CA Legal Malpractice CLS study materials

CA Legal Malpractice CLS practice questions

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Question 1Legal Malpractice Law

In a California legal malpractice action, what must the plaintiff prove to establish the duty and breach elements against the attorney?

That the attorney failed to exercise the skill, prudence, and diligence commonly possessed by other members of the profession Correct answer.
That the attorney's conduct was intentional and motivated by malice
That the attorney charged fees above the customary rate for the locality
That the attorney guaranteed a specific outcome and failed to deliver it

Explanation

An attorney owes clients the duty to use such skill, prudence, and diligence as members of the profession commonly possess and exercise. Breach is measured against that professional standard of care rather than against results or fee arrangements.

Question 2Legal Malpractice Law

A client hires a California attorney for a transaction. To recover damages for legal malpractice, the client must show that the attorney's negligence was what?

Connected to the harm only by temporal proximity
A substantial factor in any harm the client suffered, regardless of foreseeable consequences
The sole cause of the harm, excluding any conduct by third parties
The actual and proximate cause of the client's injury Correct answer.

Explanation

Legal malpractice is a tort requiring the plaintiff to prove causation in the ordinary tort sense: the attorney's breach must be both an actual cause and a proximate cause of the claimed injury. Foreseeability limits proximate cause. Temporal proximity alone is insufficient.

Question 3Legal Malpractice Law

In a California legal malpractice case arising from litigation, the plaintiff generally must prove which of the following?

That the court in the underlying case committed reversible error
That the opposing party acted in bad faith during the underlying case
That the plaintiff would have obtained a better result but for the attorney's negligence Correct answer.
That the attorney's error was the most significant factor in the litigation

Explanation

This is the case-within-a-case requirement: the plaintiff must show that but for the attorney's negligence, the client would have obtained a more favorable judgment or outcome. It requires proving the merits of the underlying matter.

Question 4Legal Malpractice Law

What is the general statute of limitations for a legal malpractice action in California?

Three years from the date the attorney-client relationship ends
One year from the date the plaintiff discovers the injury, with an outer limit of four years from the wrongful act Correct answer.
Two years from the date of the wrongful act, with no discovery rule
Four years from the date the plaintiff first consulted the attorney

Explanation

California applies a one-year limitations period running from discovery of the facts constituting the cause of action, subject to an outer four-year limit measured from the date of the wrongful act. This is codified in Code of Civil Procedure section 340.6.

Question 5Legal Malpractice Law

In California, which of the following is a recognized exception to the requirement that a legal malpractice plaintiff prove actual injury?

The attorney billed the client for unnecessary work
The client suffered emotional distress from the attorney's rude behavior
The attorney's conduct resulted in the client being deprived of a defense in the underlying action Correct answer.
The attorney withdrew from representation without the client's consent

Explanation

California recognizes a narrow exception where the attorney's negligence results in the client losing a defense in the underlying litigation, as where a default is entered. In that situation the client need not prove the case-within-a-case.

Question 6Legal Malpractice Law

A California attorney represents a client in a personal injury matter and misses the filing deadline. The client sues for malpractice. To prevail, the client must generally establish which of the following?

That the attorney admitted the deadline was missed
That the attorney had handled at least one similar case before
That the client would have prevailed in the underlying action and could have collected a judgment Correct answer.
That the client paid all fees owed under the retainer agreement

Explanation

The client must prove the case-within-a-case: that the underlying claim was meritorious and that a favorable result was obtainable. In most jurisdictions, including California, the plaintiff must also show the judgment would have been collectible, because otherwise no actual loss occurred.

Question 7Legal Malpractice Law

A California attorney simultaneously represents two clients with directly conflicting interests in the same transaction without obtaining informed written consent. Which claim is most directly implicated?

Breach of the duty of confidentiality only
Violation of the statute of frauds
Breach of the fiduciary duty of loyalty Correct answer.
Negligent hiring of an expert witness

Explanation

Representing clients with conflicting interests without informed written consent breaches the fiduciary duty of loyalty, which requires undivided loyalty and disclosure of material conflicts. Such conduct can support both disciplinary action and civil liability.

