Competence, Legal Malpractice, and other civil liability

Question 1

Lawyers must provide clients with competent representation. What does competent representation require?

Answer 1

Competent representation requires the legal knowledge, skill, thoroughness, and preparation reason-
ably necessary for the representation.

Question 2

Fundamental skills necessary for competence include the ability to

Answer 2

analyze precedent, evaluate evidence, draft legal documents, and identify legal issues and problems. Even newly admitted attorneys should have these skills.

Question 3

T of F In order to be competent, a lawyer must do factual and legal research into a client’s problem.

Answer 3

True

Question 4

Factors used to assess the sufficiency of a lawyer’s knowledge and skill include:

Answer 4

1. the relative complexity and specialized nature of the matter;
2. the lawyer’s general experience;
3. the lawyer’s training and experience in the field in question;
4. the preparation and study the lawyer is able to give the matter; and
5. whether it is feasible to refer the matter to, or associate or consult with, a lawyer of established competence in the field.

Question 5

In an emergency, a lawyer may give advice or assistance to a client in need, even if he lacks the skill or knowledge ordinarily required, and referral to or consultation with another lawyer is impractical; however, the lawyer should?

Answer 5

limit his emergency assistance to that reasonably necessary under the circumstances.

Question 6

If the lawyer is not competent to handle the representation, he may:

Answer 6

(1) decline or withdraw from the representation;
(2) take action to make himself competent to handle the representation; or
(3) associate with competent counsel.

Question 7

Before a lawyer retains or contracts with other lawyers outside the lawyer’s own firm to provide or assist in the provision of legal services to a client, the lawyer should obtain

Answer 7

the lawyer should obtain informed consent from the client and must reasonably believe that the other lawyers’ services will contribute to the competent and ethical representation of the client.

Question 8

A lawyer must act with _____

_____and ______ in representing a client.

Answer 8

reasonable diligence and promptness

Question 9

T of FA lawyer should act with commitment and dedication to the interests of the client and with zeal in
advocacy upon the client’s behalf.
However, a lawyer is not bound to press for every advantage that might be realized for a client and will have discretion regarding the means by which a matter should be pursued.

Answer 9

True

Question 10

When exercising care and diligence for all clients, a lawyer should:

Answer 10

(1) control his workload;
(2) avoiding unreasonable delay and procrastination;
(3) file within the statutes of limitations; and
(4) carry representation through to completion and ensuring clients know when representation has ended.

Question 11

A competent lawyer may nevertheless act incompetently in his representation of a client and be subject to

Answer 11

civil liability for malpractice.

Question 12

T or F Plaintiffs generally can base a cause of action on a lawyer’s violation of an ethical rule.

Answer 12

False, they cannot

Question 13

T or F A violation of a Rule automatically gives rise to a cause of action for malpractice against a lawyer, and creates a presumption that a legal duty has been breached

Answer 13

False, It does not automatically give rise to a cause of action for malpractice and it does not create a presumption that a legal duty has been breached

Question 14

A lawyer cannot make an agreement prospectively limiting his liability to a client for malpractice unless

Answer 14

the client is independently represented in making the agreement.

Question 15

A lawyer cannot settle a claim or potential claim for such liability with an unrepresented client or former client unless

Answer 15

unless that person is advised in writing of the desirability of seeking, and is given a reasonable opportunity to seek, the advice of independent legal counsel in connection with the matter.

Question 16

A lawyer shall not bring or defend a proceeding, or raise or challenge an issue, unless there is a basis in law or fact for doing so that is not frivolous. A claim is frivolous if?

Answer 16

An action is frivolous if the lawyer is unable to either make a good-faith argument on the merits of the action taken or support the action taken by a good-faith argument for an extension, modification, or reversal of existing law.

Question 17

Even if the lawyer believes that the client will not ultimately prevail, a claim is not frivolous as long as

Answer 17

the lawyer is informed about the facts of his client’s case and the applicable law, and is able to make good-faith arguments in support of his client’s position.

Question 18

T or F It is never frivolous for the defendant’s lawyer in a criminal case to require the prosecution to meet its burden of proof on each and every element of the charge.

Answer 18

True

Question 19

A lawyer must make reasonable efforts to expedite litigation consistent with his client’s interests. A lawyer must not delay litigation to frustrate an opposing party’s attempt to obtain rightful redress. What is the standard for determining the reasonableness of a lawyer’s efforts?

T or F Realizing a financial or other benefit from an otherwise improper delay in litigation is a legitimate interest of the client.

Answer 19

is whether a competent lawyer, acting in good faith, would regard the course of action as having some substantial purpose other than delay.

