KO. 87-128 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1987 

GERALD CARLSON and PRECISION 

AUTOMOTIVE, INC., a Montana 

corporation, 

Plaintiff and Appellant, 

-VSDOUGLAS K. MORTON, 

Defendant and Respondent. 

APPEAL FROM: District Court of the Eleventh Judicial District, 

In and for the County of Flathead, 

The Honorable Michael Keedy, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Richard DeJana argued, Kalispell, Montana 

For Respondent: 

Warden, ~hfistiansen, Johnson & Berg; Stephen Berg 

argued, Kalispell, Montana 

Filed: 

Submitted: October 6, 1987 

Decided: November 24, 1987 

I / 

&L8-L- 8, :&& 6Gd$ 

Clerk 
Mr. Justice John Conway Harrison delivered the Opinion of the 

Court. 

Plaintiff appeals an order of the District Court of the 

Eleventh Judicial District granting a directed verdict to 

defendant Morton. The plaintiff had sued Morton alleging 

that he had been negligent in handling certain legal matters 

for the plaintiff and had misrepresented his interests. The 

attorney for the plaintiff notified the court and the 

defendant when the matter came on for trial January 19, 1987 

that he would not. be calling an expert witness, as he had 

stated at pretrial conference. Plaintiff's attorney then 

made his opening statement, at the end of which, the 

defendant made a motion to dismiss the case for failure to 

provide expert testimony. Both sides briefed the question to 

the court. The court then heard arguments and entered an 

order under Rule 50, M.R.Civ.P., dismissing the case. 

We affirm. 

Morton was a loan officer and vice president of First 

Security Bank in Kalispell, Montana when he met Carlson in 

1977. Morton, a law school graduate, has been admitted to 

the practice of law in Montana and did practice for several 

years before he returned to banking in the mid-1970s. He 

continued to moonlight practicing law after he joined the 

bank. He and Carlson built a friendship around their mutual 

interest in old cars. Morton had the opportunity to do some 

legal work concerning Carlson's property settlement and 

custody agreement when Carlson's marriage dissolved. 

In 1981, Carlson purchased a business on which the 

Small Business Administration and the Bank of Columbia Falls 

were foreclosing. To aid in this purchase, Carlson asked 

Morton to incorporate the newly acquired business in the name 

of Precision Automotive, Inc. On December 18, 1981, the 
Secretary of State approved the proposed articles of 

incorporation and issued a certificate of incorporation. 

Carlson contends, however, that Morton failed to effectively 

complete the corporation since he failed to file bylaws or 

organizational minutes for some fifteen months. 

Carlson, though, operated the business as if it had 

been incorporated. He hired a man by the name of Jack 

Manning to work at Precision Automotive. Manning brought 

with him a pinpress that he said Carlson could use in his 

business. The pinpress served as security for some car 

repairs that Manning had not been able to pay for. On July 

1, 1982, Manning approached Morton at First Security Rank 

about the possibility of obtaining a $2,000 loan. He was 

told that since he had not worked for a full year in the 

Flathead Valley, the bank would require a guaranty. Manning 

suggested that his employer Carlson could serve as a 

guarantor. It is not clear what happened at this point. But 

taking into consideration the allegations most favorable to 

the appellant, it appears that Carlson told Morton he was 

reluctant to sign a guaranty. Nevertheless, the loan was 

made, Carlson was named as guarantor but had not signed the 

note, Manning got his $2,000 after pledging the pinpress as 

security, and Manning then left the area. On July 25, 1982, 

after it was apparent that Manning had no intention of 

repaying the loan, Morton presented the written guaranty to 

Carlson for his signature as guarantor. There was some 

discussion as to whether Carlson should sign the guaranty. 

Morton encouraged him to sign and so Carlson did sign the 

guaranty. The guaranty note at some point was backdated to 

the date of the loan. Carlson had told Morton he feared that 

others might have an interest in the pinpress. Carlson told 

Morton he was thinking of removing the serial number to 

retard any prior lien holder's right to the pinpress. 
Carlson alleges that Morton encouraged him to do that. 

Carlson subsequently removed the serial number. 

