The Relationship Between Codes of Ethics and Liability for 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 determine whether liability for legal malpractice should be based upon violations of ethics code provisions. The first part of the paper will discuss the traditional bases of liability for legal malpractice. The second part of the paper will look at composition of ethics codes and disciplinary rules. The third part of the paper will examine the traditional arguments that ethics codes are not intended to serve as bases for legal malpractice liability. The fourth part of the paper will discuss the arguments in favor of using ethics codes as bases for liability.
The Basis of Liability for Legal Malpractice
As with physicians, attorneys have long been subject to malpractice liability, with the first known legal practice case being brought in 1796. The traditional basis for legal malpractice liability, as well as other forms of professional malpractice liability, has been in tort law, specifically negligence. In defining the duty owed by an attorney to his or her client, courts have articulated variations on the following standard of care: An attorney should exercise the skill and knowledge ordinarily possessed by attorneys under similar circumstances. Among the variations which have been expressed are the following: (1) "The correct standard of care to which the plaintiff is held in the performance of his professional services is that degree of care, skill, diligence and knowledge commonly possessed and exercised by a reasonable, careful and prudent lawyer in the practice of law in this jurisdiction." (2) "The standard of care to be applied to an attorney in his relationship to his clients is the care, skill and ...