Law Firms & Associations Flashcards

Question

An attorney entered into a partnership with a certified financial planner. The partnership provided legal advice from the attorney and financial advice from the certified financial planner to families struggling with elder care and estate-planning issues. The financial planner provided only financial advice and tried to adhere to the state’s code of conduct for financial planners, and the attorney tried to adhere to his obligations under the Model Rules. Is the attorney subject to discipline under the Model Rules of Professional Conduct? A Yes, because the attorney formed a partnership with a nonlawyer. B Yes, because the partnership provides legal advice. C No, because the financial planner is trying to adhere to her respective code of conduct. D No, because the financial planner did not provide legal advice.

Answer 1

B Yes, because the partnership provides legal advice. Answer option B is correct. Model Rule of Professional Conduct 5.4(b) prohibits a lawyer from entering into a partnership with a nonlawyer if any of the partnership’s activities consist of the practice of law. Here, the attorney and certified financial planner, a nonlawyer, have entered into a partnership. One of the activities of the partnership is providing legal advice to families. Therefore, the attorney is subject to discipline for violating Model Rule of Professional Conduct 5.4(b). Answer option A is incorrect because it states the prohibition in Rule 5.4(b) too broadly. The rule does not bar all lawyer partnerships with nonlawyers; only partnerships which provide legal advice are prohibited. For example, Rule 5.4(b) permits a lawyer to enter into a partnership with a nonlawyer to open a restaurant. Answer option C is incorrect because the fact that the certified financial planner is attempting to comply with her own ethical rules does not bear on whether the attorney here has complied with Model Rule 5.4(b). Answer option D is incorrect because Rule 5.4(b) assesses the activities of the partnership as a whole, not the individual responsibilities of the lawyer and the nonlawyer partners. The rule is intended to maintain a lawyer’s professional independence. A nonlawyer partner entitled to share in fees earned from legal services is likely to attempt to maximize those fees, which might lead to inadequate legal services

Answer 2

A Yes, because the attorney is helping the bank practice law. Answer option A is correct. Under Model Rule 5.5(a), a lawyer may not aid another in the unauthorized practice of law. Here, by giving advice and working out details regarding the wills, the bank officers are engaged in law practice, and the attorney is helping them to do so by preparing the necessary documents. Answer option B is incorrect because the bank’s requests for work would not restrict the attorney’s practice in a way that violates the Model Rules (note that restrictions on practice that violate the Model Rules are contained in Model Rule 5.6 and are not covered in this chapter). Answer option C is incorrect because the issue is that the attorney is helping the bank officers practice law. It is irrelevant that she is free to do other things as well. Answer option D is incorrect because the fact that customers aren’t paying the attorney a fee does not change the analysis. Clearly the attorney is being compensated by the bank with free office space.

Answer 3

B Yes, because she is giving legal advice at the clinic. Answer option B is correct. Because the attorney is not licensed in her new state, she is violating Model Rule 5.5(a) by practicing law without a license. Answer option A is incorrect because, while the attorney is giving advice in other areas of the law in which she may be less experienced, this is not in itself a violation of the Model Rules. Answer option C is incorrect because the attorney is still practicing law without a license even if she is only volunteering. Answer option D is incorrect because there is no Model Rule allowing people to practice law without a license simply because they are doing so for a charity.

Answer 4

A Yes, because the attorney was not licensed in the state. Answer option A is correct. The attorney violated Model Rule 5.5(a), which prohibits the unlicensed practice of law, because the attorney was not licensed in the state where the criminal charge was being prosecuted. Answer option B is incorrect because the relevant issue is that the attorney was practicing law without a license. The seriousness of the charge against the friend is irrelevant. Answer option C is incorrect because, while the Model Rules allow an attorney to practice in another state if he or she associates with a lawyer licensed in that state, the Model Rules require that other lawyer to be an active participant in the case. Here, the lawyer licensed in the state did not participate in the case after his injury. Answer option D is incorrect. Beware of “no harm, no foul” answer choices. While the attorney seems to have done a good job (even if her friend was convicted), this does not change the fact that the attorney was practicing law without a license.

