Vol. 80, No. 10, October 2007
As the accompanying article discusses, in certain circumstances, defenses based on client misconduct may be available to lawyers in malpractice actions. The same is not true with respect to disciplinary actions. Claims such as contributory negligence, in pari delicto, and failure to prove actual innocence will not serve as defenses to disciplinary actions brought by the Office of Lawyer Regulation (OLR).
This difference is because of the differing purposes of and parties involved in malpractice actions and disciplinary proceedings. A malpractice action is a private action brought for the purpose of making a harmed party whole. This purpose leads to the requirement in malpractice actions that clients establish that they were damaged by the lawyer's alleged failure to perform to the necessary standard of care. The behavior and actions of a client may be highly relevant to issues of whether or not the lawyer is responsible for any harm the client suffered and what, if any, is the appropriate amount of damages.
Timothy J. Pierce, U.W. 1992, is the State Bar ethics counsel and liaison to the State Bar Professional Ethics Committee. Contact him through the Ethics Hotline at (608) 250-6168 or (800) 444-9404, ext. 6168, Monday - Friday, 9 a.m. - 4 p.m.
Disciplinary actions, on the other hand, are actions brought by the government for the purpose of protecting the public, not to make harmed persons whole.1 Persons filing grievances (often current or former clients) are not parties to disciplinary actions, and the OLR does not represent grievants. For this reason, the behavior of clients (or other persons filing a grievance) is not relevant to the issue at hand, namely, whether the respondent lawyer violated one or more Rules of Professional Conduct.2 Further, any harm caused by a lawyer's behavior normally is relevant only to the issue of sanction (for example, harm to a client is considered an aggravating factor as to sanction).
1See, e.g., Disciplinary Proceedings Against Harman, 137 Wis. 2d 148, 403 N.W.2d 459 (1987).
2To the extent that a grievant's behavior affects his or her credibility as a witness, such behavior may become relevant.