Attorneys are obligated to follow certain ethical standards when representing clients whether they are paid for services or working as a public defender. When these professional rules of conduct are breached, the lawyer might be guilty of malpractice. These codes of behavior include due diligence to ensure the client receives the best possible representation. Ethical standards also include regulations about how attorneys handle client payments and avoid conflicts of interest that could taint how they operate. Lawyers who violate these rules of professional conduct can be sued for malpractice.
If a lawyer intentionally fails to provide competent advice or representation to clients, it could be deemed malpractice. Attorneys are expected to adhere to accepted standards of performance to ensure clients receive the best possible representation. These standards apply in both civil and criminal cases. When these standards are not met, it is called ineffective assistance of counsel.
Ineffective assistance of counsel typically means a lawyer failed to research laws pertaining to the case. Even if the law was properly studied, but it was not properly applied to the client’s case, malpractice could occur. Professional rules of conduct require that lawyers use their training and knowledge to conduct research and use the law to develop a strategy to win the case.
A breach of confidentiality might also serve as grounds for a malpractice lawsuit. Attorneys must not reveal any information shared by clients to a third party, even if clients admit they committed crimes for which they are charged. This rule protects clients by allowing them to speak freely with attorneys when discussing cases, knowing the information shared will remain confidential and the lawyer is loyal to clients. The client-attorney relationship is considered a relationship of trust, and the basis of confidentiality rules. These rules apply to information imparted by clients in consultations and information learned by attorneys from all other sources.
There are a few exceptions to the confidentiality rule, such as disclosing information when an attorney believes imminent death or bodily harm could occur. This exception would apply, for example, if a lawyer discovers a metal manufacturer is dumping toxic waste into the community water supply. The attorney needs to inform the client about the obligation to disclose certain information that poses a threat to others before acting on it.
An exception to confidentiality would also exist if the lawyer receives information about a crime or fraud causing substantial financial harm to another person. An attorney is permitted to withdraw from these types of cases and disclose limited information to protect the financial assets of a business or individual. If a lawyer fails to act on this information, a malpractice suit could be filed against him by victims of fraud.
Another area of professional responsibility concerns following a client’s wishes, even if it goes against advice based on the lawyer’s skill and education. This exception might apply in a case where the client insists upon testifying in court. Attorneys typically recommend against putting a client on the witness stand where he can be cross-examined by an opponent. The rule also applies to a client’s decision to plead guilty or not guilty to a crime, or accept a plea bargain agreement. A lawyer who goes against a client’s wishes can be subject to a malpractice lawsuit.
Ethical guidelines regulate how attorneys handle money paid by clients for services rendered. Client funds may not be comingled with personal bank accounts, but must be kept separate in a trust account. A client is entitled to information about the trust account upon request. Violations of these fiduciary rules could result in a malpractice suit being filed against the lawyer.
Attorneys must also guard against any conflict of interest when accepting a case. The rule prevents a lawyer from representing co-defendants who might place blame on each other. The conflict of interest rule could also apply if an attorney previously represented a party in another case. For example, if a lawyer represented a client while in private practice, he cannot try the case on behalf of the state if he later joins the district attorney’s office. This rule protects any confidential information shared by the client during a prior case and preserves the client’s right to a fair trial.
In addition to facing a malpractice lawsuit for violations of the rules of professional conduct, attorneys can also face sanctions from the American Bar Association, which oversees ethical conduct of licensed lawyers. The bar association might levy fines, suspend unethical attorneys from practicing, or disbar them from the profession. In some cases where minor violations occur, discipline might consist of enrolling in ethic courses to remind the attorney about his obligations.