we’re proud to announce that our article on the Attorney Judgment Rule was published by the New York Law Journal today.
"Medicine and law have ancient parallel histories. Each practices self-regulation, and each has developed deep and extensive internal rules of professional conduct. Both have a tentative claim as one of the world’s oldest professions. Each requires extensive education and testing to join a prehistoric and socially revered cadre. Both require an extensive apprenticeship before acceptance into the guild.
Beyond the obvious ancient quality of the professions, there is a similar intellectual bias evident. Both claim that their decision-making apparatus is unique, internally regulated and virtually unassailable.
Medicine and law share a concept unknown to other professions: the "judgment rule." In medicine, it is aptly summed up in the well-known medical aphorism originally attributed to Armand Trousseau (1801-1867): "Medicine is an art and not a science." For lawyers, it was most forcefully stated by the Court of Appeals in Rosner v. Paley, 65 NY2d 736 (1985). A "mere error of judgment" need not rise to the level of malpractice. When several other alternatives might have been pursued, "selection of one among several reasonable courses of action does not constitute malpractice." For this concept the Court of Appeals looked back to 1897.
Byrnes v. Palmer, 18 AD 1 (2d Dept. 1897), was a Second Department case decided by Judge Edgar M. Cullen, later chief justice of the Court of Appeals, more than 100 years ago. In a conveyancing case the court held that "It is undoubtedly true that an attorney is only bound to exercise the ordinary reasonable skill and knowledge of his profession, and is not liable for every error of judgment or opinion as to the law." Byrnes at 5.
Byrnes itself looked further backward to Montriou v. Jefferys (2 Car. & P. 113 (1825)). There, Chief Judge Charles Abbot, 1st Baron Tenterden of England, stated that "No attorney is bound to know all of the law; God forbid that it should be imagined that an attorney, or a counsel, or even a judge, is bound to know all the law, or that an attorney is to lose his fair recompense on account of an error, being such an error as a cautions man might fall into." "In a litigation a lawyer is well warranted in taking chances. To some extent litigation is a game of chance. The conduct of a lawsuit involves questions of judgment and discretion as to which even the most distinguished members of the profession may differ. They often present subtle and doubtful questions of law. If in such cases a lawyer errs on a question not elementary or conclusively settled by authority, that error is one of judgment for which he is not liable."