Impact of Ethical Rules and Other Quasi-Standards on Standard of Care

A JURY'S determination of the propriety of the professional conduct of an attorney in a legal malpractice action requires a finding of fact that the defendant deviated from the standard of care applicable to attorneys. evolution of that standard of care has come to include the invocation of both judicially adopted rules of professional conduct and recommendations and guidelines promulgated by intraprofessional associations and writers. What these quasi-standards are and how courts and juries utilize them as a means of guiding and aiding their determination of the propriety of an attorney's professional conduct are the subjects of this article. STANDARD OF CARE A. General Standard of Care fundamental concept of a general standard of care is essentially an unchanging principle that proscribes negligent or other wrongful conduct on the part of the attorney. general standard attaches with the commencement of the attorney-client relationship. Determination of this standard, as well as the interrelated concept of duty, is exclusively the function of the court, rather than the jury.(1) Articulation of the general standard in legal malpractice cases, although lacking in complete uniformity, may be expressed thus: The attorney should exercise the skill and knowledge ordinarily possessed by attorneys under circumstances.(2) B. Specific Standard of Care breadth of the general standard of care renders it unusable as definitive of what an attorney should or should not have done in a given case, particularly if the question is to be determined by a jury. Refinement of the general standard to a specific standard, which is a jury function,(3) is required in virtually all cases. In the legal malpractice context, this is accomplished through jury determination of the similar circumstances and other factors present in each case.(4) Given the often inordinate complexity of legal malpractice cases, particularly those in which the plaintiff's burden includes proof of the within a case,(5) the transition from the general to the specific standard of care will require careful control by the court of evidence of the standard to which a jury is exposed. problem may be aggravated by the fact that courts have not been as ready, at least until recently, to require expert testimony on the legal malpractice standard of care as they have been in medical malpractice litigation.(6) ETHICS RULES AND THE LEGAL MALPRACTICE STANDARD OF CARE A. Impact Generally A relatively recent development in the law of legal malpractice is the increasing tendency of courts to cite or discuss ethical codes and rules--such as the American Bar Association Model Code of Professional Responsibility (1969) and its successor Model Rules of Professional Conduct (1983)--that have been adopted with some variations as a basis for lawyer discipline in virtually all states. Although initially aimed primarily at breaches of fiduciary obligations, the 1969 code introduced rules regarding professional negligence, which probably gave impetus to their expanded use in civil actions. Difficulties in applying disciplinary rules in legal malpractice actions result in large measure from the fact that the bases for invoking disciplinary action and implementation of the proceeding itself vary significantly from civil action principles.(7) Analysis of the legal malpractice standard of care frequently requires consideration of the potential impact of ethical rules. rules become relevant in those situations in which the attorneys must choose their course of conduct with an eye on the ethical dictates prevailing in their jurisdictions. California case of Kirsch v. Duryea(8) demonstrates that attorneys may insulate themselves from liability by selecting an alternative course of action required by applicable ethical rules. One issue before the California Supreme Court in that legal malpractice case was the propriety of the attorney-defendant's withdrawal from underlying medical malpractice litigation. …