No Laughing Matter: The Intersection of Legal Malpractice and Professionalism
Journal of Gender
No Laughing Matter: The I ntersection of Legal Malpractice and Professionalism
Nicola A. Boothe-Perry 0 1
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1 Boothe-Perry, Nicola A. "No Laughing Matter: The I ntersection of Legal Malpractice and Professionalism." American University Journal of Gender Social Policy and Law 21 , no. 1 (2012): 1-37
NICOLA A. BOOTHE-PERRY*
* Associate Professor, Florida Agricultural & Mechanical (A&M) University, College
of Law. J.D. 1994, Florida State University College of Law; B.S. 1991, University of
Florida. The author wishes to thank colleagues at the NYU CLR Workshop and
MAPOC Conference for helpful comments on the Article.
“Legal rules ensure fidelity to legal duties.”1
I. PREFACE: THE “LAUGHING GUY” STATEMENT
On October 14, 2008, a Florida grand jury indicted Casey Marie
Anthony for the death of her minor child, Caylee Marie Anthony.2 In a
seven count indictment, the grand jury charged Casey Anthony with capital
murder, aggravated child abuse, and aggravated manslaughter, with
additional charges relating to provision of false information to law
enforcement personnel.3 During closing arguments in the high-profile
murder trial, defense counsel, apparently agitated by the snickering and
chuckling of the State’s attorney, uttered the widely-broadcasted statement:
“We’re talking about cold hard evidence. Evidence that points to one
person, and one person only. And he can get up here and lie all he
wants, and dance around the truth, but the truth is the truth and—and—
depending on who’s asking the questions, whether it’s this laughing guy
right here [pointing forcefully at Assistant State Attorney Ashton] or
whether it’s me.”4
This “laughing guy” statement heard all across the country on July 3,
2011, is illustrative of the nexus between professionalism and legal
Defense counsel Jose Baez’s unprofessional reference and gesture
towards Assistant State Attorney Jeff Ashton garnered an immediate
objection from the State. Chief Judge Belvin Perry, presiding over the
highly-televised matter, immediately sustained the objection and demanded
both parties approach the bench. The Court subsequently chastised both
parties for their inappropriate behavior: Attorney Ashton for acting in an
unprofessional manner by chuckling and laughing during opposing
counsel’s closing arguments, and Attorney Baez for referencing the
behavior in a similarly unprofessional manner. As the Court noted, both
parties were not just unprofessional, but they each also violated a court
order prohibiting emotional outbursts and gestures during the course of the
trial.5 The attorneys’ actions exposed them to both (
) potential court
sanctions, and (
) disciplinary action by the Florida Bar.6
The defendant in the case was subsequently acquitted of the first-degree
Had Casey Anthony been convicted of murder, she might
have been able to bring claims against her attorney (already vulnerable to
court-imposed sanctions and Bar discipline) for ineffective assistance of
counsel, in part due to his outburst during closing arguments.8 As an
attorney for the State, and pursuant to the immunity granted by the Federal
Torts Claims Act, Attorney Ashton would have been immune from any
of a lack
professionalism during the course of the trial.9
Attorney Baez’s display of
a lack of professionalism, however, could have been the basis for a
potential legal malpractice claim against him. “Laughing guy” or not, the
issue of professionalism and its potential correlation to legal malpractice
claims is no laughing matter.
Over the years, competence and effectiveness have been important
benchmarks of a “good” lawyer.10
Empirical data now suggests that a
Anthony Trial, JACKSONVILLE.COM (June 20, 2011), http://m.jacksonville.com/news/
crime/2011-06-20/story/threats-sanctions-punishment-against-lawyers-both-sidescasey-anthony (reporting that lawyers on both sides of the Casey Anthony case were
threatened with the potential for a sanction due to their poor courtroom behavior).
JOURNAL OF GENDER, SOCIAL POLICY & THE LAW
lawyer’s success and effectiveness is inextricably linked to the lawyer’s
professionalism.11 The public expectation of effective lawyering presumes
a high degree of professionalism.12
Meeting these expectations reflects
positively on a lawyer’s profitability. Other lawyers make referrals, and
more likely to consistently patronize
attorneys. Contrarily, lawyers who practice “close to or over the line of
malpractice and ethical rule violations will make mistakes that lead to
financial setbacks and lower profitability.”13 Even setting aside economic
concerns, the legal profession has increasingly voiced its discomfort with
both the state of professionalism exhibited by lawyers and the perception of
a lack of professionalism held by the general public.14
lawyers behaving badly—such as attorneys falling asleep in court,15
outrageous deposition behavior,16 disrespectful behavior in17 and out of18
11. See Neil Hamilton & Verna Monson, The Positive Empirical Relationship of
Professionalism to Effectiveness in the Practice of Law, 24 GEO. J. LEGAL ETHICS 137,
) (indicating that there is a positive empirical relationship between
professionalism and effectiveness in the practice of law and that with “ethical
professional formation occur[ing] throughout a career . . . [a] highly professional
lawyer is substantially more likely to be an effective lawyer”).
12. See id. at 140 (noting that clients and other lawyers perceive a lawyer who
demonstrates a high degree of professionalism as an effective lawyer).
14. Richard Abel, Book Review, 57 J. LEGAL EDUC. 130, 140-42 (2007) (reviewing
MARC GALANTER, LOWERING THE BAR: LAWYER JOKES AND LEGAL CULTURE (2005));
see also CONFERENCE OF CHIEF JUSTICES, A NATIONAL WORKING PLAN ON LAWYER
CONDUCT AND PROFESSIONALISM 9 (1999), available at http://ccj.ncsc.dni.us/
natlplan/natlactionplan.html [hereinafter A NATIONAL WORKING PLAN] (“[T]he Court
should continually assess the social factors that affect the legal profession and its
various institutions to maximize resources, publicize its positive attributes, and address
its shortcomings and liabilities.”).
15. See, e.g., Burdine v. Johnson, 262 F.3d 336, 357 (5th Cir. 2001) (holding that
an accused murder suspect’s attorney, Joe Frank Cannon, prejudiced the defendant’s
case by falling asleep during the capital murder trial).
16. See, e.g., Huggins v. Coatsville Area Sch. Dist., No. 07-4917, 2009 WL
2973044, at *1-3 (E.D. Pa. Sept. 16, 2009) (stating that counsel engaged in “incessant
insult exchanges and aggressive questioning” during the deposition. The court
characterized counsels’ exchanges as “heated, personal, rude and pointless” statements
that included a “few choice epithets” and “foul language.” The court found that both
lawyers acted highly improperly, stating, “[C]ounsel’s behavior falls short of that
which lawyers are to exhibit in the performance of their professional duties. Treating
an adversary with discourtesy, let alone with calumny or derision, rends the fabric of
the law.”); In re Golden, 496 S.E.2d 619, 621 (S.C. 1998) (documenting an attorney’s
behavior after a deposition of his client’s wife, the adverse party in a domestic
proceeding. The grievance complaint alleged that after the deposition, the attorney
stated to the estranged wife: “You are a mean-spirited, vicious witch and I don’t like
your face and I don’t like your voice. What I’d like, is to be locked in a room with you
naked with a very sharp knife.” Thereafter, it is alleged that the attorney said: “What
we need for her [pointing to estranged wife] is a big bag to put her in without the
mouth cut out.”); see also Paramount Commc’n, Inc. v. QVC Network, Inc., 637 A.2d
34, 53-55 (Del. 1994).
17. See John G. Browning, Legally Speaking: Lawyers Behaving Badly Part Three,
SOUTHEAST TEX. REC. (Apr. 9, 2008, 9:32 AM), http://www.setexasrecord.com/
NO LAUGHING MATTER
court (even in their capacity
Lawyers are not well-perceived by the public21
and the lack of civility among lawyers and their other forms of dubious
professional conduct have led to lawyers themselves criticizing the lack of
professionalism in their ranks.22
As the public and legal arena’s perception of professionalism
arguments/210542-legally-speaking-lawyers-behaving-badly-part-three (providing one
example in which, in response to a prosecutor’s objection during trial, defense counsel
made “a simulated masturbatory gesture with his hand while making eye contact with
18. See id. (describing the case of a recent scuffle between attorneys David
Lawrence and Aaron Matusick of Portland, Oregon, after leaving a court hearing in
Multnomah County on a landlord-tenant case. Allegedly, “one of the lawyers slapped
the other, and the attorney retaliated with a punch to the head”).
19. See, e.g., In re Cammarano III, 902 N.Y.S.2d 446, 446 (App. Div. 2010)
(disbarring respondent, former mayor of the city of Hoboken, NJ, after he was
convicted of conspiracy to obstruct commerce by extortion for taking bribes from an
FBI informant); see also Clark v. Conahan, 737 F. Supp. 2d 239, 256-58 (M.D. Pa.
2010) (refusing to grant defendants, then-judges Mark A. Ciavarella and Michael T.
Conahan, immunity from their actions in connection with a scheme to divert juvenile
offenders to newly constructed, privately-owned juvenile detention facilities in return
20. With the common use of the Internet, a quick search for badly behaving
lawyers will produce pages of examples, including visual examples often found on
YouTube. Aptly titled videos include: Ajxm, Drunk Vegas Lawyer Causes Mistrial in
Court, YOUTUBE (Aug. 9. 2006), http://www.youtube.com/watch?v=yV2qtvbIPFE;
Teddygramz2008, Old Lawyer Fight, YOUTUBE (Apr. 27, 2006),
http://www.youtube.com/watch?v=td-KKmcYtrM; Nutcrushernigel, This Lawyer Is the
Best! Flip the Bird, YOUTUBE (Aug. 4, 2008),
http://www.youtube.com/watch?v=fw7J53YhRvs; SECTOR0013, TV Judge
Completely Ends Smartass Lawyer, YOUTUBE (Aug. 7, 2008),
http://www.youtube.com/watch?v=DsirLliYBXk; see also Javor v. United States, 724
F.2d 831, 832 (9th Cir. 1984); A NATIONAL WORKING PLAN, supra note 14, at 9;
Jeffrey Levinson, Don’t Let Sleeping Lawyers Lie: Raising the Standard for Effective
Assistance of Counsel, 38 AM. CRIM. L. REV. 147, 147-48 (2001) (citing incidents of
attorneys falling asleep during trials); Abel, supra note 14, at 140-42.
21. Paul W. Grimm & Michael Schwartz, Professionalism: The Sedona
Conference—Supplemental Material, in CURRENT DEVELOPMENTS IN EMPLOYMENT
LAW: THE OBAMA YEARS 1425 (ALI-ABA, Course Handbook CS006, 2010)
(“Lawyers are not well perceived by the public. We are called ‘shysters,’ money
grabbers, and a whole range of expletives.”); see also Nicola A. Boothe-Perry,
Enforcement of Law Schools’ Non-Academic Honor Codes: A Necessary Step Towards
Professionalism?, 89 NEB. L. REV. 634, 635 (
22. See A NATIONAL WORKING PLAN, supra note 14, at 17 (noting how the
unethical and unprofessional conduct of a small portion of lawyers has tainted the
image of the legal community and diminished public confidence in legal and judicial
institutions); see also Robert MacCrate et. al., Legal Education and Professional
Development—An Educational Continuum, 1992 A.B.A. SEC. LEGAL EDUC. &
ADMISSIONS TO THE BAR. The lack of professionalism has even been noted by law
students. For example, law students in the clinical program at Florida A&M University
College of Law are often shocked and surprised by the comments, behavior, and attire
of some of the attorneys in court. While clerking for U.S. District Court Chief
Magistrate Charles W. Grimm, Law Clerk W. James Denvil (then a law student at the
University of Baltimore) aptly noted, “The skyrocketing costs of discovery and simple
integrity demand that lawyers act like professionals, not spoiled children.”
JOURNAL OF GENDER, SOCIAL POLICY & THE LAW
declined, the rate of legal malpractice has increased.23
notable increase in appellate legal
malpractice decisions.24 Although there was some evidence of stabilization
by the end of 2009, there was no evidence of a decline in the number of
legal malpractice cases,25 with a “noticeable uptick in frequency” and
severity of claims in 2010.26 Scholars have extensively discussed the legal
malpractice cause of action generally.27
However, there has been little
discussion regarding the opportunity to enhance professionalism through
legal malpractice actions.
In an effort to increase professionalism among lawyers, an analysis of
between lawyers’ professional behavior and legal
malpractice claims is warranted. This Article will explore that relationship,
and address the need to fuse the two components in an effort to enhance
24. 1 RONALD E. MALLEN & JEFFREY M. SMITH, LEGAL MALPRACTICE § 1:6
26. At a Feb. 17, 2011, panel discussion on “The Insurance Marketplace and
Considerations,” moderator Victoria L. Orze of Hinshaw & Culbertson, Phoenix, and
two insurance experts explored the current market concerning lawyers’ professional
liability (LPL) coverage, along with changes in the legal industry that are affecting the
insurance market. The panelists noted a “noticeable uptick in frequency” in claims in
2010. See Joan C. Roberts, Experts on Insurance Marketplace See Low Prices, but
High Costs, Cuts in Limits, ABA/BNA LAW. MANUAL ON PROF. CONDUCT 147 (Mar. 2,
2011), available at http://news.bna.com/moln/display/story_list.adp?mode=mp&
27. See, e.g., David J. Beck, Legal Malpractice in Texas, 50 BAYLOR L. REV. 761,
761 (1998); Martin D. Begleiter, Attorney Malpractice in Estate Planning—You’ve Got
to Know When to Hold Up, Know When to Fold Up, 38 KAN. L. REV. 193, 194 (1990);
Melissa Hutcheson Brown, Estate Planning Malpractice: A Guide for the Alabama
Practitioners, 45 ALA. L. REV. 611, 611-15 (1994); James M. Fischer, Representing
Partnerships: Who Is/Are the Client(s)?, 26 PAC. L.J. 961, 961 (1995); Todd A. Fuller,
Attorney Liability to Estate Beneficiaries: The Privity Passes Through, 100 DICK. L.
REV. 29, 30 (1995); Laura Calloway Hart et. al., From Offense to Defense: Defending
Legal Malpractice Claims, 45 S.C. L. REV. 771, 772 (1994); Donald B. Hilliker,
Attorney Liability to Third Parties: A Look to the Future, 36 DEPAUL L. REV. 41, 43 (1986); Gerald P. Johnson, Legal Malpractice in Estate Planning—Perilous Times
Ahead for the Practitioner, 67 IOWA L. REV. 629, 630 (1982); George G. Mahaffey Jr.,
Cause-in-Fact and the Plaintiff’s Burden of Proof with Regard to Causation and
Damages in Transactional Legal Malpractice Matters: The Necessity of Demonstrating
the Better Deal, 37 SUFFOLK U. L. REV. 393, 397-408 (2004); Craig D. Martin,
Liability of Attorneys to Non-clients: When Does a Duty to Non-clients Arise?, 23 J.
