4.01. Introduction

In this topic, we move away from questions of sanctions imposed by disciplinary authorities and move into other avenues for regulating lawyers. The most significant of these is the dreaded “M” word – malpractice. Unlike discipline imposed by state bar associations, a lawyer that is held liable in a malpractice suit can be responsible for significant damages. Thus, lawyers often fear the thought of a malpractice claim as much as or more than a disciplinary complaint. Because of this, you need to know the elements of a malpractice claim and how to prove and defend one. We will also touch on another method of sanction – contempt – and we will distinguish between criminal and civil contempt. There are of course other ways to sanction a lawyer – through the procedural rules (Rule 11 of the rules of civil procedure) and criminal charges for conduct that violates criminal statutes. I will leave those topics to other classes (although in the Notes and Commentary I include information on a lawyer sentenced to 40 years for embezzling from an estate he represented).