Friday, April 3, 2009
On the relation between the rules of professional conduct and the concept of duty
When we covered legal malpractice in class I mentioned that most states' rules of professional conduct state that they are not meant to illustrate duties in tort law, but that many (perhaps most) courts ignore this in the sense that they look at the rules as illustrations of proper conduct. In a new opinion from the Kansas supreme court, the court attempts to clarify the relation between the rules of ethical conduct and the concept of duty by stating that the rules of professional conduct do not create or recognize a claim in tort: "An attorney's violation of the ethics rules cannot create a cause of action to adverse litigants or even to clients. This is because the ethics rules do not impose a legal duty on the attorney owing to either a client or a third party. Occasionally, attorney conduct which violates an ethics rule may also violate an independent legal duty and a cause of action may ensue. It is the violation of the independent legal duty, not the ethics rule, that gives rise to a cause of action." The opinion is available here. Thanks to the Legal Profession blog for the information.