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Some portions of the collection may already be severely out of date, so please be cautious in your use of this material.


Arkansas Legal Ethics

I. CLIENT-LAWYER RELATIONSHIP

1.1   Rule 1.1 Competence

1.1:100   Comparative Analysis of Arkansas Rule

1.1:101      Model Rule Comparison

The Arkansas Rule is the same as the Model Rule.

1.1:102      Model Code Comparison

The comparison accepted by the Arkansas Supreme Court is identical to the comparison in the Model Rules.

1.1:200   Disciplinary Standard of Competence

An attorney may be professionally disciplined for a single act of incompetence or for general incompetence. See Dodrill v. Executive Director, 308 Ark. 301, 824 S.W.2d 383 (1992) (one year suspension for incompetence in bankruptcy proceedings, as well as abusive behavior and derogatory remarks); Walker v. Sup. Ct. Comm. on Prof. Conduct, 275 Ark. 158, 628 S.W.2d 552 (1982) (attorney failed to commence action before the running of the statute of limitations).

Attorneys representing criminal defendants are held to the same standard of competence as attorneys representing other parties. However, disciplinary proceedings or malpractice proceedings against Arkansas criminal defense attorneys have been rare. A more frequent occurrence is for the client, now convicted of a crime, to seek to set aside the conviction, arguing ineffective assistance of counsel as guaranteed by the Sixth Amendment to the United States Constitution.

An attorney is presumed to be competent. Hoover v. State, 270 Ark. 978, 606 S.W.2d 749 (1980). In criminal cases the standard is "reasonably effective assistance," an objective standard of reasonableness in light of all circumstances. Knappenberger v. State, 283 Ark. 210, 672 S.W.2d 54 (1984). In seeking post-conviction relief on grounds of ineffective representation, the petitioner must establish, first, that the counsel's performance was so deficient that in effect the petitioner had no counsel, the trial results were constitutionally unreliable, and he was deprived of a fair trial. Pruett v. State, 287 Ark. 124, 697 S. W. 2d 872 (1985).

Recognizing that litigation is an art and not a science, judicial scrutiny of an attorney's performance is highly deferential: ". . . a fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct and to evaluate the conduct from counsel's perspective at the time." Mason v. State, 289 Ark. 299, 712 S.W.2d 275 (1986). The petitioner must establish that the representation fell below an objective standard of reasonableness. Fretwell v. State, 299 Ark. 305, 772 S. W. 2d 334 (1989) (counsel's failure to give proper advice concerning accomplice liability prior to client's guilty plea to first degree murder). Errors, omissions, bad tactics and unwise strategy do not by themselves make the counsel ineffective. Johnson v. State, 321 Ark. 117, 900 S.W. 2d 940 (1995).

Second, the petitioner has the burden of demonstrating that any deficient performance resulted in such clear prejudice that the petitioner was deprived of a fair trial. Burnett v. State, 293 Ark. 300, 737 S. W. 2d 631 (1987). The test is a reasonable probability that, except for the counsel's performance, the result of the criminal proceeding would have been different. Spivey v. State, 299 Ark. 412, 773 S. W. 2d 446 (1989) (counsel's failure to raise meritorious defense of the denial of a speedy trial); Sutherland v. State, 299 Ark. 86, 771 S. W. 2d 264 (1989) (counsel's failure to abstract the record, which would have revealed the use of an unconstitutionally obtained confession).

For examples where the criminal defendant overcame the strong presumption of competent representation, see Russell v. State, 302 Ark. 274, 789 S.W.2d 720 (1990) (attorney failed to call key witness in client's criminal proceeding which could have resulted in acquittal); Howard v. State, 301 Ark. 281, 783 S.W.2d 61 (1990) (attorney convinced client to plea guilty to felony in mistaken belief that suspension and probation were available); Hall v. State, 281 Ark. 282, 663 S.W.2d 926 (1984) (defendant did not knowingly and intelligently waive his right to a speedy trial).

Regardless of whether the attorney is appointed by the court or retained by the client, the professional responsibilities of criminal defense attorneys are the same. Hallman v. State, 287 Ark. 383, 698 S.W.2d 803 (1985). The competency of an attorney to represent an indigent criminal defendant is a matter of law for the judicial system, not an issue of policy for the executive or legislature branch of government. Ball v. Roberts, 291 Ark. 84, 722 S.W.2d 829 (1987) (overriding Ar. Code §16-92-108(d) which excluded from appointment attorneys more than 25 years out of law school who did not regularly practice criminal law).

