During the annual meeting of the Association of Professional Responsibility Lawyers from August 4-6, in Chicago, Craig Alexander provided a pre-recorded “FRED” talk, a Focused, Rapid Ethics Discussion about a specific ethics subject. Craig focused on civil lawsuits against lawyers and whether the rules of professional conduct apply. During his 15-minute presentation, he shared:

(1) The general rule is that a claimed violation of a rule of professional conduct is not intended to be, and cannot be, the predicate of a claim for damages in a civil lawsuit;

(2)   In some jurisdictions, evidence of a violation of a lawyer’s ethical duties can be admissible to help show that a lawyer breached a fiduciary or other substantive legal duty;  and

(3)   There are some cases holding that evidence of a lawyer’s violation of a rule of professional conduct can be relevant to a defense to a claim brought by the lawyer.

To clarify the last point, Craig shares the following scenario. Imagine an attorney brings a claim against another attorney saying that he is owed a portion of a contingency fee award received by the sued attorney. However, the defending attorney (sued attorney) may argue that giving the suing attorney a portion of the contingency fee would be unjustified and would violate one of the Rules of Professional Conduct. What’s in that rule would be relevant (and admissible) to that sued lawyer’s defense to the claim brought by the suing lawyer.