Model Rules Flashcards
1
Q
What is MPRC 1.1?
A
MPRC 1.1 states that a lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.
2
Q
What factors does MRPC 1.1 identify as relevant in determining whether a lawyer has sufficient knowledge and skill to provide competent representation? (Q)
A
Under MRPC 1.1, relevant factors to consider in assessing a lawyer’s knowledge and skill include:
the complexity and specialized nature of the matter,
the lawyer’s general training and experience in the relevant field of law,
the preparation the lawyer can give the matter, and
the lawyer’s ability to consult with a more experienced or competent lawyer.
3
Q
Is there a set standard for the amount of preparation a lawyer must do in a matter to provide competent representation? (Q)
A
No. There is no set standard for the amount of preparation a lawyer must do in a matter to provide competent representation. Rather, the necessary level of preparation will vary by case and client (e.g., a major litigation may require more extensive preparation than a routine, small matter). In addition, an agreement between a lawyer and a client that limits the scope of the representation might also determine how much work the lawyer must do on the matter.
4
Q
In an emergency, may a lawyer provide legal assistance even if the lawyer is not competent in the relevant area of law? (Q)
A
Yes. In an emergency, a lawyer may give limited advice or assistance in a matter in which the lawyer does not possess competence, if involving another lawyer would be impractical. However, to protect the client from the possibility of bad advice, the lawyer should provide the least amount of assistance that is reasonably needed to respond to the emergency. MPRC 1.1 Cmt 3.
5
Q
In affiliating with another lawyer to provide competent representation, should a lawyer obtain the client’s informed consent and discuss with the client how responsibility will be allocated among the lawyers? (Q)
A
Yes. In affiliating with another lawyer to provide competent representation, a lawyer should obtain the client’s informed consent and discuss with the client how responsibility for the representation will be allocated among the lawyers. This is especially important if the affiliated lawyers will provide services in other jurisdictions that might have different ethical rules from those that apply to the original lawyer. MPRC 1.1 Cmt 6.
6
Q
In affiliating with another lawyer to provide competent representation, should a lawyer do so based on a reasonable belief that the additional lawyer will enhance the provision of competent representation to the client? (Q)
A
Yes. In affiliating with another lawyer to provide competent representation, a lawyer should reasonably believe that the additional lawyer will enhance the provision of competent representation to the client. Factors affecting the reasonableness of the affiliation may include:
the other lawyer’s education, reputation and experience;
the nature and scope of the work assigned to the other lawyer; and
the rules of professional conduct, including rules of confidentiality, that apply in the jurisdiction in which the additional lawyer will render services. MPRC 1.1 Cmt. 6.
7
Q
What is a summary of model rule 1.2(a)? (Q)
A
Model Rule 1.2(a) gives the client the ultimate authority to determine the scope of the attorney-client relationship. Lawyers are expected to “reasonably consult” with their clients throughout the representation to determine if the scope has changed, and to determine the means to reach the client’s goals.
8
Q
What does model rule 1.2(a) discuss? (Q)
A
Under MPRC 1.2(a), the client holds the ultimate authority to set the scope and goals of the representation.
1.2 Authority
9
Q
What is a summary of model rule 1.2(c)? (Q)
A
Model Rule 1.2(c) gives the lawyer the ability to limit the scope of the representation, but only when the limitation is reasonable under the circumstances and when the client gives informed consent to the limitation. In the ideal attorney-client relationship, the attorney gives deference to the client’s concerns about how to reach his goals, and the client gives deference to the lawyer’s expertise.
Circumstances and scope
10
Q
What does MPRC 1.2(d) discuss? (Q)
A
MPRC 1.2(d) expressly states that a lawyer shall not “counsel” or assist” a client in conduct that the lawyer knows is criminal or fraudulent. This rule seems straightforward, but can actually get a little tricky in practice, in part because the Rules do not define “counsel” or “assist.”
Don’t help with bad stuff
11
Q
Under what circumstances in MPRC 1.2 does a lawyer have to defer to the client’s decision? (Q)
A
Model Rule 1.2(a) prescribes certain instances when the lawyer must abide by the client’s decisions during the course of their representation: in civil matters, the lawyer must follow the client’s decision about whether to settle; and in criminal matters, the lawyer must follow the client’s decision about what plea to enter, whether to waive a jury trial, and whether the client will testify.
12
Q
What does MPRC 1.4 discuss? (Q)
A
MPRC 1.4 provides a general framework for a lawyer’s obligations for communicating with the client and explaining the legal strategy and details of the case.
14 students in MC class?
13
Q
What does MPRC 1.3 state?
A
A lawyer shall act with reasonable diligence and promptness in representing a client.
14
Q
What does MPRC 1.3 cmt. 1 state?
A
A lawyer should pursue a matter on behalf of a client despite opposition, obstruction or personal inconvenience to the lawyer, and take whatever lawful and ethical measures are required to vindicate a client’s cause or endeavor. A lawyer must also act with commitment and dedication to the interests of the client and with zeal in advocacy upon the client’s behalf. A lawyer is not bound, however, to press for every advantage that might be realized for a client. For example, a lawyer may have authority to exercise professional discretion in determining the means by which a matter should be pursued. See Rule 1.2. The lawyer’s duty to act with reasonable diligence does not require the use of offensive tactics or preclude the treating of all persons involved in the legal process with courtesy and respect.
15
Q
What does MPRC 1.3 cmt 4 state?
A
Unless the relationship is terminated as provided in Rule 1.16, a lawyer should carry through to conclusion all matters undertaken for a client. If a lawyer’s employment is limited to a specific matter, the relationship terminates when the matter has been resolved. If a lawyer has served a client over a substantial period in a variety of matters, the client sometimes may assume that the lawyer will continue to serve on a continuing basis unless the lawyer gives notice of withdrawal. Doubt about whether a client-lawyer relationship still exists should be clarified by the lawyer, preferably in writing, so that the client will not mistakenly suppose the lawyer is looking after the client’s affairs when the lawyer has ceased to do so. For example, if a lawyer has handled a judicial or administrative proceeding that produced a result adverse to the client and the lawyer and the client have not agreed that the lawyer will handle the matter on appeal, the lawyer must consult with the client about the possibility of appeal before relinquishing responsibility for the matter. See Rule 1.4(a)(2). Whether the lawyer is obligated to prosecute the appeal for the client depends on the scope of the representation the lawyer has agreed to provide to the client. See Rule 1.2.
16
Q
What does MPRC 1.3 cmt 5 state?
A
To prevent neglect of client matters in the event of a sole practitioner’s death or disability, the duty of diligence may require that each sole practitioner prepare a plan, in conformity with applicable rules, that designates another competent lawyer to review client files, notify each client of the lawyer’s death or disability, and determine whether there is a need for immediate protective action. Cf. Rule 28 of the American Bar Association Model Rules for Lawyer Disciplinary Enforcement (providing for court appointment of a lawyer to inventory files and take other protective action in absence of a plan providing for another lawyer to protect the interests of the clients of a deceased or disabled lawyer).
17
Q
What is a summary of MPRC 1.4? (Q)
A
Other communications with the client are held to a reasonableness standard, and really depend on the nature of the matter and the client’s reasonable expectations. Delaying communication with a client may be appropriate where disclosure would harm the client, but withholding information is never appropriate where it only serves to benefit the lawyer.
18
Q
What does model rule 1.4(a)(1) discuss? (Q)
A
Model Rule 1.4(a)(1) explains the four instances in which lawyers are required to communicate with their clients by pointing back to Model Rule 1.2(a). Thus, a lawyer must communicate with his client, and abide by the client’s decision, in four instances: in civil matters, whether to settle; and in criminal matters, what plea to enter, whether to waive a jury trial, and whether to testify. The Comments to Rule 1.4(a) note that a lawyer should “promptly consult” with the client on these issues and obtain the necessary directives and consent before moving forward.
19
Q
What does MPRC 1.4(a)(2) discuss? (Q)
A
1.4(a)(2) explicitly requires lawyers to “reasonably consult” with clients about their goals and about how to reach them.
20
Q
What does model rule 1.4(a)(3) discuss? (Q)
A
Under Model Rule 1.4(a)(3), a lawyer is expected to keep the client “reasonably informed” about the status of the case, which means providing enough information that the client can effectively participate in the representation.
A person with 3 As is well informed
21
Q
What obligation does a lawyer have to explain the legal arguments and details of a case? (Q)
A
Comment 5 to Rule 1.4 allows significant flexibility here, and says that it really depends on the complexity of the case and the capability and desire of the client to know the details.
22
Q
What does comment 7 to rule 1.4 say? (Q)
A
Comment 7 to Rule 1.4, notes that delaying communication with a client may be appropriate where a client is likely to “react imprudently to an immediate communication.” Comment 7 provides an example of this: a lawyer may be justified in withholding a mental diagnosis from a client when the doctor making the diagnosis indicates that disclosure could harm the client. Second, the Comment notes that withholding information is never justified when the only reason is to serve the own lawyer’s interests or convenience. For example, a lawyer may not withhold the fact that he missed a significant filing deadline solely to protect his reputation. Finally, certain court rules or court orders may prohibit a lawyer from revealing information to a client. In these limited instances, withholding information is appropriate.