Morton completed the incorporation of Precision 

Automotive in March 1983 when he finished the bylaws and 

organizational minutes. In April 1983, the bank sued Carlson 

for possession of the pinpress. In an affidavit in support 

of the bank's claim, Morton indicated that the serial number 

had been removed. The District Court upheld the bank's claim 

to the pinpress. Carlson's business at Precision Automotive 

was seriously affected by the loss of the pinpress and within 

several months, Precision Automotive was forced out of 

business. Carlson and Precision Automotive filed a cause of 

action on May 20, 1983 naming Morton as defendant. The 

complaint, as amended on October 26, 1983, alleged that 

Morton had violated Disciplinary Rules, 1-102(A)(4), 

5-101(A), 5-104, 5-105, 5-107, 6-101 and 7-102 of the Code of 

Professional Responsibility. Carlson claims that the 

violation of these Disciplinary Rules was implied malice and 

as such constituted negligence on the part of the attorney. 

The District Court ruled that such charges require 

expert testimony to delineate the degree of care expected of 

an attorney handling a client's affairs. The court ruled 

that since reasonable minds could properly differ over the 

plaintiff's contentions, it would be unfair to lay jurors to 

force them to figure out the responsibility of an attorney in 

this matter without the aid of an expert witness. On appeal, 

Carlson urges that the Code of Professional Responsibility's 

Disciplinary Rules state a minimum standard of care, that, 

when breached, establishes malpractice. He argues that these 

Disciplinary Rules state the attorney's duty so succinctly 

that an expert witness is not required to demonstrate that 

Morton's actions were improper and negligent. The question 
of whether expert testimony is required in a legal 

malpractice case is one of first impression in Montana. 

The Canons of Professional Ethics and their 

accompanying Disciplinary Rules were adopted by this Court in 

1973 (see 160 Mont. xxiii) to assure the utmost integrity in 

the legal profession and the impartial administration of 

justice. State ex rel. Coburn v. Bennett (1982), 202 Mont. 

20, 32, 655 P.2d 502, 508. In 1985, this Court replaced the 

Canons with the Rules of Professional Conduct, Montana 

Supreme Court Order No. 84-303, dated June 6, 1985, but the 

intent of governing the conduct of attorneys remained. 

Carlson claims Morton engaged in fraudulent or dishonest 

misrepresentations in violation of DR 1-102(A)(4); used a 

confidence of the client to his disadvantage as prohibited by 

DR 4-101(B); undertook employment when his interests impaired 

his professional judgment as prohibited in DR 5-101; did not 

refuse employment even though it might possibly be adverse to 

his interest as a bank officer as proscribed by DR 5-104 and 

DR 5-105, and neglected a matter entrusted to him, in 

violation of DR 6-101. These disciplinary rules have 

counterparts in the Model Rules of Professional Conduct 

adopted in 1985, which while differing in language and 

construction, establish the bounds of ethical conduct by 

lawyers and are employed for disciplinary purposes. 

At issue is whether the applicable ethical rules create 

a duty in and of themselves so that a jury may determine a 

breach of a legal duty merely by determining whether the 

attorney abided by the rules. If the answer to that inquiry 

is negative, then an expert witness must testify so as to 

acquaint the jurors with the attorney's duty of care. It is 

fundamental that any attorney is required to use reasonable 

care or skill in handling his client's affairs. Clinton v. 

Miller (1951), 124 Mont. 463, 483-84, 226 P.2d 487, 498. The 
failure to employ such skill may result in the attorney's 

liability for damages to his client. Clinton, 226 P. 2d at 

498. The Canons of Professional Ethics and the later Model 

Rules of Professional Conduct have been used exclusively in 

disciplinary proceedings in Montana. J. Faure and R.K. 

Strong, The Model Rules of Professional Conduct: No Standard 

for Malpractice, 47 Mont.L.Rev. 363, 369 (1986). When 

plaintiffs have based claims for negligent practices of law 

on attorneys1 duties to abide by ethical codes, courts have 

dismissed such cases. In Bickel ~r. Mackie (N.D. Iowa 19781, 

447 F.Supp. 1376, affld (8th Cir. 1983), 590 F.2d 341, the 

trial court ruled that violation of the Code of Professional 

Ethics is not necessarily a tortious act and does not create 

a private cause of action. Bickel, 447 F.Supp. at 1383. 

