Sometimes our files, in addition to allegations of negligence, contain an allegation of misconduct or unethical behaviour against the lawyer.
Loosely defined, misconduct is an allegation of intentional wrongdoing or improper behaviour, an allegation that a lawyer is not conforming to the proper moral standard. This is fundamentally different from an allegation that a lawyer made an error or omission, loosely defined as a mistake. And mistakes happen because no one, no profession, works to a standard of perfection.
Most often when we see an allegation of misconduct, the claimant alleges that their lawyer acted unethically and this was the direct cause of the alleged loss they sustained. Other times, the allegation of misconduct appears when a litigant applies to remove an opposite party’s lawyer or sues that lawyer because they are acting for that opposite party. Put another way, perceived misconduct of an opposite party litigant is seen to be misconduct of that person’s lawyer.
More often than not, when we see allegations of misconduct, they are made by self-represented litigants, the result of confusion as to the difference between misconduct and an error. But we also see lawyers making misconduct allegations against other lawyers in civil actions.
Sometimes misconduct is alleged for a tactical reason; other times it comes from personal grievance. Regardless of the reason, rarely is the allegation proven. And as with most things in life, making the same claim repeatedly rarely changes the outcome.
If a lawyer makes an allegation of misconduct or unethical behaviour against another lawyer in a civil claim, they themself could be offside the NSBS Code of Professional Conduct. The commentary to rule 2.1-1 sets out the effect an allegation of unethical conduct can have on the lawyer against whom it is made. From the commentary, a lawyer’s reputation can be destroyed. And, a lawyer’s obligations to their client does not negate the lawyer’s responsibility to other lawyers. All of which means that any allegation of unethical behaviour or misconduct made in a civil proceeding should be fully investigated. And, perhaps more importantly, the proper place for such a complaint is to the Society as the regulator, not a civil action.
Admittedly, if the person making the claim is self-represented, unless that person is also a lawyer, the Code of Professional Conduct is of little use. But that does not mean a self-represented party has licence to make such allegations with impunity.