Answer 5

C Yes, because the attorney did not help the associate with the case. Answer option C is correct. An attorney who has supervisory authority over another lawyer must make reasonable efforts to ensure that the other lawyer is competent in his or her representation and is following the Model Rules of Professional Conduct. Model Rule 5.1. Here, the associate had never tried a case and was unsure whether she knew everything she needed to know. Even so, the attorney supervising her made no effort to help, which is a violation of the Model Rules. Answer option A is incorrect because the client’s agreement to the representation does not excuse the supervising attorney’s failure to supervise the associate. Answer option B is incorrect because even though the associate is a member of the bar, she is still an inexperienced lawyer who felt unable to successfully represent the client. Answer option D is incorrect because the outcome of the case does not affect the analysis.

Answer 6

A Yes, because the associate was left unsupervised. Answer option A is correct. Under Model Rule of Professional Conduct 5.1, all individual partners in a law firm are required to ensure that the firm has measures in place to provide reasonable assurances that all firm lawyers conform to the Model Rules. Specifically, the Model Rules require lawyers to be competent in their representations. Here, the firm didn’t appear to be doing anything to supervise its newly hired graduates. Consequently, as a partner in the firm, the partner has violated the Model Rules individually. Answer option B is incorrect. While the partner was the primary handler of contractual disputes, the fact that the associate was working on a contractual dispute does not make the partner uniquely responsible for the associate’s mistake. Answer option C is incorrect because the partner’s lack of supervision is not excused by the fact that the associate failed to ask for help. Answer option D is incorrect because the Model Rules specifically state that all partners in a law firm are individually responsible for the supervision of subordinate lawyers.

Answer 7

A Yes, because he did not supervise the associate in the case. Answer option A is correct. As the associate’s supervisor, the attorney had a duty to properly supervise the work of the less-experienced associate. Model Rule 5.1. Importantly, the associate had never conducted a trial, was unfamiliar with the relevant law and procedure, and believed that she did not have the time to become familiar with the relevant law and procedure. By leaving the associate on her own without supervision, the attorney violated the Model Rules. Answer option B is incorrect because Model Rule 5.1 does not impose different supervisory standards for criminal cases over other types of legal matters. Answer option C is incorrect because, while the attorney may have closely supervised the associate’s work for a year, this did not excuse the attorney’s later lack of supervision. Answer option D is incorrect because the applicability of Model Rule 5.1 does not rest on the outcome of the legal matter. An attorney can still violate the Model Rules even if everything works out for the client, so avoid such “no harm, no foul” answer choices.

Answer 8

B Yes, because the associate added facts to the affidavit, signed it with the witness’s name, and filed it with the court. Answer option B is correct. The associate clearly violated the Model Rules by forging the witness affidavit. Even though the partner told her to do it, the associate should have known that the forgery was a violation of the Model Rules and that she would not avoid disciplinary action simply because she was following the partner’s orders. Model Rule 5.1 cmt. 8. Answer option D is necessarily incorrect for the same reason. Answer option A is incorrect because, while the firm may have violated the Model Rules by almost costing the client the claim, there was no indication that the associate committed any rules violations that led to the tight deadline. Answer option C is incorrect because, while the client may have been harmed by the missed deadline, this does not excuse the associate’s forgery.

Answer 9

C No, because the attorney reasonably relied on his supervisor’s advice on a close legal question. Answer option C is correct. Under Model Rule 5.2, a subordinate lawyer will not face discipline if he or she reasonably relies on a supervisory attorney’s advice regarding a close legal question. Here, while the state’s highest court had rejected the claim, other state courts had stated that they might recognize it, so it appears the supervisor was correct in his assessment that this was a close legal question. Consequently, the attorney could rely on his supervisor’s advice regarding whether the claim violated the Model Rules. Answer options A and B are incorrect because the appropriateness of the claim appears to be a close legal question, and the Model Rules allow a subordinate lawyer to rely on his or her supervisor’s advice in such situations. Answer option D is incorrect because the simple fact that the attorney’s supervisor gave him bad advice would not have excused the attorney if making the claim had been an obvious violation of the Model Rules.

Answer 10

D Yes, because the attorney’s actions were dishonest. Answer option D is correct. Under Model Rule 8.4(c), professional misconduct is any conduct “involving dishonesty, fraud, deceit, or misrepresentation.” Here, knowingly filing the false documents clearly falls under this prohibition. Answer option A is incorrect because the Model Rules place no geographical limitations on actionable misconduct. Consequently, even though the conduct was in another state, the attorney could still be subjected to discipline from his home bar. Answer option B is incorrect because Model Rule 8.4 Comment [2] notes that a lawyer can still be subject to discipline even for actions that do not arise from the lawyer’s actual practice. Answer option C is incorrect because the attorney’s violation of the Model Rules is not dependent upon whether he was convicted of a crime.