23
Q
What does model rule 1.5 discuss? (Q)
A
Model Rule of Professional Conduct 1.5 requires that a lawyer “shall not make an agreement for, charge, or collect an unreasonable fee or an unreasonable amount for expenses.”
No pay no thrive
24
Q
What is a summary of model rule 1.5? (Q)
A
Model Rule 1.5 requires a lawyer’s fees to be reasonable in all circumstances. Whether a fee is reasonable may be analyzed using the eight factors listed in the Model Rules – including the difficulty of the matter, the lawyer’s skill and reputation, or a tight turnaround time – but that list is not exhaustive, and other factors may be relevant. Rule 1.5(d) requires that contingent fee agreements be in a detailed writing signed by a client, but contingency agreements are completely prohibited in certain domestic relations matters and when representing criminal defendants. Finally, Model Rule 1.5(e) requires lawyers from different firms who share fees to either share fees in proportion to their work, or agree to joint responsibility for the matter as a whole. All fee sharing between lawyers from different firms must be approved in writing by the client, and the total fee must also be reasonable.
25
What are the eight fee factors the model rules take into consideration in 1.5? (Q)
First, Rule 1.5 considers the difficulty of the matter, and analyzes the time, labor, novelty, and skill required to handle it.
Second, the Rule considers the likelihood that the lawyer’s representation will prevent other clients from using his or her services.
Third, lawyers should consider the customary fee charged in the area for similar legal services.
Fourth, the lawyer should consider the amount involved in the matter and the results obtained. This means that a lawyer who successfully obtains a huge settlement for a client may be able to charge a higher rate than a lawyer who successfully gets a client out of a parking ticket.
Fifth, Rule 1.5 considers the time limitations imposed by either the client or the circumstances, so a lawyer may be justified in charging a higher rate for a tight turnaround on a project.
Sixth, lawyers may factor in the nature and length of their professional relationship with the client to set a reasonable rate. For example, a lawyer who has charged a set rate for a long-term client for many years may be unable to justify a sudden spike in rates, given the history of their relationship.
Seventh, the Rules consider the experience, reputation, and the ability of the lawyer performing the services.
Eighth, the Rules include whether the fee is a fixed fee, not dependent on the outcome, or whether it is contingent.
26
What does MPRC 1.5(a) discuss?
A lawyer shall not make an agreement for, charge, or collect an unreasonable fee or an unreasonable amount for expenses.
27
What does model rule 1.5(b) discuss? (Q)
Model Rule 1.5(b) says that fixed fee agreements, or those that charge a sum certain or an hourly rate, should be communicated to the client “preferably in writing.” Contingent fees are a different matter, though, and are required to be reduced to writing.
B is preferably in writing
28
What does model rule 1.5(c) discuss? (Q)
Model Rule 1.5(c) says that when a lawyer’s fee is contingent on the outcome of a case, the attorney and client should put the details of that agreement in a signed writing.
1.5 contingent
29
What does model rule 1.5(c) discuss? (Q)
Model Rule 1.5(c) says that contingent fee agreements, which are those agreements where the lawyer’s rate is dependent on the outcome of the matter, must be in a writing that is signed by the client, and that explains how the fee is determined. This includes the percentage that the lawyer is due in the event of settlement, trial, or appeal; whether litigation or other expenses will be deducted from the client’s settlement or recovery; and whether the expenses are deducted before or after the contingent fee is calculated. Then, at the conclusion of a contingent fee matter, lawyers should provide their clients with a written accounting of the fee and how it was calculated.
1.5 contingent
30
What does model rule 1.5(d)(1) discuss? (Q)
Model Rule 1.5(d)(1) states that lawyers may not work on contingency in domestic relations cases where their payment would be dependent on securing a divorce, or on the amount of alimony or support, or the settlement of property.
31
What does model rule 1.5(d)(2) discuss? (Q)
Model Rule 1.5(d)(2) says that lawyers may not work on contingency for defendants in criminal cases.
2 Ds in criminal defendant
32
What does model rule 1.5(e) discuss? (Q)
Model Rule 1.5(e) explains that lawyers in different firms can share fees only when the division of the fee is either in proportion to the services provided, or when each lawyer agrees to share joint responsibility for the representation as a whole.
Split fe(e) soup
33
What is a summary of model rule 1.6(a)? (Q)
Model Rule 1.6(a) requires a lawyer to keep all information related to a client’s representation confidential. This includes information that could reasonably lead to the disclosure of confidential information. A lawyer must get a client’s informed consent before disclosing confidential information, which means a lawyer must explain the scope of the disclosure and the risks and alternatives before the client can properly agree. Finally, the general rule of confidentiality is broader than attorney-client privilege and work product doctrine: it applies to the entire representation of a client, and not just those circumstances where a lawyer may have to provide evidence or testimony.
34
What is a summary of model rule 1.6(b)? (Q)
A lawyer may choose (but is not obligated) to disclose confidential information when he or she reasonably believes that the disclosure is necessary to:
(1) Prevent death or substantial bodily injury;
(2) To prevent a crime or fraud that is reasonably certain to cause substantial injury, when it involves the lawyer’s services;
(3) To lessen the substantial injury caused by a client’s crime, when the crime involved the lawyer’s services.
(4) To inquire about compliance with ethics rules,
(5) To establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client, to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved, or to respond to allegations in any proceeding concerning the lawyer's representation of the client;
(6) To comply with a court order
The lawyer must have a reasonable belief that disclosure is necessary under Rule 1.6(b).
35
What does model rule 1.6(c) say? (Q)
MR 1.6(c) states that a lawyer shall make reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized access to, information relating to the representation of a client.
36
What is a summary of model rule 1.7(a)? (Q)
Model Rule 1.7(a) prohibits lawyers from representing more than one client where the clients have directly adverse interests, or where there is a significant risk that the representation will be materially limited because of the lawyer’s obligations to another or because of his personal interest.
37
What is a summary of MPRC 1.7(b)
Rule 1.7(b) provides four criteria for lawyers to obtain a waiver of the conflict from clients and move ahead with the mutual representation:
(1) The lawyer must reasonably believe he can provide competent, diligent legal advice to all parties;
(2) The representation must not be prohibited by law;
(3) The clients must not be on opposite sides of the “V”;
(4) The clients must all give their informed consent in writing.
38
What is a summary of model rule 1.8? (Q)
MPRC 1.8(a) generally prohibits business transactions with clients on the grounds that the lawyer has the upper hand and could exploit the loyalty and trust built up during the representation by using it to his or her financial gain.
39
How can a lawyer enter into a business transaction with a client?
Model Rule 1.8(a) provides three criteria for business transactions: the transaction must be on fair and reasonable terms disclosed to the client; the client must be advised to, and given the opportunity to, seek outside counsel for the matter; and the lawyer must obtain written informed consent to the basic terms of the deal and the lawyer’s role in it.
40
What does MPRC 1.8(b) state?
A lawyer shall not use information relating to representation of a client to the disadvantage of the client unless the client gives informed consent, except as permitted or required by these Rules.
41
What does MPRC 1.8(c) state?
A lawyer shall not solicit any substantial gift from a client, including a testamentary gift, or prepare on behalf of a client an instrument giving the lawyer or a person related to the lawyer any substantial gift unless the lawyer or other recipient of the gift is related to the client. For purposes of this paragraph, related persons include a spouse, child, grandchild, parent, grandparent or other relative or individual with whom the lawyer or the client maintains a close, familial relationship.
42
What does MPRC 1.8(d) state?
Prior to the conclusion of representation of a client, a lawyer shall not make or negotiate an agreement giving the lawyer literary or media rights to a portrayal or account based in substantial part on information relating to the representation.
43
What does MPRC 1.8(e) state?
A lawyer shall not provide financial assistance to a client in connection with pending or contemplated litigation, except that:
(1) a lawyer may advance court costs and expenses of litigation, the repayment of which may be contingent on the outcome of the matter;
(2) a lawyer representing an indigent client may pay court costs and expenses of litigation on behalf of the client; and
(3) a lawyer representing an indigent client pro bono, a lawyer representing an indigent client pro bono through a nonprofit legal services or public interest organization and a lawyer representing an indigent client pro bono through a law school clinical or pro bono program may provide modest gifts to the client for food, rent, transportation, medicine and other basic living expenses. The lawyer:
(i) may not promise, assure or imply the availability of such gifts prior to retention or as an inducement to continue the client-lawyer relationship after retention;
(ii) may not seek or accept reimbursement from the client, a relative of the client or anyone affiliated with the client; and
(iii) may not publicize or advertise a willingness to provide such gifts to prospective clients.
Financial assistance under this Rule may be provided even if the representation is eligible for fees under a fee-shifting statute.
44
What does MPRC 1.8(f) state?
A lawyer shall not accept compensation for representing a client from one other than the client unless:
(1) the client gives informed consent;
(2) there is no interference with the lawyer's independence of professional judgment or with the client-lawyer relationship; and
(3) information relating to representation of a client is protected as required by Rule 1.6.
45
What does MPRC 1.8(g) state?
A lawyer who represents two or more clients shall not participate in making an aggregate settlement of the claims of or against the clients, or in a criminal case an aggregated agreement as to guilty or nolo contendere pleas, unless each client gives informed consent, in a writing signed by the client. The lawyer's disclosure shall include the existence and nature of all the claims or pleas involved and of the participation of each person in the settlement.
