Moore v. Lubnau

In Moore v. Lubnau, 855 P.2d 1245, 1248 (Wyo. 1993), the Court outlined the elements that must be satisfied by a plaintiff bringing a claim of legal malpractice. Adopting the same test that applies to medical malpractice suits, we held that, after establishing a duty, the plaintiff has the obligation to establish the accepted standard of legal care; that the attorney's conduct departed from that standard; and that his conduct was the legal cause of the injuries suffered. The Court accepted that the standard of care to which an attorney would be held was, "that degree of care, skill, diligence and knowledge commonly possessed and exercised by a reasonable, careful and prudent lawyer in the practice of law in this jurisdiction." Id. The Court went on to hold that a party trying to establish the standard adhered to by a "reasonable, careful and prudent" lawyer must typically use expert testimony because "most lay people are not competent to pass judgment on legal questions." Id. at 1249. The Court noted, however, that an exception exists, "when a lay person's common sense and experience are sufficient to establish the standard of care." Id. In the procedural posture of summary judgment, this court held that the attorney, as the moving party, first must make a prima facie showing that no genuine issue of material fact exists before summary judgment can be granted in his favor. Id. at 1248. To that end, the attorney, through expert testimony or affidavit, is "required to demonstrate that his conduct conformed to the accepted standard of legal care." Id. In Moore v. Lubnau, the Court held that the moving attorney's own affidavit was insufficient to support the grant of summary judgment in his favor. Within the opinion the court had first rejected the "locality rule" to establish the standard of care for attorneys practicing within the state reasoning that, "all attorneys must satisfy certain minimum requirements before being allowed to practice law in Wyoming. The level of knowledge required for admission to the bar does not vary from community to community. Altering the requisite degree of knowledge and care because an attorney begins practicing in a certain community makes little sense." At 1249-50. As a consequence of this holding, the court rejected Lubnau's affidavit as insufficient because within it he only claimed to satisfy the standard of care for attorneys in Campbell County. However, a majority of the court found the deposition testimony of the then-retired judge who had presided over the underlying case sufficient to meet Lubnau's prima facie burden. The majority found that it adequately demonstrated that Mr. Lubnau met the standard of care for attorneys in Wyoming because the judge had specifically testified, "my opinion is that he more than met the standards of practice in the Sixth Judicial District and in the State of Wyoming." Id. at 1250. Nevertheless, the Court went on to state: "Ideally, the judge would have described Ms. Moore's allegations of wrongful conduct, stated the ordinary manner in which Wyoming attorneys handle each situation, and then stated whether or not Mr. Lubnau's conduct conformed to that standard." Id. In Moore v. Lubnau, the court's discussion continued, ultimately to hold: "Once Mr. Lubnau met his initial burden of proof, Ms. Moore was obligated to demonstrate through expert testimony that his conduct was not that of a reasonable Wyoming attorney. Her failure to submit countervailing expert testimony established that no genuine issue of material fact existed and that summary judgment was appropriate." Id. at 1251 .