PA Underlying Criminal Action
Facts: The Union retained the attorney to advise it on all legal matters. Thirteen of the Union’s former members were indicted for its alleged criminal attempts to benefit the Union and its members. The attorney advised the Union that they could lawfully pay the legal expenses of the 13 members who were under indictment. The 13 members were later convicted of 152 criminal counts, including racketeering and mail fraud. The attorney then advised the Union that it was lawful for it to pay for the appeals of the now convicted former members. The Union later sued the attorney for malpractice claiming that the attorney was negligent in advising it that could lawfully pay the attorneys’ fees to defend its officers who were charged with criminal activity.
Issue: Is an attorney negligent if his informed judgment is later found erroneous?
Ruling: The court held that because at the time the attorney advised the Union there was no clear statement of the law on which he could base his recommendation, his advice that the Union could lawfully pay the attorneys’ fees to defend its officers charged with criminal activity was not negligent.
Lesson: An attorney is negligent in a malpractice case if he fails to use ordinary skill, knowledge and care which would normally be possessed and exercised under the circumstances by members of the legal profession. McPeake v. William T. Cannon, Esquire P.C., 381 Pa. Super. 227, 553 A.2d 439 (1989). [However,] [a]n informed judgment on the part of counsel, even if subsequently proven erroneous, is not negligence. Mazer v. Security Insurance Group, 368 F.Supp. 418 (E.D.Pa. 1973), affirmed 507 F.2d 1338 (3rd Cir. 1975).