Ethics and Legal Malpractice

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

Related Essays

Legal Malpractice .... Note, The Evidentiary Use of the Ethics Codes in Legal Malpractice: Erasing a Double Standard. 109 Harvard Law Review 1102-19 (1996). .... (6658 27 )

Legal Malpractice and Arbitration .... A District of Columbia ethics opinion issued after .... that any agreement to arbitrate malpractice claims was .... the client obtained independent legal advice prior to .... (3702 15 )

Arbitration and Legal Malpractice .... ethics opinion issued after this case was decided held that a client must obtain independent legal advice concerning any agreement to arbitrate malpractice .... (3241 13 )

Animal Legal Rights .... depend on legalities to determine morality and ethics. Animals' legal rights consist primarily of protection from .... hampered by the same malpractice suits that .... (557 2 )

Malpractice Litigation .... the principal cause of this increase was an inadequate legal structure for medical malpractice. .... 21 Clinical Ethics ..... .... (9434 38 )

d by the judiciary in disciplinary proceedings. Courts have also expressed concerns about the applicability of specific ethics code provisions to malpractice actions. This fear is based upon the fact that many of the state provisions, and the ABA provisions upon which they are modeled, are too vague in language to use as more than general guidelines in malpractice actions. If used too specifically, they could mislead juries. In specific circumstances, the jury may infer malpractice liability from code violations even though the standard of care derived from the code was too broad to fit the particular situation. Opponents also point to the incongruity between disciplinary proceedings and malpractice actions. The most important difference is the fact that the two actions prescribe two different levels of conduct. The ethics codes used in disciplinary proceedings prescribe a minimum level of conduct below which an attorney cannot fall without being subject to disciplinary action. Malpractice liability, on the other hand, "is premised on the conduct of the 'reasonable lawyer.'" Thus, the standards set forth in the ethics codes may be too lenient to be used in malpractice actions and courts have suggested that the two

Category: Government - E