MPRE- COMPETENCE, LEGAL MALPRACTICE, AND OTHER LIABILITY QUESTIONS WITH CORRECT ANSWERS

MPRE- COMPETENCE, LEGAL MALPRACTICE, AND OTHER LIABILITY QUESTIONS WITH CORRECT ANSWERS Malpractice is civil liability which a lawyer who violates an ethics and is subject to discipline may also be subject to. While sanctions for violation of the disciplinary rules are aimed at punishing a lawyer and protecting the public from future violations, damages for malpractice compensate an injured client or third party. A malpractice action is brought in a civil court and is prosecuted by the injured client or third party. True or False: A violation of a rule professional responsibility automatically results in malpractice liability. - Answer-False. The mere violation of a rule of professional responsibility does not automatically result in a finding of malpractice. It is not negligence per se. Violation of a rule is, however, generally treated as evidence that the lawyer's conduct violated the duty of care (in other words, it is not dispositive but it is indicative of malpractice). What are some common theories on which to base a malpractice claim? - Answer-1) Breach of contract for not fulfilling a duty 2) Breach of the fiduciary relationship between the lawyer and the client (e.g., loyalty, confidentiality, honesty, fair dealing). 3) Intentional tort (e.g., intentional infliction of emotional distress, malicious prosecution, abuse of process) 4) Negligence What 4 things must an aggrieved client demonstrate to establish a malpractice claim based on negligence? (i.e., the four elements of negligence) - Answer-1) Duty of care: Unless properly disclaimed, a lawyer must exercise any special skill he has in addition to the general duty of care to exercise competence and diligence exercised by lawyers of similar experience under similar conditions; 2) Breach of duty of care; 3) Causation: The client must establish that but for the lawyer's breach, the client's injury would not have occurred, and that it is reasonable to hold the lawyer responsible for the injury caused; and 4) Actual damages: The client must demonstrate that she suffered actual damages, such as money that was lost as a result of losing the case due to the lawyer's actions.