Competence & Malpractice · 6-12% of the exam
11.3.1Discipline and Civil Malpractice Distinguished
Why
Bar discipline and civil malpractice reach different ends by different means. One exists to protect the public from a lawyer; the other exists to make an injured client whole. Because they answer different questions, they are not two names for one process.
Plain English
The same act can trigger discipline, malpractice, both, or neither. Discipline requires no harm; malpractice does. An ethics violation is relevant evidence in a malpractice suit but isn't per se proof of liability. The call of the question fixes your track.
Discipline vs. Civil Malpractice (case law)
| Element | Discipline | Malpractice |
|---|---|---|
| Forum | Disciplinary tribunal | Civil court |
| Adversary | State bar | Injured plaintiff |
| Purpose | Sanction lawyer / protect public | Compensate plaintiff |
| Harm required | No | Yes |
| Burden of proof | Clear and convincing evidence | Preponderance of the evidence |
Three more points on how the two systems differ:
- An ethics violation does not create a presumption of malpractice but is relevant evidence courts may consider.
- Discipline and malpractice are independent proceedings; one may proceed without the other, and one result does not bind the other forum.
- The disciplinary burden (clear and convincing evidence) is higher than the civil malpractice burden (preponderance of the evidence).
Example 1
Ex. 1
Kim missed the statute of limitations on her client's breach-of-contract claim. The state bar opened a disciplinary proceeding the same week her former client filed a malpractice action. In the civil suit, Kim showed the underlying contract lacked consideration and would have been unenforceable regardless of the filing.
The disciplinary proceeding can reach a violation without any showing of client harm; the bar must prove the lapse by clear and convincing evidence. The malpractice plaintiff must prove actual harm and but-for causation by a preponderance. Because the underlying claim was meritless, the client suffered no recoverable loss. Kim may be disciplined while the malpractice plaintiff recovers nothing. The proceedings are independent; one outcome doesn't bind the other. Read that again: the violation is enough for discipline and not enough for recovery.
Trap
Tip
Questions · 2
Q 01ch11-e09
Question 1 of 2 · Rule 1.3
Attorney let the limitations period lapse on Client's breach-of-contract claim. The state bar opened a disciplinary proceeding, and in the same month Client filed a civil action against Attorney seeking damages for the lapse. The bar's file rests on the missed period alone and records no loss to Client at all. In the civil action Attorney produced evidence that the underlying contract lacked consideration and would have failed on any timetable. Attorney's counsel has asked the civil court to treat the disciplinary charge as settling the question of liability, and has separately asked the bar to hold its own case until the civil verdict arrives. Which of the following best describes how the two proceedings relate?
Keys 1 to 4 choose.