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Some portions of the collection may already be severely out of date, so please be cautious in your use of this material.


Connecticut Legal Ethics

I. CLIENT-LAWYER RELATIONSHIP

1.1   Rule 1.1 Competence

1.1:100   Comparative Analysis of Connecticut Rule

Primary Connecticut References: CT Rule 1.1
Background References: ABA Model Rule 1.1, Other Jurisdictions
Commentary:
Connecticut Commentary:

1.1:101      Model Rule Comparison

Connecticut Rule 1.1 is identical to the Model Rule 1.1.

The Comments to Conn. Rule 1.1 contain two exclusions and one addition to the Comments to the Model Rules. Within the section entitled, ËThoroughness and Preparation,Ó the Conn. Rule excludes the reference to Rule 1.2(c), concerning agreements between the lawyer and client limiting the scope of representation. The addition is to the section entitled ËMaintaining Competence.Ó Within this section, while excluding the requirement to Ëkeep abreastÓ of changes in the law, it adds a recommendation for lawyers to consider making use of peer review when appropriate, and available.

1.1:102      Model Code Comparison

The counterpart to Conn. Rule 1.1 in the Model Code was DR 6-101(A)(1)-(3). Model Code DRG 6-101, 1) prohibited a lawyer from handling a matter the lawyer knew he was not competent to handle without association with a lawyer who is competent, 2) it required preparation adequate in the circumstances, and 3) prohibited neglect of a matter entrusted to him. In comparison, Conn. Rule 1.1 is more detailed than DR 6-101 in what constitutes Ëcompetent representation.Ó Rule 1.1 also does not contain DR 6-101(A)(3)Ás prohibition against neglecting legal matters entrusted to the lawyer. Rule 1.1, however, requires that legal representation must be ËcompetentÓ, which is defined as requiring Ëthoroughness and preparation,Ó as well as knowledge and skill, all of which are incompatible with neglect.

1.1:200   Disciplinary Standard of Competence

Primary Connecticut References: CT Rule 1.1
Background References: ABA Model Rule 1.1
Commentary:
Connecticut Commentary:

As with all claims of a violation of the Rules, the standard is clear and convincing evidence, and the burden is on the statewide grievance committee to establish the occurrence of an ethics violation by clear and convincing proof. Weiss v. Statewide Grievance Committee, 227 Conn. 802, 812, 633 A.2d 282 (1993). While the American Bar Association Standards for Imposing Lawyer Sanctions have not been officially adopted in Connecticut, they are regularly utilized by courts when determining sanctions. Statewide Grievance Committee v. Shluger, 230 Conn. 668, 673, 646 A.2d 781, n. 10 (1994). The Ëclear and convincingÓ standard was applied in the only officially reported case in which Rule 1.1 served as a basis for professional discipline. Statewide Grievance Committee v. Friedland, 222 Conn. 131, 137, 609 A.2d 645 (1992).

ËThe basic principle which is presumed to underlie every aspect of an attorneyÁs professional life is competence.Ó Sullivan v. Town of Monroe, No. CV000370545, 2001 WL 951363 * 46 (Conn.Super. July 17, 2001).

Instances of Incompetence

Several cases involving competence have reached the Connecticut Supreme Court. In the case of Beverly Hills Concepts, Inc. v. Schatz and Schatz, Ribicoff and Kotkin, 247 Conn. 48, 717 A.2d 724 (Conn. 1998), the Connecticut Supreme Court upheld a trial courtÁs findings that the defendant associate had engaged in legal malpractice because, in her position as a junior associate, she failed to seek appropriate supervision in compliance with Conn. Rule of Ethics Rule 1.1. See id. at 56. In this case, Beverly Hills Concepts, Inc., a failed fitness business brought an action against its former law firm and individual attorneys for, among other things, alleged legal malpractice. See id. at 50-51. The trial court found for the plaintiff on the issue of legal malpractice and awarded damages in the amount of $15,931,289. See id. at 51. Both parties appealed to the appellate court and Connecticut Supreme Court transferred the case to itself. In upholding the trial courtÁs decision, the Connecticut Supreme Court reasoned that though Ë[h]aving little experience in franchising, [the defendant] . . . could have rendered competent representation by seeking appropriate supervision. She [however] failed to do so.Ó Id. at 56. The Court noted that although the defendant had sent both of her superiors copies of her work product for their review, she did nothing to make sure that her work was in fact being reviewed. See id. The Supreme Court concluded by stating Ëthe trial court reasonably concluded that this passivity departed from the applicable standard of care.Ó Id.

