SIMKO v. BLAKE

MALLETT, J.

This case presents the question whether an attorney's duty to his client extends beyond what is legally adequate to win a client's case. We hold that attorneys must only act as would an attorney of ordinary learning, judgment, or skill under the same or similar circumstances.

Defendant Blake raised a complete defense, did what was legally sufficient to fully vindicate his client's interest, and acted as would an attorney of ordinary learning, judgment, or skill under the same or similar circumstances. His alleged acts and omissions were trial tactics based on good faith and reasonable professional judgment. Further, no amount of factual development could reveal a case of malpractice. Thus, we affirm the decision of the Court of Appeals in favor of the defendant.

I

Plaintiffs Arthur Louis Simko, Margaret Simko, and Tara Marie Simko filed suit against defendant Marvin Blake, an attorney, alleging that the defendant committed professional malpractice in failing to adequately represent Arthur Simko in a prosecution of possessing over 650 grams of cocaine, MCL 333.7401(2)(a)(i); MSA 14.15(7401)(2)(a)(i), and possession of a firearm in the commission or attempt to commit a felony, MCL 750.227b; MSA 28.424(2). Although the defendant was convicted and the conviction eventually was reversed by the Court of Appeals, Mr. Simko spent more than two years in prison.

In the underlying criminal case, on the night of March 6, 1987, a state police officer observed a speeding car traveling with its lights flashing in an apparent effort to attract the officer's attention. The car exited the highway and stopped to wait for the police car. The driver of the vehicle alighted from his car and told the police that the passenger, Arthur Simko, needed medical attention.

Plaintiff appeared flushed, was perspiring, and his breathing was labored. The officer summoned an ambulance. While waiting for the ambulance to arrive, the officer discovered what appeared to be drug paraphernalia on the floor of the car. A further search of the car revealed a cup containing cocaine residue, a bullet in plaintiff's pocket, a pistol in the glove compartment, a pistol in the trunk, several rounds of ammunition, and 988 grams of a substance containing cocaine.

Arthur Simko was represented by Marvin Blake. At the close of the prosecution's case, and again at the close of defendant's case, Mr. Blake moved for a directed verdict on the ground that the evidence was insufficient to convict plaintiff. The trial judge denied both motions. Mr. Simko was ultimately found guilty by the jury and sentenced to mandatory sentences of life without parole plus two years.

Arthur Simko then retained another attorney and appealed his conviction. The Court of Appeals reversed; however, by that time, he had already served two years of his prison sentence.

See People v Simko, unpublished opinion per curiam, issued November 29, 1989 (Docket No. 105873).

At the time plaintiff filed his appeal, he also filed a legal malpractice action against defendant. Arthur Simko alleged that the defendant failed to properly investigate his case and failed to properly prepare to defend him. Specifically, Mr. Simko alleged that Mr. Blake did not produce any witnesses in his defense besides Mr. Simko himself, failed to produce plaintiff's personal physician who had been treating him for a pinched nerve and who prescribed medication that would have offered an explanation of his medical condition at the time of arrest, and failed to provide Mr. Simko with the name and location of the hotel where Mr. Simko had spent the day before he was arrested that may have protected him from impeachment.

Plaintiff alleged the following:

a. Failed to adequately and properly investigate Mr. Simko's case;

b. After some three months involvement with the case had, at that point, failed, refused and/or neglected to discover the identity and whereabouts of essential witnesses necessary to substantiate Mr. Simko's defense;

c. At trial, another four months after the pre-trial conference and seven months since he had first become involved, still had not done anything to assist Mr. Simko in defense of the charges against him;

d. After claiming to have two or three defense witnesses to produce at trial, he only produced Arthur Louis Simko himself as a witness;

e. Failed to call the personal physician of Mr. Simko, Dr. Michael Karbal, of Troy, who had been treating Mr. Simko for a pinched nerve as a result of a car accident and who had prescribed for him Valium 10 three times per day and Tylenol 4 three times per day which he was taking at the time of his arrest and which would fully explain his medical condition at that time;

f. Failed to call Margaret A. Simko who had several times seen her husband in a physical condition similar to the one he was in at the time of his arrest as a result of taking his prescribed medications;

g. Failed to call Margaret A. Simko who could confirm Mr. Simko's story regarding being asked by the insurance agent to go south with him;

h. Failed to call Margaret A. Simko who could confirm that none of the luggage in the trunk was owned by any member of the Simko family, and that in fact Mr. Simko had just rolled up his clothes in a ball and taken them;

i. Failed to ascertain the pertinent information from a plastic bag which was in police possession and which contained on it the name and address of the hotel in Florida in the lobby of which Mr. Simko had spent the entire day, so as to instead allow Mr. Simko to be impeached during his trial testimony by the fact that he could not then remember the name of the hotel or the town that it was in;

j. Failed to provide effective assistance of counsel; and

k. Failed to provide reasonably prudent and proper legal services as required by Michigan law.

