The Unlawful Conduct Defense in Legal Malpractice Law
UMKC Law Review, Vol. 77, No. 43, 2008
42 Pages Posted: 26 Sep 2012 Last revised: 5 Oct 2012
Date Written: November 1, 2008
A variety of developments threaten to close the courthouse doors to plaintiffs in an expanding range of legal malpractice cases. On the one hand, tort law in general has increasingly recognized an unlawful conduct defense which denies judicial relief in a wide range of suits to persons who have engaged in unlawful conduct. Those principles are potentially applicable to legal malpractice actions, and have already played a role in medical malpractice litigation. On the other hand, courts have recognized during the past two decades a variety of other obstacles to legal malpractice claims. Many states now hold that an action relating to criminal defense work is barred unless the plaintiff can prove that he or she was exonerated after conviction or can establish innocence of the charged offense. Other cases have relied on nebulous concepts of 'in pari delicto,' 'unclean hands,' and 'proximate causation' to deny relief in actions against attorneys. These various developments reflect the increased, and sometimes undisciplined, recognition of unlawful conduct as defense in the field of legal malpractice. This article is the first work to critically examine the unlawful conduct defense, in all of its permutations, as it applies to legal malpractice. The article considers recent statutory and common law developments. The work then explores those developments in the context of the current widespread endorsement of comparative negligence and comparative fault, and charts a course for future development (and limitation) of the unlawful conduct defense in malpractice actions against attorneys.
Keywords: legal malpractice, unlawful conduct, in Pari Delicto, unclean hands, lawyers
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