Devices that Control Lawyer Conduct

Question 1

Discipline

The State Bar has the power to discipline lawyers for misconduct. Why is discipline imposed?

Answer 1

for the protection of the public and for the benefit of the profession

Question 2

Discipline

What may discipline be imposed for?

Answer 2

May be imposed for violations of the ethics code, acts of moral turpitude, criminal conduct, serious acts of dishonesty, fraud, or deceit, or acts that are harmful to the administration of justice (rule 8.4)

May also be disciplined for attempted violations and conduct outside of
the role as a lawyer

Question 3

Discipline

General forms of discipline?

Answer 3

• Disbarment—taking away the lawyer’s license indefinitely
• Suspension—license revocation for a fixed period
• Reprimand—a statement of reproach issued by the bar to the disciplined lawyer (may be public or private)
• Courts may also require a lawyer to engage in education programs

Question 4

Malpractice

What is the malpractice device?

Answer 4

A civil claim for damages made by a client who has been a victim of the lawyer’s misconduct

Question 5

Malpractice

What are the two theories for malpractice liability?

Answer 5

1. Contract
2. Tort

Question 6

Malpractice

Explain the contract theory. What are the requirements?

Answer 6

Requires common contract elements of agreement, breach, and damage

Question 7

Malpractice

Requirements for the tort theory?

Answer 7

Requires usual negligence elements of duty, breach, causation, and damage

Duty—The lawyer’s duty to the client is measured by the skill and knowledge of ordinary lawyers in the community, unless the lawyer is an expert in a specialized field, then held to the standard of a reasonable expert in that field

Breach—Occurs when a lawyer fails to take a reasonable course of action. Bad results do not necessarily equal malpractice.

Causation—The lawyer’s breach of duty must cause the client’s damages. Case within a case, for example, the client needs to show that they would have won something

Question 8

Lawyer as a Fiduciary. Explain.

Answer 8

Duties owed to client as a fiduciary can be the basis of a malpractice claim. Usually involves handling the client’s money or property.

Question 9

Contempt. Explain

Answer 9

Judges have contempt powers within their courtroom. Meant to give judges control over the courtroom and to enforce standards of courtroom
behavior among litigants.

Question 10

Litigation motions and sanction (typically filed by opponent)

Answer 10

1. Motion against frivolous claims: FRCP 11, analogous VA Code provision Section 8.01-271.1 prohibits frivolous claims and provides for money damages. NO Safe Harbor provision (which gives the party time to correct their conduct)
2. Motion for disqualification: opponent files when they believe you have a COI