The malpractice action was dismissed by the trial court when it granted defendant's motion for summary disposition. The trial court stated:

The proximate cause of his conviction was the trial court's error in denying the motion for directed verdict in favor of the defendant in the underlying case.

The Court of Appeals, in holding that a directed verdict should have been granted indirectly not only stated that the trial court here erred but that the jury erred as well.

By holding that the standard was satisfied for the granting of a motion for directed verdict, in effect, the Court of Appeals held that a reasonable well-instructed jury could not convict based upon the evidence presented during the course of the trial.

The jury in the underlying case by virtue of the Court of Appeals decision acted unreasonably in light of evidence presented for the jury to consider.

As a result, the defendant Blake cannot possibly be held responsible for the acts of an unreasonable jury.

The Court of Appeals affirmed, stating that

In a dissenting opinion, Judge McDONALD stated that the trial court erred when it granted defendant Blake's motion for summary disposition. Judge McDONALD thought that it was improper for the trial court to find that plaintiff's injuries were caused by the criminal trial judge's error in not granting plaintiff's motion for summary disposition. Judge McDONALD pointed out that there could be more than one proximate cause of the same injury. However, he agreed with the majority that an attorney does not have the duty to do more than what is legally adequate to vindicate a client's interests. 201 Mich. App. 191, 195; 506 N.W.2d 258 (1993).

[b]y challenging the sufficiency of the evidence against Simko, Blake raised a complete and ultimately successful defense to both charges. . . . Blake was not Simko's insurer against all possible misfortune. . . . His duty was to raise an adequate defense to the criminal charges, not to protect Simko from judge and jury. [ 201 Mich. App. 191, 195; 506 N.W.2d 258 (1993).]

We affirm the decision of the Court of Appeals and hold that Marvin Blake fulfilled his duty to Arthur Simko.

II

We hold that defendant's motion for summary disposition was properly granted by the trial court because the plaintiffs failed to state a claim upon which relief can be granted. Plaintiffs' complaint and pleadings failed to state a breach of duty.

Pursuant to MCR 2.116(C)(8), a motion for summary disposition is granted if the claim is so clearly unenforceable as a matter of law that no factual development could possibly justify recovery. A motion of summary disposition is tested on the pleadings alone, and all factual allegations contained in the complaint must be accepted as true. Beaudin v Michigan Bell Telephone Co, 157 Mich. App. 185, 187; 403 N.W.2d 76 (1986); Marcelletti v Bathani, 198 Mich. App. 655; 500 N.W.2d 124 (1993).

III

In order to state an action for legal malpractice, the plaintiff has the burden of adequately alleging the following elements:

(1) the existence of an attorney-client relationship;

(2) negligence in the legal representation of the plaintiff;

(3) that the negligence was a proximate cause of an injury; and

(4) the fact and extent of the injury alleged. [ Coleman v Gurwin, 443 Mich. 59, 63; 503 N.W.2d 435 (1993).]

See Espinoza v Thomas, 189 Mich. App. 110, 115; 472 N.W.2d 16 (1991); McCluskey v Womack, 188 Mich. App. 465, 473; 470 N.W.2d 443 (1991); Pantely v Garris, Garris Garris, PC, 180 Mich. App. 768, 778-779; 447 N.W.2d 864 (1989). See also Charles Reinhart Co v Winiemko, 444 Mich. 579, 586; 513 N.W.2d 773 (1994).

The first element the plaintiff must prove is "duty." "Duty" is any obligation the defendant has to the plaintiff to avoid negligent conduct. Moning v Alfono, 400 Mich. 425, 432; 254 N.W.2d 759 (1977). In negligence actions, the existence of duty is a question of law for the court. Antcliff v State Employees Credit Union, 414 Mich. 624, 640; 327 N.W.2d 814 (1982). See also Moning, supra.

In legal malpractice actions, a duty exists, as a matter of law, if there is an attorney-client relationship. " Whenever an attorney or solicitor is retained in a cause, it becomes his implied duty to use and exercise reasonable skill, care, discretion and judgment in the conduct and management thereof." Eggleston v Boardman, 37 Mich. 14, 16 (1877) (emphasis added); Babbitt v Bumpus, 73 Mich. 331; 41 N.W. 417 (1889). See also MRPC 1.0 to 1.3. In the instant case, the parties admitted that an attorney-client relationship existed between Mr. Simko and Mr. Blake. Thus, the issue is not whether a duty existed, but rather the extent of that duty once invoked.

