competence and malpractice Flashcards
L owes C duty of competence via 1.1
what does this mean
Competent rep requires the legal knowledge, skill, thoroughness and prep reasonably necessary for the rep
how do we know that a lawyer posess the knowlege and skill to be deemed competent
via factors laid out in comment one of 1.1
complexity of the matter, the lawyer’s expeirence, ect
via comm 2 of 1.1 what kind of proficceny will be enoguh in most cases
general practitioner; ie you dont need special training
how does a lawyer become competent
Necessary study, association of a lawyer of established competence in the field in question
can you still rep someone if you have to preparte to become compeent
yes! But sometimes it wont be reasonable to charge client for research/becoming competent
how does 6.2 accepting appointments and rule 1.1 compentecy interlock
If you can’t become competent via reasonable prep, then good cause under 6.2 to not accept rep
comment 3 to 1.1 tells us what happens in a emergecy situation and compentence
in an emergency a lawyer may give advice in a matter in which the lawyer does not have the skill usually required by the rule
but it should be limited to only what is reasonbly necessary
how do we know if something is an emergency
what factors should you consider
Something harmful happened to client and time is in a crunch
Do you have time to consult another attorney for help/will it prolong client’s harm
how does a lawyer stay compentent
you should keep abreast of all changes in the law and tech
what are the three big things to know about 5.1 lawyers supervising lawyers
5.3 is pretty much the same for lawyers supervising non lawyers
a. they should take reasonable efforts to ensure the firm has measures ensuring all As comply with rules
b.reasonable efforts to ensure the firm has measures ensuring all As comply with rules
c.atty responsible for another atty’s violation when atty knows or ratifies conduct, OR managerial/supervisory authority knows but fails to remedy
5.2 responsibilities of a subordinate/junior atty
a) lawyer is bound by rules even if you did what someone told you
b) subordinate lawyer does not violate the rules if that lawyer acts in accordance with a supervisory lawyer’s REASONABLE RESOLUTION of an arguable question of professional duty
what about other partner’s liabiity
Partner knew what was going on but didn’t intervene – violation?
yes partner and knew of conduct/could have remedied
malpractice v discipline
Discipline – violation of the L’s ethical obligation (NO HARM TO CLIENT REQUIRED) = bar investigation
Malpractice – the client MUST be harmed = civil liability
elements of a malpractice claim
Duty of care
Breach of that duty (violation of rules are RELEVANT but not dispositive)
Breach of duty causes harm (“case within a case”) – Ie i lost this case because of lawyer incompetence so must show that BUT FOR lawyer’s incompetence, the case would have won
appollo
Attorney Stephen Apollo represented Miriam Ziegelheim in her divorce. Ziegelheim sued Apollo for professional negligence, claiming he gave erroneous advice, failed to find hidden assets, delayed the settlement, and finalized terms erroneously.
Issue
The question is whether a lawyer can be sued for malpractice for doing a bad job negotiating a settlement, even if they didn’t commit fraud.
Just because a client got a good settlement doesn’t mean they were not harmed