LEGAL PROF. 273, 273-80 (1999); Nancy J. Moore, Expanding Duties of Attorneys to
“Non-clients”: Reconceptualizing the Attorney-Client Relationship in Entity
Representation and Other Inherently Ambiguous Situations, 45 S.C. L. REV. 659, 659
(1994); Ramos, Dirty Little Secret, supra note 23, at 1681; Gary N. Schumann & Scott
B. Herlihy, The Impending Wave of Legal Malpractice Litigation—Predictions,
Analysis, and Proposals for Change, 30 ST. MARY’S L.J. 143, 143 (1998); Ronald R.
Volkmer, Attorney Liability to Nonclients: The Need to Reexamine Nebraska’s Privity
Rule, 29 CREIGHTON L. REV. 295, 295 (1995); Steven K. Ward, Developments in Legal
Malpractice, 31 S. TEX. L. REV. 121, 121 (1990); Harris K. Weiner, Defining an
Attorney’s Duty of Care to Nonclients, 39 B.B.J. 16, 16 (1995).
NO LAUGHING MATTER
professionalism. The Article will specifically seek to address the
) Should professionalism be admissible, or even conclusive,
evidence of the standard of care of the “reasonable attorney” in legal
malpractice cases? and (
) Will a proper definition of the “reasonable
attorney” in the context of legal malpractice cases encourage and ultimately
enhance professionalism in legal society?
In order to form a nexus between professionalism and legal malpractice
claims, it is necessary to have a clear and accepted definition of
professionalism and the underpinnings of a legal malpractice case. Part III
of this Article will address the distinct but interrelated definitions of
“professional conduct/professionalism,” “disciplinary conduct,” and “legal
malpractice” in order to provide a framework for incorporation.28 Part IV
will discuss the current state of legal malpractice cases generally in Section
A, address possible objections such as courts’ greater regulation of attorney
conduct and other limitations posed by legal malpractice cases in Section
B, and outline the history of legal malpractice cases in Section C.29 Part V
will discuss the tort versus contract relationship of legal malpractice claims
in Section A and outline the prima facie legal malpractice case under torts
in Section B.30 The use of expert testimony to establish the standard of
care in legal malpractice claims is discussed in Part VI.31 Part VII will
address the current trend of allowing evidence of violation of ethical rules
as evidence of a violation of the standard of care.32 Part VIII will explore
the correlation between professionalism and legal malpractice, and the need
to secure a relationship between the two in an effort to increase
professionalism in the legal profession.33 Additionally, Part VIII will
advance a scholarly and juristic proposal for methods to incorporate
professionalism into the legal malpractice query grounded in tort by use of
evidence of the standard of care and including the current definitions of
“reasonable attorney” as interpreted by case law and the Model Rules of
III. PROFESSIONAL CONDUCT, DISCIPLINARY CONDUCT, AND LEGAL
Often used interchangeably, professional conduct (professionalism),
disciplinary conduct, and legal malpractice all include behaviors and
28. See infra Part III.
29. See infra Part IV.
30. See infra Part V.
31. See infra Part VI.
32. See infra Part VII.
33. See infra Part VIII.
JOURNAL OF GENDER, SOCIAL POLICY & THE LAW
conduct that are either expected and are beneficial to the legal profession,
or, in the negative, are inappropriate and subject lawyers to potential
disciplinary action or civil liability. Inappropriate conduct may be
negligent (giving rise to a legal malpractice claim), or unprofessional, yet
not subject the lawyer to disciplinary conduct. Similarly, disciplinary
conduct that violates ethical rules may rise to a level of negligence and
subject the attorney to a civil claim, but not necessarily have been carried
out in an “unprofessional” manner. In order to fully explore the
applicability of professional conduct in legal malpractice claims, the
distinction among the three forms of “conduct” must be briefly analyzed.
A. Professional Conduct/Professionalism Defined
Professional conduct as it relates to lawyers is often described as
“professionalism.” In its common meaning, “professionalism” is used to
describe the aspirations, conduct and qualities that mark a professional
person.35 Professor Neil Hamilton, a renowned professionalism scholar,
defined a tripartite model of professionalism consisting of (
Conscience” (an awareness of the moral goodness or blameworthiness of
one’s own intentions and conduct together with a feeling of obligation to be
and do what is morally good); (
) the “Ethics of Duty” (the obligatory and
disciplinary elements of the Model Rules of Professional Conduct) and (
the “Ethics of Aspiration” (the core values and ideals of the profession).36
Professor Hamilton lists elements such as personal conscience growth,
compliance with the ethics of duty, internalization of the highest standards
for the lawyer’s professional skills and ethical conduct, holding other
lawyers accountable for the standards set forth in the Rules, and acting as a
fiduciary to serving the client and the public good, a synthesis of which
35. Neil Hamilton, Assessing Professionalism: Measuring Progress in the
Formation of an Ethical Professional Identity, 5 U. ST. THOMAS L.J. 470, 472 (2008) [hereinafter Hamilton, Assessing Professionalism].
36. Neil Hamilton, Professionalism Clearly Defined, 18 PROF. LAW., no. 4, 2008, at
4, 8-11 (deriving his model through an analysis and synthesis of various ABA reports,
Chief Justice Reports, and the Preamble to the Model Rules of Professional Conduct).
37. Hamilton, Assessing Professionalism, supra note 35, at 482-83. Professor
Hamilton posits that professionalism means that each lawyer:
1. Continues to grow in personal conscience over his or her career;
2. Agrees to comply with the ethics of duty—the minimum standards for the
lawyer’s professional skills and ethical conduct set by the Rules;
3. Strives to realize, over a career, the ethics of aspiration—the core values and
ideals of the profession, including internalization of the highest standards for
the lawyer’s professional skills and ethical conduct;
4. Agrees to both hold other lawyers accountable for meeting the minimum
standards set forth in the Rules and encourage them to realize core values and
ideals of the profession; and,
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A more concise definition of lawyer professionalism has been stated as
“attitudes and behaviors that supersede self-interest, serve to enhance
public opinion and trust, adhere to high ethical and moral standards, and
aspire daily to a commitment of excellence in one’s personal and
In summary, the term professional conduct/professionalism broadly
designates a lawyer’s comportment, demeanor, behavior, and conduct in
his or her day-to-day activities, within and outside of the boundaries of
legal practice, and above and beyond that which is required by ethical
B. Disciplinary Conduct Defined
“Disciplinary conduct,” a narrower class than professional conduct,
relates to attorney conduct that specifically violates state and national rules
of ethics and professional responsibility, subjecting the attorney to
example, a lack
representation40 or maintain client confidentiality,41 or falsification of
Agrees to act as a fiduciary, where his or her self-interest is overbalanced by
devotion to serving the client and the public good in the profession’s area of
responsibility: justice. This includes:
Devoting professional time to serving the public good, particularly
by representing pro bono clients; and,
Undertaking a continuing reflective engagement, over the course of
a career, on the relative importance of income and wealth in light of
the other principles of professionalism.
Respect for the practice of law;
Respect for the legal system and those persons involved;
Civility/courtesy; and the promotion of civility and mutual respect throughout
Cultivation of habits of personal living that enhance a moral core of
responsibility to the profession;
6. Professional attitudes and behavior towards the court and colleagues;
Avoidance of personal attacks, rudeness, disrespectful or profane comments
and aggressive behaviors that lead to unproductive or disruptive stress and
Maintenance of a professional appearance to include appropriate attire).
39. MODEL RULES OF PROF’L CONDUCT R. 1.1 (
40. MODEL RULES OF PROF’L CONDUCT R. 1.3 (
41. MODEL RULES OF PROF’L CONDUCT R. 1.6 (
JOURNAL OF GENDER, SOCIAL POLICY & THE LAW
evidence,42 would all give rise to violations of the Model Rules of
Professional Conduct and subject an attorney to disciplinary action by his
or her state bar. State bar associations enforce the standards of ethics and
professional responsibility dictated by Model Rules and Codes. Timely
complaints43 are investigated, and, if found to be substantiated, are
generally referred to a grievance committee for further consideration and
disciplinary action where appropriate. Disciplinary action can range from
admonishment to suspension from the practice of law for a stated period of
time, to complete disbarment.44
In sum, disciplinary conduct is behavior that is a violation of a specific
ethical rule of conduct or professional responsibility and subjects an
attorney to state disciplinary proceedings. The losses a client may have
incurred as a result of a lawyer’s disciplinary conduct cannot be recovered
through disciplinary conduct proceedings. The injured client would need to
pursue his or her enforceable rights through normal civil processes.
C. Legal Malpractice Defined
Where disciplinary conduct does not afford monetary compensation for
damages, a client may obtain compensation for losses arising from attorney
misconduct by filing a legal malpractice claim. To establish a prima facie
case, the injured client would have to prove that the attorney’s conduct rose
to the level of negligence.45 Disciplinary conduct may form the basis for
the prima facie case, but such proof is not necessary for the success of a
legal malpractice claim, as other behaviors that have not been the subject of
a disciplinary conduct proceeding can also give rise to a claim for
The American judicial system, which allows for liability for
proximately-caused injuries, provides incentive for all persons involved to
emulate socially and professionally desired behavior. Just as the potential
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for damages encourages plaintiffs to assert their rights in court, so can the
potential for damages encourage attorneys to fulfill their legal duties and
model acceptable behavior.
Yet efforts to reform professional behavior
among lawyers on various levels seem to have had little effect on courts’
decisions in legal malpractice claims.47
With a system that provides for liability for injuries, the bench holds a
prime position to effectuate change and encourage professionalism among
To understand the intersection of promoting professionalism
and legal malpractice claims, the current status of such claims is
IV. CURRENT STATE OF MALPRACTICE
“The idea that it is wrong to sue someone who tried to help you when you
were in trouble is no longer influential.”49
A. The Rise of Legal Malpractice Cases
Every year, insurance carriers providing legal malpractice coverage pay
in excess of four billion dollars on claims.50 Studies have shown that over
half of malpractice claims are based not on allegations of substantive errors
or lack of competency, but on allegations of intentional acts, careless
administrative errors, client relations problems, or other reasons.51
those inside and outside the legal profession have expressed concern with
legal malpractice, which has been described as a “crisis.”52
47. In an effort to encourage and improve professionalism amongst lawyers,
various avenues have been proposed seeking participation from academia, the bar, and
the bench. For example, analyses of legal academia’s role has evidenced fertile ground
for fostering professionalism beginning in law schools: from curriculum changes to
administrative changes such as revision of Honor Codes. The American Bar
Association’s ability to effectuate an increase in form and practice of professionalism
through the accreditation process has been similarly discussed.
48. See Dranoff, supra note 1, at 635 (arguing that courts could encourage
competence if alterations were made to some elements comprising the tort of legal
49. STEPHEN GILLERS, REGULATION OF LAWYERS: PROBLEMS OF LAW AND ETHICS
612 (3d ed. 1992).
JOURNAL OF GENDER, SOCIAL POLICY & THE LAW
A statistical study of legal malpractice claims from the 1800s to 2011
evidenced three noteworthy “peaks.”53
The first peak in the number of
legal malpractice claims was noted at the middle of the nineteenth century,
apparently coinciding with “major efforts to organize the profession, the
corresponding formalization of the judicial system and the codification of
the common law.”54 The second, less significant peak was noted at the end
of the nineteenth century, a time in which both ethical codes55 and
legislation addressing attorney abuse in the collecting of funds56 were
The third peak, beginning in the 1960s, corresponded with a
“dramatic and steady increase in the frequency of legal malpractice
This was particularly noticeable during the 1980s and
generated much scholarly input.58
Of present interest is the increase in
appellate legal malpractice decisions noted in the new
Certain external factors may have contributed to the increase in legal
malpractice actions, such as increases in
other areas of litigation
sociological factors60 (such as heightened public awareness of legal
malpractice).61 Also affecting the rates is an apparent correlation between
the number of practicing lawyers in a given state and the number of
malpractice decisions therein.62
It has been suggested that
“changes in the nature of an attorney’s practice” have similarly contributed
to malpractice suits, since lawyers expose themselves to greater risks when
639, 641 (1995) (noting that state bar associations have organized commissions to
investigate “solutions to the crisis” of rising insurance rates resulting from increased
legal malpractice claims).
53. See 1 MALLEN & SMITH, supra note 24, § 1:6 (including in the study only “those
actions predicated on professional negligence or a breach of a fiduciary obligation, but
not those solely concerning fraudulent conduct or a breach of an express promise”).
55. Id. § 20:7.
56. Id. § 1:6.
58. See, e.g., Dranoff, supra note 1, at 634 (noting a sharp increase in the 1980s in
the number of malpractice suits and disciplinary actions brought against lawyers).
59. 1 MALLEN & SMITH, supra note 24, § 1:6.
60. Id. (“The increase of legal malpractice litigation does not mean that the
attorneys are more error prone. The change in frequency of actions against attorneys
must be viewed in the context of similar increases in other areas of litigation . . . [and]
is similarly intertwined with numerous sociological factors that defy generalizations.”).
61. See Cunitz, supra note 52, at 641 (noting a “variety of irreversible social
factors” that contributed to the increase in malpractice claims, including a “decrease in
confidence in the legal profession arising out of the Watergate fiasco”).
62. For example, the District of Columbia ranks highest both in having the most
practicing lawyers and the most reported legal malpractice decisions. However,
Massachusetts has relatively few legal malpractice decisions, despite ranking third in
practitioners per population. See 1 MALLEN & SMITH, supra note 24, § 1:6 n.11.
NO LAUGHING MATTER
they become involved in clients’ companies, such as by serving as directors
and on boards.63
With a paucity of identifiable data to pinpoint the causes
of legal malpractice claims, this Article must couple the available hard data
with some speculation.
