Concept
The Professional Standard
Lawyer's duty and standard of care to nonclients
The Professional Standard
A duty to the plaintiff settles only who may sue. Whether the lawyer breached that duty turns on a separate yardstick, and for lawyers the yardstick comes from the profession. Jurors usually have no specialized knowledge of what lawyers owe the people they serve, so they cannot supply the measure from ordinary life.1 A standard built on what lawyers of ordinary skill commonly do gives the jury something it can check.
Five parts follow. The first states the test, the reasonable lawyer. The second asks whether youth or inexperience lowers the measure, using the child rule as a contrast. The third fixes the comparison group by place and specialty and shows how expert testimony proves it. The fourth explains how the standard protects professional judgment, including judgment about unsettled law. The fifth treats the conduct rules as evidence. On an exam, keep the order constant: confirm that a duty runs to the plaintiff, then ask what a reasonable lawyer in the same circumstances would have done.
The Reasonable Lawyer
The Restatement of the Law Governing Lawyers measures a lawyer’s conduct by the “competence and diligence normally exercised by lawyers in similar circumstances.”2 Malpractice opinions state the idea at greater length. The lawyer must use the skill, prudence, and diligence that lawyers of ordinary skill and capacity commonly possess and exercise in the task undertaken, and a failure that proximately causes damage gives rise to an action in tort.3 Both formulas fit the ordinary negligence idea of a reasonable person to a professional. The question is what a reasonable lawyer would have done, not what a reasonable layperson would have done.
The relationship that supplies the duty usually begins in a contract, the engagement agreement, yet the claim is ordinarily brought in tort.4 The law itself imposes the duty of ordinary professional skill, so a client need not bargain for competence, and a lawyer who never promised it is still held to it.5 Because the claim sounds in negligence, the professional standard of reasonable conduct measures breach, and no express promise is required.
The benchmark is objective: the knowledge, training, and skill of an ordinary member of the profession.6 The profession’s practice sets the measure, and the individual lawyer’s limits do not. Courts take care with the word ordinary, which does not mean average. They have struck “average” from jury instructions, because an average benchmark would mean that half of all practitioners necessarily fail it, even though a practitioner with somewhat less than average skill may be fully competent.7 The benchmark marks a floor of competence. The question is whether the lawyer did what competent lawyers ordinarily do, however much better the best lawyers in the field might have done.
The factfinder judges breach by foresight. It asks what a reasonable lawyer would have done when the conduct occurred, without the benefit of hindsight.8 A lost motion or a collapsed deal makes nearly every earlier choice look unwise, and a jury that judged with the outcome in hand would treat every bad result as proof of negligence. Good faith likewise offers no defense when the conduct falls below the standard.9 Sincerity describes the lawyer’s state of mind, and the benchmark is external.
The claim is for negligence, so a lawyer answers for falling below the profession’s practice and never for an unwelcome result. Legal services carry no guaranteed outcome.10 In Tarrant v. Ramunno, a client disappointed by a settlement sued the lawyer. The Delaware Superior Court dismissed the claim, observing that no one can guarantee the outcome of litigation, and the Delaware Supreme Court affirmed.11 Only a contract can assure a result. A lawyer who expressly promises one may be held to the promise, and without such a promise the claim lies in tort.12
Because the standard is defined by what lawyers ordinarily do, custom is central to proving it. The plaintiff must generally offer expert testimony, meaning testimony from a qualified lawyer who can describe professional practice, to establish both the standard and the defendant’s failure to meet it.13 The requirement gives way only for matters of common knowledge.14
Within the standard, courts separate two kinds of shortfall, and the separation changes how hard breach is to prove. A lapse in judgment, such as a tactical choice, a recommendation to settle, or a position on a debatable point of law, is not negligence when it was a sound exercise of professional discretion.15 A lapse in due care is different. It involves the mechanical steps of applying the lawyer’s skill and knowledge, and because those steps call for no professional judgment, courts more readily find liability.16 The standard illustration is letting the statute of limitations run before the client’s suit is filed.17 Settlement advice belongs in the first group, where competent lawyers differ and a smaller figure proves nothing by itself. The missed filing belongs in the second, where only one course was defensible and the lawyer either followed it or did not. The room for judgment has limits, taken up below under discretion.
