Use of Ethics Investigation in Legal Malpractice Suit

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Ethics violations and legal malpractice are two distinct realms that often intersect.  There are often unsettled lines between professional responsibility and professional liability and, accordingly, between attorney disciplinary systems and the civil justice system.  Clients expect and deserve accountability, not only for professional negligence but also for their attorneys’ conduct.  So what happens when a client initiates an ethics investigation, but also initiates a legal malpractice action?  Can information from the former come into play in the latter?

A current New Jersey case is exploring this nexus.  A client initiated an ethics complaint against his former attorneys and also brought suit for legal malpractice.  He now seeks to introduce into evidence documents generated in the course of the ethics investigation.  His former attorneys objected to the production, and recently moved to seal the documents, which they claim are confidential.

Although the client’s ethical proceeding was dismissed, the client included in his malpractice pleadings at least one disciplinary document, a letter from the disciplinary board finding no unethical conduct.  The client has subsequently sought to use and admit other documents from the ethics investigations.

The client maintains that the firm merely seeks to preclude the documents because they would be problematic during depositions of the firm’s attorneys.  Further, the client avers the balance should tip in favor of public access, particularly because the firm cannot show that it would be injured if the documents, which are not harmful to the firm, are not sealed.

The firm counters that preclusion is necessary to preserve its privacy and the public’s interest in the confidentiality of the attorney disciplinary process.  Further, the firm contends that case-law and court rules make it clear that all disciplinary materials are confidential by default, unless certain exceptions are met, and even then, under no circumstances may investigative files and materials prepared, obtained, or created prior to the filing of a formal ethics complaint be made public.

While we wait for the court to rule, what do our PLM readers think?  Does permitting the dissemination of investigative materials used by an ethics board undermine the aims of a fair attorney-disciplinary system?  Further, does use of these materials enable a disgruntled client to complaint about a former attorney’s action, with the apparent imprimatur of the ethics board?  Or should the court admit this evidence, particularly because it is not “harmful” to the attorneys, in the interests of gaining the most comprehensive picture of the facts that gave rise to the legal malpractice case?