Competency per se (i.e., “substantive errors”)
accounts for less than half of all malpractice cases.64 Administrative errors,
client relations, and intentional acts account for a vast majority of legal
In an effort to help lawyers reduce malpractice behavior, the American
Bar Association Standing Committee on Lawyers’ Professional Liability
released data on a cross-section of legal malpractice claims from 2004 to
Profile of Legal Malpractice Claims 2004-2007 provides a
“snapshot” of malpractice claim activity.67
Using data received from
surveyed insurers that provide legal malpractice insurance, the committee
provided a snapshot of the number and type of legal malpractice claims
received.68 The report noted that the number of claims with million-dollar
payouts had been growing.69
Between 2004 and 2007, forty-four claims
resulted in indemnity payments of two million dollars or more, up from
nineteen in the previous four years, according to the association’s study.70
The number of claimants winning payments between one million and two
million dollars jumped to eighty, up from thirty-seven.71
A less articulated yet more glaring reason for the increase in legal
malpractice claims has been the “growing hostility” of the public toward
lawyers.72 This hostility, coupled with what has been identified as a lack of
63. Cunitz, supra note 52, at 642 (“[A] major problem is that too many of the
ALAS lawyers are continuing to engage in various forms of entrepreneurial and other
extracurricular activities, which in many cases make it more likely that they will be
sued, and make it more difficult to defend the actions if they are sued. Among other
things, entrepreneurial activities often provide the plaintiffs with a persuasive conflict
of interest allegation.” (quoting Robert E. O’Malley & William Freigvogel, Lawyers’
Entrepreneurial Activities: How to Maintain Professionalism, Avoid Malpractice
Claims, and Not Get Rich While Practicing Law, in AM. BAR ASS’N STANDING COMM.
ON PROF’L RESPONSIBILITY, THE LAWYER’S DESK GUIDE TO LEGAL MALPRACTICE 149
64. See Manuel R. Ramos, Legal Malpractice: Reforming Lawyers and Law
Professors, 70 TUL. L. REV. 2583, 2619 (1996) (suggesting that teaching about legal
malpractice will transform legal education by providing a “healthy dose of paranoia
and respect” for claims caused by either substantive errors or other, more frequently
occurring administrative errors, client relations, and intentional acts).
65. Ramos, No Lawyer or Client, supra note 46, at 59-60.
66. AM. BAR ASS’N, PROFILE OF LEGAL MALPRACTICE CLAIMS 2004-2007, at 1
69. Id. at 14.
71. Id. at 13.
72. See Ramos, Dirty Little Secret, supra note 23, at 1681 (noting that two
JOURNAL OF GENDER, SOCIAL POLICY & THE LAW
professionalism, creates a “major problem” for the legal profession.73 The
hard data indisputably demonstrates that, regardless of the root cause, the
increase in filings is evident and any issues of lack of professionalism that
may have contributed to the increase of legal malpractice claims remain
With no anticipated decline in the recurrence of legal malpractice filings,
there exists a need for all aspects of the legal profession to
professional conduct norms more comprehensive. Historically, the courts
have been reluctant to accept their position in regulating lawyer behavior.74
Moreover, the courts have not willingly recognized the relationship
between problems of professional responsibility and problems of legal
However, with an identified correlation between a
lawyer’s effectiveness and professionalism, coupled with the increase in
legal malpractice cases, the need for the courts to invigorate lawyer
accountability and compliance is evident. Undoubtedly, such intervention
will be met with some resistance.
B. Potential Limitations to Use of Legal Malpractice Claims
Relying on legal malpractice claims as a catalyst for professionalism
admittedly has its drawbacks.
For example, there is limited ability to
directly affect attorney behavior via legal malpractice claims.
courts may be hesitant to lose the reality or even appearance of impartiality
and neutrality in such proceedings. The potential for individual judges to
inject subjective notions, while present in all cases, may be heightened
particularly where the judge is addressing an applicable standard of care.
Finally, there is the general objection that the use of legal malpractice
claims for a professionalism goal is merely a mask for additional lawyer
attention-deserving factors have led to the explosion of legal malpractice cases: “(
increase in the public’s and jurors’ hostility toward lawyers; and (
) the greater chance
that a jury, not a judge, will decide issues of credibility, liability, damages, and
defenses in legal malpractice lawsuits”); Randall Samborn, Anti-Lawyer Attitude Up
but NLJ/West Poll Also Shows More People Are Using Attorneys, NAT’L L.J., Aug. 9,
1993, at 1 (reporting that, according to a National Law Journal/West Publishing Co.
poll, “the widely held perception that resentment of lawyers—ranging from
lawyerbashing jokes to outright vilification—is running at a fever pitch. And it is especially
high among better-educated, higher wage earners in society”).
73. Ramos, Dirty Little Secret, supra note 23, at 1684.
75. John Leubsdorf, Legal Malpractice and Professional Responsibility, 48
RUTGERS L. REV. 101, 157 (1995) (“Commentators and courts have not been
sufficiently willing to recognize that the problems of legal malpractice law are
substantially the same as the traditional problems of professional responsibility.”).
NO LAUGHING MATTER
1. Limited Ability for Direct Effect on Lawyers
Legal malpractice claims are generally initiated by clients. Because of
the client-driven nature of these claims, the opportunities for attorney
correction is concededly slim. In addition, legal malpractice claims will
not address the behavior of counsel employed by and representing the state
or federal government. Nevertheless, the implementation of
professionalism as a factor to interpret the applicable standard of care in
legal malpractice cases would have a decidedly noticeable impact on the
attorneys involved in those cases, and could serve as a deterrent for other
attorneys to affect a much larger percentage of the practicing bar.76 Any
policy or rules that will positively affect lawyer professionalism would be
qualitatively beneficial regardless of the quantity of lawyers who will be
initially affected. Good policy is built on preventative steps and should be
implemented despite any alleged de minimus grounds.
2. Courts Lack of Impartiality & Potential for Subjective Standards
Litigants are entitled to “neutral and detached judge[s].”77 Particularly in
the context of a legal malpractice case, a judge’s possible bias for or
against one of the litigants could lead to a fundamentally unfair outcome of
any case. The objectivity and neutrality discussed in the Village of
Monroeville case78 could be threatened by any subjective determination of
the standard of professionalism applied to legal malpractice cases. It is this
concern that emphasizes the importance of a concise, clear, and accepted
definition of what professionalism truly is. Adherence to an established
professionalism standard—encompassing those “attitudes and behaviors
that supersede self-interest [and] serve to enhance the public opinion and
trust,”79 as well as adherence to high ethical and moral standards and
aspiration to daily commitments of excellence in a lawyer’s personal and
professional life80—would significantly decrease the likelihood of
imposition of any judicial subjectivity, and maintain impartiality.
3. Objection to Greater Lawyer Regulation
Historically, proposals for courts to advance greater lawyer regulation
have been met with objections that doing so will reduce public access to
courts.81 One of the basic tenets of professional responsibility of lawyers is
76. See Leubsdorf, supra note 75, at 158.
77. Ward v. Monroeville, 409 U.S. 57, 61-62 (1972).
79. Boothe-Perry, Standard Lawyer Behavior?, supra note 38.
81. See Dranoff, supra note 1, at 635 (“Reforms that attempt to further the goal of
increased attorney competence by making professional conduct standards more
JOURNAL OF GENDER, SOCIAL POLICY & THE LAW
that every person in our society should have ready access to the
competence.82 This “free access policy” is grounded in the Fourteenth
Amendment due process guarantees of the United States Constitution.83
Objections to greater lawyer regulation rely on the theory that lawyers will
respond to regulation by passing the risk of noncompliance to their clients
via increased analysis and subsequent rejection of cases, and increased
legal fees for those cases accepted.84 An individual would then be stripped
of the ability to retain the lawyer of his or her choice, and the unfettered
access to quality legal services envisioned by the Supreme Court would
However, as noted by the Supreme Court in Boddie v. Connecticut,85 the
right of access to the judicial system afforded to all individuals is not an
practicality.”87 Examples of interests that the courts have held do not rise
to the level of Boddie access are bankruptcy filings,88 welfare benefit
determinations,89 and prisoner requirement to pay filing fees.90 In fact, the
Third Circuit has noted that an “unconditional right of access exists for
civil cases only when denial of a judicial forum
would implicate a
fundamental human interest—such as the termination of parental rights or
the ability to obtain a divorce.”91
comprehensive may frustrate the goal of unhampered access.”).
82. See, e.g., AM. BAR ASS’N, ASSOCIATION GOALS (2012), available at
http://www.americanbar.org/utility/about_the_aba/association_goals.html (stating as
one of its objectives the assurance of “meaningful access to justice for all persons”).
See generally MODEL RULES OF PROF’L CONDUCT pmbl. & scope (
83. Boddie v. Connecticut, 401 U.S. 371 (1971).
84. See Dranoff, supra note 1, at 643 (stating that in response to increased
comprehension of competence standards, “rational lawyers” will respond “through
higher legal fees and a reluctance to accept cases in which victory does not appear
85. See Boddie, 401 U.S. at 371.
86. See id. at 382-83.
87. Id. (“We do not decide that access for all individuals to the courts is a right that
is, in all circumstances, guaranteed by the Due Process Clause of the Fourteenth
Amendment so that its exercise may not be placed beyond the reach of any
individual.”); see also Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 318
88. United States v. Kras, 409 U.S. 434, 441, 443 (1973).
89. Ortwein v. Schwab, 410 U.S. 656, 659 (1973).
90. See Abdul-Akbar v. McKelvie, 239 F.3d 307, 313-14 (3d Cir. 2001). But see
Burens v. Ohio, 401 U.S. 371 (1971) (holding that a prisoner’s inability to appeal to the
state’s supreme court because of his inability to pay court filing fees deprived him of
his right to Due Process).
91. Abdul-Akbar, 239 F.3d at 314; see also M.L.B. v. S.L.J., 519 U.S. 102, 113
(1996) (holding that Due Process prohibits a State from denying access to its courts to
individuals seeking dissolution of marriage, solely because of an inability to pay, given
NO LAUGHING MATTER
With no absolute guarantee, the criticism of increased lawyer regulation
cannot be substantiated through concerns of limited access to courts.
Moreover, a system that would allow greater access to courts while
sacrificing lawyer regulation and subsequently lawyer professionalism is
neither an acceptable nor a preferred system. The courts can exercise their
ability to balance access objectives and professionalism requirements by
articulating an ascertainable standard of care for lawyers as a minimal
acceptable level of conduct. To date, no clearly articulated standard of care
has been enunciated for legal malpractice cases. In an effort to understand
the jurisprudential hesitation in this area, a brief review of the history of the
legal malpractice case is warranted.
C. The History of the Legal Malpractice Case
Courts have struggled with the concept of legal malpractice as far back
as the eighteenth century. In 1767, the Court of King’s Bench in Pitt v.
Yalden was faced with an attorney’s alleged “mistake.”92 The court,
although recognizing that a client may have a claim against his or her
attorney for damages “suffered,”93 denied recovery on grounds that the
attorney could be liable only for “gross negligence” and not for an “honest
mistake.”94 Then, in 1796, the underpinnings of the duty element in a legal
malpractice case became evident in one of the first recorded cases of legal
malpractice in the United States.95 In Stephens v. White, the Supreme
Court of Virginia reviewed the appeal of a client who filed suit against his
attorney for failure to file a declaration, resulting in loss to the client.96 The
court noted, “It is undoubtedly true, that an attorney is liable for neglect of
duty, and that he is bound to make retribution to his client for the injury
which he may thereby sustain.”97 As in Pitt, the Court in Stephens did not
find the attorney liable for an honest mistake, premising liability for
the “basic position of the marriage relationship in this society’s hierarchy of values and
the concomitant state monopolization of the means for legally dissolving this
relationship” (quoting Boddie, 401 U.S. at 371)).
92. Pitt v. Yalden, 4 Burr. 2060, 2061, 98 Eng. Rep. 74, 75 (K.B. 1767).
93. Id. at 75 (“[T]he remedy may be had by their clients against them, either in a
summary way; or by way of reference to the Master, ‘to see what damage the plaintiff
has suffered;’ or it may be sought by an action, if the plaintiff chooses that method.”
(quoting Fowler v. Windsor (Gr. Brit. July 3, 1788))).
94. Id. (“The attornies [sic] are far from having been guilty of any gross
misbehavior [sic]. It does not appear to me, that they were grossly negligent, or grossly
ignorant, or intentionally blamable: they were country attornies [sic]; and might not,
and probably did not know that this point was settled here above. The words of the Act
are not so explicit as to direct them clearly: and they might act innocently.”).
95. Stephens v. White, 2 Va. 203 (1796).
96. Id. at 209.
97. Id. at 211 (Carrington, J., concurring).
JOURNAL OF GENDER, SOCIAL POLICY & THE LAW
increasing reality for attorneys.104
malpractice only for gross negligence.98
The “gross negligence” requirement for liability remained firmly
grounded in American case law into the late 1800s.99
Towards the late
nineteenth century, courts began to reject the “gross negligence” standard
and assessed liability for acts of “ordinary” negligence.100 In subsequent
years, the concept of the “reasonable man” began to emerge in general tort
case law, with a parallel emergence in the standard of care for legal
As legal malpractice developed in the American
courts, the prevailing concept of an affirmative duty to use “reasonable
skill and diligence” evolved.102 To date, every American jurisdiction has
recognized attorneys’ liability to aggrieved clients under a theory of legal
Legal malpractice claims have therefore become an
In defining “legal malpractice,” leading scholars in the field, Ronald E.
Mallen and Jeffrey
M. Smith, take two different approaches: (
theoretical approach which defines malpractice as it relates to bases of
liability that are “unique” to the legal profession and concerns the quality
of professional services provided;105 and (
) a practical approach which
98. Id. at 209 (majority opinion).
99. See, e.g., Pearson v. Darrington, 32 Ala. 227, 260 (1842) (finding liability only
for gross negligence); Wilson v. Russ, 20 Me. 421, 424 (1841) (holding an attorney
liable if the client is “injured by the gross fault, negligence, or ignorance of the
attorney”); Fitch v. Scott, 4 Miss. 314, 317-18 (1839) (“The law implies a promise on
the part of attorneys, that they will execute the business entrusted to their professional
management, with a reasonable degree of care, skill and dispatch [sic], and they are
liable to an action, if guilty of a default in either of these duties, whereby their clients
are injured. There must, however, be gross negligence or ignorance, and if the attorney
acts to the best of his skill, and with a bona fide degree of attention, he will not be
responsible.” (citation omitted)); Morrill v. Graham, 27 Tex. 646, 651-52 (1864)
(finding liability only for gross negligence); Isham v. Parker, 29 P. 835, 843 (Wash.
1892) (holding attorney liable only for gross negligence or gross ignorance).