1.1:300   Malpractice Liability

1.1:310      Relevance of Ethics Codes in Malpractice Actions

The relationship between the Rules of Professional Conduct and civil liability is unclear. The introductory Scope of the Arkansas Rules, Paragraph [6], specifically states that the rules "are not designed to be a basis for civil liability." See Wiseman v. Batchelor, 315 Ark. 85, 864 S.W. 2d 248 (1993) (rules provide no basis for constructive fraud claim by litigant against opposing attorney); Crockett & Brown, P.A. v. Wilson, 314 Ark. 578, 864 S.W. 2d 244 (1993) (civil liability cannot rest on Rule 3.1). Accordingly, the Supreme Court has held that a trial court acted properly in refusing to admit into evidence in a malpractice case the Rules of Professional Conduct. Orsini v. Larry Moyer Trucking, Inc., 310 Ark. 179, 833 S.W. 2d 366 (1992). Indeed the Court's language suggests that jurors should not be permitted to expressly consider the rules at all in determining the negligence of the defendant. See Mark A. Hagemeier, Note, Orsini v. Larry Moyer Trucking, Inc.: Approaching a Definite Use of the Model Rules of Professional Conduct in Arkansas, 46 ARK. L. REV. 607 (1993).

However, nothing in the rules explicitly prohibits a fact finder from considering them, along with other guidelines, to determine the professional standard expected of attorneys. The Arkansas Rules are promulgated pursuant to Amendment 28 to the Arkansas Constitution, which specifically enables the Court to adopt rules regulating the professional conduct of attorneys. Therefore an expert witness may render an opinion relying upon the rules as one factor in determining the duties of an ordinarily careful and prudent attorney. The standard of care expected will also reflect any governing statutes, the special expertise of the attorney, any specific instructions of the client, the defined role of the attorney in the relationship, and the substantive area of the representation. It seems clear that a court may invoke the Rules of Professional Conduct without expressly using them as the basis for its decision. See Mobley v. Harmon, 313 Ark. 361, 854 S.W. 2d 348 (1993).

1.1:320      Duty to Client

The attorney-client relationship commences when the client consults with an attorney with a view to obtaining legal advice or legal services. See Heathcoat v. Santa Fe Int'l. Corp., 532 F. Supp. 961 (E.D. Ark. 1982). The duty of confidentiality and perhaps other duties are triggered at this point. But the attorney-client relationship is formalized only when the parties enter into an attorney-client contract. At that point the attorney represents the client.

In the absence of an attorney-client relationship, the attorney is not liable for legal malpractice. Hughes v. Gibbs, 282 Ark. 488, 669 S. W. 2d 451 (1984). However, the cautious attorney should recognize that the existence of a relationship is a factual question. Such a relationship may exist in the absence of a written agreement, see Sexton v. Supreme Court Comm. on Professional Conduct, 295 Ark. 141, 147, 747 S.W.2d 94, 97 (1988) (dissenting opinion of Justice Hays), in the absence of attorney fees being paid or requested, see Shaffer v. Wilkes, 65 F.3d 115 (8th Cir. 1995) (client hired attorney for evaluation of corporate claim; first attorney contacted second attorney to determine availability as possible litigator; jury question presented as to whether attorney-client relationship existed with second attorney), in the absence of an ongoing relationship, and even in the absence of a law office environment. The governing factor is whether the attorney knowingly provided legal services or advice to a client.

The elements of the attorney-client relationship, embodied in part in the Rules of Professional Conduct, include confidentiality, loyalty, competency, and diligence. Resting on principles of agency, the relationship requires the lawyer to maintain the proper allocation of authority between the attorney and client, to keep the client informed, to charge the client a reasonable fee, to fulfill the obligations of a fiduciary to the client, and to terminate the relationship only under prescribed conditions.

1.1:330      Standard of Care

To prevail on a legal malpractice claim, the plaintiff must demonstrate that (1) the attorney owed a duty to the client; (2) the attorney's conduct in carrying out the duty fell below the generally accepted standard of practice; (3) the conduct proximately caused damage to the client; and (4) the damage would not have occurred but for the negligence of the attorney. Anthony v. Kaplan, 324 Ark. 52, 918 S.W. 2d 174 (1996); Callahan v. Clark, 321 Ark. 376, 901 S.W. 2d 842 (1995). The attorney owes to the client the standard of care and representation that would be provided by a reasonable and prudent attorney in the community. Rhine v. Haley, 238 Ark. 72, 378 S. W. 2d 655 (1964). An attorney is not liable for failing to do what he had no duty to do. Dunn v. Westbrook, 334 Ark. 83, ___ S.W. 2d ___ (1998) (attorney in drafting a partnership agreement was under no duty to include a buy-out provision). The court has not determined whether a ˝ańÓduty ţprovides a basis for legal malpractice. Id.