It is well established that "[a]n attorney is obligated to use reasonable skill, care, discretion and judgment in representing a client." Lipton v Boesky, 110 Mich. App. 589, 594; 313 N.W.2d 163 (1981), citing Eggleston, supra at 16; Joos v Auto-Owners Ins Co, 94 Mich. App. 419, 422; 288 N.W.2d 443 (1979). Further, according to SJI2d 30.01, all attorneys have a duty to behave as would an attorney "of ordinary learning, judgment or skill . . . under the same or similar circumstances. . . ."

An attorney has the duty to fashion such a strategy so that it is consistent with prevailing Michigan law. However, an attorney does not have a duty to insure or guarantee the most favorable outcome possible. An attorney is never bound to exercise extraordinary diligence, or act beyond the knowledge, skill, and ability ordinarily possessed by members of the legal profession. See 7 Am Jur 2d, Attorneys at Law, § 199, p 249, n 92, citing Babbitt, supra; Goodman Mitchell v Walker, 30 Ala. 482 (1857); Glenn v Haynes, 192 Va. 574; 66 S.E.2d 509; 26 ALR2d 1334 (1951); Ward v Arnold, 52 Wn.2d 581; 328 P.2d 164 (1958).

In Babbitt, supra at 337, this Court held that

[a] lawyer is not an insurer of the result in a case in which he is employed, unless he makes a special contract to that effect, and for that purpose. Neither is there any implied contract, when he is employed in a case, or any matter of legal business, that he will bring to bear learning, skill, or ability beyond that of the average of his profession.

See also Bessman v Weiss, 11 Mich. App. 528; 161 N.W.2d 599 (1968).

Furthermore, in Joos, supra at 422, the Court of Appeals held that an attorney only must act with the skill, learning, and ability of the "average practitioner of law." See also Basic Food Industries, Inc v Grant, 107 Mich. App. 685, 690; 310 N.W.2d 26 (1981), and Lipton, supra.

To require attorneys, or other professionals, to act over and beyond average skill, learning, and ability, would be an unreasonable burden on the profession and the legal system. As the Court of Appeals stated:

This of course does not exclude an elevated standard of care when an attorney and client enter into a contract or agreement whereby the attorney agrees to be held to a higher standard. 73 Mich. 337.

There is no motion that can be filed, no amount of research in preparation, no level of skill, nor degree of perfection that could anticipate every error or completely shield a client from the occasional aberrant ruling of a fallible judge or an intransigent jury. To impose a duty on attorneys to do more than that which is legally adequate to fully vindicate a client's rights would require our legal system, already overburdened, to digest unnecessarily inordinate quantities of additional motions and evidence that, in most cases, will prove to be superfluous. And, because no amount of work can guarantee a favorable result, attorneys would never know when the work they do is sufficiently more than adequate to be enough to protect not only their clients from error, but themselves from liability. [ 201 Mich. App. 194. Emphasis added.]

In Denzer v Rouse, 48 Wis.2d 528, 534; 180 N.W.2d 521 (1970), the court noted that an attorney cannot possibly be required to predict infallibly how a court will rule. "A lawyer would need a crystal ball, along with his library, to be able to guarantee that no judge, anytime, anywhere, would disagree with his judgment or evaluation of a situation." Similarly, this Court refuses to impose any greater duty on attorneys than to act as would an attorney of ordinary learning, judgment, or skill under the same or similar circumstances.

Lastly, mere errors in judgment by a lawyer are generally not grounds for a malpractice action where the attorney acts in good faith and exercises reasonable care, skill, and diligence. Baker v Beal, 225 N.W.2d 106, 112 (Iowa, 1975). Where an attorney acts in good faith and in honest belief that his acts and omissions are well founded in law and are in the best interest of his client, he is not answerable for mere errors in judgment. Rorrer v Cooke, 313 N.C. 338, 340-342; 329 S.E.2d 355 (1985). See also 7 Am Jur 2d, Attorneys at Law, §§ 201-202, pp 250-252; 7A CJS, Attorney and Client, §§ 257-258, pp 464-472; 1 Mallen Smith, Legal Malpractice (3d ed), §§ 14.12 to 14.17, pp. 836-853:

[T]here can be no liability for acts and omissions by an attorney in the conduct of litigation which are based on an honest exercise of professional judgment. This is a sound rule. Otherwise every losing litigant would be able to sue his attorney if he could find another attorney who was willing to second guess the decisions of the first attorney with the advantage of hindsight. . . . To hold that an attorney may not be held liable for the choice of trial tactics and the conduct of a case based on professional judgment is not to say, however, that an attorney may not be held liable for any of his actions in relation to a trial. He is still bound to exercise a reasonable degree of skill and care in all his professional undertakings. [ Woodruff v Tomlin, 616 F.2d 924, 930 (CA 6, 1980). Citations omitted.]

