Unethical ≠ Negligent

It’s not uncommon to see allegations of ethical breaches incorporated into malpractice claims. Former clients may argue that their attorney’s failure to comply with the rules of professional conduct evidences negligence. Often, however, that’s insufficient to sustain a claim. An ethical breach may be considered by the fact-finder but, without more, is unlikely to support a claim. Consider the recent decision from the New York State Appellate Division which continued a trend of dismissing legal malpractice claims based purely on ethical violations.

In Fletcher v Boies, Schiller & Flexner LLP, a fashion model (Plaintiff) alleged that a prominent agency mismanaged her career.  When Plaintiff allegedly consulted Defendant Firm she was “told that her claims were worth large, specified amounts.”  Yet, Plaintiff alleges that Defendant Firm concealed a conflict of interest.  She alleged that due to the alleged conflict, that Defendant Firm “participated lackadaisically in settlement discussions” on her behalf.

The case was initially dismissed way back in 2008. Following several rounds of appeals, the appellate court affirmed the trial court’s decision and noted that the alleged conflict of interest (and subsequent alleged violation of Code of Professional Responsibility DR 5-105 [22 NYCRR 1200.24]), without more, is insufficient to support a legal malpractice claim.

This decision provides important reinforcement for the concept that it simply is not enough to claim an ethical violation in order to sustain a negligence theory. Without more, such claims should be subject to dismissal in New York and similar jurisdictions.


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