When Has a Lawyer Breached His or Her Legal Duty of Care?
HOW DOES BREACH OF DUTY RELATE TO LEGAL MALPRACTICE?
Legal malpractice (also called professional negligence) involves a lawyer’s breach (violation) of a legally mandated duty of care. Specifically, a breach of the professional standard of care that is applicable to the relevant situation.
When evaluating a lawyer’s potential breach of duty, the issue is whether the lawyer’s advice was legally deficient to a sufficient degree that the lawyer’s act or omission failed to comply with the relevant standard of care.
IS A VIOLATION OF THE LEGAL ETHICS RULES MALPRACTICE?
As with many legal questions, the answer is no, but…
More specifically, California courts have ruled that violations of the ethics rules are not negligence per se–which means that a violation of the ethics rules is not malpractice simply because the ethics rule was violated. However, a violation of the ethics rules applicable to attorneys may be evidence that the lawyer has breached a duty–and, in combination with other evidence (sufficient to meet the elements of the test for professional negligence), may be used to demonstrate malpractice.
More simply: violation of the ethics rules is not malpractice; however, certain violations of the ethics rules may be evidence of conduct that does constitute a breach of the lawyer’s duty of care.
WHAT IS THE RELEVANT TIME PERIOD FOR EVALUATING A LAWYER’S BREACH OF DUTY?
When reviewing a lawyer’s conduct to determine whether a breach of duty has occurred, the question is whether the conduct constituted a breach at the time the advice was given. The law, and the knowledge of the lawyer, will be evaluated as of the time the advice giving rise to the claim took place (as opposed to evaluating them as they stand at the time the claim was brought, at the time of trial, or at some other time).
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