In a variety of settings, clients have alleged that their attorneys failed to provide reasonable and ordinary care. Examples of alleged malpractice fall into four categories: (1) failure to give competent legal advice or provide adequate legal research; (2) improper preparation of legal instruments; (3) negligent acts or omissions during litigation, such as the failure to timely commence an action, to seek removal, to respond to a motion, to perfect an appeal or to obtain a lien on a judgment; (4) conflicts of interest that deny the client an independent legal advisor or advocate, whether a conflict with another client, a former client, or the personal interests of the attorney. See the cases collected in Howard W. Brill, ARKANSAS LAW OF DAMAGES, §26-2 (3rd ed. 1996).

1.1:335      Requirement of Expert Testimony

Typically the plaintiff's case will be supported by the expert testimony of attorneys familiar with the ordinary standard of care. For example, Callahan v. Clark, 321 Ark. 376, 901 S. W. 2d 842 (1995); Bartels v. Waire, 289 Ark. 362, 712 S. W. 2d 285 (1986). But in some instances, such as the failure to obtain the necessary signatures on a testamentary document or the failure to timely file documents, such testimony may not be necessary if the matter may be said to fall within the common knowledge or experience of the jury. In some instances the admission of the attorney may be sufficient. See McDonald v. Eubanks, 292 Ark. 533, 731 S. W. 2d 769 (1987). See 1.1:310.

1.1:340      Causation and Damages

The client is entitled to the amount he would have recovered but for the attorney's negligence in failing to exercise ordinary and reasonable care in the representation of the client. Rhine v. Haley, 238 Ark. 72, 378 S. W. 2d 655 (1964) (failure to protect client's interest by perfecting a lien). In effect the malpractice action becomes a trial within a trial as the plaintiff must establish what would have resulted in the original suit. For example, in an action when the attorney failed to properly handle a workers' compensation claim, the jury in the subsequent legal malpractice action determined that the plaintiff would have obtained compensation benefits of $15,000 and awarded a judgment for that amount against the attorney. Bartels v. Waire, 289 Ark. 362, 712 S.W. 2d 285 (1986). Similarly, an award of $240,000 was affirmed based on an attorney's failure to properly evaluate corporate assets and advise his client as to the property settlement of a divorce. Callahan v. Clark, 321 Ark. 376, 901 S.W. 2d 842 (1995).

Occasionally a judgment may have been obtained, but then reversed because of negligence. In that instance, the damages can be ascertained relatively easily, while the issue of malpractice is the pivotal issue. See, for example, Lemon v. Laws, 313 Ark. 11, 852 S.W. 2d 127 (1993) (alleged negligent representation during divorce action led to reversal of judgment). Conversely, if the client suffers actual losses, for example, by having to pay a judgment because of the attorney's failure to timely answer a complaint, the recovery would be the actual loss. For example, Allstate Ins. Co. v. Bourland, 296 Ark. 488, 758 S. W. 2d 700 (1988) (defense attorney improperly removed the case to federal court, with the result that a default judgment was entered against client in state court).

Ar. Code §16-22-306 provides that if an action is dismissed because of the negligence or nonattendance of the attorney, he is liable for costs and all damages sustained by the client. Further, apart from the common law and from statutory authority, a chancery judge has inherent authority to hold an attorney liable for an injury caused by professional malfeasance. Liles v. Liles, 289 Ark. 159, 711 S.W.2d 447 (1986). Punitive damages may be awarded for intentional wrongdoing or conscious indifference, but not for gross negligence. Welder v. Mercer, 247 Ark. 999, 448 S.W.2d 952 (1970). Mental anguish damages are not available. Leonard v. Walthall, 143 F. 3d 466 (8th Cir. 1998).

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

An attorney may not ethically attempt to limit his liability in the rendition of legal services and must stand behind his work product. AR Rule 1.8(h). An attorney's liability for his own acts or omissions is not limited by virtue of practicing in or as a professional corporation. As to the liability of the law firm and other attorneys, see 5.1:500.

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

Arkansas has no case law or authority on this topic.

