Legal Memorandum: Attorney Malpractice Action in RI

Issue: Under Estate of Braswell v. People’s Credit Union, 602 A.2d 510, 515 (R.I. 1992), should a Rhode Island court decline to recognize a defense of comparative negligence to legal malpractice as an attorney has a fiduciary duty to the client which should be protected by the court?

Area of Law: Ethics & Professional Responsibility, Litigation & Procedure, Personal Injury & Negligence
Keywords: Attorney malpractice action; Comparative negligence defense; Fiduciary duty
Jurisdiction: Rhode Island
Cited Cases: 602 A.2d 510; 159 Cal. Rptr. 778; 548 P.2d 107; 613 N.E.2d 702; 234 N.W. 2d 260; 13 Cal. Rptr. 864; 551 P.2d 1368; 844 P.2d 1336
Cited Statutes: None
Date: 02/01/2001

Although Rhode Island courts have not addressed the issue of the availability of a comparative negligence defense in an attorney malpractice action, on a similar issue the supreme court has held that a professional sued for negligent misrepresentation may not raise a comparative negligence defense.  Estate of Braswell v. People’s Credit Union, 602 A.2d 510, 515 (R.I. 1992).   In Braswell the court relied on the state’s public policies of protecting consumers and remedying disparate bargaining power between professionals and their clients, and rejected the majority position that the defense may be raised in such a case.  Id.   The court reasoned that numerous states have carved out exceptions for the defense, primarily when a fiduciary relationship exists requiring a professional to look after the interests of a client or allowing a client to depend on the expert knowledge of the professional.  See id. at 513-15.  Further, the court cited dicta from other jurisdictions to the effect that the defense "has no place in the context of ordinary business transactions" because it can lead to unpredictability and confusion.  Id. at 514 (quoting Carroll v. Gava, 159 Cal. Rptr. 778, 781 (Ct. App. 1979)).

In fact, other jurisdictions have rejected the defense in situations where a professional has a duty to impart technical information to a client less well-versed in the intricacies of the transaction taking place between them.  See Neff v. Bud Lewis Co., 548 P.2d 107, 111 (N.M. […]

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