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Member Achievement and Case News: Featured

Instruction on Attorney Negligence Reversed

Sunday, November 19, 2017   (0 Comments)
Posted by: Tom Jensen
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Clients alleged law firm promised to create a life insurance trust to shield decedent's estate from taxation. They alleged plan was to pass decedent's corporation's stock to his son to retain family control, while preventing taxation from affecting those plans. Ultimately the plan failed and the estate owed $10 million in taxes. Law firm denied the decedent wished to use a trust in the manner alleged, because to do so wold deprive family members of their share of the estate. Trial court instructed jury as follows: "Attorneys are not negligent merely because they do not achieve the result desired by the client. An attorney does not guarantee a good result by undertaking to perform a service." In Sherertz v. Brownstein Rask, et al., 2017 WL 5162881 (Or. App. Nov. 8, 2017) the court found error in the instruction. While the instruction was technically true that "[a]ttorneys are not negligent merely because they do not achieve the result desired by the client" the instruction carried with it a significant risk of confusing the jury as to the importance of "the result" promised by defendant law firm in determining duty and breach. The plaintiffs could only establish duty by showing that a specific result had been "promise[ed] to the testator * * * under circumstances that indicate[d] that the testator intend[ed] to give the plaintiff the benefit of the promised performance. "When the instruction then tells the jury that "[a]ttorneys are not negligent merely because they do not achieve the result desired by the client," it hopelessly confuses what is at issue.    


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