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August 14, 2001

Lombardo v. Huysentruyt (2001) 91 Cal.App.4th 656, 110 Cal.Rptr.2d 691

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Judicial error is not a superceding cause precluding attorney liability for conduct below the standard of care.

Paul Winters established a trust to benefit the adult daughter of his wife, Diane Mirviss, but retained the right to terminate or amend the trust.  When his health later deteriorated, his wife obtained a conservatorship over him.  The Court also entered an unusual order: Winters could not amend or revoke the trust without court approval.

After his wife died, Winters decided that he did not wish the trust to benefit Mirviss, and retained attorney Kurt Huysentruyt to amend the trust.  Huysentruyt met with Winters, verified his desire to change his estate plan, and learned of the dire condition of Winters’ health.  He advised Winters to decide the disposition of his estate immediately.  Based on Winters’ instructions, Huysentruyt prepared an amendment and presented it to Winters.  After a short delay caused by Winters, Huysentruyt obtained Winters’ signature.  Huysentruyt decided to meet again with Winters to verify his decision before seeking court approval.  Unfortunately, Winters died before this was accomplished.

Huysentruyt nevertheless petitioned for approval of the trust amendment, and Mirviss petitioned to invalidate the amendment.  The probate court granted Mirviss’ petition on the grounds that there had been no court order approving the amendment prior to Winters’ death.  While the case was on an appeal, the beneficiaries of the amended trust settled with Mirviss for forty five percent of Winters’ estate.

The beneficiaries then filed a malpractice action against Huysentruyt for his delay in perfecting Winters’ testamentary intent.  The trial court, granted Huysentruyt’s motion for nonsuit on the ground that the probate court erred in ruling that court approval was necessary to validate the trust amendment.  According to the trial court, this erroneous ruling superceded any error or omission by Huysentruyt.

The Court of Appeal reversed.  The correct standard for determining causation in a legal malpractice case is whether the attorney’s conduct was a substantial factor in bringing about the harm. The doctrine of proximate cause limits liability.  If there is an unforeseeable independent intervening act, the defendant’ s conduct is not the “legal” or proximate cause.  Foreseeable intervening acts, on the other hand, do not break the chain of causation between the attorney’s conduct and the resulting harm.

The foreseeability of an intervening act is ordinarily a question of fact for the jury, and turns upon whether the act is highly unusual or extraordinary.  The court of appeal held, however, that judicial error is always foreseeable, and therefore cannot constitute a superseding cause cutting of an attorney’s liability for professional negligence.  Instead, the attorney should anticipate the risk of judicial error and take steps to prevent it.

The plaintiffs’ expert testified that the standard of care required the attorney to act with greater dispatch to seek clarification of the order prior to the testator’s death.  Although the probate court ruled erroneously, the conservatorship order at the very least raised an issue as to whether prior court approval of any trust amendment was required.  Given the uncertainties created by the order and his client’s failing health, it was incumbent upon Huysentruyt to act quickly to seek clarification of the order.

This is consistent with the “case within a case” analysis that projects what a reasonable outcome in the underlying case should be.  The inquiry is not what a reasonable court would do in the context of the actual conduct of the attorney, but what a reasonable court should do if the attorney had acted within the standard of care.

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