PR Flashcards
(18 cards)
Model Rule 8.3(a)
Imposes a duty to report to the state disciplinary authority another lawyer’s violation of the rules that “raises a substantial question as to that lawyers honesty, trustworthiness, or fitness.”
A lawyer risks discipline for not reporting professional misconduct when…
There is circumstantial evidence that would support a finding that the lawyer did, in fact, know of the misconduct.
Model Rule 1.6
Forbids disclosure of information relating to representation of a client unless the client is about to commit a crime, threatening, imminent, death or serious bodily injury. 
Under what rule can a disciplinary authority punish a lawyer without awaiting a criminal conviction? 
Rule 8.4(b)
Misappropriating client funds is basically…
A per se disbarment in many jurisdictions.
Strickland Test
- D must show counsel’s performance was deficient
- D must show that the deficient performance prejudiced the defense
Deficient Performance
Requires showing that counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the 6th Amendment
When to use the Strickland Test?
When a criminal defendant does not receive effective assistance of counsel, and is entitled to habeas corpus relief, if the 2 elements of the test are met.
Under the law of negligent misrepresentation, can the plaintiff recover pecuniary damages?
Yes
Under the law of negligent misrepresentation, can the plaintiff recover expectation damages?
No
In most jurisdictions, the “but for” causation rule that the plaintiff in a criminal negligent misrepresentation case has to prove is..
But for counsel’s negligence, the defendant would have been found innocent and IS innocent.
When may a plaintiff NOT be required to come forward with expert testimony in a negligent misrepresentation case?
When their lawyer completely fails to take any action at all on the plaintiff’s case.
What is the standard of care in a negligent misrepresentation case?
A reasonable professional and is higher for lawyers who hold themselves as a specialist.
Togstad Rule
If a reasonable person in the client’s position would think that the lawyer has undertaken to provide legal services, the lawyer will owe that person a duty of care. ~ objective standard
Situations where lawyers create liability to nonclients:
- Drafting will/estate docs for their client’s beneficiaries
- Preparation of opinion letters where lawyer knows recipient of the opinion will rely on it.
- Knowingly providing substantial assistance to the client in breaching a fiduciary duty they owe to a third party (corporation v. person working for corporation)
If a client (NOT THE STATE) is bringing a claim against the lawyer, what law should we use to analyze the question?
Tort law (negligence) & Agency Law (fiduciary duty)
Difference between professional discipline and civil liability?
Civil liability has a causation element
