5. Competence, Legal Malpractice, and Other Civil Liability Flashcards
How can a lawyer avoid a competence problem?
Solutions:
1. Adequate preparation (learn it in time)
2. Association (with someone competent)
3. Emergency (only for the period of the emergency)
What does the duty of diligence entail?
- Requires a lawyer to generally see each matter through to completion (unless fired or withdrew). If there is doubt about whether the lawyer-client relationship has ended, the lawyer should clarify it, preferably in writing.
How will a court weigh the evidence of a violation of the Rules in a civil malpractice case?
The rules of professional conduct are for disciplinary purposes. They aren’t designed to be a basis for civil liability, and a lawyer’s breach of an ethics rule doesn’t automatically or presumptively mean that the lawyer has committed malpractice.
Courts generally do, however, regard an ethics violation as relevant evidence that the lawyer’s conduct was below the appropriate standard of care.
Do lawyers owe a legal duty to nonclients?
Sometimes. When it comes to malpractice claims, a lawyer generally doesn’t owe a legal duty to nonclients. However, a lawyer may owe a duty to nonclients in certain circumstances, including when the nonclient was intended to benefit from the lawyer’s services.
What is the standard of care that will be applied to lawyers under a negligence theory in a malpractice case?
General Rule: Generally, the standard of care for an attorney is the competence and diligence normally exercised by attorneys in similar circumstances.
Specialist: However, if an attorney represents to a client that she has greater competence (e.g., is a specialist) or will exercise greater diligence than that normally demonstrated by attorneys undertaking similar matters, she is held to that higher standard.
What must a plaintiff prove in a professional negligence case (civil malpractice)?
- duty
- breach
- causation
Legal causation - the injury would not have happened but for the D’s negligence
And it’s fair to hold D liable for unexpected injuries (or for injuries that happen in unexpected ways) - damages
Is a lawyer subject to civil liability when she uses a client’s confidential information for her own pecuniary gain?
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.
What (if any) liability may a partner in a general partnership be subject to arising from legal malpractice committed by another partner or employee?
Under partnership law, each partner in a general partnership is jointly and severally liable for the obligations of the partnership, including the torts of another partner or employee committed in the ordinary course of the partnership business. Joint and several liability means that any partner may be held personally liable for the entire judgment even if they had nothing to do with the negligent act.
May a lawyer settle a pending or potential malpractice claim with a client?
Yes, a lawyer may settle a malpractice claim or potential claim made by an unrepresented client or a former client, but only if the lawyer first advises the client in writing to seek the advice of an independent lawyer about the settlement, and the lawyer gives the client a reasonable chance to obtain such advice.
May a lawyer prospectively waive or limit her liability for legal malpractice?
No, a lawyer must not make an agreement with a client that prospectively waives or limits the lawyer’s liability for legal malpractice, except in the unlikely event that the client is independently represented in making the agreement.
Note that unlike with settlements, the client must actually be represented by independent counsel; advising the client to seek representation isn’t sufficient.