Similarly, in Bob Godfrey Pontiac, Inc. v. Roloff (Or. 1981), 

630 P.2d 840, a used car dealer sued two attorneys who had 

failed in a lawsuit against the car dealer. The car dealer 

alleged that the two attorneys had misled the court with 

false statements of fact, which he claimed was in direct 

violation of the Code of Professional Conduct. However, the 

court ruled that a violation of the Code of Professional 

Conduct does not give rise to a private cause of action. 

Roloff, 630 P.2d at 849. 

Such reasoning is supported by the Preamble to the 

Model Rules of Professional Conduct as promulgated by the 

American Bar Association. That preamble states in part: 

Violation of a Rule should not give rise 

to a cause of action nor should it create 

any presumption that a legal duty has 

been breached. The Rules are designed to 

provide guidance to lawyers and to 

provide a structure for regulating 

conduct through disciplinary agencies. 

They are not designed to be a basis for 

civil liability. Furthermore, the 

purpose of the Rules can be subverted 
when they are invoked by opposing parties 

as procedural weapons. The fact that a 

Rule is a just basis for a lawyer's 

self-assessment, or for sanctioning a 

lawyer under the administration of a 

disciplinary authority, does not imply 

that an antagonist in a collateral 

proceeding or transaction has standing to 

seek an enforcement of the Rule. 

Accordingly, nothing in the Rules should 

be deemed to augment any substantive 

legal duty of lawyers or the 

extra-disciplinary consequences of 

violating such a duty. 

It is true that this Court's order of June 6, 1985, which 

adopted the Model Rules of Professional Conduct, adopted 

expressly only the Rules; it did not mention the Preamble. 

It also is true that the matters complained of here occurred 

before we adopted the Model Rules of Professional Conduct. 

Nevertheless, this portion of the Preamble aptly states the 

thinking and rationale of those who developed a complicated 

scheme by which to judge the conduct of attorneys in various 

and disparate matters, often at times where one ethical rule 

seems to contradict another. 

In any professional negligence action, the plaintiff 

must prove that the professional owed him a duty, that the 

professional failed to live up to that duty, thus causing 

damages to the plaintiff. Negligence cannot be inferred from 

the simple fact that a loss occurred. Montana Deaconess 

Hospital v. Gratton (19761, 169 Mont. 185, 191, 545 P.2d 6701 

673. Scott v. Robson (1979), 182 Mont. 528, 537-38, 597 P.2d 

1150, 1155, citing Thompson v. Llewellyn (1959), 136 Mont. 

167, 169, 346 P.2d 561, 562. The field of legal malpractice 

is relatively unexplored, however, it is undisputed in 

Montana law that one charging medical malpractice must be 

able to support his claim that the physician departed from 

the prevalent standard of medical care. Montana Deaconess 
Hospital, 545 P.2d at 672-73; Collins v. Itoh (1972), 160 

Mont. 461, 469, 503 P.2d 36, 41. Without either expert 

testimony identifying the doctor's care as negligent or the 

defendant-doctor's own testimony clearly establishing his own 

conduct as negligent, the defendant-doctor is entitled to 

summary judgment. Where plaintiffs failed to present expert 

testimony and the defendant-doctor did not identify his care 

as negligent, the District Court rightfully granted summary 

judgment since a jury of laypersons cannot determine for 

itself what caused an infection. Montana Deaconess Hospital, 

545 P.2d at 673. The requirement that an expert witness is 

needed to establish the standard of care has been extended to 

dentists and orthodontists, Llera v. Wisner (1976), 171 Mont. 

254, 262, 557 P.2d 805, 810; to manufacturers and 

distributors of pharmaceuticals, Hill v. Squibb and Sons 

(1979), 181 Mont. 199, 207, 592 P.2d 1383, 1388, to 

abstractors of title, Doble v. Lincoln County Title Co. 

(Mont. 1985), 692 P.2d 1267, 1270, 42 St.Rep. 128, 131. 

Professors Prosser and Keeton may have best summarized 

the rationale behind this rule: 

Professional persons in general, and 

those who undertake any work calling for 

special skill, are required not only to 

exercise reasonable care in what they do, 

but also to possess a standard minimum of 

special knowledge and ability. Most of 

the decided cases have dealt with 

surgeons and other doctors, but the same 

is undoubtedly true of dentists, 

pharmacists, psychiatrists, 

veterinarians, lawyers, architects and 

engineers, accountants, abstractors of 

title, and many other professions and 

skilled trades. 