The same benchmark governs when a nonclient has cleared the duty hurdle. Duty decides who may sue, and the professional standard then measures the work, so an intended beneficiary meets neither a looser nor a stricter test than a client would. Lucas v. Hamm, discussed earlier in this chapter, shows both halves. The California Supreme Court held that intended legatees could sue in tort and contract, yet found no breach, because the alleged error under the obscure Rule Against Perpetuities was one that a lawyer using the requisite skill, prudence, and diligence might make.18 Later authority has distinguished that breach holding away, and a competent lawyer is now expected to comply with the Rule.19 The case teaches two points. A duty to the plaintiff leaves the breach question open, and the knowledge expected of an ordinary lawyer rises as the profession’s expectations of competent practice rise.
Child Standard and Novice Lawyers
Negligence law adjusts the reasonable-person standard for the actor’s own traits only in narrow ways, and the best-known adjustment is the child rule. Under Restatement (Second) of Torts § 283A, a child must conform to the conduct of a reasonable person of like age, intelligence, and experience under like circumstances.21 A twelve-year-old who negligently starts a fire is compared with a reasonable twelve-year-old of similar intelligence and experience, and the factfinder does not ask what an adult would have done. The rule matters here as a contrast, because the lawyer’s standard has no counterpart.
The adjustment depends on a fact about the actor: the actor is a child.22 Experience appears in the list of traits, so a student may read § 283A as a general allowance for the inexperienced. It is not one. The rule’s attention to experience operates only inside the child condition, and a lawyer admitted last month is an adult actor who does not engage § 283A at all. The professional standard governs instead, and it takes the profession’s practice as the measure.
That standard is objective. The reasonable person takes on the profession of the actor, and the yardstick becomes the knowledge, training, and skill of an ordinary member of that profession.23 Medicine offers the closest analogy to a newly admitted lawyer. In Centman v. Cobb, an Indiana court held a defendant who had just graduated from medical school and was doing a hospital internship to the same standard of care as a physician.24 The Seventh Circuit, applying Illinois law in Arpin v. U.S., noted that the majority rule holds residents to the standard of physicians who have completed residency in the same field.25
The lawyer is the one person who knows how much experience the lawyer has, and the lawyer can act on that knowledge before harm occurs. The lawyer can decline the matter, associate a lawyer with the expertise, or learn the relevant law at each step. A measure that bent for the novice would leave the loss with the client, or with a nonclient who relied on the work, and neither could have taken those steps.
A lawyer experienced in general practice but new to a field gets no more. The Seventh Circuit, applying Rule 11, reasoned by analogy to malpractice that the standard, like the negligence standard in tort law, is objective and makes no allowance for the particular circumstances of particular practitioners.26 Rule 11 itself requires a pre-filing inquiry reasonable under the circumstances.27 The lawyer in that case practiced alone in a small town and was no specialist in the field, and the court said such a lawyer is not to be criticized for lacking expertise in an esoteric one. It still applied the objective measure, observing that legal malpractice has no locality rule and that a generalist “acts at his peril” in bringing suit in a field or forum with which the lawyer is unacquainted.28 The lawyer without relevant expertise must either associate a lawyer who has it or study the relevant law at every step, with the care that a known lack of experience demands.29
Adjustments to the lawyer standard run upward. A lawyer who holds out as a specialist, such as an expert in international taxation, may be held to the heightened standard of care of lawyers who are experts in that field.30 The usual view treats the specialist’s standard as more exacting than the standard for nonspecialists, so proof that a specialist breached the lesser standard also shows breach of the greater one.31 Set beside § 283A, the asymmetry is plain. The child rule credits the actor’s experience, while a lawyer’s inexperience earns no discount and claimed expertise raises the measure. An exam stem that stresses how new a lawyer is therefore signals no change in the standard, and a stem that stresses a lawyer’s specialty signals a more demanding one.