False, it is not a legitimate interest

Question 20

Candor to the Tribunal: A lawyer must not knowingly: ?

hint disclosures

Answer 20

A lawyer must not knowingly:
(1) make a false statement of material fact or law to a tribunal or fail to correct a false statement of
material fact or law previously made to the tribunal by the lawyer;
(2) fail to disclose to a tribunal controlling legal authority known to the lawyer to be directly adverse to the client’s position and not disclosed by opposing counsel; or
(3) offer evidence that the lawyer knows to be false.

Question 21

If a lawyer has offered material evidence and the lawyer comes to know of its falsity, the lawyer must?

Answer 21

take reasonable remedial measures, including, if necessary, disclosure to the tribunal.

Question 22

If a lawyer knows that the client intends to testify falsely or wants the lawyer to introduce false evidence, the lawyer should seek to

Answer 22

seek to persuade the client that the evidence should not be offered. If the lawyer’s statements are ineffective and the lawyer continues to represent the client, the lawyer must refuse to offer the false evidence.

Question 23

These steps should be taken in what situation?

(1) If the persuasion is ineffective, the lawyer must take reasonable remedial measures.
(2) The advocate should seek to withdraw if that will remedy the situation.
(3) If withdrawal from the representation is not permitted or will not remedy the effect of the false evidence, the lawyer must make such disclosure to the tribunal as is reasonably necessary to remedy the situation, even if doing so requires the lawyer to reveal information that otherwise would be protected by Rule 1.6.

Answer 23

If, having offered material evidence in the belief that it was true, the lawyer later learns it is false, the lawyer should seek to persuade the client that its false character should immediately be disclosed.

Question 24

If a lawyer knows that the lawyer’s client or other person intends to engage, is engaging, or has engaged in criminal or fraudulent conduct related to an adjudicative proceeding involving the client, the lawyer must

Answer 24

lawyer must take reasonable remedial measures, including, if necessary, disclosure to the tribunal.

Question 25

In an __-____ proceeding, a lawyer must inform the tribunal of all material facts that are known to the lawyer and that will enable the tribunal to make an informed decision, whether or not the facts are adverse.

Answer 25

ex parte

Question 26

T of F in a criminal proceeding a defendant has the right to testify on his own behalf

Answer 26

True

Question 27

If a defendant offers false testimony despite the lawyer’s remonstrations, the lawyer may?

what is the amount of information that should be disclosed to the judge?

Answer 27

the lawyer may seek the judge’s permission to withdraw in order to avoid assisting the client in committing a fraud on the court. The lawyer may reveal only as much confidential information as is necessary to make the withdrawal request.

Question 28

What are the lawyer’s ethical duties to opposing counsel?

1. In general?
2. in a pretrial procedure?
3. During Trial?

Answer 28

A lawyer cannot:

1. in general
   a. unlawfully obstruct another party’s access to evidence (or counsel or assist another person to do so);
   b. unlawfully alter, destroy, or conceal a document with potential evidentiary value (or counsel or assist another person to do so);
   c. falsify evidence;
   d. knowingly disobey an obligation under the rules of a tribunal except for an open refusal based on an assertion that no valid obligations exists;
2. in a pretrial procedure:
   make a frivolous discovery request or fail to make a reasonably diligent effort to comply with legally proper discovery request by an opposing party;
3. during trial:
   a. allude to an irrelevant matter or one that is unsupported by admissible evidence,
   b. assert personal knowledge of facts in issue other than when testifying as a witness, or state a personal opinion as to the justness of a cause, the witness’s credibility, a civil litigant’s liability, or a defendant’s guilt or innocence; or
   c. request a person other than a client to refrain from voluntarily giving relevant information to another party unless the person is a relative or an employee of other agent of a client and the lawyer reasonably believes that the person’s interests will not be adversely affected by refraining from giving such

Question 29

1. T or F A lawyer cannot try to refresh a witness’s memory by referring to the testimony of other witnesses and by referring to documentary evidence.
2. T or F A lawyer may not advise or assist any witness to give false testimony. A lawyer must be aware of this ethical limit when preparing witnesses for a deposition or trial
3. T or F a lawyer can help a witness testify coherently and completely

Answer 29

1. False they can
2. True
3. True

Question 30

T or F a lawyer is permitted to pay a witness’s incurred expenses, compensation to a witness for loss of time for attending or testifying in a case, or a fee for the professional services of an expert, provided that all payments are reasonable.

Answer 30

True

Question 31

A lawyer shall not seek to influence a judge or other official by means prohibited by law, or communicate ex parte about an adversary proceeding with the judge or other official before whom the proceeding is pending, unless

Answer 31

unless authorized to do so by law or court order.

Question 32

T or F To protect the integrity of the judiciary, a lawyer is specifically prohibited from making a statement that he knows to be false or with reckless disregard as to its truth or falsity, concerning the qualifications or integrity of a judge, adjudicative officer, public legal officer, or candidate for appointment to judicial or legal office.