46
What does MPRC 1.8(h) state?
A lawyer shall not:
(1) make an agreement prospectively limiting the lawyer's liability to a client for malpractice unless the client is independently represented in making the agreement; or
(2) settle a claim or potential claim for such liability with an unrepresented client or former client unless that person is advised in writing of the desirability of seeking and is given a reasonable opportunity to seek the advice of independent legal counsel in connection therewith.
47
What does MPRC 1.8(i) state?
A lawyer shall not acquire a proprietary interest in the cause of action or subject matter of litigation the lawyer is conducting for a client, except that the lawyer may:
(1) acquire a lien authorized by law to secure the lawyer's fee or expenses; and
(2) contract with a client for a reasonable contingent fee in a civil case.
48
What does MPRC 1.8(j) state?
A lawyer shall not have sexual relations with a client unless a consensual sexual relationship existed between them when the client-lawyer relationship commenced.
49
What does MPRC 1.8(k) state?
While lawyers are associated in a firm, a prohibition in the foregoing paragraphs (a) through (i) that applies to any one of them shall apply to all of them.
50
What is a summary of MPRC 1.9(a)? (Q)
Model Rule 1.9(a) explains that a lawyer should not take on a new representation with a client whose interests are materially adverse to a former client in the same or a substantially related matter, unless the lawyer gets written informed consent from the former client.
51
What is a summary of MPRC 1.9(b)? (Q)
Model Rule 1.9(b) states that a lawyer’s duties to a client travel with him; this is another way of saying that a lawyer at a new firm cannot pursue a case that is materially adverse to a client from his former firm, and where he will need to rely on confidential information from the former client. The lawyer can only move ahead with the representation after obtaining written informed consent from the former client.
52
What is MPRC 1.9(c)?
A lawyer who has formerly represented a client in a matter or whose present or former firm has formerly represented a client in a matter shall not thereafter:
(1) use information relating to the representation to the disadvantage of the former client except as these Rules would permit or require with respect to a client, or when the information has become generally known; or
(2) reveal information relating to the representation except as these Rules would permit or require with respect to a client.
53
What is a summary of MPRC 1.10(a)? (Q)
The general rule for imputed conflicts says that no lawyer in a firm may knowingly represent a client if any one of them alone would be disqualified because of a conflict of interest. In other words, if one lawyer has a conflict of interest, that conflict is imputed to all other lawyers in the firm.
54
What is a summary of MPRC 1.10(a)(1)? (Q)
There are two exceptions to the imputed-conflicts rule as applied to a lawyer’s current firm. First, a lawyer’s conflict isn’t imputed to the other lawyers if it’s based on the lawyer’s personal interest and doesn’t present a significant risk of materially limiting representation by the other lawyers.
55
What is a summary of MPRC 1.10(a)(2)? (Q)
The second exception applies if the conflict involves a lawyer’s duties of loyalty or confidentiality to a former client in the same or a substantially related matter. This type of conflict will not be imputed to a lawyer’s current firm if the lawyer is screened from participation in the matter and receives no part of the fee directly. Screening means that the firm will isolate the lawyer from any involvement with the matter to prevent the breach of client confidences or other duties. Screening also requires detailed notice to the lawyer’s former client about the screening process.
56
What does MPRC 1.10 cmt. 4 state? (Q)
The conflicts of non-lawyer staff, such as paralegals, aren’t imputed to the firm. Nonetheless, these employees should be screened from any case in which they have conflicts.
57
What is a summary of MPRC 1.10(b)? (Q)
Conflicts can also be imputed to a lawyer’s former firm. In general, a law firm doesn’t have a conflict of interest merely because an opposing lawyer used to work there. However, the firm is barred from representing a client who is materially adverse to one of the departed lawyer’s clients if two conditions are met. First, the matter must be the same as, or substantially related to, the lawyer’s representation while at the firm. Second, one or more lawyers remaining in the firm must have protected, confidential information that is material to the matter.
58
What is a summary of MPRC 1.10(c)? (Q)
One way to resolve imputed conflicts is through a valid client waiver. Like many conflicts of interest, imputed conflicts can often be waived using the four waiver criteria in Model Rule 1.7. A waiver is valid if the lawyer reasonably believes she can provide competent, diligent representation; the representation isn’t prohibited by law; the lawyer doesn’t seek to represent adverse clients in the same case; and all affected clients give written, informed consent to the representation.
59
What is a summary of MPRC 1.11(a)? (Q)
In general, a lawyer who formerly served as a public officer or government employee is prohibited from representing a client in connection with a matter in which the lawyer participated personally and substantially as a public officer or employee. This prohibition applies unless the appropriate government agency gives its informed consent, in writing, to the representation.
60
For the purposes of MPRC 1.11, what does the term "personally and substantially" mean? (Q)
The term “personally and substantially” is used to distinguish a lawyer who actually worked on a matter from one who did not, e.g., a lawyer who had administrative responsibility for the office in which a matter was pending but who did not take a role in the matter itself.
61
What is a summary of MPRC 1.11(b)
In general, if a former government lawyer is disqualified from representing a client in connection with a matter that the lawyer worked on while in government, the lawyer’s law firm is likewise disqualified.
However, this disqualification may be avoided if:
the lawyer is screened from participating in the matter and receives no part of the fee, and
the firm gives prompt written notice to the relevant government agency to enable the agency to determine compliance with this rule.
62
How can disqualification of a former government lawyer or a former government lawyer's firm be avoided? (Q)
Disqualification may be avoided if:
(1) The lawyer is screened from participating in the matter and receives no part of the fee, and
(2) The firm gives prompt written notice to the relevant government agency to enable the agency to determine compliance with this rule.
63
What is MPRC 1.11(c)?
Except as law may otherwise expressly permit, a lawyer having information that the lawyer knows is confidential government information about a person acquired when the lawyer was a public officer or employee, may not represent a private client whose interests are adverse to that person in a matter in which the information could be used to the material disadvantage of that person.
64
What does the term "confidential government information" mean for the purposes of MPRC 1.11(c)?
The term "confidential government information" means information that has been obtained under governmental authority and which, at the time this Rule is applied, the government is prohibited by law from disclosing to the public or has a legal privilege not to disclose and which is not otherwise available to the public.
65
What is a summary of MPRC 1.11(d)(2)?
Except as law may otherwise expressly permit, a lawyer currently serving as a public officer or employee shall not:
(i) participate in a matter in which the lawyer participated personally and substantially while in private practice or nongovernmental employment, unless the appropriate government agency gives its informed consent, confirmed in writing; or
(ii) negotiate for private employment with any person who is involved as a party or as lawyer for a party in a matter in which the lawyer is participating personally and substantially, except that a lawyer serving as a law clerk to a judge, other adjudicative officer or arbitrator may negotiate for private employment as permitted by Rule 1.12(b) and subject to the conditions stated in Rule 1.12(b).
66
What is of MPRC 1.12(a)?
Unless an exception applies, a lawyer shall not represent anyone in connection with a matter in which the lawyer participated personally and substantially as a judge or other adjudicative officer or law clerk to such a person or as an arbitrator, mediator or other third-party neutral, unless all parties to the proceeding give informed consent, confirmed in writing.
67
What is MPRC 1.12(b)?
A lawyer shall not negotiate for employment with any person who is involved as a party or as lawyer for a party in a matter in which the lawyer is participating personally and substantially as a judge or other adjudicative officer or as an arbitrator, mediator or other third-party neutral. A lawyer serving as a law clerk to a judge or other adjudicative officer may negotiate for employment with a party or lawyer involved in a matter in which the clerk is participating personally and substantially, but only after the lawyer has notified the judge or other adjudicative officer.
68
What is MPRC 1.12(c)?
If a lawyer is disqualified by paragraph (a), no lawyer in a firm with which that lawyer is associated may knowingly undertake or continue representation in the matter unless:
(1) the disqualified lawyer is timely screened from any participation in the matter and is apportioned no part of the fee therefrom; and
(2) written notice is promptly given to the parties and any appropriate tribunal to enable them to ascertain compliance with the provisions of this Rule.
69
What is MPRC 1.12(d)?
An arbitrator selected as a partisan of a party in a multimember arbitration panel is not prohibited from subsequently representing that party.
70
What does MPRC 1.13(a) state? (Q)
Rule 1.13(a) states that “a lawyer employed or retained by an organization represents the organization acting through its duly authorized constituents.” The Rules do not define “organization,” but Comment 1 to Rule 1.13 makes clear that the term covers all incorporated and unincorporated legal entities and associations, including corporations.
71
What does MPRC 1.13(b) state?
If a lawyer for an organization knows that an officer, employee or other person associated with the organization is engaged in action, intends to act or refuses to act in a matter related to the representation that is a violation of a legal obligation to the organization, or a violation of law that reasonably might be imputed to the organization, and that is likely to result in substantial injury to the organization, then the lawyer shall proceed as is reasonably necessary in the best interest of the organization. Unless the lawyer reasonably believes that it is not necessary in the best interest of the organization to do so, the lawyer shall refer the matter to higher authority in the organization, including, if warranted by the circumstances to the highest authority that can act on behalf of the organization as determined by applicable law.
72
What does MPRC 1.13(c) state?
