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