Competency Flashcards
What is the difference between professional discipline and legal malpractice?
Discipline concerns professionalism and license to practice.
Malpractice is a tort focusing on breach of duty causing client harm.
Negligent mistakes may be malpractice but not necessarily grounds for discipline.
What is a lawyer’s duty of competence?
Provide competent representation with legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation.
What factors determine a lawyer’s competence?
Complexity of the matter; lawyer’s experience and training; preparation and study devoted; feasibility of consulting or referring to another lawyer.
How can a lawyer meet the required legal knowledge and skill?
No special training required.
Adequate representation can be achieved through necessary study or associating with a competent lawyer.
What should a lawyer do in emergencies when competence is an issue?
May assist where referral is impractical but must act within limits to not jeopardize client’s interests.
What does thoroughness and preparedness require from a lawyer?
Inquiry into factual and legal elements.
Use of methods and procedures meeting standards of competent practitioners.
Attention and preparation vary based on complexity and stakes.
What is a lawyer’s duty to maintain competence over time?
Must stay updated on legal changes and engage in continuing study and education.
What did Togstad v. Miller highlight about malpractice and discipline?
Lawyer found liable for malpractice.
Discipline requires a pattern or recklessness; even serious mistakes usually don’t trigger discipline.
When does a single act of negligence lead to professional discipline?
Discipline generally requires repeated acts or conduct that is intentional or reckless.
A single negligent act leads to malpractice liability, not discipline.
What is limited scope representation and its competence requirement?
Lawyers may limit scope with client consent.
Must still provide competent service within that limited scope.
What are two ways a lawyer can become competent in a new legal area?
(1) Educate to the level of an average reasonable practitioner.
(2) Associate with someone already competent in the field.
