Professional Misconduct ≠ Legal Malpractice, But It May; Jacob v. Vigh

We are often approached by potential clients seeking to file a legal malpractice claim against a former attorney. And they often complain of things that may be ethical violations. We often tell them that professional misconduct does not always support a legal malpractice claim—but it might.

Jacob hired Vigh to represent him in a post-conviction proceeding and paid a $10,000 retainer. After years of filing motions to continue a final hearing on Jacob’s petition for post-conviction relief, Vigh moved to withdraw as counsel for Jacob. To date, no hearing on Jacob’s petition has been set, and Vigh has not returned any of the retainer to Jacob.

Jacob filed a pro se complaint against Vigh alleging fraud, breach of contract, and violations of the rules of professional conduct. Vigh moved to dismiss, arguing that Jacob’s complaint was impinging on the Supreme Court’s exclusive jurisdiction to enforce the Rules of Professional Conduct. The trial court granted that motion and Jacob appealed.

On appeal, the Court rejected the argument that a complaint should be dismissed merely because it referenced the Rules of Professional Conduct.

Here, in essence, Jacob’s complaint alleges that Vigh committed legal malpractice when Vigh kept the $10,000 retainer without performing any work…. If Jacob’s claims are proven, Vigh may be subject to sanctions under the Indiana Rules for Admission to the Bar and Discipline of Attorneys. That is not for us to decide. But we can say that our Supreme Court’s exclusive jurisdiction over such matters does not preempt or preclude a tort or contract claim arising from the same facts.

Jacob’s complaint set forth the elements of a legal malpractice claim, so the trial court erred when dismissing it.

Lessons:
1. The Indiana Rules of Professional Conduct state: “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.”
2. The violation if a rule of professional conduct, however, provides no protection against a legal malpractice claim.

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