The Model Rules of Professional Conduct: No Standard for Malpractice

Legal malpractice claims are occuring with increasing frequency.Nationwide, there have been "more reported appellate decisions [pertaining to attorney malpractice] in the last fifteen years than in the preceding seventy years." 1 A similiar situation exists in Montana.In the first eight months of 1985, seventy individuals filed professional malpractice claims.2 Concomitantly, in the past two years, legal malpractice insurance companies have increased by 300 percent the premiums charged lawyers.3 Montana's problem is particularly alarming because the state reputedly has one of the worst loss ratios in the nation."Montana's courts can expect to face more questions about the nature and extent of an attorney's duty to a client.One question certain to arise is the new Model Rules' effect on that duty.Montana case law defines the nature of an attorney's duty to his client as one of reasonable care or skill.5 In defining this duty, the Montana Supreme Court has never considered whether a violation of the Code of Professional Responsibility' or the new Model Rules of Professional Conduct 7 indicates a failure to meet that standard of care.Montana courts have not discussed the Code or Model Rules as a measure of an attorney's duty to his client.Montana's Code has been used exclusively in disclipinary actions.8 In cases unrelated to malpractice, courts have consistently