Update (September 9, 2014): The logic goes like this: Computer programmers clearly engage in complex and commonly define themselves as “professionals,” but unlike traditional professions (lawyers, doctors, architects, accountants), while practitioner associations exist for computer programmers, there is no substantial self-regulation or standardization of training within the programming or consulting professions. Therefore, many courts have held there is no professional negligence cause of action against computer software system designers/programmers.
So, you see, the law does not focus on how completely dependent and vulnerable American businesses are on technological experts who are, in essence, architects of enormous, critical, and complex edifices of code. The law does not focus on American business’ vulnerability to incompetent computer software system sellers and programmers who boast capability, experience, or expertise which some of them do not have. The law does not focus on the otherwise possibly unrecoverable and staggering losses that the hucksters impose. Rather, they focus on the fact that there is no uniform credentialing, no standardization of training, no self-regulatory system to deny any professional malpractice actions against those who do not know what they are doing.
One might think that this total lack of any credentialing or oversight over an industry that holds so many businesses by the throat would favor rather than foreclose establishment of a professional negligence tort against them but one would be wrong…
I guess the point is that one cannot breach professional standards where there are none.
Caveat emptor, big time…
Update (September 17, 2012): Let’s say that a service provider (a computer technician, for example) provides a vital service that requires years of training and experience and that, if performed negligently, can cause devastating consequences for customers. Is that enough to warrant imposing “professional liability” for this service provider’s negligence?
No. A Michigan law firm brought an action for professional negligence against ThomsonReuters Findlaw for allegedly severing the line between the firm’s “client leads” and the firm but U.S. District Court Judge John R. Tunheim (D. Minn.) granted Findlaw’s motion to dismiss. Judge Tunheim cites “one leading treatise” as support for the proposition that “[m]ost practitioners in computer consulting, design, and programming do not fit a model that creates malpractice liability,” a treatise published by… (wait for it) …
(Some readers may wonder, “What difference does it make whether computer techs can or cannot be sued for ‘professional negligence’? Why not just sue them for negligence?” The answers are many but the one significant problem may be the “economic loss doctrine” by which one cannot normally sue someone for negligence for damages that arose in the context of a contractual relationship.)
(Other readers might take issue with any suggestion that citing authority published by a party to the litigation that supports the party’s position in the litigation is somehow improper, suspect, or dubious. (After all, what else is ThomsonReuters supposed to cite?) Point taken. Minnesota Litigator just notes the irony or the “optics.”)
Original Post (January 16, 2012): (Under the subject Line: “When The Medium Between Buyer & Seller Is Cloudy”):
Lawyers, and many businesses small and large around the world, of course, are increasingly connecting with their “customers” via the internet.
There can be a murky ether between buyers and sellers in the amorphous and indistinct cloud that is the internet. Increasingly, by accident or design, there can be third-party interference between buyers and sellers.
Google is in hot water in Kenya for allegedly posing as a competitor to steal the competitor’s business – a maneuver that was considerably more difficult when people had a better idea of who they were dealing with.
Closer to home, a small Ann Arbor, Michigan law firm has filed suit against ThomsonReuters for allegedly stepping on the air-hose of the law firm’s business by essentially unplugging the firms connection to its on-line lead-generator.
The complaint states claims for “professional negligence” and “breach of contract,” both of which, one may confidently predict, will encounter a response invoking the economic loss doctrine, limitation on consequential damages, and then some.
On the other hand, this cannot be the kind of PR that ThomsonReuters’ “Findlaw” would want.
Seth Leventhal is a Minnesota civil litigator with experience in cases brought for professional malpractice and makes a point, when bringing them, to bring them against professionals.