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Lawyer Liability CHAPTER 2 Lawyer Liability A. Professional discipline 1. The process of lawyer discipline 2. Grounds for discipline 3. Reporting misconduct by other lawyers B. Civil liability of lawyers 1. Legal malpractice 2. Malpractice insurance 3. Other civil liability of lawyers 4. Disqualification for conflicts of interest C. Criminal liability of lawyers The potential claims against lawyers can be divided into disciplin- ary claims, civil claims, and criminal claims. The first section of the chapter explores the lawyer disciplinary system, the administrative process through which lawyers may be charged with violation of the state ethics codes. The disciplinary system is the process by which the rules of professional ethics are enforced. A lawyer found to have violated one or more provisions of the state ethics code may lose her license to practice law, may be ordered to cease practice for a period of time, or may receive a reprimand or some other lesser sanction. As part of our discussion of the disciplinary system, we examine the ethical duty imposed on lawyers to report misconduct by other lawyers. Every lawyer is responsible to help maintain high standards of professional conduct for himself and to report serious miscon- duct by other lawyers, even lawyers who work in the same firm. The reporting duty is a key feature of the system of professional 59 60 Chapter 2 ● Lawyer Liability self- regulation. After the section on reporting misconduct, we explore the rights and duties of supervisory and subordinate lawyers, including the condi- tions under which a lawyer may face disciplinary liability for the conduct of a subordinate lawyer. Less experienced lawyers are often directed by more senior lawyers, so it is important to know what to do if a conflict arises between a su- pervisor’s directions and what the ethical rules seem to require. The second section of the chapter explains the bases for civil liability of lawyers. We discuss legal malpractice, breach of fiduciary duty, and other civil liability that arises from tort law, contract law, and agency law. In this section, we offer some examples of potential lawyer liability for violation of statutes, agency regulations, and court rules. This section includes a discussion of cases in which lawyers are disqualified from representation of clients because of con- flicts of interest. A conflict of interest may lead to a disciplinary or malpractice action, but it may also be the basis of a disqualification motion. The third section of the chapter explains that lawyers may also be pros- ecuted for criminal conduct that relates to the practice of law. It has become surprisingly common for lawyers to be indicted, prosecuted, and imprisoned for crimes such as tax fraud, mail fraud, and securities fraud, as well as theft from clients or from their firms. A. Professional discipline 1. The process of lawyer discipline How does a disciplinary proceeding work? In most states, the highest court runs the disciplinary system. An independent office set up by the court uses paid staff attorneys to investigate and prosecute charges against lawyers. Some disciplinary offices are administered by state bar associations, but a majority are independent of the bar associations.1 If a disci- plinary agency thinks that a complaint against a lawyer appears warranted, it first presents the case to an adjudicator, who may be (depending on the state) a three- person volunteer hearing committee (which often includes two lawyers and a 1. Thirty-two states and the District of Columbia require lawyers to be members of the bar associa- tion as a condition of receiving a license to practice law. ABA, State & Local Bar Association Resources, http://www.americanbar.org/portals/solo_home/state-and-local-bar-association-resources.html (last visited Aug. 21, 2017). Of those jurisdictions, 22 state bar associations run the lawyer disciplinary agencies under the supervision of the states’ highest courts. The other 11 have independent disciplin- ary agencies. In the 18 states in which bar membership is not mandatory, lawyers pay registration fees each year to agencies of the states’ highest courts. Those agencies handle admission and discipline of lawyers. Mary M. Devlin, The Development of Lawyer Disciplinary Procedures in the United States, 7 Geo. J. Legal Ethics 911, 933-934 (1994). A. Professional discipline 61 nonlawyer), a single volunteer lawyer adjudicator, or a judge.2 The adjudicators hear evidence, make findings of fact, and recommend sanctions.3 According to the model disciplinary procedures recommended by the ABA, the adjudicators’ recommendations are then reviewed by an administrative board. Decisions of the administrative board may be appealed to the state’s highest court.4 Do the lawyer disciplinary