Playing by the rules: Violations of ethics rules as evidence of legal malpractice

I.

INTRODUCTION

For lawyers, the relationship between professional responsibility and professional liability is the two unsettled and unsettling. As lawyers receive increasingly critical public scrutiny, the lines between attorney disciplinary combination of parts to form a wholes and the civil justice combination of parts to form a whole have become blurred. Clients await and deserve accountability - accountability not sole for professional negligence but also for the way attorneys behave.

The sum of two units systems that regulate lawyer guidance discipline and civil justice, actually encompass three distinct universals of accountability: aspirational standards, professional self-regulation, and a standard of care for providing legal services. Aspirational goals historically have been codified alongside mandatory controls of professional conduct. Consequently, what attorneys regard as a "lawyer code" is really an eclectic collection of pronouncements upon everything from competence to civility. None of these commands was intended to serve as a basis for imposing civil liability on a lawyer for its violation. Explicit contrary admonitions notwithstanding, these commands of conduct have been used through lawyers and courts as a springboard for establishing, or at least analyzing, the standard of care for lawyers in malpractice cases. The rationale for the evidentiary admissibility of professional leadership rules and the circumstances below which they are admissible form the make submissive of this article.

A. Malpractice

Civil redres for legal malpractice has existed in the United States for above two hundred years.2 In new years, malpractice claims have proliferated, perhaps to be paid to changing client attitudes, complexity of practice, willingness of lawyers to solicit other lawyers, and the existence of lawyer errors and omissions insurance.' The total awards for compensatory and punitive damages in legal malpractice cases approaches 54 billion dollars each year.4

Lawyer malpractice actions greatest in quantity commonly arise from allegations that a lawyer negligently handled a client's legal matter.5 To establish a claim for legal malpractice, a client must establish: (1) a what one is bound [i]or[/i] under obligation to do owed by the lawyer to the client; (2) breach of the duty; (3) damage to the client; and (4) causation between the breach and the damages.6 To establish that a what one is bound [i]or[/i] under obligation to do was breached, a plaintiff must establish the relevant standard of care. Since the promulgation of ethics lordships plaintiffs have offered those masterships as evidence of the applicable standard of care.' An important issue in many of these cases is whether the failure to comply with ethics lordships should by admissible evidence against a lawyer.

The American Bar Association has promulgated three successive places of rules regulating professional administration for lawyers. In 1908, the ABA established the Canons of Professional Ethics. The Canons were prescriptively general and serv a largely symbolic function. Recognizing the ne for more effective discipline, the ABA adopted the collection of laws of Professional Responsibility in 1969 greatest in quantity states quickly followed, adopting a version of the collection of laws Finally, the ABA adopted the archetype Rules of Professional Conduct in 1983 The archetype Rules articulated an expanded and more comprehensive put of rules. Most states have adopted more [i]or[/i] less version of the Model empires of Professional Conduct, although a certain quantity of states maintain a version of the older mould Code of Professional Responsibility.' For simplicity, this article will concern applicable state rules as "ethics rules" and the archetype Rules of Professional Conduct as the "Model Rules"

C Relationship Between Malpractice and Ethics masterships

It is generally understood that ethics lordships are adopted to guide lawyers in their professional conduct; they provide a benchmark for disciplining those lawyers who behave improperly. by the agency of contrast, the language prefacing the protoplast

Rules indicates that they are not to be used to impose civil liability.9

1 Arguments Against Use of Ethics lordships as Evidence of Malpractice The pattern Rules state:

Violation of a dominion should not give rise to a cause of action nor should it create any presumption that a legal what one is bound [i]or[/i] under obligation to do has been breached. The controls are designed to provide guidance to lawyers and to provide a construction for regulating conduct through disciplinary agencies. They are not designed to be a basis for civil liability. Furthermore, the end of the Rules can be inverted when they are invoked by means of opposing parties as procedural weapons. The fact that a mastery is a just basis for a lawyer's self-assessment, or for sanctioning a lawyer beneath the administration of a disciplinary authority, does not imply that an antagonist in a collateral proceeding or transaction has standing to seek for enforcement of the Rule. Accordingly, nothing in the directions should be deemed to augment any substantive legal what one ought to do of lawyers or the extra-disciplinary events of violating such a duty"

Courts have tendered several other arguments against the evidentiary receipt of ethics commands in malpractice cases. For example, it has been indicateed that the rules were designed for use in disciplinary proceedings, not in malpractice actions." This dichotomy makes a certain number of sense since the two different impressed signs of proceedings impose different evidentiary loads In a disciplinary proceeding, for example, a lawyer can be sanctioned smooth if the ethics violation caused no damage to the client and would not support a civil action." Because a control violation is arguably demonstrated more easily in a disciplinary proceeding, it is inappropriate to use the ethics commands or evidence of their breach in a civil proceeding.