IV

We find that the defendant acted as would an attorney of ordinary learning, judgment, or skill under the same or similar circumstances, and his alleged acts and omissions were a matter of trial tactics based on reasonable professional judgment.

From October 12 through October 15, 1987, Mr. Simko's trial was held in the Recorder's Court for the City of Detroit, before the Honorable Craig S. Strong. Mr. Simko was the only witness to testify. Dr. Karbal and Mrs. Simko were not called as witnesses because Mr. Blake did not feel that they would be beneficial to the defense's case. Following the prosecution's presentation of the case, and again after the defense rested, Mr. Blake moved for a directed verdict of acquittal. Both motions were denied by Judge Strong. On October 15, 1987, Mr. Simko was convicted by the jury as charged.

We find, as a matter of law, that the plaintiffs' allegations could not support a breach of duty because they are based on mere errors of professional judgment and not breaches of reasonable care. Plaintiffs' allegations of breach of duty are contained in ¶¶ 10(a)-(k) of plaintiffs' complaint. The only specific allegations that could have altered the outcome of Mr. Simko's trial are contained in ¶¶ 10(d)-(i). Plaintiffs alleged that defendant should have called other witnesses besides Mr. Simko, including Mr. Simko's physician, Dr. Michael Karbal, and Mr. Simko's wife, Margaret Simko. In addition, ¶ 10(i) alleges that Mr. Blake failed to ascertain the name and location of the hotel where Mr. Simko had allegedly spent the day before he was arrested.

Paragraphs 10(a)-(c) will not be discussed herein because they are general allegations and do not indicate how the outcome of the trial would have been affected. Also ¶¶ 10(j)-(k) are conclusory, and, again, do not specifically show how the trial would have been affected or how the defendant may have acted differently.

First, it is a tactical decision whether to call particular witnesses, as long as the attorney acts with full knowledge of the law and in good faith. Woodruff, supra at 933. Woodruff held that a charge of malpractice on the basis of an attorney's decision to not cross-examine an expert witness did not constitute malpractice. Similarly, in Frank v Bloom, 634 F.2d 1245, 1256-1257 (CA 10, 1980), the court stated that it will afford latitude to the attorney when making tactical strategies:

[I]t is the duty of the attorney who is a professional to determine trial strategy. If the client had the last word on this, the client could be his or her own lawyer.

See also Kirsch v Duryea, 21 Cal.3d 303; 578 P.2d 935 (1978), Fishow v Simpson, 55 Md. App. 312; 462 A.2d 540 (1983), and Burk v Burzynski, 672 P.2d 419 (Wy, 1983).

Here, plaintiffs are alleging that defendant was negligent in not calling Dr. Karbal and Mrs. Simko. This, however, is a tactical decision that this Court may not question. Perhaps defendant made an error of judgment in deciding not to call particular witnesses, and perhaps another attorney would have made a different decision; however, tactical decisions do not constitute grounds for a legal malpractice action. Woodruff, supra. Plaintiffs' claim that certain witnesses should have been called is nothing but an assertion that another lawyer might have conducted the trial differently, a matter of professional opinion that does not allege violation of the duty to perform as a reasonably competent criminal defense lawyer.

Second, the failure to ascertain the name and location of the hotel where a client was located at a particular time does not constitute negligence. There is no duty to infallibly protect a client from impeachment. This would be an impossible standard for defense counsel to meet and would violate and extend beyond the well-established reasonable care standard. See Lipton, supra at 594; Babbitt, supra at 337.

V

We conclude that there was no legal basis for holding that Mr. Blake's actions constituted negligence, or otherwise constitute malpractice. When an attorney fashions a trial strategy consistent with the governing principles of law and reasonable professional judgment, the attorney's conduct is legally adequate. Accordingly, we affirm the decision of the Court of Appeals and hold that the defendant fulfilled his duty to his client.

CAVANAGH, BOYLE, and RILEY, JJ., concurred with MALLETT, J.