D. Civil Liability Flashcards
When is Lawyer subject to professional discipline?
Single incident of misconduct
What is required to avoid professional discipline?
Act reasonably to put cases on temporary hold (if necessary due to personal circumstances)
What is the difference between disciplinary matters and malpractice actions?*
Forum
- Malpractice: Civil court
- Disciplinary: Disciplinary Tribunal
Lawyer’s adversary
- Malpractice: Injured plaintiff
- Disciplinary: State Bar
Purpose
- Malpractice: Compensate injured plaintiff (money loss + causation)!!!
- Disciplinary: Punish Lawyer/Protect public from future wrongs!!!
Does violation of ethics violation count as evidence of malpractice?*
NOT necessarily!!!
- Courts may treat as ‘relevant’ evidence of malpractice!!!
What type of legal theories can plaintiff rely on in enforcing malpractice actions?*
Intentional tort!!!
- Fraud
- Misrepresentation
- Malicious prosecution
- Abuse of process
- Misuse of funds
Fiduciary duty breach!!!
- Loyalty
- Confidentiality
- Honest dealing
Contract breach!!!
- Express/Implied contract
- Use ordinary skill and care
Negligence!!!
- General practitioner has regular ‘competent representation’ standard
- Specialist has higher standard
What is required for negligence as malpractice action?*
1) Duty of due care
- Owed towards client + TPs intended to benefit from Lawyer’s legal services
- If Lawyer represents he will act with greater competence => Lawyer will be held to that higher standard
2) Breach
- Failure to conduct reasonably competent legal research (by using standard research techniques)
- Failure to refer difficult matter to legal specialist (if reasonably prudent lawyer would)
- Failure to file necessary papers on Client’s behalf!!!!
- NOT mere errors of judgment (if well-informed + reasonably made)
3) Legal causation
- ‘But for’ test
- D is ‘fairly’ liable for unexpected injuries/expected injuries in unexpected ways
4) Damages!!!
- Direct losses (recoverable)
- Indirect (foreseeable) losses (recoverable)
When may lawyers/partners be liable for others’ negligent acts?
- Legal secretary
- Law clerk
- Other person acting within scope of employment
- Other partners (ordinary course of partnership business)
What is difference between being subject to Civil Liability and Discipline for others’ negligence acts?*
Civil liability
- Other’s negligent act => Lawyer is subject to civil liability!!!
Discipline
- Other’s negligent act + Lawyer’s failure to adequate supervise => Lawyer is subject to discipline!!!