Since juries composed of laymen are 

normally incompetent to pass judgment on 
[such] questions . . . it has been held 

in the great majority of malpractice 

cases that there can be no finding of 

negligence in the absence of expert 

testimony to support it . . . Where the 

matter is regarded as within the common 

knowledge of laymen, as where the surgeon 

saws off the wrong leg . . . it is often 

held that the jury may infer negligence 

without the aid of any expert. 

Prosser and Keeton on The Law of Torts, 5 32, 5th Edition, 

(1984). 

Carlson's argument throughout has been that expert 

testimony was not required because lay jurors could examine 

the conduct of Morton and determine that it violated the 

Canons of Professional Ethics. And if the jurors had any 

doubts, they would be referred to the various Disciplinary 

Rules, which summarize the lawyer's obligations. Such 

contentions are lacking. First, we note that Carlson 

initially intended to introduce expert testimony from a 

Missoula attorney. Second, Rule 702 of the Montana Rules of 

Evidence specifically authorizes the use of expert witnesses 

" [i] f scientific, technical, or other specialized knowledge 

will assist the trier of fact to understand the evidence 

11 ... Third, the evidence concerning the alleged 

improprieties involved in this case, while seemingly 

straightforward, might very easily confuse and befuddle lay 

jurors unacquainted with general notions of civil procedure, 

incorporation, and professional legal responsibility. To 

expect a jury to sit through hours of examination and 

cross-examination, without the guidance of an attorney's 

expert testimony and then arrive at a verdict consistent with 

the evidence is asking much. This is not because the average 

juror is not capable of understanding such matters but only 

because he or she has never had the occasion or desire to 
study such matters. The attorney's standard of care depends 

upon the skill and care ordinarily exercised by attorneys, a 

criteria that rarely falls within the common knowledge of 

laymen. While proof of the violation of some disciplinary 

rules may by itself establish negligence, such is not the 

case with the rules cited by Carlson. Carlson must prove not 

that various disciplinary rules were breached in his opinion; 

rather he must demonstrate that Morton failed in his legal 

duty. Proof of such a breach requires expert testimony. ABC 

Trans Nat'l Transp., Inc. v. Aeronautic Forwarders, Inc. 

(Ill. 1980), 413 N.E.2d 1299, 1310-11; Lenius v. King (S.D. 

1980), 294 N.W.2d 912, 914; Hughes v. Malone (Ga.Ct.App. 

1978), 247 S.E.2d 107, 111; Faure and Strong, The Model Rules 

- of Professional Conduct: - No -- Standard - for Malpractice, 47 

Mont.L.Rev. at 376 (1986). 

It is true that there are instances in which legal 

malpractice actions have been submitted for fact 

determination without the use of expert testimony. The 

theory in such cases is that the attorney's misconduct is so 

obvious that no reasonable juror could not comprehend the 

lawyer's breach of duty. These include the failure of a 

criminal defendant's attorney to appear in court on his 

client's behalf, Bowman v. Doherty (Kan. 1984), 686 P.2d 112, 

120; the lawyer's failure to file suit within the appropriate 

statute of limitations; George v. Caton (N.M.Ct.App. 1979) , 

600 P.2d 822, 829; Collins v. Greenstein (Hawaii 1979), 595 

P.2d 275, 283; failure of the attorney to retain a first 

mortgage for seller on property being conveyed despite 

seller's clear demand for a first mortgage; Olfe v. Gordon 

(Wis. 1980), 286 N.W.2d 573, 576; attorney's interjection of 

client's claims as a permissive counterclaim in state court 

despite client's clear demand to file it as a separate claim 

in federal court is a question of material fact that may or 
may not require expert testimony. Nemec v. Deering (S.D. 

1984), 350 N.W.2d 53, 56; the attorney's failure to insulate 

one client from the debts of another client, Hill v. Okay 

Const. (Minn. 1977), 252 N.W.2d 107, 116; and the attorney's 

failure to notify a client he was resigning from the case 

thus resulting in a default judgment, Cental Cab. Co. v. 

Clarke (Md. 1970) , 270 A. 2d 662, 667. 

We are aware of the above cases but will apply a rule 

similar to that for medical malpractice, where expert 

testimony is required, and so hold that this suit fails for 

the lack of espert testimony. 

The District Court's order granting a directed verdict 

to defendant Morton is affirmed. 

We concur: