Petition — Tomlin v. Woodruff

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Preme Court, U. a.

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MAY 121997 =

_MICHAFL RODAK, JR., CLERK

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In the Supreme Court of the United States

HEWITT P. TOMLIN, JR.; HOMER H. WALDROP; ROY

HALL; and DAVID R. FARMER, Individually and As

Partners Doing Business Under the Name and Style of

Waldrop, Hall, Tomlin and Farmer, a Professional Business

Association,

Petitioners,

VS.

JOAN WOODRUFF; PATRICIA WOODRUFF

HAMILTON; and LOUIS HAMILTON,

Respondents.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

LEO BEARMAN, JR.

1140 Sterick Building

Memphis, Tennessee 38103

and

JOHN J. THOMASON

Suite 2518

100 North Main Building

Memphis, Tennessee 38103

Attorneys for Petitioners

a

E. L. MENDENHALL, INc., 926 Cherry Street, Kansas City, Mo. 64106, (816) 421-3030

TABLE OF CONTENTS

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QUESTIONS PRESENTED FOR REVIEW ....................

CONSTITUTIONAL AND STATUTORY PROVI-

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EAR EUR SAE RE NIE erichiccceccmicempeciines

REASONS RELIED UPON FOR GRANTING WRIT

OF CERTIORARI—

THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT, SITTING EN

BANC, HAS DECIDED AN IMPORTANT

STATE QUESTION IN A MANNER IN DIRECT

CONFLICT WITH APPLICABLE STATE LAW

A. Under Tennessee Law, There Is No Cause

I.

B.

Of Action Against An Attorney For The

Manner In Which He Honestly Chooses To

Present His Client’s Case To The Trier Of

The Facts; In This Cause, However, The

United States Court Of Appeals Failed To

Follow Tennessee Law, Thus Violating The

Mandate Of Erie Railroad Company v.

Tompkins And Establishing A Dual Stan-

dard Of Liability For Tennessee Trial At-

I ac cesisinenssciousasceubiespnsneneiinledaseaaiaieieisinabicidenaniciaiads

Tennessee Law On Attorney Malpractice In

The Trial Of A Lawsuit Specifically Fol-

lows The Law Of England (Now Also

Adopted By New Zealand) In Granting The

Trial Attorney Immunity, Absent Bad Faith; _

The United States Court Of Appeals In This

Diversity Case Erroneously Applied A Dif-

OCU TI hiciicccieeaces Sees

II

C. Under Tennessee Law A Trial Attorney’s

Alleged Conflict Of Interest Cannot Be The

Basis For A Malpractice Suit Against Him;

The United States Court Of Appeals Has

Erroneously Held To The Contrary ................ 14

I sal ta hcsnadeinichiedtapcancnaiceneansssansiis ctiieasbssahihesces 17

ge Ne ye 6 5 4 | Onan 18

P APPENDIX:

Appendix A—Opinion Of United States District

Court For Western District of Tennessee [Wood-

ruff v. Tomlin, 423 F.Supp. 1284 (W.D. Tenn.

A cide tad Rela lls sijscccachlinhauibactedgebarenantinnaiehaananensiis Al

Appendix B—Opinion Of United States Court Of

Appeals For The Sixth Circuit [Woodruff v.

Tomlin, 593 F.2d 33 (6th Cir. 1979) ] 0.0 .. Al3

Appendix C—En Banc Opinion Of The United

States Court Of Appeals For The Sixth Circuit .... A35

Table of Citations

STATUTES AND RULES

Rule 10E, Federal Rules of Appellate Procedure ............ 15

ede ccorin qnadisone dpdbcauiedstubestasimnasichwatnsasves 2

‘ Nee ca cd sacncnsiiah darpaneasaes 3,4

5(a), Tennessee Code Annotated, page 89 000... 3, 14

$59-859, Tennessee Code Annotated ....00.0000000 10

§59-854, Tennessee Code Annotated 220020... 10-11

CasEs CITED

Biggar v. McLeod, (1977) 1 N.Z.L.R. 321 00... 12

Butz v. Economy, ........ Be nastics , 98 S.Ct. 2894 (1978) 13

Erie Railroad Company v. Tompkins, 304 U.S. 64, 58

sass a neyo vénnnnensasescesdeainganchahecsad 3, 7, 8, 14

III

Ferri v. Ackerman, ........ i» Sarees , 100 S.Ct. 402 (1979) 13

Rees v. sitet, (1974) 1 NZD. 160 on... ecckiseccsscesscsces: 12,13

Rondel v. Worsley, (1966) 1 All. E.R. 467 (1966 C.A.), 3

All, E.R. 657 (1967 H.L.), 3 All. E.R. 993 (1969), 1

SAE I Agni citici cesses csntn aca cdersse iterinnpaciedcietaghinakacloaus toute abana aos 12, 13

Sitton v. Clements, 385 F.2d 869 (6th Cir. 1967) ........ 15

Stricklan v. Koella, 546 S.W.2d 810 (Tenn. App. 1976,

cert. denied by S.Ct. of Tenn., Feb. 7, 1977) ... .... 6, 7, 8, 9,

£2, 13, 14, 15

Woodruff v. Tomlin, 423 F.Supp. 1284 (W.D. Tenn.

NERS: sscanesispicsatsaheeusietarn encsnesane kan oapelcueiabbenan basmati ian ]

Woodruff v. Tomlin, 593 F.2d 33 (6th Cir. 1979) (Opin-

ion vacated by U.S. Court of Appeals) ............ 1, 6, 13, 14

Woodruff v. Tomlin, Opinion by U.S. Court of Appeals

Sitting En Banc (Feb. 21, 1960) ..........................0000...- 2

In the Supreme Court of the United States

HEWITT P. TOMLIN, JR.; HOMER H. WALDROP; ROY

HALL; and DAVID R. FARMER, Individually and As

Partners Doing Business Under the Name and Style of

Waldrop, Hall, Tomlin and Farmer, a Professional Business

Association,

Petitioners,

VS.

JOAN WOODRUFF; PATRICIA WOODRUFF

HAMILTON; and LOUIS HAMILTON,

Respondents.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

Your petitioners above-named respectfully pray that a

writ of certiorari issue to review the judgment and order

of the United States Court of Appeals for the Sixth Circuit

sitting en banc, decided and filed February 21, 1980.

OPINIONS BELOW

The opinion of the United States District Court for the

Western District of Tennessee was reported as Woodruff

v. Tomlin, 423 F.Supp. 1284 (W.D. Tenn. 1976) and is

printed as Appendix A. The original opinion by a panel

of the United States Court of Appeals for the Sixth Cir-

cuit was reported as Woodruff v. Tomlin, 593 F.2d 33 (6th

Cir. 1979) and is printed as Appendix B. That opinion

2

was vacated by the United States Court of Appeals after

it granted petitioners’ petition for a rehearing and a sug-

gestion of rehearing en banc. The subsequent opinion of

the United States Court of Appeals for the Sixth Circuit

sitting en banc is not reported and is printed as Ap-

pendix C.

BASIS FOR JURISDICTION

The opinion and judgment of the United States Court

of Appeals for the Sixth Circuit sitting en banc, was filed

February 21, 1980.

This Court’s jurisdiction to review the judgment in

question is invoked pursuant to 28 U.S.C. §1254.

QUESTIONS PRESENTED FOR REVIEW

1.

Should a trial attorney be subjected to a suit for mal-

practice arising out of the judgmental and tactical decisions

he must make in the planning, presentation and argument

of his client’s case to the trier of fact?

2.

If in Tennessee there can be no cause of action for

malpractice against an attorney arising out of the manner

in which he honestly chooses to present his client’s case

to the trier of the facts, can the United States Court of

Appeals, in a diversity case from Tennessee, hold other-

wise?

3.

When the only reported case on point in Tennessee

expressly holds that, while there is no general exemption

3

for Tennessee attorneys against negligence in malpractice,

“there can be no cause of action against an attorney arising

out of the manner in which he honestly chooses to present

his client’s case to the trier of the facts,” can the United

States Court of Appeals, in a diversity case from Tennessee

alleging attorney malpractice, hold that a trial attorney’s

judgmental decisions on the witnesses he interviews, the

statutes he argues to the jury, and the parties he represents

in the trial, may form the basis of a cause of action of

malpractice against him?

4.

Can an attorney’s alleged conflict of interest be the

basis of a civil suit for negligence against him when there

is no proof that the alleged conflict resulted in any dam-

ages to his client?

CONSTITUTIONAL AND STATUTORY PROVISIONS

INVOLVED

28 U.S.C. §1332—Diversity of Citizenship; Amount in

Controversy; Costs. (a) The District Court shall have

original jurisdiction of all civil actions where the matter

in controversy exceeds the sum or value of $10,000.00 ex-

clusive of interest and costs, and is between (1) citizens

of different states ....

Erie Railroad Co. v. Tompkins, 304 U.S. 64, 58 S.Ct.

817 (1938).

Tennessee Code of Professional Responsibility, 5(a)

Tenn. Code Ann. at page 89:

The Code makes no attempt to prescribe either dis-

ciplinary procedures or penalties for violation of a

Disciplinary Rule, nor does it undertake to define

standards for civil liability of lawyers for professional

conduct.

STATEMENT OF THE CASE

The issue raised in this petition has been decided by

the House of Lords in England, by the New Zealand

Court of Appeals, by the Tennessee Court of Appeals,

and in this case, by the Court of Appeals for the Sixth

Circuit. Only the Sixth Circuit, in a sharply divided de-

cision by an en banc court, has ruled contrary to pe-

titioner’s position.

The importance of this issue is evidenced by the four

separate opinions filed by that en banc court: Judge

Lively writing for a majority of four, Judge Weick con-

curring in part and dissenting in part, Judge Engel dis-

senting, and Judge Merritt dissenting. -

The decision in this case, if left standing, will allow

a jury to find a trial attorney guilty of malpractice by

“second guessing” the judgmental decisions the attorney

makes in the preparation and trial c: his client’s case. As

such it adversely affects every trial attorney at the Bar;

eliminates that attorney’s independent role as an officer of

the court and renders the trial attorney’s judgment sub-

servient to a client’s whims; and thus seriously hinders the

efficient and effective operation of the adversary system

and disposition of trial cases.

This is a suit for attorney malpractice brought by

respondents, former clients of petitioners, against peti-

tioners in the United States District Court for the Western

District of Tennessee. Jurisdiction in the trial court is

based upon diversity of citizenship pursuant to 28 U.S.C.

§1332. Tennessee law governs. ’

Respondents (plaintiffs below) brought suit against

petitioners Hewitt P. Tomlin and his law firm (defendants

below) who represented the plaintiffs in their personal in-

jury suits arising out of an automobile accident occurring

5

May 22, 1968 on Highway 100 in Chester County, Tennessee.

The facts of the accident were hotly disputed.

The plaintiff, Joan Woodruff, was a passenger in her

father’s automobile being driven by her sister, Patricia

Woodruff, on a two-lane road in Chester County, Tennes-

see, when it was involved in an accident with a truck ap-

proaching from the opposite direction. After a trial which

lasted more than a week, the jury rendered a verdict in

favor of the defendants in the suits brought by the Wood-

ruff girls. An appeal filed by Tomlin to the Court of

Appeals of Tennessee, Western Section, was unsuccessful.

The Woodruff girls then brought suit against Tomlin

and his law firm, alleging that they had negligently pre-

pared, tried, and appealed the personal injury suits. They

further alleged that Tomlin represented conflicting inter-

ests by representing both Joan and Patricia Woodruff (al-

though he had been requested to do so by both girls and

their parents), and that this “conflict of interest” had

somehow caused them damages. (The girls’ father, Charles

Woodruff, carried liability insurance on his automobile, but

this insurance excluded coverage for Patricia Woodruff in

the event she was sued by her sister, Joan Woodruff, who

was a resident of the same household. Therefore, had

Joan sued Patricia, she could have collected nothing.)

When the malpractice case was tried in the United

States District Court, District Judge (now Judge in the

United States Court of Appeals for the Sixth Circuit)

Bailey Brown eliminated the issue of conflict of interest

from the trial, holding that no jury could reasonably deter-

mine that there was any proximate causal connection be-

tween the alleged conflict, if any, and the loss of the per-

sonal injury suit by the Woodruffs in state court. The

Woodruffs alleged negligence on the part of petitioners

in (1) failing to attempt either to change venue or to refile

6

the case in Federal Court; (2) failing to object to an

allegedly erroneous jury instruction; (3) failing to consult

a traffic reconstruction expert and use him as a witness at

trial; (4) failing to interview and present available wit-

nesses who might testify to important facis; (5) failing to

bring to the attention of the trial court and jury certain

Tennessee statutes bearing on the operation of motor ve-

hicles in the state; (6) and negligence in the conduct of the

appeal. The jury in the United States District Court dis-

agreed, and a mistrial was declared. Petitioners’ motion

for judgment notwithstanding the mistrial was granted

by the United States District Court, the Court relying upon

a published opinion of the Court of Appeals of the State

of Tennessee in the case of Stricklan v. Koella, 546 S.W.2d

810 (Tenn. App. 1976, cert. denied by the Supreme Court

of Tennessee Feb. 7, 1977). That case held that, while

Tennessee would recognize generally a cause of action for

malpractice against attorneys, “there can be no cause of ac-

tion against an attorney arising out of the manner in

which he honestly chooses to present his client’s case to

the trier of the facts.” Stricklan v. Koella, supra, at p.

814 (Emphasis supplied).

On appeal the panel opinion of the United States

Court of Appeals for the Sixth Circuit reveresd the judg-

ment of the District Court. See Woodruff v. Tomlin, 593

F.2d 33 (6th Cir. 1979).

Petitioners filed a petition for rehearing and a sug-

gestion of rehearing en banc. The United States Court of

Appeals granted the petition, vacated the panel opinion, and

reheard the cause en banc with additional briefs. The

Memphis and Shelby County Bar Association and the

Tennessee Bar Association both submitted amicus curiae

briefs in support of petitioners. The en banc United States

Court of Appeals agreed with petitioners that the rule of

Stricklan v. Koella controlled the cause through the re-

7

quirements of Erie Railroad Co. v. Tompkins, and required

a dismissal of the charges of negligence in failing to obtain

a change of venue, failing to object to the jury instruction,

failing to consult a traffic reconstruction expert and neg-

ligence in the conduct of the appeal. The majority of a

sharply divided court ruled, however, that, despite the

clear mandate of Stricklan v. Koella, a jury would be

entitled to decide whether petitioners were negligent in

failing to interview certain witnesses whom the Woodruffs

believed would be helpful to their cause; in failing to bring

to the attention of the trial court certain statutes regard-

ing conduct of motor vehicles on the highways; and in

representing both Woodruffs in their suits against the

other drivers. Curiously, the majority opinion is careful

to point out that it does not hold that the statutes which

Tomlin allegedly did not refer to the Court would be ap-

plicable to the facts of the Woodruff case. Nor does it

hold that Tomlin should have called as witnesses the two

individuals who were suggested as witnesses. Nor does the

majority opinion, on the conflict question, convincingly

face the exclusion in the insurance policy which would

have precluded Joan Woodruff, the passenger, from re-

covering against Patricia Woodruff, her driver, even if suit

had been brought by Joan against Patricia by another

attorney.

Two judges of the United States Court of Appeals

(one of whom was the only Tennessee member of the

en banc court) strongly dissented from the majority opin-

ion, contending that the case was controlled by Stricklan

v. Koella, and that the judgment of the United States Dis-

trict Judge granting judgment n.o.v. for the defendants

was correct and should be affirmed.

REASONS RELIED UPON FOR GRANTING WRIT

OF CERTIORARI

I. THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT, SITTING EN BANC,

HAS DECIDED AN IMPORTANT STATE QUES-

TION IN A MANNER IN DIRECT CONFLICT

WITH APPLICABLE STATE LAW.

A. Under Tennessee Law, There Is No Cause Of

Action Against An Attorney For The Manner

In Which He Honestly Chooses To Present His

Client’s Case To The Trier Of The Facts; In

This Cause, However, The United States Court

Of Appeals Failed To Follow Tennessee Law,

Thus Violating The Mandate Of Erie Railroad

Company v. Tompkins And Establishing A Dual

Standard Of Liability For Tennessee Trial

Attorneys.

This is a suit which attacks the manner in which an

attorney prepared and tried a personal injury lawsuit.

Since this is a diversity case from Tennessee, Tennessee

law controls. Erie Railroad Co. v. Tompkins, 304 U.S. 64,

58 S.Ct. 817 (1938). There is a Tennessee case directly on

point which clearly and unequivocally holds that in Ten-

nessee there is no cause of action arising out of the manner

in which a trial attorney presents his client’s case to the

trier of fact. See Stricklan v. Koella, supra, at p. 813:

However, none of the Tennessee cases that we find

recognize a cause of action for alleged negligence in

the attorney’s choice of trial tactics or conduct of the

cause .... We do not hold that there generally is

no cause of action against an attorney for his negli-

gence or malpractice; we only hold that for the rea-

sons given, there can be no cause of action against an

9

attorney arising out of the manner in which he hon-

estly chooses to present his client’s case to the trier

of the facts. (Emphasis supplied)

The United States Court of Appeals recognized Strick-

lan as the law of Tennessee and held that it should be

followed. Inexplicably, however, it failed to follow that

opinion on two matters directly related to the manner in

which this trial attorney chose to present his case to the

trier of the facts: the attorney’s decision made as to which

witnesses to interview, and the attorney’s choice of statutes

upon which to rely.

