Duty of Competence Flashcards
2 Remedies for Incompetence
- Discipline
2. Malpractice Liability
Standard of Competence (R.1.1)
Requires legal knowledge, skill, thoroughness and preparation reasonably necessary for representation
Factors to Determine Competency (R.1.1 Comment 3)
(a) relative complexity and specialized nature of the matter
(b) the lawyer’s general experience
(c) the lawyer’s training and experience in the field in question
(d) the preparation and study the lawyer is able to give the matter and whether it is feasible to refer the matter or consult with another layer who has competence in the field
Note: in many circumstances, the required proficiency is that of a general practitioner but expertise in a particular field of law may be required in some circumstances
How prepared does a lawyer need to be? (R.1.1 Comments 2 & 3)
2: lawyer doesn’t need prior professional experience (protects new associates)
3: in an emergency, lawyer can give limited advice in unfamiliar area when referral is impractical
Can an attorney stop working because they are not getting paid?
No and R.1.1 doesn’t require there to actually be harm to the client
Duties of Supervising Attorneys/Partners (R.5.1(a)-(c))
partners and supervisory attorneys must take “reasonable efforts” to ensure the firm and other lawyers adhere to Professional Conduct Rules.
Can face discipline for failure to meet this standard
Standard for malpractice (Restatement 48)
A lawyer is civilly liable for professional negligence to a person to whom the lawyer:
(a) owes a duty of care
(b) the lawyer breaches that duty, and
(c) the failure is a legal cause of injury
Standard for malpractice (Restatement 52)
A lawyer is liable if they fail to provide services at the applicable standard of care:
“the competence and diligence normally exercised by lawyers in similar circumstances”
National/Higher standard of care (Restatement 52)
Sometimes these apply
Nat’l standard: federal securities law, federal litigation of federal law
Higher standard: when a lawyer has a special skill or represents to a client a greater competence or will exercise greater diligence than that normally demonstrated by lawyers undertaking a similar matter
Are legal-malpractice claims in tort or contracts?
Jurisdictions vary. Only 1 state requires malpractice insurance
What happens if judgment is entered against client because of lawyer’s incompetence?
Being wrong =/= incompetence
Typical remedy is NOT to reopen the case (client as the principal is bound by the lawyer’s (agent’s) mistakes
What is the difference between malpractice and discipline?
Law firm’s have vicarious liability for malpractice committed by employees in the course of business with actual or apparent authority
Can a lawyer be subject to malpractice suit to prospective client?
YES! Must take particular care to refer declined client to another lawyer; lawyer bears the burden
Can an attorney by deemed incompetent if settlement offer is fair and equitable?
Yes!
Rules on limiting liability and settlement (R.1.18(h))
A lawyer cannot:
(a) make an agreement prospectively limiting the lawyer’s liability to a client for malpractice UNLESS the client is independently represented in making the agreement, NOR
(b) settle a claim or potential claim for such liability with an unrepresented client or former client UNLESS that person is (1) advised in writing of the desirability of seeking advice and (2) is given reasonable opportunity to seek the advice of independent legal counsel.
