OK.: Underlying employment action
Facts: Client is seeking damages from two attorneys for legal malpractice. The underlying action was the recovery of damages for the breach of an employment contract. Because of the death of the defendant in the underlying case, attorneys brought suit against the executrix but failed to file a claim. Attorneys then amended the petition on behalf of their client, which later lead to the case being dismissed because executrix said that plaintiff did make a demand within the two months. Ultimately, plaintiff filed actions against his attorneys for malpractice, claiming their failure to file a claim with the executrix, which barred his contract action forever. Also, plaintiff alleges that the attorneys fraudulently attempted to conceal their error by filing the amended petition and by advising him to dismiss the case because he had no hope of prevailing. Client seeks actual damages for attorneys’ negligence plus exemplary damages for fraud in concealing their negligence.
Issue: Whether attorneys’ failure to present the claim within the two months of date of first publication of notice to creditors constitutes negligence?
Ruling: No. The law at the time of dismissal was not clear as to the necessity of filing a claim against the estate in a case such as this. An attorney who acts in good faith and in honest belief that his advice and acts are well founded and in the best interest of his client is not answerable for mere error of judgment or for a mistake in a point of law which has not been settled by the court of last resort in his State and on which reasonable doubt may be entertained by well informed lawyers. Because the point of law upon which defendant attorneys reached possibly an erroneous conclusion was unsettled at the time the conclusion was made, attorneys could not be held liable for such error.
Lesson: This situation is not the same as the negligence of an attorney in allowing a staute of limitations to run against his client’s cause of action before he institutes a suit that has been entrusted to him. Here, the suit was filed but was dismissed by the plaintiff before the court had acted.