As all know from law school, the law consists of the common law and statutory law. Legal malpractice has an ancient and noble heritage. While we might debate the Founding Fathers’ 18th century meaning and original intent in federal constitutional cases, in discussing the “common law” we are talking ancient law and custom arising from Greek and Roman law. Obviously, the evolution from Greek to Roman law to English law took place eons before the United States existed. Nevertheless, what was old became common law.

Legal malpractice relies exclusively on the common law when it scrutinizes the manner in which attorneys represent their clients. There are no particular statutes in this area, as there are in commercial litigation under the Uniform Commercial Code or in matrimonial law. Attorneys are expected not only to represent their clients competently; they are expected to represent them within the Rules of Professional Conduct. However, a violation of the Rules of Professional Conduct is simply some evidence of negligence. Such a violation may not generate a cause of action. William Kaufman Org. v. Graham & James, 269 AD2d 171 (1st Dept. 2000) These rules are found at 22 NYCRR 1200. The form and practice of today’s legal malpractice litigation is strongly affected by its history, its antecedents and the lack of statutory underpinning.

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