In Statewide Grievance Committee v. Friedland, 222 Conn. 131, 609 A.2d 645 (1992), the Connecticut Supreme Court held that the trial court had not erred when it found clear and convincing evidence that the defendant had violated Conn. Rule of Ethics 1.1. See id. at 137. The court noted that on numerous occasions the defendant was not only unprepared, but failed to appear or notify his client to appear at several hearings, and therefore was in clear violation of Rule 1.1. See id.

Procedural Competence

In Sullivan v. Town of Monroe, No. CV000370545, 2001 WL 951363 (Conn. Super. July 17, 2001), the court held that, Ë[t]he requisite familiarity with well settled legal principles extends to matters of procedure.Ó Id. at *14. The court began by noting that the Grievance Committee could have reasonably found the following facts: 1) when the defendant, Attorney Burton, filed a motion for continuance of the proceeding the motion was not filed on the prescribed forms, thereby impeding adjudication; 2) on four separate occasions Attorney Burton filed motions to disqualify the court, each of which failed to satisfy the requirements of local procedural rules in every respect save that they were in writing; and 3) on several occasions she moved orally for the courtÁs recusal and for mistrial, which undeniably failed to comply with our rules of practice. See id. In holding the defendant in violation of Conn. Rule of Professional Conduct 1.1, the Court reasoned that a lawyer is expected to know the rules of court before which the lawyer practices. The court stated that ËAttorney Burton has demonstrated an appalling lack of knowledge of the nature of an affidavit. . . . On numerous occasions Burton ignored the courtÁs warnings to cease speaking when an objection was made and an opposing attorney was speaking . . . . In numerous places during the proceeding she persisted in her efforts to produce documents that had already been declared inadmissible.Ó Id. at *14-15. In sum, the court found that, Ë[a]ttorney BurtonÁs professional performance fell below the acceptable standard of competence envisioned by Rule 1.1.Ó Id. at 15.

1.1:300   Malpractice Liability

Primary Connecticut References: CT Rule 1.1
Background References: ABA Model Rule 1.1
Commentary:
Connecticut Commentary:

As a general rule, attorneys are not liable to persons other than their clients for the negligent rendering of services. Leavenworth v. Mathers, 38 Conn. App. 476, 479, 661 A.2d 632 (1995). In discussing Rule 1.1, that case reminded that Noble v. Marshall, 23 Conn. App. 227, 230, 479 A.2d 594 (1990) had held that a breach of the Rules does not, of itself, give rise to a cause of action. Leavenworth, at n. 2. In Beverly Hills Concepts, Inc. v. Schatz & Schatz, Ribicoff & Kotkin, 247 Conn. 48, 56-57, 717 A.2d 724 (1998) the Court also held that professional negligence alone, which implicates a duty of care, does not give rise automatically to a claim for breach of fiduciary duty, which implicates a duty of loyalty and honesty. That case, citing Rule 1.1, held that a court could have found a junior associate to have engaged in legal malpractice because, having little experience in the field in which she was working, she failed to seek appropriate supervision. Id., at 56.

The plaintiff in an attorney malpractice action must establish (1) the existence of an attorney-client relationship; (2) the attorneyÁs wrongful act or omission; (3) causation; and (4) damages. Mayer v. Biafore, Florek & OÁNeill, 245 Conn. 88, 92, 713 A.2d 1267 (1998). The test of proximate cause is whether the lawyerÁs conduct is a substantial factor in bringing about plaintiffÁs injury. Grayson v. Wofsey, Rosen, Kweskin & Kuriansky, 231 Conn. 168, 182, 646 A.2d 195 (1994). In Grayson, the Court upheld a verdict against the law firm, ruling that an attorney can be liable in advising a client to accept or reject offers of settlement if he fails to exercise that degree of skill and learning commonly applied under all the circumstances in the community by the average prudent reputable member of the legal profession and that conduct results in harm to the client; and this is so even where a judge has approved the settlement.