Except as provided in paragraph (d), if
(1) despite the lawyer's efforts in accordance with paragraph (b) the highest authority that can act on behalf of the organization insists upon or fails to address in a timely and appropriate manner an action, or a refusal to act, that is clearly a violation of law, and
(2) the lawyer reasonably believes that the violation is reasonably certain to result in substantial injury to the organization, then the lawyer may reveal information relating to the representation whether or not Rule 1.6 permits such disclosure, but only if and to the extent the lawyer reasonably believes necessary to prevent substantial injury to the organization.
73
What does MPRC 1.13(d) state?
Paragraph (c) shall not apply with respect to information relating to a lawyer's representation of an organization to investigate an alleged violation of law, or to defend the organization or an officer, employee or other constituent associated with the organization against a claim arising out of an alleged violation of law.
74
What does MPRC 1.13(e) state?
A lawyer who reasonably believes that he or she has been discharged because of the lawyer's actions taken pursuant to paragraphs (b) or (c), or who withdraws under circumstances that require or permit the lawyer to take action under either of those paragraphs, shall proceed as the lawyer reasonably believes necessary to assure that the organization's highest authority is informed of the lawyer's discharge or withdrawal.
75
What does model rule 1.13(f) state? (Q)
Rule 1.13(f) provides as follows: if the organization’s lawyer knows, or reasonably should know, that the organization’s interests are adverse to those of a constituent with whom the lawyer is dealing, the lawyer must make clear to the constituent that the organization, not the constituent, is her client. Provided that the organization’s lawyer does so, Rule 1.13(g) allows the lawyer to represent the constituent, as long as this does not create a conflict of interest between the organization and constituent.
76
What does MPRC 1.13(g) state?
A lawyer representing an organization may also represent any of its directors, officers, employees, members, shareholders or other constituents, subject to the provisions of Rule 1.7. If the organization's consent to the dual representation is required by Rule 1.7, the consent shall be given by an appropriate official of the organization other than the individual who is to be represented, or by the shareholders.
77
What does model rule 1.14 discuss? (Q)
Model Rule 1.14 addresses what a lawyer should do when a client exhibits diminished capacity to make informed decisions about the legal representation.
Can you hear me George?
78
What does model rule 1.14(a) discuss? (Q)
When a client's capacity to make adequately considered decisions in connection with a representation is diminished, whether because of minority, mental impairment or for some other reason, the lawyer shall, as far as reasonably possible, maintain a normal client-lawyer relationship with the client. BE NORMAL
79
What does model rule 1.14(b) discuss? (Q)
Model Rule 1.14(b) explains what to do when the diminished capacity situation is a bit more intense. If it appears the client is likely to face substantial physical, financial, or other harm because of his diminished capacity, and the client is not capable of adequately protecting his interests, then the lawyer may take the necessary action to protect the client. The Rules specifically say the lawyer may want to seek the advice of others who could protect the client, such as family members or close friends, or may seek “the appointment of a guardian ad litem, conservator or guardian.”
80
What does MPRC 1.14(c) state?
Information relating to the representation of a client with diminished capacity is protected by Rule 1.6. When taking protective action pursuant to paragraph (b), the lawyer is impliedly authorized under Rule 1.6(a) to reveal information about the client, but only to the extent reasonably necessary to protect the client's interests.
81
What does MPRC 1.15(a) state?
A lawyer shall hold property of clients or third persons that is in a lawyer's possession in connection with a representation separate from the lawyer's own property. Funds shall be kept in a separate account maintained in the state where the lawyer's office is situated, or elsewhere with the consent of the client or third person. Other property shall be identified as such and appropriately safeguarded. Complete records of such account funds and other property shall be kept by the lawyer and shall be preserved for a period of [five years] after termination of the representation.
82
What does MPRC 1.15(b) state?
A lawyer may deposit the lawyer's own funds in a client trust account for the sole purpose of paying bank service charges on that account, but only in an amount necessary for that purpose.
83
What does MPRC 1.15(c) state?
A lawyer shall deposit into a client trust account legal fees and expenses that have been paid in advance, to be withdrawn by the lawyer only as fees are earned or expenses incurred.
84
What does MPRC 1.15(d) state?
Upon receiving funds or other property in which a client or third person has an interest, a lawyer shall promptly notify the client or third person. Except as stated in this rule or otherwise permitted by law or by agreement with the client, a lawyer shall promptly deliver to the client or third person any funds or other property that the client or third person is entitled to receive and, upon request by the client or third person, shall promptly render a full accounting regarding such property.
85
What does MPRC 1.15(e) state?
When in the course of representation a lawyer is in possession of property in which two or more persons (one of whom may be the lawyer) claim interests, the property shall be kept separate by the lawyer until the dispute is resolved. The lawyer shall promptly distribute all portions of the property as to which the interests are not in dispute.
86
What is a summary of model rule 1.16? (Q)
Model Rule 1.16 provides three instances when a lawyer is required to end a lawyer-client relationship: when the client insists on engaging in illegal or fraudulent behavior; when the lawyer’s physical or mental condition materially impairs the lawyer’s ability; and when the client fires the lawyer. A lawyer has the option of terminating the relationship on various other grounds, including when the termination will not have a materially adverse effect on the client; when the client is engaging in repugnant behavior or behavior that the lawyer fundamentally disagrees with; or when it imposes an unreasonable financial burden on the lawyer. In all cases, the termination must be reasonable and the lawyer must take steps to mitigate any damage that might be caused by the termination. A lawyer would likely want to give a client reasonable notice of the termination, and give the client time to find a new lawyer.
87
What does model rule 1.16(a) discuss? (Q)
Model Rule 1.16(a) describes the three instances in which a lawyer is obligated to end the lawyer-client relationship.
End of the road, slick
88
What does MPRC 1.16(a) state?
A lawyer shall inquire into and assess the facts and circumstances of each representation to determine whether the lawyer may accept or continue the representation. Except as stated in paragraph (c), a lawyer shall not represent a client or, where representation has commenced, shall withdraw from the representation of a client if:
(1) the representation will result in violation of the Rules of Professional Conduct or other law;
(2) the lawyer's physical or mental condition materially impairs the lawyer's ability to represent the client;
(3) the lawyer is discharged; or
(4) the client or prospective client seeks to use or persists in using the lawyer’s services to commit or further a crime or fraud, despite the lawyer’s discussion pursuant to Rules 1.2(d) and 1.4(a)(5) regarding the limitations on the lawyer assisting with the proposed conduct.
89
What does MPRC 1.16(b) state?
Except as stated in paragraph (c), a lawyer may withdraw from representing a client if:
(1) withdrawal can be accomplished without material adverse effect on the interests of the client;
(2) the client persists in a course of action involving the lawyer's services that the lawyer reasonably believes is criminal or fraudulent;
(3) the client has used the lawyer's services to perpetrate a crime or fraud;
(4) the client insists upon taking action that the lawyer considers repugnant or with which the lawyer has a fundamental disagreement;
(5) the client fails substantially to fulfill an obligation to the lawyer regarding the lawyer's services and has been given reasonable warning that the lawyer will withdraw unless the obligation is fulfilled;
(6) the representation will result in an unreasonable financial burden on the lawyer or has been rendered unreasonably difficult by the client; or
(7) other good cause for withdrawal exists.
90
What does MPRC 1.16(c) state?
A lawyer must comply with applicable law requiring notice to or permission of a tribunal when terminating a representation. When ordered to do so by a tribunal, a lawyer shall continue representation notwithstanding good cause for terminating the representation.
91
What does MPRC 1.16(d) state?
Upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client's interests, such as giving reasonable notice to the client, allowing time for employment of other counsel, surrendering papers and property to which the client is entitled and refunding any advance payment of fee or expense that has not been earned or incurred. The lawyer may retain papers relating to the client to the extent permitted by other law.
92
What does MPRC 1.17 state?
A lawyer or a law firm may sell or purchase a law practice, or an area of law practice, including good will, if the following conditions are satisfied:
(a) The seller ceases to engage in the private practice of law, or in the area of practice that has been sold, [in the geographic area] [in the jurisdiction] (a jurisdiction may elect either version) in which the practice has been conducted;
(b) The entire practice, or the entire area of practice, is sold to one or more lawyers or law firms;
(c) The seller gives written notice to each of the seller's clients regarding:
(1) the proposed sale;
(2) the client's right to retain other counsel or to take possession of the file; and
(3) the fact that the client's consent to the transfer of the client's files will be presumed if the client does not take any action or does not otherwise object within ninety (90) days of receipt of the notice.
If a client cannot be given notice, the representation of that client may be transferred to the purchaser only upon entry of an order so authorizing by a court having jurisdiction. The seller may disclose to the court in camera information relating to the representation only to the extent necessary to obtain an order authorizing the transfer of a file.
(d) The fees charged clients shall not be increased by reason of the sale.
93
What does MPRC 1.18 discuss? (Q)
MPRC 1.18 explains a lawyer’s confidentiality duties towards prospective clients.
Aren't looking clients great?
94
What does MPRC 1.18(a) state?
A person who consults with a lawyer about the possibility of forming a client-lawyer relationship with respect to a matter is a prospective client.
95
What does MPRC 1.18(b) state?
Even when no client-lawyer relationship ensues, a lawyer who has learned information from a prospective client shall not use or reveal that information, except as Rule 1.9 would permit with respect to information of a former client.
