In the recent decision of Malton et al v. Attia et al, 2013 ABQB 642, the Honourable Madam Justice A. B. Moen determined when a Plaintiff needs to call an expert witness in attempting to prove malpractice case against a lawyer.
The facts of this case are interesting in that the Plaintiffs retained the Defendant lawyer, Attia, to prosecute a claim against HouseMaster Inspection Service when HouseMaster allegedly failed to identify many structural defects, leakage, rot, mold, and other defects in a home that the Plaintiffs ultimately purchased after relying on the HouseMaster opinion.
The action against HouseMaster was successful but the Plaintiffs were only awarded $38,381.00, a sum far less than the Plaintiffs had spent to repair the house.
The Maltons made a complaint to the Law Society related to Attia's management of the HouseMaster action and ultimately brought an action against Attia for legal malpractice.
During the trial of the legal malpractice action, the Plaintiffs did not call expert evidence on the standard of care that Attia ought to have met as a lawyer in Alberta in prosecuting the HouseMaster action.
After giving a robust analysis of negligence, the standard of care required of a lawyer, and the characteristics and duties of an expert witness, Justice Moen then turned her attention to whether a trial judge of a superior court is required to consider expert evidence to evaluate the conduct of a lawyer.
The decision is nothing if not comprehensive. In fact, Justice Moen reviewed the law on the issues from jurisdictions across Canada before coming to the conclusion that judges of a superior court can, and should, exclude unnecessary lawyer expert standard of care evidence. At paragraph 175 of the decision, Justice Moen states that:
In conclusion, I see no basis, in policy, logic or law, for why judges of this court require expert assistance to understand aspects of a lawyer's activities that relate to the routine functions and jurisdiction of this court. R. v. Abbey and R. v. Mohan indicate that expert evidence may only be admitted when it is necessary. I disagree with Attia who argues I need an expert lawyer to tell me how to do my job. I do not accept that. (emphasis in original)
Justice Moen goes on to find that there are specialized areas of the law and legal practice where the role of expert evidence to evaluate a lawyer's standard of care is relevant. She held that this is only applicable where lawyers practicing in the particular specialized field can throw light on the question.
In the Attia case, however, there was no need for any such specialized expert evidence. She found that:
No judge needs to be instructed in basic aspects of legal practice when ordinary lawyer's duties, for example the confidentiality of client information, are the basis of alleged misconduct.
As a matter of practice, and out of an abundance of caution, if there is any question as to whether legal malpractice is in relation to a specialized area, expert evidence should perhaps be tendered.
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