agencies investigate most of the complaints? Probably not. A 1992 ABA commission report on lawyer discipline wrote that although there had been improvements in disciplinary process over the last 20 years, “[t]he disciplinary system does not address . tens of thousands of complaints annually.” It found that “[s]ome jurisdictions dismiss up to ninety percent of all complaints.” The commission looked at a sample of complaints and found that many that were dismissed alleged serious problems. The report concluded that the current system does not usually address complaints that the lawyer’s service was over- priced or unreasonably slow. The system does not address complaints of incompetence or negligence except where the conduct was egregious or repeated. It does not address complaints that the lawyer promised services that were not performed or billed for services that were not authorized.5 More recent reports suggest that this problem has not yet been solved. Professor Leslie Levin reports that [m]any disciplinary agencies will not docket charges of incompetence against criminal defense attorneys, legal malpractice, complaints arising out of ongoing litigation, or many allegations of incivility. In Virginia, . fee disputes are routinely dismissed by disciplinary authorities [even though] the billing of excessive fees is an ethical violation. Similarly, 2. David Summers, Adjudicating Attorney Discipline: Are Panels Necessary?, 20(2) Prof’l Law. 30 (2010) (referring to an uncited survey, perhaps by the author or his research assistant, indicating that about one-third of the states use a single adjudicator, who may be a professional judge or a volun- teer lawyer, and that about two-thirds of the states use volunteer hearing committees). 3. See Restatement, ch. 1, tit. C, introductory note. Disciplinary proceedings used to be more heavily controlled by bar associations, but partly in response to the ABA’s Model Rules for Lawyer Disciplinary Enforcement, these proceedings have become more independent of bar association influence. See Charles W. Wolfram, Toward a History of the Legalization of American Legal Ethics II — The Modern Era, 15 Geo. J. Legal Ethics 205, 206 (2002). 4. ABA, Center for Prof’l Responsibility, Model Rules for Lawyer Disciplinary Enforcement (2002). 5. ABA, Center for Prof’l Responsibility, Commission on Evaluation of Disciplinary Enforcement, Lawyer Regulation for a New Century xv (1992). An earlier ABA investigation had found that when a client complained that a lawyer had stolen money from the client, the prosecutor would often offer to dismiss the complaint if the lawyer paid the client back. ABA Special Committee on Evaluation of Disciplinary Enforcement, Problems and Recommendations in Disciplinary Enforcement 78 (1970). The 1992 report indicated that these problems persisted. 62 Chapter 2 ● Lawyer Liability in New Jersey, grievances concerning fee disputes are typically referred to the district fee arbitration committee.6 A. Professional discipline 85 FOR EXAMPLE: In 2004, the Virginia Bar made public disciplinary charges against one William P. Robinson, a former state legislator, who clients.had been He told reprimanded one client four that histimes case by was the stillbar pendingand then even held though in contempt it hadthree been times dismissed for not because showing of up Robinson’s in court. Twice negligence. the courts He falsely imposed told sus- thepended other clientjail sentences. that the In Virginia addition, Supreme a court Courtfound hadthat dismissedhe had defaulted his appeal.on four12 Despite appeals. this Robinson parade also of misconduct,was found to ahave court lied considering to two clients. the He statetold bar’s one complaintclient that againsthis case him was suspendedstill pending his even law licensethough forit had only been ninetydismissed days.13 becauseThe Washington of Robinson’s Post negligence.reported that He falsely ‘‘[o]ne told of the the judges other cli- 7 commentedent that the in Virginia open court Supreme that he’dCourt played had dismissed golf with his Mr. appeal. Robinson. Despite Anotherthis parade said thatof misconduct, ‘if I was in a trouble, court considering I wouldn’t the hesitate state tobar’s hire complaint Mr. 8 Robinsonagainst him if I suspended could just his get law him license to court for only on time.’’’ 90 days.14 The The VirginiaWashington SupremePost reported Court affirmedthat “[o]ne the of light thesanction judges commented15 over the objection in open court of the that statehe bar,’d played which golf wanted with Mr. to disbar Robinson. Robinson. Another16 said that ‘if I was in trou- ble, I wouldn’t hesitate to hire Mr. Robinson if I could justProfessor get him Leslie to court Levin onreports time.’”9 thatThe ‘‘horrorVirginia
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