Chapter 8 - Competence

Competence begins with ...

1. requisite legal knowledge 2. skill

What are some of the factors that may determine that one's caseload is too heavy?

1. the number of cases currently being worked on 2. the complexity of the cases 3. the degree of support provided 4. the lawyer's ability and experience 5. the lawyer's other duties, including the obligation not to overload other lawyers and staff

Malicious prosecution

A case where a lawyer can be held liable civilly for initiating a lawsuit without probable cause or continuing to prosecute a case after learning that there is no probable cause.

Certified Legal Assistant/Certified Paralegal

Certification for paralegals offered by NALA for passing the Certified Legal Assistant exam.

T or F All states allow lawyers to be sued under consumer fraud statutes that provide for damages for deceptive practices or fraud.

False

T or F Because paralegals work under the direction and supervision of lawyers, they are in a position to set the quality standards or determine firm values and culture

False

T or F Competence can be defined solely in terms of formal education and professional skill.

False

T or F NALA has an annual national education seminar and encourages their local chapters to provide frequent continuing education courses; NFPA does not.

False

T or F Paralegals are subject to discipline by the bar.

False

T or F The Florida bar requires mandatory paralegal regulation.

False

T or F The only remedy for a finding of legal malpractice is compensation to the client for losing a case in which the client would have prevailed if the lawyer had acted competent.

False

T or F Ultimately, the responsibility for the competent handling of a client matter rests with the entire firm, not just the attorney.

False

For an attorney in Florida, what is required to display competence?

Graduation from an ABA accredited law school and successful passage of the Florida bar exam.

Advises lawyers to encourage continuing education for their paralegals to assure competence.

Guideline 10 of the ABA Model Guidelines

Which states have held that lawyers are not subject to consumer fraud statutes?

Illinois, NJ, GA, New Hampshire, PA, DE, and FL

Malpractice

Improper conduct in the performance of duties by a professional either intentionally or through negligence.

Paralegals should work on ...

Improving weak skills Strengthen their natural abilities Seek work that matches their attributes

NFPA Model Code, Canon 1

Paralegals shall achieve and maintain a high level of competence through education, training, and work experience.

What would inadvertently establishing a lawyer-client relationship result in?

Possibly a malpractice suit if the client is dissatisfied with the outcome of the matter.

Which are the most common areas of practice in which malpractice claims were made over the past few years?

Real estate Family law Estate Trust and probate Collection and bankruptcy

Which elements does ABA Model Rule 1.3 add to ABA Model Rule 1.1?

Requiring lawyers to act with reasonable diligence and promptness.

What are the most common kinds of errors noted in malpractice claims over the past few years?

Substantive, administrative, and client relations, in that order.

What does the NFPA Model Code, Canon 1 "recommend"?

That paralegals participate in a minimum of 12 hours of continuing education a year and complete all assignments promptly and efficiently.

T or F A large portion of attorneys with disciplinary records have alcohol or drug dependency problems or emotional and personal problems that impair their ability to function in an ethical and effective manner.

True

T or F A recent ABA report found that real estate was the most common area of practice in which malpractice claims were made over the past few years.

True

T or F An area where third-party liability may arise is estate planning.

True

T or F Civil lawsuits have been brought by insurance companies against lawyers who represented their insured and lost.

True

T or F Electronic research has become the "standard" that lawyers are required to meet.

True

T or F Florida is one of the states that have held that lawyers are not subject to consumer fraud statutes.

True

T or F Lack of competence may result in a legal malpractice claim against the attorney.

True

T or F Most malpractice and disciplinary cases involving incompetence relate to procrastination or to lack of promptness, thoroughness, or communication.

True

T or F Paralegals are not usually named in malpractice suits.

True

T or F Paralegals, including independent contractor paralegals working under the direction of a lawyer, may be named in malpractice suits against lawyers.

True

T or F Some states allow lawyers to be sued under consumer fraud statutes that provide for damages for deceptive practices or fraud.

True

T or F Studies show that as many as 20% of disciplinary matters stem from lawyers having alcohol and substance abuse issues.

True

T or F Studies show that as many as 20% of lawyers have alcohol or substance abuse problems.

True

T or F lawsuits against lawyers have increased about 60% since the mid-1990s.

True

T ot F The principles underlying third-party liability were broadly applied during the savings and loan crisis in the 1990s in lawsuits by the federal government against lawyers who represented failed thrift institutions.