102. 1 MALLEN & SMITH, supra note 24, § 1:5; see also Pennington’s Ex’rs v. Yell,
11 Ark. 212, 231 (1850).
103. See 1 MALLEN & SMITH, supra note 24, § 1:1 (noting that all jurisdictions have
reported appellate decisions involving damage actions against attorneys for
104. See supra Part IV.A; 1 MALLEN & SMITH, supra note 24, § 1:1.
105. 1 MALLEN & SMITH, supra note 24, § 1:1.
NO LAUGHING MATTER
catalogs types of claims asserted against lawyers, e.g., claims brought by
adversaries or non-clients, claims filed in response to an action for
attorney’s fees, negligence in the
relationship,106 and negligence based on attorney error.107 Both approaches
entail the underlying principle of a duty owed to a client by his or her
attorney. The analysis of this duty varies by court depending on whether
the theory of the legal malpractice case is grounded in tort or contract.
V. BASIS OF A LEGAL MALPRACTICE CASE
A. Legal Malpractice—Tort or Contract?
In general terms, legal malpractice claims are grounded in either contract
or tort law.108
Some courts view the claims as a contract action arising
from the attorney’s breach of an implied promise to use a reasonable
degree of skill and care in the exercise of his professional duties.109 Other
courts, however, view it as a tort action that results from the attorney’s
breach of duty to use reasonable care—a duty created by the attorney-client
relationship.110 In some jurisdictions, the determination of whether a claim
falls under tort or contract is oftentimes ambiguous.111 Many courts do not
recognize the distinctions between the causes of action, and instead treat it
as a tort action regardless of how the claim is characterized.112 Plaintiffs in
106. See id. (noting that approximately one-fourth of legal malpractice claims are
based on alleged attorney error in handling the attorney-client relationship).
108. See AM. BAR ASS’N STANDING COMM. ON PROF’L RESPONSIBILITY, supra note
63, at 4 (stating that legal malpractice claims are generally based in either negligence or
breach principles); see also Jonathan M. Albano, Note, Contorts: Patrolling the
Borderland of Contract and Tort in Legal Malpractice Actions, 22 B.C. L. REV. 545,
546 (1981) (stating that legal malpractice claims actually fall somewhere in the
“borderland” between contract and torts (citing William Prosser, The Borderland of
Tort and Contract, in SELECTED TOPICS IN THE LAW ON TORTS (1953))).
109. 1 MALLEN & SMITH, supra note 24, § 8:6; see also MacLellan v. Throckmorton,
367 S.E.2d 720, 721 (Va. 1988).
110. See, e.g., Jones v. Wadsworth, 791 P.2d 1013, 1015 (Alaska 1990); Funnell v.
Jones, 737 P.2d 105, 109 (Okla. 1985).
111. In Massachusetts, for example, a plaintiff may elect to bring either a breach of
contract action or an action in tort without having to choose between the two labels.
See Hendrickson v. Sears, 310 N.E.2d 131, 132 (Mass. 1974) (citing Ashley v. Root, 4
Allen 504, 506 (1862)); see also Collins v. Reynard, 607 N.E.2d 1185, 1186 (Ill. 1992);
Blanche M. Manning, Legal Malpractice: Is It Tort or Contract?, 21 LOY. U. CHI. L.J.
741, 742 (1990).
112. See Ray Ryden Anderson & Walter W. Steele, Jr., Fiduciary Duty, Tort and
Contract: A Primer on the Legal Malpractice Puzzle, 47 SMU L. REV. 235, 235 (1994)
(citing Chi. Title Ins. Co. v. Holt, 244 S.E.2d 177, 180 (N.C. Ct. App. 1978)); see also
Woodburn v. Turley, 625 F.2d 589, 592 (5th Cir. 1980); Black v. Wills, 758 S.W.2d
809, 814 (Tex. App. 1988); Pham v. Nguyen, 763 S.W.2d 467, 469 (Tex. App. 1988);
Gabel v. Sandoval, 648 S.W.2d 398, 399 (Tex. App. 1983); Citizens State Bank v.
Shapiro, 575 S.W.2d 375, 386 (Tex. Civ. App. 1978).
JOURNAL OF GENDER, SOCIAL POLICY & THE LAW
legal malpractice cases are particularly concerned with the tort versus
contract debate where the choice will impact any applicable statute of
limitations or a statute providing a remedy or damage recovery.113
plaintiff in a
majority of jurisdictions is able to choose the
procedurally-friendly cause of action in bringing suit against the
attorneydefendant.114 Notwithstanding the theory of recovery, the standard for the
legal malpractice claim is the same regardless of whether the case is one of
breach of contract or negligence,115 with the attorney being liable for all
damages proximately caused by his or her wrongful act.116
Legal scholars have noted that the distinction between tort and contract
in legal malpractice claims is “artificial” at best, and have proposed that
courts should not be bound by such distinctions, but instead should “look
behind form to the gist of the action.”117
Many courts have heeded the
admonition and, recognizing the similarity between actions of legal
malpractice brought in tort and those brought in contract, have shown an
inclination to overlook historical distinctions in doctrine and apply the
principle that recurring fact situations
deserve similar treatment.118
Appreciating the similarities between tort and contract legal malpractice
113. 1 MALLEN & SMITH, supra note 24, § 8:1.
114. See Denzer v. Rouse, 180 N.W.2d 521, 523 (Wis. 1970); cf. Flaherty v.
Weinberg, 492 A.2d 618, 627 (Md. 1985); Hutchinson v. Smith, 417 So. 2d 926, 927
(Miss. 1982). See generally RONALD E. MALLEN & VICTOR B. LEVIT, LEGAL
MALPRACTICE § 382 (2d ed. 1981) (stating that generally the court begins with the
parties’ pleadings, thereby allowing the plaintiff in the suit to direct the path of the
115. See generally  Laws. Man. on Prof. Conduct (ABA/BNA) (indicating
that negligence and breach of contract are common theories of malpractice liability, but
intentional misconduct may also be a source of liability to clients). Whether a
malpractice claim is fashioned under a tort or contract theory, the consideration
becomes important as to the applicable statute of limitations. See Albano, supra note
108, at 545-46 (“Of particular importance to a plaintiff in a legal malpractice action are
different rules of tort and contract regarding the length of the statute of limitations;
accrual of the cause of action for statute of limitation purposes; survivability of the
action; and types of damages recoverable.” (footnote omitted)); Dreyfus, supra note
101, at 921.
116. 3 MALLEN & SMITH, supra note 24, § 21:4.
117. See Albano, supra note 108, at 546 (submitting that the original justifications
for certain distinctions between tort and contract no longer exist, and that justice
demands equal rules be applied to all plaintiffs in legal malpractice actions, regardless
of the form in which the suit is brought).
118. See id. at 551, 554 (noting that the essential similarity between the suits
militates in favor of applying similar rules regarding statute of limitations, accrual date,
and survivability of the action); see also Lidner v. Eicher, 232 N.Y.S.2d 240, 245 (App.
Div. 1962) (noting that although the negligence was not the gravamen of the complaint,
it was still an integral part of the breach of contract claim where the attorney performed
his task unskillfully); Registered Cnty. Homebuilders, Inc. v. Stebbins, 179 N.Y.S.2d
602, 604 (App. Div. 1958) (noting that damages for negligent errors is contractual not
tort). But see Cherokee Rest., Inc. v. Pierson, 428 So. 2d 995, 998 (La. Ct. App. 1983)
(stating that only when an attorney breaches an express warranty does an action for
breach of contract arise).
NO LAUGHING MATTER
claims, this Article will specifically analyze the legal malpractice claim
premised on a tort theory in order to highlight the opportunity for the courts
to use that cause of action to enhance professionalism in the legal arena.
B. Prima Facie Case Under Tort Theory
The elements of a legal malpractice119 claim arising from a civil action
mirror those required for any civil tort claim rooted in negligence: a duty, a
breach, causation, and damages.120 From a technical standpoint, the courts
have recognized five elements (or some combination thereof)121 as
necessary to form a prima facie case of legal malpractice: (
) the existence
of an attorney-client relationship;122 (
) a duty owed to the client as a result
119. Where the malpractice claim is brought by a client against an attorney who
represented him or her in a criminal matter, it is often termed “criminal malpractice.”
See Rebecca A. Copeland, Toward a More Effective Standard of Review: The Potential
Effect of Burdine v. Johnson on Legal Malpractice in Texas, 33 ST. MARY’S L.J. 849,
864 (2002) (analyzing and identifying “criminal malpractice”); David H. Potel,
Comment, Criminal Malpractice: Threshold Barriers to Recovery Against Negligent
Criminal Counsel, 1981 DUKE L.J 542, 542-43 (1981) (stating that the elements of civil
and criminal malpractice are identical).
120. Copeland, supra note 119, at 864.
121. See, e.g., WILLIAM L. PROSSER, HANDBOOK OF THE LAW OF TORTS 143 (4th ed.
1971) (indicating that cause-in-fact and proximate cause are often combined into a
122. 1 MALLEN & SMITH, supra note 24, § 8:4. While the prevailing law is that an
attorney owes a duty to his client, some court decisions have held lawyers liable to
nonclients in legal malpractice claims, imposing a duty as a matter of public policy; see
Levin v. Gulf Ins. Grp., 82 Cal. Rptr. 2d 228, 229-30 (Ct. App. 1999) (holding that
opposing party attorneys were liable for intentional interference with prospective
economic advantage when, after receiving notice of a lien for attorney fees from the
plaintiff, they paid the new counsel of the plaintiff’s former client instead); McCamish,
Martin, Brown & Loeffler v. F.E. Appling Interests, 991 S.W.2d 787 (Tex. 1999);
Murphy v. Cain, 711 S.W.2d 302, 304 (Tex. Ct. App. 1986) (stating that an attorney
can be liable as a principal for a contract if he expressly or impliedly assumed liability
for a contract on behalf of the client); 1 MALLEN & SMITH, supra note 24, §§ 6:1-6:29.
But see Homeowners’ Assistance Corp. v. Merrimack Mortg. Co., No. CV-99-132,
2000 WL 33679263, at *3 (Me. Super. Jan. 24, 2000) (stating that privity of contract
need not be shown for a negligent representation but negligent misrepresentation is not
equivalent to a professional malpractice claim as there is no duty owed to the
nonclient). However, the states remain split regarding whether privity between the
attorney and the legal malpractice plaintiff is required to maintain the cause of action.
The differing standards and allowance for non-clients to file legal malpractice claims is
outside the scope of this Article; see H. Robert Fiebach, Expanding the Plaintiff Pool,
81 A.B.A. J. 76 (1995) (discussing the success of nonclients in malpractice claims
against lawyers); see also David J. Beck & Geoff A. Gannaway, The Vitality of Barcelo
After Ten Years: When Can an Attorney Be Sued for Negligence by Someone Other
than His Client? 58 BAYLOR L. REV. 371, 373 (2006); Forest J. Bowman, Lawyer
Liability to Non-clients, 97 DICK. L. REV. 267, 267 (1993); Edward S. Cheng, An
Attorney’s Duty to Non-clients, 37 NEW ENG. L. REV. 55, 55 (2002); Jay M. Feinman,
Attorney Liability to Nonclients, 31 TORT & INS. L.J. 735, 735 (1996); Todd A. Fuller,
Attorney Liability to Estate Beneficiaries: The Privity Passes Through, 100 DICK. L.
REV. 29, 29 (1995); Ronald E. Mallen, Duty to Nonclients: Exploring the Boundaries,
37 S. TEX. L. REV. 1147, 1147-48 (1996); Orintha E. Karns, Note, Professional
Responsibility—Two’s Company, Three’s a Crowd? The Implications of Attorney
Liability to Non-client Beneficiaries Connely v. McColloch (In re Estate of Drwenski),
JOURNAL OF GENDER, SOCIAL POLICY & THE LAW
of the attorney-client relationship;123 (
) breach of the attorney duty by
failure to perform in accordance with established standards of care or
conduct of a “reasonable attorney”; (4) establishment that the breach was
the proximate cause of injury or loss;124 and (5) the existence of
The inception of the attorney-client relationship marks the
point at which the attorney owes a duty to the client.126 Once the plaintiff
satisfies his or her burden of proof and establishes the existence of the
attorney-client relationship,127 the plaintiff must then provide evidence of a
breach of the attorney’s fiduciary duty.128 This element is satisfied where
the plaintiff establishes that the attorney acted in a negligent manner.129
The plaintiff must next prove causation, i.e., that the attorney’s negligence
(or breach of contract) was in fact the cause of the harm.130 The causation
analysis requires both a determination of cause-in-fact, and proximate/legal
cause.131 An attorney is subsequently liable for any foreseeable loss caused
83 P.3d 457 (Wyo. 2004), 5 WYO. L. REV. 525, 525 (2005); John M. Limbaugh, Note,
The Sacrificial Attorney: Assignment of Legal Malpractice Claims, 65 MO. L. REV.
279, 283-84 (2000).
123. 1 MALLEN & SMITH, supra note 24, §§ 8:2, 8:3.
124. Id. § 8.4; see also Milbank, Tweed, Hadley & McCloy v. Boon, 13 F.3d 537,
543 (2d Cir. 1994) (upholding a $2 million verdict, finding that the traditional “but for”
causation test was not required and that if the attorney’s conduct was a “substantial
factor” in causing loss, the client should prevail); Resolution Trust Corp. v. Stroock &
Stroock & Lavan, 853 F. Supp. 1422, 1425, 1427-28 (S.D. Fla. 1994) (stating that the
“but for” relationship between the negligence and damages is not required to establish
legal causation under Florida law).
125. 2 MALLEN & SMITH, supra note 24, § 19:1.
126. See generally BURKOFF, supra note 8.
127. See McGlone v. Lacey, 288 F. Supp. 662, 665-66 (D.S.D. 1968) (“[I]t is the
general rule that an attorney’s liability for malpractice is limited to some duty owed to
a client. . . . Where there is no attorney/client relationship there is no breach or
dereliction of duty and therefore no liability.”); Kurtenbach v. TeKippe, 260 N.W.2d
53, 56 (Iowa 1977); Dreyfus, supra note 101, at 913-14 (noting that in order to prove a
duty exists, the client must prove the existence of an attorney-client relationship;
whether the attorney-client relationship exists is a question of fact).
128. Scholars have suggested that a separate cause of action be allowed for breach
of an attorney’s fiduciary standard to a client, defining the fiduciary standard as a “duty
to exercise in all his relationships with this client-principal the most scrupulous honor,
good faith, and fidelity to his client’s interest.” Anderson & Steele, supra note 112, at
236 (quoting Daugherty v. Runner, 581 S.W.2d 12, 16 (Ky. Ct. App. 1978)).