1.1:370      Defenses to Malpractice Claim

Frequently the defense strategy in a legal malpractice claim is to argue that even if the attorney had not been negligent, the plaintiff would not have recovered anything because the underlying claim was worthless. For example, Anthony v. Kaplan, 324 Ark. 52, 918 S.W. 2d 174 (1996) (client failed to show he would have prevailed if appeal had been timely taken); Shaffer v. Wilkes, 65 F. 3d 115 (8th Cir. 1995) (trial court properly granted new trial when evidence showed underlying claim lacked merit). Upon the failure of the plaintiff/client to demonstrate that but for the alleged malpractice, the result would have been different in the underlying action, and that damages resulted from the attorney's negligence, a jury award must be reversed. Vanderford v. Penix, 39 F. 3d 209 (8th Cir. 1994).

Most attorney malpractice actions rest in negligence and are therefore subject to the three-year statute of limitations. Ar. Code §16-56-105(1) (action founded upon ˝contract, obligation, or liability . . . not in writing . . .ţ). See Smith v. Elder, 312 Ark. 384, 849 S.W. 2d 513 (1993) (malpractice judgment against attorney for breaching fiduciary duty to limited partners in his dairy farming operation reversed for failure to commence action within three-year statute of limitation). The limitation period begins to run upon the occurrence of the last element essential to the cause of action. Wright v. Compton, Prewett, Thomas & Hickey, P.A., 315 Ark. 213, 866 S.W. 2d 387 (1993) (the date of the last act of the corporate reorganization). The statute begins to run when the negligence occurs, not when it is discovered, at least in the absence of fraudulent concealment of the cause of action by the attorney. Therefore the buyer of real estate who sued his attorney for a defective title opinion given four years earlier was barred from pursuing the action. Morris v. McLemore, 313 Ark. 53, 852 S.W. 2d 135 (1993) (wills drafted in 1969; wills probated in 1985; legal malpractice claim alleging negligent draftsmanship barred by statute of limitation); Orsini v. Larry Moyer Trucking, Inc., 310 Ark. 179, 833 S.W. 2d 366 (1992) (jury question as to when negligence occurred); Goldsby v. Fairley, 309 Ark. 380, 831 S.W. 2d 142 (1992) (title opinion in 1980; 1988 action barred by the statute of limitation); Riggs v. Thomas, 283 Ark. 148, 671 S.W. 2d 756 (1984). However, the running of the statute of limitations is tolled for any period during which the party alleging malpractice could not have sued because the injury did not, temporarily, exist. Stroud v. Ryan, 297 Ark. 472, 763 S.W. 2d 76 (1989) (statute tolled while appeal from trial court was pending). See also Pope County v. Friday, Eldredge & Clark, 313 Ark. 83, 852 S.W. 2d 114 (1993) (statute of limitation tolled for the period from trial court's favorable bond decision until appellate reversal). Arkansas has refused to apply any ˝termination of employment ţ rule to legal malpractice. Ragar v. Brown, 332 Ark. 214, 964 S.W. 2d 372 (1998).

Under the so-called barrister's rule, an attorney is not liable for good faith errors of judgment in trial tactics or litigation. Pugh v. Griggs, 327 Ark. 577, 940 S.W. 2d 445 (1997) (judgment call as to whether to take Rule 41 voluntary nonsuit). Further, an attorney is not liable for a mistaken opinion on an issue of law which is unresolved by the courts and on which reasonable attorneys can differ. Pugh v. Griggs, 327 Ark. 577, 940 S.W. 2d 445 (1997) (unsettled question as to savings clause in medical malpractice litigation); Schmidt v. Pearson, Evans and Chadwick, 326 Ark. 499, 931 S.W. 2d 774 (1996) (jury verdict of $4 million set aside by j.n.o.v.).

Apparently no reported Arkansas decisions discuss the extent to which the negligence of the client can be asserted as an affirmative defense under the comparative fault statute. However, the defense is applicable in accountant malpractice cases. See F.D.I.C. v. Deloitte & Touche, 834 F.Supp. 1129 (E.D. Ark. 1992). The election of remedies doctrine does not prohibit the assertion of both tort and contract theories. Lemon v. Laws, 313 Ark. 11, 852 S.W. 2d 127 (1993).

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

Because the relationship between attorney and client is fiduciary in nature, the attorney must act in the utmost good faith. Sikes v. Segers, 266 Ark. 654, 587 S. W. 2d 554 (1979). The burden of demonstrating good faith rests upon the attorney. Johnson v. Rolf, 208 Ark. 554, 187 S.W.2d 877, 188 S.W.2d 137 (1945).