Answer 11

D Yes, because the partner told the associate that he was right to follow the client’s wishes. Answer option D is correct. Under Model Rule of Professional Conduct 5.1(c), a lawyer violates the Model Rules if he or she ratifies a subordinate lawyer’s misconduct. Here, the associate forged documents, and the partner told him he was right to do so. Answer option A is incorrect because the partner still violated the Model Rules by ratifying the forgeries even if he did not know about it earlier. Answer option B is incorrect because a lawyer cannot avoid discipline for violating the Model Rules simply because he or she acted at the behest of a client. Answer option C is incorrect because it is too broad. Specifically, the partner would not be responsible for the associate’s misconduct unless he ordered it, ratified it, or failed to take reasonable measures to ensure that the associate abided by the Model Rules.

Answer 12

A Yes, because she followed the supervising attorney’s orders. Answer option A is correct. Under Model Rule of Professional Conduct 5.2(b), “a subordinate lawyer does not violate the Rules of Professional Conduct if that lawyer acts in accordance with a supervisory lawyer’s reasonable resolution of an arguable question of professional duty.” However, if a question can only be answered one way, a lawyer has a duty to abide by the Model Rules. Here, the supervising attorney told the associate that the documents should be produced, but ordered the associate not to produce them because they could hurt the client’s case. Under these circumstances, the associate clearly knew removing the documents violated the Model Rules and could not avoid discipline simply because she was following orders. Answer option B is incorrect because the issue here isn’t that the associate failed to ask another lawyer about the situation; the issue is that the associate followed advice that she knew violated her ethical duty. Answer option C is incorrect because the associate knew that failing to produce the documents violated her duties as a lawyer. Answer option D is incorrect because the fact that the plaintiff could find the information from other sources does not cure the associate’s ethical violation.

Answer 13

B Yes, because the experienced attorney did not visit the office or inquire about pending matters. Answer option B is correct. Under Model Rule of Professional Conduct 5.1, a supervisory lawyer must make “reasonable efforts” to ensure that subordinate lawyers comply with the Model Rules. Here, the associate knowingly stalled several adoption cases for over a year, a clear violation of Model Rule 1.3’s requirement that a lawyer “act with reasonable diligence and promptness in representing a client.” Importantly, the experienced attorney did not visit the office or inquire about pending matters, which clearly shows that he made absolutely no effort, let alone a reasonable one, to ensure that the associate complied with the Model Rules. Answer option A is incorrect because if the experienced attorney had actually made “reasonable efforts” to supervise the associate, the experienced attorney would not face discipline, regardless of the associate’s conduct. Importantly, answer option A is an overbroad statement of the experienced attorney’s responsibility. Answer option C is incorrect because the experienced attorney would not avoid discipline simply because the associate failed to reveal that he was overwhelmed. Answer option D is incorrect because, even though the associate had practiced on his own, the experienced attorney still had a duty to supervise him and make sure he abided by the Model Rules.

Answer 14

B Yes, because the businessman was not licensed by the state bar. Answer option B is correct. Model Rule of Professional Conduct 5.5(b) prohibits a lawyer from helping a nonlawyer in the unauthorized practice of law. Here, the businessmen had gone to law school but was not licensed by the state bar. The businessman therefore engaged in the unauthorized practice of law by providing legal advice to small business owners about licenses, zoning, taxes, and other business-related matters. The licensed attorney helped the businessman in the unauthorized practice of law by drafting forms and memoranda and presenting at these workshops. For this reason, the attorney is subject to discipline. Answer option A is incorrect because distributing information about the law to nonclients is not prohibited by the Model Rules of Professional Conduct. Answer option C is incorrect because the businessman is engaged in the unauthorized practice of law regardless of whether he received payment for the legal advice provided at the workshops. Answer option D is incorrect because the fact that the attorney attended the workshop to explain the forms and documents he had prepared supports the opposite conclusion, that the attorney assisted the businessman in the unauthorized practice of law.

