Attorney Malpractice vs. Misconduct

Dreaded words! “I’ll report you to the Bar!” or “I’ll sue you!”

Attorney Malpractice

“Not every mistake made by an attorney is considered legal malpractice. Instead, legal malpractice happens when an attorney handles a case inappropriately due to negligence or with intent to harm and causes damages to a client. To prevail in a legal malpractice lawsuit in most jurisdictions, you will need to prove an attorney-client relationship between you and the lawyer, a breach of the duty to provide skillful and competent representation (negligence), causation, and a financial/tangible loss. “
https://www.justia.com/injury/legal-malpractice/

In Mississippi, in most instances, you have to show but for the malpractice you would have won your case, known colloquially as trying a case within a case.

Malpractice may give rise to a lawsuit against your lawyer. This would NOT be handled by the Mississippi Bar and would NOT be handled through a Bar Complaint. Instead, you would hire another lawyer, hopefully experienced in these types of matters, and would require you proving the above elements for attorney malpractice.

The usual litigation process would apply and you can count on a defense. A three year statute of limitations applies to attorney malpractice.

Additionally, malpractice is different than attorney discipline or a Bar Complaint.

Attorney Misconduct

Misconduct includes a violation of the Mississippi Rules of Professional Conduct. This is evaluated by the Mississippi Bar and eventually the Mississippi Supreme Court, if a serious violation is deemed to have occurred.

The MS Bar website has a thorough Q&A section on Attorney Misconduct/Bar Discipline. Selected excerpts included below;

What is the statute of limitations for conduct that is the subject of a Bar complaint?

Generally, the statute of limitations is three years after discovery of the facts that give rise to the Bar complaint.  There are some exceptions.  There is no statute of limitations for conduct that violates Rules 1.15, 8.1 and 8.4 of the Mississippi Rules of Professional Conduct.  See Rule 4(d) of the Rules of Discipline for the Mississippi State Bar.

Is the Bar complaint process confidential?

All Bar personnel and members of the Committee on Professional Responsibility are charged with maintaining the confidentiality of the Bar complaint process.  This means Bar personnel can neither confirm nor deny the existence of any Bar complaint.  However, this prohibition does not apply to the attorney, the complainant or any other witness.  The confidential nature of the Bar complaint process ends if the attorney makes any public statement, public discipline is imposed or a Formal Complaint is filed.  See Rule 15 of the Rules of Discipline for the Mississippi Bar.

Who do I contact to complain about an attorney?

If you are concerned that your attorney or an attorney you have come in contact with may have committed an ethics violation you may contact the Consumer Assistance Program (CAP) to inquire about the possibility of filing a Bar Complaint.  CAP may be contacted by telephone at (601) 948-2344; by email at gwaddle@msbar.org; or by mail:

Consumer Assistance Program
Post Office Box 2168
Jackson, Mississippi 39225-2168

Who considers my Bar complaint?

The Committee on Professional Responsibility acts as a grand jury of sorts.  It considers each Bar complaint to determine whether there is proof of an ethics violation.  If the Committee determines there is sufficient proof of a violation, they may impose discipline in the form of an Informal Admonition, Private Reprimand or Public Reprimand.  If the Committee determines that the ethics violation is so serious that it deserves more than a Public Reprimand, they may direct General Counsel to file a Formal Complaint with the Supreme Court of Mississippi. 

Does a complainant have to be a client or former client to file a Bar complaint?

No. The Rules of Discipline for the Mississippi State Bar provides that acts or omissions by an attorney that violate the Rules of Professional Conduct are grounds for discipline regardless of whether those acts or omissions occurred in the context of an attorney-client relationship. 

What is a Formal Complaint?

A Formal Complaint is filed at the direction of the Committee on Professional Responsibility or as a result of the attorney appealing the discipline imposed by the Committee.   Formal Complaints are public record and are filed with the Clerk of the Supreme Court of Mississippi.  Once a Formal Complaint is filed, the Supreme Court designates a Complaint Tribunal to hear and determine the matter.  A Complaint Tribunal can dismiss the Formal Complaint or impose discipline in the form of a Private Reprimand, Public Reprimand, Suspension of Disbarment.  The attorney or the Bar may appeal the decision of a Complaint Tribunal within 30 days to the Supreme Court of Mississippi. See Rules 8 and 9 of the Rules of Discipline for the Mississippi State Bar.

How does a suspended or disbarred attorney seek reinstatement to the practice of law?

Attorneys suspended for less than 6 months are reinstated upon the expiration of the time imposed and the satisfaction of any conditions of the suspension order.  Attorneys suspended for 6 months or more or disbarred must petition the Supreme Court of Mississippi for reinstatement and follow the dictates of Rule 12 of the Rules of Discipline for the Mississippi State Bar.  Attorneys disbarred due to a felony conviction after April 4, 2002, are not eligible for reinstatement to the practice of law. 

The hyperlinks above will take you to the source page and includes additional information.

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