## Facts

- Several owners of an 11.5-acre commercially zoned parcel faced financial distress, including delinquent interest, unpaid taxes, and lien pressures, and their bank considered foreclosure.
- A buyer group agreed to purchase the property for $950,000 with a large credit to cover the sellers’ bank obligation, but the bank would not accept a simple sale without significant cash and found most buyers not creditworthy.
- The parties used attorney Timothy Carpenter to structure a transaction designed to satisfy financing constraints.
- Carpenter drafted a joint venture arrangement and later converted it into a limited partnership, shifting the sellers from secured creditors with repayment priority to investors whose return depended on the venture’s success.
- The buyer-related entities failed and entered bankruptcy; the sellers recovered far less than expected.
- The sellers sued Carpenter for legal malpractice, alleging negligent structuring and undisclosed or inadequately consented-to dual representation of both seller and buyer interests.

## Issues

1. In a legal malpractice action, may the jury be informed of the Code of Professional Responsibility or Rules of Professional Conduct through expert testimony explicitly citing those rules or through jury instructions setting them out?
2. Did the trial court err by refusing a “real estate specialist” heightened standard-of-care instruction?
3. Did the trial court abuse its discretion in excluding certain evidence and in giving damages and contributory-negligence instructions, or by allegedly commenting on the evidence?
4. Was denial of postverdict relief (JNOV or new trial) erroneous?

## Decision

- The Washington Supreme Court affirmed the defense verdict and upheld the exclusion of explicit references to the CPR/RPC in expert testimony and jury instructions.
- The court held the applicable standard is the common-law “reasonably prudent lawyer under similar circumstances,” not an ethics-code standard presented to the jury.
- The court upheld refusal of a separate “real estate specialist” standard instruction.
- The court found no reversible error in the challenged evidentiary rulings, damages and contributory-negligence instructions, alleged judicial comment, or denial of JNOV/new trial.

## Legal Principles

- Professional-conduct rules are disciplinary in purpose and are not intended to define standards for civil liability.
- In malpractice cases, the jury should not be instructed on, nor shown, the CPR/RPC as the governing standard of care.
- Expert witnesses may testify about what a reasonably prudent attorney would do; they may not explicitly cite or quote the CPR/RPC to the jury as the measure of negligence.
- An attorney’s claimed specialization may be relevant to reasonableness under the ordinary negligence standard but does not require a distinct “specialist” standard-of-care instruction.

## Conclusion

The court kept legal-malpractice liability tied to common-law negligence and barred presenting ethics rules to the jury as a direct yardstick of breach, affirming the verdict for the attorney and rejecting related instructional and evidentiary challenges.


Hizey v. Carpenter, 119 Wn.2d 251, 830 P.2d 646 (Wash. 1992)