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Professional Responsibility Resource Guide: Be Prepared to Practice Responsibly: Primary Law

Please use this LibGuide as a start to your research. This is not meant to represent all the available information on the topic of Professional Responsibility. For further help, please see a reference librarian.

Common Law Liability

The ABA/BNA Lawyer's Manual on Professional Conduct Practice Guide describes the common law liability of attorneys for malpractice as follows:

"Legal malpractice" is a generic term used to describe the tort or contract causes of action available to clients who suffer damages caused by their lawyers' errors and misconduct.  The most commonly asserted theories of liability in malpractice cases are negligence, breach of contract, and breach of fiduciary duty.

In some jurisdictions the distinction between tort and contract theories is relevant for purposes of determining the applicable statute of limitations or the appropriate measure of damages, but usually there is little material difference between the theories.

Generally, a client (or, in most cases, a former client) establishes a prima facie case of legal malpractice by proving:

  • an attorney-client relationship giving rise to a duty to the client;
  • an act or omission by the attorney in breach of the duty;
  • an injury suffered by the client; and
  • a "proximate cause" link between the attorney's conduct and the client's damages.

Statutory Liability

The ABA/BNA Lawyers' Manual on Professional Conduct Practice Guide describes statutory liability for attorney malpractice as follows:

Federal and state statutes have expanded lawyers' potential liability to clients and nonclients well beyond traditional negligence and breach of contract claims.

At the federal level statutes used to regulate attorney behavior include:

  • Fair Debt Collection Practices Act;
  • Section 10(b) of the Securities and Exchange Act of 1934;
  • The Fair Credit Reporting Act; Truth and Lending Act; and
  • The Racketeer Influenced and Corrupt Organizations Act (RICO).

At the state level, lawyers are facing, with increasing frequency, claims that assert violations of deceptive trade practices statutes and other consumer protection laws.  A number of states have enacted statutes prohibiting attorney deceit or collusion during litigation, and most of these laws allow the injured party to sue the offending lawyer for treble damages.

New York Law

The following resources are just to get you started.  They are in no way exhaustive of the existing New York Law.  For example, a Westlaw search of the topic and key number 45k38, 45k37.1 and 45k42 (Attorney and Client - Grounds for Discipline) resulted in 138 headnotes limiting jurisdiction to New York state and federal cases.

New York State Statutes

N.Y. Judiciary Law sec. 487 (Mckinney 2005)

McKinney's Consolidated Laws of New York Annotated
Judiciary Law
 Chapter 30. Of the Consolidated Laws
 Article 15. Attorneys and Counsellors
§ 487. Misconduct by attorneys
 
An attorney or counselor who:
1. Is guilty of any deceit or collusion, or consents to any deceit or collusion, with intent to deceive the court or any party; or,
 
2. Wilfully delays his client's suit with a view to his own gain; or, wilfully receives any money or allowance for or on account of any money which he has not laid out, or becomes answerable for,
 
Is guilty of a misdemeanor, and in addition to the punishment prescribed therefor by the penal law, he forfeits to the party injured treble damages, to be recovered in a civil action.
 
CREDIT(S)

(Added L.1965, c. 1031, § 123.)
 

New York Codes, Rules and Regulations

22 NYCRR 1200 (Title 22-Judiciary>Subtitle B-Courts>Chapter IV-Supreme Court>Subchapter E-All departments>Part 1200- Rules of Professional Conduct.)  PLEASE NOTE: The New York Rules of Professional Conduct have been adopted by the Appellate Division of the New York State Supreme Court and are published as Part 1200 of the Joint Rules of the Appellate Division (22 NYCRR Part 1200).  The Appellate Division has not enacted the Preamble, Scope and Comments, which are published solely by the New York State Bar Association to provide guidance for attorneys in complying with the Rules.  Where a conflict exists between a Rule and the Preamble, Scope or a Comment, the Rule controls.

Conduct of attorneys, rules of -

   First department, see 22 NYCRR 603.1 et seq., set out in McKinney's New York Rules of Court Pamphlet [N.Y.Ct.Rules 603.1 et seq.)

   Fouth department, see 22 NYCRR 1022.1 et seq., set out in McKinney's New York Rules of Court Pamphlet [N.Y.Ct.Rules 1022.1 et seq.)

   Second department, see 22 NYCRR 691.1 et seq., set out in McKinney's New York Rules of Court Pamphlet [N.Y.Ct.Rules 691.1 et seq.)

   Third department, see 22 NYCRR 806.1 et seq., set out in McKinney's New York Rules of Court Pamphlet [N.Y.Ct.Rules 806.1 et seq.)

New York Caselaw

Kuruwa v. Meyers, 823 F.Supp.2d 253, S.D.N.Y.,2011.