While it arose in an F.R.C.P. 37 sanctions context, the CourtÁs extensive review of the duties of competent representation set forth in J. M. Cleminshaw Co. v. City of Norwich, 93 F.R.D. 338, 348-349, n.5 (D. Conn. 1981) would be equally applicable in assessing the issue of legal malpractice.

The duty of an attorney specializing in a particular field of law is to exercise reasonable care, skill and diligence. The level of that duty is to exercise the same degree of care, skill and diligence which other attorneys in the same or similar locality and in the same line of practice would have exercised in similar circumstances. Bent v. Green, 39 Conn. Sup. 416, 420, 466 A.2d 322 (App. Sess. 1983).

1.1:310      Relevance of Ethics Codes in Malpractice Actions

Commentary on the Scope of the Conn. Rules states: ËViolation of a [disciplinary] rule should not give rise to a cause of action nor should it create any presumption that a legal duty has been breached. The Rules are designed to provide guidance to lawyers and to provide a structure for regulating conduct through disciplinary agencies. They are not designed to be a basis for civil liability.Ó The Model RuleÁs Comment on Scope is substantially similar the Conn. Comment. There are two significant differences. First, the Conn. Commentary excludes the qualification that a Ëviolation of a Rule does not necessarily warrant any other nondisciplinary remedy, such as disqualification of a lawyer in pending litigation.Ó ABA Model Rules cmt. 1.1. Second, the Conn. Commentary specifically excludes Model Rule provision that Ëviolation of a Rule may be evidence of breach of the applicable standard of conduct.Ó ABA Model Rules cmt. 1.1.

In Beverly Hills Concepts, Inc. v. Schatz and Schatz, Ribicoff and Kotkin, 247 Conn. 48, 717 A.2d 724 (Conn. 1998), the Connecticut Supreme Court held that professional negligence alone does not automatically give rise to civil liability. See id. at 56-57. Specifically, the Court reasoned that professional negligence implicates a duty of care, while breach of fiduciary duty implicates a duty of loyalty and honesty. See id. at 57. Consequently, the court held that because it cannot be said that the defendant represented that she had superior knowledge, skill, or expertise in the field of franchising, nor that she sought the plaintiffÁs special trust, it was improper for the trial court to conclude that her professional negligence rose to the level of a breach of fiduciary duty. See id.

1.1:320      Duty to Client

Ë[I]n general it [is] impermissible under Rule 1.1 for a lawyer to agree to undertake the general defense of [one] action while leaving the client unrepresented at a critical phase of the process.Ó See Conn. Bar Association Committee on Professional Ethics Informal Opinion 92-7 (1992) (hereinafter, ËInformal OpinionÓ); see also Conn. Ethics Informal Opinion 87-13 (1988). In Opinion 92-7, the Committee addressed the issue of whether a lawyer who was requested by an insurance carrier to defend an insured may limit the defense to counts that are covered by the policy. The Committee advised that a lawyer employed by an insurance carrier owes a duty of undivided loyalty to the insured. It reasoned that the Ëobligation of competency is concerned not merely with the quality of legal services provided to a client but also with the extent of the components or elements of representation a lawyer provides.Ó Consequently, a lawyerÁs duties of competence and diligence require Ëthat the insuredÁs lawyer represent him in any proceeding that might adversely affect the defense of the suit or claim.Ó

Connecticut Ethics Informal Opinion 97-8 (1997), addressed the issue of whether current counsel is under a duty to disclose prior counselÁs potential malpractice in failing to preserve her clientÁs testimony prior to death. The Committee concluded that an attorney is Ëobligated to disclose the failure to preserve the deceased plaintiffÁs testimony to the extent that the failure affects [the attorneyÁs] ability to provide competent representation.Ó

