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Judicial finding of impropriety

Portland, OR |
Filed under: Professional ethics

Is a judicial finding of impropriety grounds for a potential legal malpractice case.

Attorney Answers 2


  1. Perhaps. Maybe yes, maybe no. I assume the Judge found something your attorney did that was improper or in contempt? If you can prove that (1) whatever the attorney did was something negligent that fell below the expected standards of a reasonably competent attorney in your community and (2) you lost a claim or defense SOLELY because of this negligence, then perhaps you can mount a successful malpractice case.

    But you don't say what the impropriety was. Was it something unethical? Did he or she do something unethical because he felt it would help your case. Sometimes, Judges find something improper that an attorney feels is necessary to zealously represent his client, like ruling against him on evidentiary matters in a grey areas.

    On the other hand, if the attorney was a substance abuser and chronically failed to meet court or client deadlines and let important "drop dead" milestones in your case lapse, this is both classic impropriety for which an attorney can be disbarred (lack of diligence) and can lead to malpractice awards.

    So, I'd say unless the "impropriety" is consistent with the above test that the attorney's work was substandard and "but for" the impropriety you would have won rather than lost, it is not grounds for a legal malpractice case.

    But you may wish to take up the specific impropriety with a lawyer that specializes in professional malpractice and misconduct cases. Bottom line, we need to know more about the nature of the finding of impropriety and whether/how it affected your case. (Also perhaps best not to discuss on a public forum like this specifically, as that can prejudice your claim as it is not private and the internet never forgets).

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  2. That depends on the kind of "impropriety" found.

    It's important to distinguish between two kinds of possible lawyer misconduct. There's unethical behavior, and malpractice. These are not the same thing, although the same action can be both.

    Legal malpractice occurs when a lawyer provides services below the standard of care required by their professional community, and the client is harmed as a result. That last bit is critical: if the client suffers no harm, then they have no basis for a malpractice claim, however serious the mistake. For example, an attorney in a criminal defense case might forget to arrange the presence of a key witness at trial - but if the client is found not guilty anyway, then they have suffered no harm, and so have no malpractice claim. Not every mistake an attorney makes is malpractice. Everyone makes mistakes; that's just part of being human. To be malpractice, a mistake must fall below the professional standard of care.

    Also, the only person who can make a claim for malpractice against an attorney is the attorney's client. Third parties, for example an opposing party, cannot bring malpractice claims against an attorney (though they may have other sorts of claims, depending on just what happened). The legal remedy for malpractice is a lawsuit against the attorney, for professional negligence.

    All attorneys who practice in Oregon carry mandatory malpractice liability insurance coverage, through the Oregon State Bar's Professional Liability Fund. The PLF has an unusual dual role: it insures attorneys against malpractice and pays claims if they are found to have committed it; but it also defends attorneys accused of malpractice. If you believe your own attorney has committed malpractice, you can talk to the PLF, but they cannot represent you against your attorney. If you want to sue your attorney for damage they caused you, you need to consult with a private lawyer who specializes in professional negligence cases.

    Ethical misconduct is different. This is any breach by an attorney of a legal code of professional responsibility. Each attorney is required to abide by the ethics rules of the state where they practice; members of the Federal bar must also comply with Federal ethics rules. Ethics rules include requirements of confidentiality and loyalty to clients; safekeeping client property; honesty to the court and the opposing parties; proper communication about legal services (i.e., there are restrictions on advertising); and any number of other things. No particular harm must be suffered by anyone for an attorney to have broken an ethical rule. Ethics rules also require that an attorney provide competent representation, so if an attorney commits malpractice, that is probably an ethical breach as well. The remedy for an attorney's ethical breach is a report to the Bar. If the Bar finds that an ethical breach has been committed, they can sanction the lawyer, either privately or publicly; fine them; suspend them from the practice of law; or, in extreme cases, permanently revoke their license to practice. Which they do depends on the seriousness of the offence, the attorney's history of misconduct, and their conduct in the investigation. No other person is necessarily entitled to money based on an attorney's misconduct alone (though again, they might have a claim based on some other cause of action).

    So there are a lot of possibilities in these situations. Without more information about just what happened, it's impossible to say what options you have. You can consult with an experienced professional negligence attorney in private if you've been harmed by an attorney's actions.

    Please read the following notice: <br> <br> Jay Bodzin is licensed to practice law in the State of Oregon and the Federal District of Oregon, and cannot give advice about the laws of other jurisdictions. All comments on this site are intended for informational purposes only, and do not constitute legal advice or create an attorney-client relationship. No posts or comments on this site are in any way confidential. Each case is unique. You are advised to have counsel at all stages of any legal proceeding, and to speak with your own lawyer in private to get advice about your specific situation. <br> <br> Jay Bodzin, Northwest Law Office, 2075 SW First Avenue, Suite 2J, Portland, OR 97201 | Telephone: 503-227-0965 | Facsimile: 503-345-0926 | Email: jay@northwestlawoffice.com | Online: www.northwestlawoffice.com

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