The Unlawful Conduct Defense in Legal Malpractice

Not long ago, American tort law clearly rejected an "outlaw" doctrine: a plaintiff engaged in tortious or criminal acts was not treated as an outlaw who could be injured with impunity. The plaintiff's unlawful conduct might give rise to a defense such as contributory or comparative negligence under ordinary tort prlnciples, or might trigger a privilege assertable against the plaintiff. However, unlawful conduct, by itself, did not inevitably bar the courthouse doors. The second Restatement's rejection of a rule making tortious or criminal conduct an absolute obstacle to recovery in tort was not surprising. Much has changed in American tort law during the past thirty years, including the rules relating to unlawful conduct. There are questions as to how far the unlawful conduct defense extends. Courts are in disagreement as to both the requirements of the unlawful conduct defense and whether the plaintiff or the defendant bears the burden of proof. It makes a world of difference, both to the individual litigant and to the fairness of the justice system, whether unlawful conduct is treated as an affirmative defense on which the defendant bears the burden of proof, versus an aspect of proximate causation that precludes a plaintiff from establishing a prima facie case