Preliminary Context - Legal Malpractice Claims Flashcards
Legal Malpractice
Malpractice is a negligence tort with basic elements:
1) Duty
2) Breach
3) Causations (but-for and proximate)
4) Harm
If held liable for malpractice, you can face discipline at the bar at the same time. Could be tort or contract. See Togstad
Togstad
In a medical legal malpractice case:
(1) an attorney-client relationship existed;
(2) defendant acted negligently or in breach of contract;
(3) such acts were the proximate cause of the plaintiffs’ damages;
(4) but for defendant’s conduct the plaintiffs would have been successful in the prosecution of their medical malpractice claim.
Docking
Guy takes on felony case with a bunch of Korean immigrants, doesn’t bother translating with them and makes a ton of technical mistakes.
Legal Rule: A new lawyer/recent graduate must be careful in taking on a case with which they have no experience in. At the minimum, they should get a mentor/co-counsel.
Can you bill your client to learn about a new area of law?
No, you can’t bill a client to learn general stuff about law. You can’t bill just to read a DUI statute for example.
Normally, you can ONLY bill your clients for case-specific issues. General background info not billable.
No excessive times = if a competent lawyer in that area would take half an hour, you can’t bill 8. Can’t bill time talking with a mentor either.
Lopez v. Clifford Law Offices
This case illustrates the 4 elements of malpractice claims.
Lopez (Client) went to Prindable (Atty1) for a case, Atty1 repped Client for 6 months but ended rep, said statute of limitations was 2 years. But it was only 1 year. Client went to Atty2, who warned him the statute of limitations might run out but didn’t say how long. Client went to Atty3 and learned statute of limitations ran out. Client sued Atty1 (Prindable).
Why not sue Atty2? Because there was no atty-client relationship yet since Atty2 didn’t actually take on Lopez as a client.
8.1 Bar Admission & Disciplinary Matters
DON’T LIE WHEN APPLYING FOR THE BAR
A lawyer applying for the bar SHALL NOT:
(a) knowingly make a false statement of material fact or
(b) fail to disclose a fact necessary to correct a misapprehension or knowingly fail to respond to a lawful demand for info from an admissions or disciplinary authority. This rule does not require disclosure of info protected by Rule 1.6
8.2 Judicial & Legal Officials
DONT LIE ABOUT JUDGES TRYING TO GET ELECTED
Lawyer SHALL NOT make false statement or with reckless disregard as to its truth or falsity concerning the qualifications or integrity of a judge or candidate for judge or other legal officer.
Judicial candidates must comply with Code of Judicial Conduct.
Trial-within-a-Trial
Malpractice claims are a trial-within-a-trial because part of figuring out whether malpractice occurred and the client has damages also means determining how good the client’s claim actually was. So you need to try the actual case and basically give the client a 2nd chance.
If held liable for malpractice, you can face discipline at the bar at the same time. Could be tort or contract.
Duty of Competence
Competence (Rule 1.1) could always be a part of a malpractice complaint because you could be incompetent if you made other mistakes.