Question 8Legal Malpractice Law

A client sues a California attorney for malpractice. The attorney argues the client's own conduct contributed to the loss. How is comparative fault treated in California legal malpractice cases?

The client's fault is irrelevant because attorneys are strictly liable for errors
The client's comparative fault may reduce the attorney's liability in proportion to the client's share of responsibility Correct answer.
The client's fault is relevant only if the client signed a written waiver
The client's fault bars recovery entirely under a contributory negligence rule

Explanation

California applies comparative fault principles to legal malpractice, so a client's own negligence that contributes to the harm can reduce the attorney's liability proportionally. It does not necessarily bar recovery.

Question 9Legal Malpractice Law

Which of the following best describes the fiduciary duty an attorney owes a client under California law?

A duty owed equally to opposing parties in litigation
A duty of utmost good faith and loyalty, requiring the attorney to act in the client's best interest and disclose material information Correct answer.
A duty to follow every instruction of the client without independent judgment
A duty to maximize the client's financial recovery above all other considerations

Explanation

Attorneys act as fiduciaries, owing clients the utmost good faith, loyalty, and full disclosure of material information affecting the representation. This duty underlies claims for breach of fiduciary duty distinct from professional negligence.

Question 10Legal Malpractice Law

A California attorney settles a client's case without the client's authorization. The client sues. Which theory most directly supports the claim?

Fraudulent concealment of the settlement amount
Breach of the implied covenant of good faith and fair dealing
Negligent infliction of emotional distress
Breach of fiduciary duty and exceeding the scope of authority Correct answer.

Explanation

Settling without authority exceeds the scope of the attorney's actual authority and breaches the fiduciary duty of loyalty. The client may recover the difference between the unauthorized settlement and the result that would have been obtained with authorization.

Question 11Legal Malpractice Law

In California, an attorney's duty of confidentiality to a client is best described as which of the following?

A broad duty not to reveal client information acquired during representation, subject to limited exceptions Correct answer.
A duty that applies only to information the client expressly designated as secret
A duty that is identical in scope to the attorney-client evidentiary privilege
A duty that ends when the representation concludes

Explanation

The ethical duty of confidentiality is broader than the evidentiary privilege and continues after the representation ends. It covers all information relating to the representation, subject to recognized exceptions such as client consent or preventing certain crimes.

Question 12Legal Malpractice Law

A California attorney negligently allows a client's contract claim to be dismissed on statute of limitations grounds. The client sues for malpractice. The attorney argues the client cannot prove the underlying case would have succeeded. What must the client demonstrate?

That the attorney's error was the only reason the case was lost
That the client had already retained a second attorney before dismissal
That the underlying claim was meritorious and that a collectible judgment could have been obtained Correct answer.
That the underlying court would have awarded punitive damages

Explanation

The case-within-a-case doctrine requires the plaintiff to prove the merits of the underlying claim and that a favorable, collectible judgment would have resulted. Without such proof, causation and damages cannot be established.

Question 13Legal Malpractice Law

Which of the following is an element of a legal malpractice claim in California?

Proof that the attorney acted with gross negligence
A written fee agreement between the parties
The existence of an attorney-client relationship or a duty owed to the plaintiff Correct answer.
A prior disciplinary finding against the attorney

Explanation

A malpractice plaintiff must establish the existence of a duty, typically arising from an attorney-client relationship, along with breach, causation, and damages. Disciplinary findings, written fee agreements, and gross negligence are not required elements.

Question 14Legal Malpractice Law

A California attorney drafts a will for a client, and through negligence the intended beneficiary receives nothing. Under California law, who may generally bring a malpractice action against the attorney?

Only parties who paid the attorney's fees
Any person who knew the testator personally
Only the testator's estate, with no exceptions
An intended beneficiary of the will, under a recognized exception to the privity requirement Correct answer.

