Pg 17 Flashcards
If an attorney is a specialist, what is the standard of care that he is held to for negligence under malpractice?
Must exercise the skill and knowledge possessed by attorneys that practice that specialty
What is the standard of care that attorneys in rural areas are held to for negligence in malpractice?
The same standard of skill and knowledge as those in urban areas
Are attorneys liable in negligence for minor errors in judgement when they act in good faith with an honest belief that their advice or acts are well-founded and in the best interest of the client?
No, if an attorney makes a mistake in a point of law that hasn’t been settled by the court of last resort in his state where reasonable doubt can be entertained by well-informed attorneys
What would constitute a breach of the duty of care for negligence for malpractice?
Missing a deadline, failing to do reasonable investigation, failing to find pertinent statutes, not doing a reasonable fact investigation, not finding a key witness, failing to consult proper experts
Attorneys are expected to know settled principles of law, and if they don’t, what are they expected to do?
To look up the law using standard research techniques of ordinarily prudent attorneys
If there is unsettled law that is open to debate, what is an attorney expected to do?
Reasonable research and then make an informed decision based on an intelligent assessment of the problem
Tactical decisions made during trial are not usually the subject of malpractice if they are based on what?
The well-informed judgement of the attorney
If an attorney uses poor judgement in making strategy choices, is that considered a breach of the duty of care for negligence for malpractice?
Not usually
What is required for actual causation for negligence for malpractice?
Plaintiff must prove by a preponderance of the evidence that the injury would not have happened but for the attorneys negligence. Requires a trial within a trial
What does it mean to have a trial within a trial to prove actual causation for negligence for malpractice?
Plaintiff presents evidence that the attorney should have presented, and attorney plays the role of the defendant. The trier of fact decides what recovery would have been awarded if the attorney had done things differently
If the but-for analysis is not adequate for actual cause for negligence for malpractice, what is used instead?
Substantial factor analysis. Plaintiff prevails by showing the attorney’s negligence was a substantial factor in causing the injury
What is required for proximate cause for negligence for malpractice?
Plaintiff must prove it is fair to hold the attorney liable for unexpected injuries or ones that happen in unexpected ways
What are the two different types of damages for negligence for malpractice?
Direct and consequential
What is involved in direct damages for negligence for malpractice?
Provides damages for immediate, natural, and anticipated consequences of the wrong
What is involved in consequential damages for negligence for malpractice?
Damages given for losses that flow directly but foreseeably from the attorney’s negligence
What are possible defences to negligence in malpractice?
– if the attorney reasonably believed the action was required by law or an ethics rule
- comparative or contributory negligence
- if the act was done at the behest of the client
– assumption of the risk
– failure to mitigate damages
– statute of limitations
If a client insists on giving perjured testimony, what must an attorney do?
Withdraw
The statute of limitations doesn’t run on malpractice while what?
The attorney continues to represent the client in the matter or one substantially related to it
The statute of limitations doesn’t start until when in a malpractice suit?
- the attorney discloses the malpractice to the client, or
- the client knows or reasonably should know facts that indicate malpractice, or
- the malpractice significantly injures the plaintiff
If an attorney isn’t working on a client’s case, and the due date is approaching, but the attorney lies and says that he is working on it, is he subject to malpractice?
Yes
If an attorney’s secretary purposely jumbles files that are handed over to the opposition to make it hard for them to find documents, can the attorney be disciplined for that?
Yes if the attorney fails to take steps to mitigate the consequences of this misconduct or does anything to ratify it
How must documents be produced for inspection?
- as they are kept in the usual course of business, or
- organized and labelled according to the categories in the request. At the very least, the attorney should flag the important documents
What is the model court rule on insurance disclosure?
Requires private practitioners to report annually whether they have malpractice insurance
Do the model rules require that an attorney have malpractice insurance?
No, only that he reports whether or not he has it annually
