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St. Mary's Law Journal

Abstract

The last two decades have witnessed the creation of a perilous liability environment for lawyers and law firms. Most discussions of lawyer liability begin with “legal malpractice,” a term which typically describes professional negligence. In a malpractice case, the plaintiff must prove the lawyer owed them a duty, the duty was breached, and the breach was the proximate cause of actual damages. The lawyer’s duty flows from the attorney-client relationship. But, the attorney-client relationship is also a fiduciary one, and lawyers may be sued for breach of the fiduciary duty. While these two causes of action are usually alleged simultaneously, the two theories do not necessarily overlap. While breach of duty is a question of competency and diligence, breach of a fiduciary duty requires breach of confidence and loyalty. In malpractice litigation, expert testimony is usually required to establish baseline standards of care, except in cases where jurors’ common knowledge can adequately establish these standards. During such testimony, it is usually the ethical rules on which experts base their opinions. However, well-regarded advocates and scholars argue ethics rules have no place in civil litigation against lawyers. A lawyer’s alleged violation of an ethics rule does not create a private right of action. Still, the argument claiming ethics rules have no place in litigation against lawyers is counterintuitive. Ethics rules clearly do establish standards of conduct for lawyers, and it is logical for a lawyer’s violation of a rule to be relevant to the standard of care. Most states consider ethics rules relevant to the standard of care for lawyers. The remaining jurisdictions will likely join the majority because the reasons offered against ethics rules’ relevance are simply unpersuasive.

Publisher

St. Mary's University School of Law

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