Grounding a malpractice suit upon the failure to inter-

view certain alleged witnesses is clearly contrary to the

Stricklan decision. In Stricklan the plaintiff-client alleged

that his attorney failed to summon certain witnesses to

his criminal case and failed to take certain depositions of

alleged witnesses. Stricklan was decided on summary

judgment, which would assume the truth of those asser-

tions. The Court of Appeals of the State of Tennessee

rejected those contentions, holding that they did not state

a cause of action in Tennessee unless there was proof that

the attorney acted in bad faith. The basis for the Court’s

decision is in great part centered on the proximate cause

issue, the obvious inability of any malpractice jury to deter-

mine except by guesswork what the personal injury suit

jury might have done had the witnesses been before it.

In this case the United States Court of Appeals, it is re-

spectfully submitted, ignored the direct mandate of Strick-

lan in holding that this allegation of negligence should be

submitted to the jury. [The holding of the United States

Court of Appeals becomes even more clearly erroneous

when it is noted that the Court carefully points out ( page

23 of its decision) that it does not hold that petitioner

was required to use Burkett and McClendon as witnesses. }

Surely, it is as much an exercise of judgment to decide

10

which witnesses to interview (who may have helpful tes-

timony ) as it is to decide which witnesses to call.

Further, note that the United Statés Court of Appeals

acknowledged that petitioners’ clients could not base a

suit upon petitioner Tomlin’s failure to consult, interview,

and use a traffic reconstruction expert. (See Opinion of

the United States Court of Appeals at p. 14.) It is anom-

alous indeed that the Court should hold that the jury could

find legal malpractice in not interviewing two witnesses,

but that there could be no malpractice in failing to inter-

view a third.

It is hard to conceive of any more judgmental decision

on the part of a trial attorney than a determination of

which witnesses may possess relevant and helpful tes-

timony. If attorneys in Tennessee or elsewhere are to

starff trial for failing to interview any witness whom a

client later conceives might possibly have been of some

assistance in a losing cause, there will be no end to mal-

practice litigation. Such a ruling would be unjust, unfair

and in conflict with applicable Tennessee law.

Likewise, the alleged failure to rely upon certain

Tennessee statutes as a basis of liability in a personal in-

jury case is clearly an attack upon a lawyer’s judgment.

The selection of a theory of liability is typical of judg-

mental decisions made during the preparation and course

of a trial. Certainly the legal determination of the ap-

plicability of such statutes cannot be left tu the jury. It

is basic procedural law that it is for the trial court and

not the jury to determine whether certain statutes are

applicable to a particular set of facts. In the same opinion

petitioner is erroneously faulted for failing to plead Ten-

nessee Code Annotated §59-859 when in fact the record

reflects that he did plead it. The trial court did not

charge that statute, however; nor did it charge Tennessee

11

Code Annotated §59-854. The reason is pointed out by

Judge Gilbert Merritt in his dissent at pages 46-47 of the

Court’s opinion: neither statute is applicable to the facts

of the personal injury case. Where judges of the United

States Court of Appeals disagree on the applicability of a

statute, a lawyer should not ke required to stand trial for

malpractice because he came to the same legal conclusion

as the appellate judge.

Both these decisions were judgment calls. They are

made every day by every trial attorney in the heat of

preparation and trial of a lawsuit. Judgmental decisions

should not be the basis for a malpractice suit against the

trial attorney by a disgruntled client. Tennessee law spe-

cifically holds that such decisions cannot be the basis of

such a suit. The United States Court of Appeals failed to

follow Tennessee law and must be reversed.

B. Tennessee Law On Attorney Malpractice In

The Trial Of A Lawsuit Specifically Follows

The Law Of England (Now Also Adopted By

New Zealand) In Granting The Trial Attorney

Immunity, Absent Bad Faith; The United

’ States Court Of Appeals In This Diversity Case

Erroneously Applied A Different Standard.

This Court should grant certiorari and address this

very important question of a trial attorney’s liability for

the manner in which he presents his client’s case. It is a

matter of significant public policy and will bear very

heavily on the effectiveness with which cases will be

presented in the future. The singular importance of this

issue has been acknowledged by the highest courts of

England and New Zealand, which have both wrestled with

this question. Both jurisdictions have concluded that the

trial attorney must for public policy reasons be granted

immunity from suit for the manner in which he prepares

12

and tries his client’s case. This opinion of the United States

Court of Appeals for the Sixth Circuit is the only case which

holds to the contrary.

The worldwide landmark decision on this precise issue,

specifically relied upon by the Tennessee Court of Appeals

in Stricklan v. Koella, is Rondel v. Worsley, (1966) 1 Ali

E.R. 467 (1966 C.A.), 3 All E.?. 657 (1967 H.L.), 3 All

E.R. 993 (1969), 1 A.C. 191. Rondel holds that as a matter

of public policy trial attorneys must be immune from li-

ability for the manner in which they present their clients’

cases. The policy reasons are sound, and are forcefully

and articulately presented in that case.

See also Rees v. Sinclair, (1974) 1 N.Z.L.R. 180. In

that case the New Zealand Supreme Court reaffirmed the

Rondel holding and then extended the immunity for trial

attorneys to pretrial work as well.

Likewise, see Biggar v. McLeod, (1977) 1 N.Z.L.R. 321.

There the New Zealand Court again extended the im-

munity doctrine to actions by the trial attorney after the

actual trial of the case for matters which were related to

the trial.

No citation of authority is necessary to point out that

judges are immune from liability for their own negligence.

Efficient administration of justice requires that all parties

to the trial, not only judges but jurors, witnesses, and trial

attorneys concern themselves with the resolution of the

issues at hand without being concerned about whether

they might be sued by a disgruntled litigant in a subsequent

civil proceeding. This Court should accept certiorari and

reaffirm this important position by establishing it as an

important precedent in American jurisprudence. It is

essential to assure the continued effective operation of the

adversary system and the commitment of a trial attorney

to exercise independent judgment as an officer of the Court.

13

This Court has already held that state courts have the

right to set their own standards of liability for trial at-

torneys:

The narrow issue presented to this Court is whether

federal law in any way pre-empts the freedom of a

State to decide the question of immunity in this situa-

tion in accord with its own law. We are not con-

cerned with the elements of a state cause of action

for malpractice and need not speculate about whether

a state court would consider petitioner’s allegations

sufficient to establish a breach of duty or a right to

reeover damages. Nor are we concerned with the

question whether Pennsylvania may conclude as a

matter of state law that respondent is absolutely im-

mune. For when state law creates a cause of action,

the State is free to define the defenses to that claim.

including the defense of immunity unless, of course,

the state rule is in conflict with federal law. Ferri v.

Ackerman, ........ | Sareea , 100 S.Ct. 402, 406 (1979).

(Emphasis supplied)

The State of Tennessee has set its standard, but the Sixth

Circuit has failed to follow it.

The United States Court of Appeals decision in Wood-

ruff v. Tomlin seriously erodes essential protections estab-

ished in Stricklan, Rondel, Biggar and Rees and suggested

by decisions of this Court.’ This Court must correct that

erosion.

1. “Absolute immunity is thus necessary to assure that

judges, advocates, and witnesses can perform their respective func-

tions without harassment or imitation.” Butz v. Economu,

lesisnais U.S. _.... 98 S.Ct. 2894 (1978). (Emphasis supplied)

14

C. Under Tennessee Law A Trial Attorney’s Al-

leged Conflict Of Interest Cannot Be The Basis

For A Malpractice Suit Against Him; The

United States Court Of Appeals Has Errone-

ously Held To The Contrary.

The United States Court of Appeals in Woodruff v.

Tomlin was in error in ruling that the question of “con-

flict of interest” might be evidence of negligence which

could be presented to a legal malpractice jury.

First, a determination by trial counsel as to which

clients he will or will not represent is the most obvious

kind of judgmental decision which falls within the aegis

of Stricklan v. Koella. The doctrine of Erie Railroad Co.

v. Tompkins, supra, requires reversal on this point alone.

Second, the Supreme Court of Tennessee has adopted

the Code of Professional Responsibility for Attorneys and

has also adopted the Code Preamble and Preliminary State-

ment, a portion of which is codified into Tennessee statu-

tory law as follows:

The Code makes no attempt to prescribe either dis-

ciplinary procedures or penalties for violation of a

Disciplinary Rule, nor does it undertake to define stan-

dards for civil liability of lawyers for professional con-

duct. Code of Professional Responsibility, Vol. 5A,

Tenn. Code Ann., at p. 89. (Emphasis supplied)

Thus, applying Tennessee statutory law, the United

States Court of Appeals should have dismissed the “con-

flict” issue in this cause.

Third and most important, there is no conflict of inter-

est under the facts of this case. The record reflects that

the policy of insurance insuring the Woodruff automobile

contained a “member of the household” exclusion which

would exclude coverage for Patricia, the driver, had she

15

been sued by Joan, the passenger. See in the record,

Memorandum Pursuant to Motion for Correction or Omis-

sion under Rule 10E, Federal Rules of Appellate Procedure,

p.2. Therefore, had Tomlin not represented both passenger

and driver and had suit been brought by passenger Joan

against her sister Patricia, the driver, no damages could

ever had been collected from Patricia even if a verdict had

been rendered against Patricia, because there was no lia-

bility insurance coverage available to her under the policy

on the Woodruff automobile. If Stricklan v. Koella holds

nothing else, it clearly establishes that in order for a client

to recover against his attorney for malpractice, the client

must establish that, but for the malpractice, he would

have won his case against the original defendant and that

he could have collected the damages from the defendant.

Assuming malpractice, the client can recover no greater

verdict from his attorney than the amount of damages

which he would have been able to collect from the original

tort-feasor. Sitton v. Clements, 385 F.2d 869 (6th Cir. 1967).

In the case at bar, because of the policy exclusion, Joan’s

theoretical suit brought by a theoretically different at-

torney than petitioner against her sister, Patricia, could

have resulted in the collection of no damages whatsoever,

no matter how high the verdict. Therefore, there could

be no actual conflict between the sisters because one could

not have recovered against the other.

This lack of an actual conflict is emphasized by the

record in this cause, which reflects without dispute that

Patricia remembered nothing about the accident, and that

Joan’s testimony at the trial completely exonerated her

sister from any negligence in the operation of their vehicle.

(See pages 8 and 38 of the Transcript of the original trial.)

The only way a conflict could have been created was for

Joan to change her testimony to place blame against her

sister whose driving she had previously approved. Even

16

assuming a conflict existed, nowhere is it shown or sug-

gested how the conflict affected the manner in which the

case was tried or resulted in any damage to either of the

sisters. The theory of the case adopted by the trial lawyer

was purely a judgmental decision. As a matter of fact

he made the decision with respect to each of two trials—

the first having resulted in a hung jury and a mistrial. His

judgment was certainly correct insofar as some of the

jurors were concerned, as evidenced by the hung jury at

the first trial.

The conflict question is a false issue. Judge Gilbert

Merritt in his dissent in the en bance decision forcefully

articulates this point. The majority opinion’s view on

the alleged conflict of interest question is erroneous and

should not be allowed to stand.

17

CONCLUSION

The issues raised in this lawsuit are of most crucial

importance to the trial bar. They raise policy questions

which bear heavily upon the administration of justice in the

trial courts of this Country. They have been considered

important enough to justify consideration by the highest

courts of England and New Zealand. The United States

Court of Appeals for the Sixth Circuit has erred in its

ruling and has, in so erring, established a very dangerous

precedent. For the reasons set out above a writ of cer-

tiorari should issue to review the judgment and opinion of

the United States Court of Appeals for the Sixth Circuit.

Respectfully submitted,

LEO BEARMAN, JR.

1140 Sterick Building

Memphis, Tennessee 38103

JoHN J. THOMASON

100 North Main Building

Memphis, Tennessee 38103

Attorneys for Petitioners, Hewitt

P. Tomlin and Waldrop, Hall,

Tomlin & Farmer, a Professional

Business Association

18

CERTIFICATE OF SERVICE

The undersigned hereby certifies that three copies

of the foregoing Petition for Writ of Certiorari have been

served upon the following counsel of record on this the 9th

day of May, 1980:

Mr. Norman Herring

Attorney at Law

114 West Adams Street

Phoenix, Arizona 85003

Mr. James F. Schaeffer

Attorney at Law

100 North Main Building

Suite 3100

Memphis, Tennessee 38103

Mr. Thomas Prewitt, Sr.

Attorney at Law

One Commerce Square

Memphis, Tennessee 38103

Mr. Wilson Sims

Attorney at Law

2700 First American Center

Nashville, Tennessee 37238

LEO BEARMAN, JR.

Al

APPENDIX

APPENDIX A

Joan WOODRUFF et al., Plaintiffs,

V.

Hewitt P. TOMLIN, Jr., et al.,

Defendants.

Civ. No. C-74-6.

United States District Court,

W. D. Tennessee, E. D.

Dec. 10, 1976.

Clients filed legal malpractice action against former

attorneys. Following dismissal of the action as being

barred by the statute of limitations, and reversal and re-

mand by the United States Court of Appeals for the Sixth

Circuit, 511 F.2d 1019, case was submitted to a jury, which

was unable to agree on a verdict, and a mistrial was de-

clared. Thereafter defendants moved for judgment n. o. v.

and for dismissal. The District Court, Bailey Brown, Chief

Judge, held that suit could not be maintained either on

theory of negligence in preparation and trial of personal

injury case or on theory of conflict of interest in repre-

senting both plaintiff driver and plaintiff passenger in

suit against third persons, where it would be speculation

to say that the alleged negligence or the alleged conflict

of interest affected the outcorne of the personal injury

trial.

Judgment n. o. v. granted and action dismissed.

Attorney and Client (Key) 112, 113

Former clients could not recover against former attor-

neys for alleged legal malpractice in connection with prior

A2

personal injury suit in which clients were plaintiffs, either

on theory that lawyers were guilty of negligence in inves-

tigation, trial and appeal of the case, or on theory that

there was conflict of interest in representing both plaintiff

passenger and plaintiff driver in suit against third parties,

as well as representing driver’s insurer, where it would

be speculation to say that the alleged negligence or the

alleged conflict of interest would have affected the outcome

of the personal injury trial.

Norman Herring, Phoenix, Ariz., James F. Schaeffer,

D. Franklin Moore, Jr., Memphis, Tenn., for plaintiffs.

Leo Bearman, Jr., John J. Thomason, Memphis, Tenn.,

Victor F. Schneider, Jackson, Tenn., for defendants.

MEMORANDUM DECISION

BAILEY BROWN, Chief Judge.

This is a legal malpractice case in which damages are

sought from the defendant lawyers for losing personal

injury cases in a jury trial. Plaintiffs contend that the

lawyers were guilty of negligence and other wrongdoing

in the investigation, trial and appeal of the cases and

that this proximately caused the loss. This court has

jurisdiction on the basis of diversity of citizenship. This

malpractice case was submitted to a jury, which was un-

able to agree on a verdict and a mistrial was declared.

Thereafter, defendants moved for a judgment n.o.v. and

for a dismissal of the case; briefs have been filed and

argument has been had. This court concludes, for rea-

sons herein set out, that the motion must be granted and

the action dismissed.

The automobile accident out of which this litigation

arose occurred in Chester County, Tennessee in 1968. At

the trial in question, there was ample evidence to support

A3

the following account of the accident. Plaintiff Patricia

Woodruff, who was sixteen and had just obtained a driver’s

license, and her sister, plaintiff Joan Woodruff, who was

fifteen, with their father’s permission, had taken the family

Chrysler to Chickasaw State Park on Highway 100. There

they saw a friend, a young girl named Sterling, who also

was driving a car. Both cars left the park at about the

same time with the Woodruff girls behind the Sterling

girl. Although Highway 100 is two-laned and is up and

down hills, the Woodruff girls managed to pass the Sterling

girl before the point of the accident which was one and

one-half miles from the park. Just prior to the accident,

when the Woodruff girls topped a hill, they saw a vehicle

in front of them being drive:rmby one Nobles headed in

the same direction in their lane. Nobles was either

stopped or moving very slowly and had his left turn signal

on preparatory to turning into a side road on the left.

Patricia Woodruff applied her brakes, put down a total

of 252 feet of skid marks, which were initially on her

right side and then on the left side of the highway. The

car skidded sideways for a considerable part of this dis-

tance and came to rest with the front end off the left

side and the rear on the highway. It did not strike the

Nobles vehicle. One Pomeroy, an employee of one Teague,

who was driving a loaded gravel truck in the opposite

direction, struck the rear of the Woodruff vehicle. Sterling

had to swerve to her right onto the shoulder of the highway

to keep from being hit by the gravel truck, which had

swerved to its left in an effort to avoid hitting the Woodruff

car. The result was that both of the Woodruff girls re-

ceived serious and permanent injuries, Joan receiving even

more serious injuries than did Patricia.

