Friday, October 19, 2007

Is Incompetence Always Unethical?

A Louisiana attorney was retained by a mother and her minor son to prosecute a case arising out of an automobile accident. The attorney filed suit but thereafter failed to take meaningful action for seven years. A disciplinary complaint was filed that led to findings of incompetent representation and failure to expedite litigation. The Louisiana Disciplinary Board recommended a three-month suspension.

The Louisiana Supreme Court affirmed the findings of misconduct but rejected the proposed discipline in favor of a public reprimand. The rationale is worth considering: "The question of when ordinary legal malpractice becomes an ethical violation is somewhat unclear...virtually any time an attorney allows his client's case to prescribe or be abandoned, it could be said the attorney lacks a practical matter, disciplinary sanctions are not always appropriate in every instance where an attorney commits minor violations of the Rules of Professional Conduct."

Two judges dissented and would impose the sanction recommended by the board.

I think the court is correct in suggesting (or at least inferring) that some instances of malpractice would not constitute an ethics violation. Let's say a lawyer does everything to prepare a case for filing but makes a one-day error in computing the statute of limitations. The case is dismissed and a malpractice claim might be sustained. I'd argue that this conduct likely did not violate Rule 1.1 (which should not be confused with Rule One). Having said that, failing to prosecute a client's claim for seven years falls comfortably into the category of an ethics breach. Further, the idea that "minor" ethical violations can be ignored by disciplinary authorities is an invitation to claims of discriminatory enforcement. (Mike Frisch)

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