96
What does MPRC 1.18(c) state?
A lawyer subject to paragraph (b) shall not represent a client with interests materially adverse to those of a prospective client in the same or a substantially related matter if the lawyer received information from the prospective client that could be significantly harmful to that person in the matter, except as provided in paragraph (d). If a lawyer is disqualified from representation under this paragraph, no lawyer in a firm with which that lawyer is associated may knowingly undertake or continue representation in such a matter, except as provided in paragraph (d).
97
What does MPRC 1.18(d) state?
When the lawyer has received disqualifying information as defined in paragraph (c), representation is permissible if:
(1) both the affected client and the prospective client have given informed consent, confirmed in writing, or:
(2) the lawyer who received the information took reasonable measures to avoid exposure to more disqualifying information than was reasonably necessary to determine whether to represent the prospective client; and
(i) the disqualified lawyer is timely screened from any participation in the matter and is apportioned no part of the fee therefrom; and
(ii) written notice is promptly given to the prospective client.
98
What does MPRC 2.1 state?
In representing a client, a lawyer shall exercise independent professional judgment and render candid advice. In rendering advice, a lawyer may refer not only to law but to other considerations such as moral, economic, social and political factors, that may be relevant to the client's situation.
99
What does MPRC 2.3(a) state?
A lawyer may provide an evaluation of a matter affecting a client for the use of someone other than the client if the lawyer reasonably believes that making the evaluation is compatible with other aspects of the lawyer's relationship with the client.
100
What does MPRC 2.3(b) state?
When the lawyer knows or reasonably should know that the evaluation is likely to affect the client's interests materially and adversely, the lawyer shall not provide the evaluation unless the client gives informed consent.
101
What does MPRC 2.3(c) state?
Except as disclosure is authorized in connection with a report of an evaluation, information relating to the evaluation is otherwise protected by Rule 1.6.
102
What does MPRC 2.4(a) state?
A lawyer serves as a third-party neutral when the lawyer assists two or more persons who are not clients of the lawyer to reach a resolution of a dispute or other matter that has arisen between them. Service as a third-party neutral may include service as an arbitrator, a mediator or in such other capacity as will enable the lawyer to assist the parties to resolve the matter.
103
What does MPRC 2.4(b) state?
A lawyer serving as a third-party neutral shall inform unrepresented parties that the lawyer is not representing them. When the lawyer knows or reasonably should know that a party does not understand the lawyer's role in the matter, the lawyer shall explain the difference between the lawyer's role as a third-party neutral and a lawyer's role as one who represents a client.
104
What is a summary of model rule 3.1? (Q)
Rule 3.1 says that in any proceeding, a lawyer must have a nonfrivolous basis for bringing the proceeding, defending the proceeding, and asserting or disputing any issue. For simplicity, we’ll refer to these activities collectively as assertions. To rephrase the rule, then, a lawyer may not make frivolous assertions in any proceeding.
105
What does model rule 3.1 discuss? (Q)
Model Rule of Professional Conduct 3.1 prohibits lawyers from making frivolous claims or assertions in any proceeding.
Amendment 1
106
When is an assertion frivolous?
An assertion is frivolous if the lawyer can’t make a good-faith argument on the merits under existing law, or if the lawyer can’t make a good-faith argument for changing existing law. A good-faith argument is an argument based on an understanding of the facts and the applicable law. MPRC 3.1.
107
What is a notable exception to MPRC 3.1? (Q)
An exception to this rule exists for criminal cases. An attorney representing a criminal defendant may challenge any aspect of the government’s case and is not required to concede even obvious or undisputed points.
108
What does MPRC 3.1 cmt. 1 state?
The advocate has a duty to use legal procedure for the fullest benefit of the client's cause, but also a duty not to abuse legal procedure. The law, both procedural and substantive, establishes the limits within which an advocate may proceed. However, the law is not always clear and never is static. Accordingly, in determining the proper scope of advocacy, account must be taken of the law's ambiguities and potential for change.
109
What does MPRC 3.1 cmt. 2 state?
The filing of an action or defense or similar action taken for a client is not frivolous merely because the facts have not first been fully substantiated or because the lawyer expects to develop vital evidence only by discovery. What is required of lawyers, however, is that they inform themselves about the facts of their clients' cases and the applicable law and determine that they can make good faith arguments in support of their clients' positions. Such action is not frivolous even though the lawyer believes that the client's position ultimately will not prevail. The action is frivolous, however, if the lawyer is unable either to make a good faith argument on the merits of the action taken or to support the action taken by a good faith argument for an extension, modification or reversal of existing law.
110
What does MPRC 3.1 cmt. 3 state?
The lawyer's obligations under this Rule are subordinate to federal or state constitutional law that entitles a defendant in a criminal matter to the assistance of counsel in presenting a claim or contention that otherwise would be prohibited by this Rule.
111
What does MPRC 3.2 state?
A lawyer shall make reasonable efforts to expedite litigation consistent with the interests of the client.
112
What is a summary of model rule 3.3(a)? (Q)
Rule 3.3(a) prohibits lawyers from making false statements of fact or law in front of a tribunal, and from submitting false evidence. Rule 3.3(a) requires that the lawyer correct any material misstatements of fact or law, and should take reasonable remedial measures to address any false evidence. The lawyer is also obligated under Rule 3.3(a) to disclose any controlling law that is directly adverse to their position, if the opposing counsel fails to do so. As we discussed, this can put the lawyer in the uncomfortable position of supporting opposing counsel’s arguments, but it is an obligation of the Rules that hopes to aid the tribunal in making an informed, reasoned decision.
113
What is a summary of model rule 3.3(b)?
Rule 3.3(b) requires a lawyer to take reasonable remedial measures if he knows that any person in the proceeding, including his own client, is engaging or intends to engage in criminal or fraudulent conduct related to the proceeding. This may include making noisy withdrawal and breaking confidentiality obligations up to and including disclosure to the court or tribunal.
33b Sherlock prevents fraud
114
What is a summary of model rule 3.3(c)? (Q)
Rule 3.3(c) imposes these obligations of candor on the lawyer until the end of the proceeding, which is defined as either when the time for review has passed, or when the final judgment has been affirmed on appeal.
Closing candor
115
What does MPRC 3.3(d) state?
In an ex parte proceeding—that is, a hearing at which the other party is not present—a lawyer shall inform the tribunal of all material facts known to the lawyer that will enable the tribunal to make an informed decision, whether or not the facts are adverse.
116
What is a summary of model rule 3.4(a) and (b)? (Q)
Model Rule 3.4 requires lawyers to help keep an even playing field for opposing counsel. To achieve this, Model Rule 3.4(a) and (b) prohibits lawyers from obstructing access to evidence, and from destroying, altering, concealing, or falsifying evidence.
Playing with more
117
What is a summary of MPRC 3.4(c)?
Model Rule 3.4(c) requires both sides in an adversarial proceeding to follow the rules of the tribunal, unless they are making an open challenge to the rule that they are disobeying.
118
What is a summary of MPRC 3.4(d)?
Model Rule 3.4(d) prohibits lawyers from making frivolous discovery requests, and requires a reasonably diligent response to a proper discovery request.
119
What is a summary of Model Rule 3.4(e)?
During trial, Model Rule 3.4(e) prohibits lawyers from alluding to irrelevant facts, and from making personal assertions or opinions about the case.
120
What is a summary of MPRC 3.4(f)?
Model Rule 3.4(f) prohibits lawyers from asking other people not to disclose relevant information unless the person is an employee, relative, or agent of the client and there will be no adverse effects to that person from failing to disclose the information.
121
What is a summary of model rule 3.5(a)? (Q)
A lawyer may never seek to improperly influence judges, jurors, or prospective jurors under Model Rule 3.5(a). Note that virtually every jurisdiction also has laws prohibiting this behavior, so the Model Rule simply imposes another layer of disciplinary consequences on lawyers for this behavior.
Always bribe the hive
122
What is a summary of model rule 3.5(b)? (Q)
Ex parte communications, or communications made with a decision-maker without opposing counsel present, are generally prohibited under Model Rule 3.5(b), but may be allowed in narrow circumstances when a court or law permits them.
35bex party
123
What is a summary of model rule 3.5(c)? (Q)
Model Rule 3.5(c) forbids lawyers from communicating with jurors after the conclusion of a proceeding when a court has prohibited it; when the juror has said they don’t want to communicate; or when the communication involves misrepresentation, coercion, duress, or harassment.
Can't talk to Stacy's mom until her dad is gone
124
What is a summary of model rule 3.5(d)? (Q)
Under Model Rule 3.5(d) lawyers are forbidden from engaging in behavior that is intentionally disruptive to the tribunal.
Disruptive to the hive
125
What does MPRC 3.6(a) state?
A lawyer who is participating or has participated in the investigation or litigation of a matter shall not make an extrajudicial statement that the lawyer knows or reasonably should know will be disseminated by means of public communication and will have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter
126
What does MPRC 3.6(b) state?