Section 283A also turns on the age of the actor, and in a malpractice claim the actor is the lawyer. A minor who sues is the plaintiff, so the plaintiff’s youth leaves the standard applied to the lawyer where it was.32
A stem that features a minor plaintiff therefore raises the duty question taught earlier in this chapter, whether the child is a client or falls within an exception. It gives no occasion to adjust the lawyer’s standard of care. The analysis keeps the order the chapter has followed throughout: duty first, then the professional standard.
Locality, Specialists, and Experts
The Restatement’s phrase “in similar circumstances” leaves three questions open: which lawyers supply the comparison, what a claimed specialty does to the measure, and how the plaintiff proves what the comparison requires.34 The sections above showed that a newly admitted lawyer receives no discount for inexperience and that no purely local rule exists. This section explains how the geographic frame is set, how a specialty raises the measure, and how expert testimony carries both to the jury.
The usual frame is the state in which the lawyer practices.35 Each state admits and disciplines its own lawyers, and substantive law, procedure, and ethics rules vary from state to state, so a lawyer’s competence is largely competence in the rules of the state where the work is done.36 The frame tells you whose standard governs, and it leaves the witnesses free to come from outside the defendant’s own town. In Russo v. Griffin, the Vermont Supreme Court held that an out-of-town expert’s testimony sufficiently supported a negligence claim, because the expert, though not from the defendant’s locality, was acquainted with the standard of care in the state.37 By the same logic, a lawyer in Buffalo could testify that a lawyer in Schenectady had been negligent, since both practice under New York law.38
Courts have rarely applied a locality rule, which would measure a lawyer only against other lawyers in the same community.39 Two problems explain why. A purely local standard burdens proof, because a small community may have only a few lawyers, and those lawyers may be unwilling to testify against one another. A plaintiff with a sound claim could then find no witness, a difficulty known as the conspiracy of silence.40 A local standard also weakens incentives, because tort liability pushes lawyers to keep pace with knowledge and professional norms elsewhere, and a locality rule would shelter lawyers in any place whose practitioners lag behind.41 The second problem reaches further, because an imported witness can solve the proof problem while the incentive problem remains.
Rejecting a local standard leaves local practice relevant as evidence. Local practices bear on whether the lawyer’s conduct was proper, and they leave the standard of care itself unchanged.42 A trial judge who has rejected a local standard therefore may not discount an expert merely because the expert practices somewhere else.43
The frame widens where the governing law is itself national. A national standard seems entirely appropriate in many specialized areas of practice, and the Restatement’s commentary points to federal-law oriented practice as the setting for it.44 Federal tax, federal securities, bankruptcy, and patent law are the usual examples.45 The reason mirrors the reason for the state frame. A federal statute reads the same in every state, so the frame has no state variation to track, and the work of lawyers across the country shows what competent practice looks like. A single case can raise both kinds of question. Whether a Pennsylvania federal tax lawyer had a conflict of interest may properly be judged under the Pennsylvania ethics rules, while whether the lawyer’s advice for minimizing tax liability was reasonable may be judged by what federal tax lawyers throughout the United States would regard as acceptable.46
The measure also rises with the lawyer’s claimed expertise. A lawyer who holds out as an expert in international taxation may be held to the heightened standard of care of lawyers who are experts in that field.47 The usual view treats the specialist’s standard as more exacting than the standard for nonspecialists. Proof that a specialist fell below the lesser standard therefore also shows a breach of the greater one, while advice that satisfies the lesser standard can still fall short of the greater.48 The mechanism follows from what a claim of expertise does. A client who chooses a lawyer because of a stated specialty is paying for skill the client cannot check, and the lawyer who made the claim is the one person positioned to know whether it is true.
