P owned a drug store that burned down. P sent insurance claims to 4 insurance companies; all 4 denied his claim.
P retained D to represent him in trying to prevail on his insurance claims.
D filed the claim and mailed service of process to the state's Commissioner of Insurance. The Commissioner mailed the service to the 4 insurance companies.
The statute required personal service to the state commissioner, but there was a local custom that allowed the mailing of summons.
Insurance companies were able to avoid the claims and the SOL ran out.
P sued D in negligence.
Trial court found for D.
NC Supreme Court affirmed, found for D.
What standard of care is necessary in negligence cases involving attorneys?
Attorneys are required to…
Possess the requisite degree of learning, skill, and ability necessary to the practice of his profession and which other similarly situated ordinarily possess
Exert his best judgment in the prosecution of the litigation entrusted to him
Exercise reasonable and ordinary care and diligence in the use of his skill and in the application of his knowledge to his client's cause.
An attorney who acts in good faith and in an honest belief that his advice and acts are well founded is not answerable for a mere error of judgment in a point of law which has not been settled by the court of last resort in his state and on which reasonable doubt may be entertained by well-informed lawyers.
The Ds were following a custom which had prevailed in NC for two decades or more.
Insurance companies had uniformly ratified such service up until this point. Thus, the right of service by mail had not been tested in the courts in NC.
Client must also prove that they would have been successful in their claim if not for the malpractice/negligence.