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MPRE > Malpractice and Civil Liability > Flashcards

Malpractice and Civil Liability Flashcards

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1
Q

What is the duty of competence?

A

Lawyers must act with the knowledge, skill, thoroughness and preparation necessary to do the work.

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2
Q

How do you avoid a competence problem?

A

A: Associate with someone competent
L: Learn in time what you need to know
E: Only for a short period of emergency

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3
Q

Are you required to tell your client you are learning the area?

A

Might be a good idea but is not required.

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4
Q

What is the duty of diligence?

A

Duty to act with reasonable diligence and promptness. You need to control your workload.

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5
Q

What is civil liability to a client?

A

When the client sues you for damages that you caused.

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6
Q

What is a theory under which the client could sue you?

A

Negligence

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7
Q

What is the duty of care?

A

Duty of competence and diligence exercised by an attorney under similar circumstances

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8
Q

If an attorney holds themselves out as a specialist, are they subject to a higher standard of care?

A

Yes

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9
Q

What are examples of the breach of the duty of care?

A

Missing deadlines

Failure to send to specialist

Bad Advice.

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10
Q

Is it a breach if a judgment was well informed and reasonable?

A

No

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11
Q

What is causation?

A

But for the attorney’s actions the client would have won or gotten more money.

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12
Q

Can a lawyer be sued by non-clients?

A

Yes

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13
Q

Can a prospective client sue for advice given during a consultation?

A

Yes

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14
Q

Can a beneficiary who expected to benefit from your legal services sue you?

A

Yes

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15
Q

Can those invited to rely on the opinion or legal services sue you?

A

Yes

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16
Q

Is a law firm vicariously liable for damages caused by someone at the firm?

A

Yes if the action was in the ordinary course of business or the personal was authorized to act.

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17
Q

What is the liability of partner who are GPs?

A

They are jointly and severally liable for firm obligations.

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18
Q

What must be done before settling a claim or potential claim with a current or unrepresented former client?

A

Advise them in writing to obtain an independent counsel and give them the opportunity to do so. The client can ignore you but you must still give them time.

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19
Q

Can you agree to arbitrate your malpractice claims?

A

Yes

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20
Q

Can you generally make an agreement that says client wont sue you/lawyer has no responsibility for the work/ capping damages?

A

Generally not unless the client is actually independently represented.

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21
Q

What are some factors in determining whether you have the knowledge necessary to take a matter?

A
  1. The complexity of the matter.
  2. General experience
  3. Training and experience in the related field
  4. The prep and study you are able to give
  5. Feasibility to refer the matter or work with someone competent.
22
Q

True or False: Based on the rules, a lack of knowledge generally means a failure to seek it since you can learn.

A

True

23
Q

STD for emergency representation?

A

Representation should not exceed what is reasonably necessary to meet the emergency.

24
Q

Before retaining another lawyer to assist who is outside your firm what should you do?

A

Believe the service is necessary and ordinarily obtain the client’s consent.

25
Q

Do lawyers have an obligation to keep up with technology and take CLEs?

A

Yes

26
Q

Is a lawyer bound to press every conceivable advantage?

A

No - just use good judgement in the work your are doing and be diligent.

27
Q

True or False: Attorney must control their workload.

A

True or the can be sued and subject to punishment.

28
Q

Can a lawyer being in trouble for procrastinating even if it does not harm the client’s substantive interest?

A

Yes because it might cause them needless anxiety and diminish confidence in the attorneys work.

29
Q

Must lawyers complete their representation to completion?

A

Yes including letting client know of any issues that have come up.

30
Q

What most a solo practitioner do?

A

Appoint another competent lawyer who will will review the client’s files, notify the clients, and determine what action is needed.

31
Q

Is a single violation sufficient to impose discipline?

A

Yes

32
Q

Is special consideration given when determining a violation as to a pattern of misconduct?

A

No but will be used to consider the sanction.

33
Q

True or False: Even when the lawyer is in a personal crisis, they must take reasonable steps to put his cases on hold.

A

True

34
Q

If a lawyer violates legal ethics rule, does this mean she automatically committed malpractice?

