Impact of ethical rules and other quasi-standards on standard of care.

• Author: Sullivan, James I.
• Position: Legal malpractice

A JURY'S determination of the propriety of the professional conduct of an attorney in a legal malpractice action requires a finding of fact that the defendant deviated from the standard of care applicable to attorneys. The evolution of that standard of care has come to include the invocation of both judicially adopted rules of professional conduct and recommendations and guidelines promulgated by intraprofessional associations and writers. What these "quasi-standards" are and how courts and juries utilize them as a means of guiding and aiding their determination of the propriety of an attorney's professional conduct are the subjects of this article.

STANDARD OF CARE

1. General Standard of Care

   The fundamental concept of a general standard of care is essentially an unchanging principle that proscribes negligent or other wrongful conduct on the part of the attorney. The general standard attaches with the commencement of the attorney-client relationship. Determination of this standard, as well as the interrelated concept of "duty," is exclusively the function of the court, rather than the jury.(1)

   Articulation of the general standard in legal malpractice cases, although lacking in complete uniformity, may be expressed thus: "The attorney should exercise the skill and knowledge ordinarily possessed by attorneys under similar circumstances."(2)

2. Specific Standard of Care

   The breadth of the general standard of care renders it unusable as definitive of what an attorney should or should not have done in a given case, particularly if the question is to be determined by a jury. Refinement of the general standard to a specific standard, which is a jury function,(3) is required in virtually all cases. In the legal malpractice context, this is accomplished through jury determination of the "similar circumstances" and other factors present in each case.(4)

   Given the often inordinate complexity of legal malpractice cases, particularly those in which the plaintiff's burden includes proof of the "case within a case,"(5) the transition from the general to the specific standard of care will require careful control by the court of evidence of the standard to which a jury is exposed. The problem may be aggravated by the fact that courts have not been as ready, at least until recently, to require expert testimony on the legal malpractice standard of care as they have been in medical malpractice litigation.(6)

   ETHICS RULES AND THE LEGAL MALPRACTICE STANDARD OF CARE

1. Impact Generally

   A relatively recent development in the law of legal malpractice is the increasing tendency of courts to cite or discuss ethical codes and rules--such as the American Bar Association Model Code of Professional Responsibility (1969) and its successor Model Rules of Professional Conduct (1983)--that have been adopted with some variations as a basis for lawyer discipline in virtually all states. Although initially aimed primarily at breaches of fiduciary obligations, the 1969 code introduced rules regarding professional negligence, which probably gave impetus to their expanded use in civil actions. Difficulties in applying disciplinary rules in legal malpractice actions result in large measure from the fact that the bases for invoking disciplinary action and implementation of the proceeding itself vary significantly from civil action principles.(7)

   Analysis of the legal malpractice standard of care frequently requires consideration of the potential impact of ethical rules. The rules become relevant in those situations in which the attorneys must choose their course of conduct with an eye on the ethical dictates prevailing in their jurisdictions. The California case of Kirsch v. Duryea(8) demonstrates that attorneys may insulate themselves from liability by selecting an alternative course of action required by applicable ethical rules.

   One issue before the California Supreme Court in that legal malpractice case was the propriety of the attorney-defendant's withdrawal from underlying medical malpractice litigation. The court relied on California's Rule of Professional Conduct 2-111(A)(2), which provided:

   A member of the State Bar shall not withdraw

   from employment until he has taken reasonable

   steps to avoid foreseeable prejudice to the rights

   of his client, including giving due notice to his

   client, allowing time for employment of other

   counsel, delivering to client all papers and prop-

   erty to which the client is entitled, and complying

   with applicable laws and rules.

   The court rejected the plaintiff's contention that the attorney had delayed overlong in withdrawing after he had concluded that the underlying case was meritless, holding that the delay reflected proper compliance with the rule, rather than an absence of due care.(9)

2. Requirement of Consistency with Common Law

   Ethical rules relating to the attorney-client relationship generally are held to state the common law principles of liability accurately and are therefore readily invoked as closely relevant to, if not the codification of, the standard of care, particularly in cases involving an alleged breach of fiduciary duty.(10) It is likely in these cases that if a Model Code or Model Rules provision is found applicable, it will be utilized as the comprehensively articulated standard of care to which the defendant will be held.(11) It is important to note, however, that the basis for liability remains the common law rather than the ethical rule.(12)

   Courts have been considerably more reluctant to adopt ethical regulations as probative of the standard of care in cases involving alleged liability to third parties.(13) Similarly, actions by former clients for a non-fiduciary breach of duty--for instance, actions for professional negligence--generally are unsuccessful if they rely solely or principally on the breach of an ethical rule.(14)

   The reluctance of courts to recognize ethical rules as an independent basis for actions for professional negligence also probably results from a perceived incongruence between the earlier Model Code and common law principles of professional negligence liability. An example of this is DR 6-101 of the Model Code, which stated:

   (A) A lawyer shall not:

   (1) Handle a legal matter which he knows or

   should know that he is not competent to handle,

   without associating with him a lawyer who is

   competent to handle it.

   (2) Handle a legal matter without prepara-

   tion adequate in the circumstances.

   (3) Neglect a legal matter entrusted to him.

   Two immediately apparent deficiencies of this provision are vagueness and ambiguity and the fact that the language falls...