Competence Versus Malpractice

A lawyer who does poor work can face two separate proceedings, and they do not ask the same question. Disciplinary authorities measure the work against Model Rule 1.1: the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation.¹ The client who was harmed may also sue for malpractice. Because both proceedings ask whether the lawyer's work was good enough, students tend to merge them. A stem that describes a bad outcome or a lawyer's slip has to be sorted into the right proceeding before the competence rule can be applied to it.

Two proceedings, two questions

A malpractice action asks whether a particular client was injured by a lawyer's breach of duty and should be compensated. The aim is to make the harmed person whole, so a single careless act that causes loss can be enough. The inquiry centers on what happened to the person who sued.

Discipline asks whether the lawyer should be sanctioned to protect the public, and the standard it applies sets acceptable performance for lawyers generally. A sanction reaches the lawyer's license and reputation, and every lawyer makes some mistakes over a career. A regime that punished each honest error would sanction nearly the whole profession. It would also turn Rule 1.1 into a promise of perfection, which its own measure, what is reasonably necessary, never makes. Discipline therefore ordinarily reserves its sanctions for conduct that is more serious or reflects a pattern. It requires evidence of an actual violation and does not infer one from the fact that a client lost.

One act, civil liability only

The result is that a single act can land in the civil system alone.

When the conduct carries the matter into discipline

The facts that carry a matter across that line appear in Committee on Professional Ethics v. Nadler. The lawyer there obtained a settlement against an insurer but let the limitations period run on the claim against the defendant, the kind of lapse that supports a civil claim. He then failed to tell the client about a possible malpractice claim, transferred assets without consideration to shield them from that claim, and ignored the state bar's investigation. The conduct was egregious and violated the competence rule along with related rules, so discipline was warranted on top of his civil exposure.

The whole course of conduct separates this lawyer from the one who missed the easement. The underlying loss was serious. The concealment, the asset transfer, and the refusal to cooperate with the investigation made this a matter in which the public needed protection as well as a client who needed compensation.

A bad result is not proof of incompetence

Attorney Grievance Commission of Maryland v. Chapman approaches the line from the other direction. It shows a bad result that discipline could not convert into proof of incompetence. Mr. Chapman had retained an outside firm, JW Capital, to carry out a client's loan modification effort. The Commission argued that this delegation meant he provided no legal services at all, and that the client should have been told sooner that bankruptcy might be needed to delay the foreclosure. The court found no clear and convincing evidence that the representation was incompetent. No evidence showed a different strategy that should have been used, and no testimony showed that the client qualified for a modification option that went unpursued. The file documented follow-up with the bank, generally weekly, by the JW Capital associate. As the court put it, the simple fact that no modification was obtained does not necessarily imply a lack of competence in pursuing one, and the allegation was not supported by the evidence.²

An unfavorable outcome proves so little here because it depended on a third party, the bank, whose decision the lawyer could not control. A refusal can follow the best possible presentation as readily as a careless one, so the refusal alone cannot tell the two apart. The disciplinary authority must therefore show a deficiency in the work itself: a better approach that was available, a remedy that was missed, or effort that was lacking. Under the clear and convincing standard the Maryland court applied, a record silent on all three leaves the charge unproved. The same reasoning covers an ordinary client who simply did not get the desired result. That client may have no claim of any kind if the lawyer's work was competent.

Measuring the standard of care

Civil liability for incompetent work is mainly a matter of state law, which supplies the causes of action a harmed client may bring. Where a malpractice claim turns on the quality of the lawyer's work, the standard of care is measured by what lawyers generally provide in similar matters. A District of Columbia rule on competence writes that comparison into its text. It requires a lawyer to serve a client with skill and care commensurate with that generally afforded to clients by other lawyers in similar matters.³

In Battle v. Thornton, clients sued the lawyers who had defended them in a Medicaid-fraud matter. The court rejected the idea that the standard should be defined by a Medicaid-fraud specialty and pointed instead to the general practice of criminal law. It did allow that the clients could properly have offered expert testimony on how a competent lawyer would have conducted such a defense.⁴ The peer measure gives a factfinder an observable yardstick, the actual practice of comparable lawyers, in place of the factfinder's own sense of what a good lawyer would have done.

Sorting a fact pattern

An exam stem on this topic will usually hand you a lawyer's mistake or a client's bad result and ask what follows. Sorting it depends on what the stem actually shows. A bare loss, with no facts about the quality of the work, shows nothing about incompetence. A single honest error shows possible civil liability for the harm it caused and ordinarily no basis for discipline. Conduct that is serious or part of a pattern, as in Nadler, supports both. A stem that stresses how badly the client was hurt points toward malpractice. A stem that stresses how egregious or repeated the lawyer's conduct was points toward discipline.