Commercial Litigation and Arbitration

Relationship between Attorney Ethics Rules and Malpractice Liability — Non-Client Has No Cause of Action under Rule 4.3, Which Creates No Duty toward Non-Clients

Rosenbaum v. White, 2012 U.S. App. LEXIS 17184 (7th Cir. Aug. 16, 2012):

[T]he plaintiffs also argue that, even if no attorney-client relationship existed, the defendants still owed them a duty under the Indiana Rules of Professional Conduct. The plaintiffs cite a number of rules that the defendants allegedly violated, most especially Rule 4.3, which lays out a lawyer's responsibility when dealing with unrepresented persons: "When the lawyer knows or reasonably should know that the unrepresented person misunderstands the lawyer's role in the matter, the lawyer shall make reasonable efforts to correct the misunderstanding. The lawyer shall not give legal advice to an unrepresented person, other than the advice to secure counsel." Ind. Rules of Prof'l Conduct R. 4.3.

We need not delve into these arguments, however, because it is quite clear that the Indiana Rules do not create a legal duty. As the Indiana Supreme Court put it, "the Preamble [of the Rules] 'makes it clear that the Rules of Professional Conduct do not purport to create or describe any civil liability.'" Liggett v. Young, 877 N.E.2d 178, 183 (Ind. 2007) (quoting Sanders v. Townsend, 582 N.E.2d 355, 359 (Ind. 1991)). The relevant language of the Preamble is as follows:

Violation of a Rule should not itself give rise to a cause of action against a lawyer, nor should it create any presumption in such a case that a legal duty has been breached. In addition, violation of a Rule does not necessarily warrant any other nondisciplinary remedy, such as disqualification of a lawyer in pending litigation. 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, but these Rules may be used as non-conclusive evidence that a lawyer has breached a duty owed to a client. Furthermore, the purpose of the Rules can be subverted when they are invoked by opposing parties as procedural weapons. The fact that a rule is a just basis for a lawyer's self-assessment, or for sanctioning a lawyer under the administration of a disciplinary authority, does not imply that an antagonist in a collateral proceeding or transaction has standing to seek enforcement of the Rule.

Ind. Rules of Prof'l Conduct Preamble. Although the Rules may form a standard of conduct by which a lawyer's duty can be measured, such a duty must arise from common law and may not be predicated on the Rules themselves. See id.; Liggett, 877 N.E.2d at 183. We thus reject the plaintiffs' argument that the Rules created a legal duty on the part of the defendants.

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