When Must Counsel Retain An Expert In A Legal Malpractice Case?

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...