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Karteikarten von JD Advising, aktualisiert more than 1 year ago
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| Frage | Antworten |
| What must a lawyer do to satisfy the duty to provide competent representation? Are there any exceptions or specific requirements? | A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation. i) Emergency: In an emergency, a lawyer may give advice or assistance in a matter in which the lawyer does not have the skill ordinarily required where referral to or consultation or association with another lawyer would be impractical. Even so, assistance should be limited to what is reasonably necessary in the circumstances. ii) Novel fields: a lawyer can acquire competence through study or associating with a lawyer of established competence in the field in question. iii) Consulting another lawyer: if a lawyer retains or contracts with other lawyers outside the lawyer’s own firm to provide legal services to a client, the lawyer should obtain informed consent. iv) Continuing legal education: a lawyer should keep up with changes in the law and must keep up with any continuing legal education programs required by the state. |
| What is required of a lawyer’s duty to exercise diligence and care? | A lawyer shall act with reasonable diligence and promptness in representing a client. i) Procrastination is not permitted because of the harm that it causes to the case and client. ii) A lawyer must control her workload so each matter can be handled competently. iii) A lawyer must also act with commitment and dedication to the interests of the client and with zeal in advocacy upon the client's behalf. A lawyer is not bound, however, to press for every advantage that might be realized for a client. Single violation of this rule is enough for disciplinary action. For example, even procrastinating on one case is enough to subject a lawyer to discipline. |
| What must a sole practitioner do to prevent potential neglect of client files in the event of death? | To prevent neglect of client matters in the event of a sole practitioner's death or disability, the duty of diligence requires that each sole practitioner prepare a plan 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. |
| How is civil liability different from a disciplinary action? | A civil case is brought in civil court (rather than a before a disciplinary board) by an injured plaintiff (rather than a state bar) and the purpose is to benefit the plaintiff (rather than punish an attorney). |
| What must a client show to establish a claim for malpractice against a lawyer? | A plaintiff must establish duty, breach, cause, and harm. (1) Duty: A lawyer owes a duty of care to act as a reasonably competent and diligent attorney would owe in similar circumstances. This duty is owed to a client (or potential client if the attorney did not make it clear that the attorney was not representing the client). (MPRE Tip: the attorney can be liable for negligence of others (i.e., secretary, law clerk, etc.)!) (2) Breach: an attorney is not liable for a mere “error in judgment” so long as the judgment was reasonable. (3) Cause: The plaintiff must prove that the injury would not have happened but for the defendant’s negligence, and that such injury was foreseeable. (4) Damages: the plaintiff must prove damages. |
| Is a lawyer civilly liable to nonclients? | Yes, a lawyer may be civilly liable to non-clients. A lawyer owes a duty of care to intended third party beneficiaries. Thus, if the lawyer negligently fails to properly draft a will or contract making a specified person the beneficiary, that beneficiary can sue even though they were not the lawyer’s client. |
| Must a lawyer obtain malpractice insurance? | Insurance is not required under the MRPC. |
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