Competence, Legal Malpractice, & Other Civil Liability Flashcards
Duty of Competence
A lawyer must act with the knowledge, skill, thoroughness, and preparation necessary for representation of a client.
If a lawyer believes they lack competence to represent a specific client, they may:
- Associate with another lawyer who has the requisite competence for assistance (must have informed consent from client)
- Learn & prepare what is reasonably necessary in time for the representation
- Assist in emergency situations if referral/consultation with another lawyer would be impractical for the client
Duty of Diligence
A lawyer must act with reasonable diligence and promptness with a zeal for advocacy.
Theories of Civil Liability
Separate from professional discipline
- Intentional Tort
- Breach of Fiduciary Duties
- Breach of Contract
- Negligence
Civil Liability for Negligence
Elements
- Duty of care
- Breach of duty
- Causation
- Damages
Duty of Care
Civil Liability for Negligence
Competence and diligence exercised by lawyers in similar circumstances
Lawyers who told their client they are a “specialist” are held to a higher standard for duty of care.
Breach
Civil Liability for Negligence
- Missed deadlines
- Failure to send the client to a specialist
- Gave bad advice
No breach for mere errors in judgment if the lawyer’s judgment was well-informed and reasonable
Causation
Civil Liability for Negligence
But for the legal malpractice, the client would have won OR would not have had to pay a large judgment.
Civil Liability to Non-Clients
Rule for duty of care
Duty of care is owed to prospective and other nonclients where they intended to benefit from the lawyer’s legal services and the lawyer invited them to rely on such.
Vicarious Liability
For law firms
A law firm is vicariously liable for damages caused by someone at the firm if:
1. the action was in the ordinary course of business OR
2. the person was authorized to act
Limited liability entities are shielded from personal liability
For general partnerships, each partner is jointly & severally liable
Settling Malpractice Claims
Requirements
- Advise plaintiff in writing to obtain independent counsel AND
- Give them reasonable opportunity to do such
Waiver Limiting Malpractice Liability
Rule
A lawyer cannot make an agreement with a client saying they cannot sue for malpractice, the lawyer has no responsiblity, or the lawyer is liable only to a certian amount, unless the client is actually independently represented by other counsel.
A lawyer may reasonably limit the scope of their representation and agree with client to use arbitration for any possible malpractice claims
