Task Delegated But Not Liability

The South Carolina Supreme Court reversed and remanded a case where the Court of Appeals had held that a legal malpractice defendant could not be liable for a task delegated to a title company

In this attorney malpractice case, Amber Johnson alleges her closing attorney, Stanley Alexander, breached his duty of care by failing to discover the house Johnson purchased had been sold at a tax sale the previous year. The trial court granted partial summary judgment in favor of Johnson as to Alexander’s liability. On appeal, the court of appeals held Alexander could not be held liable as a matter of law simply because the attorney he hired to perform the title work may have been negligent. Instead, the court determined the relevant inquiry was “whether Alexander acted with reasonable care in relying on [another attorney’s] title search”; accordingly, it reversed and remanded. Johnson v. Alexander, 408 S.C. 58, 64, 757 S.E.2d 553, 556 (Ct. App. 2014). We disagree and find the trial court properly granted summary judgment as to liability. We therefore remand to the trial court for a hearing on damages.

The court

In determining the scope of Alexander’s duty, we accept his consistent characterization of this responsibility—ensuring Johnson received good title. In her complaint, Johnson alleged “[d]efendants had professional duties to ensure that Plaintiff was receiving good and clear title to the subject property free of any encumbrances, liens, or clouds on title before conducting the closing and if there was a problem after the closing, to correct said deficiencies and/or advise Plaintiff how to correct said deficiencies.” In Alexander’s answer he admitted those allegations…

However, even absent Alexander’s admissions, we find the court of appeals erroneously equated delegation of a task with delegation of liability. Certainly  Feeley’s negligence is the issue here, but that does not displace Alexander’s ultimate responsibility. While an attorney may delegate certain tasks to other attorneys or staff, it does not follow that the attorney’s professional decision to do so can change his liability to his client absent that client’s clear, counseled consent. See Rule 1.8(h), RPC, RULE 407, SCACR (“A lawyer shall not. . . make an agreement prospectively limiting the lawyer’s liability to a client for malpractice unless the client is independently represented in making the agreement.”). Thus, Alexander owed Johnson a duty and absent her agreement otherwise, he was liable for that responsibility regardless of how he chose to have it carried out.

We therefore agree with Johnson that an attorney is liable for negligence in tasks he delegates absent some express limitation of his representation. Stated another way, without an express limitation in representation, attorneys cannot delegate liability for tasks that are undertaken in carrying out the duty owed the client.

(Mike Frisch)