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The Differing Standards For Attorney Discipline & Malpractice

California Lawyers who fail to represent clients competently, and in accordance with applicable ethical standards, may be liable both to the client and to the California Bar Association. While civil  liability to the client generally results in awards of damages (monetary awards granted by a court), the Bar Association’s disciplinary committee has a range of options, ranging from warnings to monetary penalties, and even suspension or loss of the lawyer’s license to practice law.

The standards for discipline by the Bar and civil liability to clients differ in important ways, and even if an attorney faces warnings or other disciplinary actions, he or she is not necessarily liable for (or guilty of) malpractice.

Let’s take a look at some of the differences:

IN MALPRACTICE ACTIONS, THE ATTORNEY’S LACK OF COMPETENCE MUST HAVE CAUSED DAMAGES

An attorney’s failure to represent clients in accordance with the Bar’s objective standards for competence may result in warnings or other forms of attorney discipline. However, attorneys are not liable for malpractice unless the relevant conduct not only breached the objective standard of care applicable to representation of the client, but was also the actual (and legal) cause of provable damage or harm to the client.

If the client’s losses were not the result of, or actually increased by, the attorney’s wrongful conduct, the attorney will not be liable for malpractice, even if the conduct deserves (or results in) discipline from the Bar Association.

DIFFERENT STATUTES OF LIMITATIONS APPLY TO MALPRACTICE & ATTORNEY DISCIPLINE

The statute of limitations on malpractice actions generally requires a plaintiff to file suit (or “commence an action”) against the attorney within the sooner of: (a) one calendar year after the client’s discovery of events allegedly constituting malpractice, or (b) four calendar years after occurrence of the events allegedly constituting malpractice.

By contrast, proceedings for attorney discipline are subject to a five year statute of limitations, meaning the action must be commenced within five years after the date of the conduct which allegedly subjects the attorney to discipline.

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Other differences also exist between a malpractice action and an action for attorney discipline. The purpose of disciplinary proceedings is to evaluate the attorney’s continuing right and ability to practice law, whereas the purpose of malpractice actions is generally for a client to attempt to recover monetary damages relating to an attorney’s (allegedly) wrongful action.

The law does not require attorneys to be flawless, either in terms of disciplinary standards or in terms of fulfilling the duty owed to the client under the laws which govern malpractice. Sometimes, clients lose cases despite the attorney’s best efforts, even when the attorney’s conduct complied with all applicable professional standards. Note that if losing a case constituted malpractice (or grounds for discipline), half of the licensed attorneys in any state would be subject to liability or discipline at the conclusion of every legal case. Without more, the client’s loss alone does not necessarily constitute either malpractice or grounds for attorney discipline by the Bar Association–one reason why it’s important to obtain the opinion of a qualified attorney before commencing an action for malpractice or filing a complaint with the Bar.

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Disclaimer:  THIS ARTICLE IS FOR INFORMATIONAL PURPOSES ONLY, AND DOES NOT CONSTITUTE LEGAL ADVICE. Your rights and experiences may vary. Never use an article like this one to evaluate your legal claims. Speak with an experienced lawyer promptly to obtain a personalized evaluation of your claims, possible damages, and options.  You may lose or compromise your rights if you delay in consulting legal counsel.

Legal claims against lawyers are a complicated topic. Articles like this touch only on basic issues. If you believe you have a claim against an attorney who failed to provide you with competent representation, consult an experienced malpractice lawyer immediately for an evaluation of your possible rights and claims.

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