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End-of-life notice: American Legal Ethics Library

As of March 1, 2013, the Legal Information Institute is no longer maintaining the information in the American Legal Ethics Library. It is no longer possible for us to maintain it at a level of completeness and accuracy given its staffing needs. It is very possible that we will revive it at a future time. At this point, it is in need of a complete technological renovation and reworking of the "correspondent firm" model which successfully sustained it for many years.

Many people have contributed time and effort to the project over the years, and we would like to thank them. In particular, Roger Cramton and Peter Martin not only conceived ALEL but gave much of their own labor to it. We are also grateful to Brad Wendel for his editorial contributions, to Brian Toohey and all at Jones Day for their efforts, and to all of our correspondents and contributors. Thank you.

We regret any inconvenience.

Some portions of the collection may already be severely out of date, so please be cautious in your use of this material.


Alabama Legal Ethics

I. CLIENT-LAWYER RELATIONSHIP

1.1 Rule 1.1 Competence

1.1:100 Comparative Analysis of ALA Rule

1.1:101 Model Rule Comparison

There are no differences between MRPC 1.1 and ARPC 1.1.

1.1:102 Model Code Comparison

Inapplicable.

1.1:200 Disciplinary Standard of Competence

  • Primary Alabama References: AL Rule 1.1
  • Background References: ABA Model Rule 1.1, Other Jurisdictions
  • Commentary: ABA/BNA § 31:201, ALI-LGL § 28, Wolfram § 5.1
  • Alabama Commentary:

In 1974, Alabama declined to adopt the ABA Model Code Competency Provision, DR6-101. Thus, before the adoption of ARPC 1.1 in 1990, Alabama did not have an affirmative requirement of competency. Rule 1.1 sets out four elements of competent representation: legal knowledge, skill, thoroughness, and preparation. The comment to Rule 1.1 specifies that the amount of legal knowledge and skill necessary depends upon the following factors:

(1) the relative complexity and specialized nature of the matter,

(2) the lawyer's general experience,

(3) the lawyer's training and experience of the field in question,

(4) the preparation and study the lawyer is able to give the matter, and

(5) whether it is feasible to refer the matter to, or associate or consult with, a lawyer of established competence in the field in question.

Every lawyer is expected to know commonly known rules of law and, if the matter involves rules of law that are not commonly known, the lawyer has a duty to research and discover the rules. The lawyer must use a reasonable level of skill. Youth or inexperience is no excuse for incompetency. ABA Lawyers' Manual on Professional Conduct § 31:201 (1997). In addition, a lawyer may give advice in an emergency situation without violating ARPC 1.1 even if he does not have the level of skill ordinarily required.

In order to be thorough and prepared, a lawyer must inquire into and analyze both factual and legal facets of a problem. The amount of preparation that is required may be dictated by the amount that is at stake. As currently written, the comments to ARPC 1.1 require more elaborate treatment for competent handling of major litigation and complex transactions than for "matters of lesser consequence."

The comments to Rule 1.1 require that lawyers continue their study and education in order to maintain necessary levels of competence.

1.1:300 Malpractice Liability

1.1:310 Relevance of Ethics Codes in Malpractice Actions

Ala. Code §  6-5-578(b) states as follows:

Neither evidence of a charge of a violation of the Rules of Professional Conduct against a legal service provider nor evidence of any action taken in response to such a charge shall be admissible in a legal services liability action and the fact that a legal service provider violated any provision of the Rules of Professional Conduct shall not give rise to an independent cause of action or otherwise be used in support of recovery in a legal services liability action.

Further, Ala.Code §  6-5-578(a) states as follows:

Evidence of action taken by a legal service provider in an effort to comply with any provision or any official opinion or interpretation of the Rules of Professional Conduct shall be admissible only in defense of a legal service liability action and the same shall be available as a defense to any legal services liability action.

A violation of the Rules of Professional Conduct may not be used as evidence in a legal malpractice action, regardless of whether the attorney has been charged with a violation of those rules. Ex parte Toler, 710 So.2d 415 (Ala. 1998).

1.1:320 Duty to Client

See Section 1.1:330.

