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Flashcards in Final Part 3 Deck (38)
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1
Q

is a lawyer a fiduciary with regard to confidential information proved to him by his client?

A

Yes (TANTE v. HERRING)

2
Q

what must a temporary basis for practicing in a jurisdiction be? (5.5)

A

1) associated with the lawyer that is permitted to practice in the jurisdiction
2) reasonably related to a potential or pending proceeding
3) related to a pending or potential arbitration

3
Q

is there any right of federal origin that permits lawyers to appear in state courts without meeting the state’s admission requirements?

A

NO (Leis v. Flynt)

4
Q

what happens if you continue to write on the Bar after the time was up?

A

they can be denied admission to the bar with permission to apply when applicable (In re Parker)

5
Q

how does causation for breach of fiduciary duty claims work?

A

with a more relaxed “substantial factor” test when the lawyer is seeking recovery of the lawyer’s profit from the breach (Garratt v. Bryan Cave)

6
Q

are law partners vicariously liable for each other?

A

generally they are (Kansallis Finance v. Fern)

7
Q

can an applicant be denied admission because of engagement in unauthorized practice of law?

A

yes

8
Q

can applicants be rejected because of an inability to handle personal finances?

A

Yes as long as bankruptcy isn’t the only reason for the rejection (In re Anonymous)

9
Q

if an applicant fails to answer all the questions of the board candidly, both on the application and at any hearing, what happens?

A

that is a powerful indication that the applicant lacks good character needed for admission to the bar

10
Q

how does causation for transactional claims work?

A

same but/for causation standard (Viner v. Sweet)

11
Q

is criminal conviction a conclusive basis for denial from the bar?

A

no state has decided that but admission is rare (particularly for past crimes involving fraud, dishonesty, embezzlement etc.)

12
Q

how does causation work in criminal cases?

A

there are several options:

1) treat civil and criminal cases the same
2) require a criminal defendant to prove actual innocence
3) require the criminal defendant have this conviction overturned, reversed or vacated

13
Q

what creates duty for a lawyer that’s necessary for a malpractice claim?

A

the A/C relationship

14
Q

factors for liability to a lawyer of a third party (Track v. Butler) (6)

A

1) extent to which transactions was intended to effect the plaintiff
2) foreseeability of harm to the plaintiff
3) degree of certainty that the plaintiff suffered injury
4) closeness of connection between the defendant and his conduct and injury
5) policy of preventing future harm
6) extent to which profession would be unduly burdened by the theory of liability

15
Q

is expert testimony necessary to prove negligence?

A

Sometimes it is not

16
Q

do states allow liability to third parties in malpractice claims?

A

some don’t (Estate of Schneider)

17
Q

what must a bar rule be intended to do?

A

protect a person in the plaintiff’s position or be addressed to the particular harm (Smith v. Haynsworth)

18
Q

how would you establish in an A/C relationship that the actions of the lawyer were negligent?

A

if the negligence caused the plaintiff’s injury (TOGSTAD)

19
Q

what should a lawyer that is not permitted to practice in a jurisdiction not do? (5.5)

A

1) establish an office or other systematic or continuous presence in the jurisdiction for the practice of law
2) hold out to the public or otherwise represent that the lawyer is permitted to practice in that jurisdiction

20
Q

what are the elements of legal malpractice?

A

specific version of a negligence claim:

1) Duty
2) breach
3) injury
4) causation

21
Q

what does NY law allow liability from?

A

“reckless indifference to error, a pretense of exact knowledge, or an assertion of a false material fact susceptible of actual knowledge.” (SLOTKIN)

22
Q

how does a lawyer breach his duty in a malpractice claim?

A

based on a failure to act as a reasonable lawyer would in that situation

23
Q

does a lawyer have a duty to a third party that it’s not representing?

A

NO (Petrillo v. Bachenberg)

24
Q

what is the injury in a lawyer malpractice claim?

A

some harm to the client - a judgment was entered that should have been, or a judgment was not entered that should have been

25
Q

can an applicant be declined if a student had an unsatisfactory history for student loans?

A

They may be. (In re CRW)

26
Q

Under Friedman, is a client’s constitutional rights violated if the lawyer works full time in Virginia, which has a residency requirement but lives in another state and gets denied admission to the bar?

A

Yes

27
Q

if the attorney does nothing to induce reasonable reliance by a third party, is there a relationship to substitute for privity requirement in malpractice?

A

NO (Banco Popular)

28
Q

are applicants with criminal conduct excluded from the bar?

A

Traditionally, yes even if the allegations did not lead to conviction

29
Q

will an applicant be denied from the board if they didn’t pay state or local taxes?

A

Yes (Florida Board of Examiners)

30
Q

how does one prove legal malpractice?

A

by demonstrating that the attorney is not act as a reasonable attorney would have acted under the circumstances

31
Q

what is the causation in a lawyer malpractice claim?

A

negligence of the attorney is the thing that caused the harm; the client would have received the favorable position/result but for the negligence of the attorney

32
Q

what are at least 3 answers of what impact ethical rules have on a malpractice action?

A

1) is evidence relevant to the applicable standard of care? (majority position)
2) constitutes negligence per se (proof of violation of rule is sufficient to show malpractice)
3) creates a rebuttable presumption of negligence

33
Q

if negotiations don’t reach the stage where there is a bargaining process of offers and counteroffers, does that make it any less of a negotiation?

A

NO (Professional Adjusters, Inc. v. Tandon)

34
Q

what is the key consideration when deciding the liability of a third party?

A

whether the attorney is acting at the direction or on behalf of the client to benefit or influence a third party (IN RE ESTATE OF POWELL)

35
Q

what may a lawyer permitted to practice in another United States jurisdiction, and not disbarred or suspended permitted to provide?

A

legal services on a temporary basis (5.5)

36
Q

are expungement or concealment of criminal conviction sufficient reasons for omitting reference to it from the Bar application without express permission to do so?

A

NO (KENTUCKY BAR ASS’N)

37
Q

will one be rejected to the bar for failure to show that admission to the bar would not be detrimental to the integrity of the bar or the public interest?

A

Yes (In re PRAGER)

38
Q

what can states do to allow lawyers to temporarily practice in their jurisdiction and will it violate the lawyer’s constitutional rights?

A

admit lawyers pro hac vice and it will not violate the lawyer’s constitutional rights. (Leis v. Flynt)