Explanation

California recognizes that intended beneficiaries of a negligently drafted will may sue the drafting attorney despite the absence of privity, because the attorney's duty extends to those the client intended to benefit. This is a limited exception to the general privity rule.

Question 15Legal Malpractice Law

In California, the attorney-client evidentiary privilege generally protects which of the following?

Confidential communications between client and attorney made for the purpose of obtaining legal advice Correct answer.
All facts the attorney learns from any source during the representation
Communications made in the presence of third parties with no confidentiality expectation
The attorney's personal notes about unrelated matters

Explanation

The privilege protects confidential communications between client and attorney made to obtain or provide legal advice. It does not protect underlying facts, and communications made without an expectation of confidentiality generally fall outside it.

Question 16Legal Malpractice Law

A California attorney fails to inform a client of a settlement offer, and the offer lapses. The client later learns of it and sues. Which element is most likely to be disputed?

Whether the client had an attorney-client relationship
Whether the attorney's failure caused the client to lose a beneficial settlement Correct answer.
Whether the attorney owed the client a duty of care
Whether the attorney maintained professional liability insurance

Explanation

The duty and relationship elements are usually clear; the contested issue is causation and damages, meaning whether the client would have accepted the offer and whether the settlement would have been more favorable than the eventual outcome.

Question 17Legal Malpractice Law

Which of the following best describes the role of expert testimony in a California legal malpractice trial?

It is never admissible because attorneys judge their own conduct
It is required only to prove damages
It is admissible only if the expert is a sitting judge
It is generally required to establish the standard of care and breach unless the conduct is within common knowledge Correct answer.

Explanation

Expert testimony is ordinarily necessary to establish the professional standard of care and whether the attorney breached it, because these matters are beyond lay understanding. An exception exists where the negligence is so obvious that a layperson could recognize it.

Question 18Legal Malpractice Law

A California client and attorney enter a fee agreement containing a provision that the attorney is not liable for any negligence. How will a court most likely treat this provision?

It is generally unenforceable as against public policy to the extent it exempts the attorney from liability for malpractice Correct answer.
It is enforceable only if the client is a corporation
It is fully enforceable because parties may contract as they wish
It converts the malpractice claim into a breach of contract claim

Explanation

Provisions purporting to exempt an attorney from liability for future malpractice are generally void as against public policy. Attorneys may limit the scope of representation, but they cannot contract away liability for their own negligence.

Question 19Legal Malpractice Law

California attorney-client fee disputes are often resolved through which mechanism?

Mandatory fee arbitration under the State Bar's program, if the client elects it Correct answer.
Small claims court exclusively
Binding arbitration before the local bar association with no right to trial de novo
Mediation that is binding on both parties

Explanation

California provides for mandatory fee arbitration when a client requests it, with the attorney generally required to participate. A party dissatisfied with the award may seek a trial de novo within the statutory period.

Question 20Legal Malpractice Law

An attorney's negligent failure to file a timely appeal results in the client's loss of the appeal. In the resulting malpractice action, the client must generally show which of the following?

That the appellate court would have granted a new trial automatically
That the attorney had never lost an appeal before
That the client paid the appellate filing fee
That the appeal would have resulted in a reversal or other favorable outcome Correct answer.

Explanation

The client must prove the case-within-a-case for the appeal: that but for the missed deadline, the appellate court would likely have reversed or otherwise provided relief. Speculation about appellate outcomes is insufficient.

Question 21Legal Malpractice Law

A California attorney discovers during representation that the client intends to commit perjury. What is the attorney's most appropriate course of action consistent with ethical duties?

Attempt to persuade the client to testify truthfully and, if unsuccessful, seek to withdraw or take other permitted remedial steps Correct answer.
Immediately disclose the client's intent to the opposing party without any further steps
Assist the client in presenting the false testimony to protect confidentiality
Continue the representation without addressing the issue

Explanation

An attorney may not knowingly present false evidence. The attorney must first counsel the client to testify truthfully; if the client refuses, the attorney may seek to withdraw and must take reasonable remedial measures, subject to confidentiality limits.

