Pg 17

Question 1

If an attorney is a specialist, what is the standard of care that he is held to for negligence under malpractice?

Answer 1

Must exercise the skill and knowledge possessed by attorneys that practice that specialty

Question 2

What is the standard of care that attorneys in rural areas are held to for negligence in malpractice?

Answer 2

The same standard of skill and knowledge as those in urban areas

Question 3

Are attorneys liable in negligence for minor errors in judgement when they act in good faith with an honest belief that their advice or acts are well-founded and in the best interest of the client?

Answer 3

No, if an attorney makes a mistake in a point of law that hasn’t been settled by the court of last resort in his state where reasonable doubt can be entertained by well-informed attorneys

Question 4

What would constitute a breach of the duty of care for negligence for malpractice?

Answer 4

Missing a deadline, failing to do reasonable investigation, failing to find pertinent statutes, not doing a reasonable fact investigation, not finding a key witness, failing to consult proper experts

Question 5

Attorneys are expected to know settled principles of law, and if they don’t, what are they expected to do?

Answer 5

To look up the law using standard research techniques of ordinarily prudent attorneys

Question 6

If there is unsettled law that is open to debate, what is an attorney expected to do?

Answer 6

Reasonable research and then make an informed decision based on an intelligent assessment of the problem

Question 7

Tactical decisions made during trial are not usually the subject of malpractice if they are based on what?

Answer 7

The well-informed judgement of the attorney

Question 8

If an attorney uses poor judgement in making strategy choices, is that considered a breach of the duty of care for negligence for malpractice?

Answer 8

Not usually

Question 9

What is required for actual causation for negligence for malpractice?

Answer 9

Plaintiff must prove by a preponderance of the evidence that the injury would not have happened but for the attorneys negligence. Requires a trial within a trial

Question 10

What does it mean to have a trial within a trial to prove actual causation for negligence for malpractice?

Answer 10

Plaintiff presents evidence that the attorney should have presented, and attorney plays the role of the defendant. The trier of fact decides what recovery would have been awarded if the attorney had done things differently

Question 11

If the but-for analysis is not adequate for actual cause for negligence for malpractice, what is used instead?

Answer 11

Substantial factor analysis. Plaintiff prevails by showing the attorney’s negligence was a substantial factor in causing the injury

Question 12

What is required for proximate cause for negligence for malpractice?

Answer 12

Plaintiff must prove it is fair to hold the attorney liable for unexpected injuries or ones that happen in unexpected ways

Question 13

What are the two different types of damages for negligence for malpractice?

Answer 13

Direct and consequential

Question 14

What is involved in direct damages for negligence for malpractice?

Answer 14

Provides damages for immediate, natural, and anticipated consequences of the wrong

Question 15

What is involved in consequential damages for negligence for malpractice?

Answer 15

Damages given for losses that flow directly but foreseeably from the attorney’s negligence

Question 16

What are possible defences to negligence in malpractice?

Answer 16

– if the attorney reasonably believed the action was required by law or an ethics rule
- comparative or contributory negligence
- if the act was done at the behest of the client
– assumption of the risk
– failure to mitigate damages
– statute of limitations

Question 17

If a client insists on giving perjured testimony, what must an attorney do?

Answer 17

Withdraw

Question 18

The statute of limitations doesn’t run on malpractice while what?

Answer 18

The attorney continues to represent the client in the matter or one substantially related to it

Question 19

The statute of limitations doesn’t start until when in a malpractice suit?

Answer 19

• the attorney discloses the malpractice to the client, or
• the client knows or reasonably should know facts that indicate malpractice, or
• the malpractice significantly injures the plaintiff

Question 20

If an attorney isn’t working on a client’s case, and the due date is approaching, but the attorney lies and says that he is working on it, is he subject to malpractice?

Answer 20

Yes

Question 21

If an attorney’s secretary purposely jumbles files that are handed over to the opposition to make it hard for them to find documents, can the attorney be disciplined for that?

Answer 21

Yes if the attorney fails to take steps to mitigate the consequences of this misconduct or does anything to ratify it

Question 22

How must documents be produced for inspection?

Answer 22

• as they are kept in the usual course of business, or
• organized and labelled according to the categories in the request. At the very least, the attorney should flag the important documents

Question 23

What is the model court rule on insurance disclosure?

Answer 23

Requires private practitioners to report annually whether they have malpractice insurance

Question 24

Do the model rules require that an attorney have malpractice insurance?

Answer 24

No, only that he reports whether or not he has it annually

Question 25

What is a “claims made” policy for malpractice insurance?

Answer 25

It covers any claims the attorney makes during the policy period, even if the act happened before that