True

Too heavy a workload causes ...

a decine in productivity and quality, and increases the likelihood of shortcuts being taken and mistakes being made.

Regarding competence, define skill:

a. acquired through both formal education and training and experience on the job b. proficiency in the task at hand

Regarding competence, define thoroughness and preparation:

a. applying knowledge and skill to: i. the gathering of information ii. analysis of facts and law iii. application of judgment iv. actions

Regarding competence, define knowledge:

a. appropriate formal education or b. on the job training and c. keeping up to date with changes in the law

Regarding competence, define client communication:

a. clear and complete b. timely

Regarding competence, define diligence and promptness:

actions in a client's case must be in a timely and attentive manner

A large portion of attorneys with disciplinary records have ...

alcohol or drug dependency problems or emotional and personal problems that impair their ability to function in an ethical and effective manner.

Malpractice, in general, is defined as:

improper conduct in the performance of duties by a professional, either intentionally or through negligence.

Lawyers who give their opinions in chat rooms or on websites that provide "legal information" run the risk of ...

inadvertently establishing a lawyer-client relationship.

With a strong education, good research and drafting skills, self-confidence, and motivation, a paralegal can ...

learn how to perform assigned tasks by conducting research, finding models in firm files, and consulting with a mentor or colleague in the firm.

NALA's Code of Ethics Canon 6 ...

requires paralegals to maintain a high degree of competency.

Incompetence results in ...

sanctions

Proper delegation requires ...

selecting the appropriately skilled person for the task and giving sufficient direction to see that the finished product meets expectations.

Signs of a lawyer with an unreasonably heavy workload ...

taking on too many cases being poorly organized or managed not having an adequate staff

Lawyers are bound to represent clients competently by ...

the ethics codes and the common law rules of tort liability for professional negligence.

The ABA Model Rule 1.1 defines competency as ...

the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.

Ethics opinions advise lawyers not to accept a court appointment if ...

their workload is too heavy and to request to be withdrawn if the overload situation arises after the appointment.

What are three examples of remedies for a finding of legal malpractice?

1. compensation to the client for losing a case 2. the inability to be able to practice for a period of time 3. loss of a bar license to practice at all

What information must be given to the person who's been delegated to perform a task?

1. Background of the matter or reference to appropriate files that contain relevant information 2. An exact description of the end product desired 3. References to sources that may be of assistance 4. Deadline dates 5. An estimate of the time the task should take (if possible)

Competence requires:

1. Knowledge 2. Skill 3. Thoroughness and preparation 4. Diligence and promptness 5. Client communication

Regarding competence, what must attorneys know?

1. When not to accept a case that they are not competent to handle 2. To act with reasonable diligence and promptness

ABA Model Rule and relevant section of the ABA Model Guidelines that address the attorney's role in the responsibility of the conduct of their paralegals.

ABA Model Rule 5.3 - Guideline 1

What happened during the economic downturn that began in 2007?

Bankruptcy trustees and large investors sued lawyers for fraud and for aiding and abetting breaches of fiduciary duty.

Registered Paralegal

Certification offered by NFPA for passing the Paralegal Advanced Competency Exam.

Third-party claims

Claims by non-clients against lawyers who, in representing clients, may have caused harm to the third person.

What are some of the other ethical violations that accompany incompetence?

Commingling of funds Conversion of client trust account funds Failure to turn over client papers after representation is terminated

What can help paralegals develop and have long and satisfying careers?

Continuing education In-house training programs Mentoring

What are some examples of where third-party liability can be found?

Corporate securities work Estate Planning Real estate transactions Environmental and securities law

Competence related violations lawyers have been disciplined for that involve paralegals include ...

Failing to supervise properly Aiding in the unauthorized practice of law by allowing paralegals to give legal advice Aiding in the unauthorized practice of law by allowing paralegals to prepare legal documents without supervision or review

What element does ABA Model Rule 1.4 add to ABA Model Rule 1.1?

Lawyers must communicate competently Lawyers must inform clients promptly when a matter requires their informed consent Lawyers must reasonably consult with clients, keeping them reasonably informed Lawyers must promptly comply with reasonable requests for information

What are the consequences of a paralegal failing to act competently?

Losing one's job, reputation, and employability.

What are some examples of procrastination, lack of promptness, thoroughness, or communication?

Missing statutes of limitations Failing to proceed on a client's case after agreeing to representation Failure to return phone calls for an extended period (often because the lawyer has not taken the necessary steps to address a matter)