The Woodruffs had their liability insurance coverage

with the Tennessee Farmers Mutual Insurance Company,

whose investigator was asked by Charles Woodruff, the

father, who would represent them in behalf of the insur-

A4

ance company. When he learned that the defendant Tom-

lin, a lawyer in Jackson, would do so, Woodruff called

on Tomlin and employed him and his law firm to represent

himself and his daughters in prosecuting any claims they

might have. Tomlin learned that, according to the Wood-

ruffs, Patricia Woodruff had been driving at a reasonable

speed, that the Woodruff vehicle had been at rest for

several seconds (five to eight) before it was struck by

the oncoming gravel truck, and that, in any event, the

Woodruffs, including Joan, did not want any blame to

be placed on Patricia, the driver. Tomlin promptly went

to the scene, took pictures, reviewed the investigation file

of Tennessee Farmers, and filed suit for the Woodruff

girls and their father against Nobles, Teague and Pomeroy.

Pomeroy sued the Woodruffs for his personal injuries and

Teague for the damage to the gravel truck.

The first trial in the Circuit Court of Chester County

resulted in a hung jury, nine to three against the Wood-

ruffs. At the second trial the jury found against the

Woodruffs and in favor of Teague and Pomeroy. The

verdict was approved by an experienced and able trial

judge (who sat as a “thirteenth juror”) and, upon appeal

by defendants in behalf of the Woodruffs, the judgment

below was affirmed by the Tennessee Court of Appeals.!

Both trials were conducted by defendant Tomlin for the

Woodruffs. One of his partners wrote the brief on appeal.

Thereafter, the instant action was filed by Patricia

and Joan Woodruff (their father did not sue) against

their lawyer, Tomlin, and his partners. This court dis-

missed the action as being barred by the statute of limita-

tions, which dismissal was reversed on appeal (511 F.2d

1019 (6th Cir. 1975)) on the basis of a Tennessee deci-

sion that became available after the ruling here but before

1. Except that, insofar as the jury verdicts assessed dam-

ages against Joan Woodruff, the judgments were reversed and the

actions dismissed as to her.

A5

the ruling in the Court of Appeals. This malpractice case

was then set for trial in July, 1976.

Plaintiffs contended in their complaint and arrended

complaint that Tomlin and his partners were guilty of

negligence in the investigation, trial and appeal of their

cases and that such negligence proximately caused the

loss of their claims. Pursuant to pre-trial order, plaintiffs

specified that the defendants had been guilty of negligence

in failing to personally interview a potential witness (who

had been interviewed by the Tennessee Farmers investi-

gator), in failing to present as a witness an accident re-

construction expert, in failing to prepare and introduce

proper maps and plats, in failing to present adequate

evidence that would support a reliance on last clear chance

or discovered peril, in failing to dbject to examination

of an expert offered by defendants or to properly cross-

examine him, in failing to rely on certain statutes that

were claimed to be applicable, in failing to object to a

jury instruction, in failing to use available witnesses in

rebuttal, and in failing, on appeal, to raise and argue all

necessary assignments of error. Plaintiffs contended, as

stated, that each and all of said acts or omissions prox-

imately caused the loss of their claims.

In addition to the foregoing negligence alleged, plain-

tiffs contended that defendant Tomlin, since he represented

Tennessee Farmers, had a conflict of interest in repre-

senting Joan Woodruff because she had a potential claim

against her sister Patricia. In this connection, it has been

the position of defendant Tomlin that there was never

a conflict since Joan had stated from the first that Patricia

was without fault and in detail supported the theory of

the accident as related to him from the beginning by the

father. Further, defendants contend that the coverage

would have been only $10,000 and that in any event there

would have been no coverage under the policy for Patricia

with respect to a claim by her passenger-sister; there is

A6

no proof tendered or in the record on these coverage

questions one way or the other. In any case, it appeared

to this court that this claim based on alleged conflict of

interest on the part of defendant Tomlin should not be

tried with the claims of negligence in losing the lawsuits

and therefore it was, by pre-trial order, not dealt with

at the trial.

The court had the impression that the only conflict

of interest contention made by plaintiffs had to do, as

above set out, with defendants’ representation of the Wood-

ruff’s liability insurance company. However, just prior

to the trial, plaintiffs sought to make the further con-

tention that defendant Tomlin should not have represented

both Joan and Patricia, since, if they had had separate

counsel, there would have been advantages in offering

witnesses and in the right to cross-examine them, and,

further, Patricia’s claimed negligence in operating the

Woodruff car would not have rubbed off on Joan in the

jury’s mind.” The court concluded, at a pre-trial confer-

ence, that this contention, also, should not be tried with

the contentions of negligence against defendants in their

investigation, trial and appeal of these personal injury

cases.

For completeness, it should be mentioned that defen-

dants were charged with negligence in failing to remove

this case to the federal district court at Jackson after

the first trial. It appeared to the court that there would

have been a serious question as to whether plaintiffs had

at that time acquired an out-of-state domicile and there-

fore, in the malpractice trial, the jury would also be

trying the domicile issue. In any event, we determined

that it would be speculation to say that federal jury

2. This contention was made even though the trial judge

had instructed the jury as to the circumstances under which the

negligence of the driver may be imputed to the passenger and

also the duty of care of a passenger.

A7

would have rendered a favorable verdict for the Woodruffs

and therefore we dismissed this claim at a pre-trial con-

ference.

The court determined that the malpractice liability

of defendants would be tried first and, if liability were

determined favorably to plaintiffs, the question of dam-

ages would then be tried. However, so that plaintiffs

could show the malpractice jury the seriousness of their

injuries (in support of their contention that defendants

did not exercise proper care), by agreement plaintiffs

were allowed to read to the jury a full summary of their

injuries and damages. Moreover, the entire transcript

(except that part dealing with injuries) of the second

personal injury trial was read to the jury as well as the

lengthy charge to the jury and the brief on appeal. This

court had concluded that questions of law with respect

to the personal injury trial became, with the aid of expert

testimony, questions of fact for the malpractice jury and

were so treated, leaving for the court questions of mal-

practice law. Plaintiffs presented, as part of their proof,

an expert in accident reconstruction from Arizona and

also an Arizona attorney who testified at length as to

how these claims should have been investigated and tried

by plaintiffs’ lawyers. This court submitted to the jury

practically all of plaintiffs’ contentions as to negligence

in the investigation and trial of the personal injury cases

as well as their contentions that each and all of such

negligent acts or omissions proximately caused the jury

verdict against plaintiffs.* The court withdrew from the

3. The court determined that the Tennessee doctrine of

remote contributory negligence (which only reduces damages)

would not come into play unless liability of defendants was found

by the malpractice jury and then, in submitting the question to

the malpractice jury as to what verdicts would have been found

by the personal injury jury, the malpractice jury would have

been instructed as to the doctrine of remote contributory negli-

gence.

A8

jury, at the conclusion of all the evidence, the question

of negligence in handling the appeal, on the ground that

there was no expert or other evidence to support plain-

tiffs’ contention. The jury was unable to agree on a

verdict as to any of the interrogatories.

On the motion for a judgment n.o.v. and for a dis-

missal, we therefore have to decide whether plaintiffs are

entitled-to have submitted to a jury the question whether

defendant lawyers were guilty of negligence which prox-

imately caused the loss of their claims and whether plain-

tiffs or either of them are entitled to have their conflict

of interest claims submitted to a jury. We conclude that

they are not and that therefore the motion for a judgment

n.o.v. and for dismissal should be granted.

For some time prior to the trial, this court was par-

ticularly concerned because of our inability to find a

reported decision dealing with this kind of case. Lead

counsel for plaintiffs, who happens to be a member of

the Arizona bar, reassured the court that he would supply

such decisional law, but it never came.

Without any such decisions as guides, and analyziny

the case as an original proposition, it seemed to this court

that there are two main problems in maintaining such a

case as this. The first is that the preparation for and

trial of a lawsuit to a jury requires the exercise of a kind

of judgment that is quite different from the kind of

judgment exercised by other professionals. This is so

because in dealing with human beings as the trial lawyer

must, be the witnesses, judges, clients, adversary counsel

and jurors, the factors that come into play are intangible

and numerous, so that the trial lawyer has to rely on

his education, practical experience, rational analysis and

sheer instinct in making decisions. This being true, it

was difficult for this court to believe that it would be

A9

proper to submit to a jury, based upon the expert testi-

mony of a second-guessing lawyer who has the benefit

of hindsight, the question whether the trial lawyer was

negligent.

The second reason why this court had serious doubt

as to whether this action could be maintained has to do

with causation; the malpractice jury is called upon to

determine whether, if something that was done by the

defendant trial lawyer had not been done or something

that was not done had been done, the jury verdict in

the personal injury case would have been different. This

means that, in the malpractice trial, the personal injury

trial becomes a play within a play; that is to say, the

personal injury trial is replayed, by reading the record

thereof, before the malpractice jury and witnesses then

testify about the things that were done or not done by

the malpractice defendant. It is interesting to note that,

in principle at least, if an action such as this can be main-

tained, then an action could be maintained by the plaintiffs

in this malpractice case against the attorneys representing

them here, in which case there would be a play within a

play within a play! In any event, it seemed to this court

that it would be speculation for the malpractice jury to

say what the personal injury jury would have done but

for (we will assume) negligence on the part of the trial

lawyer.

Just prior to the trial, counsel for defendants found

an English case that supported their position, but this

court determined to go ahead with the trial, which con-

sumed slightly over eight trial days, and, as stated, re-

sulted in a hung jury.

After the trial, the Tennessee Court of Appeals decided

a case which deals squarely with the question presented

here. It cites and discusses the above-mentioned English

case. This decision is Stricklan v. Koella, (Tenn.App.,

Al0

decided September 20, 1976). In that case, plaintiff had

employed the defendant lawyer to represent him in a

civil case brought against him for assault and battery.

Just prior to the trial, plaintiff discharged the defendant

lawyer, settled the case himself by a cash payment, and

then sued the lawyer for legal malpractice, alleging negli-

gence in the preparation of the case and in failing to

get a change of venue. The trial judge sustained the

lawyer’s motion for a summary judgment. The Court

of Appeals affirmed, saying, in part:

“Essentially and in simple terms, the cause of action

stated is that retained counsel refused to use the trial

tactics insisted upon by the client, for which refusal

retained counsel’s services were terminated; that the

refusal of counsel to try or prepare the case in the

manner insisted upon by the client (by filing of depo-

sitions) caused the client to be without representation

on the day of trial and forced the client into an ex-

pensive settlement without a trial of his case; that

the plaintiff was substantially damaged by the negli-

gence of defendant because if the case had gone to

trial and if counsel had taken depositions in the

manner insisted upon and if the plaintiff and her

witnesses in the suit against Stricklan had testified

in such manner so that discrepancies would appear

between that testimony, if given, and discovery tes-

timony, if taken, the jury (if there had been one)

would have found in favor of Stricklan or if they

found against him, would have found in a lesser

amount than settled for if the jury would have con-

sidered the testimony discrepancy if it had appeared.

All if the case had been tried in another county.

“We hold that there can be no such cause of action

in this state.

All

“In the English case of Rondel v. Worsley, reported

as (1966) 1 All E.R. 467 (1966 C.A.), 3 All E.R. 657

and (1967 H.L.) 3 All E.R. 993, numerous reasons

by judges were given for the holding that as matter

of law no action would lie against a lawyer by his

client for negligence in and about his conduct of the

client’s case in Court. Some judges were of the opin-

ion that since in England no action could lie against

the client by the barrister for failure to pay a fee,

the client could not sue the barrister for his conduct

of the trial, the distinction between a solicitor and

barrister being duly noted and recognition made of

the existence of a cause of action against a solicitor.

Other judges tended to base their conclusions on the

fact that lawyers in the trial of cases, do not owe

allegiance to the client only, but owe dual allegiance;

one to the client and the other to the Court; and if

a client were permitted to sue a lawyer for what the

client believes to be negligient trial tactics, in that

they did not inure (in the client’s opinion) to the

benefit of the client, a trial lawyer would find him-

self sued for following his allegiance to the Court.

* s 8

“Additionally, in all negligence cases, whether they

be automobile related or medical or legal malpractice

related, before a recovery can be had, the nexus be-

tween the negligence and the injury must be shown.

In a suit complaining of the manner in which proof

was presented and the manner of examination and

cross-examination of witnesses, only by pure guess-

work can the verdict of a jury be examined and a

so-called cause for that verdict be determined. No

man shall suffer a judgment against him based on

guess.”

Al2

As heretofore stated, this court, at the pre-trial stage,

determined not to try the contentions of the plaintiffs

with respect to alleged conflict of interest along with the

contentions of alleged negligence in the preparation, trial

and appeal of the personal injury cases. It will be remem-

bered that one conflict of interest claim is that defendants,

who generally represented Tennessee Farmers in the Jack-

son area and were in such capacity defending the Wood-

ruffs in the personal injury litigation, should not have

represented Joan Woodruff, the passenger, as a plaintiff

since she had a potential claim against her sister, the

driver. Although, as stated, there is no proof or tender

of proof of coverage, we assume for present purposes

that there would have been coverage. Obviously, Joan

Woodruff is not suing here for damages for failure of

defendants to sue her sister; rather, they are contending

that this alleged conflict in some way inhibited defendant

Tomlin’s prosecution of the suit against the parties who

were sued. This court cannot see how this could be so

and, in any case, it would again be speculation to say

that this affected the outcome of Joan Woodruff’s personal

injury trial.

The other conflict of interest claim is that defendant

Tomlin should not have represented both Joan and Patricia

Woodruff in their capacities as plaintiffs, because there

would have been alleged tactical advantages at the trial,

above described, if they had had separate counsel. Again,

we are of the view that, even assuming there would

would have been such advantages, it would be speculation

for a jury to say that the absence of such advantage

affected the outcome of the trial.

It is therefore ORDERED that the judgment n. o. v.

be granted and the action dismissed.

The Clerk will enter a final judgment for the de-

fendants.

Al3

APPENDIX B

No. 77-1216

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

JOAN WOODRUFF, PATRICIA WOUDRUFF HAMILTON and

Louis HAMILTON, her husband,

Plaintiffs-Appellants,

V.

Hewitt P. ToMuin, JR., HomMeER H. WaA.tprop, Roy HALL

and Davin R. Farmer, individually and as partners doing

business under the name and style of Waldrop, Hall,

Tomlin & Farmer, a professional business association,

Defendants-Appellees.

AppPpEAL from United States District Court for the Western

District of Tennessee, Eastern Division.

Decided and Filed February 22, 1979.

Before: Epwarps, Chief Judge, WEIcK and CELEBREZZE,

Circuit Judges.

WEICK, Circuit Judge. Plaintiffs-appellants’ suit in the

District Court was against an attorney at law and his law

firm, to recover damages, alleging legal malpractice con-

sisting of conflicts of interest and negligence in their rep-

resentation of plaintiffs in personal injury actions arising

out of a truck-auto collision, which actions the attorneys

filed in plaintiffs’ behalf in the state court, and which re-

sulted in judgments against the plaintiffs. Jurisdiction in

the malpractice action was based on diversity of citizen-

ship.

Al4

The District Court granted defendants’ motion to dis-

miss the complaint on the ground that plaintiffs’ action

was barred by Tennessee’s one-year statute of limitations.

T.C.A. 28-304. On appeal, we reversed and remanded

for trial. Woodruff v. Tomlin, 511 F.2d 1019 (6th Cir.

1975).

On remand the case was tried before a jury on the

issue of liability. The jury was unable to agree on a

verdict and the court declared a mistrial. The defendants

then filed a motion for judgment n.o.v. and for dismissal

of the complaint, which motion was granted by the court

in a Memorandum Decision reported in Woodruff v. Tomlin,

423 F. Supp. 1284 (W.D. Tenn. 1976).

Plaintiffs have appealed therefrom to this Court. We

are of the opinion that there were factual issues which

should be determined by a jury, and not by the court, and

that the court erred in summarily dismissing the conflicts

of interest claim, in the exclusion of evidence, and in

the granting of the motion n.o.v. We reverse.

The plaintiffs, Joan Woodruff and her sister, Patricia,

then 15 and 16 years of age respectively, were severely

injured on May 22, 1968, when an automobile driven by

Patricia and owned by her father, in which automobile

Joan was riding as a passenger, was struck by a large

truck loaded with gravel weighing about 73,000 pounds,

on Highway 100 in Chester County, Tennessee. Joan was

thrown out of the car and the truck ran over her legs,

crushing the bones and tearing the skin off her legs, crip-

pling her for life. Patricia sustained a skull and brain

injury resulting in traumatic amnesia, so that she had no

memory of the accident.

The girls’ hospital bills alone exceeded $20,000.

The girls’ father, Charles Woodruff, carried liability

insurance on his car with Tennessee Farmers Mutual In-

Al5

surance Company. with limits of $10,000 for one person, and

$20,000 for more than one person. While the girls were

in the hospital Theo. Leathers, the Claims Adjuster for

the insurer, contacted Mr. Woodruff and gave him a check

for medical reimbursement. Leathers advised Mr. Wood-

ruff that he should retain a lawyer. Leathers told Mr.

Woodruff that the statements of witnesses to the collision

were inconsistent and were changing.

Leathers recommended to Woodruff that he retain

Hewitt P. Tomlin, stating that Tomlin was a good lawyer.

Tomlin was also the attorney for Tennessee Farmers Mutual

Insurance Company. Woodruff then engaged Tomlin to

represent his two daughters, and also to represent himself

in his claim for damages to his car.

Tomlin filed two suits for personal injuries sustained

by the girls and one for damages to the car, against Pome-

roy, the driver of the large truck, Teague, the owner of the

truck, and Nobles, the owner of the second truck. The

suits were filed in the Circuit Court of Chester County,

Tennessee.

