Competence and malpractice

Question 1

For a lawyer to be considered competent, he must

Answer 1

the lawyer must act with the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation.

Question 2

Every lawyer is capable of competence either through

Answer 2

necessary study or association of another lawyer.

Question 3

Which of the following statements is most accurate regarding a lawyer’s duty of diligence?

Answer 3

Diligence is defined as meaning that the lawyer should pursue a matter on the client’s behalf despite opposition, obstacles, and personal inconvenience, and may take whatever lawful and ethical measures are required to vindicate the client’s cause.

Note that diligence does not require incivility. A lawyer should use good judgment in determining the means by which a matter is pursued, and the lawyer is not bound to press every conceivable advantage. Moreover, the duty of diligence does not require the lawyer to be offensive or uncivil toward the adversary or other persons.

Question 4

When a lawyer violates a legal ethics rule, it does not automatically mean

Answer 4

that she has also committed legal malpractice only that It is considered relevant evidence that the lawyer’s conduct was below the appropriate standard of care in a legal malpractice case

Question 5

A legal malpractice action can be based on:

Answer 5

Intentional tort, negligence, breach of fiduciary duties, or breach of contract

Question 6

In terms of malpractice liability, a lawyer owes a duty of due care to:

Answer 6

His client and any third party who was intended to benefit by the attorney’s rendition of legal services

In terms of malpractice liability, an attorney does not owe a duty of due care to any third party affected during the rendition of legal services. For example, the opposing party does not have a malpractice claim against an attorney for negligently bringing a case with no sound factual basis

Question 7

A lawyer wants to put a clause in her standard retainer agreement providing that her liability for legal malpractice claims is limited to the amount in fees paid by her client. Is the clause valid under the Rules of Professional Conduct?

Answer 7

The clause at issue is not valid unless the client was independently represented in negotiating the retainer agreement. The clause would not be valid even if the client signs a separate, informed consent agreement.

Question 8

Factor that are normally used to determine whether a lawyer has the competence to handle a particular matter?

Answer 8

(i) The complexity and specialized nature of the matter;

(ii) The lawyer’s general experience;

(iii) The lawyer’s training and experience in the field in question;

(iv) The preparation and study the lawyer is able to give the matter; and

(v) Whether it is feasible to refer the matter to, or associate or consult with, a lawyer of established competence in the field.

Question 9

A client asks her lawyer to act in an uncivil manner while cross-examining the opposing party. Should the lawyer follow these instructions?

Answer 9

To be considered diligent, a lawyer is not required to be offensive or uncivil toward the client’s adversaries or other persons. Thus, the lawyer is not obliged to agree with the client’s request regardless of whether the requested action is legal.

Question 10

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A legal malpractice action is intended to

Answer 10

The purpose of a legal malpractice action is to compensate the injured plaintiff.

In contrast, a professional disciplinary action might be used to punish a negligent attorney and/or to protect the public from future wrongs. Professional discipline takes place in front of a disciplinary tribunal and the attorney’s adversary is the state bar.

Question 11

What is the minimum standard of care for an attorney?

Answer 11

The standard of care for an attorney is the** competence and diligence normally exercised by attorneys in similar circumstances**.

However, an attorney will be held to the heightened standard of care of an expert only if he represents to a client that he has greater competence (e.g., is a specialist) or will exercise greater diligence than that normally demonstrated by attorneys undertaking similar matters.

Question 12

An attorney is not liable for errors in judgment that cause actual harm to the client so long as

Answer 12

the judgment was well-informed and reasonably made.

Question 13

Client C wants to hire Lawyer L to research online sweepstakes laws in all 50 states. L advises C that this could take as long as 500 hours at the cost of at least $100,000. Client C asks L to do as much research as he can for up to $20,000. Is this agreement valid?

Answer 13

This agreement is valid. A lawyer may enter into an agreement with his client that reasonably limits the scope of the lawyer’s representation. There is no need for the client to sign a separate, informed consent agreement or to be independently represented in negotiating this agreement.

Question 14

Before a lawyer retains or contracts with lawyers outside her firm to assist in the provision of legal services to the client, the lawyer:

Answer 14

(i) must reasonably believe that the services of the outside lawyers will contribute to the competent and ethical representation of the client, and (ii) “should ordinarily” obtain the client’s informed consent.

Question 15

What consequences might a lawyer face as a result of performing legal work incompetently?

Answer 15

Both professional discipline and civil liability for legal malpractice

The Double Jeopardy Clause applies in criminal actions, not to civil liability or professional discipline

Question 16

A lawyer may settle a malpractice claim or potential malpractice claim with his client, but only if the lawyer first

Answer 16

advises the client in writing to seek the advice of an independent lawyer about the settlement, and the lawyer gives the client a** reasonable opportunity to obtain such advice**.

Advising the client to seek independent counsel verbally is not sufficient.

The client does not have to actually hire independent counsel, but the lawyer must give him a reasonable opportunity to obtain such advice.

Question 17

Bruce hires Aubrey to file a medical malpractice lawsuit against a doctor, but Aubrey misses the statute of limitations and Bruce’s claim is barred. Bruce’s claim against the doctor was baseless, but Aubrey had no reason to know that when she missed the statute of limitations.

Is Bruce likely to prevail in a malpractice claim against Aubrey?

Answer 17

No. the injury would not have happened but for the defendant’s negligence, and furthermore, that it’s fair to hold the defendant liable for unexpected injuries (or for expected injuries that happen in unexpected ways). This means that to have a good malpractice claim, Bruce has to be able to show that he had a good claim in the first place. Since his claim was baseless, his malpractice claim will not prevail.

Question 18

The rules of professional conduct prohibit a lawyer from using their current, prospective, or former client’s confidential information

Answer 18

against them

Question 19

A lawyer must not make an agreement with a client that prospectively waives or limits the lawyer’s liability for legal malpractice, except in .

Answer 19

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.

Question 20

In an exigent or emergency situation, an attorney may

Answer 20

give advice or assistance in a matter in which the attorney does not have the skill ordinarily required, if a referral to, or consultation or association with, another attorney would be impractical.

Question 21

If an attorney, or the attorney’s client with the attorney’s consent, invites a third party to rely on the attorney’s work, and the third party reasonably relies on that work, then that third party is also owed

Answer 21

a duty of care enforceable in a malpractice action against the attorney.