Key Number Symbol45 Attorney and Client
   Key Number Symbol45III Duties and Liabilities of Attorney to Client
     Key Number Symbol45k105.5 k. Elements of malpractice or negligence action in general.

To prevail on a legal malpractice claim under New York law, a plaintiff must prove three elements: the negligence of the attorney; that the negligence was the proximate cause of the loss sustained; and proof of actual damages.

In re Goodhart, 56 A.D. 3d 889, 866 NYS 2d 454 (3d Dept 2008)

Key Number Symbol45 Attorney and Client
  
Key Number Symbol45I The Office of Attorney
    
Key Number Symbol45I(C) Discipline
      
Key Number Symbol45k59.1 Punishment; Disposition
        
Key Number Symbol45k59.18
k. Reciprocal discipline; effect of other discipline.

Reciprocal discipline disbarring attorney in New York based on attorney's uncontested petition to resign from Florida bar without leave to apply for readmission was warranted; Florida resignation contained an admission of misconduct inasmuch as it specifically referenced his federal conviction and disciplinary suspension in that state, and, in addition, attorney failed to notify New York Court of his federal conviction, was delinquent in payment of registration fees, and defaulted in misconduct proceeding. N.Y.Ct.Rules, § 806.19.

 

In re Anonymous, 19 A.D. 3d 867, 798 NYS 2d 151 (3d Dept 2005)

Key Number Symbol45 Attorney and Client
   Key Number Symbol45I The Office of Attorney
     Key Number Symbol45I(A) Admission to Practice
       Key Number Symbol45k4 k. Capacity and qualifications.

Applicant for bar admission did not possess the character and general fitness requisite for an attorney and counselor-at-law; applicant had been disbarred in New Jersey and reciprocally disbarred in Indiana, and his consent to the New Jersey disbarment included his acknowledgement that he could not successfully defend himself against charges that he knowingly misappropriated a client's trust funds. McKinney's Judiciary Law § 90, subd. 1, par. a.

 
 
Weil, Gotshal & Manges v. Fashion Boutique of Short Hills Inc., 780 N.Y.S.2d 593 (N.Y.App.Div. 2004)

Key Number Symbol45 Attorney and Client
   Key Number Symbol45III Duties and Liabilities of Attorney to Client
     Key Number Symbol45k112 k. Conduct of litigation.
 
Under New York law, to establish the elements of proximate cause and actual damages, where the injury is the value of the claim lost, the client must meet the “case within a case” requirement, demonstrating that “but for” the attorney's conduct the client would have prevailed in the underlying matter or would not have sustained any ascertainable damages.
 

Vogel v. Lyman, 668 N.Y.S.2d 162 (N.Y. App. Div. 1998)

241 Limitation of Actions
   Key Number Symbol241I Statutes of Limitation
     Key Number Symbol241I(A) Nature, Validity, and Construction in General
       Key Number Symbol241k6 Retroactive Operation
         Key Number Symbol241k6(10) k. Provisions for Existing Causes of Action.

Amendment which applies three-year statute of limitations to legal malpractice claims whether underlying theory is one of tort or contract does not apply to bar actions commenced prior to amendment's effective date. McKinney's CPLR 214, subd. 6.
 

Brown v. Samalin & Bock P.C. (1989, 2d Dept) 155 App Div 2d 407, 547 NYS 2d 80

Key Number Symbol45 Attorney and Client
  
Key Number Symbol45III Duties and Liabilities of Attorney to Client
    
Key Number Symbol45k129 Actions for Negligence or Wrongful Acts
      
Key Number Symbol45k129(4) k. Damages and Costs.

Attorneys' alleged deceitful procurement of release of client's legal malpractice claims did not, in itself, generate separate cause of action which might support award of punitive damages, even assuming that attorney violated Code of Professional Responsibility by procuring release.


 

ABA and NYSBA Ethics Opinions

ABA Ethics Opinions archived by subject : Ethics opinions within the last year are available free of charge.

NYSBA Ethics opinions : These opinions have been issued by the NYSBA Committee on Professional Ethics. Opinions of the committee are advisory and are issued only to attorneys concerning their own proposed conduct, not past conduct or the conduct of another attorney.

As a courtesy to the legal profession, Loislaw offers NYSBA Ethics Opinions in a searchable, citation-enhanced format.

Formal opinions - Committee on Professional Ethics, New York State Bar Association KFN 5076.5 .A2 A495 (1964-2006)

Opinion / Bar Association of Nassau County, Committee on Professional Ethics KFN 5076.5 .AS N3 (1988-2006)

ABA and NYSBA Rules of Conduct

ABA Model Rules of Professional Conduct

Final New York Rules of Conduct with Comments (PDF) - Effective April 1, 2009 as amended through June 25, 2011