Question 22Legal Malpractice Law

In a California legal malpractice action, how is the measure of damages generally calculated when the attorney's negligence caused the loss of a meritorious claim?

The client's emotional distress damages regardless of economic loss
The attorney's total fees plus a fixed statutory penalty
The full amount the client originally demanded in the underlying complaint
The amount of the judgment that would have been obtained, reduced by the amount actually recovered and any collectibility limitations Correct answer.

Explanation

Damages are measured by the value of the lost claim, typically the judgment the client would have recovered, offset by amounts actually recovered and limited by collectibility. The goal is to place the client in the position it would have occupied absent the negligence.

Question 23Legal Malpractice Law

A California attorney represents a client in a matter and, after the representation ends, uses confidential information from the representation to benefit a new client adverse to the former client. Which claim is most directly supported?

Breach of the continuing duty of confidentiality owed to the former client Correct answer.
Breach of the duty of candor to the tribunal
Violation of the statute of limitations
Negligent misrepresentation to the new client

Explanation

The duty of confidentiality continues after the representation ends, and using a former client's confidences to that client's disadvantage breaches that duty. The former client may seek relief, including disqualification of the attorney in the adverse matter.

Question 24Legal Malpractice Law

Which of the following best states the difference between a legal malpractice claim and a breach of fiduciary duty claim against an attorney in California?

Malpractice focuses on negligent failure to meet the professional standard of care, while breach of fiduciary duty focuses on disloyalty or self-dealing Correct answer.
Malpractice requires intent, while breach of fiduciary duty requires only negligence
Malpractice applies only to litigation, while fiduciary duty applies only to transactions
The two claims are identical and cannot be pleaded together

Explanation

Legal malpractice sounds in professional negligence and requires a breach of the standard of care, while breach of fiduciary duty addresses violations of loyalty such as self-dealing or conflicts. The two theories can be pleaded together and have different elements and remedies.

Question 25Legal Malpractice Law

In California, when does the statute of limitations generally begin to run for a legal malpractice claim?

On the date the attorney is first retained
On the date the State Bar opens an investigation
When the plaintiff discovers, or through reasonable diligence should discover, the facts constituting the wrongful act Correct answer.
On the date the underlying case is filed

Explanation

The one-year period generally runs from actual or constructive discovery of the facts constituting the cause of action. The plaintiff need not know the legal theory, but must have reason to suspect the injury and its cause.

Question 26Legal Malpractice Law

Under California law, what is the primary source of an attorney's duty of care to a client?

The expectations stated in the client's engagement letter
The standard of care owed by a similarly situated attorney in the same or similar community Correct answer.
The personal moral standards of the individual attorney
The fee amount charged for the representation

Explanation

California measures an attorney's duty of care against what a reasonably careful attorney of ordinary skill would do in similar circumstances. The benchmark is professional competence, not the attorney's personal ethics, the client's expectations, or the fee charged.

Question 27Legal Malpractice Law

In a California legal malpractice action, who generally bears the burden of proving that the attorney's negligence caused the client's harm?

The plaintiff client, by a preponderance of the evidence Correct answer.
The State Bar, through its disciplinary records
The attorney, because the relationship is fiduciary
The court, through its independent review of the file

Explanation

The client as plaintiff must prove each element of malpractice, including causation and damages, by a preponderance of the evidence. The fiduciary nature of the relationship does not shift the burden of proving negligence to the attorney.

Question 28Legal Malpractice Law

A California attorney is hired to handle a simple residential lease dispute. Which standard governs whether the attorney's work met the required level of care?

What a reasonably competent attorney would do in a similar matter Correct answer.
The highest level of skill of a specialist in landlord-tenant law
The level of care the client subjectively expected
Whether the client ultimately won the dispute

Explanation

An attorney is held to the skill and care ordinarily possessed by other attorneys in similar practice, not to a specialist's highest skill unless the attorney holds out as a specialist. The outcome of the case is not itself proof of negligence.

Question 29Legal Malpractice Law

In California, which party is generally required to obtain a certificate of merit before filing a legal malpractice complaint?