Notwithstanding paragraph (a), a lawyer may state:
(1) the claim, offense or defense involved and, except when prohibited by law, the identity of the persons involved;
(2) information contained in a public record;
(3) that an investigation of a matter is in progress;
(4) the scheduling or result of any step in litigation;
(5) a request for assistance in obtaining evidence and information necessary thereto;
(6) a warning of danger concerning the behavior of a person involved, when there is reason to believe that there exists the likelihood of substantial harm to an individual or to the public interest; and
(7) in a criminal case, in addition to subparagraphs (1) through (6):
(i) the identity, residence, occupation and family status of the accused;
(ii) if the accused has not been apprehended, information necessary to aid in apprehension of that person;
(iii) the fact, time and place of arrest; and
(iv) the identity of investigating and arresting officers or agencies and the length of the investigation.
127
What does MPRC 3.6(c) state?
Notwithstanding paragraph (a), a lawyer may make a statement that a reasonable lawyer would believe is required to protect a client from the substantial undue prejudicial effect of recent publicity not initiated by the lawyer or the lawyer's client. A statement made pursuant to this paragraph shall be limited to such information as is necessary to mitigate the recent adverse publicity.
128
What does MPRC 3.6(d) state?
No lawyer associated in a firm or government agency with a lawyer subject to paragraph (a) shall make a statement prohibited by paragraph (a).
129
What is a summary of model rule 3.7? (Q)
Model Rule 3.7(a) requires a lawyer who may be called as a necessary witness to withdraw from the case unless the testimony he will give is uncontested; the testimony is about legal services; or withdrawal from the case will cause substantial harm to the client. It is permissible for another lawyer from the lawyer’s same firm to testify as a witness as long as the testimony does not create any other prohibited conflicts of interest; Model Rule 3.7(b) does not impute the lawyer’s conflict of interest to his entire firm.
Lucky number slevin (Kansas city shuffle)
130
What does MPRC 3.8(a) state?
The prosecutor in a criminal case shall refrain from prosecuting a charge that the prosecutor knows is not supported by probable cause
131
What does MPRC 3.8(b) state?
The prosecutor in a criminal case shall make reasonable efforts to assure that the accused has been advised of the right to, and the procedure for obtaining, counsel and has been given reasonable opportunity to obtain counsel
132
What does MPRC 3.8(c) state?
The prosecutor in a criminal case shall not seek to obtain from an unrepresented accused a waiver of important pretrial rights, such as the right to a preliminary hearing
133
What does MPRC 3.8(d) state?
The prosecutor in a criminal case shall make timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense, and, in connection with sentencing, disclose to the defense and to the tribunal all unprivileged mitigating information known to the prosecutor, except when the prosecutor is relieved of this responsibility by a protective order of the tribunal
134
What does MPRC 3.8(e) state?
The prosecutor in a criminal case shall not subpoena a lawyer in a grand jury or other criminal proceeding to present evidence about a past or present client unless the prosecutor reasonably believes:
(1) the information sought is not protected from disclosure by any applicable privilege;
(2) the evidence sought is essential to the successful completion of an ongoing investigation or prosecution; and
(3) there is no other feasible alternative to obtain the information;
135
What does MPRC 3.8(f) state?
The prosecutor in a criminal case shall except for statements that are necessary to inform the public of the nature and extent of the prosecutor's action and that serve a legitimate law enforcement purpose, refrain from making extrajudicial comments that have a substantial likelihood of heightening public condemnation of the accused and exercise reasonable care to prevent investigators, law enforcement personnel, employees or other persons assisting or associated with the prosecutor in a criminal case from making an extrajudicial statement that the prosecutor would be prohibited from making under Rule 3.6 or this Rule.
136
What does MPRC 3.8(g) state?
The prosecutor in a criminal case shall When a prosecutor knows of new, credible and material evidence creating a reasonable likelihood that a convicted defendant did not commit an offense of which the defendant was convicted, the prosecutor shall:
(1) promptly disclose that evidence to an appropriate court or authority, and
(2) if the conviction was obtained in the prosecutor’s jurisdiction,
(i) promptly disclose that evidence to the defendant unless a court authorizes delay, and
(ii) undertake further investigation, or make reasonable efforts to cause an investigation, to determine whether the defendant was convicted of an offense that the defendant did not commit.
137
What does MPRC 3.8(h) state?
The prosecutor in a criminal case shall When a prosecutor knows of clear and convincing evidence establishing that a defendant in the prosecutor’s jurisdiction was convicted of an offense that the defendant did not commit, the prosecutor shall seek to remedy the conviction.
138
What does MPRC 3.9 state?
A lawyer representing a client before a legislative body or administrative agency in a nonadjudicative proceeding shall disclose that the appearance is in a representative capacity and shall conform to the provisions of Rules 3.3(a) through (c), 3.4(a) through (c), and 3.5.
139
What does MPRC 4.1 state?
In the course of representing a client a lawyer shall not knowingly:
(a) make a false statement of material fact or law to a third person; or
(b) fail to disclose a material fact to a third person when disclosure is necessary to avoid assisting a criminal or fraudulent act by a client, unless disclosure is prohibited by Rule 1.6.
However, statements about price, value, or the amount a client will accept in settlement are not considered to be material facts to which a duty of truthfulness applies. Instead, these statements are often considered to be mere salesmanship or puffery.
140
What does MPRC 4.2 state?
In representing a client, a lawyer shall not communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has (1) the consent of the other lawyer or (2) is authorized to do so by law or a court order and (3) is otherwise justified in doing so in exceptional circumstances.
141
What does MPRC 4.3 state?
In dealing on behalf of a client with a person who is not represented by counsel, a lawyer shall not state or imply that the lawyer is disinterested. When the lawyer knows or reasonably should know that the unrepresented person misunderstands the lawyer’s role in the matter, the lawyer shall make reasonable efforts to correct the misunderstanding. The lawyer shall not give legal advice to an unrepresented person, other than the advice to secure counsel, if the lawyer knows or reasonably should know that the interests of such a person are or have a reasonable possibility of being in conflict with the interests of the client.
142
What does MPRC 4.4(a) state?
In representing a client, a lawyer shall not use means that have no substantial purpose other than to embarrass, delay, or burden a third person, or use methods of obtaining evidence that violate the legal rights of such a person.
143
What does MPRC 4.4(b) state?
A lawyer who receives a document or electronically stored information relating to the representation of the lawyer's client and knows or reasonably should know that the document or electronically stored information was inadvertently sent shall promptly notify the sender.
144
What is a summary of model rule 5.1? (Q)
Lawyers are expected to make reasonable efforts to ensure that their subordinates understand and comply with ethics rules. This may mean providing training, setting up procedures, or some combination of both. Supervising lawyers may face consequences for ordering a subordinate’s misconduct, or for ratifying or failing to mitigate it.
145
What does MPRC 5.1(a) state?
A partner in a law firm, and a lawyer who individually or together with other lawyers possesses comparable managerial authority in a law firm, shall make reasonable efforts to ensure that the firm has in effect measures giving reasonable assurance that all lawyers in the firm conform to the Rules of Professional Conduct.
146
What does MPRC 5.1(b) state?
A lawyer having direct supervisory authority over another lawyer shall make reasonable efforts to ensure that the other lawyer conforms to the Rules of Professional Conduct.
147
What does MPRC 5.1(c) state?
A lawyer shall be responsible for another lawyer's violation of the Rules of Professional Conduct if:
(1) the lawyer orders or, with knowledge of the specific conduct, ratifies the conduct involved; or
(2) the lawyer is a partner or has comparable managerial authority in the law firm in which the other lawyer practices, or has direct supervisory authority over the other lawyer, and knows of the conduct at a time when its consequences can be avoided or mitigated but fails to take reasonable remedial action.
148
What is a summary of model rule 5.2? (Q)
Subordinate lawyers are expected to behave ethically, though, even when a supervisor tells them otherwise. Subordinates may be excused on close ethical calls if they sought advice from a supervisor.
Monkey see monkey do
149
What does MPRC 5.2(a) state?
A lawyer is bound by the Rules of Professional Conduct notwithstanding that the lawyer acted at the direction of another person.
150
What does MPRC 5.2(b) state?
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.
151
What does MPRC 5.3(a) state?
With respect to a nonlawyer employed or retained by or associated with a lawyer a partner, and a lawyer who individually or together with other lawyers possesses comparable managerial authority in a law firm shall make reasonable efforts to ensure that the firm has in effect measures giving reasonable assurance that the person's conduct is compatible with the professional obligations of the lawyer;
152
What does MPRC 5.3(b) state?
With respect to a nonlawyer employed or retained by or associated with a lawyer a lawyer having direct supervisory authority over the nonlawyer shall make reasonable efforts to ensure that the person's conduct is compatible with the professional obligations of the lawyer; and
153
What does MPRC 5.3(c) state?
With respect to a nonlawyer employed or retained by or associated with a lawyer a lawyer shall be responsible for conduct of such a person that would be a violation of the Rules of Professional Conduct if engaged in by a lawyer if:
(1) the lawyer orders or, with the knowledge of the specific conduct, ratifies the conduct involved; or
(2) the lawyer is a partner or has comparable managerial authority in the law firm in which the person is employed, or has direct supervisory authority over the person, and knows of the conduct at a time when its consequences can be avoided or mitigated but fails to take reasonable remedial action.
154
What does MPRC 5.4(a) state?
