Phillips v. Duane Morris, LLP et al
ORDER Overruling 74 Objections to and Adopting 67 Recommendation of United States Magistrate Judge. Defendants' Motion for Partial Summary Judgment [# 52 ], filed March 24, 2014, is DENIED. By Judge Robert E. Blackburn on 5/28/2014.(klyon, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Robert E. Blackburn
Civil Action No. 13-cv-01105-REB-MJW
EDWARD H. PHILLIPS, an individual,
DUANE MORRIS, LLP, a limited liability partnership,
JOHN C. HERMAN, individually and as partner of Duane Morris, LLP, and
ALLEN C. GREENBERG, individually and as a partner of Duane Morris, LLP,
ORDER OVERRULING OBJECTIONS TO AND ADOPTING
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
The matters before me are (1) the magistrate judge’s Recommendation on
Defendants’ Motion for Partial Summary Judgment (Docket No. 52) [#67],1 filed
May 9, 2014; and (2) Defendants’ Objections to the Magistrate Judge’s
Recommendation on Defendants’ Motion for Partial Summary Judgment [#74],
filed May 23, 2014. I overrule the objections, adopt the recommendation, and deny the
As required by 28 U.S.C. § 636(b), I have reviewed de novo all portions of the
recommendation to which objections have been filed, and have considered carefully the
recommendation, objections, and applicable caselaw. The recommendation is detailed
“[#67]” is an example of the convention I use to identify the docket number assigned to a
specific paper by the court’s case management and electronic case filing system (CM/ECF). I use this
convention throughout this order.
and well-reasoned. Defendants’ arguments ultimately are unpersuasive
Defendants argue first that the magistrate judge erred in concluding that
Colorado courts would not recognize the doctrine of “judgmental immunity” for an
attorney’s tactical decisions. Regardless whether the courts of Colorado would
recognize such a doctrine by that name or otherwise, defendants fail to appreciate that
the doctrine is not an immunity in the true sense. Rather, it is little more than the
recognition of the unremarkable, well-established principle that an attorney cannot be
found liable for mistakes made in the honest exercise of professional judgment within
the standard of reasonable care:
The core of this rule is nothing more than a tautology; it has
always been clear that so long as an attorney exercises a
reasonable degree of skill and care he will not suffer liability.
Adopting a separate rule that restates that cardinal principle
of our malpractice jurisprudence and denominates it an
“immunity” certainly is de trop.
Harris Teeter, Inc. v. Moore & Van Allen, PLLC, 701 S.E.2d 742, 756 (S.C. 2010).
See also Woodruff v. Tomlin, 616 F.2d 924, 930 (6th Cir.) (“To hold that an attorney
may not be held liable for the choice of trial tactics and the conduct of a case based on
professional judgment is not to say, that an attorney may not be held liable for any of his
actions in relation to a trial. He is still bound to exercise a reasonable degree of skill
and care in all of his professional undertakings.”), cert. denied, 101 S.Ct. 246 (1980);
Jones v. Lattimer, – F.Supp.2d –, 2014 WL 869470 at *4-5 (D.D.C. March 6, 2014)
(“[D]espite the . . . use of the term ‘immunity,’ . . . an attorney in a legal malpractice suit
must still prove that he or she exercised reasonable care or acted as a reasonable
attorney would under the same circumstances in order to avoid liability.”) (citations and
internal quotation marks omitted); Biomet Inc. v. Finnegan Henderson LLP, 967 A.2d
662, 666 (D.C. App. 2009) (“Central to the doctrine is the understanding that an
attorney's judgmental immunity and an attorney's obligation to exercise reasonable care
coexist such that an attorney's non-liability for strategic decisions is conditioned upon
the attorney acting in good faith and upon an informed judgment after undertaking
reasonable research of the relevant legal principals and facts of the given case.”)
(citation and internal quotation marks omitted); Sun Valley Potatoes, Inc. v. Rosholt,
Robertson & Tucker, 981 P.2d 236, 239 (Idaho 1999) (“Rather than being a rule which
grants some type of ‘immunity’ to attorneys, [judgmental immunity] appears to be
nothing more than a recognition that if an attorney's actions could under no
circumstances be held to be negligent, then a court may rule as a matter of law that
there is no liability.”). Defendants’ argument therefore assumes what it seeks to prove –
that is, that defendants’ tactical decisions in representing plaintiff during settlement
negotiations in the underlying patent case were within the standard of care. Genuine
disputes of material fact exist as to this ultimate question, and summary judgment
therefore is inappropriate. Fed. R. Civ. P. 56(a).
Defendants further ascribe error to the magistrate judge’s determination that
genuine disputes as to material facts precluded summary judgment on the issue of
causation. Defendants represent that the key issue in determining whether they are
liable for professional negligence is whether the Honorable Marcia S. Krieger, Chief
Judge of the United States District Court for the District of Colorado, who presided over
the patent case, would have granted a stay of her ruling on the patent defendants’ Rule
50 motion for judgment as a matter of law while the parties pursued post-trial settlement
negotiations. They suggest that this is an issue for the court to resolve. I agree.
Lariviere, Grubman & Payne, LLP v. Phillips, 2011 WL 650001 at *14 (D. Colo. Feb.
11, 2011). Nevertheless, it does not follow that the issue becomes one of law that
necessarily must be resolved on summary judgment. Instead, causation in this
particular instance remains an issue of fact, even though the court is the ultimate factfinder.2 The court agrees with the magistrate judge that the current record admits of
numerous genuine disputes as to material facts that may impact determination of this
I thus find and conclude that the arguments advanced, authorities cited, and
findings of fact, conclusions of law, and recommendation proposed by the magistrate
judge should be approved and adopted.
THEREFORE, IT IS ORDERED as follows:
1. That the magistrate judge’s Recommendation on Defendants’ Motion for
Partial Summary Judgment (Docket No. 52) [#67], filed May 9, 2014, is APPROVED
and ADOPTED as an order of this court;
2. That the objections stated in Defendants’ Objections to the Magistrate
The cases on which defendants rely are not entirely on point. They involve malpractice claims
premised on the failure to perfect an appeal, which necessarily requires a determination whether the court
of appeals would have granted review had appeal been perfected and, if so, whether it would have
rendered a determination favorable to the client. See Halvorsen v. Ferguson, 735 P.3d 675, 679 & n.2
(Wash. App. 1986) (citing Daugert v. Pappas, 704 P.2d 600, 603-04 (Wash. 1985)). As the Washington
Supreme Court recognized, these issues “depend on the analysis of the law and the rules of appellate
procedure.” Daugert. 704 P.2d at 604. The issue in this case – whether Judge Krieger (or some other
reasonable judge) would have granted the stay – is informed by practical, factual considerations, not legal
ones. Moreover, analyzing those circumstances on the present record, I cannot say as a matter of law
that a reasonable jurist would not have granted the brief stay contemplated herein.
Judge’s Recommendation on Defendants’ Motion for Partial Summary Judgment
[#74], filed May 23, 2014, are OVERRULED; and
3. That Defendants’ Motion for Partial Summary Judgment [#52], filed March
24, 2014, is DENIED.
Dated May 28, 2014, at Denver, Colorado.
BY THE COURT:
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