The specialist’s higher measure sits on top of the rule for generalists. A generalist who ventures into an unfamiliar field remains bound to associate a lawyer who has the expertise or to learn the relevant law at every step.49
Proof of the standard runs through expert testimony, which courts generally require unless the matter is one of common knowledge.50 Lay jurors have no specialized knowledge of what competent lawyers do, and without expert help, in ethics expert William Hodes’s words, “jury verdicts would often be the result of pure whim and prejudice, or random and arbitrary decision-making.”51 The common-knowledge exception follows the same logic. Where a layperson can recognize the lapse without translation, no expert need supply a yardstick, and the exception stays narrow because most questions about what a competent estate planner or securities lawyer customarily does lie beyond ordinary experience.
The witness must also fit the question. Where the defendant is a specialist, a witness who knows the specialist’s standards is required or at least appropriate, and a personal injury lawyer could hardly help a jury decide whether a tax lawyer’s estate plan met professional standards.52 A question with nothing to do with legal ethics, such as whether reasonable care required a noncompetition provision in a contract between family members, likewise calls for a witness other than an ethics expert.53
A witness from another state raises the sharpest version of the fit question. An out-of-state expert may testify only if sufficiently familiar with the law of the governing jurisdiction to help the jury understand the case.54 Phillips v. Wilks, Lukoff & Bracegirdle, LLC shows the failing side. The Delaware Supreme Court concluded that a New Jersey lawyer was not qualified to testify about the standard of care in a negligent representation claim governed by Delaware law. He had familiarized himself with Delaware case law, but “more than a mere reading of Delaware case law was required.”55 The Vermont expert in Russo stood on the other side of the line. That expert came from outside the defendant’s locality yet knew the standard of care that applied across the state. What separated the two witnesses was familiarity with the governing standard: the Vermont expert was acquainted with it, while the New Jersey lawyer had read the cases.
Familiarity comes more easily when the question rests on sources that states share. Virtually all state ethics rules are based to some extent on the ABA’s model rules, and the Restatement reflects principles endorsed by the law of many jurisdictions, so an expert well acquainted with those sources may help a jury understand the standard of care without living in the governing state.56 Questions that turn on one state’s own statutes or procedures give an outside expert fewer common sources to draw on. An exam stem that offers an expert from another state is therefore asking whether the expert knows the governing standard. Where the expert practices matters less.
Discretion and Unsettled Law
A lawyer is negligent only if the lawyer does something that no reasonably prudent lawyer could do, or fails to do something that every reasonably prudent lawyer must do.58 Between those poles lies a wide field of discretion in which competent lawyers handle the same matter differently. Most assignments carry enough factual and legal complexity that several approaches serve the client reasonably well, so a standard defined by what ordinary lawyers do cannot treat one way of practicing as the only way that counts. That another lawyer would have acted differently shows a divergence of opinion or practice, and divergence alone is not negligence.
If every choice that turned out badly counted as a breach, anyone able to name a different tactic could second-guess a lawyer, and lawyers would practice defensively to avoid blame instead of to serve clients. The protection has an edge, however. Discretion shields judgment and does not shield carelessness. A lawyer who never considered a debatable issue that a prudent lawyer would have protected the client against did not exercise judgment at all.
The plaintiff therefore must show that no reasonably prudent lawyer could have made the defendant’s choice.59 Testimony that an expert would have handled the matter differently proves too little, because the question is whether any lawyer exercising reasonable care could have made the choice. Expert testimony remains the usual way to prove the standard, but an expert who describes the range of accepted practice informs the jury, while an expert who reports a personal preference describes one point inside the range.
