Final Part 3

Question 1

is a lawyer a fiduciary with regard to confidential information proved to him by his client?

Answer 1

Yes (TANTE v. HERRING)

Question 2

what must a temporary basis for practicing in a jurisdiction be? (5.5)

Answer 2

1) associated with the lawyer that is permitted to practice in the jurisdiction
2) reasonably related to a potential or pending proceeding
3) related to a pending or potential arbitration

Question 3

is there any right of federal origin that permits lawyers to appear in state courts without meeting the state’s admission requirements?

Answer 3

NO (Leis v. Flynt)

Question 4

what happens if you continue to write on the Bar after the time was up?

Answer 4

they can be denied admission to the bar with permission to apply when applicable (In re Parker)

Question 5

how does causation for breach of fiduciary duty claims work?

Answer 5

with a more relaxed “substantial factor” test when the lawyer is seeking recovery of the lawyer’s profit from the breach (Garratt v. Bryan Cave)

Question 6

are law partners vicariously liable for each other?

Answer 6

generally they are (Kansallis Finance v. Fern)

Question 7

can an applicant be denied admission because of engagement in unauthorized practice of law?

Answer 7

yes

Question 8

can applicants be rejected because of an inability to handle personal finances?

Answer 8

Yes as long as bankruptcy isn’t the only reason for the rejection (In re Anonymous)

Question 9

if an applicant fails to answer all the questions of the board candidly, both on the application and at any hearing, what happens?

Answer 9

that is a powerful indication that the applicant lacks good character needed for admission to the bar

Question 10

how does causation for transactional claims work?

Answer 10

same but/for causation standard (Viner v. Sweet)

Question 11

is criminal conviction a conclusive basis for denial from the bar?

Answer 11

no state has decided that but admission is rare (particularly for past crimes involving fraud, dishonesty, embezzlement etc.)

Question 12

how does causation work in criminal cases?

Answer 12

there are several options:

1) treat civil and criminal cases the same
2) require a criminal defendant to prove actual innocence
3) require the criminal defendant have this conviction overturned, reversed or vacated

Question 13

what creates duty for a lawyer that’s necessary for a malpractice claim?

Answer 13

the A/C relationship

Question 14

factors for liability to a lawyer of a third party (Track v. Butler) (6)

Answer 14

1) extent to which transactions was intended to effect the plaintiff
2) foreseeability of harm to the plaintiff
3) degree of certainty that the plaintiff suffered injury
4) closeness of connection between the defendant and his conduct and injury
5) policy of preventing future harm
6) extent to which profession would be unduly burdened by the theory of liability

Question 15

is expert testimony necessary to prove negligence?

Answer 15

Sometimes it is not

Question 16

do states allow liability to third parties in malpractice claims?

Answer 16

some don’t (Estate of Schneider)

Question 17

what must a bar rule be intended to do?

Answer 17

protect a person in the plaintiff’s position or be addressed to the particular harm (Smith v. Haynsworth)

Question 18

how would you establish in an A/C relationship that the actions of the lawyer were negligent?

Answer 18

if the negligence caused the plaintiff’s injury (TOGSTAD)

Question 19

what should a lawyer that is not permitted to practice in a jurisdiction not do? (5.5)

Answer 19

1) establish an office or other systematic or continuous presence in the jurisdiction for the practice of law
2) hold out to the public or otherwise represent that the lawyer is permitted to practice in that jurisdiction

Question 20

what are the elements of legal malpractice?

Answer 20

specific version of a negligence claim:

1) Duty
2) breach
3) injury
4) causation

Question 21

what does NY law allow liability from?

Answer 21

“reckless indifference to error, a pretense of exact knowledge, or an assertion of a false material fact susceptible of actual knowledge.” (SLOTKIN)

Question 22

how does a lawyer breach his duty in a malpractice claim?

Answer 22

based on a failure to act as a reasonable lawyer would in that situation

Question 23

does a lawyer have a duty to a third party that it’s not representing?

Answer 23

NO (Petrillo v. Bachenberg)

Question 24

what is the injury in a lawyer malpractice claim?

Answer 24

some harm to the client - a judgment was entered that should have been, or a judgment was not entered that should have been

Question 25

can an applicant be declined if a student had an unsatisfactory history for student loans?

Answer 25

They may be. (In re CRW)

Question 26

Under Friedman, is a client’s constitutional rights violated if the lawyer works full time in Virginia, which has a residency requirement but lives in another state and gets denied admission to the bar?

Answer 26

Yes

Question 27

if the attorney does nothing to induce reasonable reliance by a third party, is there a relationship to substitute for privity requirement in malpractice?

Answer 27

NO (Banco Popular)

Question 28

are applicants with criminal conduct excluded from the bar?

Answer 28

Traditionally, yes even if the allegations did not lead to conviction

Question 29

will an applicant be denied from the board if they didn’t pay state or local taxes?

Answer 29

Yes (Florida Board of Examiners)

Question 30

how does one prove legal malpractice?

Answer 30

by demonstrating that the attorney is not act as a reasonable attorney would have acted under the circumstances

Question 31

what is the causation in a lawyer malpractice claim?

Answer 31

negligence of the attorney is the thing that caused the harm; the client would have received the favorable position/result but for the negligence of the attorney

Question 32

what are at least 3 answers of what impact ethical rules have on a malpractice action?

Answer 32

1) is evidence relevant to the applicable standard of care? (majority position)
2) constitutes negligence per se (proof of violation of rule is sufficient to show malpractice)
3) creates a rebuttable presumption of negligence

Question 33

if negotiations don’t reach the stage where there is a bargaining process of offers and counteroffers, does that make it any less of a negotiation?

Answer 33

NO (Professional Adjusters, Inc. v. Tandon)

Question 34

what is the key consideration when deciding the liability of a third party?

Answer 34

whether the attorney is acting at the direction or on behalf of the client to benefit or influence a third party (IN RE ESTATE OF POWELL)

Question 35

what may a lawyer permitted to practice in another United States jurisdiction, and not disbarred or suspended permitted to provide?

Answer 35

legal services on a temporary basis (5.5)

Question 36

are expungement or concealment of criminal conviction sufficient reasons for omitting reference to it from the Bar application without express permission to do so?

Answer 36

NO (KENTUCKY BAR ASS’N)

Question 37

will one be rejected to the bar for failure to show that admission to the bar would not be detrimental to the integrity of the bar or the public interest?

Answer 37

Yes (In re PRAGER)

Question 38

what can states do to allow lawyers to temporarily practice in their jurisdiction and will it violate the lawyer’s constitutional rights?

Answer 38

admit lawyers pro hac vice and it will not violate the lawyer’s constitutional rights. (Leis v. Flynt)