Liable for Designated Tasks
Liability for Delegated Tasks
Most professional liability cases involve an attorney’s direct negligence. Often, though, an attorney may be responsible for delegating tasks to others. The question is, then, can the delegating attorney avoid liability because the alleged negligence was committed by someone else? According to a recent South Carolina opinion, the answer is no.
In Johnson v. Amber, the plaintiff alleged that her attorney breached his duty of care by failing to discover the house she purchased had been sold at a tax sale the previous year and, therefore, she did not have title to the property. The title examination on the home was performed at the request of the plaintiff’s first attorney. When the plaintiff retained new counsel for representation at the closing, new counsel relied on the title exam performed by prior counsel to determine no back taxes were owed on the property.
When the plaintiff discovered the title issue, she filed a malpractice suit against the original and subsequent attorneys alleging they breached their duty to perform a complete title exam on the property to ensure she received an excellent and clear title.
On appeal, the plaintiff argued that an attorney should be liable for negligence arising from delegated tasks unless he expressly limits the scope of his representation. The Supreme Court agreed. The court noted that even though the original attorney’s negligence when he failed to discover the title defect, it did not relieve the new counsel of any responsibility.
The court held that “while an attorney may delegate certain tasks to other attorneys or staff, it does not follow that the attorney’s professional decision to do so can change his liability to his client absent that client’s clear, counseled consent.” Therefore, it found that new counsel owed the plaintiff a duty and absented an express agreement otherwise. Regardless of how he chose to carry out that responsibility, he was liable to the plaintiff.
The bottom line is if the delegated task is performed negligently, it will fall back on the delegating attorney. Attorneys should be mindful of who they delegate tasks to and ensure that the delegated tasks are performed correctly. If an attorney is unfamiliar with who is performing the delegated tasks or suspects it may not have been performed sufficiently; she should take steps to ascertain the quality of the job performed and take whatever action is necessary to remedy the situation so that the duty to the client is not compromised and the delegating attorney is protected.