1.1:330 Standard of Care

Ala. Code §  6-5-580 explains the standard of care of an attorney. In general, an attorney shall be required to use such reasonable care and skill and diligence as other similarly situated legal service providers in the same general line of practice in the same general area ordinarily exercise in a like case.

1.1:335 Requirement of Expert Testimony

While not necessarily required, it would be a rare circumstance when an allegation of legal malpractice can be proved without the necessity of expert testimony.

1.1:340 Causation and Damages

The general rules of Alabama law regarding proximate causation and damages are applicable to legal services actions.

1.1:350 Waiver of Prospective Liability [see 1.8:910]

1.1:360 Settlement of Client's Malpractice Claim [see 1.8:920]

1.1:370 Defenses to Malpractice Claim

See Ala. Code §  6-5-578 which permits an attorney's effort to comply with an official opinion or interpretation of a Rule of Professional Conduct to be admissible as a defense to a legal services liability action. In addition, the Alabama Legal Services Liability Act (Ala. Code §  6-5-570 et seq.) is the exclusive action for injury or damage caused by a legal services provider's alleged violation of the Standard of Care. The general defenses under Alabama law are available as well. In addition, there can be no liability imposed upon the attorney if the plaintiff cannot show that they would have actually recovered in the underlying action. The two year Statute of Limitations (Ala. Code §  6-5-574) begins to run from the date of the act of omission or failure to act. Ex parte Parnell, ____ So.2d _____, 1999 Ala. Lexis 339 (Ala. 1999). In addition, there is a six month tolling provision when the cause of action could not have reasonably been discovered within the two year period provided, that in no event may the action commence more than four (4) years after the act or omission.

1.1:380 Liability to Client for Breach of Contact, Breach of Fiduciary Duty, and Other Liabilities

Ala. Code §  6-5-570 et seq., the Alabama Legal Services Liability Act is the exclusive remedy against a legal services provider for an alleged violation of the Standard of Care.

1.1:390 Liability When Non-Lawyer Would Be Liable [See Section 1.1:380.]

1.1:400   Liability to Certain Non-Clients

  • Primary Arkansas References: AL Rule 1.1
  • Background References: ABA Model Rule 1.1, Other Jurisdictions
  • Commentary: ABA/BNA § 71:1101, ALI-LGL § 73, Wolfram § 5.6
  • Alabama Commentary:

1.1:410 Duty to Care to Certain Non-Clients

The Alabama Legal Services Liability Act does not apply to an action filed against a legal services provider by someone whose claim does not arise out of the receipt of legal services. Cunningham v. Langston, Frazier, Sweet and Freise, P.A., 727 So.2d 800 (Ala. 1999). Alabama applies the rule of law that "bars an action for legal malpractice against a lawyer by a plaintiff for whom the lawyer has not undertaken a duty, either by contract or gratuitously." Robinson v. Benton, 2002 WL 1044713 *7 (Ala. 2002). Thus, devisee does not have standing as third-party beneficiary to sue attorney. Id.

1.1:420 Reliance on Lawyer's Opinion [see also 2.3:300]

1.1:430 Assisting Unlawful Conduct [see also 1.2:600-1.2:630]

1.1:440 Knowledge of Client's Breach of a Fiduciary Duty [see also 1.13:520]

1.1:450 Failing to Prevent Death or Bodily Injury

1.1:500 Defenses and Exceptions to Liability

  • Primary Arkansas References: AL Rule 1.1
  • Background References: ABA Model Rule 1.1, Other Jurisdictions
  • Commentary: ABA/BNA § 301:1001, ALI-LGL §§ 76, 78, Wolfram § 5.6
  • Alabama Commentary:

1.1:510 Advocate's Defamation Privilege

1.1:520 Wrongful Use of Civil Proceedings; Abuse of Process; False Arrest

1.1:530 Assisting Client to Break a Contract

1.1:600 Vicarious Liability [see 5.1:500]

  • Primary Alabama References: AL Rule 1.1
  • Background References: ABA Model Rule 1.1, Other Jurisdictions
  • Commentary: ABA/BNA § 91:201, ALI-LGL § 58, Wolfram § 5.6
  • Alabama Commentary: