For instance, "passive" negligence might be, "I didn't do A (required by the law or the code of legal ethics) because I genuinely didn't know that A needed to be done" (even though I should have). "Active" negligence would be, "I knew I was supposed to do A, but didn't do it because it would cost money."

Another example: The client wants "X" included in a deal and the lawyer didn't include it. Lawyer 1 says, "I didn't know that the client wanted X in the deal because i never received a phone call or email to that effect. (This is conspicuously absent from both lawyer and client emails.) Lawyer 2 says, "I knew that X was a priority for the client (and was legal, even "standard" practice), but I failed to include/downplayed it because I had other priorities."

Are there any differences in a lawyer's potential negligence liability between these two sets of cases? How far can what i call the "idiot" defense protect a lawyer?

1 Answer 1


In most jurisdictions of which I am aware, there is no such distinction.

For example, Colorado's jury instructions makes no such distinction, and the distinction you suggest is not one identified in most law school textbooks or the Restatements of Torts.

In most legal malpractice cases, an expert lawyer called a "standard of care" expert offers an opinion that particular elements of the lawyer's conduct did not live up to the level of a reasonable lawyer in the state.

There are a handful of very narrow cases where this is not required (e.g. missing a statute of limitations due to failure to properly calendar the deadline, or not showing up to court on the appointed day resulting a default judgment). But, this arises from the clarity of the violation and not from its active v. passive nature.

Ignorance of the law is rarely an excuse, and even more rarely so for lawyers, although the law does not require lawyers to be prescient either.

For example, I recent had a case where I won on an issue of substantive probate law governed by California law at trial, because the other side argued a contrary position but had no legal authority to back up that argument. But, a few weeks before the appellate court issued its opinion, after all briefing in the appeal was complete and oral arguments had been waived by both parties, the California Supreme Court made a ruling that was contrary to my position in a case that was factually almost identical to my case and reversed prior case law in California on the subject. One of the judges in my case (or more likely, on the judge's clerk) found the new case. So, I lost on the appeal.

But, nobody would accuse me of legal malpractice for not knowing at trial that many months after the case was argued, and weeks after the case had been fully briefed on appeal, that the California Supreme Court would change the law of the state of California in a manner that was contrary to the position I had taken all along and prevailed with, until that point.

  • Usually, but the facts always matter. It wouldn't violate the standard of care if doing X is the right choice in any case and the choice isn't one for which client informed consent is ethically required.
    – ohwilleke
    Jul 11, 2018 at 18:19

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