While, the Supreme Court, did earlier dismiss the malpractice suit brought against the law firm Judge & Duffy; on appeal, that summary judgment was reversed. The court, in reversing the order held “the argument that any error was one of judgment in selecting between reasonable alternatives must fail in light of the lack of a prima facie showing that the legal advice provided was a reasonable course of action. Inasmuch as defendants failed to shift the burden to plaintiff to demonstrate a departure from the standard of care, the motion for summary judgment should have been denied.”
This would obviously reconfirm that in a legal malpractice matter, the defendant has to establish prima facie that he had followed a reasonable course of action (without any ambiguity), and shift the burden of proof to the shoulders of the plaintiff requiring him to prove a departure from reasonable standard of care – if the plaintiff fails, the defendant is entitled to receive a summary judgment of dismissal.
However, that decision was reversed in appeal, with the appellate court finding that the plaintiff had failed to comply with the unambiguous terms of the employment agreement by terminating the employee without due notice. Subsequently, the plaintiff sued Judge & Duffy for legal malpractice by negligently advising plaintiff in connection with the termination of the employee. The malpractice suit was dismissed by Warren County Supreme Court judge Robert Muller who found that the plaintiff had provided inadequate papers to raise in issue of fact.
Muller's decision was reversed by the appellate court holding that it was upon the defendant in a legal malpractice suit to prove without ambiguity that the defendant had followed a reasonable course of action adhering to required standards of care, and only after that can the adequacy of the plaintiff's papers be decided upon.
