Attorney Liability In Resolving Settlement Issues
Slthough an attorney may be held liable for damages where the attorney fails to act with a reasonable degree of care, skill, and dispatch, tactical decisions made in good faith or "decisions made on a fairly debatable point of law are generally not actionable under the rule of judgmental immunity."
"The rule of judgmental immunity is premised on the understanding that an attorney, who acts in good faith and makes a diligent inquiry into an area of law, should not be held liable for providing advice or taking action in an unsettled area of law."
In Crosby v. State, 705 So. 2d 1356, 1358 (Fla. 1998), the court recognized that the attorney had no duty to inform his clients of conflicting case law.
The court concluded that the issue of whether the attorney exercised reasonable judgment was to be resolved as a matter of law.
In DeBiasi v. Snaith, 732 So. 2d 14 (Fla. 4th DCA 1999) court reversed a summary judgment entered in favor of a defendant lawyer where the trial court held that the alleged negligence, involving an untimely appeal, was excused under the doctrine of judgmental immunity.
In reversing, court acknowledged that the appellate rule violated by the lawyer presented some degree of ambiguity, but held that "mere 'ambiguity of a rule' of procedure, without more, does not equate to the somewhat more amorphous realm of 'fairly debatable' or 'unsettled area of law' to which the doctrine of judgmental immunity is applied." See id. 732 So. 2d at 16.
We recognize that courts in some other jurisdictions have extended the rule of judgmental immunity to include circumstances involving settlements, offers, or recommendations.
However, those opinions are, in any event, inapposite under the circumstances of this case. See, e.g., Glenna v. Sullivan, 310 Minn. 162, 245 N.W.2d 869 (Minn. 1976)(attorney's decision to accept what the client believed to be an inadequate settlement offer was based on insufficient or inaccurate medical information. Attorney not liable for mistakes in judgment so long as he acts in the honest belief that his advice is well-founded and in the best interests of his client).
We can discern no basis for concluding that an attorney is insulated from liability for failing to exercise ordinary skill and care in resolving settlement issues.
See Bill Branch Chevrolet, Inc. v. Philip L. Burnett, P.A., 555 So. 2d 455 (Fla. 2d DCA 1990)(cause of action for malpractice stated where plaintiffs alleged that they had been forced into settlement because of their attorney's failure to adequately prepare the case).
The importance of settlement to clients and to society mandates that we recognize that an attorney has a duty to utilize ordinary skill and knowledge in advising the client. See Rizzo v. Haines, 520 Pa. 484, 555 A.2d 58, 64 (Pa. 1989);
see also Thomas v. Bethea, 351 Md. 513, 718 A.2d 1187, 1194 (Md. 1988)("The principle that a lawyer may be held liable for negligence in handling of a case that was ultimately settled by the client, whether based on deficiencies in preparation that prejudiced the case and more or less required a settlement or on a negligent evaluation of the client's case, has been accepted by nearly every court that has faced the issue.");
Ziegelheim v. Apollo, 128 N.J. 250, 607 A.2d 1298, 1304 (N.J. 1992)(reversing summary judgment for the lawyer, the court opined "although we encourage settlements, we recognize that litigants rely heavily on the professional advice of counsel when they decide whether to accept or reject offers of settlement, and we insist that the lawyers of our state advise clients with respect to settlements with the same skill, knowledge, and diligence with which they pursue all other legal tasks").