In the absence of fraud, the client is bound by the acts, omissions or neglect of the attorney acting within the scope of his authority, whether express or implied, apparent or ostensible. Peterson v. Worthen Bank & Trust Co., 296 Ark. 201, 753 S.W. 2d 278 (1988); Springdale Memorial Hospital v. Director of Labor, 34 Ark. App. 266, 809 S.W. 2d 828 (1991). Accordingly, the client may have a malpractice claim against the attorney. Conversion claims may be asserted against an attorney for wrongful use of clients' funds. See Tapp v. Fowler, 291 Ark. 309, 724 S.W. 2d 176 (1987). Even in the absence of a clear attorney-client relationship, allegations of fraud or breach of contract may be asserted. Clark v. Ridgeway, 323 Ark. 378, 914 S.W. 2d 745 (1996). However, claims alleging the tort of outrage cannot be asserted in a legal malpractice claim that asserts only inattentive or negligent conduct. See Thornton v. Squyres, 317 Ark. 374, 877 S.W. 2d 921 (1994) (negligence in handling a divorce case was not a basis for outrage claim).

Conceivably a malpractice action can rest in contract rather than tort. For example, in the course of representation the attorney may have expressly promised to complete certain tasks and allegedly failed to do so. Further, some aspects of the legal profession should be impliedly warranted in all attorney-client relationships, such as the duty to maintain confidentiality and the duty to keep the client informed so that the client may make basic decisions. Whereas a tort claim alleges a breach of a duty imposed by the law, a contract claim is based on the express or implied terms of the contract between the parties. A determining factor may be whether the complaint primarily alleges improper performance of a contract or the failure to carry out a condition or promise of the contract. Robertson v. White, 633 F. Supp. 954, 971-974 (W. D. Ark. 1986). Such a determination may affect the statute of limitations (written contracts have a five-year statute of limitations, Ar. Code §16-56-111), the availability of punitive damages, the extent of compensatory damages and comparative fault applicability.

1.1:390      Liability When Non-Lawyer Would Be Liable

Arkansas has no case law or authority on this topic.

1.1:400   Liability to Certain Non-Clients

1.1:410      Duty of Care to Certain Non-Clients

No Arkansas cases discuss the issue of the attorney's liability to third parties who may have expected to benefit from the legal services provided to a client, as for example, the beneficiary under an invalid will. However, a 1987 statute provides that a lawyer is not liable to persons not in privity of contract for civil damages arising from acts, omissions or other conduct in connection with professional services. Ar. Code §§ 16-22-310, 16-114-303. See Clark v. Ridgeway, 323 Ark. 378, 914 S.W. 2d 745 (1996). The statute does recognize two exceptions to the rule of no liability: (a) fraud or intentional misrepresentation by the lawyer; and (b) knowledge that a primary intent of the client was to benefit or influence the third party, provided the third party was identified in writing and notified by the attorney.

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

Arkansas has no case law or authority on this topic.

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

Arkansas has no case law or authority on this topic.

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

Arkansas has no case law or authority on this topic.

1.1:450      Failing to Prevent Death or Bodily Injury

See 1.6:300.

1.1:500   Defenses and Exceptions to Liability

See 1.1:370.

1.1:510      Advocate's Defamation Privilege

A statement made in a judicial pleading is absolutely privileged, provided the statement is relevant to the issues in the case. Westridge v. Wright, 446 F. Supp. 234 (E.D. Ark. 1979). That privilege covers both the party and the attorney. Pogue v. Cooper, 284 Ark. 202, 680 S.W. 2d 698 (1984). See Ewing v. Cargill, Inc., 324 Ark. 217, 919 S.W. 2d 507 (1996) (judicial allegation that judgment existed against plaintiff). The privilege extends as well to statements made by an attorney that are preliminary to a proposed judicial proceeding that is contemplated in good faith and under serious consideration. Pinkston v. Lovell, 296 Ark. 543, 759 S.W. 2d 20 (1988) (defendant's statement was made in the context of discussing a legal malpractice action against the plaintiff); Selby v. Burgess, 289 Ark. 491, 712 S.W. 2d 898 (1986). For a discussion of privileges, see Lisa R. Pruitt, Comment, The Law of Defamation: An Arkansas Primer, 42 ARK. L. REV. 915, 997-1018 (1989).

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

See 1.2:340; 3.1:300.

1.1:530      Assisting Client to Break a Contract

Arkansas has no case law or authority on this topic.

1.1:600   Vicarious Liability [see 5.1:500]

The Arkansas law on partnerships, limited liability corporations, and limited liability partnerships is found in 5.1:500.