NJ Underlying Commercial Action
Facts: Plaintiffs, who were previously defendants in a foreclosure action, filed a complaint against the attorneys who represented the mortgage bank. Plaintiffs sought damages for a breach of the Rules of Professional Conduct, alleging that the bank’s attorneys actively mislead plaintiffs during the pendency of the foreclosure proceedings.
Issue: Can a violation of the Rules of Professional Conduct alone serve as the basis for a cause of action in legal malpractice?
Violation of a Rule should not give rise to a cause of action nor should it create any presumption that a legal duty has been breached…Consonant with the intent of the ABA, no New Jersey case has allowed a cause of action based solely on a violation of the RPCs….Moreover, our research has found no case in any other jurisdiction permitting the RPCs to be used in this manner…[S]tate disciplinary codes are not designed to establish standards for civil liability but, rather, to provide standards of professional conduct by which lawyers may be disciplined…[Various rules] are framed as precatory guidelines…Many of the disciplinary rules are aspirational in nature and therefore, particularly unsuitable for use outside of the disciplinary system.
* * *While violations of ethical standards do not per se give rise to tortious claims, the standards set the minimum level of competency which must be displayed by all attorneys. Where an attorney fails to meet the minimum standard of competence governing the profession, such failure can be considered evidence of malpractice.
Lesson: A cause of action for legal malpractice cannot be premised solely on an attorney’s alleged breach of a Rule of Professional Conduct. But violation of an RPC can nonetheless be some evidence of a departure from the applicable standard of care.