Harris v. Farmer shows discretion at work. The plaintiff argued that the lawyer was negligent in failing to subpoena or present certain witnesses and documents. The Michigan Court of Appeals, relying on precedent protecting a lawyer’s exercise of discretion and on the evidence at trial, held that summary disposition for the lawyer was proper.60 The same reasoning lets a lawyer decide how many experts to call, and it lets a defense lawyer cross-examine the plaintiff’s expert instead of retaining a rival one, since competent lawyers go either way on that choice. The discretion ends where the case cannot be proved without the step, because it would be unreasonable to call no expert at all in a case that requires expert testimony.61
Discretion protects choices that are really choices. A missed filing deadline, the standard example of a lapse in due care, calls for no professional judgment, and courts more readily find liability for it.62 A lawyer who blames a missed deadline on judgment has attached the label of discretion to a mechanical failure, and the label changes nothing. Opinions sometimes say that a “mere error of judgment” creates no liability, but that formula overstates the rule. A reasonable error of judgment creates none, while a choice that no lawyer could reasonably make is not insulated because the lawyer was exercising judgment. The essential question is whether the lawyer acted reasonably, and it does not matter whether the conduct involved a choice between competing alternatives.63
The best-judgment formula carries a related danger, and it explains why courts word instructions on it with care. An instruction that a professional is not liable so long as she used her best judgment can mislead a jury into excusing a choice that was honestly made but still fell below the accepted standard.64 Some courts have rejected such instructions because they inject subjectivity into an evaluation that is supposed to be objective, and one of those decisions arose in a medical malpractice case, which shows the concern is not limited to lawyers.65 The jury’s question remains whether the judgment itself was one a reasonable lawyer could make.
Unsettled law raises the same tension on the legal side of the work. Some decisions appear to insulate lawyers broadly. In Evans v. Hamby, a case about the retroactive application of a statute, the Arkansas Supreme Court wrote that a lawyer is not, as a matter of law, liable for a mistaken opinion on a point of law that the highest court has not settled and on which reasonable lawyers may differ.66 The better view declines to make unsettled law a complete defense. A lawyer must still act reasonably in consulting legal authorities and interpreting their meaning, and debatable issues of importance cannot be ignored if a reasonably prudent lawyer would take precautions to protect the client’s interests.67
L.D.G., Inc. v. Robinson applies that view to a specific omission. The Alaska Supreme Court held that unsettled law did not excuse a lawyer from exercising care in defending a bar in a dram shop action. The lawyer had not added a visibly intoxicated consumer as a party so that fault could be apportioned to that person. The lawyer was not immune from the malpractice claim even though it was unsettled whether alcohol sellers could apportion fault to consumers, because a prudent defense lawyer would have considered adding the consumer.68 Uncertainty cuts in both directions. The open question that made a favorable ruling possible also made the protective step valuable, and a lawyer who skipped it gave up the client’s argument without weighing it. Blanket immunity would also reward the lawyer who never researched the question, since unsettled law would excuse whatever the lawyer failed to find. The two cases therefore differ in what unsettled law may do. Evans treats it as a complete defense once reasonable lawyers could disagree, while L.D.G. treats it as one circumstance in deciding what prudence required.
The duty to know the law has a ceiling as well. A lawyer must be aware of novel theories of liability and defenses, trends in the law, and out-of-state precedent, but only to the extent that a reasonably prudent lawyer would know of those developments.69 In Darby & Darby, P.C. v. VSI International, Inc., the New York Court of Appeals held that a law firm had no duty to tell its clients about possible advertising liability insurance coverage for their patent infringement litigation expenses. The coverage theory was novel, courts in the two states most relevant to the litigation had rejected it, and courts elsewhere had largely not recognized it, so the firm acted reasonably and consistently with the law as it then stood.70 The line between Darby and L.D.G. is how live the point was for a prudent practitioner. A theory rejected where it mattered and unrecognized elsewhere could be passed over, while apportionment of fault to the consumer was an open question that a prudent dram shop defense lawyer would have considered.
Ethics Rules as Evidence
The Scope section of the ABA Model Rules of Professional Conduct answers directly whether breaking a rule gives someone a malpractice claim. A violation “should not itself give rise to a cause of action against a lawyer nor should it create any presumption in such a case that a legal duty has been breached.”72 Discipline and malpractice pursue different goals. Discipline protects the public at large from unethical practitioners through sanctions ranging from private reprimand to disbarment. A civil suit affords redress to a specific injured person and seeks to restore that person to the pre-tort position.73
A rule that made every violation civil liability would also invite plaintiffs to allege ethics violations, such as an undisclosed conflict of interest, simply to prejudice the trier of fact, even where no harm traces to the supposed violation.74 The plaintiff must still prove the duty, in the ordinary case an attorney-client relationship, and damages proximately caused by the breach, so a rule violation establishes at most part of the breach element.75
The disclaimer is not the whole story, because a rule that states what the profession requires of lawyers is naturally relevant to what a careful lawyer would do. The American Bar Association amended the Scope in 2002 to say so, adding that “since the Rules do establish standards of conduct by lawyers, a lawyer’s violation of a Rule may be evidence of breach of the applicable standard of conduct.”76 The inference runs through the reasonable-lawyer standard. A reasonably prudent lawyer would not violate a rule that defines appropriate professional behavior, so a violation supports a finding that the lawyer fell below that standard.77 A plaintiff’s expert explaining the standard of care can hardly avoid the rules, which is why courts have had to decide how much weight a violation carries.