A lawyer or law firm shall not share legal fees with a nonlawyer, except that:
(1) an agreement by a lawyer with the lawyer's firm, partner, or associate may provide for the payment of money, over a reasonable period of time after the lawyer's death, to the lawyer's estate or to one or more specified persons;
(2) a lawyer who purchases the practice of a deceased, disabled, or disappeared lawyer may, pursuant to the provisions of Rule 1.17, pay to the estate or other representative of that lawyer the agreed-upon purchase price;
(3) a lawyer or law firm may include nonlawyer employees in a compensation or retirement plan, even though the plan is based in whole or in part on a profit-sharing arrangement; and
(4) a lawyer may share court-awarded legal fees with a nonprofit organization that employed, retained or recommended employment of the lawyer in the matter.
155
What does MPRC 5.4(b) state?
A lawyer shall not form a partnership with a nonlawyer if any of the activities of the partnership consist of the practice of law.
156
What does MPRC 5.4(c) state?
A lawyer shall not permit a person who recommends, employs, or pays the lawyer to render legal services for another to direct or regulate the lawyer's professional judgment in rendering such legal services.
157
What does MPRC 5.4(d) state?
A lawyer shall not practice with or in the form of a professional corporation or association authorized to practice law for a profit, if:
(1) a nonlawyer owns any interest therein, except that a fiduciary representative of the estate of a lawyer may hold the stock or interest of the lawyer for a reasonable time during administration;
(2) a nonlawyer is a corporate director or officer thereof or occupies the position of similar responsibility in any form of association other than a corporation ; or
(3) a nonlawyer has the right to direct or control the professional judgment of a lawyer.
158
What is a summary of model rule 5.5? (Q)
Lawyers who practice in a jurisdiction where they are not properly licensed, or who assist another attorney to do so, are engaging in the unauthorized practice of law and may face disciplinary action or criminal charges.
Back to 505
159
What does practicing law mean in reference to model rule 5.5? (Q)
The general rule is that “practicing law” means applying the law to a specific set of facts, or exercising professional legal judgment.
160
What does model rule 5.5 discuss? (Q)
Model rule 5.5 prohibits lawyers from engaging in the unauthorized practice of law.
Back to 505
161
What does MPRC 5.5(a) state?
A lawyer shall not practice law in a jurisdiction in violation of the regulation of the legal profession in that jurisdiction, or assist another in doing so.
162
What does MPRC 5.5(b) state?
A lawyer who is not admitted to practice in this jurisdiction shall not:
(1) except as authorized by these Rules or other law, establish an office or other systematic and continuous presence in this jurisdiction for the practice of law; or
(2) hold out to the public or otherwise represent that the lawyer is admitted to practice law in this jurisdiction.
163
What does MPRC 5.5(c) state?
A lawyer admitted in another United States jurisdiction, and not disbarred or suspended from practice in any jurisdiction, may provide legal services on a temporary basis in this jurisdiction that:
(1) are undertaken in association with a lawyer who is admitted to practice in this jurisdiction and who actively participates in the matter;
(2) are in or reasonably related to a pending or potential proceeding before a tribunal in this or another jurisdiction, if the lawyer, or a person the lawyer is assisting, is authorized by law or order to appear in such proceeding or reasonably expects to be so authorized;
(3) are in or reasonably related to a pending or potential arbitration, mediation, or other alternative resolution proceeding in this or another jurisdiction, if the services arise out of or are reasonably related to the lawyer's practice in a jurisdiction in which the lawyer is admitted to practice and are not services for which the forum requires pro hac vice admission; or
(4) are not within paragraphs (c) (2) or (c)(3) and arise out of or are reasonably related to the lawyer's practice in a jurisdiction in which the lawyer is admitted to practice.
164
What does MPRC 5.5(d) state?
A lawyer admitted in another United States jurisdiction or in a foreign jurisdiction, and not disbarred or suspended from practice in any jurisdiction or the equivalent thereof, or a person otherwise lawfully practicing as an in-house counsel under the laws of a foreign jurisdiction, may provide legal services through an office or other systematic and continuous presence in this jurisdiction that:
(1) are provided to the lawyer's employer or its organizational affiliates, are not services for which the forum requires pro hac vice admission; and when performed by a foreign lawyer and requires advice on the law of this or another U.S. jurisdiction or of the United States, such advice shall be based upon the advice of a lawyer who is duly licensed and authorized by the jurisdiction to provide such advice; or
(2) are services that the lawyer is authorized by federal or other law or rule to provide in this jurisdiction.
165
What does MPRC 5.5(e) state?
For purposes of paragraph (d):
(1) the foreign lawyer must be a member in good standing of a recognized legal profession in a foreign jurisdiction, the members of which are admitted to practice as lawyers or counselors at law or the equivalent, and subject to effective regulation and discipline by a duly constituted professional body or a public authority; or,
(2) the person otherwise lawfully practicing as an in-house counsel under the laws of a foreign jurisdiction must be authorized to practice under this Rule by, in the exercise of its discretion, [the highest court of this jurisdiction].
166
What does MPRC 5.6(a) state?
A lawyer shall not participate in offering or making a partnership, shareholders, operating, employment, or other similar type of agreement that restricts the right of a lawyer to practice after termination of the relationship, except an agreement concerning benefits upon retirement
167
What does MPRC 5.6(b) state?
A lawyer shall not participate in offering or making an agreement in which a restriction on the lawyer's right to practice is part of the settlement of a client controversy.
168
What does MPRC 5.7(a) state?
A lawyer shall be subject to the Rules of Professional Conduct with respect to the provision of law-related services, as defined in paragraph (b), if the law-related services are provided:
(1) by the lawyer in circumstances that are not distinct from the lawyer's provision of legal services to clients; or
(2) in other circumstances by an entity controlled by the lawyer individually or with others if the lawyer fails to take reasonable measures to assure that a person obtaining the law-related services knows that the services are not legal services and that the protections of the client-lawyer relationship do not exist.
169
What does MPRC 5.7(b) state?
The term "law-related services" denotes services that might reasonably be performed in conjunction with and in substance are related to the provision of legal services, and that are not prohibited as unauthorized practice of law when provided by a nonlawyer.
170
What does MPRC 6.1 discuss? (Q)
Model Rule 6.1 encourages at least 50 hours of pro bono representation by lawyers.
Most boners are 6.1 inches
171
What does MPRC 6.1(a) state?
Every lawyer has a professional responsibility to provide legal services to those unable to pay. A lawyer should aspire to render at least (50) hours of pro bono publico legal services per year. In fulfilling this responsibility, the lawyer should provide a substantial majority of the (50) hours of legal services without fee or expectation of fee to:
(1) persons of limited means or
(2) charitable, religious, civic, community, governmental and educational organizations in matters that are designed primarily to address the needs of persons of limited means; and
172
What does MPRC 6.1(b) state?
Every lawyer has a professional responsibility to provide legal services to those unable to pay. A lawyer should aspire to render at least (50) hours of pro bono publico legal services per year. In fulfilling this responsibility, the lawyer should rovide any additional services through:
(1) delivery of legal services at no fee or substantially reduced fee to individuals, groups or organizations seeking to secure or protect civil rights, civil liberties or public rights, or charitable, religious, civic, community, governmental and educational organizations in matters in furtherance of their organizational purposes, where the payment of standard legal fees would significantly deplete the organization's economic resources or would be otherwise inappropriate;
(2) delivery of legal services at a substantially reduced fee to persons of limited means; or
(3) participation in activities for improving the law, the legal system or the legal profession.
173
What does model rule 6.2 discuss? (Q)
The Rule states that a lawyer shall not try to avoid court appointed representation except for “good cause."
It's not me it's you
174
What are the three examples of circumstances that rise to the level of good cause in 6.2?
First, the lawyer may decline court-appointed representation if it violates ethical rules or some other law. For example, if the court appoints a lawyer to represent someone that a lawyer’s current client is suing, that representation would violate ethics rules against representing clients with conflicting interests.
Second, the lawyer has good cause to decline a court-appointed representation where it would create an “unreasonable” financial burden for the lawyer. If a lawyer can show that accepting a representation might cause his practice to go into bankruptcy, for example, would have good cause to decline a representation.
Third, a lawyer has good cause to decline a court ordered representation if the client or case is so repugnant that it would actually impair the lawyer’s ability to effectively advocate on their behalf. For example, a lawyer may decline representing an alleged rapist when the victim is a close friend or relative.
175
What does MPRC 6.2 state?
A lawyer shall not seek to avoid appointment by a tribunal to represent a person except for good cause, such as:
(a) representing the client is likely to result in violation of the Rules of Professional Conduct or other law;
(b) representing the client is likely to result in an unreasonable financial burden on the lawyer; or
(c) the client or the cause is so repugnant to the lawyer as to be likely to impair the client-lawyer relationship or the lawyer's ability to represent the client.
176
What does MPRC 6.3 state?
A lawyer may serve as a director, officer or member of a legal services organization, apart from the law firm in which the lawyer practices, notwithstanding that the organization serves persons having interests adverse to a client of the lawyer. The lawyer shall not knowingly participate in a decision or action of the organization:
(a) if participating in the decision or action would be incompatible with the lawyer's obligations to a client under Rule 1.7; or
(b) where the decision or action could have a material adverse effect on the representation of a client of the organization whose interests are adverse to a client of the lawyer.
177
What does MPRC 6.4 state?
A lawyer may serve as a director, officer or member of an organization involved in reform of the law or its administration notwithstanding that the reform may affect the interests of a client of the lawyer. When the lawyer knows that the interests of a client may be materially benefitted by a decision in which the lawyer participates, the lawyer shall disclose that fact but need not identify the client.
