Competence, Malpractice, other Civil Liability Flashcards
How do you avoid a competence problem?
ALE - Associate, Learn it in time, Find an emergency
What is the duty of diligence?
Must act with reasonable promptness and diligence.
This is also requires zeal in advocacy (but not incivility or obstruction)
What is the question for negligence causation on a civil malpractice liability?
“But for” the lawyer’s malpractice, the outcome would have been better for the client. so if the case was not very good to begin with, might lack causation.
Can hold D liable for unexpected injuries or expected injuries that happen in unexpected ways (if foreseeable)
What is the standard of care for legal civil malpractice claims?
Competence and diligence exercised by attorneys in similar circumstances.
Specialists (and those that claim to be specialists) are held to a higher standard.
How influential is an ethics violation in a civil malpractice claim?
An ethics violation is relevant evidence in a civil malpractice claim (but no presumption)
What other parties besides actual clients are owed a duty of care?
- Prospective clients given legal advice
- Those intended to benefit from the legal advice
- Those invited to rely on the opinion or legal services
I’m about to settle a legal malpractice claim with my client. What are my ethical responsibilities.
Advise them in writing to obtain independent counsel & give them reasonable opportunity to do so
I want to prospectively limit by malpractice liability. Can I do that?
Yes but only if the client is independently represented in waiving the malpractice liability. Otherwise can’t cap or eliminate liability.
But you can always add an arbitration provision if the client is fully informed or practice through an LLC provided that the lawyer remains personally liable to the client for her own malpractice
What should an attorney do before associating with a lawyer with subject matter expertise to meet the competence prong?
1) reasonably believe that the services of the outside lawyers will contribute to the competent and ethical representation of the client
2) Should “ordinarily” get client consent to bring in the other lawyer
What effect does an emergency have on a lawyer’s duty of competence?
A lawyer may assist a client in an emergency even if the lawyer does not have the skill ordinarily required in the field in question if referral to or consultation with another lawyer would be impractical. But the assistance should not exceed what is reasonably necessary to meet the emergency
What is a duty that is unique to solo practitioners (particularly old ones)?
Sole practitioner should designate another lawyer who upon death or disability would review the client’s files, notify clients of the circumstances and determine whether protective action is needed
Is a pattern of incompetence or a pattern of a lack of diligence required to impose discipline?
No - one instance is sufficient.
Special circumstances should be considered when imposing the sanction but not when determining if there has been a violation
Does a lawyer owe the client fiduciary duties?
Yes - including the duties of loyalty, confidentiality, and honest dealing. This is a theory of malpractice liability
What is the favorite “duty” when suing on a negligence theory for malpractice?
Is an attorney liable for errors in judgment?
The duty of due care - requires the competence and diligence normally exercised by attorneys in similar circumstances. If an attorney purports to be an expert, then they are held to that higher standard.
Attorney is not liable for errors in judgment if the judgment was well-informed and reasonably made.
If a reasonably prudent lawyer would have sent a client to a specialist but instead the attorney does not, is the attorney liable for legal malpractice?
Yes, if a reasonably prudent lawyer would have referred, then lawyer is liable for not referring