A

No

35
Q

If a lawyer violates legal ethics rule, does it create a presumption that the lawyer committed malpractice?

A

No

36
Q

What are the theories under which a client could sue for malpractice?

A
  1. Intentional tort (fraud/misrep)
  2. Breach of fiduciary duties
  3. Breach of contract
  4. Negligence
37
Q

True or False: An unfavorable outcome is not malpractice if the attorney was well informed and exercised reasonable care.

A

True

38
Q

True or False: If the answer can be found through standard research and if the attorney does not find it, they have breached the duty of care.

A

True

39
Q

True or False: It is a breach of duty of care for a general practitioner to attempt to handle a problem if a reasonably prudent lawyer would have sent the client to a specialist.

A

True

40
Q

True or False: A lawyer can’t solve a competence problem simply by charging the client a lower fee

A

True

41
Q

What is the rule regarding the duty of diligence of a lawyer?

A

A lawyer must see each matter through to completion (unless, of course, the lawyer is fired or is required or permitted to withdraw).

If there’s doubt about whether the lawyer-client relationship has ended, the lawyer should clarify it, preferably in writing

42
Q

True or False;The rules of professional conduct are for disciplinary purposes. They are designed to be a basis for civil liability.

A

False - not designed as the basis for civil liability.

43
Q

if an attorney represents to a client that she has greater competence (e.g., is a specialist) or will exercise greater diligence than that normally demonstrated by attorneys undertaking similar matters, are they held to the ordinary reasonable standard?

A

No - held to a higher standard of a specialist.

44
Q

Bruce hires Aubrey to file a medical malpractice lawsuit against a doctor, but Aubrey misses the statute of limitations and Bruce’s claim is barred. Bruce’s claim against the doctor was baseless, but Aubrey had no reason to know that when she missed the statute of limitations.

Is Bruce likely to prevail in a malpractice claim against Aubrey?

A

No

As in any tort case, the plaintiff in a professional negligence case has to prove that the defendant’s conduct was the legal cause of the plaintiff’s injury. That is, the injury would not have happened but for the defendant’s negligence, and furthermore, that it’s fair to hold the defendant liable for unexpected injuries (or for expected injuries that happen in unexpected ways).

This means that to have a good malpractice claim, Bruce has to be able to show that he had a good claim in the first place. Since his claim was baseless, his malpractice claim will not prevail.

45
Q

What is the rule of professional conduct regarding taking opportunities from clients?

A

The rules of professional conduct prohibit a lawyer from using their current, prospective, or former client’s confidential information against them. That disciplinary rule applies only when the lawyer’s misuse of information disadvantages the person.

46
Q

Is a lawyer subject to civil liability for taking an opportunity from a client?

A

Yes - a lawyer who uses the confidential information for her own pecuniary gain other than in the practice of law may be subject to civil liability—she may have to account to the client, former client, or prospective client for her profits even if the person is not harmed.

47
Q

What is the rule of liability in a general partnership?

A

Each partner in a general partnership is jointly and severally liable for the obligations of the partnership, including the torts of another partner or employee committed in the ordinary course of the partnership business.

Joint and several liability means that any partner may be held personally liable for the entire judgment even if they had nothing to do with the negligent act.

48
Q

Rule of Settlement of a malpractice claim:

A

a lawyer may settle a malpractice claim or potential claim made by an unrepresented client or a former client, but only if the lawyer first advises the client in writing to seek the advice of an independent lawyer about the settlement, and the lawyer gives the client a reasonable chance to obtain such advice.

49
Q

True or false: When it comes to settling a malpractice claim, the client doesn’t actually have to be represented by independent counsel—it is sufficient to advise the client in writing to seek such advice

A

True

50
Q

What is required for the waiver of malpractice?

A

A lawyer must not make an agreement with a client that prospectively waives or limits the lawyer’s liability for legal malpractice, except in the unlikely event that the client is independently represented in making the agreement. Note that unlike with settlements, the client must actually be represented by independent counsel; advising the client to seek representation isn’t sufficient

MPRE (22 decks)

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