Legal Memorandum: Attorney Malpractice Action in RI

Issue: Should a Rhode Island court decline to recognize comparative negligence as a defense to legal malpractice action when the attorney had a duty to perform an action, the nonperformance of which is allegedly negligent?

Area of Law: Ethics & Professional Responsibility, Personal Injury & Negligence
Keywords: Attorney malpractice action; Comparative negligence defense; Nonperformance of duty
Jurisdiction: Rhode Island
Cited Cases: 260 N.W.2d 53; 538 P.2d 1238; 453 N.Y.S.2d 21; 845 P.2d 37; 982 F.2d 404; 513 P.2d 582; 234 N.Y.S.2d 817; 493 So. 2d 734; 752 P.2d 1235; 277 S.W. 29; 528 So. 2d 637; 544 A.2d 668
Cited Statutes: Restatement (Second) of Trusts § 170(2)
Date: 02/01/2001

The defense of comparative negligence should not be available to an attorney-defendant when the attorney’s negligence arises out of his own failure to perform a duty within the scope of his employment, and the client’s alleged negligence amounts only to the mistake of relying on the attorney to do his job.  Although no Rhode Island precedent has addressed this issue, cases from other jurisdictions have specifically held that comparative negligence should not be a defense under these circumstances.  See Theobald v. Byers, 13 Cal. Rptr. 864 (Ct. App. 1961).  Further, other jurisdictions have concretely established that an attorney representing a client in a complex real estate transaction has a duty to investigate fully the relevant applicable facts and law, and specifically, has a duty to investigate and inform his client about zoning issues.  See Burien Motors, Inc. v. Balch, 513 P.2d 582 (Wash. Ct. App.), review denied, 83 Wash. 2d 1005 (1973); Hangman Ridge Training Stables v. Safeco Title, 652 P.2d 962 (Wash. Ct. App. 1982). 

Even in jurisdictions that recognize the general availability of contributory negligence in attorney malpractice cases, that availability has been narrowed to exclude situations in which the contributory negligence was based on the client’s failure to perform a duty within the scope of duties that the attorney was hired to perform.  See Theobald, 13 Cal. Rptr. at 867.  In Theobald, the court held that clients who hired an attorney to record a mortgage were not themselves contributorily negligent in […]

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