Competence & Malpractice · 6-12% of the exam
12.2.1Firm and Vicarious Liability
Why
A client injured by one lawyer's error usually engaged a firm rather than an individual, and the firm is where the supervision and the resources sit. Spreading exposure across the people who share in the practice gives the firm a reason to police its own work, and gives the injured client someone solvent to recover from.
Plain English
The firm answers in damages when a lawyer or staff member causes harm doing routine firm work or acting under firm authorization. In a general partnership every partner is jointly and severally liable for a co-partner's negligence in the ordinary course of business, whatever their management role. A limited liability entity can cut off a non-negligent partner's exposure, but personal responsibility survives for one's own conduct and for conduct one supervised.
Firm and vicarious liability
Four points on firm exposure, and the middle two turn on the firm's form:
- The firm itself answers in damages when a lawyer or staff member causes harm while carrying on routine firm work or acting under firm authorization
- General partnership: every partner carries joint and several liability for a co-partner's negligent act done in the ordinary course of partnership business; a partner's role in management does not shrink that exposure
- Limited liability entity (LLP, LLC, PC): the entity form can cut off a non-negligent partner or member's exposure to another lawyer's wrongdoing; personal responsibility survives, however, for one's own conduct and for conduct one supervised; Rule 1.8 Comment [17] supplies the textual hook, since practicing in a limited-liability entity is not itself a prohibited prospective limitation of liability
- Respondeat superior: a supervising lawyer picks up liability when a paralegal, law clerk, or legal secretary commits a negligent act within the scope of employment
Example 1
Ex. 1
Tom engaged a three-partner general partnership to administer his parents' estate. One partner approved a distribution schedule with an error in the residuary clause, triggering $500,000 in avoidable estate tax. The second partner had no involvement. The third handled only firm operations. All three face joint and several personal liability. In a general partnership, every partner is personally exposed for a co-partner's negligence in the ordinary course of firm business; management role is irrelevant. Cross out what the second and third partners did with their days; the answer did not rest on it.
Trap
Trap
Questions · 2
Q 01ch12-e04
Question 1 of 2 · Rule 1.8
Alpha, Beta, and Gamma practice together as a general partnership. Alpha administered an estate for Client and approved a residuary distribution containing a drafting error, and the mistake exposed the estate to a large avoidable tax. Beta never opened the estate file and had no authority to review Alpha's work. Gamma handled only billing and office operations for the partnership and took no client matters at all. Client sued all three partners in their personal capacities for the whole loss. Beta answered that a partner who neither worked on the matter nor supervised it carries no personal exposure. Is Beta subject to civil liability?
Keys 1 to 4 choose.