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WPI 107.05 Legal Malpractice—Negligence—Standard of Care—Special Expertise

6 WAPRAC WPI 107.05Washington Practice Series TMWashington Pattern Jury Instructions--Civil

6 Wash. Prac., Wash. Pattern Jury Instr. Civ. WPI 107.05 (7th ed.)
Washington Practice Series TM
Washington Pattern Jury Instructions--Civil
April 2022 Update
Washington State Supreme Court Committee on Jury Instructions
Part IX. Particularized Standards of Conduct
Chapter 107. Legal Malpractice
WPI 107.05 Legal Malpractice—Negligence—Standard of Care—Special Expertise
An attorney owes to the client a duty to comply with the standard of care for attorneys.
An attorney who holds himself or herself out as having special expertise in(fill in area of special expertise; for example, tax law)has a duty to use the degree of skill, care, diligence, and knowledge possessed and used by a reasonable, careful, and prudent(fill in type of attorney; for example, tax attorney)in the State of Washington acting in the same or similar circumstances.
Failure to use such skill, care, diligence, and knowledge constitutes a breach of the standard of care and is negligence.
[A poor legal outcome does not, by itself, establish that the attorney was negligent.]
Use this instruction, in lieu of WPI 107.04 (Legal Malpractice—Negligence—Standard of Care), if the trial court has determined there is sufficient evidence concerning the area of practice and the lawyer's representations concerning his/her expertise to warrant application of a different standard of care.
The instruction is an adaptation of the basic instruction on an attorney's standard of care, WPI 107.04 (Legal Malpractice—Negligence—Standard of Care). The adaptation was drafted using the counterpart medical malpractice instruction as a guide. See WPI 105.02 (Negligence—Health Care Provider—Specialist).
The trial judge will need to decide as a matter of law whether a particular area of practice, and a particular attorney's representations about his or her expertise, calls for a different standard of care. The Washington Supreme Court has concluded: “Generally, [attorneys who hold themselves] out as specializing and as possessing greater than ordinary knowledge and skill in a particular field, will be held to the standard of performance of those who hold themselves out as specialists in that area.” Walker v. Bangs, 92 Wn.2d 854, 860, 601 P.2d 1279 (1979) (at issue was expertise in litigating maritime cases).
In a subsequent case, the Supreme Court characterized the Walker analysis as dictum, but did not reject it, and the court also cited a national treatise as supporting the imposition of a more particular standard of care for some specialized areas of practice. See Hizey v. Carpenter, 119 Wn.2d 251, 267–68, 830 P.2d 646 (1987) (citing 1 Mallen & Smith § 15.4). The Hizey court held that real estate attorneys are not subject to a standard of care for special expertise. Hizey v. Carpenter, 119 Wn.2d at 267–68. Taken together, Walker and Hizey support the use of a more particular standard of care for those who claim expertise in litigating federal maritime cases and the use of the general standard of care for real estate practitioners; other circumstances will need to be separately evaluated.
[Current as of September 2018.]
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