted); see also Stroud v. Arthur Anderseon & Co., 37 P3d 783, 790 (Okla 2001). Thus, if a professional accepts a duty to serve a client, the professional is generally liable for negligence in the performance of that duty regardless of how or why the client became involved in the matter for which the professional was retained. Steiner, 996 P2d at 533.
[ .] This, of course, is not to say that a professional is responsible for the pre-existing condition that was the proximate cause of the client's injury. The professional is not. Staab v. Cameron, 351 NW2d 463, 466 (SD 1984) (stating that attorney is not responsible for a client's loss when client entered into a valid contract before seeking attorney representation). Thus, there is MICHAEL B. CREWno liability where there was nothing that the attorney could have done to remedy the harm that was already and inexorably in place before the attorney agreed to represent the client. Id. In those circumstances, "the overwhelming majority [of courts] have recognized that the a client's recovery for legal malpractice can be either entirely foreclosed, or proportionally diminished, as the result of his or her own negligence." Id. See also Gorski v. Smith, 812 A2d 683, 698 (PaSuperCt 2002);. See also Susan L. Thomas, J.D., Annotation, Legal Malpractice: Negligence or Fault of Client as Defense, 10 ALR5th 828 (1993-2004) (noting in a legal malpractice claim the "usual defenses are applicable, including the defense that the client contributed to or was solely responsible for his or her own harm"); Shaw v. State of Alaska, Dep't. of Admin., 861 P2d 566 (Alaska 1993) (recognizing contributory negligence and assumption of the risk as traditional defenses to legal malpractice claim); and, Western Fiberglass, Inc. v. Kirton, McConkie and Bushnell, 789 P2d 34, 36 (UtahCtApp 1990) (affirming judgment that plaintiff was equally negligent in action against a law firm because plaintiff failed to keep the law firm fully informed and failed to be represented by counsel at closing of a transaction).
[ .] Moreover, in this case, the trial court modified the general contributory negligence instructions to ensure that, to the extent the Initial Agreement was not the proximate cause of Behrens' loss, the jury would not apply Behrens' contributory negligence to Wedmore's post-Initial Agreement representation. The trial court did so by specifically instructing the jury that:
Instruction 44a:
A client who retains an attorney to perform legal services has a justifiable expectation that the attorney will exhibit reasonable care in the performance of those services. The client is under no duty to guard against the failure of the attorney to exercise the reasonable standard of professional care in the performance of the legal services for which the attorney was retained. A client cannot be found contributorily negligent for failing to anticipate or guard against his attorney's negligence in the performance of legal services within the scope of the attorney's representation of the client.
Thus, the jury was specifically instructed that Behrens could expect to receive reasonable care, that they were "under no duty to guard against" any negligence of Wedmore for the se
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