In Washington, a
person needs a
bond to install a
entrusted to handle
need no insurance.
central to (the) relationship by erecting
artificial barriers to a client’s ability to
fully recover damages...” Schmidt, 181
Wn.2d at 685. Finally, there is nothing
“confusing” about allowing clients to
recover emotional distress damages on
par with every other special relationship.
“Washington cases are unambiguous
that legal malpractice damages should
fully compensate plaintiffs injured by attorney malpractice.” Shoemaker v. Ferrer,
143 Wn. App. 819, 829 (2008).
The Path Forward
The stricter standard for general
damages will not stand; it is a special
immunity for attorneys, inconsistent
with Washington law, and bad public
policy. Justice Stephens’ standard is
none of those things and will incentiv-ize attorneys to make reasonable offers
and clients to accept them. Washington has long recognized negligence
compensates the injury, it does not
punish the conduct. Yet, assuming two
clients equally damaged by attorney
negligence, Justice Wiggins’ standard
only compensates the one lucky enough
to have been injured by “particularly
egregious or intentional conduct.”
Malpractice is based on negligence,
not recklessness or intent. To borrow
Justice Wiggins’ turn of phrase, it is his
standard that places the cart before the
horse by making an award of damage
contingent on intentional conduct
when the claim is negligence and it is
the injury that is compensated, not the
conduct that is punished.
With no majority opinion and no
clear guidance from Schmidt, trial judges will decide which standard to apply.
They should apply Justice Stephens’.
It is the national trend, consistent with
case law, and the better policy.
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