Answer 32

True

Question 33

T or F Before trial, a lawyer connected with a case, the lawyer’s client, and persons working for the lawyer are prohibited from communicating with anyone they know to be a member of the venire from which the jury will be chosen.

Answer 33

True

Question 34

T or F Except during official proceedings, lawyers connected with the case, their clients, and employees may not communicate with the jurors or their families in any way, including socializing or sitting with jurors at a restaurant.

Answer 34

True

Question 35

A lawyer who is or has been involved in a matter must not make extrajudicial statements that the lawyer knows or reasonably should know:

Answer 35

(1) will be disseminated by public communication; and

(2) will have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter.

Question 36

A statement will have a substantial likelihood of materially prejudicing an adjudicative proceeding when it refers to a civil matter triable to a jury, a criminal matter, or any other proceeding that could result in incarceration, and the statement relates to:

Answer 36

1. the character, credibility, reputation, or criminal record of a party, suspect, or witness;
2. the identity of a witness;
3. the expected testimony of a party or witness;
4. the possibility of a guilty plea;
5. the existence or contents of any confession, admission, or statement by a criminal defendant or suspect, or that person’s refusal or failure to make such a statement;
6. the performance or results of any examination or test, or failure to submit to such a test;
7. the identity or nature of physical evidence expected to be presented;
8. an opinion regarding guilt or innocence of a criminal defendant or suspect that could result in incarceration;
9. information that is likely to be inadmissible, disclosure of which would create a substantial risk of prejudice; or
10. the fact that a defendant has been charged with a crime, unless it is also stated that the defendant is presumed innocent until and unless proven guilty.

Question 37

Notwithstanding a lawyer’s general duty to avoid certain extrajudicial statements, when responding to recent adverse publicity a lawyer may make any statement that:

Answer 37

(1) a reasonable lawyer would believe is required to protect a client from the substantial undue prejudicial effect of recent publicity not initiated by the lawyer or the lawyer’s client; and
(2) is limited to information necessary to mitigate the recent adverse publicity.

Question 38

Despite the general prohibition of extrajudicial statements, a lawyer may state:

Answer 38

(1) the claim, offense, or defense involved;
(2) information contained in a public record;
(3) the fact that an investigation is in progress;
(4) the scheduling or result of a step in litigation;
(5) a request for assistance in obtaining evidence and necessary information; and
(6) a warning of danger concerning the behavior of a person involved, if there is reason to believe there is a likelihood of substantial harm to an individual or to the public.

Question 39

In a criminal case, a lawyer may also state:

Answer 39

(1) the identity, residence, occupation, and family status of the accused;
(2) information necessary to help apprehend the accused, if not already in custody;
(3) the fact, time, and place of the arrest;
(4) the identity of investigating and arresting officers or agencies; and
(5) the length of the investigation.

Question 40

A lawyer must not serve as an advocate at a trial in which the lawyer is likely to be a necessary witness, unless

Answer 40

the testimony relates to an uncontested issue;

the testimony relates to the nature and value of legal services rendered in the case;

or disqualification of the lawyer would create substantial hardship on the client.

Question 41

T or F If there is likely to be substantial conflict between the testimony of the client and that of the lawyer or a member of the lawyer’s firm, the representation would be improper.

Answer 41

True

Question 42

A lawyer may act as an advocate in a trial in which another lawyer in his firm is likely to be called as a witness unless

Answer 42

the testifying lawyer would also be disqualified from the representation due to a conflict.

Question 43

In representing a client, a lawyer shall not communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter, unless

Answer 43

the lawyer has the consent of the other lawyer. A lawyer may, as required by law, serve notice or process on another lawyer’s client.

Question 44

In the course of representing a client, a lawyer shall not knowingly make a false statement of material fact or law to a third person or fail to disclose a material fact to a third person when disclosure is necessary to avoid assisting a criminal or fraudulent act by a client unless

Answer 44

unless the disclosure is prohibited /protected from disclosure by client confidentiality.

Question 45

A lawyer shall not state or imply to an unrepresented person that the lawyer is uninterested in a matter while actually representing a client. When the lawyer knows or reasonably should know that the unrepresented person misunderstands the lawyer’s role in the matter, the lawyer shall make reasonable efforts to

Answer 45

he lawyer shall make reasonable efforts to correct the misunderstanding. The lawyer shall not give legal advice to an unrepresented person, other than the advice to secure counsel.

Question 46

A lawyer who receives a document relating to the representation of the lawyer’s client and knows or reasonably should know that the document was inadvertently sent shall

Answer 46

shall promptly notify the sender.