Malpractice for Failure to Predict Change in the Law?

Posted by

Rules are made to be broken, right? The same can be said about legal precedent, which may change over time. Although it’s uncommon for courts to ignore precedent, it does happen from time to time whether it be outdated, no longer applicable or due to the political/philosophical makeup of the presiding judiciary. Unanticipated, new law may create unique problems for attorneys. When the law is clear, an attorney’s obligations are clear. The attorney needs to either distinguish it or apply that law to the facts of her case. But what happens when applicable precedent is overruled altogether? The lawyer can’t be expected to anticipate a change of law, right?

A recent decision holds that an attorney does not have an obligation to anticipate a change in precedent. In Minkina v. Frankl, (Sept. 15, 2014) the Massachusetts Supreme Judicial Court declined to hold that a defendant law firm committed malpractice when it failed to anticipate or advocate a substantial change in the law requiring the overruling of a controlling precedent. In the dispute, the law firm represented the plaintiff in an employment discrimination suit. At issue was the enforceability of an arbitration provision in the plaintiff’s employment agreement. The plaintiff’s adversary sought to compel arbitration by pointing to well-established precedent supporting that the provision was enforceable. The court ultimately compelled arbitration. However, after the decision, the Supreme Court later overturned this well-established precedent thereby changing the law.

The plaintiff then sued his former counsel following the Supreme Court’s decision and alleged that the firm was negligent for failing to anticipate a change in the law. The law firm successfully moved for summary judgment based on the argument that it had no duty to foresee a change in the law. On appeal the Supreme Court affirmed.

Attorneys are a lot of things but we’re not fortune-tellers. This decision demonstrates that attorneys are not the insurers of a desired outcome. Attorneys have a duty to apply the applicable law but not to anticipate when precedent may be changed. Attorneys may argue that certain law is inapplicable or outdated, but according to this decision are not obligated to consider whether the law will someday be changed. This is simply too high of a standard to hold an attorney. While attorneys often have to predict outcomes and chances of success, they are not required to look in the future to see unpredictable results. This is an important decision for attorneys and a win for the malpractice community.