178
What does MPRC 6.5 state?
(a) A lawyer who, under the auspices of a program sponsored by a nonprofit organization or court, provides short-term limited legal services to a client without expectation by either the lawyer or the client that the lawyer will provide continuing representation in the matter:
(1) is subject to Rules 1.7 and 1.9(a) only if the lawyer knows that the representation of the client involves a conflict of interest; and
(2) is subject to Rule 1.10 only if the lawyer knows that another lawyer associated with the lawyer in a law firm is disqualified by Rule 1.7 or 1.9(a) with respect to the matter.
(b) Except as provided in paragraph (a)(2), Rule 1.10 is inapplicable to a representation governed by this Rule.
179
What does MPRC 7.1 state?
A lawyer shall not make a false or misleading communication about the lawyer or the lawyer's services. A communication is false or misleading if it contains a material misrepresentation of fact or law, or omits a fact necessary to make the statement considered as a whole not materially misleading.
180
What does MPRC 7.2(a) state?
A lawyer may communicate information regarding the lawyer’s services through any media.
181
What does MPRC 7.2(b) state?
A lawyer shall not compensate, give or promise anything of value to a person for recommending the lawyer’s services except that a lawyer may:
(1) pay the reasonable costs of advertisements or communications permitted by this Rule;
(2) pay the usual charges of a legal service plan or a not-for-profit or qualified lawyer referral service;
(3) pay for a law practice in accordance with Rule 1.17;
(4) refer clients to another lawyer or a nonlawyer professional pursuant to an agreement not otherwise prohibited under these Rules that provides for the other person to refer clients or customers to the lawyer, if:
(i) the reciprocal referral agreement is not exclusive; and
(ii) the client is informed of the existence and nature of the agreement; and
(5) give nominal gifts as an expression of appreciation that are neither intended nor reasonably expected to be a form of compensation for recommending a lawyer’s services.
182
What does MPRC 7.2(c) state?
A lawyer shall not state or imply that a lawyer is certified as a specialist in a particular field of law, unless:
(1) the lawyer has been certified as a specialist by an organization that has been approved by an appropriate authority of the state or the District of Columbia or a U.S. Territory or that has been accredited by the American Bar Association; and
(2) the name of the certifying organization is clearly identified in the communication.
183
What does MPRC 7.2(d) state?
Any communication made under this Rule must include the name and contact information of at least one lawyer or law firm responsible for its content.
184
What does MPRC 7.3(a) state?
“Solicitation” or “solicit” denotes a communication initiated by or on behalf of a lawyer or law firm that is directed to a specific person the lawyer knows or reasonably should know needs legal services in a particular matter and that offers to provide, or reasonably can be understood as offering to provide, legal services for that matter.
185
What does MPRC 7.3(b) state?
A lawyer shall not solicit professional employment by live person-to-person contact when a significant motive for the lawyer’s doing so is the lawyer’s or law firm’s pecuniary gain, unless the contact is with a:
(1) lawyer;
(2) person who has a family, close personal, or prior business or professional relationship with the lawyer or law firm; or
(3) person who routinely uses for business purposes the type of legal services offered by the lawyer.
186
What does MPRC 7.3(c) state?
A lawyer shall not solicit professional employment even when not otherwise prohibited by paragraph (b), if:
(1) the target of the solicitation has made known to the lawyer a desire not to be solicited by the lawyer; or
(2) the solicitation involves coercion, duress or harassment.
187
What does MPRC 7.3(d) state?
This Rule does not prohibit communications authorized by law or ordered by a court or other tribunal.
188
What does MPRC 7.3(e) state?
Notwithstanding the prohibitions in this Rule, a lawyer may participate with a prepaid or group legal service plan operated by an organization not owned or directed by the lawyer that uses live person-to-person contact to enroll members or sell subscriptions for the plan from persons who are not known to need legal services in a particular matter covered by the plan.
189
What does MPRC 7.6 state?
A lawyer or law firm shall not accept a government legal engagement or an appointment by a judge if the lawyer or law firm makes a political contribution or solicits political contributions for the purpose of obtaining or being considered for that type of legal engagement or appointment.
190
What does the word material mean in rule 8.1? (Q)
The word “material” means that the false statement involved a significant fact that makes it difficult for the bar to determine if the applicant is fit to practice.
191
What is a summary of model rule 8.1? (Q)
You should never intentionally make misstatements of material fact when interacting with the bar, either in the context of a bar application for admission or a when making statements to the bar as a part of a disciplinary hearing for yourself or someone else.
192
What does the word statement mean in rule 8.1? (Q)
Courts have held that the word “statement” includes both affirmative representations and omissions of facts. For example, intentionally omitting information about an arrest or termination from a job could be a violation of Model Rule 8.1.
193
What does model rule 8.1 discuss? (Q)
Model rule 8.1 states that bar applicants shall not knowingly make a false statement about a material fact in their bar application materials.
194
What does the term knowingly mean in MPRC 8.1? (Q)
“Knowingly” means that, at the time of the statement, the applicant knew that it was not true. This intent requirement leaves room for an applicant to make an honest mistake, like a typo misstating an address or graduation date, without facing disciplinary consequences.
195
What does MPRC 8.1 state?
An applicant for admission to the bar, or a lawyer in connection with a bar admission application or in connection with a disciplinary matter, shall not:
(a) knowingly make a false statement of material fact; or
(b) fail to disclose a fact necessary to correct a misapprehension known by the person to have arisen in the matter, or knowingly fail to respond to a lawful demand for information from an admissions or disciplinary authority, except that this rule does not require disclosure of information otherwise protected by Rule 1.6.
196
What does MPRC 8.2(a) state?
A lawyer shall not make a statement that the lawyer knows to be false or with reckless disregard as to its truth or falsity concerning the qualifications or integrity of a judge, adjudicatory officer or public legal officer, or of a candidate for election or appointment to judicial or legal office.
197
What does MPRC 8.2(b) state?
A lawyer who is a candidate for judicial office shall comply with the applicable provisions of the Code of Judicial Conduct.
198
What is a summary of model rule 8.3? (Q)
Lawyers are obligated to report the misconduct of another lawyer or judge when it is substantial, and when it reflects on the individual’s honesty or fitness. Lawyers are not required to report privileged information, but the Model Rules encourage lawyers to get informed consent from clients to disclose privileged information and make a report.
199
What does the word substantial mean in reference to model rule 8.3? (Q)
The word “substantial” refers to the seriousness of the misconduct, and not to the amount of evidence the reporting attorney must have to support a report of misconduct.
200
What does model rule 8.3 discuss? (Q)
Model Rule 8.3 imposes an obligation on lawyers to report other lawyers’ ethical violations.
Don't tell on me
201
What does MPRC 8.3(a) state?
A lawyer who knows that another lawyer has committed a violation of the Rules of Professional Conduct that raises a substantial question as to that lawyer's honesty, trustworthiness or fitness as a lawyer in other respects, shall inform the appropriate professional authority.
202
What does MPRC 8.3(b) state?
A lawyer who knows that a judge has committed a violation of applicable rules of judicial conduct that raises a substantial question as to the judge's fitness for office shall inform the appropriate authority.
203
What does MPRC 8.3(c) state?
This Rule does not require disclosure of information otherwise protected by Rule 1.6 or information gained by a lawyer or judge while participating in an approved lawyers assistance program.
204
What does model rule 8.4 discuss? (Q)
Rule 8.4 of the Model Rules generally states that a lawyer can be disciplined for either violating a disciplinary rule, or for conduct that reflects poorly on their honesty or fitness to practice law.
205
What is a summary of model rule 8.4? (Q)
State bars may discipline attorneys for violating ethics rules, or for conduct showing dishonesty or a lack of fitness to practice. They may also punish lawyers for prejudice or bias that hinders the administration of justice, which is a catch-all often used to deal with a lawyer’s hate speech that is not a part of legitimate advocacy.
Lawyer no more
206
What does MPRC 8.4 state?
It is professional misconduct for a lawyer to:
(a) violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another;
(b) commit a criminal act that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects;
(c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation;
(d) engage in conduct that is prejudicial to the administration of justice;
(e) state or imply an ability to influence improperly a government agency or official or to achieve results by means that violate the Rules of Professional Conduct or other law;
(f) knowingly assist a judge or judicial officer in conduct that is a violation of applicable rules of judicial conduct or other law; or
(g) engage in conduct that the lawyer knows or reasonably should know is harassment or discrimination on the basis of race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status or socioeconomic status in conduct related to the practice of law. This paragraph does not limit the ability of a lawyer to accept, decline or withdraw from a representation in accordance with Rule 1.16. This paragraph does not preclude legitimate advice or advocacy consistent with these Rules.
207
What does MPRC 8.5(a) state?
Disciplinary Authority. A lawyer admitted to practice in this jurisdiction is subject to the disciplinary authority of this jurisdiction, regardless of where the lawyer's conduct occurs. A lawyer not admitted in this jurisdiction is also subject to the disciplinary authority of this jurisdiction if the lawyer provides or offers to provide any legal services in this jurisdiction. A lawyer may be subject to the disciplinary authority of both this jurisdiction and another jurisdiction for the same conduct.