129. See 2 MALLEN & SMITH, supra note 24, § 15:2.
131. For a full discussion of the causation element of a legal malpractice claim, see
generally Mahaffey, supra note 27 (arguing in favor of using the “but-for” test to
determine cause-in-fact in the transactional legal malpractice context); Richard H. W.
Maloy, Proximate Cause: The Final Defense in Legal Malpractice Cases, 36 U. MEM.
L. REV. 655, 656 (2006) (discussing the defendant-attorney’s ability to defeat recovery
by showing that the plaintiff has failed in her burden of establishing the attorney as the
legal source of her damages); John B. Spitzer, Legal Malpractice: A Recent Discussion
of the “But-for” Causation Requirement, 53 PRAC. LAW. 9 (2007).
NO LAUGHING MATTER
by his negligent actions (i.e., his breach of the fiduciary duty).132
plaintiff may recover for both tangible and intangible injuries, including
It is this notion of “negligent actions” (i.e., those actions that fall below
the threshold of a reasonable attorney) that provides fertile ground for the
applicability of professionalism.
In most banal terms, in order for an
attorney to comply with the necessary duty of care, the “‘degree of care,
skill, diligence, and knowledge commonly possessed and exercised by a
reasonable, careful, and prudent lawyer in the practice of law’” must be
exercised.134 In order to determine the appropriate “degree of care, skill,
diligence and knowledge,” the trier of fact employs the use of expert
witnesses, i.e. testimony by other lawyers.135
VI. USE OF EXPERT TESTIMONY TO ESTABLISH STANDARD OF CARE
All professionals are required to possess the “skill and knowledge
normally possessed by members of that profession.”136 As a professional,
an attorney is recognized as possessing “knowledge and skill superior to
that of the ordinary person,” and is therefore held to this higher standard of
care.137 As with other civil negligence claims against professionals, except
in cases of gross negligence,138 the trier of fact depends on testimony of
132. 2 MALLEN & SMITH, supra note 24, §19:1.
133. Carlson v. Ill. Farmers Ins. Co., 520 N.W.2d 534, 536 (Minn. Ct. App. 1994);
Air Fla., Inc., v. Zondler, 683 S.W.2d 769, 773 (Tex. App. 1985); Lawrence W.
Kessler, The Unchanging Face of Legal Malpractice: How the “Captured” Regulators
of the Bar Protect Attorneys, 86 MARQ. L. REV. 457, 481 (2002) (citing Potter v.
Firestone Tire & Rubber Co., 863 P.2d 795 (Cal. 1993)).
136. RESTATEMENT (SECOND) OF TORTS § 299A (1965).
137. W. PAGE KEETON ET AL., PROSSER AND KEETON ON THE LAW OF TORTS 185 (5th
ed. 1984) (noting that a person with knowledge, skill, or intelligence superior to that of
the ordinary person must employ those special skills in conducting himself with due
care); 2 MALLEN & SMITH, supra note 24, § 20:1 (citing Daugherty v. Runner, 581
S.W.2d 12 (Ky. Ct. App. 1978))); Theobald v. Byers, 13 Cal. Rptr. 864, 866 (Dist. Ct.
138. In cases where breach of the standard of care is obvious, the finder of fact
needs no further guidance. See, e.g., Wagenmann v. Adams, 829 F.2d 196, 219-20 (1st
Cir. 1987) (holding that “gross or obvious” malpractice resulted when a lawyer did
nothing to prevent an apparently sane client from being committed to a mental
institution); Lane v. Cold, 882 So. 2d 436, 438 (Fla. Dist. Ct. App. 2004) (requiring no
expert testimony in a suit against an attorney for malpractice in failing to prepare a
buy-sell agreement); Collins v. Greenstein, 595 P.2d 275, 283, 286 (Haw. 1979)
(holding that attorney’s negligence was sufficiently clear when he failed to raise
affirmative defenses in answer); Bernstein v. Glavin, 725 N.E.2d 455, 458, 462 (Ind.
Ct. App. 2000); Bowman v. Doherty, 686 P.2d 112, 112 (Kan. 1984) (failure to appear
in court); Cent. Cab Co. v. Clarke, 270 A.2d 662, 662 (Md. 1970) (failure to notify
JOURNAL OF GENDER, SOCIAL POLICY & THE LAW
expert witnesses to establish the “reasonableness” of challenged conduct.139
The same is true of the use of expert witnesses to establish liability in legal
malpractice cases140 by determining the “reasonableness” of an attorney’s
During the action for legal malpractice, the question of
reasonableness ordinarily relates not so much to what was done as to
whether the attorney’s acts were within the law’s standards for the due
care, skills, and diligence required.141 In essence, the expert must testify as
to whether or not the attorney acted as a “reasonable attorney” would,
exercising the “skill and knowledge ordinarily142 possessed by attorneys” in
the same jurisdiction.143
To be credible, the testimony rendered by the
expert should not be contrary to any applicable Rules of Professional
The strength or weakness of the expert witness’ testimony
client of termination of representation); Joos v. Auto-Owners Ins. Co., 288 N.W.2d
443, 443 (Mich. Ct. App. 1979) (failure to settle upon client’s request); Carbone v.
Tierney, 864 A.2d 308, 314 (N.H. 2004) (noting that expert opinion testimony is
unnecessary “where the subject presented is within the realm of common knowledge
and everyday experience”); Gayhart v. Goody, 98 P.3d 164, 169 (Wyo. 2004)
(recognizing a layperson’s ability to determine the appropriate standard of care by his
own common sense and experience); cf. Hooks v. Ciccolini, No. 20745, 2002 WL
1023172, at *3 (Ohio Ct. App. May 15, 2002) (finding that allegations that the attorney
breached his duty of care by advising legal malpractice plaintiff to plead guilty to
burglary and gun specification, failing to test cocaine, and failing to timely provide
plaintiff with his file were not so obvious that malpractice could be determined by trier
of fact without expert testimony).
139. See Noske v. Friedberg, 713 N.W.2d 866, 871 (Minn. Ct. App. 2006); Luvene
v. Waldrup, 903 So. 2d 745, 748 (Miss. 2005) (“Expert testimony is ordinarily
necessary to support an action for legal malpractice.”); Stoeckel v. Twp. of Knowlton,
902 A.2d 930, 938 (N.J. Super. Ct. App. Div. 2006) (stating that an expert is usually
required to explain a breach of duty); 2 MALLEN & SMITH, supra note 24, § 20:7;
Munneke & Davis, supra note 135, at 56 (“An essential aspect of the professional
standard of care is the notion that the reasonableness of particular conduct engaged in
by members of a group may be established by looking at the conduct of other members
of the group in similar circumstances.”).
140. For a general discussion of use of expert witnesses in legal malpractice cases,
see Michael P. Ambrosio & Denis F. McLaughlin, The Use of Expert Witnesses in
Establishing Liability in Legal Malpractice Cases, 61 TEMP. L. REV. 1351 (1988).
141. See 14 AM. JUR. Trials § 14 (1968).
142. The difference between “reasonable” and “ordinary” was noted by Mallen and
Smith: “The ultimate test of competence is reasonable conduct, which is determined by
the standard of care that requires the exercise of skill and knowledge ordinarily
possessed by attorneys under similar circumstances. ‘Ordinary’ care . . . is not based
on what some other lawyers do . . . the standard is objectively based on what lawyers
should do.” 2 MALLEN & SMITH, supra note 24, § 20:3.
144. See, e.g., Miami Int’l Realty Co. v. Paynter, 841 F.2d 348, 353 (10th Cir. 1998)
(permitting expert testimony so long as expert did not testify that the ethical standards
had the force and effect of a law); Day v. Rosenthal, 217 Cal. Rptr. 89 (Dist. Ct. App.
1985) (noting that expert testimony was not required because the standards governing
an attorney’s ethical duties are conclusively established by the Rules of Professional
Conduct and cannot be changed by expert testimony).
NO LAUGHING MATTER
often determines the outcome of the case.145
The courts rely on the
testimony to analyze the following criteria: (
) requisite skill and
) the degree of skill and knowledge to be possessed and
) the effect of local considerations and custom; and (4) any
special abilities possessed by the lawyer.146
The required skills and
knowledge should encompass the lawyer’s ability to reveal his or her
competency in a manner befitting a legal professional.
The tenets of
professionalism, therefore, should
vital consideration in the
determination of whether or not a lawyer acted in a manner acceptable to
the profession not just within the limits, but above the directives of any
applicable ethical rules.
VII. USE OF ETHICAL RULES IN LEGAL MALPRACTICE CLAIMS
The use of legislatively-enacted statutes, administrative codes, and
regulatory provisions is not foreign to tort law. For instance, federal, state,
and legislatively-enacted provisions are often analyzed to elicit the
appropriate standard of care in a given profession or industry;147 and the
doctrine of negligence per se is predicated on proof of a violation of a
statute or code.148
The professional responsibility of attorneys has long
been governed by codes and regulatory provisions in the form of ethical
standards and rules.149 In 1908, the American Bar Association promulgated
the Canons of Professional Ethics.150
The subsequent Model Code of
Professional Responsibility was adopted in 1969,151 and after a series of
145. See, e.g., Lentino v. Fringe Emp. Plans, Inc., 611 F.2d 474, 480 (3d Cir. 1979)
(requiring expert testimony to establish the relevant standard); Bonhiver v. Rotenberg,
Schwartzman & Richards, 461 F.2d 925 (7th Cir. 1972) (reversing a finding of liability
due to the lack of expert testimony); Dorf v. Relles, 355 F.2d 488, 492 (7th Cir. 1966)
(reciting the requirement of expert witness testimony in medical and attorney
malpractice cases); Fitzgerald v. Walker, 747 P.2d 752, 752, 757 (Idaho 1987) (ruling
that a client’s testimony is insufficient); Kubik v. Burk, 540 N.W.2d 60, 64 (Iowa Ct.
App. 1995); Sanders v. Smith, 496 P.2d 1102, 1104-05 (N.M. Ct. App. 1972); Roy v.
Diamond, 16 S.W.3d 783 (Tenn. Ct. App. 1999) (noting that the probative value of
prior findings of fact and judgment from disciplinary proceeding was not substantially
outweighed by the danger of unfair prejudice where there was also expert testimony
that attorney violated the applicable standard of care); KEETON, supra note 137, at 188
n.49 (noting that, because juries are composed of laypersons, they “are normally
incompetent to pass judgment on questions of [professional judgment and] the great
majority of [professional negligence cases hold] that there can be no finding of
negligence in the absence of expert testimony”); see also 14 AM. JUR. Trials § 14
146. 2 MALLEN & SMITH, supra note 24, § 18:12.
147. Munneke & Davis, supra note 135, at 68.
149. See Eric H. Steele & Raymond T. Nimmer, Lawyers, Clients and Professional
Regulations, 1 AM. B. FOUND. RES. J. 917 (1976).
150. MODEL RULES OF PROF’L CONDUCT preface (
JOURNAL OF GENDER, SOCIAL POLICY & THE LAW
revisions, the widely used
Model Rules of Professional Conduct was
adopted in 1983.152 Currently, almost every state Bar has adopted a version
of the Model Rules of Professional Conduct.153 As the Scope of the Model
Rules notes, the Rules are “partly obligatory and disciplinary and partly
constitutive and descriptive in that they define a lawyer’s professional
role”154 by “provid[ing] a framework for the ethical practice of law.”155
The cross-jurisdictional adoption of the Rules suggests a widely-accepted
commonality of attorney behavior standards.156
Failure to avoid prohibited actions, or to comply
imposed by the Rules, “is a basis for invoking the disciplinary process.”157
By allowing for disciplinary proceedings against lawyers who violate the
Model Rules of Professional Conduct, both the profession and the public
generally are protected from lawyer misconduct.158
between the ethical rules and malpractice becomes evident where the basis
for a disciplinary complaint serves as a basis for a malpractice action.159 A
plaintiff injured by an attorney’s malpractice may have a valid disciplinary
153. Id. (noting that all but eight states have adopted some form of the Model Rules
of Professional Conduct).
154. MODEL RULES OF PROF’L CONDUCT pmbl. & scope § 14 (
) (“The Rules of
Professional Conduct are rules of reason. They should be interpreted with reference to
the purposes of legal representation and of the law itself. Some of the Rules are
imperatives, cast in the terms ‘shall’ or ‘shall not.’ These define proper conduct for
purposes of professional discipline. Others, generally cast in the term ‘may,’ are
permissive and define areas under the Rules in which the lawyer has discretion to
exercise professional judgment. No disciplinary action should be taken when the
lawyer chooses not to act or acts within the bounds of such discretion. Other Rules
define the nature of relationships between the lawyer and others. The Rules are thus
partly obligatory and disciplinary and partly constitutive and descriptive in that they
define a lawyer’s professional role. Many of the Comments use the term ‘should.’
Comments do not add obligations to the Rules but provide guidance for practicing in
compliance with the Rules.”).
155. Id. § 16 (“Compliance with the Rules, as with all law in an open society,
depends primarily upon understanding and voluntary compliance, secondarily upon
reinforcement by peer and public opinion and finally, when necessary, upon
enforcement through disciplinary proceedings. The Rules do not, however, exhaust the
moral and ethical considerations that should inform a lawyer, for no worthwhile human
activity can be completely defined by legal rules. The Rules simply provide a
framework for the ethical practice of law.”).
156. See Munneke & Davis, supra note 135, at 44 (“Widespread adoption of the
Model Rules represents a growing consensus about how lawyers ought to act, because
the Rules now establish a cross-jurisdictional commonality of behavioral standards.”).
157. MODEL RULES OF PROF’L CONDUCT pmbl. & scope § 19 (
); see also
Munneke & Davis, supra note 135, at 44 (stating the disciplinary system is designed to
protect the interests of the public and the integrity of the legal profession from the
misconduct of lawyers).
158. Munneke & Davis, supra note 135, at 45 (“The disciplinary system [was] . . .
designed to protect the profession as a whole and the public generally.”).