Answer 15

C Yes, because the attorney practiced law in a state where he was not licensed. Answer option C is correct. Under Rule 5.5 of the Model Rules of Professional Conduct, a lawyer is prohibited from practicing law in a jurisdiction where he or she is not admitted. Here, by giving his friend legal advice, writing letters to the state appealing his friend’s benefits denial, and presenting himself in those letters as a lawyer, the attorney was practicing law in a state where he was not licensed to practice. Answer option A is incorrect because the attorney was still practicing law even if he did not make any appearance before a tribunal in the state. Answer option B is incorrect because he was still practicing law even if he did not claim to be a member of the state’s bar. Answer option D is incorrect because the issue is not the attorney’s lack of experience in this area of the law; the issue is that he was practicing law without a license.

Answer 16

D No, because the attorney supervised and retained responsibility for the paralegal’s work Answer option D is correct. Comment 2 to Rule 5.5 of the Model Rules of Professional Conduct states that a lawyer is not prohibited from “employing the services of paraprofessionals and delegating functions to them, so long as the lawyer supervises the delegated work and retains responsibility for their work.” Here, the question notes that the attorney supervised the paralegal and that the paralegal stated (as required by the attorney) that he was acting at the behest of the attorney and that any questions should be directed to the attorney herself. Consequently, answer options A and B are incorrect. Answer option C is incorrect because if the attorney had not been supervising the paralegal and retaining responsibility, the fact that the paralegal stated in the letters that he wasn’t a lawyer would not protect the attorney from potential discipline.

Answer 17

C No, because the lawyer reasonably believed that she would be admitted in the other state. Answer option C is correct. In general, practicing law means applying the law to a specific set of facts, or exercising professional legal judgment. A lawyer is not allowed to practice law in jurisdictions in which the lawyer is not licensed. See Model Rules of Prof'l Conduct r. 5.5. However, under Model Rule of Professional Conduct 5.5(c)(2), a lawyer who reasonably expects to be admitted pro hac vice in a jurisdiction where the lawyer is not licensed does not violate the Model Rule if he or she does preliminary legal work on the matter (e.g., client meetings, witness interviews, or reviewing documents). Here, the attorney was not licensed in the jurisdiction in which she was interviewing witnesses and potential clients. Both types of interviews could qualify as the practice of law, depending on the jurisdiction and the circumstances. Accordingly, it is very possible that the lawyer was practicing law in the jurisdiction, without a license. However, the lawyer did not violate the Model Rules, because: (1) her belief that she would be admitted was reasonable and (2) she was merely doing preliminary work on the matter (i.e., interviewing potential clients and witnesses). Answer options A and B are necessarily incorrect for the same reason. Answer option D is incorrect because the potential violation is not dependent on the filing of the claim. An attorney may practice law (lawfully or unlawfully) without actually filing a claim in a court of law.

Answer 18

A Yes, because the attorney was not licensed in the other state. Answer option A is correct. Model Rule of Professional Conduct 5.5 prohibits a lawyer from practicing or establishing an office in a jurisdiction in which he or she is not licensed. Here, the attorney was not licensed in the other state. Answer option B is incorrect because the answer would not change if the attorney had already filed an application to practice temporarily in the jurisdiction. While Model Rule 5.5(c)(2) contains an exception for lawyers who reasonably expect to be admitted pro hac vice in a jurisdiction, there is no information in the question regarding the likelihood of the attorney’s admission. Answer option C is incorrect. While Model Rule 5.5(c)(1) contains another exception for lawyers who associate with a local lawyer who actively participates in the case, the local firm only agreed to answer any questions the attorney might have, and there is no indication that the attorney associated with the local firm. Finally, answer option D is incorrect because the fact that the attorney had represented the company for a long time does not change the analysis.

Answer 19

A Yes, because the associate changed the dates. Answer option A is correct. Under Model Rule of Professional Conduct 5.2(a), “a lawyer is bound by the Rules of Professional Conduct notwithstanding that the lawyer acted at the direction of another person.” Here, the associate committed fraud on the court by changing the dates, and he would not be protected from discipline simply because he was following the partner’s orders or because the partner had threatened to fire him if he did not follow the partner’s orders. Answer options C and D are necessarily incorrect for the same reasons. Answer option B is incorrect because the issue here is not the associate’s failure to report the misconduct; the issue is that the associate knew changing the dates amounted to professional misconduct and did it anyway.

Law Firms & Associations Flashcards

5 Series (43 cards)