Pomeroy, the truck driver, and Teague, the owner of

the truck, filed suits in said Circuit Court against Patricia

Woodruff and her sister Joan, to recover damages for

personal injury sustained by Pomeroy, and for damages to

the truck. They alleged negligence on the part of Patricia,

and that Joan, the passenger, aided and abetted. Tomlin,

as attorney for Tennessee Farmers Mutual Insurance Com-

pany, defended the suits against the two girls. The suits

were all consolidated for trial.

The cases in the state court were tried before a jury,

which disagreed 9-3, and a mistrial was declared. At the

second trial in the state court the jury returned a verdict

in favor of the defendants in the personal injury actions

of Patricia and Joan against Pomeroy, Teague and Nobles.

Al6

In the suit of Pomeroy and Teague against Patricia and

Joan the jury returned verdicts in favor of Pomeroy for

$600, and Teague in the amount of $3,000.

Upon appeal to the state court of appeals the judg-

ments for the defendants in the personal injury cases of

Patricia and Joan against Pomeroy, Teague and Nobles,

were affirmed. The judgments in favor of Pomeroy and

Teague against Patricia, totaling $3,600, were affirmed, but

were reversed as to Joan, the Court holding that there was

no evidence to prove that Joan, the passenger, aided and

abetted in the negligence of Patricia. Therefore Joan was

not contributorily negligent, and Patricia’s negligence

could not be imputed to her.

The appeals court then referred to damaging conces-

sions made by Tomlin’s law firm in their appellate brief,

as follows:

In short, the fact is that there is material evi-

dence in this record from whith the jury could have

concluded that Patricia Woodruff was guilty of negli-

gence. This fact is conceded in appellants’ brief and

it is therein admitted that neither of the plaintiffs in

the original cases of Patricia Woodruff vs. Nobles,

Pomeroy and Teague, and in Charles Woodruff vs. the

same defendants can now prevail. [App. 162-63]

As we will point out later, this damaging admission

wrecked Joan’s case for personal injuries against Pomeroy,

Teague and Nobles. There was plenty of evidence of neg-

ligence on the part of the two truck drivers for submis-

sion of the issue to the jury. The issue of contributory

negligence of Joan was eliminated from the case by the

court of appeals. By reason of this wrongful admission,

there was no issue for Joan to take her case to the Supreme

Court of Tennessee. In effect what was done was to im-

pute the negligence of Patricia to Joan, and the doctrine

Al17

of imputed negligence does not prevail in Tennessee, as

the state court of appeals held. See also Gulf, M. & O. R.

Co. v. Underwood, 182 Tenn. 467, 187 S.W.2d 777 (1945).

The wrongful admission also ruined Patricia’s case for

negligence against Pomeroy, Teague and Nobles. As we

will later point out, the state trial judge gave an erroneous

instruction to the jury on last clear chance. Tomlin did

not point out this error to the trial judge, and did not

claim it as error in his motion for a new trial, and his law

firm did not assign it as error in the state court of appeals.

If they had done so, instead of making admissions against

the interest of their clients, the appellate court, in all

probability, would have reversed and remanded for a new

trial. Their clients were deprived of their right to a new

trial and their right to proceed against Pomeroy, Teague,

or Nobles, or their insurers.

The malpractice complaint charges Tomlin with repre-

senting conflicting interests and with negligence in the in-

vestigation, preparation and trial in the circuit court and

in the appeal in the state appellate court.

The most grievous of the allegations of negligence

against Tomlin was his failure to object to an erroneous in-

struction on last clear chance, in the second trial, and to

raise that issue on motion for a new trial, and on appeal.

Also, complaint was made concerning his failure to call

witnesses who had stepped off various skid marks; his

failure to engage an accident reconstruction expert to

testify as to critical issues at the trial; and his failure to

support the charge of negligence against defendant Nobles

in violating T.C.A. § 59-854(a) by driving slowly down-

hill, and in violating T.C.A. § 59-859 by stopping.

It is also contended that the District Judge erred in

applying a standard governing liability of attorneys which

Al8

would virtually exempt attorneys from any liability to their

clients for malpractice.

At the time of the accident Patricia and her sister Joan

were returning home from a trip to Chicasaw State Park.

Patricia was driving her father’s Chrysler automobile,

with his permission. She had a driver’s license. Patricia

was driving in broad daylight, in a westerly direction on

Highway 100, which is a two-lane, paved highway in

Chester County. She was followed closely by another

automobile occupied by a friend, Gail Sterling. Patricia,

Joan and Gail Sterling all testified that Patricia was driv-

ing at about 55 miles per hour. The speed limit on the

highway was 65 miles per hour.

When Patricia passed over the crest of a steep hill,

to proceed downhill, a short distance from Chicasaw State

Park, she was suddenly confronted with a serious traffic

problem. A small truck owned and operated by defen-

dant Nobles, was moving down the steep hill, in the same

direction as Patricia was traveling; he came to a com-

plete stop about 300 feet ahead of Patricia and at a point

opposite a dirt side road to the south. Approaching her

from the opposite direction and at some distance was the

large truck loaded with gravel, which truck was about 35

feet long, weiging 73,000 pounds. That truck was owned

by G. L. Teague, and was being operated by his servant,

James Pomeroy. Thus the two trucks impeded travel in

both lanes of the two-lane highway.

Patricia applied the brakes of her car, which com-

menced to skid forward in her lane, and then sidewise over

on the left side of the road until it came to a complete

stop with the front -£ the car off the road, heading into

a ditch, and the rear of her car protruding out into her

left or south lane. After her car had stopped Patricia

flicked the starter several times in order to start the

Alg

motor of the car, but the starter did not work. The large

truck then crashed into the right rear fender of her car.

There was evidence that the car was stopped in a posi-

tion of peril about 5.9 seconds before the crash when the

large truck was 168 feet away and then traveling at the

rate of 30 miles per hour. The driver could have applied

his brakes and stopped within 95 feet, or 73 feet before the

collision. Actually the truck driver saw the auto skidding

on his side of the road when he was 347 feet away from

the point of impact. After the collision, and going up-

hill, the truck still continued to travel a distance of 112

feet, skidding 24 feet before the point of impact.

I

CONFLICT OF INTEREST

Tomlin and his law firm were the attorneys for Ten-

nessee Farmers Insurance Company, and had represented

that company for a number of years. As before stated, it

was the insurer’s adjuster, Theo. Leathers, who recom-

mended to the insured, Mr. Woodruff, that he engage

Tomlin to represent the two girls in their personal in-

jury cases, as well as to handle Mr. Woodruff’s action for

damages to his car, against Pomeroy, the truck driver,

and Teague, the owner of the truck. The adjuster re-

ported to Mr. Woodruff that the statements of witnesses

were inconsistent, and were changing.

No doubt Tomlin became fully aware of the inconsistent

statements of witnesses when he received the claim file

from his client, the Insurance Company. He also learned

of this fact when Pomeroy and Teague filed suit- for

damages against Patricia and Joan, alleging that Patricia

negligently caused the injury to Pomeroy and the damage

to the truck, and alleging that Joan, the passenger, aided

and abetted Patricia.

A20

Tomlin, in defending the suits of Pomeroy and Teague

against Patricia and Joan, necessarily was contending until

the case reached the appellate court, that Patricia was

not negligent. He could not, therefore, very well have

represented Joan in a suit against Patricia, which would

have required himt to allege that Patricia was negligent.

Tomlin should have advised Joan to obtain other counsel.

In his deposition taken in the malpractice suit, Tomlin

testified:

Q Of course, you, as a lawyer, knew that Patsy [Pa-

tricia], as the driver of the vehicle, could be responsible

to Joan for her injuries; legally, that is?

A Itis theoretically possible, yes.

Q And that a lawsuit could have been filed

A A lawsuit could have been filed in theory, yes, sir.

Q Oraclaim presented to Tennessee Farmers demand-

ing payment?

A It could have been.

Q All right, and I take it from your answer to the

previous question that you never did discuss this with

the parents, and you have told me the reason, but you

never did discuss it with them, is that correct?

A I never said to them or advised them that “You

should present a claim to Tennessee Farmers,” because

they believed and I believed that Patricia was free of

any negligence and they wanted her claim pressed, as

well as Joan’s.

Q Mr. Tomlin, the question was not whether you told

them that they should. The question was, did you ever

tell them that it could be done?

A To sit here and tell you specifically I told them it

could be done, I can’t dogmatically say that I did, but

I can’t dogmatically say that I didn’t.

At this late date it was much more than mere “theory”

that Joan had a right of action against her sister Patricia

A21

to recover damages if Patricia was negligent, since the jury

had found that Patricia was negligent. Tomlin had an obli-

gation to, and did, defend Patricia and Joan as insureds

under the policy of liability insurance, as he was attorney

for the insurer. Also the state appellate court found that

Joan was not an aider and abetter; she was a passenger.

Patricia’s negligence could not be imputed to Joan.

If Joan had only been represented by other counsel,

and had sued her sister Patricia for damages for personal

injuries, the jury, having found that Patricia was negligent

in the suits by Pomeroy and Teague, would necessarily have

returned a verdict in favor of Joan against Patricia in

Joan’s case. Any other verdict could not be supported

since the state court of appeals held that Joan was not an

aider and abetter, and therefore was not negligent.

The District Judge in his opinion stated that the de-

fendants claim that Joan was not covered under the liability

policy of Woodruff. Defendants offered no such proof, and

the undisputed fact is that Tomlin was defending both Joan

and Patricia in the suit filed by Pomeroy and Teague.

The District Court further stated:

In any case, it appeared to this court that this claim

based on alleged conflict of interest on the part of de-

fendant Tomlin should not be tried with the claims

of negligence in losing the lawsuits and therefore it

was, by pre-trial order, not dealt with at the trial.

[App. 107]

The District Court cites no authority for such a prop-

osition. This was a legal malpractice case. If conflict of

interest should not be dealt with in a malpractice case,

where should it be dealt with?

Malpractice is defined in Webster’s New World Dic-

tionary of the American Language, College Edition, with

respect to persons other than physicians, as:

A22

2. Misconduct or improper practice in any profes-

sional or official position.

Negligence of an attorney in the investigation, trial, and

appeal of his client’s case is certainly improper practice in

his professional capacity; it is malpractice. It is also mal-

practice for an attorney to represent parties with conflicting

interests, without his disclosing all facts to his clients and

obtaining their consent.

Canon 6 of the Canons of Professional Ethics of the

American Bar Association provide in part as follows:

It is the duty of a lawyer at the time of retainer to

disclose to the client all the circumstances of his rela-

tions to the parties, and any interest in or connection

with the controversy, which might influence the client

in the selection of counsel.

It is unprofessional to represent conflicting inter-

ests, except by express consent of all concerned given

after a full disclosure of the facts. Within the mean-

ing of this canon, a lawyer represents conflicting inter-

ests when, in behalf of one client, it is his duty to

contend for that which duty to another client requires

him to oppose. [Opinions on Professional Ethics, p. 22.]

The Supreme Court of Tennessee, effective August 31,

1948, in its Canon of Ethics 38 adopted the Canons of Pro-

fessional and Judicial Ethics of the American Bar Associa-

tion “now in force and as hereafter modified or supple-

mented.” 185 Tenn. 889.

The American Bar Association has supplemented its

Canons of Professional Ethics and the Supplements were

adopted by the Supreme Court of Tennessee as shown in

Volume 5A of Tennessee Code Annotated, on pages 119 and

115, respectively, as follows:

A23

DR 5-105. Refusing to Accept or Continue Em-

ployment If the Interests of Another Client May

Impair the Independent Professional Judgment

of the Lawyer. — (A) A lawyer shall decline prof-

fered employment if the exercise of his independent

professional judgment in behalf of a client will be or

is likely to be adversely affected by the acceptance of

the proffered employment, or if it would be likely

to involve him in representing differing interests, ex-

cept the extent permitted under DR 5-105(C).

(B) A lawyer shall not continue multiple em-

ployment if the exercise of his independent profes-

sional judgment in behalf of a client will be or is likely

to be adversely affected by his representation of an-

other client, or if it would be likely to involve him

in representing differing interests, except to the extent

permitted under DR 5-105(C).

(C) Inthe situtions covered by DR 5-105(A) and

(B), a lawyer may represent multiple clients if it is ob-

vious that he can adequately represent the interest of

each and if each consents to the representation after

full disclosure of the possible effect of such representa-

tion on the exercise of his independent professional

judgment on behalf of each. [p. 119]

Interests of Multiple Clients

EC 514. Maintaining the independence of pro-

fessional judgment required of a lawyer precludes his

acceptance or continuation of employment that will

adversely affect his judgment on behalf of or dilute his

loyalty to a client. This problem arises whenever a

lawyer is asked to represent two (2) or more clients

who may have differing interests, whether such inter-

ests be conflicting inconsistent, diverse, or otherwise

discordant.

A24

EC 5-15. If a lawyer is requested to undertake

or to continue representation of multiple clients hav-

ing potentially differing interests, he must weigh care-

fully the possibility that his judgment may be impaired

or his loyalty divided if he accepts or continues the

employment. He should resolve all doubts against the

propriety of the representation. A lawyer should

never represent in litigation multiple clients with dif-

fering interests; and there are few situations in which

he would be justified in representing in litigation mul-

tiple clients with potentially differing interests. Ifa

lawyer accepted such employment and the interests

did become actually differing, he would have to with-

draw from employment with likelihood of resulting

hardship on the clients; and for this reason it is pref-

erable that he refuse the employment initially. On the

other hand there are many instances in which a lawyer

may properly serve multiple clients having potentially

differing interests in matters not involving litigation.

If the interests vary only slightly, it is generally likely

that the lawyer will not be subjected to an adverse in-

fluence and that he can retain his independent judg-

ment on behalf of each client; and if the interests

become differing, withdrawal is less likely te have a

disruptive effect upon the causes of his clients. [p. 115]

It is clear from the testimony of Tomlin that he made

no disclosure to his clients of all the circumstances of his

relations to the parties and of their connection or interest

in the controversy, and that his clients never consented.

Furthermore, in representing Patricia it was Tomlin’s duty

to contend that Patricia was not negligent, although he

knew that this was a disputed issue of fact. In representing

Joan it was his duty to contend that Patricia was negligent

in order to maintain a claim against her and Woodruff’s

insurer. In fact, in the state court of appeals Tomlin’s law

A25

firm made a damaging admission against the interests of

their clients, as heretofore set forth.

As a matter of fact it appears that the state appellate

court actually imputed Patricia’s negligence to Joan, as

there was ample evidence of negligence against Pomeroy

and Nobles. The state appellate court should have re-

manded this issue for trial. It was for the jury to decide

whether the two truck drivers were negligent. To correct

this error Tomlin’s law firm should not, in their appellate

brief, have made admissions against the interest of their

clients, and should have petitioned the Supreme Court of

Tennessee for certiorari.

When the District Judge, in a pretrial conference, ruled

that conflict of interest could not be considered in a legal

malpractice case where negligence was also alleged, the

plaintiffs petitioned our Court for a writ of mandamus and

prohibition to obtain relief from this error.

In an order entered July 8, 1976, we held that no appeal

lies from an interlocutory order except by leave of court,

and that mandamus is an extraordinary remedy and can not

be used as a substitute for an interlocutory appeal. Wood-

ruff v. Honorable Bailey Brown, No. 76-1892, Court of Ap-

peals, 6th Cir.

During the trial in the District Court plaintiffs again

raised the conflict of interest issue and proffered proof

which the District Court rejected, and declined to submit

the issue to the jury, and finally dismissed the complaint

when it granted judgment n.o.v

In this direct appeal we now have jurisdiction to hear

and to determine the issue of conflict of interest.

In our opinion it was prejudicial error for the District

Court at its pretrial conference to separate and remove

the issue of conflict of interest from other issues of mal-

A26

practice, and to deny the admission of relevant evidence

with respect thereto at the trial, and to decline to submit

the issue to the jury for determination. If the issue of

conflict of interest had been submitted to the jury it could

have produced a different result.

II

OTHER GROUNDS OF MALPRACTICE

A. The Erroneous Instruction On Last Clear

Chance

At the second trial in the state court the trial judge

submitted to the jury the issue of last clear chance. Al-

though conflicting, there was substantial evidence requir-

ing such submission, that Pomeroy, the truck driver, saw

the Woodruff car in a position of peril when Pomeroy was

a sufficient distance away that he could have stopped his

truck and averted the collision, had he exercised ordinary

care. Instead, he not only did not bring his truck to a

stop, but after the collision he continued uphill about 112

feet from the point of impact.

The instruction given by the state trial judge to the

jury on the issue of last clear chance was as follows:

I charge you that if you believe from the evidence

that Mr. Pomeroy saw, or by the exercise of reason-

able care, should have seen the plaintiff’s vehicle in

a position of imminent peril and in danger of being

struck by the truck which he was driving, and you

find that the defendant, Pomeroy, in time thereafter

by the exercise of reasonable care with the means and

appliances at hand on his truck, and with safety to

himself and to his truck, could have stopped the same

or could have decreased the speed of same, or could

A27

have diverted the course of same, and thereby avoided

the collision, the plaintiffs would be entitled to re-

cover, provided they are not guilty of contributory

negligence that proximately caused the accident. |Em-

phasis added ]

This instruction was clearly erroneous. Under the doc-

trine of last clear chance plaintiff’s contributory negligence

had ceased. It was no longer a proximate cause. The de-

fendant saw the plaintiff in a position of peril in sufficient

time that he could have averted the collision had he ex-

ercised ordinary care.

