Legal Malpractice has become so complicated that
you need an expert to help figure it out.

NC: Failure to Mitigate is Not Contributory Negligence

Hummer v. Pulley, Watson, King & Lischer, P.A., 140 N.C. App. 270, 536 S.E.2d. 349 (2000)

NC: Employment law

Student contributor: David Yanoff

Facts:    Plaintiff was a “career status teacher” in a public school. After an incident with the principal (an argument where plaintiff insisted he did nothing wrong) in which plaintiff was threatened with termination, plaintiff retained defendants (attorney Lischer individually and her firm). Defendants agreed to represent plaintiff in connection with any dismissal proceedings. Shortly thereafter, the superintendent notified plaintiff by certified mail that she was suspending him without pay and that she was recommending his dismissal. She also informed plaintiff that in accordance with state law, unless he challenged her recommendation by written request for a hearing or review within fifteen days, the recommendation would be submitted to the board for immediate action. Plaintiff provided defendant a copy of the letter, and defendant drafted a request for review, but the request was never mailed. Plaintiff was subsequently fired. Defendant Lischer admitted responsibility and suggested that plaintiff retain malpractice counsel. She also wrote to the board requesting it rescind its action. The board informed defendants it would not reconsider, but suggested defendants consider filing a petition for review. Such review, however, is not available to career employees who never requested a hearing to begin with. Finally, defendant Lischer advised plaintiff by letter that she could no longer represent him, as their relationship was becoming adversarial (i.e. possible conflict of interest because she was about to be sued by her client). Lischer enclosed a petition for judicial review and suggested that plaintiff file it pro se or get another attorney to do it. Soon after that, defendants sent plaintiff a letter explaining that defendants’ malpractice carrier expected plaintiff to follow through on the petition. Plaintiff did not file the petition. Plaintiff retained another attorney, Gilbert, to represent him in the malpractice action against defendants. Plaintiff filed suit for breach of contract, legal malpractice, negligent misrepresentation, and negligent infliction of emotional distress. Defendants denied the material allegations and asserted affirmative defenses of contributory negligence on the part of plaintiff and insulating negligence on the part of his attorney (Gilbert) for not filing the petition for plaintiff. Defendants also filed a third party complaint against Gilbert seeking contribution or indemnity, alleging that he intentionally or negligently contributed to plaintiff’s harm. The court granted plaintiff’s and Gilbert’s motions for summary judgment, and defendants appealed.


1) If a client fails to follow an attorney’s advice to mitigate the results of that attorney’s alleged malpractice, can that client be found contributorily negligent in a malpractice action?

2) Can an attorney retained to represent a client in a malpractice case be held liable for insulating negligence for failing to help the client mitigate the results of the alleged malpractice?


1) No. Contributory negligence only refers to negligence which “concurs with that of the defendant in producing the occurrence which caused the original injury.” The original injury here was caused by defendants’ failure to mail the letter. Defendants assertion that plaintiff should have sought review is only relevant in determining whether he failed to mitigate his damages. It is not contributory negligence.

2) No. Unless the new attorney was specifically retained to help plaintiff with the original case, the new attorney has no duty to try to mitigate. In fact, the Rules of Professional Conduct require that the scope of representation be limited to furthering the clients objectives, and a clients objectives in retaining a malpractice attorney, unless otherwise specified, are to prosecute the malpractice claim, not to mitigate the original claim.

Lesson(s):   A malpractice attorney has no duty to try to clean up the mess made by the previous attorney, unless the client so wishes. A defendant in a legal malpractice action cannot escape liability by arguing that the clients new lawyer should have fixed everything. I would imagine, however, that the new attorney would be breaching a duty to the client if the client asked if there were any way to mitigate and the attorney answered without investigating. 

Tagged with: , , , , ,

Posted in: Mitigation of Damages, North Carolina