159. See id. at 34.
NO LAUGHING MATTER
complaint against the lawyer under the applicable ethical rules.160 For
example, violation of Model Rule 1.1 may subject a lawyer to disciplinary
action, and also provide a basis for a legal malpractice case where the
lawyer’s negligence, in not “provid[ing] competent representation,” causes
damage to the client.161 As the State v. Anthony case illustrates, Attorney
Jose Baez’s “laughing guy” statement could have been included as a basis
for both disciplinary action and a legal malpractice claim had the case
outcome been different.162 The same is true where the lawyer fails to
“diligently represent”163 the client or “expedite”164 litigation in keeping
with the client’s interests. In instances where the Model Rules are violated,
the client may be able to proceed under either theory (disciplinary system
or civil malpractice suit) or obtain dual recovery via both.165
Two key differences set ethical rule violations apart from legal
malpractice suits, however. First, even in instances where a client initiates
a disciplinary complaint against her lawyer, the client is not subsequently
involved in any disciplinary proceedings that flow therefrom.166 Second, in
order for a client to prevail on a legal malpractice claim, proximate
damages must be proven.167 Conversely, a lawyer may be disciplined for
violation of the ethical rules regardless of any anticipated or proven
damages.168 These differences might provide support against the use of a
disciplinary rule as a principle of law or standard for defining civil
conduct.169 Yet it has been aptly observed that where the rule involves
conduct that would subject the lawyer to malpractice, “the ethical rule
arguably has a bearing on the lawyer’s duty to act with reasonable care
toward the client.”170 As such, legal malpractice plaintiffs often cite the
Model Rules of Professional Conduct when contending that a lawyer has
160. For example, a lawyer’s failure to comply with Model Rule 1.1 (“A lawyer
shall provide competent representation to a client. Competent representation requires
the legal knowledge, skill, thoroughness and preparation reasonably necessary for the
representation.”) would subject the lawyer to disciplinary action. MODEL RULES OF
PROF’L CONDUCT R. 1.1 (
162. See supra Part I.
163. MODEL RULES OF PROF’L CONDUCT R. 1.3 (
) (“Diligence: A lawyer shall
act with reasonable diligence and promptness in representing a client.”).
164. MODEL RULES OF PROF’L CONDUCT R. 3.2 (
165. Munneke & Davis, supra note 135, at 44 (citing Harry J. Haynsworth, Business
Lawyers Under Fire—Potential Ethical Sanctions and Liability, Q246 ALI-ABA 23).
166. See, e.g., Slotnick v. Pike, 370 N.E.2d 1006 (Mass. 1977).
167. 3 MALLEN & SMITH, supra note 24, § 21:1.
168. Richard Klien, Legal Malpractice, Professional Discipline, and Representation
of the Individual Defendant, 61 TEMP. L. REV. 1171, 1176 (1998).
169. 1 MALLEN & SMITH, supra note 24, § 1:9.
170. Munneke & Davis, supra note 135, at 45.
JOURNAL OF GENDER, SOCIAL POLICY & THE LAW
breached a professional duty.171
The applicability of ethical rules in the determination of legal
malpractice cases has generated much spirited debate among legal scholars
and in the courts. Some commentators have argued in favor of a position
that rules of professional conduct have a rightful place in civil litigation172
and “create certain specific standards of lawyer behavior that constitute a
minimum standard of conduct and a minimum standard of care for every
individual attorney practicing in each jurisdiction.”173
criticized the use of ethical rules in legal malpractice cases,174 stating that
ethical rules and “regular law” occupy separate and distinct domains,175 and
that common law remedies are sufficient for legal malpractice cases.176
The trend in the majority of courts is to admit evidence of ethical rules as
relevant to the determination of the lawyer’s duty and standard of care.177
171. Cunitz, supra note 52, at 638.
172. See, e.g., Daniel L. Draisen, The Model Rules of Professional Conduct and
Their Relationship to Legal Malpractice Actions: A Practical Approach to the Use of
the Rules, 21 J. LEGAL PROF. 67 (1996) (stating that courts should assist lawyers by
firmly establishing the Rules as a gauge for measuring appropriate conduct); Ann
Peters, The Model Rules as a Guide for Legal Malpractice, 6 GEO. J. LEGAL ETHICS
173. Munneke & Davis, supra note 135, at 33 (concluding that ethical violations are
relevant and admissible as to the professional standard of care in legal malpractice); see
also Leubsdorf, supra note 75, at 101 (supporting use of the Model Rules to determine
applicable lawyer behavior); Peters, supra note 172, at 633-34 (arguing that the use of
the Rules as a basis of malpractice claims, or at least as evidence of minimum standard
care, should be expanded); Lewis J. Ross, Commentary, Violation of the Code of
Professional Responsibility as Stating a Cause of Action in Legal Malpractice, 6 OHIO
N.U. L. REV. 692, 696-99 (1979); Charles W. Wolfram, The Code of Professional
Responsibility as a Measure of Attorney Liability in Civil Litigation, 30 S.C. L. REV.
281, 286-95 (1979); Note, The Evidentiary Use of the Ethics Codes in Legal
Malpractice: Erasing a Double Standard, 109 HARV. L. REV. 1102 (1996) (arguing
that courts should allow relevant provisions of the Model Rules or the Model Code to
be introduced in a legal malpractice proceeding to help a plaintiff establish the proper
standard of care).
174. See, e.g., Robert Dahlquist, The Code of Professional Responsibility and Civil
Damage Actions Against Attorneys, 9 OHIO N.U. L. REV. 1, 29-30 (1982); Jean E.
Faure & R. Keith Strong, The Model Rules of Professional Conduct: No Standard for
Malpractice, 47 MONT. L. REV. 363, 374-78 (
); David J. Fish, Note, The Use of
the Illinois Rules of Professional Conduct to Establish the Standard of Care in Attorney
Malpractice Litigation: An Illegal Practice, 23 S. ILL. U. L.J. 65 (1998) (specifically
criticizing the use of the Illinois Rules of Professional Conduct in legal malpractice
cases); Laura K. Thomas, Comment, Professional Conduct—Lazy Seven Coal Sales,
Inc. v. Stone & Hinds, P.C.: The Code of Professional Responsibility as a Basis for
Attorney Liability, 22 MEM. ST. U. L. REV. 169, 185 (1991).
175. Stephen E. Kalish, How to Encourage Lawyers to Be Ethical: Do Not Use the
Ethics Codes as a Basis for Regular Law Decisions, 13 GEO. J. LEGAL ETHICS 649, 650
176. Faure & Strong, supra note 174, at 365 (concluding that common law remedies
are sufficient and that use of the Model Rules as a practice standard is impractical).
177. Ronald C. Minkoff & Amelia K. Seewan, Defending Legal Malpractice
Actions Alleging Conflicts of Interest, in 172 PRACTICING L. INST. N.Y. PRAC. SKILLS
COURSE HANDBOOK SERIES 109, 117 (2007); Douglas R. Richmond, Why Legal Ethics
NO LAUGHING MATTER
It is widely accepted that a violation of an ethical rule does not, in and of
itself, give rise to a private cause of action against a lawyer,178 nor should it
Rules Are Relevant to Lawyer Liability, 38 ST. MARY’S L.J. 929, 946 (2007); Kathleen
J. McKee, Annotation, Admissibility and Effect of Evidence of Professional Ethics
Rules in Legal Malpractice Action, 50 A.L.R. 5th 301 (1997) (providing a state by state
analysis of the law).
178. See, e.g., Davin, L.L.C. v. Daham, 746 A.2d 1034, 1044 n.3 (N.J. Super. Ct.
App. Div. 2000) (“[A] cause of action may not be based solely on a violation of the
Rules of Professional Conduct. While the Rules of Professional Conduct may provide
guidance to the court in determining whether a duty exists, they do not provide an
independent cause of action.” (citation omitted)); see also Bickel v. Mackie, 447 F.
Supp. 1376 (N.D. Iowa 1978), aff’d, 590 F.2d 341 (8th Cir. 1978); Merritt-Chapman &
Scott Corp. v. Elgin Coal, Inc., 358 F. Supp. 17, 22 (E.D. Tenn. 1972), aff’d, 477 F.2d
598 (5th Cir. 1973); Terry Cove N., Inc. v. Marr & Friedlander, P.C., 521 So. 2d 22, 24
(Ala. 1988) (“[A]n alleged violation of a Disciplinary Rule of the Code of Professional
Responsibility cannot, independently, serve as a legal basis for a civil action for money
damages.”); Allen v. Allison, 155 S.W.3d 682, 690 (Ark. 2004) (“[T]he rules are not
designed for a basis of civil liability, but are to provide guidance to lawyers and to
provide a structure for regulatory conduct through disciplinary agencies.” (quoting
Orsini v. Larry Moyer Trucking, Inc., 833 S.W.2d 366 (
))); BGJ Assocs. v.
Wilson, 7 Cal. Rptr. 3d 140, 147 (Ct. App. 2003) (reiterating that the Professional
Rules do not impose civil liability); Biller Assocs. v. Peterken, 849 A.2d 847, 851
(Conn. 2004) (recounting that a client must have more than merely a rules violation to
have a private cause of action); Mozzochi v. Beck, 529 A.2d 171, 175 (Conn. 1987)
(“[V]iolations of the Code of Professional Responsibility do not give rise to any private
cause of action for legal malpractice by anyone, including an attorney’s client.”);
Television Capital Corp. of Mobile v. Paxson Commc’ns Corp., 894 A.2d 461, 469
(D.C. 2006) (stating that a violation of the Rules does not constitute a per se “breach of
the attorney’s common law fiduciary duty to the client” (quoting Griva v. Davison, 637
A.2d 830, 846-47 (D.C. 1994))); Beach Higher Power Corp. v. Rekant, 832 So. 2d 831,
834 n.2 (Fla. Dist. Ct. App. 2002) (discussing the Florida Rules of Professional
Conduct while acknowledging that they are not determinative in a private cause of
action); Fernandes v. Barrs, 641 So. 2d 1371, 1374 (Fla. Dist. Ct. App. 1994) (stating
that a client’s reliance on a rule to prove a legal duty had been breached was
misplaced); Threatt v. Rogers, 604 S.E.2d 269, 273 (Ga. Ct. App. 2004) (reiterating
that the Code of Professional Responsibility regulates merely conduct and cannot be
the sole support for a client’s cause of action); In re Disciplinary Bd. of Haw. Sup. Ct.,
984 P.2d 688, 695 (Haw. 1999); Owens v. McDermott, Will & Emery, 736 N.E.2d 145,
157 (Ill. App. Ct. 2000); Kizer v. Davis, 369 N.E.2d 439, 444 (Ind. Ct. App. 1977);
OMI Holdings, Inc. v. Howell, 918 P.2d 1274, 1288 (Kan. 1996); Nelson v. Miller, 607
P.2d 438, 451 (Kan. 1980); L & H Airco, Inc. v. Rapistan Corp., 446 N.W.2d 372, 380
(Minn. 1989) (“[A] violation of the Rules of Professional Conduct cannot give rise to a
private action against an attorney. The Rules are intended to discipline attorneys, not
provide a basis for civil liability.” (citation ommitted)); Baxt v. Liloia, 714 A.2d 271,
274-75 (N.J. 1998); Sanders, Bruin, Coll & Worley, P.A. v. McKay Oil Corp., 943
P.2d 104, 107 (N.M. 1997); Schwartz v. Olshan Grundman Frome & Rosenzweig, 753
N.Y.S.2d 482, 487 (App. Div. 2003); Baars v. Campbell Univ., Inc., 558 S.E.2d 871,
879 (N.C. Ct. App. 2002) (reiterating that “‘a breach of a provision of the Code of
Professional Responsibility is not ‘in and of itself . . . a basis for civil liability.’’”
(quoting Webster v. Powell, 391 S.E.2d 204, 208 (N.C. Ct. App. 1990))); Witzke v.
City of Bismarck, 718 N.W.2d 586, 591 (N.D. 2006) (citing Olson v. Fraase, 421
N.W.2d 820, 828 (N.D. 1988)); Bob Godfrey Pontiac, Inc. v. Roloff, 630 P.2d 840 (Or.
1981); Maritrans GP Inc. v. Pepper, Hamilton & Scheetz, 602 A.2d 1277, 1284 (Pa.
1992); DiLuglio v. Providence Auto Body, Inc., 755 A.2d 757, 772 n.16 (R.I. 2000);
Behrens v. Wedmore, 698 N.W.2d 555, 575-76 (S.D. 2005) (quoting Standish v.
Sotavento Corp., 755 A.2d 910, 915 (Conn. App. Ct. 2000)); Winchester v. Little, 996
S.W.2d 818, 825-26 (Tenn. Ct. App. 1998); Archuleta v. Hughes, 969 P.2d 409, 414
JOURNAL OF GENDER, SOCIAL POLICY & THE LAW
create any presumption of breach of a legal duty in a malpractice case.179
Still, courts routinely elicit the Rules in legal malpractice decisions,180
albeit with inconsistent application as a decision-making tool. The courts
have taken different approaches to the applicability of the Rules, to wit: as
“rebuttable evidence” of malpractice,181 as “some,”182 or “relevant”183
179. MODEL RULES OF PROF’L CONDUCT pmbl. & scope (
). Section 19 reads:
Failure to comply with an obligation or prohibition imposed by a Rule is a
basis for invoking the disciplinary process. The Rules presuppose that
disciplinary assessment of a lawyer’s conduct will be made on the basis of the
facts and circumstances as they existed at the time of the conduct in question
and in recognition of the fact that a lawyer often has to act upon uncertain or
incomplete evidence of the situation. Moreover, the Rules presuppose that
whether or not discipline should be imposed for a violation, and the severity of
a sanction, depend on all the circumstances, such as the willfulness and
seriousness of the violation, extenuating factors and whether there have been
Section 20 states as follows:
Violation of a Rule should not itself give rise to a cause of action against a
lawyer nor should it create any presumption in such a case that a legal duty has
been breached. In addition, violation of a Rule does not necessarily warrant
any other nondisciplinary remedy, such as disqualification of a lawyer in
pending litigation. The Rules are designed to provide guidance to lawyers and
to provide a structure for regulating conduct through disciplinary agencies.
They are not designed to be a basis for civil liability. Furthermore, the purpose
of the Rules can be subverted when they are invoked by opposing parties as
procedural weapons. The fact that a Rule is a just basis for a lawyer’s
selfassessment, or for sanctioning a lawyer under the administration of a
disciplinary authority, does not imply that an antagonist in a collateral
proceeding or transaction has standing to seek enforcement of the Rule.
Nevertheless, since the Rules do establish standards of conduct by lawyers, a
lawyer’s violation of a Rule may be evidence of breach of the applicable
standard of conduct.
180. See, e.g., BCCI Holdings (Luxemborg), S.A. v. Clifford, 964 F. Supp. 468, 481
(D.D.C. 1997) (stating that a breach of the District of Columbia’s attorney ethical
standards can constitute breach of a fiduciary duty owed to client); cf. Lysick v.