The instruction of the trial court defeated the entire

purpose of the doctrine. It conflicted with a decision of

the Supreme Court of Tennessee in Vaughn v. City of

Alcoa, 194 Tenn. 449, 251 S.W.2d 304 (1952). It also con-

flicted with our decision applying Tennessee law in Smith

v. Beattie, 346 F.2d 139 (6th Cir. 1965).

It is argued that the erroneous instruction is supported

by an appellate decision in Smith v. Craig, 484 S.W.2d 549

(Ct. App. Tenn., cert. denied Aug. 7, 1972). The Supreme

Court of Tennessee repudiated Smith v. Craig, supra, in

Street v. Calvert, 541 S.W.2d 576 (1976).

The trial judge, in giving the erroneous instruction,

was bound by the decision of the Supreme Court of Ten-

nessee in Vaughn v. City of Alcoa, supra, rather than by an

erroneous decision of an inferior appellate court.

Tomlin did not even object to the erroneous instruc-

tion in the state court trial, nor request the court to change

it. He did not assert it as error in a motion for a new

trial filed in the state court, nor did he assign it as error in

the state court of appeals.

It was error for the District Court to grant judgment

n.o.v. as this vital issue of malpractice should have been

A28

submitted to the jury for determination, and could have

produced a different verdict. Expert testimony on this

issue and on proximate cause was offered by plaintiffs in

the malpractice trial.

B. Failure To Call Witnesses

It is not understandable why Tomlin did not offer ex-

pert testimony at the second trial in the state court, namely,

an accident reconstruction expert, to refute the testimony

of Col. Dawson, the expert offered by the defendants.

Dawson was a state police officer.

In the malpractice case, to defend himself and his law

firm, they called as expert witnesses three attorneys and

the state court trial judge. They also took the deposition

of the state appellate court judge who wrote the opinion

affirming the judgment of the trial court, which was of-

fered in evidence. It was certainly unprecedented to call

as witnesses the judges who decided in their favor, and

to support their decisions. |

Canon 2B of the Code of Judicial Conduct provides that

the Judge “should not testify voluntarily as a character

witness” because it would inject the prestige of his office

into the proceeding to which he testifies.

In the present case no criticism can be levelled at the

state court judges for testifying in favor of the attorneys

for a party to a case, in whose favor they decided, because

the two judges in testifying responded to subpoenas issued

by the defendants.

It should be observed, however, that if the attorneys

had exercised the same degree of diligence, by calling at

least one expert witness, in handling the case for their

clients as they did in defending themselves in the mal-

practice case, the result in the state court personal injury

cases might well have been different.

A29

Mr. Woodruff also testified that he requested Tomlin to

call as a witness, Gene Burkhead, who could testify as to

the negligence of defendant Nobles, and also could support

the testimony of Joan, but he was never called as a witness.

Mr. Woodruff further testified that he advised Tomlin

that his adult son Eddy and a neighbor, James McClendon,

went to the scene of the accident and stepped out the skid

marks on the pavement, laid down by the Woodruff car,

as sixty paces, or 180 feet, which conflicted with the testi-

mony of Col. Dawson, a police officer, who testified at the

first trial to skid marks of 252 feet, but Tomlin never

called them as witnesses. Tomlin did not even interview

Col. Dawson, claiming it would be unethical for him to

interview defendant’s expert witness. We see nothing

unethical for a lawyer to interview a state police officer.

After the first state court trial Mr. Woodruff was ad-

vised by one of the jurors and by friends that the plaintiffs

could not obtain a fair trial in Chester County, and he re-

quested that the cases be removed from that county. Tom-

lin advised Woodruff that this could not be done. Tomlin

admitted in his deposition, however, that the plaintiffs could

have dismissed their complaints without prejudice and re-

filed in the federal court. It was at the second trial in the

state court that Nobles had contact with one of the jurors

relating to coon hunting on his farm. This at least was

admittedly erroneous advice given by Tomlin to his client.

C. Tennessee Law Applicable To Legal Malprac-

tice

In granting defendants-appellees’ motion for judgment

n.o.v. after the jury could not agree on a verdict, and the

court had granted a mistrial, the court relied on two

grounds. First, the District Court accepted a Tennessee

Court of Appeals decision in Stricklan v. Koella, 546 S.W.2d

A30

810 (1976), cert. denied by the Tennessee Supreme Court

(1977), as the law of !egal malpractice liability in Tennessee

for negligence in the investigation, trial and appeal of a

personal injury and property damage suit. The second

ground for the District Court’s dismissal was that the harm

done to appeliants, if any, was speculative and therefore

was not within the province of the jury.

The District Court rested its decision on a statement in

Stricklan, supra, that in Tennessee no cause of action exists

based on a lawyer’s refusal to prepare a case in the manner

insisted upon by the client. In Stricklan attorney Koella

was retained by the plaintiff to defend him against charges

of assault and battery. The client discharged Koella shortly

before the trial date because Koella refused to introduce

certain depositions, refused to call certain witnesses, or to

conduct certain cross examination at the upcoming trial.

After paying an expensive settlement without the benefit

of counsel, the client sued Koella for the amount of the

settlement and costs, and for $250,000 for damage to his

reputation.

In addition to suing Koella for his refusal to conduct the

upcoming trial as directed, the client also sued Koella for

declining to move for a change of venue. Koella answered

that a motion for change of venue would have been un-

founded and improper and would not have been granted.

In the present case the attorney gave admittedly incorrect

legal advice to his client concerning the client’s right to vol-

untarily dismiss his action without prejudice and to sue in

the federal court.

Koella further answered that the pretrial discovery

depositions in issue in his judgment developed no dis-

crepancies in testimony and would have been of no use in

the upcoming trial. The defendant’s motion for summary

judgment was granted.

A31

In the present case the District Court was of the opin-

ion that the holding in Stricklan prevented the Woodruffs

from suing for negligence in the investigation, trial, and ap-

peal of their personal injury suit.

We believe that the District Court misapplied Stricklan.

There was no actual trial in Stricklan, and there was no evi-

dence of any negligence on the part of Koella, either by ex-

pert witnesses or otherwise. An attorney, like any other

professional, is liable for acts of negligence in the conduct

of his professional work. He has a duty to possess and

to use that degree of skill, competence, and learning or-

dinarily possessed and used by others in the same pro-

fession, under like and similar circumstances. An attorney

who fails to perform his duties for his client in accordance

with accepted standards of legal practice is negligent.

He is liable for damages proximately caused to the client

thereby. RESTATEMENT (SECOND) OF Torts § 299A (1965);

Prosser, LAw or Torts § 32 (4th ed. 1971). A lawyer is

not exempt from malpractice liability for trial related

work.

Although there is no Supreme Court of Tennessee de-

cision directly on the precise points involved in the present

appeal, we believe from a survey of Tennessee law that the

Tennessee Supreme Court would hold lawyers liable for

negligence in the investigation, trial, and appeal of actions

when that negligence proximately injured a client.

An attorney is not liable for mistakes in judgment or

for tactical decisions, but he is liable for negligence that

proximately causes injury to his client. Canon 6 of the

Tennessee Code of Professional Responsibility requires a

Tennessee attorney to represent a client competently, to

prepare adequately, and to give appropriate attention to his

work. The Tennessee standard for malpractice liability was

set forth by the Tennessee Supreme Court in In re Woods,

158 Tenn. 383, 389, 13 S.W.2d 800 (1929), as follows:

A32

[W]hile an attorney does not guarantee the ac-

curacy of all he does, he is bound to exercise reason-

able skill and diligence in attending to business en-

trusted to his care and he is bound to possess such

reasonable knowledge of well-settled rules of law as

will enable him to perform the duties he undertakes.

See also Hillhouse v. McDowell, 219 Tenn. 362, 410 S.W.2d

162 (1966). The Stricklan decision itself recognizes that

a Tennessee attorney may be held for legal malpractice.’

The same standard is applied to all attorneys in the state.

1. For lower court cases see Holcomb v. Steele, 47 Tenn. App.

704, 342 S.W.2d 236 (1958), Hill v. Mynatt, 59 S.W. 163 (Tenn.

Ct.App. 1900).

Other jurisdictions recently have required ordinary care, skill,

and diligence from attorneys or, as it is alternatively phrased,

that degree of care, skill and diligence which is commonly pos-

sessed and exercised by attorneys in practice in the jurisdiction.

Smith v. Lewis, 13 Cal.3d 349, 118 Cal. Rptr. 621, 530 P.2d 589

(1975), Cook v. Flanagan & Berst v. Clausing, 73 Wash. 2d 393,

438 P.2d 865 (1968). This standard is well supported historically.

See, e.g., Goodman & Mitchell v. Walker, 30 Ala. 482 (1857),

Gambert v. Hart, 44 Cal. 542 (1872), Cox v. Sullivan, 7 Ga. 144

(1849), Stevens v. Walker & Dexter, 55 Ill. 151 (1870), Babbitt

v. Bumpus, 73 Mich. 331, 41 N.W. 417 (1889). See also Skillen

v. Wallace, 36 Ind. 319 (1871), Gilbert v. Williams, 8 Mass. 51

(1811).

For further discussion and authority see Annot., 45 A.L.R.2d

5-58 (1956).

ve 2. In Stricklan, supra, 546 S.W.2d at 812-13, the Court

said:

Of course, there are cases which recognize a cause of

action for legal malpractice. See Hillhouse v. McDowell,

(1966) 219 Tenn. 362, 410 S.W.2d 162; Gay & Taylor, Inc. v.

American Cas. Co. of Reading, Pa., (1963 E.S.) 53 Tenn.App.

120, 381 S.W.2d 304; Hill v. Mynatt, (1900 Tenn.Ch.App.) 59

S.W. 163. Ordinarily a lawyer, like a physician, is liable

for professional negligence. 87 A.L.R.2d 986; Hill v. Mynatt,

supra.

The Court further said (546 S.W.2d at 814):

We do not hold that there generally is no cause of action

against an attorney for his negligence or malpractice; we only

hold that for the reasons given, there can be no cause of

action against an attorney arising out of the manner in which

he honestly chooses to present his client’s case to the trier

of the facts.

A33

Older Tennessee decisions reflect a tradition in Ten-

nessee jurisprudence of holding an attorney responsible

for damages flowing from negligence in the conduct of his

professional duties. Collier v. Pulliam, 81 Tenn. 114 (1884),

Read v. Patterson, 79 Tenn. 430 (1883); A.T. Bruce & Co.

v. Baxter, 75 Tenn. 477 (1881); Bills v. Polk, 72 Tenn. 494

(1880).

We do not agree with the District Court that the harm,

if any, done to appellants in the present case was specula-

tive and therefore beyond the province of the jury. Causa-

tion, historically, has been determined by the jury in all

cases involving breach of a standard of reasonable care.

In the present case negligence and causation were testified

to by plaintiffs’ expert.

To recover, plaintiffs must show and convince the

jury that, but for the negligence of defendants, the action

would have been successful. Collier v. Pulliam, supra. See

also Maryland Cas. Co. v. Price, 231 F. 397 (4th Cir. 1916),

Spangler v. Sellers, 5 F. 882 (C.C. Oh. 1881), Sitton v.

Clements, 257 F.Supp. 63 (E.D. Tenn. 1966), aff’d 385 F.2d

869 (6th Cir. 1967), McLellan v. Fuller, 226 Mass. 374, 115

~ NE. 481 (1917), Vooth v. McEachen, 181 N.Y. 28, 73 NE.

488 (1905).

The damages recoverable would be the full value of the

claim lost. See A.T. Bruce & Co., supra, at 481; Annot.

45 A.L.R.2d 62-71 (1956).

Ill

We find no error in the District Judge’s denial of a

motion filed by the plaintiffs to require his recusal under

28 U.S.C. § 455(a). Such recusal cannot be based on de-

cisions or rulings of a Judge. Oliver v. Michigan State Bd.

of Educ., 508 F.2d 178 (6th Cir. 1974), cert. denied, 421

U.S. 963 (1975).

A34

CONCLUSION

We are of the opinion that, as pointed out hereinbefore,

just too many things went wrong prejudicially affecting the

substantial rights of their clients, to absolve the defendants

from liability for malpractice. The most grievous errors

are the conflicts of interest, the prejudicial and improper

admissions against the interests of their clients in the state

court of appeals, and the mishandling of the issue of last

clear chance.

The judgment of the District Court is reversed and

thie case is remanded for a new trial.

A35

APPENDIX C

No. 77-1216

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

JOAN WoopRUFF; PATRICIA WOODRUFF HAMILTON

and Louris HAmI.LTon, Her Husband,

Plaintiffs-Appellants,

V.

Hewitt P. ToMuin, Jr.; Homer H. Watprop; Roy HAL;

and Davip R. FARMER, Individually and as Partners Doing

Business Under the Name and Style of WA.prop, HALL,

TOMLIN & FARMER, a Professional Business Association,

Defendants-Appellees.

AppEAL from the United States District Court for the

Western District of Tennessee, Eastern Division.

Decided and Filed February 21, 1980.

Before: Epwarps, Chief Judge; WEIcK, CELEBREZZE,

LIVELY, ENGEL, KEerrH and Merritt, Circuit Judges.

LIvELy, Circuit Judge, delivered the opinion of the

Court, in which Epwarps, Chief Judge, and CLELBREZZE and

KEITH, Circuit Judges, joined. WEeELick, Circuit Judge (pp.

26-38) filed a separate opinion dissenting in part and con-

curring in part. ENGEL, Circuit Judge (pp. 38-40) filed

a separate dissenting opinion. Merritt, Circuit Judge (pp.

41-50) filed a separate dissenting opinion.

Live.y, Circuit Judge. This case involves a claim of

legal malpractice arising from the manner in which the

defendants handled litigation on behalf of the plaintiffs in

A36

the Tennessee state courts. Jurisdiction of the district

court was based on diversity of citizenship. The district

court severed the plaintiffs’ claims based on alleged con-

flict of interests in the defendants’ representation of multi-

ple parties. The district court also ordered a bifurcated

jury trial, reserving questions of damages until after the

jury had determined issues of liability. The case was tried

to a jury on the plaintiffs’ claims that the defendants neg-

ligently conducted “the investigation, preparation for trial

and presentation at trial” of the plaintiffs’ claims for per-

sonal injuries arising from an auto-truck collision. The

jury in the district court was unable to agree on a verdict

and the court declared a mistrial. The defendants then

filed a motion for judgment n.o.v. and for dismissal of the

complaint. This motion was granted. Woodruff v. Tomlin,

423 F.Supp. 1284 (W.D. Tenn. 1976).

An appeal was taken to this court from the final judg-

ment dismissing the malpractice action. After oral argu-

ment a panel of the court reversed the judgment of the

district court. Woodruff v. Tomlin, 593 F.2d 33 (6th Cir.

1979). Thereafter this court granted rehearing en banc by

an unpublished order entered May 24, 1979. Following

additional briefing and oral argument the case is before

the court for decision. Though the effect of the granting of

a rehearing en banc is to vacate the previous opinion and

judgment of this court (Rule 14, Rules of the Sixth Circuit),

we adopt the following statement from the panel opinion:

The plaintiffs, Joan Woodruff and her sister

Patricia, then 15 and 16 years of age respectively, were

severely injured on May 22, 1968, when an automobile

driven by Patricia and owned by her father, in which

automobile Joan was riding as a passenger, was struck

by a large truck loaded with gravel weighing about

73,000 pounds, on Highway 100 in Chester County,

Tennessee. Joan was thrown out of the car and the

A37

truck ran over her legs, crushing the bones and tear-

ing the skin off her legs, cripping her for life. Patricia

sustained a skull and brain injury resulting in traumatic

amnesia, so that she had no memory of the accident.

The girls’ hospital bills alone exceeded $20,000.

The girls’ father, Charles Woodruff, carried liabil-

ity insurance on his car with Tennessee Farmers Mu-

tual Insurance Company, with limits of $10,000 for one

person, and $20,000 for more than one person. While

the girls were in the hospital Theo. Leathers, the Claims

Adjuster for the insurer, contacted Mr. Woodruff and

gave him a check for medical reimbursement. Leathers

advised Mr. Woodruff that he should retain a lawyer.

Leathers told Mr. Woodruff that the statements of wit-

nesses to the collision were inconsistent and were

changing.

Leathers recommended to Woodruff that he retain

Hewitt P. Tomlin, stating that Tomlin was a good

lawyer. Tomlin was also the attorney for Tennessee

Farmers Mutual Insurance Company. Woodruff then

engaged Tomlin to represent his two daughters, and

also to represent himself in his claim for damages to his

car.

Tomlin filed two suits for personal injuries sus-

tained by the girls and one for damages to the car,

against Pomeroy, the driver of the large truck, Teague,

the owner of the truck, and Nobles, the owner of the

second truck. The suits were filed in the Circuit Court

of Chester County, Tennessee.

Pomeroy, the truck driver, and Teague, the owner

of the truck, filed suits in said Circuit Court against

Patricia Woodruff and her sister Joan, to recover dam-

ages for personal injury sustained by Pomeroy, and for

damages to the truck. They alleged negligence on the

A38

part of Patricia, and that Joan, the passenger, aided

and abetted. Tomlin, as attorney for Tennessee

Farmers Mutual Insurance Company, defended the

suits against the two girls. The suits were all con-

solidated for trial.

