Competence, Legal Malpractice, & Other Civil Liability

Question 1

Competence

Answer 1

Lawyers owe their clients a duty to provide competent representation.

• This duty requires the lawyer to possess the legal knowledge, skill, thoroughness, and preparation that is reasonably necessary for the representation of the client.
• Maintaining Competence – lawyer should make efforts to keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology, engage in continuing study and education, and comply with all continuing legal education requirements to which the lawyer is subject.

Lacking Competence – A lawyer lacking the necessary knowledge or experience MUST:

• Decline or withdraw from representing the client;
• Become competent without unreasonable delay; or
• Associate with competent counsel.

Emergency Exception

• In an emergency, a lawyer may give advice or assistance in a matter in which the lawyer does not have the skill ordinarily required if referral to or consultation or association with another lawyer would be impractical.
• Assistance should be limited, however, to what is reasonably necessary under the circumstances

Question 2

DILIGENCE

Answer 2

A lawyer must act with reasonable diligence and promptness in representing a client.

Dedication to Client’s Interests

• The lawyer must be dedicated and committed to the interests of the client despite obstruction or inconvenience to the lawyer.
• A lawyer is not obligated to press for every possible advantage that might be realized for a client.
• The lawyer’s duty to act with reasonable diligence does not require the use of offensive tactics or prohibit treating all persons involved in the legal process with courtesy and respect.

Controlled Workload

• A lawyer cannot justify a lack of diligence based on illness, subordinates, personal animosity, or the inability to balance other work.
• A lawyer must control her workload to ensure that all matters are handled competently.

Reasonable Promptness

• A lawyer must act with reasonable promptness in representing a client.
• A client’s interests can often be adversely affected by the passage of time or a change of conditions. Moreover, unreasonable delay can cause a client anxiety and undermine confidence in the trustworthiness of the lawyer.
• A lawyer’s duty to act with reasonable promptness, however, does not prohibit the lawyer from agreeing to a reasonable request for a postponement that will not prejudice the lawyer’s client.

Pursuing Matter to Completion

• The lawyer should follow through on all matters until completion as outlined by the agreement between the lawyer and the client.
• Whether the lawyer is obligated to prosecute an appeal for a client depends on the agreed-upon scope of the representation.
• If there is any doubt about the status of the relationship, the lawyer should clarify it, preferably in writing.

Duty of Sole Practitioner

• In order to prevent neglect of client matters in the event of death or disability of a sole practitioner, the practitioner should:
• prepare a plan, in conformity with applicable rules, that designates another competent lawyer to review client files,
• notify each client of the lawyer’s death or disability (no consent needed), and
• determine whether there is a need for immediate protective action.

Question 3

Malpractice v. Ethics Violation

Answer 3

Burdens of proof

• Malpractice, fiduciary, and contracts—Preponderance of the evidence
• Ethics violation—Clear and convincing evidence

1) Malpractice – (Requires DAMAGES) limited to recovering fees.

i) NEGLIGENCE (Most Common)

• Lawyer breached duty of care owed to client, causing plaintiff to suffer actual damages
• Duty arises out of the attorney-client relationship
• Attorney-judgment rule – an attorney’s mere errors in judgment are generally not grounds for civil liability for malpractice based on a theory of negligence if he/she acted in good faith and exercised reasonable care, skill, and diligence.

ii) Breach of fiduciary relationship

• Malpractice can be found for a lawyer’s breach of fiduciary duties owed to a client, such as loyalty, confidentiality, honesty, and fair dealing. (e.g., conflicts of interest)
• Fiduciary duties may also arise when a lawyer acts in another capacity, such as trustee, executor, or escrow agent.
• An injunction is appropriate to prevent a breach of a fiduciary duty by a lawyer.

iii) Breach of contract for failure of performance

• Lawyer breached express or implied agreement with client

iv) Intentional tort

• Lawyer committed fraud, intentional infliction of emotional distress, malicious prosecution, or abuse of process

2) Ethics Violation – (NO Damages required)

• Violations of the MRPC do not set up a cause of action for malpractice
• Violation of the MRPC may be evidence of a breach of duty.