Walcom, 65 Cal. Rptr. 406, 413 (Ct. App. 1968) (discussing the application of Legal
Ethics rules as well as the Rules of Professional Conduct of California in a legal
malpractice suit); Beach Higher Power Corp. v. Rekant, 832 So. 2d 831, 834 (Fla. Dist.
Ct. App. 2002) (holding that a lawyer cannot hide behind his profession in legal
malpractice claims); Crest Inv. Trust, Inc. v. Comstock, 327 A.2d 891, 902 (Md. Ct.
Spec. App. 1974) (referring to multiple states’ rules on attorney-client relationships in a
legal malpractice suit).
181. E.g., Hart v. Comerica Bank, 957 F. Supp. 958, 981 (E.D. Mich. 1997) (holding
that, under Michigan law, violations of Model Rules of Professional Conduct create a
rebuttable presumption of legal malpractice); Lipton v. Boesky, 313 N.W.2d 163,
16667 (Mich. 1981) (“The Code . . . is a standard of practice for attorneys which expresses
in general terms the standards of professional conduct expected of lawyers in their
relationships with the public, the legal system, and the legal profession. Holding a
specific client unable to rely on the same standards in his professional relations with his
own attorney would be patently unfair.”); Beattie v. Firnschild, 394 N.W.2d 107, 109
(Mich. App. 1986). But see MODEL RULES OF PROFESSIONAL CONDUCT pmbl. & scope
) (“Violation of a Rule should not give rise to a cause of action nor should it
create any presumption that a legal duty has been breached. . . . [The Rules] are not
designed to be a basis of civil liability. . . . Accordingly, nothing in the Rules should be
deemed to augment any substantive legal duty of lawyers or the extra-disciplinary
evidence of the duty owed, or as a breach of the professional standard of
Some courts however, hold that the Rules have no application in
legal malpractice cases. Operating under the premise that ethical rules are
designed to maintain the integrity of the profession, and to provide for
discipline and regulation of lawyers,185 courts have viewed the duties
explicit in the Rules as a “public obligation” for which the appropriate
remedy is a public one, such as a disciplinary hearing.186
As such, the
minority of courts taking a restrictive approach refuse to permit the use of
ethical rules in establishing the standard of care in legal malpractice
cases.187 Others, however, use the rules as a means to deny liability.188
consequences of violating such a duty.”).
182. See dePape v. Trinity Health Sys., Inc., 242 F. Supp. 2d 585, 609 (N.D. Iowa
2003) (holding that violating the Iowa Code of Professional Responsibility constitutes
some evidence of negligence); Watkins & Watkins, P.C. v. Williams, 518 S.E.2d 704,
706 (Ga. Ct. App. 1999) (noting that the rules of the State Bar of Georgia may be
considered along with other facts and circumstances to determine whether an attorney
treated his client with the requisite degree of skill and care); Fanaras Enters, Inc. v.
Doane, 666 N.E.2d 1003, 1006 (Mass. 1996) (noting that violation of a disciplinary
rule “may be some evidence of the attorney’s negligence”); Mainor v. Nault, 101 P.3d
308, 321 (Nev. 2004) (en banc) (per curiam) (allowing ethical rules to serve as an
indicator of the requisite standard of care); McNair v. Rainsford, 499 S.E.2d 488, 494
(S.C. Ct. App. 1998) (holding that an attorney’s failure to comply with the Rules of
Professional Conduct is “merely circumstance” that may be considered in determining
whether the attorney acted with reasonable care in fulfilling his or her legal duties to
the client); see generally 2 MALLEN & SMITH, supra note 24, § 18:7.
183. Cummings v. Sea Lion Corp., 924 P.2d 1011, 1020 (Alaska 1996) (noting that
while the rules do not constitute a basis for malpractice liability, they are relevant to
what duty the attorney owes to the client); Roy v. W.T. Diamond, 16 S.W.3d 783, 791
(Tenn. Ct. App. 1999) (noting that a violation of the Code of Professional
Responsibility may be relevant evidence in a subsequent civil case).
184. Munneke and Davis, supra note 135, at 33 (noting that although this practice is
by no means universally accepted, the implications of the trend are noteworthy); see
also Day v. Rosenthal, 217 Cal. Rptr. 89 (Dist. Ct. App. 1985) (holding that standards
governing an attorney’s ethical duties are conclusively established by the Rules of
Professional Conduct, and cannot be changed by expert testimony).
185. 2 MALLEN & SMITH, supra note 24, § 18:7.
186. See, e.g., Standish v. Sotavento Corp., 755 A.2d 901, 915 (Conn. App. Ct.
2000) (stating that the rules of professional conduct are designed to provide guidance to
lawyers and to provide a structure for regulating conduct through disciplinary agencies,
and they are not designed to be a basis for civil liability); Hill v. Willmott, 561 S.W.2d
331, 333-34 (Ky. App. 1978); see also Merritt-Chapman & Scott Corp. v. Elgin Coal,
358 F. Supp. 17, 22 (E.D. Tenn. 1972), aff’d, 477 F.2d 598 (5th Cir. 1973); Bob
Godfrey Pontiac, Inc. v. Roloff, 630 P.2d 840, 848 (Or. 1981); Martin v. Trevino, 578
S.W.2d 763, 770 (Tex. Civ. App. 1979).
187. See, e.g., Boccone v. Eichen Levinson LLP, 301 Fed. App’x. 162, 168 (3d Cir.
2008) (holding that an attorney’s violation of the New Jersey Rules of Professional
Conduct does not give rise to a cause of action or create any presumption that a legal
duty has been breached); Toler v. Brackin, 710 So. 2d 415, 416 (Ala. 1998) (“[A]
violation of the Rules of Professional Conduct may not be used as evidence, regardless
of whether the attorney has been charged with a violation of those Rules.”); Lazy
Seven Coal Sales, Inc. v. Stone & Hines, P.C., 813 S.W.2d 400, 405 (Tenn. 1991)
(“[I]n a civil action charging malpractice, the standard of care is the particular duty
owed the client under the circumstances of the representation, which may or may not
be the standard contemplated by the Code.”); Hizey v. Carpenter, 830 P.2d 646, 648
JOURNAL OF GENDER, SOCIAL POLICY & THE LAW
The efficacy of using the Model Rules in legal malpractice cases has also
been addressed by the American Law Institute in its 2000 edition of the
Restatement (Third) of the Law Governing Lawyers.189 The Restatement
(Third) establishes that proof of a violation of a rule or statute regulating
lawyers’ conduct is relevant to the standard of care in legal malpractice
cases, so long as the rule or statute was designed to protect the person
bringing the claim and is relevant to the claim.190
The Model Rules of Professional Conduct similarly provide boundaries
to the use of the rules. In its Preamble to the Model Rules of Professional
Conduct, the American Bar Association states:
Violation of a Rule should not itself give rise to a cause of action against
a lawyer nor should it create any presumption in such a case that a legal
duty has been breached.
In addition, violation of a Rule does not
nondisciplinary remedy, such
disqualification of a lawyer in pending litigation.
The Rules are
designed to provide guidance to lawyers and to provide a structure for
regulating conduct through disciplinary agencies. They are not designed
to be a basis for civil liability. Furthermore, the purpose of the Rules can
be subverted when they are invoked by opposing parties as procedural
The ABA’s suggested restrictions on the use of the Model Rules in civil
claims have been touted as “virtually meaningless” disclaimers,192 and
deemed “predictably futile . . . if not fatuous.”193
Norms stated as obligatory standards of a vocation are generally held to
be evidence of the legal standard of care in practicing that vocation, or at
least as a predicate for expert testimony as to what that standard is.
Thus, notwithstanding the bar’s attempted disclaimer in writing
(Wash. 1992) (en banc) (holding that, in a legal malpractice action, the jury may not be
informed of the Code of Professional Responsibility or Rules of Professional Conduct,
either directly through jury instructions, or through the testimony of an expert who
refers to the CPR or RPC); see also Archuleta v. Hughes, 969 P.2d 409, 413-14 (Utah
1998) (concluding that the Utah Rules of Professional Conduct do not provide a basis
for a legal malpractice claim and stating that “[t]he legal standards applicable to
malpractice claims are entirely adequate to protect clients as plaintiffs”).
188. See, e.g., Galu v. Attias, 923 F. Supp 590, 596 (S.D.N.Y. 1996); Flatt v. Super.
Ct., 885 P.2d 950, 953 (Cal. 1994); Carlson v. Fredrikson & Byron, P.A., 475 N.W.2d
882, 888 (Minn. Ct. App. 1991).
189. See RESTATEMENT (THIRD) OF THE LAW GOVERNING LAWYERS § 52(
191. MODEL RULES OF PROF’L CONDUCT pmbl. & scope, § 20 (
192. Munneke and Davis, supra note 135, at 41.
193. Geoffrey C. Hazard, Jr., Lawyers and Client Fraud: They Still Don’t Get It, 6
GEO. J. LEGAL ETHICS 701, 718-19 (1993).
NO LAUGHING MATTER
Despite its “disclaimers,” the ABA has recognized that, at the very least,
a lawyer’s violation of a Rule may be evidence of breach of the applicable
standard of conduct.195 Even though the Rules may not carry the same
force as statutes or case law, they are indubitably considered to elicit
generally accepted behavioral norms.196 The Rules are, therefore, not
elicited specifically for evidence of professional standards because the rules
themselves so provide, “but because of the need for consistent, knowable
principles for lawyers to follow.”197 This need for consistency is even more
glaring in light of the professionalism deficit in the legal profession.
VIII. PROFESSIONALISM AS EVIDENCE OF THE STANDARD OF CONDUCT
As noted above, the ABA’s attempted restriction on the use of the Rules
in legal malpractice cases has generated much comment with valid
arguments for and against use of the Rules. Little attention has, however,
been paid to the legitimate use of an acceptably-defined notion of
professionalism as evidence of the standard of conduct. Without actual
applicability of the Rules to legal malpractice cases, guidance can be
gleaned from the scope of the rules in assessing the propriety of
professionalism in the legal malpractice analysis.
The first provision of the Preamble to Model Rules of Professional
Conduct states that “[a] lawyer, as a member of the legal profession, is a
representative of clients, an officer of the legal system and a public citizen
having special responsibility for the quality of justice.”198 This
responsibility is further clarified in section seven of the Preamble, which
Many of a lawyer’s professional responsibilities are prescribed in the
Rules of Professional Conduct . . . . However, a lawyer is also guided by
personal conscience and the approbation of professional peers [and] . . .
should strive to attain the highest level of skill, to improve the law and
the legal profession and to exemplify the legal profession’s ideals of
The principles of the Rule are applicable “both in professional service to
clients and in the lawyer’s business and personal affairs,”200 and are to be
applied while maintaining a professional, courteous, and civil attitude
195. MODEL RULES OF PROF’L CONDUCT pmbl. & scope, § 20 (
196. Dranoff, supra note 1, at 642, 659.
197. Leubsdorf, supra note 75, at 119.
198. MODEL RULES OF PROF’L CONDUCT pmble & scope, § 1 (
199. Id. § 7.
JOURNAL OF GENDER, SOCIAL POLICY & THE LAW
toward all persons involved in the legal system.201
The principles inherent in the Rules reflect the tenets of the lawyer’s
position as that of a fiduciary to her clients and the general public. As
stated by one Texas court, “[T]he relationship between attorney and client
has been described as one of uberrima fides, which means, ‘most abundant
good faith,’ requiring absolute and perfect candor, openness and honesty,
and the absence of any concealment or deception.”202 In operating under
those qualities, lawyers must uphold the standards demanded of the
In 1947, Judge Learned Hand espoused his famous “formula” for
determining the duty of a “reasonable person.”203
As stated in algebraic
terms by Judge Hand, “[I]f the probability be called P; the injury, L; and
the burden, B; liability depends upon whether B is less than L multiplied by
P: i.e., whether B less than PL.”204 The “formula” calls for a balancing of
the probability of injury or loss against the cost or burden of preventing
such injury/loss.205 The reasonable person would balance the probabilities,
and act in accordance: forsake the burden of the action if it is outweighed
by the probability of injury/loss.
When it comes to a determination of the duty of the “reasonable person”
in the context of legal malpractice cases, in keeping with Judge Hand’s
theory of liability, courts make policy judgments in deciding whether the
defendant should be thought of as being obligated to either act in a specific
manner or take a “certain sort of care” in dealing with the client.206 The
defendant-attorney’s actions are therefore reviewed to determine if they
201. Id. § 9 (“Many difficult issues of professional discretion can arise. Such issues
must be resolved through the exercise of sensitive professional and moral judgment
guided by the basic principles underlying the Rules. These principles include the
lawyer’s obligation zealously to protect and pursue a client’s legitimate interests,
within the bounds of the law, while maintaining a professional, courteous, and civil
attitude toward all persons involved in the legal system.”).
202. Perez v. Kirk & Carrigan, 822 S.W.2d 261, 265 (Tex. App. 1991).
203. United States v. Carroll Towing Co., 159 F.2d 169, 173 (2d Cir. 1947)
(explaining that the Court had to determine whether the absence of a bargee or other
attendant would make the owner of the barge liable for injuries to other vessels caused
by the barge breaking away from her moorings). In assessing the duty of the barge
owner, the court addressed three variables: (
) the probability that the barge would
break away; (
) the gravity of the resulting injury if the break-away occurred; and (
the burden of adequate precautions. Id.
206. See Benjamin C. Zipursky, Legal Malpractice and the Structure of Negligence
Law, 67 FORDHAM L. REV. 649, 657 (1998) (“To be sure, courts are making a sort of
policy judgment when they decide upon ‘duty’ or ‘no duty,’ but the word ‘duty’ is not
merely a placeholder. Courts are primarily deciding whether it is plausible to think of
the defendant as obligated to take a certain sort of care toward the plaintiff or the class
of persons to which she belongs—whether it makes sense to think of the defendant as
having a duty of care running to the plaintiff.”).
NO LAUGHING MATTER
conform to the standard skill, knowledge, and diligence brought to bear on
similar matters by a lawyer of ordinary competence.207
Currently, there is no precise application of the standard of care in legal
malpractice cases, but there is a majority consensus regarding the need for
“reasonable”208 or “ordinary”209 care to be exercised. “The essence of a
malpractice action is a violation of the standard of care.”210 As one scholar
noted, setting this standard “requires considering what lawyers should do,
not merely looking to what they actually do.”211
At the most fundamental level, the legal malpractice action provides a
remedy for negligent professional performance.212
A lawyer’s actions
(both those he actually does, and those he should do) must be viewed in
light of the totality of his standing as a member of the legal profession.