The cases in the state court were tried before a

jury, which disagreed 9-3, and a mistrial was declared.

At the second trial in the state court the jury re-

turned a verdict in favor of the defendants in the

personal injury actions of Patricia and Joan against

Pomeroy, Teague and Nobles. In the suit of Pomeroy

and Teague against Patricia and Joan the jury re-

turned verdicts in favor of Pomeroy for $600, and

Teague in the amount of $3,000.

Upon appeal to the state court of appeals the

judgments for the defendants in the personal injury

cases of Patricia and Joan against Pomeroy, Teague

and Nobles, were affirmed. The judgments in favor

of Pomeroy and Teague against Patricia, totaling $3,600,

were affirmed, but were reversed as to Joan, the

Court holding that there was no evidence to prove that

Joan, the passenger, aided and abetted in the negli-

gence of Patricia. Therefore Joan was not contribu-

torily negligent, and Patricia’s negligence could not

be imputed to her.

593 F.2d at 35-36.

In the district court the plaintiffs contended that the

loss of their personal injury actions in the state trial and

appellate courts was proximately caused by negligence of

the defendants and by their breach of fiduciary duties aris-

ing from the attorney-client relationship. The claim of

negligence was predicated upon the following acts and

omissions of the defendant Tomlin or other members of

his law firm:

A39

(1) Failure to attempt to obtain a change of venue

or take a nonsuit and refile in a federal court after the

first personal injury trial resulted in a hung jury.

(2) Failure to object to a “‘clearly erroneous” jury in-

struction at the second personal injury trial and failure to

include the giving of this instruction in the motion and

grounds for a new trial.

(3) Failure to consult a traffic reconstruction expert

to develop time/distance factors and establish stopping

distances.

(4) Failure to interview and present available wit-

nesses who could testify to important facts.

(5) Failure to bring to attention of the trial court

certain Tennessee statutes bearing on issues in the case.

(6) Negligence in the conduct of the appeal. This

claim was based primarily on the fact that the defendants

conceded in their brief in the Tennessee Court of Appeals

that there was substantial evidence to support the jury’s

finding that Patricia was negligent in the operation of her

father’s automobile. It was also contended that the de-

fendants failed to argue applicable statutes in their appel-

late brief and failed to argue the “clearly erroneous” in-

struction.

All of these contentions have been renewed in this

court. Since this is a diversity case the court is required

to apply the substantive law of Tennessee. Erie Railroad

Co. v. Tompkins, 304 U.S. 64 (1938). Our problem in this

respect arises from the fact that the Supreme Court of

Tennessee has never decided a legal malpractice case on

facts even remotely resembling those of the present case.

In fact, there is a dearth of reported decisions from any

jurisdiction dealing with charges of negligence and mal-

practice in the conduct of litigation. However, the Ten-

A40

nessee Court of Appeals rendered a decision while the

present case was pending in the district court in which it

held ‘‘there can be no cause of action against an attorney

arising out of the manner in which he honestly chooses to

present his client’s case to the trier of facts.” Stricklan

v. Koella, 546 S.W.2d 810, 814 (Tenn. App. 1976), cert.

denied by Supreme Court of Tennessee, February 7, 1977.

The district court found that the Stricklan case “deals

squarely with the question presented here.” 423 F.Supp. at

1288. On appeal it is argued by the defendants that Strick-

lan states the common law of Tennessee, and since there

was no charge of dishonesty or bad faith on their part, there

can be no cause of action against them for the manner in

which they chose to conduct the litigation on behalf of the

plaintiffs.

In an early decision applying the Erie doctrine, the Su-

preme Court held that ‘‘in the absence of more convincing

evidence of what the state law is,” a federal court should

apply the law as declared by an intermediate state court.

Fidelity Trust Co. v. Field, 311 U.S. 169, 177-78 (1940).

Chief Justice Hughes, writing for the Court, noted, “We

have no other evidence of the state law in this relation.”

Id. at 178. At the same term the Supreme Court further

defined the rule to be applied by federal courts as follows:

A state is not without law save as its highest court

has declared it. There are many rules of decision

commonly accepted and acted upon by the bar and

inferior courts which are nevertheless laws of the

state although the highest court of the state has never

passed upon them. In those circumstances a federal

court is not free to reject the state rule merely be-

cause it has not received the sanction of the highest

state court, even though it thinks the rule is unsound

in principle or that another is preferable. State law

is to be applied in the federal as well as the state

A4l

courts and it is the duty of the former in every case

to ascertain from all the available data what the state

law is and apply it rather than to prescribe a different

rule, however superior it may appear from the view-

point of ‘‘general law” and however much the state

rule may have departed from prior decisions of the

federal courts.

Where an intermediate appellate state court rests

its considered judgment upon the rule of law which it

announces, that is a datum for ascertaining state law

which is not to be disregarded by a federal court un-

less it is convinced by other persuasive data that the

highest court of the state would decide otherwise.

West v. American Telephone & Telegraph Co., 311

U.S. 223, 236-237 (1940) (citation omitted).

See also, Six Companies v. Highway District, 311 U.S. 180,

188 (1940). Thus, before concluding ’that Stricklan v.

Koella states the rule of law of Tennessee we must de-

termine whether there is ‘more convincing evidence of

what the state law is” with respect to legal malpractice

in the conduct of litigation.

Tennessee clearly recognizes a cause of action for legal

malpractice. In fact, the concluding paragraph of the

opinion in Stricklan v. Koella states, ‘“‘We do not hold that

there generally is no cause of action against an attorney

for his negligence or malpractice... .” 546 S.W.2d at 814.

The Supreme Court of Tennessee stated the rule as follows

in In Re Woods, 158 Tenn. 383, 13 S.W.2d 800 (1929):

While an attorney does not guarantee the accuracy

of all he does, he is bound to exercise reasonable skill

and diligence in attending to business intrusted to his

care, and he is bound to possess such reasonable knowl-

edge of well-settled rules of law as will enable him to

perform the duties he undertakes. Bills v. Polk, 72

A42

Tenn. (4 Lea) 495; Bruce v. Baxter, 75 Tenn. (7 Lea)

477; Read v. Patterson, 79 Tenn. (11 Lea) 430; Collier v.

Pulliam, 81 Tenn. (13 Lea) 114; Hill v. Mynatt (Tenn.

Ch. App.) 59 S.W. 163, 52 L.R.A. 883.

“For loss to clients resulting from a want of proper

knowledge of matters of law in common use, or of

such plain and obvious principles as every lawyer is

presumed to know, an attorney is liable, and he is

usually held to be liable for the consequences of his

ignorance of nonobservance of the rules of the courts in

which he practices, or for his ignorance of the statutes

and published decisions of his own state.” 2 R. C. L.

1015.

158 Tenn. at 389-90, 13 S.W.2d at 803.

The cases cited by the Tennessee Court in In Re Woods,

supra, and other cases here cited disclose a long-standing

recognition of the general rule recognizing a cause of ac-

tion for legal malpractice. However, none of these cases

involved the actual conduct of litigation. See e.g., Jones

v. Smith, 45 Tenn. 371 (1868) (liability for confessing

judgment without authority); Maxwell v. Owen, 47 Tenn.

630 (1868) (liability for assigning a debt without per-

mission); Bruce v. Baxter, 75 Tenn. 477 (1881) (liability

for lack of diligence in collecting claims) ; Collier v. Pulliam,

81 Tenn. 114 (1884) (liability for failure to bring suit

upon an account). In Hillhouse v. McDowell, 410 S.W.2d

162 (Tenn. 1966), the Supreme Court of Tennessee reversed

a circuit court judgment for an attorney in a malpractice

action. The legal malpractice claim was founded on the

attorney’s failure to prosecute his client’s personal injury

action within the time prescribed by the applicable Ten-

nessee statute of limitations. Though the court based its

reversal on a finding that the trial court had applied the

wrong statute of limitations to the legal malpractice action,

A43

it made several noteworthy comments on the nature of

an attorney’s duty to a client. For example, the court

quoted from its earlier opinion in Bruce v. Baxter, supra,

as follows:

* * * When a person adopts the profession of

the law, and assumes to exercise its duties in behalf

of another for hire and reward, he must be held to

employ in his undertaking a reasonable degree of care

and skill; and if any injury result to the client from

want of such reasonable care and skill, the attorney

must respond to the extent of the injury sustained.

410 S.W.2d at 164.

Further, the court described the action before it in this

language:

We feel that this suit is based upon an attorney-

client relationship of trust, and in addition to being

an implied contract it was an express contract that

he would exercise reasonable skill and diligence in

doing what was undertaken and that when there was

a failure to thus exercise such diligence this was a

breach of contract rendering the attorney liable for

the loss resulting, but no more.

410 S.W.2d at 166.

It appears that the Supreme Court of Tennessee has

not held that an attorney may never be liable for

negligence in the conduct of litigation. In view of the

inclusive language which that court has used in describing

the duty of attorneys to exercise reasonable care and skill

in their undertakings for clients we conclude that the

district couct read Stricklan too expansively. The Ten-

nessee Court of Appeals in Stricklan described the case

thus:

A44

Essentially and in simple terms, the cause of

action stated is that retained counsel refused to use

the trial tactics insisted upon by the client, for

which refusal retained counsel’s services were termi-

nated ....

546 S.W.2d at 812.

After noting cases where the Tennessee courts had recog-

nized a cause of action for legal malpractice, the court of

appeals stated, “However, none of the Tennessee cases

that we find recognize a cause of action for alleged negli-

gence in the attorney’s choice of trial tactics or conduct

of the case.” Id. at 813.

When viewed in light of the general Tennessee rule

which holds attorneys liable for losses to clients for failure

to exercise reasonable skill and care, Stricklan can only

mean that there can be no liability for acts and omissions

by an attorney in the conduct of litigation which are based

on an honest exercise of professional judgment. This is

a sound rule.’ Otherwise, every losing litigant would be

able to sue his attorney if he could find another attorney

who was willing to second-guess the decisions of the first

attorney with the advantage of hindsight. If this were

permitted, as Judge Brown pointed out in the present

case, the original trial would become a “play within a

play” at the malpractice trial. To hold that an attorney

may not be held liable for the choice of trial tactics and

1. Though the court in Stricklan relied on the decision in

the English case of Rondel v. Worsley, reported as (1966) 1 All

E.R. 467; (1966 C.A.) 3 All E.R. 657; (1967 H.L.) 3 All. E.R. 993;

(1969) 1 A.C. 191, neither counsel nor we have found an Ameri-

can decision holding an attorney liable for the choice of trial

tactics or the good faith exercise of professional judgment On

appeal the appellees also cited New Zealand cases which have

followed Rondel v. Worsley, holding that attorneys are immune

to suits for “work done in court.” E.g., Bigger v. McLeod, 1

NZLR 321, 325 (1976).

A45

the conduct of a case based on professional judgment is

not to say, however, that an attorney may not be held

liable for any of his actions in relation to a trial. He is

still bound to exercise a reasonable degree of skill and

care in all his professional undertakings.

Leaving aside for later treatment the allegations of

conflict of interests, we will examine the plaintiffs’ claims

of negligence in the investigation, preparation for trial

and presentation at trial of their personal injury actions.

(1) FAILURE TO ATTEMPT TO OBTAIN A

CHANGE OF VENUE OR TAKE A NONSUIT AND RE-

FILE IN FEDERAL COURT. This claim is based on

testimony of Charles Woodruff, father of the plaintiffs

herein, that he was told that he and his daughters could

not get a fair trial in Chester County, Tennessee. Mr.

Wocdruff testified that he related this information to the

defendant Tomlin and that Tomlin advised him that the

case had to be tried in Chester County. The chances of

getting a change of venue to another Tennessee circuit

court on the basis of this unsubstantiated rumor would

be virtually non-existent. An attorney should not be

charged with malpractice for refusing to make such a

frivolous motion.

The plaintiffs claim, however, that they had moved

to Arizona in November 1969 and that Tomlin could have

brought the action in a federal court in Tennessee after

that time, invoking diversity jurisdiction. It is not at

all clear that Tomlin was advised that the Woodruff family

had changed its residence to Arizona. In fact, at the

second trial in 1971, Joan Woodruff was asked, “Where

do you presently live?” Her response was, ‘“‘Toone—I live

in Piney Grove, but on Toone Route.” Though the family

had lived for two years in Arizona, this reply by a plain-

tiff who was then 18 years old, indicated her residence

A46

was the same as it had been on the date of the accident.

Though Mr. Tomlin conceded in his deposition that if the

Woodruffs had actually changed their residence to Arizona

an action could have been filed in federal court, he further

stated that he regarded the Woodruff family as Tennessee

residents. Further, Tomlin testified without contradiction

that there was no perceptible pattern of higher verdicts

for plaintiffs in the federal courts of West Tennessee than

in the local courts of the region.

We conclude that there is no basis in this record for

holding that Tomlin’s continued pursuit of the plaintiffs’

actions in the circuit court of Chester County, Tennessee

could be found negligent, or otherwise constitute mal-

practice. This claim was properly dismissed by the dis-

trict court.

(2) FAILURE TO OBJECT TO A “CLEARLY ERRO-

NEOUS” JURY INSTRUCTION AND TO PRESERVE

THIS ERROR FOR APPEAL. This claim refers to the

last clear chance instruction which was given at the second

personal injury trial:

I charge you that if you believe from the evidence

that Mr. Pomeroy saw, or by the exercise of reason-

able care, should have seen the plaintiffs’ vehicle in

a position of imminent peril and in danger of being

struck by the truck which he was driving, and you

find that the defendant, Pomeroy, in time thereafter

by the exercise of reasonable care with the means

and appliances at hand on his truck, and with safety

to himself and to his truck, could have stopped the

same or could have decreased the speed of same, or

could have diverted the course of same, and thereby

avoided the collision, the plaintiffs would be entitled

, to recover, provided they are not guilty of contributory

negligence that proximately caused the accident.

A47

On its face this instruction does appear erroneous,

since the doctrine of “last clear chance” only applies

to a plaintiff who is negligent, and the final clause of

the instruction appears to nullify what went before. Never-

theless, this instruction reflected the Tennessee rule then

being followed that a plaintiff may not rely on last clear

chance where his own negligence “continues and is con-

current with the negligence of the defendant as a causal

factor up to the time of the event which causes harm.”

Gardner’s Masonry Contractors, Inc. v. St. Louis-San Fran-

cisco R. Co., 470 S.W.2d 945, 948-49 (Tenn. App.), cert.

denied, (1971). Gardner’s Masonry was decided by the

Western Section of the Court of Appeals of Tennessee

three months before the second personal injury trial of

the Woodruffs. This was the court to which an appeal

would be taken from judgments of the circuit court of

Chester County. Some six months after the Woodruff

trial the same appellate court concluded that there was

a difference between “last clear chance” and “discovered

peril” and that continuing contributory negligence is a

complete defense to a claim based on last clear chance,

but has no effect on discovered peril. See Smith v. Craig,

484 S.W.2d 549, 552 (Tenn. App.), cert. denied, (1972).

In Street v. Calvert, 541 S.W.2d 576 (1976), The

Supreme Court of Tennessee held that the interpretation

of last clear chance, discovered peril and “discoverable

peril” by the appellate court in Gardner’s Masonry and

Smith v, Craig, was erroneous. However, in doing so

the court acknowledged that three of its earlier decisions

(Williford, Roe and Todd) “provided some support” for

the holdings of Gardner’s Masonry and Smith v. Craig.

Id. at 583. The decision in Street v. Calvert was ren-

dered nearly five years after the second Woodruff trial.

In view of the confusion surrounding the proper

application of last clear chance in Tennessee at the time

A48

of the Woodruff trial we can find no basis for holding

that attorney Tomlin could be found negligent for failing

to object to the instruction or for failing to urge it as

error on appeal to the Western Section of the Court of

Appeals of Tennessee. In In Re Woods, supra, the Su-

preme Court of Tennessee cited with approval the decision

of the Tennessee Court of Chancery Appeals in Hill v.

Mynatt, 59 S.W. 163 (Tenn. Ch. App. 1900). Woods,

13 S.W.2d at 803. In Hill v. Mynatt, the court discussed

the responsibility of an attorney in the following language:

As a matter of fact, law is not an exact science, and,

as said in a leading case, “there is no attainable degree

of skill or expense at which all differences of opinion

or doubts in respect to questions of law are removed

from the minds of lawyers and judges.” Association

v. Friedley (Ind.) 23 N. E. 1075, 7 L. R. A. 669, 18

Am. St. Rep. 320. And if all of us had to go out

for mistakes of judgment upon points of new occur-

rence, or of nice or doubtful construction, it is appre-

hended that the ranks of the profession, and of judges

not final in their jurisdiction, would be decimated at

an appalling rate. We recognize and approve the

rule attaching liability to the attorney whose client

suffers loss on account of his failure to understand

and apply well-established principles of law, settled

by text-books and cases published long enough for

him, exercising reasonable diligence, to have informed

himself of them. In other words, an attorney has

no right to be a clam, and shut himself up in the

seclusion of his own self-conceived knowledge of the

law. He must keep pace, so far as reasonable diligence

and a fair amount of common sense will enable him

to do so, with the literature of his profession, and

what the courts have decided. But the law does not

require and never has required of a member of the

A49

profession that he should be a true Sir Oracle of

what the courts have decided or will decide as the

law applicable to every given state of facts.

