Ethics Violations Can be Relevant to Standard of Care

Ethics violations can be relevant to the standard of care in malpractice cases, the U.S. District Court for the District of New Hampshire has affirmed in Desimini v. Durkin et al.

Demisimi, the plaintiff, filed an action for legal malpractice and negligence against her former attorney, John F. Durkin, Jr., and his firm, after Durken  during her represented her in a divorce case.

The defense filed a motion to exclude the testimony of the plaintiff's expert witness, Jennifer Brooke Sargent, because of her lack of experience in the pertinent legal fields (family and divorce law) and because her opinions about violations of the New Hampshire Rules of Professional Conduct were irrelevant.

Sargent was an experienced attorney, former prosecutor and professor who, the court noted, had also taught judges at the National Judicial College in Reno, Nevada on subjects including evidence, criminal procedure, and judicial immunity.

The court found that a malpractice expert witness opining on the standard of care in a legal malpractice case, or in a medical malpractice case, is not required to practice in the same speciality. "'[L]ack of specialization in a particular medical field does not automatically disqualify a doctor from testifying as an expert in that field'", the court wrote, quoting the New Hampshire Supreme Court.

The court noted that "… Sargent's deposition testimony suggests a lack of familiarity with certain aspects of a divorce case" but found that such a lack of experience should go to the weight of her opinions, not their admissibility.

While some past cases, noted by the court, found that ethics rules do not provide the standard of care for a malpractice case, experts can still base their opinions on a failure to conform to those rules. The court found that the view of the majority of courts was "… that an expert witness's opinions about whether a defendant's conduct violated ethical rules may be relevant to the standard of care in legal malpractice cases."

Although this case is specific to legal malpractice, the court's references and reasoning suggest that ethics violations could also be used to base opinions on standards of care in medical malpractice cases, or in professional malpractice cases generally.