General Practice, Solo & Small Firm DivisionMagazine

Tort and Insurance Practice

Twice Bitten: Violations of Ethical Rules as Evidence of Legal Malpractice

By Douglas L. Christian and Michael Christian

Since the adoption of the ethical rules, many suits have arisen where the breach of an ethical rule was offered as evidence of attorney malpractice. An important issue in these cases is whether failure to comply with the ethical rules should be admissible as evidence against an attorney. Of courts that have addressed the issue, the overwhelming majority hold that evidence of an ethical violation is admissible in a malpractice action. Assuming admissibility, the next logical question is the effect that this evidence has once admitted.

Majority Rule. The majority of courts have held that the ethical rules can be used to show the standard of care for attorneys, and that if an attorney failed to meet the standard it is evidence that the applicable standard of care owed to the client has been breached. Typically, these cases hold that the breach of an ethical standard does not establish a cause of action by itself, but can be used to establish that the attorney had a duty to the client, to show the standard of care required of all attorneys, and that if the standard was not met, that an attorney did not act competently.

Violation as Presumption of Malpractice. Some courts have held that a violation of an ethical rule creates a rebuttable presumption of malpractice that shifts the burden of proof from the client to the attorney. Courts reason that the ethical rules are a standard of practice for attorneys that expresses the standards of professional conduct expected of lawyers in their relationships with the public, the legal system, and the legal profession, and that it would be unfair to not allow an attorney’s client to rely on his or her attorney to abide by those standards.

Violation as Conclusive Evidence of Malpractice. A few courts in California have indicated that the violation of an ethical standard is conclusive evidence that an attorney breached the standard of care. These courts typically rationalize that legal duties are firmly established by the ethical rules and that violation of an ethical duty is determinative of negligence. One court has held that the state ethical rules conclusively established the attorney’s duty of care, and that any expert testimony contrary to the rules would be disregarded. In another case, the court admitted evidence that an attorney had violated ethical standards by breaching a fiduciary duty to his client, holding that because the ethical rules define an attorney’s duties to his client, they could properly be used by the jury to measure whether the attorney had breached his fiduciary duty.

Minority Rule: Complete Inadmissibility. Only Arkansas and Washington have held that the violation of an ethical rule is completely inadmissible in an attorney malpractice action. In the Washington case, the state supreme court held that a plaintiff may not inform the jury of the existence of the ethical rules in a legal malpractice action, either directly through jury instructions or by the testimony of experts. The court examined the analogy between ethical standards and statutes or administrative regulations. In many jurisdictions the violation of a statute or administrative rule is admissible as evidence of negligence, and sometimes is admissible as negligence per se. The court distinguished statutes as being created through the legislative process, while ethical rules are judicially created. The court reasoned that since the ethical rules were not designed to impose civil liability, they are too vague to establish the basis for the standard of care in a malpractice action.

Independent Action Based on Rule Violation. On occasion, a lawyer may be sued not for committing malpractice, but for violating an ethical rule. The question then arises whether the violation of an ethical rule, by itself, can form the basis for a lawsuit. To date, no court has found the violation of the rule itself to be an independent cause of action. While case law discussing whether the violation of an ethical rule is actionable outside a malpractice action is fairly limited, the court in Baxt v. Liliola addressed this precise issue. In Baxt, the plaintiffs were unable to bring a malpractice action because the attorneys who violated the ethical rules were representing their adversary in the underlying lawsuit. Instead, they sued the attorneys for willfully obstructing discovery and acting dishonestly. Plaintiffs asked the court to recognize a cause of action premised upon a breach of the ethical rules. The New Jersey court held that a violation of the ethical rules, standing alone, cannot form the basis for a cause of action.

Compliance With Ethical Rules as Defense. Another issue is whether an attorney can use the fact that he or she complied with ethical rules as a defense to a malpractice action. In Nix. v. Whiteside, the Supreme Court addressed the issue of an attorney who complied with the ethical rules and refused to allow his client to offer false testimony. The client was subsequently convicted and appealed based on ineffective assistance of counsel. The Court discussed the attorney’s duty to his client and held that the duty is "limited by an equally solemn duty to comply with the law and standards of professional conduct." While not directly on point, the inference to be drawn from Nix v. Whiteside is that an attorney is justified in following the ethical rules, even if his or her client expresses a different desire. Consequently, it seems likely that compliance with the ethical rules could be raised as an affirmative defense in a malpractice action.

General Pitfalls and Warnings. The general rule in legal malpractice cases is that expert testimony is ordinarily required to establish a prima facie case of attorney malpractice. The exception to this general rule is when the alleged act of malpractice is clear and obvious, exceptionally egregious, or so easily understandable that laypersons can determine for themselves whether the attorney breached the standard of care.

In trying to avoid or settle a malpractice claim, lawyers may consider the use of a release or disclaimer. However, the Model Rules of Professional Conduct place strict limits on the use of these contractual tools and an attorney cannot put a malpractice disclaimer in a retainer agreement. Releases may be used to settle existing malpractice claims. To be effective, the release must be supported by consideration and the attorney must advise the client in writing that independent representation should be sought before settling and signing the release. The attorney bears the burden of proving the validity of the release by showing that it was fair and reasonable.

Because specialization has become increasingly accepted as a reality of law practice, the trend is toward imposing a more stringent particularized standard of care on specialists. Lawyers who hold themselves out as specialists must generally measure up against "other specialists of ordinary skill and capacity specializing in the same field." In fact, a generalist may also be compared to specialists in a given field when he handles a matter within a complex area of the law, and one court has explicitly held that a general practitioner should either refer such a case to a specialist or consult with one.

Douglas L. Christian is a shareholder in Lewis and Roca, LLP in Phoenix, Arizona. Michael Christian is an associate with Lewis and Roca.

- This article is an abridged and edited version of one that originally appeared on page 62 in The Brief, Spring 1999 issue (28:3).

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