59 S.W. at 167.

This claim was properly dismissed by the district court.

(3) FAILURE TO CONSULT A TRAFFIC RECON-

STRUCTION EXPERT. Tomlin did employ an engineer

who made measurements at the scene of the accident

and prepared a plat. There was no evidence that the

accepted standard of performance for Tennessee lawyers

requires consultation with a traffic reconstruction expert,

or use of such a witness, in highway accident cases. The

decision to establish the physical facts of the case by

use of an engineer’s plat rather than the testimony of

an expert appears to be one of trial tactics or judgment

as to the most effective presentation of a client’s case.

Once the distances between objects were established the

time/distance factors and stopping distances were simple

mathematical computations. In the absence of bad faith,

the failure to consult an expert cannot be the basis of

liability. Stricklan v. Koella, supra. There was no claim

of bad faith in this case.

The plaintiffs also complain that Tomlin did not inter-

view or attempt to weaken by cross-examination the tes-

timony of an expert witness who estimated the speed

of the Woodruff vehicle, based on the length of skid

marks, at 76 m.p.h. Tomlin explainec. that the witness

was a colonel in the State Police Force of Tennessee,

whom he knew well, and that he did not believe he

could shake his testimony. Instead, Tomlin decided to

rely on the testimony of the passenger-plaintiff Joan

Woodruff and the driver of the car following closely

behind the Woodruff vehicle, Gayle Sterling. Both these

witnesses testified positively that Patricia Woodruff was

A50

driving at no more than 55 m.p.h. on a road with a

65 m.p.h. speed limit. This was clearly a tactical decision

by Tomlin which would furnish no basis for a malpractice

claim under Stricklan. This claim was properly dismissed

by the district court.

(4) CONCESSIONS IN THE APPELLATE BRIEF.

In their brief in the court of appeals the law firm repre-

senting the Woodruffs (the brief was written by defendant

Waldrop) conceded that there was substantial evidence

to support the jury’s finding that Patricia Woodruff was

negligent in the operation of her father’s car. This was

clearly so. If the jury believed the expert who testified

for the defendants or the defendant Pomeroy it could find

that Patricia Woodruff was operating her vehicle at an

excessive rate of speed. The brief did not concede that

Pomeroy, the driver of the truck which collided with the

Woodruff car, was free of negligence. Nor did it concede

that Lewis Nobles, the driver of a third vehicle on the

highway, was free of negligence.

Tomlin explained the concessions in his testimony. He

pointed out the duty of an attorney to be honest with

the court. He and his associates felt that there was no

basis for reversing the jury’s finding of negligence by

Patricia Woodruff under Tennessee law. However, since

Patricia’s negligence was not imputed to Joan, the pas-

senger, it was decided to concentrate on attempting to

salvage Joan Woodruff’s case on appeal. This consisted

of attempting to show that the defendant Nobles was

negligent as a matter of law and that Pomeroy was

negligent in not beginning to brake his heavy truck until

he was virtually upon the stopped Woodruff vehicle.

There was support in the record for both of these argu-

ments. Nobles had admitted that he was stopped ahead

of the Woodruff car and in its lane of travel and had

just started slowly forward before the accident. This was

A51

corroborated by Pomeroy who testified he was unable to

pull into the left lane to avoid the Woodruff car after

it skidded into his driving lane because of the presence

of the Nobles vehicle in the left lane. As to Pomeroy’s

negligence, the testimony of several witnesses placed him

at a point when the Woodruff car began skidding which

would have permitted him to stop before reaching the

point of collision. Yet, marks in the road indicated that

he applied his brakes for the first time immediately prior

to the collision.

The decision to concentrate on Joan’s case on appeal

clearly appears to have been based on professional judg-

ment. By the time of the appeal it was known that

Joan Woodruff’s injuries were more serious than those

of Patricia. By conceding that the jury verdict against

Patricia was supported by the evidence, the defendants

did not concede anything which would have prevented

a new trial for Joan if the court of appeals had ‘“‘bought”

their arguments with respect to the negligence of Nobles

and Pomeroy. In fact, the court of appeals did vacate

the judgments of Pomeroy and Teague against Joan. It

chose to abide by the jury’s verdict with respect to Joan’s

claim against the same two defendants. We conclude that

the concessions in the appellate brief resulted from a

tactical decision reached in the exercise of professional

judgment and do not furnish a basis for a malpractice

action. Stricklan v. Koella, supra, This claim was prop-

erly dismissed by the district court.

(5) FAILURE TO INTERVIEW AND PRESENT

AVAILABLE WITNESSES WHO COULD TESTIFY TO

IMPORTANT FACTS. Charles Woodruff testified that

he told Tomlin, well before trial, that Eugene Burkhead

might make a valuable witness. Burkhead was in the

woods some distance from the highway. He was con-

versing with Lewis Nobles who had a loudspeaker in his

A52

car and had called to him. Supposedly Burkhead would

have testified that there was a lapse of five to six seconds

after the tires of the Woodruff car quit screeching before

the crash when the Pomeroy-Teague truck hit it. Such

testimony would have tended to support the theory that

the Woodruff car had completely stopped in a position

of peril with time enough for Pomeroy to have avoided

the collision. Tomlin testified he had concluded that since

Burkhead was not at the accident scene he possessed no

knowledge material to the lawsuit. Tomlin further testi-

fied that he had no recollection of ever talking with

Burkhead and that he had no written statement from

him. There was a statement taken by an insurance ad-

juster on June 5, 1968 in which Burkhead made no estimate

of the lapse of time between the end of the skid and the

impact.

Charles Woodruff also testified that he told Tomlin

that a family friend, a mail carrier named McClendon,

had gone to the scene shortly after the accident and

stepped off the Woodruff skid marks. Charles Woodruff’s

son was with McClendon, and Tomlin was told that both

men would testify that the skid marks were 60 paces

long, approximately 180 feet. Charles Woodruff testified

that he told Tomlin of this evidence during the first trial

when an investigating officer testified that the skid marks

were 252-feet long. Woodruff said he reminded Tomlin

of the existence of this evidence before the second trial.

Mrs. Woodruff supported her husband’s testimony. Tom-

lin testified that he never heard of the Woodruffs’ son

or McClendon until the malpractice action was filed.

Our review of a judgment n.o.v. is governed by the

same rule which applies to an appeal from a directed

verdict granted at the close of all the evidence. We are

required ‘‘to view the evidence, as well as all inferences

properly deducible therefrom, in the light most favorable

‘ A53

to the plaintiff.” Campbell v. Oliva, 424 F.2d 1244, 1245

(6th Cir. 1970). A judgment n.o.v. should not be granted

“unless the evidence is such that there can be but one

reasonable conclusion as to the proper verdict.” Reeves

v. Power Tools, Inc., 474 F.2d 375, 380 (6th Cir. 1973).

While the determination of whether to call a particular

person as a witness at trial is a tactical decision involving

the exercise of professional judgment, the same cannot

be said concerning the failure to interview a potential

witness brought to the attention of an attorney by his

client. If the persons mentioned by Charles Woodruff

were prepared to testify as he believed they would, their

evidence would have been material to the issues in the

case. Without interviewing them Tomlin had no basis

for determining what they would testify to, if called, or

for making a judgment as to their effectiveness as wit-

nesses. Failure to follow leads furnished by a client which,

if fruitful, wouid supply significant support for the client’s

case is not the same as refusing “to use the trial tactics

insisted upon by the client... .” Stricklan v. Koella,

supra, 546 S.W.2d at 812. In Stricklan the attorney took

the depositions of witnesses as requested by the client.

However, the attorney concluded that the depositions

would be of no use in the trial and did not order them

transcribed and filed. This was an exercise of professional

judgment which is immune from a claim of malpractice.

The situation here was different.

Viewing the evidence in support of this claim in the

light most favorable to the plaintiffs, we conclude that

an issue was presented which required a determination

by the trier of fact. A jury could have believed that

failure even to determine the availability, accuracy, and

probable effectiveness of these witnesses constituted a

failure “to exercise reasonable skill and diligence in at-

tending to business intrusted in his care,....” In Re

A54

Woods, supra, 158 Tenn. at 389, 13 S.W.2d at 803. It was

error for the district court to grant judgment n.o.v. as

to this claim.

(6) FAILURE TO BRING TO THE ATTENTION

OF THE TRIAL COURT CERTAIN TENNESSEE STAT-

UTES AS A BASIS FOR HOLDING THE DEFENDANTS

LIABLE. Though he requested instructions on several

statutes defining duties of operators of vehicles on public

highways, Tomlin did not rely on Sections 59-854 and

59-859 of Tennessee Code Annotated. These statutes make

it unlawful to drive a vehicle so slowly as to impede

traffic or to stop a vehicle within 200 feet of the crest

of a hill. There was evidence that the defendant Lewis

Nobles, driver of the vehicle which did not collide with

either the Woodruff car or the Pomeroy-Teague truck, was

stopped in the highway or was proceeding very slowly

as the Woodruff car approached him from the rear. If

the jury had accepted this evidence, under proper instruc-

tions, it would have been required to find Nobles negligent

as a matter of law and would have had to decide only

questions of proximate cause and contributory negligence.

Though the defendants argued in the trial court and on

appeal that Nobles was negligent in blocking the highway

in front of Patricia Woodruff, thus setting into motion

the chain of events which culminated in her car being

struck by the Pomeroy-Teague truck, Tomlin gave no

explanation in this action for his failure to urge TCA

§§ 59-854 and 59-859 as establishing Nobles’ negligence.

The arguments on behalf of Joan Woodruff on appeal

would have been appreciably stronger if Nobles had been

shown to be negligent as a matter of law.

The Supreme Court of Tennessee further held in In

Re Woods, supra,

For loss to clients resulting from a want of proper

knowledge of matters of law in common use, or of

A55

such plain and obvious principles as every lawyer is

presumed to know, an attorney is liable, and he is

usually held to be liable for the consequences of his

ignorance or non-observance of the rules of courts

in which he practices, or for his ignorance of the

statutes and published opinions of his own state.

158 Tenn. at 390, 13 S.W.2d at 813.

We conclude that it was error to grant judgment n.o.v.

in favor of the defendants on this claim.

CONFLICT OF INTERESTS

The jury heard no evidence on the charge of mal-

practice based on alleged conflict of interests. Neverthe-

less, the district court included this claim in its judgment

n.o.v. We believe the true effect of the court’s action

with respect to this claim was that it granted summary

judgment for the defendants. The issue of conflict of

interests was thoroughly covered .n pretrial depositions

and the District Judge heard evidence on the issue out-

side the presence of the jury. We will treat the action

of the court as the entry of summary judgment on this

claim of malpractice.

The alleged conflict of interests arose from the fact

that Tomlin undertook to represent Tennessee Farmers

Mutual Insurance Company, Charles Woodruff, Patricia

Woodruff and Joan Woodruff. The interests of the insur-

ance company, the insured father and Patricia, who was

driving with her father’s permission, appear to have been

identical. The legal rights and obligations of all three,

insofar as the consolidated actions were concerned, were

the same. Thus this claim is centered on the continued

representation of the passenger, Joan Woodruff. As a

passenger, Joan had a potential claim against her sister

Patricia, which it would have been the duty of the in-

A56

surance company to defend. Though there is a dispute

as to whether the policy contained a family exclusion

which would have prevented Joan from recovering dam-

ages, the policy was never filed in the record. The dis-

trict court assumed there would have been coverage.

423 F.2d at 1289. The question is what duty was imposed

upon the attorney in this situation.

The plaintiffs argue that it was malpractice for Tomlin

to continue to represent Joan and that he had an absolute

duty to withdraw as her counsel if he continued to repre-

sent her sister, her father and his insurer. The plain-

tiffs’ expert, an Arizona attorney, testified to this effect

and gave several examples of how the multiple represen-

tation would be damaging. So far as this record reveals,

Tennessee has no rule which absolutely forbids multiple

representation. However, the attorney-client relationship

requires an attorney to be alert to potential conflicts and

to decline multiple representation when actual conflicts

develop. The Tennessee Supreme Court has adopted the

Code of Professional Responsibility. Disciplinary Rule

5-105(c), a part of the Code, provides in cases where

multiple representation is likely to involve him in repre-

senting differing interests, ‘‘a lawyer may represent multi-

ple clients if it is obvious that he can adequately represent

the interest of each and if each consents to the representa-

tion after full disclosure of the possible effect of such

representation on the exercise of his independent profes-

sional judgment on behalf of each.” 5A Tenn. Code Ann.

p. 119 (1978) (emphasis supplied).

We recognize that the Code of Professional Respon-

sibility ‘does not undertake to define standards for civil

liability of lawyers for professional conduct.” 5A Tenn.

Code. Ann. p. 89 (1978). Nevertheless, it certainly con-

stitutes some evidence of the standards required of attor-

neys. See Annot., Malpractice: Liability of Attorney

A57

Representing Conflicting Interests, 28 ALR 3d 389 (1969);

Crest Investment Trust, Inc. v. Comstock, 327 A.2d 891,

904 (Md. 1974); Lysick v. Walcom, 258 Cal. App.2d 136,

65 Cal. Rptr. 406, 414 (1968).

It is clear that the defendant Tomlin never advised

Charles Woodruff that Joan had a potential claim against

Patricia. It appears that Tomlin had no knowledge of a

family exclusion which would have prevented Joan from

recovering damages under her father’s policy, if such ex-

clusion existed. Tomlin testified that both Mr. and Mrs.

Woodruff were firm that Patricia was free of any negli-

gence and wanted to protect her from any inference of

responsibility. Further, Patricia had no memory of the

events surrounding the collision and Joan consistently

stated that it was not Patricia’s fault. On the other hand,

Charles Woodruff testified that he would have permitted

Joan to sue Patricia and that he did not know of this

possibility until after the trials were over.

Though it appears unlikely that Charles Woodruff

would have sought other counsel for Joan if he had known

of her potential claim against Patricia, this did not relieve

the attorney of his obligation to disclose the differing

interests and potential conflict. Woodruff’s testimony,

which must be taken as true for purpose of this appeal,

at least created an issue of fact on the question of conflict

of interests. The district court does not appear to have

held that there was no conflict in the multiple represen-

tation. Rather, it dismissed this claim on a finding that

it would be speculation for a jury to find that Tomlin’s

multiple representation affected the outcome of the trial.

423 F.Supp. at 1289. We think the harm to Joan may

be more than a different outcome of the trial of the action

against Pomeroy, Teague and Nobles. She may have lost

the opportunity for a recovery based on the negligence

of Patricia, remote as that possibility may appear.

A58

The speculative nature of the damages disturbed the

district court throughout the proceedings in this malprac-

tice action. This is understandable, given the Tennessee

rule that a client may only recover from an attorney for

malpractice if he shows that “but for” the malpractice

he would have been successful in the case in question.

A plaintiff's burden was stated as follows in Gay & Taylor,

Inc. v. American Casualty Co., 381 S.W.2d 304, 306 (Tenn.

App. 1963), cert. denied, (1964):

The burden of proving that damages resulted from

the negligence of an attorney, or from his failure to

follow instructions, in connection with the prosecution

or defense of a suit rests upon the client and usually

requires the client to demonstrate that, but for the

negligence complained of, the client would have been

successful in the prosecution or defense of the action

in question. 7 Am.Jur., Attorneys at Law, Sec. 188,

p. 156; Anno. 45 A.L.R.2d 21.

Nevertheless, causation is a jury question. Loftis v. Finch,

491 S.W.2d 370, 373 (Tenn. App. 1972), cert. denied,

(1973). The jury could determine, on the basis of expert

testimony, whether Joan suffered any injury in fact as

the result of Tomlin’s failure to advise her father of the

potential conflict of interests inherent in his representation

of all three plaintiffs and the insurance carrier. A trial

of this issue would produce evidence of the actual coverage

of the policy (whether there was an exclusion as to Joan)

and expert opinion as to whether Joan’s case against

Pomeroy and Nobles would have been strengthened if

she had been independently represented. Such evidence

will involve “second guessing.” Nevertheless, if the con-

cept of legal malpractice, recognized by the Tennessee

courts, is to be more than a mirage, plaintiffs who can

produce evidence of negligence or breach of fiduciary

responsibility by their attorneys must be given the oppor-

A59

tunity to show that they have been damaged. See Story

Parchment Co. v. Paterson Parchment Paper Co., 282

U.S. 555, 563 (1931). We do not believe that either the

holding in Stricklan v. Koella or the tenuous nature of

the connection between the attorney’s acts or omission

and financial injury creates an immunity from liability.

Some comment is required on Judge Merritt’s dissent.

His broadside attack on the court’s opinion misstates our

holding in several respects. —

(1) The court does not hold that T.C.A. §§ 59-854

and 59-859 would clearly apply to the facts of the Woodruff

case. What we do hold is that these statutes should

have been argued as one basis of the Woodruff claims.

The dissent concludes neither would have applied. We

merely say that they dealt with highway conduct remark-

ably like that of Lewis Nobles, and the Woodruffs are

entitled to have a jury determine whether Tomlin should

have used the statutes as the basis of a specific request

to charge the jury and a specific claim of error on appeal.

Tomlin never mentioned either statute beyond a reference

to § 859 in the original complaint.

(2) The court does not hold that Tomlin was re-

quired to call Burkhead and McClendon as witnesses.

