Competence Legal Malpractice and Other Civil Liability Flashcards
(34 cards)
What does the duty of competence require under Rule 1.1?
A lawyer must act with the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation. This includes:
1. Understanding applicable law,
2. Knowing how to apply legal principles,
3. Preparing adequately for the matter,
4. Staying current with developmen
Example: A lawyer hired for a real estate closing must know local property laws and contract rules.
What factors determine a lawyer’s competence for a legal matter?
Complexity and specialized nature of the legal issue.
1. Lawyer’s general and specific experience.
2.Lawyer’s education and training in the area.
3.The time available for preparation.
4.Whether the lawyer can consult or associate with another attorney.
Example: A solo practitioner might accept a patent matter by working closely with a registered patent attorney.
Can a lawyer take a case outside their area of expertise?
Yes, if they become competent through reasonable preparation or work with a qualified lawyer. [Comment 4, Rule 1.1]
Example: A lawyer unfamiliar with employment law may accept a case after doing extensive research and consulting with an expert.
Can a lawyer assist in an emergency outside their field?
Yes, if:
-The situation is urgent, and -There is no time for consultation, -The help is limited to what is necessary.
[Comment 3, Rule 1.1]
Example: A lawyer with no experience in landlord-tenant law may help a client temporarily facing eviction.
What does thoroughness and preparation mean under Rule 1.1?
Lawyers must:
- Conduct legal and factual investigations,
- Use standard practices and strategies
- Avoid relying solely on intuition or past cases.
When can a lawyer retain another attorney to assist with a matter?
When:
1. The lawyer reasonably believes the outside attorney is qualified and ethical, 2. The client gives informed consent, especially if confidential info will be shared.
How must a lawyer stay competent over time?
Lawyers must engage in ongoing education and remain current with:
* Substantive law, * Practice methods, * Legal technology,
CLE (Continuing Legal Education) requirements.
[Comment 8, Rule 1.1]
Example: A litigator must understand modern e-discovery tools.
What is the duty of diligence under Rule 1.3?
Lawyers must:
- Pursue client matters with zeal, commitment, and timeliness,
- Avoid neglect,
- Complete all matters undertaken unless properly withdrawn.
Does diligence permit rudeness or dishonesty?
No. Being diligent does not allow for:
* Hostility, incivility, or * Ethical violations to gain an advantage.
[Comment 1, Rule 1.3]
How does workload affect diligence?
Lawyers must manage their caseload to avoid:
* Neglecting responsibilities, * Taking on too many cases.
[Comment 2, Rule 1.3]
Is procrastination a violation of diligence?
Yes. Procrastination that results in:
* Missed deadlines, * Delays in resolution, * Erosion of client trust—is unethical.
[Comment 3, Rule 1.3]
What if a matter is not clearly resolved?
Lawyers must:
* Clarify the status with clients * Avoid assumptions * Follow up or close out the case appropriately.
[Comment 4, Rule 1.3]
What should a lawyer do when unsure if representation exists?
They should:
* Treat the person as a client unless clarified otherwise, * Send a non-engagement letter if declining.
What must a solo lawyer do to prepare for death or disability?
They must:
* Arrange a plan with another competent attorney, * Provide instructions for client notification and case transfer.
[Comment 5, Rule 1.3]
Can one act of incompetence or delay lead to discipline?
Yes. A single act can trigger:
-Bar sanctions, -Investigation, -Even suspension or disbarment.
[Hazard & Hodes §7.06]
Example: Failing to file an appeal before a hard deadline, even once, can result in discipline.**
What is legal malpractice?
It is:
* Civil liability for failing to meet the standard of care, * Distinct from disciplinary action, * Focused on compensating the client for harm.
Does breaking an ethics rule equal malpractice?
No. But it can:
* Be used as evidence of negligence, * Show breach of standard of care.
[Fishman v. Brooks (Mass.)]
What legal theories support malpractice suits?
- Intentional torts – Fraud, abuse of process.
- Breach of fiduciary duty – Conflicts of interest, disloyalty.
- Breach of contract – Failing to perform agreed work.
- Negligence – Failing to act as a reasonable lawyer would.
What elements must a malpractice plaintiff prove (negligence)?
- Lawyer owed a duty,
- Lawyer breached that duty,
- The breach caused harm (“but for”),
- Damages resulted.
Who can a lawyer owe duties to?
- Clients,
- Prospective clients,
- Third parties (in limited cases: e.g., beneficiaries of wills).
What’s the malpractice standard of care?
It’s the skill and care of a reasonably prudent lawyer in a similar practice.
- Lawyers who claim special skill are held to that higher standard.
Are all mistakes malpractice?
No. Only unreasonable mistakes qualify.
- Errors in judgment, made in good faith and with care, are not actionable.
Is ignorance of the law negligence?
Yes. Lawyers must:
1. Research law when unsure, 2. Understand and apply legal rules.
Must a lawyer consult or refer to a specialist?
Yes, if:
* The matter requires expertise the lawyer lacks, * Failure to do so risks harm to the client.
