Civil and Criminal Liability


“Criminal liability”
An act that may be prosecuted by the state in accordance with the state’s criminal code.

“Civil liability” 
Liability not based on a state criminal code; may include private suits between persons or organization, and suits against the government. Note that the same conduct may trigger both civil and criminal liability. 

In this sub chapter we will look at some other consequences of ethical misconduct, namely, exposure to civil and criminal liability. 

The state, and only the state, may prosecute conduct that violates the state criminal code. Attorneys are subject to criminal liability if the attorney’s ethical breach constitutes a violation of a state or federal criminal statute. Assisting a client in falsifying documents, destroying evidence, or assisting a client in committing a crime generally will expose an individual to criminal liability.

EXAMPLE (1): "Attorney Andersen, in order not to lose his client Leron's business, complied with Leron's request to shred some files that Leron said were unnecessary. Anderson knew such shredding could be in violation of ethical and criminal laws regarding the spoliation or destruction of evidence. Nonetheless, he figured the files weren't that important in the grand scheme of things and he wanted to make Leron happy.

Obviously Anderson can be found in violation of ethical rules regarding the handling of evidence. He may also have exposed himself to criminal liability for destroying evidence. 

As the next example also demonstrates, the same conduct may trigger both civil and criminal liability. 

EXAMPLE (2): Attorney Atlantiss falsifies documents to mislead the authorities and destroy evidence in a case. May the state bring a criminal prosecution against Atlantiss? Is Atlantiss’s client entitled to sue in civil court if he was harmed by Atlantiss' action?

Both a criminal prosecution and a civil case may be brought if Atlantiss’s conduct was in violation of the criminal laws, and if Atlantiss’s breach of ethical duty caused harm to his client. 

An attorney who commits an ethics violation during the course of representation might detrimentally affect the outcome of his client’s case. As such, legal malpractice is a common civil claim following an ethics violation. 

A plaintiff bringing suit for legal malpractice due to an ethical violation must demonstrate that the attorney

  • had a duty to the client to conduct the representation in an ethical fashion;
  • that the attorney breached that duty; 
  • that the breach of duty caused the client damage and; 
  • that this damage constituted a specific harm to the client (such as losing a case). 

It is actually rather difficult for a plaintiff to prevail in a malpractice suit, because of the causation requirement – the plaintiff must not only demonstrate that the ethical violation occurred, but the plaintiff must demonstrate that he would have prevailed in his case “but for” the violation. The plaintiff essentially has to prove two cases - that the attorney committed malpractice, and the merits of the original case. 

EXAMPLE: Cleo, a client was perfectly satisfied with his representation by attorney Atul. A few weeks after Cleo won his case in court, Cleo finds out that Atul’s young associate committed an ethical misstep during the discovery process. The ethical misstep had no effect on the outcome of Cleo’s case and thus brought no damage to Cleo personally, although Cleo demanded ethical perfection in the conduct of his case. Does Cleo have a malpractice case against Atul? 

Probably not. One of the basic requirements for prevailing in a malpractice suit, or in any suit in tort, is that the plaintiff must have suffered harm. Otherwise, a plaintiff’s suit would be frivolous. Here Cleo won his case and was not detrimentally affected by the ethical violation. Therefore Cleo will probably not prevail in a malpractice suit.