If he had made an informed decision not to call them,

that would clearly have been a tactical decision not sub-

ject to question in the malpractice action. However, when

an attorney fails even to interview persons whom his

client has named to him as potential witnesses in support

of his case, the attorney has not exercised professional

judgment. He has merely neglected his client’s cause.

The record does not support the dissent’s conclusion that

Tomlin made a tactical decision or exercised his judgment

with respect to either potential witness. Mr. Woodruff

testified positively that Tomlin was told of Eddie Woodruff

A60

and James McClendon both during the first trial and

before the second trial. Mrs. Woodruff corroborated this

testimony. On a motion for judgment notwithstanding

verdict the trial court was required to resolve discrep-

ancies in the evidence in favor of the Woodruffs.

(3) The court does not hold that Joan should have

been persuaded to change her story to make out a claim

against Patricia. The evidence of breach of duty consisted

of Tomlin’s failure to advise Joan and her father of the

possible existence of a cause of action by Joan against

Patricia. All this court holds on the conflict of interests

issue is that the plaintiffs were entitled to have a jury

determine whether Tomlin’s failure to advise his clients

fully, in the light of his multiple representation, was

legal malpractice.

The dissent implies that the majority is encouraging

unethical conduct by suggesting that another lawyer might

persuade Joan to change her “consistent claim that her

sister was not at fault.” Of course, the majority makes

no such suggestion. Another attorney, without attach-

ments to Patricia’s insurance carrier, might have concluded

from Joan’s testimony that Patricia was, in fact, at fault.

What was important was not whether Joan thought Patricia

was at fault, but whether the facts testified to by Joan

would indicate legal liability on the part of Patricia. Inter-

estingly, in its restatement of the facts, the dissent says

that Joan’s testimony demonstrated that “Patsy Woodruff

panicked, slammed on the brakes and lost control of her

car.” A completely neutral lawyer hearing such testimony

might conclude that Joan, as a passenger, had a claim

against the driver.

Finally, the dissent completely ignores the fact that

we are reviewing a judgment notwithstanding verdict.

The decision of this court is not that Tomlin was guilty

A61

of malpractice or breach of duty, but that the Woodruffs

produced sufficient evidence to have their claims sub-

mitted to a jury.

The judgment of the district court is affirmed in

part and reversed in part. The cause is remanded for

a new trial on the issues of failure to contact potential

witnesses identified by Charles Woodruff and failure to

rely on the statutes previously referred to, and trial on

the issue of conflict of interests. All issues are to be

tried together. We express no opinion on the outcome

of the trial, but hold that the defendants were not entitled

to judgment n.o.v. or summary judgment on these issues.

Costs on appeal are taxed against the defendants-

appellees.

Weick, Circuit Judge, concurring and dissenting in part.

I concur in the reversal of the judgment of the district

court and in the remand for a new trial because of errors

of the district court in the exclusion of evidence and in

granting judgment for defendants n.o.v.

In my opinion, it is not the law of Tennessee as

asserted by Tomlin’s counsel, that an attorney who is

honest and acts in good faith is exempt from liability to

his client in a legal malpractice action for damages sus-

tained by the client as a result of the conflicts of interest,

negligent or improper conduct of the attorney in the in-

vestigation, trial, and appeal of his client’s case.

I do not understand that the amicus briefs filed by

the bar associations have endorsed any such proposition.

It is not the function of the federal judiciary in a

diversity case to innovate by establishing new and untried

principles of state law, which the state courts may later

repudiate.

A62

If an attorney in Tennessee with a conflict of interest,

who is honest and acts in good faith has a privilege

exempting him from liability for damages sustained by

his client as a result of the attorney’s conflict of interest

and negligence in handling his client’s lawsuit, then a

fortiori the same principle of law should apply to a

physician who is honest and acts in good faith and negli-

gently performs an operation on his patient which results

in injury to or in the death of his patient.

We have applied Tennessee law in holding physicians

liable in damages to their patients in medical malpractice

cases. O’Neill v. Kiledjean, 511 F.2d 511 (6th Cir. 1975);

Campbell v. Oliva, 424 F.2d 1244 (6th Cir. 1970). In

neither of these two cases did the physician have the

audacity to contend that he was honest and had a good

faith privilege to be exempt from liability. In malpractice

cases there is no reason for ever exempting attorneys

from liability without extending the same exemption to

physicians.

It should not be forgotten that a solemn relationship

of trust and confidence exists between an attorney and

his client which ought never to be betrayed. The public

ought not to be fearful of engaging the services of an

attorney who is exempted by law from liability for his

misconduct or negligence.

Reliance by the district court on Stricklan v. Koella,

546 S.W.2d 810, 814 (Tenn. App. 1976) cert. denied by

the Supreme Court of Tennessee for such an outrageous

proposition was misplaced as we pointed out in the unan-

imous decision of our panel (Edwards, Chief Judge,

Weick and Celebrezze) reported in 593 F.2d 33, 42-44.

Even if Koella supported the erroneous decision of the

district judge, which it does not, we would not be required

to follow it, because it would be contrary to decisions of

A63

the Supreme Court of Tennessee and Tennessee appellate

decision as we pointed out and is not supported by any

American decisions.

I agree also with the majority that the district court

erred in holding that the harm done to plaintiffs was

“sheer speculation” and therefore beyond the province

of the jury. There was abundant evidence of negligence,

improper practice and of expert testimony on causation.

A factual question existed for determination by the jury

and not by the district court.

Conflict of Interest

The record is clear, as we pointed out in our panel

decision, that the insurance company was obligated under

the provisions of its policy, to defend its insured Woodruff

and his two daughters in the suits filed against them

in the state court, by Teague for damages to his truck

and by Pomeroy for personal injuries alleged to have

been sustained by him in the collision as a result of the

negligence of Patricia, the driver and Joan, the passenger

in the automobile.

Woodruff, on the other hand, had a claim for damages

to his car against Teague, Pomeroy and Nobles. Woodruff’s

two daughters Joan, age 15 and Patricia, age 16, had

substantial claims against Pomeroy, Teague and Nobles for

terrible personal injuries sustained by the two girls as

a result of the negligence of the two truck drivers in

impeding traffic in both lanes of the public highway.

Leathers, the insurance adjuster, solicited all of these

claims for Tomlin. He told Woodruff that he should have

an attorney, that the statements of the witnesses were

inconsistent and were changing. Undoubtedly the purpose

of the solicitation was to help the insurance company in

the defense of the suits which Pomeroy and Teague were

A64

about to bring against the two girls for personal injuries

sustained by Pomeroy and property damage sustained by

Teague. Leathers recommended to Woodruff that he en-

gage Tomlin to represent his two minor daughters, Joan

and Patricia.

Acting on Leathers’ recommendation, Woodruff did

consult with Tomlin and retained him to represent his

two daughters. Leathers was not bound by any ethical

considerations but Tomlin, as an attorney at law, was

bound by the Canons of Professional Ethics of the Amer-

ican Bar Association, particularly Canons 6 and EC5-14

and EC5-15 set forth at length in our panel decision (593

F.2d 39, 30) which had been adopted by the Supreme

Court of Tennessee in 185 Tenn. 889.

As we pointed out in our panel decision, the Canons

required Tomlin to disclose to his clients at the time of

the retainer ‘‘all the circumstances of his relations to the

parties and any interest in or connection with the contro-

versy which might influence the client in the selection

of counsel.

It is unprofessional to represent conflicting interests

except by express consent of all concerned given after

full disclosure of the facts. Within the meaning of this

Canon, a lawyer represents conflicting interests when it

is his duty to contend for that which duty to another

client requires him to oppose.” (Opinions on Professional

Ethics, p. 22), See DR5-105, EC5-14, EC5-15, Volume 5A

Tennessee Code Annotated Pages 115 and 119, 185 Tenn.

889.

Tomlin at the time of his retainer never discussed

with his clients any of the circumstances of his relation

to the parties and any interest in or connection with the

controversy which might influence the clients in the selec-

tion of counsel. He never told Joan that she had a claim

A65

against her sister Patricia and that the investigation of

the insurance adjuster indicated that the statements of

witnesses were conflicting. When suits were filed in the

state court by Tomlin against Teague, Pomeroy and Nobles

in behalf of Joan and Patricia to recover damages for

their serious personal injuries and separate suits were

filed in the state court by Pomeroy and Teague against

the two girls for personal injuries sustained by Pomeroy

and damages to Teague’s truck allegedly caused by the

girls’ negligence, Tomlin never advised them that he had

a conflict of interest and that Joan should retain separate

counsel. The girls and their father were never informed

by Tomlin as to their rights and hence could not have

given an informed consent to Tomlin’s representing them.

These suits were all consolidated for trial in the state

court.

The failure of Tomlin to advise his clients of their

rights and his conflict of interest, his failure to advise

Joan and her father that Joan should obtain separate

counsel, and his failure to withdraw from the case when

the conflict became very obvious to him is responsible

for most of the damages resulting to Joan, Patricia and

her father as a result of Tomlin’s misconduct and negli-

gence.

The fact that Tomlin was honest and was acting in

good faith, as he claims, did not give him a license to

violate the ABA Canons of Professional Ethics as adopted

by the Supreme Court of Tennessee or authorize him to

represent clients when he had conflicts of interest which

he never disclosed to his clients.

There is Tennessee authority on this subject directly

in point. In Holcomb v. Steele, Tenn. Ct. of Appeals,

342 S.W.2d 236 (1958), cert. denied, by Supreme Court

of Tennessee, June 5, 1959, a firm of attorneys undertook

A66

to represent both the driver and the passenger of an

automobile in an action against the driver of another

car for personal injuries arising out of an automobile

collision between the two automobiles. The firm of attor-

neys neglected to advise the passenger of her rights to

sue her driver and even recommended that she accept

a $400 settlement of her claim against the other driver.

The passenger discharged the firm of attorneys she had

originally engaged and employed another lawyer who

filed suit against both drivers in behalf of the passenger

and her husband and recovered a compromise judgment

of $3000 against the other driver and $3000 against her

driver, and $4000 against both drivers were awarded in

favor of the passenger’s husband. The firm of attorneys

originally employed then intervened in the case asserting

that their client had no lawful right to discharge them

as attorneys and prayed for a lien on the proceeds of

recovery for their 50 percent contractual attorneys fee.

The appellate court found that the firm of attorneys

were negligent in their handling of the passenger’s case

by not suing her driver and breached their duty to prop-

erly advise their client of her rights against her driver.

The court denied attorney’s fees to the firm of attorneys.

The Court of Appeals stated:

The negligence of petitioner (the firm of attorneys)

and breach of their duty to properly advise and repre-

sent Mrs. Holcomb was a breach of their contract of

employment and a bar to their right to recover the

attorney’s fees sued for. P. 244.

In New Jersey, the Supreme Court issued a directive:

“The Supreme Court is of the view, because of the

conflict of interest inherent in the situation, that an

attorney should not represent both the driver of a

A67

car and his passenger in an action against the driver

of another car, unless there is a legal bar to the pas-

senger suing his own driver, as, for example, where

they are husband and wife, unemancipated child and

parent, or employees of the same employer and the

accident occurred in the course of their employment.

Where an attorney does represent both a driver and

his passenger and no such legal bar exists, if a cross-

claim or counter-claim is made by the other driver,

a conflict of interest arises and the Supreme Court has

advised the Assignment Judges that the attorney

should not be permitted to continue to represent either

the driver or his passenger.” 91 N. J. L. J. 68 (Feb. 1,

1968) And see Weinberg v. Underwood, 101 N. J.

Super. 448, 244 A. 2d 538 at 540 (1968).

In the present case, a conflict surely existed because

Pomeroy and Teague had cross-claimed against the two

girls for damages, for personal injuries and damages to

the truck.

If Joan had been represented by separate counsel, with-

out any conflict of interest and had included her sister Pa-

tricia as a party defendant in her suit in the state court

against Teague, a Pomeroy and Nobles, the jury could not

very well have returned a verdict against Patricia in favor

of Teague and Pomeroy based on Patricia’s negligence

without also returning a verdict in favor of Joan against

Patricia. As a matter of fact, it would have changed the

complexion of the entire case and could have resulted in

a verdict against both truck drivers who were blocking

both lanes of the highway.

The district judge in a pretrial conference, ruled that

in a malpractice action against an attorney, a claim for

conflict of interest could not be joined in the malpractice

claims of negligence against the attorney in his preparation,

A68

conduct of the trial and appeal of the case. The district

judge stated:

In any case, it appeared that this claim based on the

alleyed conflict of interest on the part of defendant

Tomlin should not be tried with the claims of negli-

gence in losing the lawsuits and therefore it was by

pretrial order, not dealt with at the trial.

This ruling was clearly erroneous. In the unanimous

panel decision we stated:

The District Court cites no authority for such a

proposition. This was a legal malpractice case. If

conflict of interest should not be dealt with in a mal-

practice case, where should it be dealt with?

Malpractice is defined in Webster’s New World Dic-

tionary of the American Language, College Edition,

with respect to persons other than physicians, as:

2. Misconduct or improper practice in any pro-

fessional or official position.

Negligence of an attorney in the investigation, trial,

and appeal of his client’s case is certainly improper

practice in his professional capacity; it is malpractice.

It is also malpractice for an attorney to represent

parties with conflicting interests, without his disclosing

all facts to his clients and obtaining their consent.

593 F. 2d 39

We further stated:

When the District Judge, in a pretrial conference, ruled

that conflict of interest could not be considered in a

legal malpractice case where negligence was also al-

leged, the plaintiffs petitioned our Court for a writ

of mandamus and prohibition to obtain relief from this

error.

A69

In an order entered July 8, 1976, we held that no appeal

lies from an interlocutory order except by leave of

court, and that mandamus is an extraordinary remedy

and can not be used as a substitute for an interlocutory

appeal. Woodruff v. Honorable Bailey Brown, No. 76-

1892, Court of Appeals, 6th Cir.

During the trial in the District Court plaintiffs again

raised the conflict of interest issue and proffered proof

which the District Court rejected, and declined to sub-

mit the issue to the jury, and finally dismissed the com-

plaint when it granted judgment n. o. v.

In this direct appeal we now have jurisdiction to hear

and to determine the issue of conflict of interest.

In our opinion it was prejudicial error for the District

Court at its pretrial conference to separate and remove

the issue of conflict of interest from other issues of

malpractice, and to deny the admission of relevant

evidence with respect thereto at the trial, and to de-

cline to submit the issue to the jury for determina-

tion. If the issue of conflict of interest has been sub-

mitted to the jury it could have produced a different

result.

593 F. 2d 40-41

The majority opinion agrees that it was prejudicial

error for the district judge to Separate from and decline

to try the issues of conflict of interest with the other mal-

practice issues in the case.

The Erroneous Instruction On Last Clear Chance

The state trial judge in the second trial ruled that

there was sufficient evidence of last clear chance to sub-

mit that important issue to the jury but unfortunately he

gave a clearly erroneous instruction which operated to

A70

defeat the plaintiffs’ case because he stated that “the

plaintiffs would be entitled to recover, provided they are

not guilty of contributory negligence that proximately

caused the accident.”

Where the doctrine of last clear chance is applicable

the plaintiffs are in a position of peril. There negligence

had ceased. The defendants saw the plaintiffs in a posi-

tion of peril and in the exercise of ordinary care could

have avoided the accident but the defendants neglected

to exercise such ordinary care. Contributory negligence

of the plaintiffs was no longer an issue in the case and

the court should have so instructed the jury.

Tomlin, as an insurance lawyer engaged in the defense

of personal injury cases must certainly be presumed to

know the Tennessee law on the issue of last clear chance,

yet he made no objection to the erroneous instruction or re-

quest to the state trial judge to change the instruction to

conform to Tennessee law. Nor did he assign the erroneous

instruction on last clear chance as error in the motion for a

new trial which he filed.

In our panel decision we stated:

This instruction was clearly erroneous. Under the doc-

trine of last clear chance plaintiff’s contributory negli-

gence had ceased. It was no longer a proximate cause.

The defendant saw the plaintiff in a positive of peril in

sufficient time that he could have averted the collision

had he exercised ordinary care.

The instruction of the trial court defeated the entire

purpose of the doctrine. It conflicted with a decision of

the Supreme Court of Tennessee in Vaughn v. City of

Alcoa, 194 Tenn. 449, 251 S.W.2d 304 (1952). It also

conflicted with our decision applying Tennessee law in

Smith v. Beattie, 346 F.2d 139 (6th Cir. 1965).

A71

It is argued that the erroneous instruction is supported

by an appellate decision in Smith v. Craig, 484 S.W.2d

549 (Ct. App. Tenn., cert. denied August 7, 1972). The

Supreme Court of Tennessee repudiated Smith v. Craig,

supra, in Street v. Calvert, 541 S.W.2d 576 (1976).

The trial judge, in giving the erroneous instruction, was

bound by the decision of the Supreme Court of Ten-

nessee in Vaughn v. City of Alcoa, supra, rather than by

an erroneous decision of an inferior appellate court.

Tomlin did not ever object to the erroneous instruction

in the state court trial, nor request the court to change

it. He did not assert it was error in a motion for a new

trial filed in the state court, nor did he assign it as

error in the state court of appeals.

593 F.2d 41

Tomlin’s partner prepared the appellate brief. The

partner did not assign as error the erroneous instruction on

last clear chance because Tomlin had not included it in

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