Are the Rules Of Professional Conduct Relevant To Malpractice Cases?

The Rules Of Professional Conduct

Illinois has adopted its own version of the American Bar Association’s Model Rules of Professional  Conduct.  The Illinois version is known as the Illinois Rules of Professional Conduct of 2011.  The prior version was known as the Illinois Rules of Professional Conduct of 1990.

The Rules of Professional Conduct govern the conduct of attorneys in all aspects of the attorney-client relationship.  Illinois lawyers have a duty of competence (Rule 1.1), diligence (Rule 1.3), and communication (Rule 1.4).  Rule 1.5 governs fee agreements.  It allows the attorney to charge on an hourly basis or on a contingency fee basis.  A contingency fee is a percentage of the amount recovered.  For example, an attorney who accepts a matter on a contingent fee basis may charge a fee of one-third of the amount recovered if the fee agreement is in writing.  The failure to reduce the agreement to writing renders the fee agreement unenforceable.

The existence of the Rules Of Professional Conduct raises an important question: is the lawyer liable to the client for breaching a rule of professional conduct?

Illinois courts answer this question by holding that the Rules of Professional Conduct are not the basis of an independent cause of action, but, rather a codification of the common law duty of lawyers toward their clients.  Thus, the violation of the Rules of Professional Conduct is relevant to whether the lawyer breached the duty of care.  See Nagy v. Beckley, 218 Ill. App. 3d 875 (1991) (a violation of the Code is relevant to the standard of care in a legal malpractice case).  The court in Coughlin v. SeRine, 154 Ill. App. 3d 510 explained the issue in the following way:

While it has been held in a disciplinary proceeding that the Code of Professional Responsibility is not binding on the court, the same decision recognizes that the Canons of Ethics contained in the Code constitute a safe guide for professional conduct and an attorney may be disciplined for not observing them…It is true that the present action is one for malpractice and is not a disciplinary proceeding, but it would be anomalous indeed to hold that professional standards of ethics are not relevant considerations in a tort action, but are in a disciplinary proceeding.  Both malpractice actions and disciplinary proceedings involve conduct failed to adhere to certain minimum standards and we reject any suggestion that ethical standards are not relevant considerations in each.

In Mayol v. Summers, the Appellate Court held that the jury instructions in a malpractice case may quote from the Rules of Professional Conduct.  The court explained:

Juries in legal malpractice suits may properly consider standards of professional ethics pertaining to attorneys because such suits involve allegations of conduct that does not conform to minimum professional standards. (See Rogers v. Robson, Masters, Ryan, Brumund & Belom (1979), 74 Ill. App. 3d 467, 472-73, 392 N.E.2d 1365, 1371, aff’d (1980), 81 Ill. 2d 201, 407 N.E.2d 47.) Furthermore, it is well established that jury instructions may quote portions of statutes and ordinances where (1) the jury has heard evidence that defendant has violated the quoted portions of the statute or ordinance, and (2) plaintiff alleges the violation breached a duty owed to him by defendant. (See Harris v. Day (1983), 115 Ill. App. 3d 762, 772-73, 451 N.E.2d 262, 267-68; Illinois Pattern Jury Instructions, Civil, No. 60.01 (3d ed. 1991).) Like most statutes and ordinances, attorney disciplinary rules establish minimum standards of conduct and are intended to protect the general public. For these reasons, we hold that jury instructions may quote attorney disciplinary rules in legal malpractice cases to the same extent as they may quote statutes and ordinances in instructions in other types of negligence cases.

Defense lawyers frequently argue that the rules of professional conduct do not create a private right of action.  This is true.  But the Illinois courts have held, see above, that the Rules (and formerly the Canons of Ethics) are an expression of the common law duties of lawyers to their clients.

Rule 1.4 requires a lawyer to keep the client reasonably informed about the statute of the matter.  In First National Bank of Lagrange v. Lowrey, 872 N.E.2d 447, 375 Ill.App.3d 181, 313 Ill.Dec. 464 (Ill. App. 1st Dist 2007), the plaintiff claimed that her lawyer failed to communicate a settlement offer to her.  Plaintiff called an expert who testified that the failure to communicate the offer violated Rule 1.4 and the jury found in favor of the plaintiff.  The verdict was affirmed on appeal.

What the Illinois cases say is that the Rules of Professional Conduct are relevant to legal malpractice claims.  The Rules of professional conduct are a set of rules that lawyers must follow.  Those who violate them and cause damage to a client are increasingly held liable.

In recent years, even Professor Mallen, long an opponent of the use of the ethics rules in legal malpractice cases, agrees that the rules of ethics are evidence of the applicable standard of care.  Mallen, Legal Malpractice Section 20:7, p. 1401.  Mallen cites many cases for this proposition.

Edward X. Clinton, Jr.

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