The plaintiff client Correct answer.
The defendant attorney
The malpractice insurer
The superior court clerk

Explanation

California requires the plaintiff in an attorney malpractice action to serve a certificate of merit, supported by consultation with an expert, declaring that the case has merit. This gatekeeping requirement protects against meritless suits and is the plaintiff's obligation.

Question 30Legal Malpractice Law

A former client sues a California attorney for malpractice. Which element must the client establish in addition to duty, breach, and causation?

That the attorney was previously disciplined
That the client suffered actual harm or damages Correct answer.
That the attorney acted with fraudulent intent
That the client paid the full fee

Explanation

Legal malpractice requires proof of actual loss resulting from the attorney's breach. Intentional fraud and prior discipline are not required elements, and payment of fees is not a prerequisite to suit.

Question 31Legal Malpractice Law

A California attorney is sued for malpractice and asserts the client consented to the challenged conduct after full disclosure. This defense is best described as which of the following?

Collateral estoppel
Comparative fault
Statute of limitations
Informed consent Correct answer.

Explanation

A client's consent to conduct that would otherwise breach a duty, given after full disclosure of the relevant facts and risks, is informed consent. It defeats liability by negating the breach rather than by showing the claim is untimely or barred.

Question 32Legal Malpractice Law

A California attorney's negligence causes a client to lose a $200,000 judgment that the client would have collected. What is the proper measure of the client's damages?

A statutory penalty set by the State Bar
The client's emotional distress alone
The amount the client would have recovered but for the negligence Correct answer.
The attorney's fee for the matter

Explanation

Damages in a legal malpractice case are measured by the value of the lost claim or opportunity, meaning what the client would have obtained absent the negligence. The fee and any disciplinary penalty are not the measure of compensatory harm.

Question 33Legal Malpractice Law

Which of the following best describes the fiduciary duties a California attorney owes a client?

Duties that apply only when the client pays a retainer
Duties that arise only after litigation is filed
Duties that are owed primarily to the opposing party
Duties of loyalty and good faith that require the attorney to act in the client's best interest Correct answer.

Explanation

California attorneys owe fiduciary duties of loyalty and good faith, requiring them to place the client's interests above their own in matters affecting the representation. These duties arise from the relationship itself, not from filing a case or receiving payment.

Question 34Legal Malpractice Law

In California, a malpractice plaintiff must generally present expert testimony on which issue?

Whether the attorney's office was properly licensed
Whether the client actually signed the retainer agreement
Whether the attorney's conduct fell below the professional standard of care Correct answer.
Whether the client can afford further litigation

Explanation

Expert testimony is ordinarily required to establish the professional standard of care and whether the attorney's conduct breached it, because these matters are beyond common knowledge. Factual questions like signing a retainer or licensing are not the target of such expert proof.

Question 35Legal Malpractice Law

A California attorney negligently misses a deadline, and the client's case is dismissed. The client later sues. To prove causation, the client must generally show which of the following?

That the client complained to the State Bar
That the attorney intended to harm the client
That the attorney charged an unreasonable fee
That the client would have prevailed but for the attorney's negligence Correct answer.

Explanation

Causation in a missed-deadline malpractice case requires the client to show the underlying claim would have succeeded absent the negligence, often called the case-within-a-case requirement. Intent to harm, fee reasonableness, and bar complaints are not substitutes for that proof.

Question 36Legal Malpractice Law

A California attorney represents a client in a business deal and also holds a personal financial stake in the counterparty. What must the attorney do to avoid a breach of the duty of loyalty?

Disclose the conflict fully and obtain the client's informed written consent Correct answer.
Reduce the fee by half for the affected matter
Resign from the representation without explanation
Keep the stake confidential to avoid influencing the client

Explanation

When an attorney has a personal interest adverse to the client, the duty of loyalty requires full disclosure of the conflict and the client's informed written consent. Concealing the interest or unilaterally altering fees does not cure the conflict.

