One recurring observation I have of my MPRE students is that test takers fail to appreciate the specifity of the call of the question. What do we mean by that?
The call of the question often helps you determine the subject, as well as the right answer. For example: The MPRE, as you know, addresses areas of judicial canons and the Model Rules of Professional Responsibility, but it also revisits Torts? What? No one ever told me torts was on the exam?! Okay, maybe not the whole gamet of torts, but one particular area tested is negligence…
Consider the following fact pattern: Prissy was injured in automobile accident by Dolly Drunk and hires attorney to litigate against Dolly Drunk. Prissy informs attorney that she is unwilling to accept less than $150,000.00 prior to trial and if the matter goes to trial she would want no less than $200,000.00 A week before trial Dolly’s counsel offers to settle case for $160,000.00 in exchange for a release and dismissal of Prissy’s pending action against Dolly. Attorney rejects the offer. The matter goes before a jury, and the jury returns a verdict of $300,000.00. Prissy later learns that the offer of settlement was never communicated to her by attorney. Infuriated, Prissy brings suit alleging civil malpractice liability. Did attorney’s actions subject her to malpractice liability?
There are several options that the Examiners could provide as possible selections in a multiple choice set up. One’s initial gut response is Yes,…. because one may remember reading Rule 1.2 which pertains to this question in pertinent part that the “…lawyer shall abide by the decisions concerning the objectives of representation and, as a result required by Rule 1.4. Rule 1.4 which further states that [a] lawyer shall (1) promptly inform the client of any decision or circumstance with respect to which the client’s informed consent, as defined in Rule 1.0(e), is required by these Rules; (2) reasonably consult with the client about the means by which the client’s objectives are to be accomplished; and (3) keep the client reasonably informed about the status of the matter. In the above fact pattern, it is safe to say that the attorney did none of that. But, the answer is No, the attorney will not be subject to liability. How can that be? Look at the call of the question. The call of the question is asking whether the attorney is subject to liability. Liability should alert you to the fact that this is a civil claim, most likely based on negligence (legal malpractice) and negligence is premised on four elements (in the context of negligence actions) Duty; Breach; Causation; and Harm/Damages. Assuming Prissy could prove the first three elements, she cannot prove damages. Recall in the fact pattern that the jury awarded he $300,000.00. Therefore, Prissy was not damaged.
How might the result of this question been different if the call of the question was is Prissy subject to discipline? The attorney most certainly WOULD have been subject to discipline.