4. Competence, Legal Malpractice, & Civil Liability Flashcards
let’s say you really want to work a case in an area you’re not familiar with…what do you do?
(A)ssociate with someone competent
(L)earn it in time (don’t delay or need to study so much you charge your client a lot)
(E)mergency situations: you can help people out even if you’re not competent (but ONLY for period of emergency—either BIG, like travel ban, or PERSONAL, like your friend’s been arrested)
Responsibilities
1) Reasonable diligence/promptness (don’t take on too much work; pursue with ZEAL—but not uncivilly; consult about important things like appeals)
MALPRACTICE
Different from ethical discipline—civil liability to compensate plaintiff
What can a client sue for?
1) tort: fraud/misrepresentation/etc.
2) breach of fiduciary duty
3) negligence (MOST POPULAR; often stems from breach of duty of care)
What is a lawyer’s duty of care?
1) look to competence and diligence exercised by attorneys in similar situations
2) specialists are held to higher standards—if you claim to be a specialist, you’re held to that standard, EVEN if you’re not actually one.
how do lawyers breach their duty of care?
1) missing deadlines
2) failure to send a complex case to a specialist
3) bad advice
NOT ERROR IN JUDGMENT
what’s the causation standard for negligence?
BUT-FOR. If not for the lawyer’s negligence, client would have won case/not have needed to pay so much/etc.
other than clients, who can go after you for malpractice?
1) prospective clients (you tell them wrong statute of limitations, etc.)
2) those intended to benefit from legal services (e.g. inheritors of will)
3) those invited to rely on opinion/legal services (e.g. if you need to do something in order for a buyer to close)
is the firm ever liable?
YES, vicariously liable if…
1) in ordinary course of business
2) OR were authorized
(non-limited partnerships = partners could each be personally liable, regardless of amount in firm AND regardless of partners’ involvement)
what must you do before settling a claim?
1) advise plaintiff to obtain independent counsel in WRITING
2) give plaintiff TIME to get independent counsel
can you preemptively contract your way out of malpractice claims?
KIND OF…
you CANNOT have clients sign a doc saying
1) they won’t sue in order to do business with you
2) OR you’re only liable up to a certain amount
3) OR you have no responsibility for work
UNLESS client is INDEPENDENTLY represented in making an agreement with any of the above terms—but EVEN THEN, might not hold up in court.
BUT REGARDLESS, you can have them sign an arbitration agreement
how do ethical violations & malpractice cases interact in court?
Not super directly—however, ethical violations may serve as evidence that lawyer operated beneath standard of care
can lawyers use their clients’ information to benefit the lawyer?
NO, AGENCY LAW–even if they don’t harm the client with their actions, it’s a huge issue.
The rules of professional conduct prohibit a lawyer from using their current, prospective, or former client’s confidential information against them. That disciplinary rule applies only when the lawyer’s misuse of information disadvantages the person. However, a lawyer who uses the confidential information for her own pecuniary gain other than in the practice of law may be subject to civil liability—she may have to account to the client, former client, or prospective client for her profits even if the person is not harmed. Even though the garage did not harm Brian, Fatima must disgorge the garage profits to Brian because she used Brian’s confidential information to enrich herself outside of the practice of law.
