Suing Litigation Lawyers

Burden of Proof In Mental Capacity

In Mac v Wong 2019 BCSC 902 two plaintiffs representing themselves brought court action their former litigation lawyer claiming he was negligent and failed to follow their instructions.

While it is not common for lawyers to be sued, generally speaking, there are more court actions brought against solicitors re document preparation than trial lawyers, and this is an example of how the courts will treat a claim of negligence against the litigation lawyer.

The claim was dismissed with the Court of Appeal commenting that the action was “misconceived”.

The leading case with respect to the standard of care of the ordinary reasonably competent litigation lawyer provide a professional service to the plaintiffs is Central Trust Company v Rafuse (1986)  2 SCR 147 at para. 58

The standard is not one of perfection , but the ordinary competence of  a reasonable lawyer.

In Hill v Hambleton-Wentworth Police Services Board 2007 SCC 41 the court stated at paragraph 73:

“The law of negligence does not require perfection of professional; nor does it guarantee desired results. The law distinguishes between unreasonable mistakes breach of the standard of care and mere “errors in judgment”, which any  reasonable professional may have met therefore, which do not breach the standard of care.( Lapointe v Hopital Le Gaureur (1992) 1 SCR 351