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Law School Case Brief

Kirsch v. Duryea - 21 Cal. 3d 303, 146 Cal. Rptr. 218, 578 P.2d 935 (1978)


In addition to competing strategies, an attorney is often confronted with clashing obligations imposed by our system of justice. An attorney has an obligation not only to protect his client's interests but also to respect the legitimate interests of fellow members of the bar, the judiciary, and the administration of justice. In absence of a specific rule of conduct governing the situation before him, determination of the attorney's duty of care when conflicting interests arise is made by balancing those interests, keeping in mind that it would be unfair to require the attorney to pay damages merely upon a showing of a mistake in choice.


Plaintiff sustained an injury following a fall at his place of employment. Despite seeing several doctors, plaintiff continued to have lingering medical symptoms. A few days before the statute of limitation would bar any medical malpractice action, plaintiff was referred by his workers' compensation attorney to defendant lawyer who was experienced in medical malpractice litigation.  The latter filed a complaint on 23 March 1965. Shortly after suit was filed, plaintiff moved to New Mexico, and subsequent communication between them was by telephone or mail.

Defendant attorney reviewed the workers' compensation file including its medical records, conversed with physicians, and did medical and legal research, but did not depose any of the doctors. After concluding that any trial would not be justified because of insufficient evidence of malpractice,  defendant informed plaintiff by mail on 21 July 1969 of his conclusion the case could not be established and that he would proceed no further. He enclosed a substitution of attorneys form, substituting plaintiff in propria persona and asked that the form be signed and returned within 15 days. Defendant pointed out that until another attorney was retained plaintiff must act as his own attorney. Offering full cooperation with any attorney plaintiff designated, defendant repeatedly stressed the need to bring the case to trial within five years, specifying in capital letters, "This Case Must Be Brought To Trial And Trial Must Be Commenced Before March 23, 1970." After not hearing from plaintiff, defendant sent a second letter on 5 September 1969, stating that if the substitution form was not signed and returned within 10 days, defendant would move for withdrawal from the case. His subsequent motion for withdrawal was granted by the trial court. The medical malpractice case was dismissed for failure to comply with the five-year trial requirement.

Plaintiff then brought this malpractice claim against the attorney.  After a jury trial, Judgment for plaintiff was entered upon the verdict that defendant attorney had been negligent and that plaintiff had been 2.5 percent negligent. The attorney appealed.


Did the legal malpractice action against the attorney lack merit?




On appeal, the court reversed the judgment against defendant attorney, finding that defendant's determination that plaintiff client's underlying action lacked merit was not erroneous and that defendant properly delayed his nonconsensual withdrawal as attorney to not prejudice plaintiff's case while plaintiff was securing other counsel; furthermore, any delay by the attorney in seeking the formal order did not reflect absence of due care but rather compliance with professional conduct rules. Thus, the appellate court reversed the judgment, finding that in its review of the materials available to defendant, the possibility of plaintiff's recovery was remote, and defendant's determination that the action was not meritorious could not be characterized as manifestly erroneous. 

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