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Bar News - November 8, 2002 NH Supreme Court Decisions Address Claims Against Attorneys By: William C. Saturley & John C. Kissinger Issues in Professional Liability THE NEW HAMPSHIRE Supreme Court decided two cases in September 2002 that provide guidance on claims against lawyers, and the trial of those claims. In Lawyers Title Insurance Corp. v. Groff (decided Sept. 17, 2002), the Court concluded that an attorney in a real estate transaction could delegate the duty to examine title to an independent contractor and avoid vicarious liability for the contractor's negligence. In Wong v. Ekberg (decided Sept. 20, 2002), the Court upheld the exclusion of untimely disclosed expert testimony in a pro se plaintiff's legal malpractice case. The Court also discussed the need for expert testimony in such cases. A. Lawyer's Title Insurance: Title Examination is a Delegable Duty In Lawyer's Title Insurance, the attorney agreed to serve as a title insurance company's agent for issuing title insurance policies. The attorney hired a title abstractor to do a title search and prepare an abstractor's report. The abstractor negligently failed to discover a construction mortgage on the property, and the title insurance company suffered a loss. The title insurance company then sued the attorney for negligence, breach of contract and breach of fiduciary duty. Following a bench trial, the Superior Court (Conboy, J.) ruled for the title insurance company on some of the claims, concluding that the attorney was vicariously liable for the title search conducted by the third-party abstractor. The Supreme Court reversed in a decision by Chief Justice Brock. 1. By Delegating the Duty, with Permission, the Attorney Avoided Vicarious Liability The Court concluded that the attorney was not vicariously liable for the negligence of the abstractor. Under the agreement with the title insurance company, the attorney had no duty to examine titles himself. This contract explicitly contemplated that the attorney would delegate the task. The contract also did not require the attorney to supervise those who were examining titles. His only duty was to exercise due care when reviewing title reports prepared by others. Further, the agreement specifically limited the attorney's liability to damages caused by his own acts and omissions. Under the facts presented by this case, the Court concluded that the attorney could delegate the duty to examine title in a real estate transaction to an independent contractor. 2. Key Lawyer Tasks Are Not Delegable The Court identified the critical question for determining vicarious liability for tasks performed by independent contractors: whether the duty is "delegable." The result contrasts revealingly with that of Kleeman v. Rheingold, 614 N.E.2d 712, 715 (N.Y. 1993), cited in the opinion, in which the New York Court of Appeals concluded that the duty to exercise care in the service of process was non-delegable because timely and accurate service of process was an "integral part" of commencing an action and a critical component of the lawyer's responsibility. Here, the Court found the task was not unique to lawyers, and thus should not be classified as non-delegable. It appears from Lawyer's Title Insurance that a lawyer's vicarious liability for a negligent contractor will turn on the nature of the job being performed by the contractor. Where the task is a critical component of providing legal services, it is likely the task will be viewed as non-delegable. B. Wong: Late Disclosed Expert Testimony Properly Excluded as Discovery Sanction In Wong, a convicted felon sued his former counsel, alleging legal malpractice, negligence and breach of contract in the handling of his criminal case. The plaintiff failed to disclose the identity of his expert witness until four months after the deadline set for expert disclosure, and one month after the close of all discovery. The trial court (Fauver, J.) excluded the expert's testimony as a discovery sanction. The Supreme Court, in a decision by Justice Duggan, affirmed that the trial court properly excluded the testimony of plaintiff's expert witness as the late disclosure would have prejudiced the defendant attorney. Plaintiff's pro se status did not transform his neglect into accident, mistake or misfortune sufficient to excuse the late disclosure. 1. Expert Testimony Required in Legal Malpractice Cases Unless Negligence is "Patent" Invoking existing law, the Court confirmed that expert testimony was not necessarily required in legal malpractice cases involving evidence of negligence "so patent and conclusive that reasonable persons can reach only one conclusion." Nevertheless, this was not such a case because the claim involved the attorney's alleged failure to properly investigate the case by interviewing certain witnesses. Whether the lawyer exercised due care involved an assessment of the extent to which a lawyer should advance funds to hire investigators or depose witnesses, which was not an area of common knowledge for a jury. 2. Plaintiff Could not Prove Duty and Breach Solely Through Reliance on the Rules of Professional Conduct The Court denied plaintiff's contention that he should be entitled to meet his burden of proving duty and breach solely through reliance on the Rules of Professional Conduct, citing the rules' specific mandate that they "are not designed to be a basis for civil liability." See N.H. R. Prof. Conduct Scope. C. Conclusion The Lawyer's Title Insurance decision has implications for all attorneys who use independent contractors. If a particular task is viewed as a critical component of the lawyer's responsibility, the lawyer will likely remain vicariously liable for the contractor's negligence. The Wong decision affirms existing law to the effect that expert testimony is necessary in legal malpractice cases unless the negligence is so obvious and conclusive that reasonable people could not dispute the claim. Both of these decisions are significant additions to the body of Supreme Court pronouncements in the areas of legal malpractice case procedure and attorney liability. William C. Saturley and John C. Kissinger are trial lawyers practicing in the commercial litigation and professional malpractice groups at Nelson, Kinder, Mosseau & Saturley, P.C. in Manchester. They frequently write on issues of professionalism, malpractice and ethics.
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