Bush v. Goren, Michigan Court of Appeals, February 1, 2011.
Facts: In 2005, Plaintiffs consulted the defendant attorneys with respect to a medical malpractice claim related to a cardiac surgery completed on August 24, 2004 to evaluate the safety of a new vascular closure device. After obtaining opinions of various cardiologists and vascular surgeons, the Defendant attorneys opted not to pursue the matter. On June 5, 2006, advised Plaintiff that the statute of limitations for her claim may expire within the next two months.
Plaintiff was not successful in locating another attorney, allegedly because of the two-month time frame remaining for her medical malpractice claim. She subsequently filed a malpractice action against the Defendants alleging that they were negligent in not advising her that the products liability statute of limitations did not expire for another year, until August, 2007.
Defendants argued that their decision not to mention the products liability claim, or the applicable statute of limitations, was protected by the "attorney judgment rule." In other words, they believed "in good faith" that plaintiff would advise any subsequent attorney about the use of the medical device, and that attorney would know the statute of limitations.
Issue: Did Defendants commit malpractice by not addressing each of Plaintiffs’ potential claims and applicable statute of limitations in their disengagement letter?
In drafting his closing letter to his clients, defendant was not making a tactical decision in which he had to choose between courses of action in an adversarial situation whose viability turned on many factors beyond his control such as the actions of an opposing counsel or the unknown views of a judge or jury. Rather, defendant, in the controlled environment of his own office was advising plaintiffs, whose case he had declined, what options they retained and what they had to do to exercise those options. We reject the argument that giving only partial advice about a matter as fundamental as the applicable statute of limitations when sending a closing letter to a client can be viewed as a matter of tactics. An attorney and his or her advice certainly need not be perfect or infallible. However  all attorneys have a duty to behave as would an attorney of ordinary learning, judgment or skill under the same or similar circumstances.
While the failure to include the information in the disengagement letter was not protected by the "attorney judgment rule," it may or may not have been "malpractice":
Plaintiffs presented the trial court with affidavits from two attorneys. One stated that, in his professional opinion, the standard of practice for a lawyer in defendant’s position required him to tell plaintiff of both statutes of limitations applicable to her claims and that the failure to do so constituted a breach. The other relied on Michigan Rule of Professional Conduct (MRPC) 1.4(b) and a Michigan Ethics Opinion discussing that rule to state that he concluded that defendant’s action violated that rule. Based on the rule and the opinion, he also opined that plaintiff could not make an informed decision about how to pursue her products liability claim when she was not informed of the applicable statute of limitations; and that defendant’s position that he was justified in withholding information from plaintiff on the ground that he believed it to be in her best interest was without merit.
The Court held that whether or not Defendants exercised reasonable care, skill and diligence under the circumstances would be a fact question to be ultimately resolved by a jury.
Lesson: The attorney judgment rule does not automatically shield an attorney who provides an allegedly incomplete legal analysis to his or her client. To err on the safe side, a disengagement letter might lay out the facts presented by the client to the attorney, each of the potential causes of action, and the amount of time within which the client must act to preserve each potential claim.