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10 Cards in this Set
- Front
- Back
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What are the 4 legal theories under which X may bring a claim against L? |
1. Negligence (most common)
2. Fraud/Misrepresentation
3. Breach of Contract
4. Breach of Fiduciary Duty |
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What are the 4 elements of a malpractice suit based in negligence? |
1. Duty
2. Breach
3. Causation
4. Damages |
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What is the most important question to ask when dealing with a malpractice claim based on negligence? |
Did X receive competent representation?
YES --> NO BASIS for malpractice claim
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What is the general standard of care L owes his X's? |
The skill, thoroughness, diligence & knowledge possessed by general practitioners of ordinary skill, experience & capacity who perform similar services in the community
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When does L's responsibility to exercise reasonable care in representing X begin? |
When it's reasonable for X to rely on L to provide professional advice/perform an act for X
(doesn't matter if the X-L relationship has expressly or formally been created) |
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When does L's duty of competent representation extend to persons other than X? |
injured 3rd party may have a claim under the general principles of privity
OR
injured 3rd party is the intended beneficiary of L's acts |
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Why is it so difficult to prove the causal relationship between L's negligence & X's injury ? |
Because X has to prove two cases:
1. That L was negligent; AND
2. The outcome would have been different & more advantageous to X |
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If L is subject to discipline for violating the Model Rules, is he also necessarily liable for malpractice? |
Not necessarily
L can be liable for malpractice w/o being subject to discipline |
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When may L contract with X to limit L's prospective liability for malpractice? |
ONLY if X is represented by independent counsel in making the agreement |
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What is the difference between an agreement by X to limit L's liability for malpractice & an agreement by X to settle an existing claim for malpractice? |
Limiting Liability: Valid only if X is independently represented in making the agreement
Settling Claim: Valid if L advises X in writing that independent representation is appropriate (but NOT required) |
