Lawyer's duties of competence and diligence

Question 1

what are the facts in determining whether a lawyer has the requisite skill (to be competent)

Answer 1

1. complexity and specialized nature of the matter
2. lawyer’s general experience
3. L’s training and experience in the field in question
4. the preparation and study the lawyer is able to give the matter AND
5. whether L can refer or consult another lawyer in the field about the matter

Question 2

if a lawyer lacks particular legal knowledge, does that mean the lawyer is not competent?

Answer 2

no, the lawyer is competent b/c they can ask a lawyer in that field or study that field

Question 3

if it is an emergency and L is called upon to give advice about a field he knows nothing about and there is no time to study the matter or consult another lawyer, may L give the advice?

Answer 3

yes but it is limited to the emergency at hand

Question 4

what does competence require?

Answer 4

adequate preparation

Question 5

in terms of diligence, how should a lawyer act when representing a client?

Answer 5

with reasonable diligence and promptness

Question 6

does the L’s duty of diligence require L to pursue every conceivable advantage?

Answer 6

no

Question 7

if L is unsure as to whether the C/L relationship has come to an end, what should L do?

Answer 7

clarify whether it has or not and do so preferable in writing

Question 8

to prevent the chaos that comes w/ a solo practitioner’s death or disability, what should the solo practitioner do?

Answer 8

designate another competent lawyer to review the client’s files, notify the clients, and determine whether protective action is needed

Question 9

when will a disciplinary authority consider the circumstances surrounding a lawyer’s breach of diligence?

Answer 9

when imposing sanctions but not when establishing whether there was a violation of the duty (only takes one incident to cause a violation)

Question 10

what is the difference b/t malpractice and disciplinary matter?

Answer 10

• malpractice is in a civil court not in front of disciplinary tribunal
• malpractice adversary is the injured P
• in malpractice, the point is to compensate the injured P not punish the L

Question 11

if a L violates a legal ethic rule, do they also commit malpractice?

Answer 11

no but the violation can serve as relevant evidence that the L’s conduct was below the appropriate standard of care

Question 12

what are the 4 theories of malpractice liability?

Answer 12

1. intentional tort
2. breach of fiduciary duties
3. breach of k
4. negligence

Question 13

in terms of neglience in a malpractice against L, to whom does L owe a duty of care?

Answer 13

to clients and to 3Ps who were intended to benefit by the attorney’s rendering of legal services

Question 14

what is the standard of care to be exercised by an attorney?

Answer 14

the competence and diligence normally exercised by attorneys in similar circumstances

Question 15

in terms of negligence, when is L not liable for “mere errors in judgment”

Answer 15

when the judgment was well informed and reasonably made

Question 16

when examining the duty of care, what should be asked?

Answer 16

what would a competent and diligent attorney in a similar situation do?

Question 17

if L wants to settle a legal malpractice against him made by C, what should L do?

Answer 17

advice C to get the opinion of an independent lawyer and give C the time to get that advice

Question 18

can a lawyer who has breached a duty to his client w/ monetary effect escape discipline by reimbursing the client for any loss?

Answer 18

no