The Rules of Professional Conduct and Malpractice Liability

Published January 2017
By: Nicole K. Atkinson

 Can violating the Rules of Professional Conduct get you sued?  Yes.  Violations of the Rules can and often do result in malpractice suits against lawyers.  Although a violation of a Rule of Professional Conduct alone is not enough to establish malpractice liability, it may be used as evidence of a lawyer’s negligence.  Pressley v. Farley, 579 So. 2d 160, 161 (Fla. 1st DCA 1991).

The Preamble to Florida’s Rules of Professional Conduct sheds light on this issue, providing:

Violation of a rule should not itself give rise to a cause of action against a lawyer nor should it create any presumption that a legal duty has been breached. In addition, violation of a rule does not necessarily warrant any other nondisciplinary remedy, such as disqualification of a lawyer in pending litigation.  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. . . . Nevertheless, since the rules do establish standards of conduct by lawyers, a lawyer’s violation of a rule may be evidence of a breach of the applicable standard of conduct.

Several Florida courts have addressed the practical implications of a Rule violation in legal malpractice suits.  First, it is clear that a violation of a Rule of Professional Conduct does not constitute negligence per se or create a presumption of negligence.  Id.; Pitcher v. Zappitell, 160 So. 3d 145, 148 (Fla. 4th DCA 2015).  The Rules are not designed to be a basis for civil liability, and they do not, themselves, create a legal duty on the part of the lawyer.  Id. Courts must look to substantive law to determine whether a lawyer owes a duty to a client.  Elkind v. Bennett, 958 So. 2d 1088, 1092 (Fla. 4th DCA 2007).   And causation and the other elements of a legal malpractice action must still be established.  Pressley, 579 So. 2d at 161; Pitcher, 160 So. 2d at 148.  Thus, merely alleging a violation of the Rules of Professional Conduct is not enough to state a cause of action for legal malpractice.  Id.; Rios v. McDermott, Will & Emery, 613 So. 2d 544, 545 (Fla. 3d DCA 1993).

 But a Rule violation may be used as evidence that a lawyer has breached the applicable duty of care.  Pressley, 579 So. 2d at 161; Pitcher, 160 So. 2d at 148.    Breach of a reasonable duty is an essential element of a legal malpractice claim. Elkind, 958 So. 2d at 1092.   And even though the Rules of Professional Conduct are not intended to be a basis for civil liability, the inclusion of a duty (such as the duty of confidentiality or the duty to provide competent representation) in the Rules does not prevent the breach of that duty from being enforced through a legal malpractice action.  Id.

Although a Rule violation may be evidence of malpractice, neither the Preamble to the Rules of Professional Conduct nor the case law mandates that the court admit evidence of a Rule violation.  Greenwald v. Eisinger, Brown, Lewis & Frankel, P.A., 118 So. 2d 867, 871 (Fla. 3d DCA 2013).  The decision of whether and how to admit such evidence is within the discretion of the trial court.  Id.  However, evidence of a lawyer’s violation of the Rules is often admitted through expert testimony.  See F.D.I.C. v. ICARD, 2013 WL 4402968 (M.D. Fla. August 15, 2013).

In sum, understanding and complying with the Rules of Professional Conduct is extremely important.  Beyond the already significant concerns lawyers should have about their professional reputations and bar licenses, a violation of the Rules of Professional Conduct can contribute to malpractice liability.

 

 

 

 

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