Liability and Malpractice Flashcards
What is a major difference between malpractice and discipline?
Malpractice requires proof of actual injury/damages.
What is the attorney-judgement rule?
So long as an attorney acts in good faith, and exercises reasonable care, skill, and diligence, they cannot be held civilly liable for a negligence based malpractice claim.
What are the 4 main theories for malpractice claims?
- Breach of contract: violation of express or implied agreement
- Breach of fiduciary relationship: violation of duty of confidentiality, honesty, loyalty, fair dealing
- Intentional torts: iied, malicious prosecution
- Negligence: this is the most common, breach of a duty of care that resulted in damages
When is a lawyer who contracts with a third party on behalf of a client, liable?
When:
1. The client is not disclosed to the third party; or
2. the third party provides good/services used by lawyers and the lawyer knows, or reasonably should know, that the party is relying on the lawyer’s credit (i.e. appraisers, stenographers, surveyors)
Unless:
1. the lawyer disclaims liability from the jump; or
2. the third party did not rely on the lawyer’s credit.
What is the standard for assessing a negligence-based malpractice claim?
Did the lawyer act with the competence and diligence normally exercised by lawyers in similar circumstances, AND did the lawyer exercise any special skill that they had (unless disclaimed)
Emergencies
When there is an emergency and referral or consultation is not practical, a lawyer without the requesite skill/competence may provide legal assistance.
Are lawyers allow to settle or prospectively limit malpractice claims?
Yes. But, a lawyer may not settle a claim or potential claim against the lawyer for malpractice with an unrepresented or former client unless that person is (1) advised in writing of the desirability of seeking independent legal counsel and (2) given a reasonable opportunity to seek such advice.