Reliance on Lawyer's Opinion

Connecticut Ethics Informal Opinion 89-10 (1989), addressed the role of lawyers as investment advisors to their own clients. Specifically, in reference to Rule 1.1, the Committee addressed: 1) whether lawyers should be permitted to act as investment advisors to their own clients; and 2) while acting as an individualÁs investment advisor, whether he or she should be allowed to act as a lawyer for the same party on the same matter. Both questions were answered in the affirmative, with the caveat that the lawyer will still need to comply with the ËRules of Professional Conduct, particularly rule[s] 1.8(a)...and Rule 1.1.Ó

1.1:330      Standard of Care

In the case of Welty v. Criscio, No. 426110, 2000 WL 728678 (Conn.Super. May 22, 2000), the court held that, Ë[a]n attorney who is negligent in her representation of a client breaches her obligation under Rule 1.1 almost by definition.Ó Id. at *3. The court, however, further held that although professional negligence is a breach of Rule 1.1, Ëit [does not] necessarily follow that the same negligence is also a breach of fiduciary responsibility.Ó Id.

1.1:335      Requirement of Expert Testimony

ËAs a general rule, a plaintiff cannot prevail in a [legal] malpractice action in Connecticut unless he presents expert testimony to establish the standard of proper professional skill or care.Ó Paul v. Goron, 58 Conn.App. 724, 727, 754 A.2d 851 (Conn.App. 2000). There is an exception to this rule, however, Ëwhere there is such an obvious and gross want of care and skill that the neglect is clear even to a lay person.Ó Davis v. Margolis, 215 Conn. 408, 416 n. 6, 576 A.2d 489 (1990). Furthermore, although Connecticut Courts have only applied this exception to medical malpractice cases, the Connecticut Supreme Court has implied, without actually deciding, that this exception also applies in the context of a legal malpractice case. See id. at 416 n. 6. (stating that Ë[t]here is no reason for a different rule where legal malpractice is claimedÓ).

1.1:340      Causation and Damages

There appear to be no pertinent Connecticut court decisions or ethics opinions on this subject.

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

See 1.8:910, below, for a discussion of this topic.

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

See 1.8:920, below, for a discussion of this topic.

1.1:370      Defenses to Malpractice Claim

Connecticut General Statutes ã 52-577 states, Ë[n]o action founded upon a tort shall be brought but within three years from the date of the act or omission complained of.Ó Consequently, Ë[w]here the complaint alleges legal malpractice based on negligence, the tort statute of limitations applies. Nickerson v. Martin, 34 Conn.Sup. 22, 25, 374 A.2d 258 (1976).

ËWhere a defendant, upon the negligent advice of counsel, submits to sentencing, the statute of limitations begins to run that date.Ó Shuster v. Buckley, 5 Conn.App. 473, 479, 500 A.2d 240 (Conn.App. 1985).

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

Breach of Contract

There appear to be no pertinent Connecticut court decisions or ethics opinions on this subject.

Breach of Fiduciary Duty

In the case of Rosenfield v. Rogin, Nassau, Caplan, Lassman & Hirtle, LLC» 69 Conn.App. 151, 795 A.2d 572 (2002), a client brought an action for legal malpractice against the firm he had retained to prosecute another legal malpractice claim, but which had allegedly allowed the statute of limitations to run on the claim. See id. at 152-53. In upholding the trial courtÁs granting the defendantÁs motion for summary judgment, the Appellate Court held that the malpractice on the part of the clientÁs previous legal representative did not constitute continuing conduct, and thus the statute of limitations applicable to the prior malpractice claim was not tolled by the continuing course of conduct doctrine. Id. at 162. After citing Rule 1.1, the court reasoned that, although the nature of the relationship between the client and his previous representation was fiduciary, Ë[t]he duty to prepare and present evidence is not a continuing duty that relates to the initial wrong. The breach of the duty is the initial wrong.Ó Id.

In the case of Welty v. Criscio, No. 426110, 2000 WL 728678 (Conn.Super. May 22, 2000), the court dealt with the question of whether the tort of breach of fiduciary duty brought by a client against her attorney can be established by negligent conduct alone. The court held that, in the context of tort law,Ë[a]lthough the attorney-client relationship imposes fiduciary duty obligations, negligent conduct alone does not implicate a breach of those obligations.Ó Id. at *3 (quoting Ronald E. Mallen & Jeffery M. Smith, Legal Malpractice ã 14.1.5, at 40 (4th ed. Supp. 1999)). Rather, the court stated that, the proper approach, Ëis to recognize two obligations: (1) competent representation and (2) compliance with fiduciary obligations.Ó Id.

