General Practice, Solo & Small Firm DivisionMagazine

Volume 17, Number 2
March 2000




Legal malpractice claims have proliferated in recent years. An important issue in many of these cases is whether failure to comply with the ethical rules should be admissible as evidence against a lawyer.

Background. The ABA has promulgated three successive sets of rules of professional conduct. In 1908, the ABA set forth the Canons of Professional Ethics, which primarily served a symbolic function. Recognizing the need for more effective discipline, the ABA adopted the Code of Professional Responsibility in 1969. In 1983, the ABA adopted the Model Rules of Professional Conduct. Most states have adopted some version of the Model Rules of Professional Conduct. Some states still keep a version of the older Model Code of Professional Responsibility. It is generally understood that the purpose behind creating the ethical rules was to guide lawyers in their behavior and provide a method to discipline those who behave improperly. In fact, the language prefacing both sets of ethical rules indicates that they are not to be used to impose civil liability.

Admissibility of Evidence of Ethical Violation. Lawyers who still believe that the violation of an ethical rule can only be used against them in a disciplinary proceeding are mistaken. Of courts that have addressed the issue, the overwhelming majority holds that evidence of an ethical violation is admissible in a malpractice action. The underlying rationale in allowing this evidence often comes from the idea that the rules are designed to set a minimum level of competency, and that any behavior that does not conform to them is evidence that the standard of care was breached. 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 lawyers, and that if a lawyer 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 help prove the lawyer breached a duty to the client. Consequently, most courts allow the admission of a lawyer's failure to comply with an ethical standard as "some evidence" of malpractice. While the failure by itself does not establish a cause of action, it is valuable for establishing that the lawyer had a duty to the plaintiff, and to show the standard of care required of all lawyers, and that if the standard was not met, the lawyer did not act competently.

Violation as Presumption of Malpractice. Some courts have held that a breach of the ethical rules is presumptive evidence of legal malpractice. Many of these courts have analogized the violation of the ethical rules to the violation of a statute or ordinance.

Violation as Conclusive Evi-dence of Malpractice. A few courts have indicated that the violation of an ethical standard is conclusive evidence that a lawyer breached the standard of care to his or her client. 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. Besides California, no other state has expressly held that violation of an ethical rule is conclusive evidence of negligence. However, a few courts have indicated in dicta that they might also choose this route.

Minority Rule: Complete Inadmissibility. It appears that only Arkansas and the State of Washington have held that the violation of an ethical rule is completely inadmissible in a lawyer malpractice action. In an Arkansas case, the state's supreme court upheld the trial court's exclusion of the ethical rules without much discussion of its rationale, finding that the rules were designed for discipline and not civil liability. In a Washington case, the state's supreme court relied on public policy reasons as a rationale, observing that the plaintiffs had other common-law remedies available and could support a malpractice action without relying on the ethical rules as evidence. These cases are a distinct minority and will not carry the day in any courts outside Washington State and Arkansas.

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. Although the language prefacing the ethical rules states that they are not to be used to impose civil liability, courts overwhelmingly allow this evidence in civil malpractice suits. When they do, however, the violation is used to show whether the lawyer fell below the standard of care. No court has found the violation of the rule itself to be an independent cause of action.

Compliance with Ethical Rules as Defense. Another issue is whether a lawyer can use the fact that he or she complied with ethical rules as a defense to a malpractice action. In Nix v. Whiteside, the U.S. Supreme Court addressed the issue of a lawyer 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 lawyer'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." Nix involved a criminal appeal for ineffective assistance of counsel. While not directly on point, the inference to be drawn from Nix is that a lawyer 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. While discussing what evidence can be offered in a legal malpractice case, it makes sense to discuss what evidence must be offered. The general rule in legal malpractice cases is that expert testimony is ordinarily required to establish a prima facie case of attorney malpractice. In fact, it may be malpractice to try a malpractice case without expert testimony. 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 lawyer 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. Courts have also strictly limited a lawyer's use of releases to preclude malpractice actions. To be effective, the release must be supported by consideration and the lawyer must advise the client in writing that independent representation should be sought before settling and signing the release. The lawyer bears the burden of proving the validity of the release by showing that it was fair and reasonable.

Certain types of practices and specialties carry a greater risk of a malpractice suit. A 1990-95 Amer-ican Bar Association survey found that the largest percentage of malpractice claims was asserted against plaintiff personal injury attorneys. Real estate law accounted for the next highest percentage, followed by business transactions and family law. An older study revealed that litigation activities accounted for 52.8 percent of all malpractice claims.

One area of malpractice concern relates to attorney specialization. The trend is toward imposing a more stringent particularized standard of care on specialists. Accordingly, lawyers who hold themselves out as specialists must generally measure up against "other specialists of ordinary skill and capacity specializing in the same field." Any lawyer practicing outside his or her area of expertise needs to be aware that the ethical rules requiring competent representation may require more than minimum competence. It may be a breach of the ethical rules, in certain situations, not to have the skill of a specialist.

Douglas L. Christian, a shareholder in Lewis and Roca, LLP, in Phoenix, Arizona, maintains an active litigation practice and is a past president of the Arizona Association of Defense Counsel. Michael Christian is an associate with Lewis and Roca.

For more Information About the Tort and Insurance Practice Section

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