Legal Malpractice

This paper will examine attorneys' liability for malpractice and the relationship between this liability and the codes of ethics enacted by the states and the American Bar Association (ABA). The specific purpose of this paper is to argue that violations of ethics code provisions should be admissible as evidence of liability for legal malpractice. This view is not based upon any major problem with the current structure of either malpractice liability or the disciplinary system. Rather, it recognizes that there are some similarities in the laws of the two subject areas. Maintaining complete separation between the two areas so far as to deny a plaintiff use of a violation of an ethics code provision as evidence in a malpractice action defies common sense. As will be explained below, the ethics codes have created a much lower standard than malpractice laws based on tort principles. Consequently, violation of ethics code provisions requires more egregious behavior than that necessary for malpractice liability. Therefore, it is logical to allow a plaintiff in a malpractice action to show that the defendant's behavior violated a relevant ethics code provision as part of his case.

The first part of the paper will establish a background to the argument by discussing the traditional bases of liability for legal malpractice. The second part of the paper will look at composition of ethics codes and d