Lawyers and judges have wrestled with the intersection of the Rules of Professional Conduct and civil liability for some time. And two recent decisions from Massachusetts and Georgia's supreme courts, issued one day apart, have made this already tricky subject even more complex.
Traditionally, both by common law and rule commentary, we have been schooled that the rules of conduct are not designed to create civil liability or provide substantive rights. In Connecticut, a line of cases which I call the "Peterkin doctrine" have made this point. In Peterkin, a lawyer litigant settled a fire loss case without paying a public adjuster. The trial judge found that his conduct violated the rule of conduct requiring a lawyer coming into possession of funds in which third parties have an interest to hold them until the interests and claims can be sorted out. Finding that Peterkin had not, the trial court found a breach of fiduciary duty. The Supreme Court found otherwise, pointing out that rules of conduct serve one purpose and civil liability rules another. Never the twain shall meet.
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