Competence Ch3

RULE 1.3: DILIGENCE – COMMENT 5 [5] To prevent neglect of client matters in the event of a sole practitioner's death or disability, the duty of diligence may require that each sole practitioner prepare a plan, in conformity with applicable rules, that designates another competent lawyer to review client files, notify each client of the lawyer's death or disability, and determine whether there is a need for immediate protective action. 23 MALPRACTICE RULE 1.8 RULE 1.8(H) - REVIEW (h) A lawyer shall not: (1) make an agreement prospectively limiting the lawyer's liability to a client for malpractice unless the client is independently represented in making the agreement; or (2) settle a claim or potential claim for such liability with an unrepresented client or former client unless that person is advised in writing of the desirability of seeking and is given a reasonable opportunity to seek the advice of independent legal counsel in connection therewith. 25 MALPRACTICE “Legal Malpractice” refers to the attorney’s civil liability to a client or other injured person for professional misconduct or negligence. Malpractice actions differ from disciplinary actions Civil court, not disciplinary hearing Attorney’s adversary = injured person, not a disciplinary authority Purpose = obtain compensation for injured, not punish attorney/protect public 26 MALPRACTICE Legal Theories available to Plaintiff Intentional tort Example: misuse of funds, abuse of process or misrepresentation. Breach of Fiduciary Duty Breach of Contract Express or implied Unintentional tort – “ordinary negligence” Most common theory Requires proof of: duty of care, breach of that duty, causation and damages. 27 MALPRACTICE Negligence: Duty of Care Attorney owes a duty of care to client “Client” may include a person that simply asks the attorney for legal help, if the attorney does not decline to give the help, and if the attorney knows or should know that the person will reasonably rely on the attorney to give the help. Does an attorney owe a duty to a non-client?  Prospective client  Invited reliance  Non-client, or Breach of fiduciary duty by client 28 MALPRACTICE - STANDARD OF CARE? If the attorney is a general practitioner, then the standard of care is the skill and knowledge ordinarily possessed by attorneys under similar circumstances. If the attorney purports to be a specialist, or acts in a specialized area of law, then the attorney must exercise the skill and knowledge possessed by attorneys who practice that specialty. Relevant geographic area = jurisdiction (usually the state); Lawyers in rural areas are held to the same standard as lawyers in urban areas 29 MALPRACTICE - STANDARD OF CARE? Breach of the Duty of Care Lawyers are not liable for “mere errors in judgment.” Lawyers will not be liable when acting in good faith and honest belief that his advice and acts are well-founded and in the best interest of his client Applies to circumstances where an attorney fails to know the settled principles of law 30 LEGAL MALPRACTICE CAUSATION & DAMAGES = TRIAL WITHIN A TRIAL 31 MALPRACTICE - CAUSATION Actual Cause “But for” : Proof that the injury would not have happened but for the defendant’s negligent act; or “Substantial Factor” : where several acts unite to cause an injury and any one of them alone would have been sufficient to cause it. Proximate Cause A plaintiff must also prove proximate cause –that it is fair to hold defendant liable for unexpected injuries or for expected injuries that happen in unexpected ways 32 MALPRACTICE - DAMAGES Legal malpractice plaintiffs usually seek money for their injuries Types of Damages Direct Damages Consequential damages Loss that flows indirectly but foreseeably from the defendant’s negligence. 33