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There is no such thing as actionable judicial malpractice, that is, a judicial officer cannot be sued for making an erroneous legal ruling.

But, what is the relationship between attorney malpractice and judicial error, more specifically, under what circumstances should an attorney be relieved of liability for professional negligence where the attorney’s negligent act or omission precedes judicial error?

That depends on analysis of the doctrine of “superseding cause”.  Where the duty to prevent harm to another threatened by the actor’s negligent conduct is found to have shifted from the actor to a third person, the failure of the third person to prevent such harm is a superseding cause.  If actor B assumes control of the risk (created by A) and can reasonably be expected to provide adequate safety, then responsibility may be shifted to B, thus relieving A of liability as a matter of law. So, what happens if a lawyer drops the ball, and then a judge makes an erroneous ruling based on the lawyer’s error?

In a recent case in Massachusetts, Kiribati Seafood Company v. Dechert, LLP, a Plaintiff brought suit against its former Massachusetts (and global) law firm for its handling of a maritime case litigated in Tahiti under French law. The malpractice Plaintiff, Kiribati, alleged that the Defendant law firm failed to give the French appellate court evidence that the court had deemed to be essential in order for Plaintiff to prevail on its claim, such that the Plaintiff’s appeal was denied and the case lost. The French appellate court’s ruling was erroneous (i.e., the evidence it demanded should not have been required), and the law firm tried to defend itself by asserting that judicial error to be a “superseding cause” of the unfavorable result (that thus insulated the law firm from the malpractice claim). The Massachusetts Supreme Judicial Court held that the French court’s mistake was merely an “intervening” cause of the loss. The court went on to explain, “where an attorney will foreseeably lose on the law but can still win on the facts, an attorney is negligent if he or she forgoes the opportunity to win on the facts,” adding that “…where a court has indicated that it has a different view of the law from that of the attorney, and where the client can prevail on the facts even under that different view, an attorney is negligent if he or she forfeits that opportunity by failing to argue in the alternative.” Simply put, this means that where an attorney has committed malpractice (here, by failing to introduce admissible evidence in a form the court had requested, even though the court was wrong to require it) and the judge then erroneously dismissed the case, the attorney will still be held liable for his negligence if he could have taken steps to mitigate the anticipated harm of the adverse ruling. i.e. provide the requested evidence. The judge’s legal error is thus seen as an intervening, not superseding, cause of the loss, so the law firm remains liable for the loss.

The Supreme Judicial Court elaborated on the characteristics of a superseding cause and explained the difference from an intervening cause by explaining that a superseding cause is one that happens after the original negligence which isn’t a consequence of it and creates a result that otherwise wasn’t foreseeable and wouldn’t have happened. An intervening cause is one that is reasonably foreseeable and the attorney could have and should have taken reasonable steps to mitigate or prevent the harm.

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I established the Law Office of Charles P. Kazarian in Boston more than three decades ago to use my experience as a trial attorney to successfully battle negligent lawyers and uncaring insurance companies. I also represent business owners in disputes with partners, shareholders and other businesses.

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