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Mainor v. Nault11/22/2004
regarding the professional rules of conduct are issues of first impression. This court "will only reverse a district court's decision to admit expert testimony on a showing of a clear abuse of discretion." We have previously recognized that where the breach of the standard of care is not so obvious that negligence can be determined as a matter of law, "expert evidence is generally required in a legal malpractice case to establish the attorney's breach of care." We review an allegedly erroneous jury instruction for prejudicial error in light of the evidence.
At least one jurisdiction has held that a violation of a professional rule creates a rebuttable presumption of negligence. Other jurisdictions have held that professional rules are inadmissible in a legal malpractice claim. The majority of jurisdictions, however, hold that the violation of professional rules of responsibility does not create a private right of action, but is relevant to the standard of care.
We choose to adopt the majority rule, as it is the better reasoned rule. Because the Nevada Supreme Court Rules reflect a professional consensus of the standards of care below which an attorney's conduct should not fall, it would be illogical to exclude evidence of the professional rules in establishing the standard of care. The district court appropriately struck the causes of action based on violations of ethical rules because the rules were not meant to create a cause of action for civil damages. However, the district court did not abuse its discretion by allowing the Naults' standard of care expert witnesses to base their opinions upon the Supreme Court Rules because the rules served merely as evidence of the standard of care, not as a basis for per se negligence.
Furthermore, we conclude that the district court did not err by instructing the jury that " n attorney who represents conflicting interests, without the informed consent of all affected clients, violates a rule of professional conduct applicable to lawyers who practice in Nevada." The instruction went on to state that " violation of a rule of professional conduct does not establish an act of legal malpractice. It is merely evidence that you may consider in your determination of whether the defendants committed legal malpractice." A party is entitled to an instruction that is consistent with his theory of the case, is supported by the evidence and is in conformance with existing law. The instruction reflected the law in the majority view and properly informed the jury that a violation of a rule of professional conduct alone could not serve as a basis for civil liability. Hence, we conclude that the district court properly instructed the jury.
Jason Nault's Presence in the Courtroom
Mainor and Harris contend that the district court improperly denied their motion in limine seeking to exclude Jason's presence during trial because Jason's presence created unfair prejudice. Mainor and Harris contend that Jason's presence was unhelpful to the jury's determination of the facts and was intended solely to generate tremendous sympathy for Jason and his parents and undermine Mainor and Harris's right to a fair trial.
This court has never addressed whether the prejudicial effect of the jury venire's view of the real party in interest outweighs the real party in interest's right to be present at the proceedings. Other courts have reviewed this issue for an abuse of discretion.
The few jurisdictions that have reviewed this issue are divided on the issue of whether a plaintiff has the right to be present at his own trial. In most of the cases that have considered the issue, the trial was bifurcated into liability and dama
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