See also Beverly Hills Concepts, Inc. v. Schatz and Schatz, Ribicoff and Kotkin, 247 Conn. 48, 717 A.2d 724 (Conn. 1998) (holding violation of professional rules does not necessarily equate to a violation of fiduciary duty).

Other Causes of Action

1.1:390      Liability When Non-Lawyer Would Be Liable

There appear to be no pertinent Connecticut court decisions or ethics opinions on this subject.

Representing Clients Outside LawyerÁs Jurisdiction

Informal Opinion 89-10 (1989), addressed the question of Ëwhether, by representing a client in settlement negotiations in a jurisdiction in which you are not licensed to practice, you might thereby be compromising that client's right to competent legal representation, under Rule 1.1 . . . .Ó The Committee stated that Ëthe rule does not necessarily require specialization or knowledge of a particular area of the law, but should that be lacking, the comment advises that such adequate representation be ensured through either Çnecessary studyÁ or the association of another lawyer Çof established competence in the field.ÁÓ Furthermore, the Committee added that Ëwhen the lawyer is engaged in negotiations involving the law of a state in which he is not admitted, the guidance of a local attorney familiar with the specific area of practice . . . might constitute a condition precedent to the type of ÇcompetentÁ representation required under Rule 1.1.Ó

1.1:400   Liability to Certain Non-Clients

Primary Connecticut References: CT Rule 1.1
Background References: ABA Model Rule 1.1
Commentary:
Connecticut Commentary:

The intended beneficiary has a cause of action against an attorney who failed to draft a will in conformity with a testatorÁs wishes. Stowe v. Smith, 184 Conn. 194, 199, 441 A.2d 81 (1981), or who failed to supervise the proper execution of a will. Licata v. Spector, 26 Conn. Sup. 378, 225 A.2d 28 (1966).

1.1:410      Duty of Care to Certain Non-Clients

There appear to be no pertinent Connecticut court decisions or ethics opinions on this subject.

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

There appear to be no pertinent Connecticut court decisions or ethics opinions on this subject.

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

See 1.2:600-1.2:620 for discussion of this topic.

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

There appear to be no pertinent Connecticut court decisions or ethics opinions on this subject.

1.1:450      Failing to Prevent Death or Bodily Injury

There appear to be no pertinent Connecticut court decisions or ethics opinions on this subject.

1.1:460   Wrongful Use of Civil Proceedings; Abuse of Process; False Arrest

There appear to be no pertinent Connecticut court decisions or ethics opinions on this subject.

1.1:470   Assisting Client to Break a Contract

There appear to be no pertinent Connecticut court decisions or ethics opinions on this subject.

1.1:500   Defenses and Exceptions to Liability

Primary Connecticut References: CT Rule 1.1
Background References: ABA Model Rule 1.1
Commentary:
Connecticut Commentary:

The three-year tort statute of limitations established in General Statutes ã52-577 applies to actions for legal malpractice based on negligence. Sanborn v. Greenwald, 39 Conn. App. 289, 301, 664 A.2d 803, cert. den. 235 Conn. 925, 666 A.2d 1186 (1995). In such cases, the defense of comparative negligence is also available. Somma v. Gracey, 15 Conn. App. 371, 378, 544 A.2d 668 (1988).

1.1:510      Advocate's Defamation Privilege

There appear to be no pertinent Connecticut court decisions or ethics opinions on this subject.

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

There appear to be no pertinent Connecticut court decisions or ethics opinions on this subject.

1.1:530      Assisting Client to Break a Contract

There appear to be no pertinent Connecticut court decisions or ethics opinions on this subject.

1.1:600   Vicarious Liability [see 5.1:500]

Primary Connecticut References: CT Rule 1.1
Background References: ABA Model Rule 1.1, Other Jurisdictions
Commentary:
Connecticut Commentary:

There appear to be no pertinent Connecticut court decisions or ethics opinions on this subject.