Question 37Legal Malpractice Law

A California client discovers the attorney's malpractice more than one year after the negligent act but within one year of discovering the injury. How does the discovery rule affect the limitations period?

The limitations period may run from the date the client discovers, or should have discovered, the injury Correct answer.
The limitations period never begins until the case concludes
The claim is revived only if the attorney confesses error
The claim is time-barred because the clock always runs from the negligent act

Explanation

California applies a discovery rule so that the limitations period can begin when the client discovers, or through reasonable diligence should discover, the injury and its cause. The clock does not always run from the negligent act itself, and no confession is required.

Question 38Legal Malpractice Law

A California attorney and client have a dispute over the reasonableness of fees. Which mechanism is specifically designed to resolve such disputes?

Fee arbitration through a State Bar-approved program Correct answer.
A petition to the court that admitted the attorney to practice
A criminal complaint filed with the district attorney
A malpractice lawsuit filed by the attorney against the client

Explanation

California provides for fee arbitration through programs approved by the State Bar, allowing clients to challenge fee reasonableness without litigation. Criminal complaints and attorney-initiated malpractice suits are not the designated mechanism for fee disputes.

Question 39Legal Malpractice Law

A California attorney is sued for malpractice, and the client's own failure to provide documents delayed the case and increased the loss. What doctrine allows the attorney to reduce liability based on the client's conduct?

Statute of frauds
Comparative fault Correct answer.
Res judicata
Absolute immunity

Explanation

California recognizes comparative fault in legal malpractice, allowing the factfinder to allocate responsibility between the attorney and the client. Res judicata, immunity, and the statute of frauds do not address the client's contributing conduct.

Question 40Legal Malpractice Law

A California attorney represents a client in litigation and, after the representation ends, reveals the client's confidential information to a third party without consent. Which duty has the attorney most directly breached?

The duty to charge reasonable fees
The duty of confidentiality Correct answer.
The duty of competence
The duty of diligence

Explanation

The duty of confidentiality generally continues after the representation ends and prohibits disclosure of client information without consent. Competence and diligence concern the quality of work, and fee reasonableness is unrelated to post-representation disclosure.

Question 41Legal Malpractice Law

In a California malpractice action, the client alleges the attorney breached a fiduciary duty by self-dealing rather than by professional negligence. How does this change the analysis?

No change occurs because the elements are identical
The claim must be dismissed because fiduciaries are immune
The claim focuses on the attorney's loyalty and fair dealing rather than the professional standard of care Correct answer.
The claim requires proof of a criminal conviction

Explanation

A breach of fiduciary duty claim centers on loyalty and fair dealing, whereas professional negligence centers on whether the attorney met the standard of care. The two theories have different elements and defenses, so the distinction matters.

Question 42Legal Malpractice Law

A California attorney fails to file a timely appeal, and the client loses the chance to reverse an adverse judgment. In the malpractice action, what must the client show about the appeal?

That the client paid the appellate filing fee
That the appellate court issued a formal apology
That the appeal would probably have succeeded and produced a better result Correct answer.
That the attorney admitted the mistake in writing

Explanation

The client must prove the case-within-a-case: that a timely appeal would likely have succeeded and yielded a more favorable outcome. Payment of fees, written admissions, or apologies do not establish the lost appellate value.

Question 43Legal Malpractice Law

A California attorney learns mid-representation that the client intends to testify falsely. What is the attorney's most appropriate course of action under professional rules?

Present the testimony as offered and say nothing
Take reasonable remedial measures, including attempting to persuade the client to testify truthfully and, if necessary, withdrawing Correct answer.
Pay the opposing party to settle the matter quietly
Immediately disclose all client confidences to the opposing party

Explanation

When a client intends to commit perjury, the attorney must take reasonable remedial measures, first attempting to persuade the client to testify truthfully and, if that fails, seeking to withdraw or disclose as permitted. Presenting known false testimony violates professional duties.

Question 44Legal Malpractice Law

A California attorney drafts a will that negligently fails to include a named beneficiary, who then receives nothing. Under California law, who may generally sue the attorney?

