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action . The court held that the judgmental immunity doctrine protects attorneys when they speculate on unsettled areas of the law , provided they have informed the client of the risks . 29
Attorneys who are employees of the state enjoy special protections through sovereign immunity . The protection is limited to employees of the state . One lawyer , acting under contract to the Defender General , found that because he was not a state employee , he could not claim immunity . He was an independent contractor , unsupervised by the Defender General , and that made a difference . 30
Statute of Limitations
Legal malpractice claims are generally governed by the six-year statute of limitations . That deadline is tolled until the plaintiff has enough information to put a reasonable person on notice that the lawyer is liable for the client ’ s injuries . Lawyers who promoted an “ exhaustion of appeals ” approach , asserting that the period would not begin until the appeals process was concluded in the underlying action , were disappointed in the denial of their attempted creativity . 31 The equitable principle of laches does not apply to legal malpractice claims . The court will use the statute to determine deadlines . 32
Claims of mental anguish , emotional distress , and personal humiliation , have a three-year statute of limitations , as injuries to a person . 33 Since 1989 , emotional damages are only authorized if there is some physical effect , some bodily hurt , in order to prevail . 34 In a recent decision by the Superior Court , the trial judge refused to apply the continuous representation rule that would toll the statute of limitations on plaintiffs ’ emotional distress claim even though the attorney and client relationship continued . 35
Contract and Negligence
Most cases of legal malpractice had been brought as breach of contract claims , until the high court decided in 2006 that these claims are more properly negligence claims . Contract claims fail when they are not in writing , and breach requires some proof of a special promise . The negligence standard is different . Proving negligence for malpractice requires proof that an attorney-client relationship exists , that a duty exists , and that the breach of that duty is the proximate cause of the damages claimed . 36
This is illustrated by a case where a lawyer failed to timely identify and levy upon assets to collect a judgment before the statute made the judgment uncollectable . There was no question of the breach
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of duty , but because no attachable assets existed , there was no compensable negligence in failing to search for or attempt to foreclose on them to collect on a judgment . The negligence was not the proximate cause of the injury in that case . 37
Often the court applies a “ cause-in-fact ” test for legal malpractice , delving into the merits of the underlying case that gave rise to the claim . The negligence of an attorney , even if proven , when it would not have made any difference to the outcome , escapes liability . In Knott v . Pratt ( 1992 ), the court looked at the decision to deny a claim against an estate that was untimely filed ( the malpractice ) finding that equity and good conscience justified the estate retaining its value , as the plaintiff had taken care of her father as an act of love , with no expectation of compensation . 38
Expert and Other Evidence
The necessity for expert evidence in legal malpractice cases is an evolving concept . The general rule still holds : if the alleged negligence is so obvious , so clear , that anyone could tell it was malpractice , based on common knowledge and experience , then no experts are needed . Increasingly , however , the bar seems to have been raised to require their testimony if the case is to continue to trial . More and more cases have been dismissed when plaintiffs fail to offer experts in cases where the wrongs aren ’ t so obvious . 39
Sometimes even when expert testimony is offered it falls short . An expert who concluded that an attorney ’ s failure to establish jurisdiction in federal court ( the report is unclear precisely what that meant ) was negligence , “ assuming the court had jurisdiction ,” had failed to establish a standard of care through his testimony . 40 Standard of care is now defined as performance measured by what a competent attorney would have done in the jurisdiction ( Vermont ), not in the community where the office is located . This was the ruling in Russo v . Griffin ( 1986 ). In dissent , Justice Hayes argued the court should cleave to a national standard . 41
Judge Helen Toor illustrated the kind of behavior that can be proven without experts in a 2015 malpractice decision . She wrote : The sort of case that does not require expert testimony might be , for example , one where the architect forgot to put in a staircase to get between the two floors of a house . There , the problem resulting from the error would be obvious to anyone . This is also not like Nicholson , where the Court found that a lawyer ’ s failure to disclose information obtained in a title search was a simple enough issue to be decided
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without an expert . This , in contrast , was an incredibly complicated divorce case , generating the longest divorce ruling the undersigned has ever seen from any judge . Felis ’ s claim that it would be easy for a layperson to determine how Judge Pearson would have ruled had Langrock acted differently on various motions and in the final ruling is almost laughable . Without the missing expert testimony , Felis cannot prove his malpractice claim .” 42 In another malpractice case , the trial court ruled Vermont Rule of Evidence 408 does not prohibit admission of evidence of a failure to negotiate , even as it forbids offers of compromise or other details of a mediation . 43
Duty
Even where there may have been negligence amounting to legal malpractice , to make a claim the plaintiff has to have been owed a duty by the attorney . A bad deed , for instance , drafted by an attorney for the husband in a divorce , is not a compensable act of negligence that the ex-wife — not a client of the drafter — could claim . 44 In another example , the attorney for a corporation who was alleged to have failed to advise his corporate client to pursue bad faith claims against its insurer or to purchase additional insurance , who was also accused of filing meritless suits , was sued for legal malpractice by a shareholder . The court dismissed the claim after concluding there was no privity between the lawyer and the corporation ’ s stockholders . 45 There is also no privity between shareholders for damages caused by an attorney ’ s defective title search , based on immunities established in the Vermont Business Corporation Act . 46
When looking at duty , the relationship between the attorneys and the plaintiffs must be examined . A municipal attorney owes a fiduciary duty to the municipality , not individual elective or appointive officials . A city manager cannot claim malpractice when he isn ’ t the client or the privilege of confidentiality . 47 Legal malpractice claims may not be assigned to another , based on the fiduciary duties of an attorney . 48
An attorney may have committed fraud , but this is not compensable behavior if the plaintiff was not affected by his actions . This was the ruling in Marshall v . Joy ( 1857 ), where the attorney secretly encouraged a third party to benefit from a claim properly belonging to his client , reducing the possible award by half . The court concluded he had no right to retain the funds , but denied recovery to a creditor of the client who sued for the full amount , as the creditor was not directly affected by the attorney ’ s dishonesty . 49
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