Ethics Rules Violations Alone Don’t Constitute Malpractice Action, But May Be Used as Evidence
August 6, 2013
A violation of an Ohio Rule of Professional Conduct or related professional responsibility authority does not give rise to an independent all-elements legal malpractice action on its own. Preamble 20 to the Rules supports this: “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.” However, the Preamble goes on to state, “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.”1,2
The rationale for this rule is founded on the goals of the two separate actions, one disciplinary and one malpractice. The reasons for disciplinary actions are to protect the public interest, to safeguard the integrity of the courts, and to ensure that members of the bar are competent to practice a profession imbued with the public trust.3 These interests are different from the reasons for tort law, which provides a means of redress to individuals for damages suffered as a result of tortious conduct. Disciplinary actions also have a “clear and convincing evidence” standard, while legal malpractice cases have the lower “preponderance of the evidence” standard.
All of that notwithstanding, violations of the Rules and related authorities may be evidence that the attorney has breached the applicable standard of conduct to a client4, and “a successful disciplinary action may support a malpractice action for damages.” Conversely, conduct constituting legal mal most often does not rise to the disciplinary level.
- Krischbaum v. Dillon (1991) 58 Ohio St.3d 58. Express Travel Related Serv. Co. v. Mandilakis (1996), 111 Ohio App.3d 160 (8th Dist. 1996)
- David v. Schwarzwald et. al., (1992) 79 Ohio App.3d 786, 802; Palmer v. Westmeyer, (19880 48 Ohio App.3d 296, 298
- Disciplinary Counsel v. Trumbo, 76 Ohio St.3d 369 (1996)
- Findlay/Hancock Bar v. Filkins (2000) 90 Ohio St.3d 1,7