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NOTES

• Limiting FUTURE malpractice recovery—not permitted prospectively, UNLESS the client is REPRESENTED by an independent lawyer in making the agreement.
• Agreement to submit a FUTURE malpractice dispute to ARBITRATION— not treated as a prospective limit on malpractice liability, and is permitted when the CLIENT is INFORMED as to the SCOPE and the EFFECT of the arbitration clause.
• Settlement of EXISTING or POTENTIAL malpractice claims—not permitted if the other party is unrepresented client or former client, UNLESS they are ADVISED in writing of the DESIREABILITY of independent counsel and given reasonable opportunity to seek such advice

Question 4

Vicarious Liability

Answer 4

Law firm liability

• A law firm may be civilly liable for compensatory damages resulting from an injury caused by the wrongful conduct of a principal (e.g., partner) or an employee of the firm who was acting in the ordinary course of the firm’s business or with actual or apparent authority.

General partners liability

• If the law firm is a general partnership, the partners are also jointly and severally liable with the firm.
• Individual partners need not be named in a suit against the partnership in order to collect a judgment out of partnership assets. However, a judgment against a partnership is not a judgment against its partners. Unless there is also a judgment against the partner, a judgment against a partnership cannot be satisfied from a partner’s assets, only from the partnership’s assets.
• Even though a partner is personally liable for a partnership obligation, a partnership creditor generally must exhaust the partnership’s assets before levying on the partners’ personal assets. Exceptions exist when the partnership is a debtor in bankruptcy, the partner has consented, or the partner is liable independent of the partnership, such as when the partner was the primary tortfeasor. In addition, a court may authorize execution against a partner’s assets when the partnership’s assets are clearly insufficient, exhaustion of the partnership’s assets would be excessively burdensome, or it is otherwise equitable to do so.

Other principals’ liability

• If the firm is a professional corporation, a limited liability partnership, or a limited liability company, a principal of the firm is typically not subject to vicarious liability, but can, of course, be liable for the principal’s own negligence, which can include negligent supervision of another member or employee of the firm.
• A lawyer of a corporate law department or a governmental agency is not vicariously liable for damages cause by another lawyer in the department or agency.

Question 5

Civil Liability to Non-Clients

Answer 5

General Rule

• Lawyer owes no duty of care to person who is not a client (i.e., nonclient) However…

Inviting Reliance

• A lawyer may owe a duty to a non-client when the non-client has been invited to rely on the opinion or legal services of the lawyer

Fiduciary Duty owed by Client

• Lawyer representing a client in the client’s capacity as fiduciary may in some circumstances be liable to beneficiary for failure to use care to protect beneficiary

Third-party beneficiaries

• A lawyer may owe a duty to a non-client when the lawyer KNOWS that a client intends the lawyer’s services to benefit the non-client
• Larry wrote a will for Darryl, the dead guy. The will accidentally cut out Darryl’s nephew Michael, who was very close to Darryl. Can Michael bring a claim against Larry?
• YES, even though he didn’t have a lawyer-client relationship.

Unauthorized acts

• Lawyer is subject to liability if the lawyer tortuously misrepresents to a third person that the lawyer had general authority to act for client
• Lorraine represents Cassandra. Without permission, Lorraine enters into a contract to sell Cassandra’s prized stamp collection to an antique stamp dealer. Cassandra is not happy. Is Lorraine on the hook with the stamp dealer?
• YES

Question 6

Referrals/Outsourcing to Other Lawyers Outside Your Firm

Answer 6

Must reasonably believe the other lawyer will contribute

Question 7

Other Tort Defenses for Attorneys

Answer 7

Defamation defense—privilege when the publication is related to a proceeding in which the lawyer is counsel

Malicious prosecution defense—probable cause for the action brought by the attorney

Question 8

Crimes

Answer 8

Advice about crime is not criminal if the lawyer attempts to DISSUADE the client.