The Florida Bar
A lawyer who is guilty of actionable negligence in handling a matter for a client does not automatically violate a disciplinary rule requiring lawyers to provide competent representation.
February 1, 1977
February 1, 1977
CPR: Canon 1; DR 1-102; Canon 6; DR 6-101(A)(1), (2) and (3)
Opinion: ABA Informal 1273
Vice Chairman Lehan stated the opinion of the committee:
This inquiry involves the broad question of whether a lawyer who handles a legal matter negligently is thereby guilty of unethical conduct under Canon 6.
This Committee will not, however, undertake here to characterize particular, detailed conduct as negligent or otherwise, which is a question of law. It is neither the responsibility nor the province of this Committee to do so. The Preliminary Statement to the Code of Professional Responsibility states:
The Code makes no attempt to prescribe either disciplinary procedures or penalties for violation of a disciplinary rule, nor does it undertake to define standards for civil liability of lawyers for professional conduct.
Therefore, this Opinion will, of necessity, be more broadly worded than may ordinarily be the case.
Nonetheless, to narrow the inquiry somewhat, it is noted that the inquirer describes a real estate closing and details acts and omissions of the purchaser's lawyer which may amount to negligence. Because, as stated above, this Committee is not authorized to issue opinions on questions of law, we will simply premise this opinion on the assumption that the lawyer's acts or omissions would be negligent but not grossly negligent, intentional or criminal, and we will limit our consideration to the broader question - whether a lawyer who is guilty of actionable negligence in representing a client ipso facto violates DR 6-101 of the Code of Professional Responsibility.
The Committee is of the opinion that a lawyer who is guilty of actionable negligence in handling a matter for a client does not thereby automatically violate DR 6-101.
Canon 1 also deals with a lawyer's competence, and DR 1-102 indicates that when a lawyer's acts or omissions make him subject to certain criminal or civil liability, those same acts or omissions may result in violation of the disciplinary rules, e.g., fraud, deceit or misrepresentation. The Code in its provisions as to a lawyer's competence does not, in our opinion, say that any civilly actionable conduct of a lawyer constitutes an ethical violation, and we in this opinion simply go on to state what we believe the Code at least implicitly states, i.e., a lawyer's negligent handling of a matter would not automatically amount to an ethical
Consideration of the potentiality of violations of DR 6-101(A)(1) - stating that a lawyer should not handle a legal matter he knows or should know he is not competent to handle or as to which he has no good faith expectation that he will become qualified - involves in each instance consideration of all facts and circumstances measured against Code provisions as to a lawyer's competence. DR 6-101(A)(2), prohibiting a lawyer's handling of a matter without preparation adequate in the circumstances, also requires such a case-by-case examination. We believe that a lawyer might fail to comply with certain requirements of subsections (1) or (2) and not be guilty of actionable negligence or might comply with them and still be negligent. There is no proper way that this Committee, which deals with guidelines as to future conduct of lawyers, can responsibly specify with particularity types of conduct which will in each instance fall within or without Canon 6.
The Florida Bar from time to time considers complaints against lawyers which, if sustained, may amount to violations of DR 6-101(A)(3) , e.g., failing to file suit within the applicable statute of limitations period. But, again, the Committee is of the opinion that the boundaries of negligence in a civil malpractice action are not always co-existent with the boundaries of conduct which amounts to "neglect" under DR 6-101(A)(3). See ABA Informal Ethics Opinion 1273.
This opinion, while, as explained above, being necessarily worded in somewhat broad terms, should nonetheless be read as pointing up and emphasizing the obligation of each lawyer to be fully cognizant of the existence and potential applicability of the Code, including new Canon 6, to the subject of a lawyer's competent handling of legal matters.