Competence and Malpractice Flashcards
A. Maintaining competence B. Competence necessary to undertake representation C. Exercising diligence and care D. Civil liability to client, including malpractice E. Civil liability to nonclients F. Limiting liability for malpractice G. Malpractice insurance and risk prevention
What is considered competent representation?
Possesses the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.
⚠️ Note: Lawyers must control their workload so that each matter can be handled competently.
What factors are relevant to determining whether the lawyer possess the requisite skills and knowledge to competently handle a case?
- Relative complexity and specialized nature of the matter;
- Lawyer’s general experience;
- Lawyer’s training and experience in the field in question;
- Preparation and study the lawyer is able to give the matter;
- Feasibility of referring/consulting with a lawyer of established competence in the field
True or false: In many cases, the required proficiency to handle a case is that of a general practitioner.
True. Rule 1.1, comment 1
Can a newly admitted lawyer with no experience in the field provide competent representation?
Yes, as long as the lawyer can gain the requisite knowledge and skill through preparation. Lawyers do not need to have special training or prior experience to handle unfamiliar legal issues as long as they can become competent.
In an emergency, can an attorney give advice or assistance in a matter in which the attorney does not have the skill ordinarily required?
Yes, if referral/consultation with another attorney would be impractical, the lawyer can provide assistance reasonably necessary in the circumstances.
What steps should a lawyer take before contracting with lawyers outside the lawyer’s own firm to assist in a client matter?
Obtain informed consent from the client and reasonably believe that the other lawyers’ services will contribute to the competent and ethical representation of the client.
Can clients waive the duty of competence by informed consent?
No, the basic duty of competence cannot be waived under the Rules.
Are lawyers required to press for every advantage that might be realized for a client?
No, a lawyer must act with commitment and dedication to the interests of the client, but they can exercise professional discretion in determining the means by which a matter should be pursued.
Does violation of the Model Rules give rise to a civil malpractice claim?
No.
Can a lawyer limit malpractice liability?
(ex. Lawyer agrees to represent client but only if the client won’t sue for malpractice)
No, unless the client is independently represented in making the agreement. Rule 1.8(h)(1) .
⚠️ Note: However, there is no prohibition on requiring clients to arbitrate legal malpractice claims. Rule 1.8, comment 14.
Can a lawyer settle a malpractice claim with an unrepresented or former client?
No, unless that person is advised in writing, and given an opportunity to seek independent counsel.
Do the Model Rules require lawyers to carry malpractice insurance?
No, but the ABA Model Court Rule on Insurance Disclosurerequires lawyers to disclose whether they maintain professional liability insurance on their annual registration statements.