Only the attorney's malpractice insurer
Only the testator's estate
The intended beneficiary who suffered the loss Correct answer.
Any person named in the will

Explanation

California permits intended beneficiaries of a negligently drafted will to sue the drafting attorney for malpractice even absent privity, because the attorney's duty extends to those the client intended to benefit. The estate and unrelated will nominees generally lack that direct claim for the lost bequest.

Question 45Legal Malpractice Law

A California attorney settles a client's case for an amount the client never authorized. Which cause of action most directly addresses the attorney's conduct?

Legal malpractice based on the standard of care
Breach of contract for failing to file a motion
Breach of the fiduciary duty of loyalty Correct answer.
Negligent infliction of emotional distress

Explanation

Settling without authority is an unauthorized act that breaches the attorney's duty of loyalty and exceeds the scope of authority. While negligence theories may sometimes be pleaded, the core wrong is disloyalty and lack of authorization rather than a failure of professional skill.

Question 46Legal Malpractice Law

A California attorney is considering whether to reveal a client's past crime that the attorney learned during representation. Which principle governs the decision?

The duty of confidentiality generally bars disclosure absent an exception or client consent Correct answer.
The attorney must always report any past crime to law enforcement
The attorney must disclose only if the crime was a felony
The attorney may disclose freely because the representation has ended

Explanation

Confidentiality protects information learned during the representation and generally prohibits disclosure of past crimes without consent or a recognized exception. There is no general duty to report a client's past crimes, and the felony/nonfelony distinction does not create one.

Question 47Legal Malpractice Law

In a California legal malpractice case, the plaintiff and defendant each submit conflicting expert declarations on the standard of care. What is the trial court's proper role at summary judgment?

Grant summary judgment for the attorney because experts always conflict
Appoint a neutral expert to decide the case
Weigh the experts' credibility and choose the more persuasive opinion
Deny summary judgment if a triable issue of material fact exists on the standard of care Correct answer.

Explanation

At summary judgment the court does not weigh credibility or resolve conflicting expert opinions; it determines only whether a triable issue of material fact exists. Conflicting competent expert declarations ordinarily defeat summary judgment.

Question 48Legal Malpractice Law

A California attorney's negligence causes a client to lose a contingent opportunity whose value is uncertain. How do courts generally approach the damages calculation?

They require proof of the lost recovery to a reasonable certainty, accounting for the chance of success Correct answer.
They award a fixed statutory sum regardless of the evidence
They award the attorney's entire fee as a penalty
They deny all damages because the outcome was uncertain

Explanation

When the lost outcome is uncertain, California courts require the plaintiff to prove the fact of damages with reasonable certainty, often valuing the lost claim by weighing the probability of success. Uncertainty about the exact amount does not automatically defeat recovery, and no fixed statutory sum applies.

Question 49Legal Malpractice Law

A California attorney is retained by a client to handle a matter, and the client later claims the attorney concealed a material conflict. Which combination of theories may the client pursue?

Breach of fiduciary duty and, potentially, professional negligence if a standard-of-care breach caused harm Correct answer.
Only a disciplinary complaint, because civil remedies are unavailable
Only a claim for return of the retainer
Only a criminal fraud prosecution

Explanation

Concealment of a material conflict can support a breach of fiduciary duty claim and may also support negligence if the conduct breached the standard of care and caused harm. Disciplinary complaints, fee refunds, and criminal prosecution do not exhaust the client's civil remedies.

Question 50Legal Malpractice Law

A California attorney negligently fails to conduct discovery, and the client loses at trial. The client sues, but the attorney argues the client approved the litigation strategy. What must the attorney establish for that defense to succeed?

That the client signed a general retainer agreement
That the attorney had more experience than the client
That the client gave informed consent after full disclosure of the risks Correct answer.
That the client attended the trial

Explanation

Consent to a litigation strategy defeats a malpractice claim only if it was informed, meaning the client understood the material risks after full disclosure. A general retainer, attendance at trial, or greater experience does not establish informed consent to the specific strategy.