Lawyers have to make judgment calls in representing clients. Often, a lawyer must call on her training and experience, as well as her view of the law and facts, to make recommendations to a client. This can include decisions about what terms to include in a deal to meet the client’s goals, whether to call a specific witness at trial, or even what law should apply to an issue.

In Georgia, like in many other states, there is a certain deference given to lawyers who exercise their professional judgment when making a recommendation to a client, even if in hindsight the decision turns out to be unfavorable to the client’s interests. This is called the judgmental immunity doctrine or the professional judgment rule. This doctrine typically protects a lawyer’s well-exercised judgment, notwithstanding the outcome, where those decisions are based on the lawyer’s reasonable and professional judgment.

This rule can be a strong defense for lawyers facing a legal malpractice claim alleging that they failed to exercise good judgment in proposing a specific course of action. But not all lawyers know the steps to take during a representation to help maximize the likelihood of benefiting from this defense. Here are some tips.

What Is the Purpose of the Rule?

Generally, a cause of action for legal malpractice requires evidence of a duty owed by an attorney to a client, a breach of that duty, causation, and damages. The professional judgment rule recognizes an exception to legal malpractice liability where an attorney makes a good-faith exercise of her legal acumen, based on research, analysis, or experience, and simply gets it wrong.

This rule serves a public policy function in recognizing that qualified lawyers may not all reach the same conclusion about the proper course of action where the law is unsettled or where the decision requires a level of strategy. Reasonable minds can disagree on the proper approach, even when considering the same facts and law. The general idea is that lawyers should be encouraged to think creatively in addressing their client’s legal issues and should be protected from malpractice liability when their strategic recommendation is supported by the facts and law but ultimately unsuccessful. For example, where the law is unsettled on an issue and a lawyer raises a legal argument that is ultimately rejected by the court, that does not necessarily mean that the lawyer acted contrary to the standards by which lawyers are supposed to conduct themselves.

With the benefit of hindsight, clients may allege that some of these judgment calls constituted errors that adversely affected the outcome of the case. However, the professional judgment rule confirms that lawyers are not guarantors of legal outcomes and will not be held liable for legal malpractice unless they have failed to act reasonably in light of clear, well-settled law.

What Decisions Are Covered by the Rule?

This does not mean that the professional judgment rule is without limit. Indeed, typically this defense does not protect against overlooked errors or strategic decisions that are contrary to existing law. For instance, a lawyer who miscalculates the length of a statute of limitation is likely not immune from allegations of malpractice. On the other hand, a lawyer who recommends filing a lawsuit in one court over another based on that lawyer’s experience and the applicable law may be able to rely on the professional judgment rule if the lawsuit is not successful in the jurisdiction recommended. In that instance, a court will review what the law is, whether the law clearly counseled against the course of conduct recommended by the attorney, and whether the lawyer had support for a good-faith belief that the recommended course of conduct would result in a positive outcome.

Courts in Georgia have sided with attorneys in applying the professional judgment rule where lawyers made recommendations about what law should govern a contract, where a lawyer recommended a release of claims after reviewing the merits of those claims, and where a client urged a lawyer to accept a settlement in a divorce case after the lawyer indicated that the settlement might not be in the client’s best interest.

In short, the professional judgment rule recognizes that sometimes the practice of law is an inexact science. It is typically designed to protect tactical decisions and not gambles that are contrary to law.

How Does the Rule Apply?

Application of the professional judgment rule typically requires a court in a legal malpractice action to review the lawyer’s recommendation, any evidence that confirms that the lawyer reasonably thought through the options, and whether the outcome of the client’s case would have been different if the lawyer had chosen a different approach.

It can look simple in retrospect to allege that a lawyer made a miscalculation if the outcome of the representation is unsuccessful. Thus, it can be helpful for lawyers to document their strategic decisions in real time in writing through summarizing their research, recommendations, and the advantages or disadvantages of the recommended approach. Although a professional judgment defense can be sufficiently proved through only the lawyer’s testimony, such that written evidence is not required, any documentation of the lawyer’s legal advice and the support for the same can help support the defense. Written evidence can also help eliminate any disputes of material fact, making summary judgment in the attorney’s favor in a legal malpractice action a greater possibility.

For that reason, it is often recommended that lawyers try to document their strategic recommendations to clients to explain the risks and potential rewards, in case the client’s and attorney’s memories diverge in later telling.

By being aware of the risks and pitfalls of a strategic approach, an attorney can exercise her professional judgment in making recommendations to the client, and can help bolster a claim of immunity in subsequent malpractice actions.