We’ve previously touched on the risks of delegation. Although most of the LPL cases we discuss involve an attorney’s own, direct negligence, an attorney may be responsible for delegating tasks to others. Can the delegating attorney avoid liability because the alleged negligence was committed by someone else? According to a recent South Carolina opinion, the answer is no.
In Johnson v. Amber, plaintiff alleged that her attorney breached his duty of care by failing to discover the house she purchased had been sold at a tax sale the previous year and therefore she did not have title to the property. The title examination on the home was performed at the request of plaintiff’s first attorney. When the plaintiff retained new counsel for representation at the closing, new counsel relied on the title exam performed by prior counsel to determine no back taxes were owed on the property.
When the plaintiff discovered the title issue, she filed a malpractice suit against both the original and subsequent attorneys alleging they breached their duty to perform a complete title exam on the property to ensure she received good and clear title.
On appeal, the plaintiff argued that an attorney should be liable for negligence arising from delegated tasks unless he expressly limits the scope of his representation. The Supreme Court agreed. The court noted that even though it was the original attorney’s negligence when he failed to discover the title defect, that did not relieve new counsel of any responsibility.
The court held that “while an attorney may delegate certain tasks to other attorneys or staff, it does not follow that the attorney’s professional decision to do so can change his liability to his client absent that client’s clear, counseled consent.” Therefore, it found that new counsel owed the plaintiff a duty and absent an express agreement otherwise, and regardless of how he chose to carry out that responsibility, he was liable to the plaintiff.
Bottom line is if the delegated task is performed negligently it will fall back on the delegating attorney. Attorneys should be mindful who they delegate tasks to and ensure that the delegated tasks are performed correctly. If an attorney is unfamiliar with who is performing the delegated tasks or suspects it may not have been performed sufficiently, she should take steps to ascertain the quality of the task performed and take whatever action is necessary to remedy the situation so that the duty to the client is not compromised and the delegating attorney is protected.