Courts have answered in four ways, and the approach of the jurisdiction where the case is pending controls.78 Ranked by the weight they give a violation, the approaches are these:
- A few courts hold that ethical standards are inadmissible in a malpractice case, so a violation carries no weight.
- Most courts allow experts to refer to the rules when they explain the standard of care, so a violation is evidence of breach and nothing more.
- A minority treat a violation as creating a rebuttable presumption of malpractice, meaning the lawyer loses on breach unless the lawyer offers proof that overcomes the presumption.
- Other courts hold that the ethics standards conclusively establish the duty of care, so that any violation is negligence per se, which means the violation counts as negligence without any weighing of reasonableness.
The majority approach still leaves room for disagreement about how the rules reach the jury. A Massachusetts court in Fishman v. Brooks allowed testimony about the ethics rules on the ground that a violation could be some evidence of negligence. A Washington court in Hizey v. Carpenter approved expert testimony on the content of the rules, but only if the expert did not refer to them as rules. A Tennessee court in Lazy Seven Coal Sales, Inc. v. Stone & Hinds, P.C. found a law professor’s opinion inadequate to establish the standard of care because it rested solely on the professional code.79 The common thread is that the expert must connect the rules to the common-law standard of care, since the rules do not normally set that standard themselves.80
The per se approach is the outlier, and courts generally do not give the conduct rules the per se effect that safety statutes carry in ordinary negligence cases.81 A negligence per se argument asks whether the enactment was meant to protect the class of persons to which the plaintiff belongs from the type of harm that occurred.82 The disciplinary rules typically say that a violation neither creates a cause of action nor presumes breach, and that provision shows the drafters did not intend a violation to support negligence per se.83
The Restatement of the Law Governing Lawyers states the middle position in the form that matters most for nonclients. Under § 52(2), proof that a lawyer violated a rule or statute regulating lawyers’ conduct has three consequences:84
- It does not give rise to an implied cause of action for professional negligence or for breach of fiduciary duty.
- It does not prevent the parties from offering other proof about the duty of care or the fiduciary duty.
- The trier of fact may consider it as an aid in understanding and applying the standard, but only to the extent that the rule or statute was designed to protect persons in the claimant’s position and proof of its content and construction is relevant to the claim.
The third consequence separates a client’s use of the rules from a nonclient’s. A rule is written with particular beneficiaries in mind, and a rule designed to protect clients may say little about what a lawyer owed a stranger to the representation. Tying the rule’s use to the claimant’s position keeps a plaintiff from borrowing a rule’s authority for a purpose the rule never had, while still letting the factfinder learn from a rule meant to protect someone like the plaintiff.
The claimant-protection test can favor a plaintiff when the enactment protects people in the plaintiff’s position. Suppose a statute that applies to lawyers among others requires them to report suspected child abuse. A child harmed after a lawyer fails to report might argue negligence per se persuasively, because the statute was meant to prevent that kind of harm to the class to which the child belongs.85 The statute does the work in that argument, and the professional conduct rules do not.
When an exam stem has a plaintiff relying on a violated rule, first ask whether the plaintiff needs the rule at all, since the duty and the standard of care stand on their own terms. The rule then enters as evidence, its weight depends on the jurisdiction’s approach, and for a nonclient it helps only if it was designed to protect people in the plaintiff’s position.