Lawyers, as professionals, belong to what Dean Roscoe Pound coined in
1953 as a “traditionally dignified calling.”213 Dean Pound noted that this
group (lawyers) was pursuing a “learned art . . . in the spirit of a public
service—no less a public service because it may incidentally be a means of
207. See GEOFFREY C. HAZARD, JR. ET AL., THE LAW AND ETHICS OF LAWYERING
187 (2d ed. 1994) (“[S]tandard of care is determined by the skill, knowledge and
diligence brought to bear on similar matters by a lawyer of ordinary competence.”).
208. See, e.g., Bernard v. Las Americas Commc’ns, Inc., 84 F.3d 103, 109 (2d Cir.
1996) (holding that an attorney breaches her duty if she “fails to perform with
reasonable skill,” which is the skill an attorney must display “to avoid tort liability”
(citation omitted)); Hart v. Comerica Bank, 957 F. Supp. 958, 981 (E.D. Mich. 1997)
(obligating an attorney to “use reasonable skills, discretion, and judgment in
representing clients, thereby assuming a position of the highest trust and confidence”
(citation omitted)); McClung v. Smith, 870 F. Supp. 1384, 1391 (E.D. Va. 1994)
(charging the attorney with “the obligation to use a reasonable degree of care, skill and
diligence in handling the matters entrusted to them”); Baird v. Pace, 752 P.2d 507, 509
(Ariz. Ct. App. 1987) (requiring an attorney to “act for his client in a reasonably careful
and skilled manner in view of his special professional knowledge”); Pugh v. Griggs,
940 S.W.2d 445, 447 (Ark. 1997) (finding an attorney liable if she “fails to exercise
reasonable diligence and skill on behalf of the client” (citation omitted)); Kerschner v.
Weiss & Co., 667 N.E.2d 1351, 1356 (Ill. App. Ct. 1996) (holding an attorney liable to
his client when he “fails to exercise a reasonable degree of care and skill” (citation
209. See, e.g., Focus Inv. Assocs. v. Am. Title Ins. Co., 992 F.2d 1231, 1239 (1st
Cir. 1993) (holding that a plaintiff in Rhode Island must prove “want of ordinary care
and skill” by an attorney (citations omitted)); Mylar v. Wilkinson, 435 So. 2d 1237,
1239 (Ala. 1983) (requiring “an ordinary and reasonable level of skill, knowledge, care,
attention and prudence common to members of the legal profession in the community”
(citation omitted)); Kubik v. Burk, 540 N.W.2d 60, 64 (Iowa Ct. App. 1995)
(obligating an attorney to use “knowledge, skill, and ability ordinarily possessed and
exercised by members of the legal profession in similar circumstances” (citation
210. Anderson & Steele, supra note 112, at 249.
211. Leubsdorf, supra note 75, at 111 (emphasis added).
212. See MALLEN & SMITH, supra note 24, §§ 1:1, 3.
213. ROSCOE POUND, THE LAWYER FROM ANTIQUITY TO MODERN TIMES 5 (1953).
Pound was Dean of Harvard Law School at the time of publication of his book.
JOURNAL OF GENDER, SOCIAL POLICY & THE LAW
livelihood.”214 As such, Dean Pound suggested that this esteemed group
should “aspire to exhibit behaviors consistent with the professional status,”
behavior he described as “professionalism.”215 With data evidencing no
decline in the number of legal malpractice cases, coupled with empirical
evidence of a relation between a lawyer’s competence and his behavior, the
time is ripe for “professionalism” as envisioned by Dean Pound and
defined supra216 to shift from an aspirational goal to a place devoid of
apathy regarding its application—a position where lawyers recognize the
impact that is caused by failure to adhere to the stated professionalism
standards. The general civil liability system, which allows for liability for
proximately caused injuries, provides incentive for certain desired
behavior. According probative value to evidence of actions reflecting
professionalism, or a lack thereof, in the legal malpractice arena will
provide a compelling incentive for professionally and socially acceptable
lawyer behavior. Incorporating the professionalism element into the
determination of the “reasonable attorney” standard in legal malpractice
cases will encourage and ultimately enhance professionalism in legal
society. It would underscore the daily necessity of moral discretion and
behavior consistent with the obligation and calling, and promote good
character through the “excellence of judgment.”217 Lawyers would have a
compelling reason to not simply hold the title of “lawyer,” but to obtain the
status of one who declares his or her devotion to both the practice and the
well-being of the law—a true “connoisseur of the law.”218
To do otherwise would constitute neglect of duties owed legally and
socially to clients and the public in general. This would, in turn, create an
opportunity to move beyond the apathetic practice of toeing the line219 and
shift to a more formalized structure of accountability in the ethos of legal
215. Id. at 29.
216. See supra Part III.A.
217. See Anthony V. Aliferi, The Fall of Legal Ethics and the Rise of Risk
Management, 94 GEO. L.J. 1909, 1928 (2006) (“Good character depends on the
qualities of intellectual skill and excellence of judgment.”).
218. ANTHONY KRONMAN, THE LOST LAWYER 11-52 (4th prtg. 1995) (identifying
“connoisseurs” of the law as those who declare their devotion to the well-being of the
219. See generally Nicola A. Boothe-Perry, Professionalism’s Triple E Query: Is
Legal Academia Enhancing, Eluding, or Evading Professionalism?, 55 LOY. L. REV.
517, 518 (2009) (discussing the “existing and growing population of attorneys that
have yet to cross the line into ‘unethical hell[,]’ [who are simply toeing the line that
would] cross into a realm where their unprofessional pattern of behavior threatens the
perceived sanctity of the profession”).
NO LAUGHING MATTER
Lawyers play a vital role in the preservation of society.220 Legal
academia, the bench, and the bar would all likely agree that one common
goal of the legal community is to maintain professional standards and
enhance quality—even going so far as to acknowledge the need for
increased professionalism. Accomplishment of this goal, however, will not
occur by simple exhortation. An objective review of the nexus between
high numbers of legal malpractice cases and the lack of professionalism
evidences that the time is proper to integrate professionalism in the
determination of legal malpractice cases as part of the lawyer regulatory
system as a whole. By admitting evidence of professionalism in legal
malpractice cases, the edict will be clear to the legal community regarding
the importance of acting in accordance with the true ideology of being a
lawyer: an ideology grounded beyond competence in the attitudes, beliefs,
spirit, and values of the legal profession. Short of proposing that
professionalism or evidence of lack thereof creates a civil duty, or
establishes the standard of care, it is evident that at the very least, the
probative and persuasive evidentiary value should be a consideration in
every legal malpractice case in determining the standard of care.
220. MODEL RULES OF PROF’L CONDUCT pmbl. & scope (
I. Preface : The “Laughing Guy” Statement ...................................................2
III. Professional Conduct , Disciplinary Conduct, and Legal Malpractice Defined ........................................................................... 7 A. Professional Conduct/Professionalism Defined .......................... 8 B. Disciplinary Conduct Defined .....................................................9 C. Legal Malpractice Defined ........................................................10
IV. Current State of Malpractice .................................................................11 A. The Rise of Legal Malpractice Cases ........................................ 11 B. Potential Limitations to Use of Legal Malpractice Claims ....... 14 1. Limited Ability for Direct Effect on Lawyers ..................... 15 2. Courts Lack of Impartiality & Potential for Subjective Standards.............................................................................. 15 3 . Objection to Greater Lawyer Regulation.............................15 C. The History of the Legal Malpractice Case...............................17
V. Basis of a Legal Malpractice Case..........................................................19 A. Legal Malpractice-Tort or Contract? ...................................... 19 B. Prima Facie Case Under Tort Theory........................................21
VI. Use of Expert Testimony to Establish Standard of Care .......................23
VII. Use of Ethical Rules in Legal Malpractice Claims ..............................25
VIII. Professionalism as Evidence of the Standard of Conduct...................33
IX. Conclusion............................................................................................. 37 1 . David L. Dranoff, Comment, Attorney Professional Responsibility:
Competence Through Malpractice Liability , 77 NW. U. L. REV. 633 , 642 ( 1982 ). 2. Indictment , State v. Anthony (Fla. Cir. Ct. Oct . 14 , 2008 ), available at
http://i2.cdn.turner.com/cnn/2008/images/10/15/caylee.indictment. pdf. 3. Id. 4. Transcript of Closing Arguments at 3-4 , State v. Anthony, No. 48 -2008-CF-
015606- O (Fl. Cir . Ct. July 3 , 2011 ) (emphasis added). 5. Casey Anthony Trial: Tears and Laughter During Closing Arguments , RADAR
(July 3 , 2011 , 10 :30 AM), http://www.radaronline.com/print/48652. 6. See Threats of Sanctions, Punishment Against Lawyers for Both Sides in Casey 7 . Michael Winter , Casey Anthony Acquitted of Murder, USA TODAY (July 5,
2011 ), http://content.usatoday.com/communities/ondeadline/post/2011/07/casey-
anthony-jury-reaches-verdict/1# . T-dH_I4mHLg . 8. See, e.g., Burdine v . Johnson , 262 F.3d 336 , 349 ( 5th Cir . 2001 ) (holding that
phase of the trial); see also Glenn v . Aiken , 569 N.E.2d 783 , 785 (Mass. 1991 ) (stating
DEFENSE ETHICS 50-54 (2d ed. 2012 ) (describing the relationship between legal
Johnson on Legal Malpractice in Texas, 33 ST . MARY'S L.J . 849 , 863 - 64 ( 2002 ); David
Negligent Criminal Counsel , 1981 DUKE L.J. 542 , 542 - 43 ( 1981 ). 9. Federal Tort Claims Act (FTCA), 28 U.S.C. § 2680 (a) ( 2006 ). Under the
brought in state courts and in 42 U.S.C. § 1983 actions in federal courts for conduct
falling within the scope of his or her prosecutorial duties . Id . 10 . The Preamble to the Model Rules of Professional Conduct states that “[a]
RULES OF PROF'L CONDUCT , pmbl . & scope, §§ 7 , 9 ( 2011 ). In addition, the Model
8.3 states that it is professional misconduct to violate the Rules, which includes Rule
1.1 on competence and Rule 1.3 on diligence . MODEL RULES OF PROF'L CONDUCT R.
8. 3 , 1 .1, 1 .3 ( 2011 ). 23 . Manuel Ramos , Legal Malpractice: The Profession's Dirty Little Secret , 47
VAND. L. REV . 1657 , 1681 ( 1994 ) [hereinafter Ramos , Dirty Little Secret]. 38 . Nicola A . Boothe-Perry , Standard Lawyer Behavior?: Professionalism as a
Standard for ABA Accreditation, 42 N.M. L. REV . 33 ( 2012 ) (enumerating a non-
exclusive list of professionalism characteristics , including: 42 . MODEL RULES OF PROF'L CONDUCT R . 2 .4(B) ( 2011 ). 43. State bar associations prescribe the applicable statutory time periods for filing
with due diligence, should have been discovered . FLA. BAR R. 3-7.16 (West 2012 ). In
disciplinary proceedings against an attorney . See D. C. BAR R. XI , § 1 (c) ( 2012 ). 44. FLA. BAR R. 3-5.1 . 45. A more in-depth discussion of the prima facie case of a legal malpractice claim
is detailed in Part V.B of this Article . See infra pp. 21 - 23 . 46 . See , e.g., Manuel R. Ramos , Legal Malpractice: No Lawyer or Client Is Safe,
47 FLA. L. REV. 1 , 46 ( 1995 ) [hereinafter Ramos, No Lawyer or Client] (“[T]he typical
MALPRACTICE LIABILITY 36 ( 1997 ))). 50 . In the 1980s, estimated legal malpractice claim payouts ranged from $3.8 to $4
a Lawyer's Lawyer and Law Professor, 57 OHIO ST . L.J. 863 , 866 ( 1996 ). 51 . See Ramos , No Lawyer or Client, supra note 46 , at 59-60 (discussing studies
OF DETERMINATIVE CHARACTERISTICS OF CLAIMS ASSERTED AGAINST ATTORNEYS 3
( 1986 ) (providing statistical data delineating percentiles of substantive errors, careless
administrative errors, client relations problems, intentional acts , and other reasons) . 52 . See Nicole A. Cunitz , Mandatory Malpractice Insurance for Lawyers: Is There
a Possibility of Public Protection Without Compulsion?, 8 GEO . J. LEGAL ETHICS 637 , 74. See Susan P. Koniak , When Courts Refuse to Frame the Law and Others Frame
It to Their Will, 66 S. CAL. L. REV . 1075 , 1079 - 91 ( 1993 ) (criticizing courts for
refusing to declare concrete standards for attorney behavior ). 100 . See , e.g., Babbitt v . Bumpus , 41 N.W. 331 , 337 (Mich. 1889 ); Hill v . Mynatt,
59 S.W. 163 , 166 (Tenn. Ct. App. 1900 ). 101 . 1 MALLEN & SMITH, supra note 24, § 1:5 (holding that a solicitor should not
Jeffreys , 172 Eng. Rep . 51 ( 1825 ))); Godefrey v . Dalton, 130 Eng. Rep . 1359 , 1359
(C.P . 1830 ) ; see also Fishman v . Brooks , 487 N.E.2d 1377 , 1379 (Mass. 1986 ) (“An
to Legal Malpractice Claims in Massachusetts?, 34 NEW ENG. L. REV. 907 , 914 ( 2000 )
(recognizing the duty of an attorney to a client (citing McLellan v . Fuller , 115 N.E.
481 , 481 - 82 (Mass. 1917 ))). 134 . Hansen v. Wightman , 538 P.2d 1238 , 1247 (Wash. Ct. App. 1975 ) (quoting
Cook , Flanagan & Berst v. Clausing , 438 P.2d 865 , 866 (Wash. 1968 )). 135 . Gary A. Munneke & Anthony E. Davis , The Standard of Care in Legal
Malpractice: Do the Model Rules of Professional Conduct Define It ?, 22 J. LEGAL
PROF. 33 , 74 ( 1998 ); Dranoff, supra note 1, at 645- 46 . 143 . See Lipton v. Boesky , 313 N.W.2d 163 , 165 (Mich. Ct. App. 1981 ); Martinson
Bros. v. Hjellum, 359 N.W. 2d 865 (N.D . 1985 ); Hizey v . Carpenter , 830 P. 2d 646
(Wash . 1992 ) ; see also 14 AM . JUR. Trials § 2 ( 1968 ).