Does a lawyer who commits malpractice automatically violate the ethics rule on competence?

Plain-English summary

The inquiry asked the broad question whether a lawyer who handles a legal matter negligently is thereby guilty of unethical conduct under Canon 6. The committee declined to characterize particular conduct as negligent, noting that is a question of law outside its province, and premised its answer on the assumption that the conduct (arising from a real estate closing) would be negligent but not grossly negligent, intentional, or criminal.

On that premise, the committee concluded that a lawyer guilty of actionable negligence does not automatically (ipso facto) violate DR 6-101. It explained that the Code's competence provisions do not say that any civilly actionable conduct constitutes an ethical violation. Assessing DR 6-101(A)(1) (not handling a matter the lawyer is not competent to handle) and DR 6-101(A)(2) (not handling a matter without adequate preparation) requires a case-by-case examination of all facts and circumstances; a lawyer might breach those subsections without being negligent, or be negligent while complying with them. As to DR 6-101(A)(3) (neglect of a matter, such as missing a limitations deadline), the committee concluded the boundaries of civil malpractice negligence are not always co-extensive with disciplinary "neglect," citing ABA Informal Opinion 1273. It closed by emphasizing each lawyer's obligation to be aware of the Code, including the new Canon 6, on competent handling of legal matters.

Currency note

This opinion was issued in 1977, before The Florida Bar's adoption of the 2006 revisions to the Rules of Professional Conduct. It applied the former Code of Professional Responsibility, which has since been replaced. Treat this page as historical context, not current guidance. Verify against current Rule 4-1.1 before relying on any specific requirement mentioned here.

Common questions

Q: If a lawyer commits malpractice, has he automatically violated the competence rule?

A: The opinion concluded no; actionable negligence does not ipso facto violate DR 6-101 (the former competence rule).

Q: Why isn't malpractice the same as an ethics violation?

A: Per the opinion, the boundaries of civil malpractice negligence are not always co-extensive with disciplinary "neglect," and assessing competence violations requires a case-by-case examination of all the facts.

Q: Could the same conduct still be both?

A: The opinion recognized that the same acts or omissions can amount to both civil liability and a disciplinary violation in some cases, but negligence does not establish a violation automatically.

Background and rules framework

The opinion applied Canon 6 and DR 6-101(A)(1), (2), and (3) of the former Code of Professional Responsibility, addressing a lawyer's competence and neglect of matters, along with Canon 1 and DR 1-102. Those competence provisions correspond to Model Rule 1.1 (competence); the current Florida counterpart is Rule 4-1.1.

Citations and references

Rules of Professional Conduct (as cited, former Code):

• CPR Canon 6; DR 6-101(A)(1), (2), (3) (competence; neglect of a legal matter)
• CPR Canon 1; DR 1-102

Other opinions cited:

• ABA Informal Opinion 1273

See also

No sibling opinions yet indexed.

Source

• Landing page: https://www.floridabar.org/etopinions/etopinion-76-9/
• Original PDF: https://www-media.floridabar.org/uploads/2017/04/FL-Bar-Ethics-Op-76-9-1.pdf

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

FLORIDA BAR ETHICS OPINION
OPINION 76-9
February 1, 1977
Advisory ethics opinions are not binding.
A lawyer who is guilty of actionable negligence in handling a matter for a client does not automatically violate a disciplinary rule requiring lawyers to provide competent representation.
CPR: Canon 1; DR 1-102; Canon 6; DR 6-101(A)(1), (2) and (3)
Opinion: ABA Informal 1273
Vice Chairman Lehan stated the opinion of the committee:
This inquiry involves the broad question of whether a lawyer who handles a legal matter negligently is thereby guilty of unethical conduct under Canon 6.
This Committee will not, however, undertake here to characterize particular, detailed conduct as negligent or otherwise, which is a question of law. It is neither the responsibility nor the province of this Committee to do so. The Preliminary Statement to the Code of Professional Responsibility states:
The Code makes no attempt to prescribe either disciplinary procedures or penalties for violation of a disciplinary rule, nor does it undertake to define standards for civil liability of lawyers for professional conduct.
Therefore, this Opinion will, of necessity, be more broadly worded than may ordinarily be the case.
Nonetheless, to narrow the inquiry somewhat, it is noted that the inquirer describes a real estate closing and details acts and omissions of the purchaser's lawyer which may amount to negligence. Because, as stated above, this Committee is not authorized to issue opinions on questions of law, we will simply premise this opinion on the assumption that the lawyer's acts or omissions would be negligent but not grossly negligent, intentional or criminal, and we will limit our consideration to the broader question — whether a lawyer who is guilty of actionable negligence in representing a client ipso facto violates DR 6-101 of the Code of Professional Responsibility.
The Committee is of the opinion that a lawyer who is guilty of actionable negligence in handling a matter for a client does not thereby automatically violate DR 6-101.
Canon 1 also deals with a lawyer's competence, and DR 1-102 indicates that when a lawyer's acts or omissions make him subject to certain criminal or civil liability, those same acts or omissions may result in violation of the disciplinary rules, e.g., fraud, deceit or misrepresentation. The Code in its provisions as to a lawyer's competence does not, in our opinion, say that any civilly actionable conduct of a lawyer constitutes an ethical violation, and we in this opinion simply go on to state what we believe the Code at least implicitly states, i.e., a lawyer's negligent handling of a matter would not automatically amount to an ethical violation.
Consideration of the potentiality of violations of DR 6-101(A)(1) — stating that a lawyer should not handle a legal matter he knows or should know he is not competent to handle or as to which he has no good faith expectation that he will become qualified — involves in each instance consideration of all facts and circumstances measured against Code provisions as to a lawyer's competence. DR 6-101(A)(2), prohibiting a lawyer's handling of a matter without preparation adequate in the circumstances, also requires such a case-by-case examination. We believe that a lawyer might fail to comply with certain requirements of subsections (1) or (2) and not be guilty of actionable negligence or might comply with them and still be negligent. There is no proper way that this Committee, which deals with guidelines as to future conduct of lawyers, can responsibly specify with particularity types of conduct which will in each instance fall within or without Canon 6.
The Florida Bar from time to time considers complaints against lawyers which, if sustained, may amount to violations of DR 6-101(A)(3), e.g., failing to file suit within the applicable statute of limitations period. But, again, the Committee is of the opinion that the boundaries of negligence in a civil malpractice action are not always co-existent with the boundaries of conduct which amounts to "neglect" under DR 6-101(A)(3). See ABA Informal Ethics Opinion 1273.
This opinion, while, as explained above, being necessarily worded in somewhat broad terms, should nonetheless be read as pointing up and emphasizing the obligation of each lawyer to be fully cognizant of the existence and potential applicability of the Code, including new Canon 6, to the subject of a lawyer's competent handling of legal matters.
"A lawyer shall not: (3) Neglect a legal matter entrusted to him"