4.02.03. Breach

A lawyer breaches a duty to her client when she fails to exercise the competence and diligence normally exercised by lawyers in similar situations.  Here is how one court put it:  the plaintiff must “prove . . . that a reasonably prudent lawyer faced with the same circumstances would have either done something the defendant did not do, or would have refrained from doing something the defendant did.”[1]

In almost all cases, the client must put on expert testimony to establish breach.  The most common method is to bring in a lawyer who practices in the area of law under dispute.  For example, if a client is suing a lawyer who represented her in a divorce action, to establish that the attorney breached the duty owed to the client, the client should put forward an expert whose practice involves divorces to say that a lawyer who practices in the area would or would not have taken the same action as the lawyer-defendant.  There are some situations (extremely rare) where the breach of duty is so obvious that an expert is not needed because a lay person would recognize the breach even without an expert.  The classic example of this is where the lawyer missed the statute of limitations.  The belief is that an expert is not needed to demonstrate why missing the statute of limitations breaches a duty to the client.

An important issue arises in the course of establishing breach:  what role do the Rules of Professional Conduct play?  Your gut reaction might be that violation of the ethics rules must establish the breach of a duty owed to the client (after all – isn’t the purpose of the rules to establish an attorney’s obligations?).  If that is what you thought, you might be surprised to learn that it is not correct.  The Rules of Professional Conduct are intended to establish a basis for discipline and are not intended to establish the breach of a duty in a negligence action.  Paragraph 20 of the Scope section of the ABA Rules says: “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 . . .  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.”[2]   

So what does this mean?  It means that a client cannot argue that because a lawyer violated Rule 1.1 (competence) and Rule 1.3 (diligence) that they have established duty and breach.  There must be more.  The client must put on evidence of how a reasonable lawyer would have acted under the circumstances and show that this lawyer failed to do that.  It is not enough just to point to the ethics rules.  If the ethics rules alone do not establish a lawyer’s duty or the breach of a duty – do they play any role in a legal malpractice case?  Yes, and they can play a very important role.  Here is what the Scope section says after noting that the Rules alone should not be used to establish a duty or breach: “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.”[3]

Here is how the rules can be used.  A client sues a lawyer who represented her in a divorce action.  The lawyer charges the client $10,000 for the divorce.  Subsequently the lawyer fails to research the basic requirement to obtain alimony for his client, so the client loses her right to alimony.  At the trial, the client calls as an expert a lawyer who has practiced representing individuals in divorces for many years.  The lawyer testifies: (1) no lawyer would have charged more than $5,000 for this type of divorce case; and (2) that any minimally competent lawyer who practices divorce law would know the requirements to obtain alimony.  Thus, the lawyer has testified that the actions of this lawyer fell below the minimum standards of lawyers practicing in the area.  The lawyer also testifies as to the following: (1) charging such a large amount is unethical under Rule 1.5; and (2) not knowing about the law of alimony is incompetent under Rule 1.1.  In this way the violation of the ethics rules is evidence that a lawyer has breached a duty – but the violation does not alone establish a breach.

[1] Baker Donelson v. Muirhead, 920 So. 2d 440, 449 (Miss. 2006).

[2] ABA Rules of Professional Conduct, Scope [20].

[3] ABA Rules of Professional Conduct, Scope [20].