Competence & Malpractice · 6-12% of the exam

Night-before checklist

Chapter 12 · 6 items

Six points, and the fifth is the one that states a Model Rule:

Malpractice requires duty, breach, causation, and damages; a well-informed error of judgment does not satisfy the breach element.
In a litigation-failure case, the plaintiff must also prove the underlying claim would have succeeded; a meritless underlying case means no civil recovery even if discipline is warranted.
Every partner in a general partnership is jointly and severally liable for a co-partner's malpractice in the ordinary course of firm business, regardless of management role.
Intended beneficiaries and persons invited to rely on the work may sue without privity; so may a prospective client given advice absent a clear disclaimer, and an outsider who reasonably relied on an unauthorized act.
A prospective liability cap requires an independently represented client; settling with an unrepresented client or former client requires written notice that independent counsel is advisable and a reasonable opportunity to seek it.
The ABA Model Rules do not require malpractice insurance; any disclosure requirement is state law only.

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