MPRE Flashcards

Question

What does “substantially related” mean? (former clients)

Answer 1

Objective test: 1. What was the scope of the prior representation? 2. Could the lawyer have learned information? 3. Would that information be useful in the current litigation?

Answer 2

NO: 1. Business dealings or acquisition of an interest in client or client’s property 2. Drafting a will or gift in which lawyer is the heir or donee (unless for a family member) 3. Related lawyers on the other side 4. Acquisition of story rights until the representation of client concludes (relates specifically to the lawyer giving their rights, not the client) 5. Proprietary interest in litigation (champerty) 6. No sex with clients (unless pre-existing sexual relationship, this is a personal disqualification and not contagious to the firm)

Answer 3

Do not loan money to a client, or pay for their case No advance to client except for court costs Lawyer can pay court costs for an indigent client Lawyer can advance court costs to any client; repayment can be contingent on outcome.

Answer 4

* A lawyer cannot take representation where the lawyer may be a witness. * Exceptions: -Uncontested issues -Service value in the case

Answer 5

1. Contagious conflicts o If a lawyer is in conflict with representation of a client, no other lawyer in the firm may represent the client. The lawyer is contagious. Exceptions o Client consents, informed, and confirmed in writing o The conflict is based upon the lawyer’s personal interest. (e.g., sex with clients). 2. Incoming Lawyer 3. Non-lawyers o Nonprofessional employees (paralegals, secretaries, etc.) can also create conflicts. o The same rules apply

Answer 6

Arises when a new lawyer is contagious with a conflict a. Application  This rule only applies to the incoming lawyer  The incoming lawyer will not give the law firm a conflict as long as there is instant screening and the incoming lawyer receives no part of the fee b. Screening  No information is passed between the incoming lawyer and the firm;  The lawyer is apportioned no part of the fee; and  The affected client must be afforded notice, but consent is not required.

Answer 7

A former government lawyer who becomes associated with a firm can create a conflict. Requirements to deal with conflict: o The lawyer is screened on the matter. o The affected client must be notified.  Gives the client opportunity to monitor the screening Job search

Answer 8

o Government lawyers, agency lawyers, arbitrators, mediators, and third-party neutrals cannot negotiate for employment with a party if that party is involved in a matter in which the lawyer participates o Exception— law clerks can seek employment with parties before the court, provided they tell the judge

Answer 9

Information learned from a prospective client can create a conflict. (ie husband tries to retain services and spills information, cant represent wife) Is it contagious? Can be avoided immediate screening of the lawyer who dealt with the prospective client o Conflict exists if the attorney solicits information from a prospective client o An unsolicited communication from a prospective client does not trigger this conflict.

Answer 10

* The client is the client, and the third-party payor (e.g., insurance agency) is not the client. * Three forms of impermissible interference with the attorney’s independent representation of a client: 1. Work control 2. Information control (demanding to see what's going on) 3. Settlement control * A client can consent to these forms of improper influence. * An agreement to eliminate or limit malpractice is not valid

Answer 11

“Organization” includes corporations and other entities. 1. Who is the client? o The lawyer represents the organization, not its constituents. o Joint representation of organization and its constituents is permissible. 2. Control group o The principal managers of organization o May have joint representation of this group 3. Bad behavior of organization

Answer 12

If a lawyer knows (actual knowledge) of a violation of law that may be imputed to the organization and likely to result in substantial injury to the organization, the lawyer should take measures including referring the matter to the highest organizational authority.  Board control—the lawyer may have to go to the board. o If the organization does not correct the matter, the lawyer may resign.  “Noisy withdrawal” is allowed (confidential material may be disclosed)

Answer 13

Lawyers must be competent

Answer 14

o Malpractice requires damage. o Discipline does not require damage.

Answer 15

Legal liability  Conventional malpractice is coextensive with negligence * Basic tort test—duty, breach, causation, damage * The duty arises out of the attorney-client relationship.  Breach of fiduciary relationship (e.g., a conflict)  Breach of contract for failure of performance * Damages are usually limited to recovering fees

Answer 16

Malpractice: fiduciary, and contracts: preponderance of the evidence Ethics violation: clear and convincing evidence  Violations of the MRPC do not set up a cause of action for malpractice  Violation of the MRPC may be evidence of a breach of duty

Answer 17

Arises if the lawyer is not competent or cannot become competent without unreasonable delay

Answer 18

o A lawyer cannot contractually limit recovery. o Can enter an agreement prospectively limiting the lawyer‘s malpractice liability only if the client is represented by independent counsel

Answer 19

The client need only be (i) advised in writing of the desirability of seeking independent legal counsel, and (ii) given a reasonable opportunity to seek such advice.

Answer 20

o A lawyer must tell the client when the lawyer has made an error.

Answer 21

1. Third-party beneficiaries owed a duty (ie nephew left out of will by lawyer accidentally) 2. Unauthorized acts

Answer 22

* Must reasonably believe that the other lawyer will contribute

Answer 23

* Defamation defense—privilege when the publication is related to a proceeding in which the lawyer is counsel * Malicious prosecution defense—probable cause for the action brought by the attorney

Answer 24

Advice about crime is not criminal if the lawyer attempts to dissuade the client

Answer 25

Lawyers must be diligent. * If you cannot be diligent, you must withdraw * Cannot delay for the sake of delay.

Answer 26

A lawyer may not assert or defend a claim that is frivolous absent a good-faith argument to extend the law. Important—“frivolous” is subject to interpretation. Reliance on a client’s factual assertion may be permissible under ethical rules. FRCP 11 and its state cognates require “reasonable investigation” into the client’s facts. o Development of facts may make an action frivolous later.

Answer 27

o Can ask for/consent to a reasonable extension

Answer 28

* “Tribunal” includes administrative agencies as well as courts. * A lawyer may not “knowingly” (actual knowledge): o Make false statements as to law or fact; o Fail to disclose controlling authority on the other side; or o Offer evidence the lawyer “knows” to be false.

Answer 29

A lawyer may refuse to offer evidence the lawyer “reasonably believes” is false. Except: When the lawyer’s client is a criminal defendant, the MRPC do not permit a lawyer to refuse to offer the client’s testimony unless the lawyer knows the testimony will be false

Answer 30

* When a lawyer “knows” evidence submitted was false or, typically, when perjury has been committed or is about to be committed: o Lawyer must remonstrate with the witness (i.e., attempt to dissuade) to correct the falsity; o Lawyer may take the matter to the court and seek to withdraw; o When withdrawal is denied (and it usually will be), the lawyer can present “trial by narrative”  Trial by narrative—the witness testifies without lawyer’s participation (i.e., no questions or objections). * A lawyer has a duty to correct errors (false testimony, etc.). o Does it last forever? It ends when the litigation is over.

Answer 31

* A lawyer cannot tamper with evidence or witnesses. Must turnover serious evidence to police. * No payment of witness except for the cost of coming to the proceedings o Exception—expert witnesses can be paid. o But—no contingency fees for experts.

Answer 32

* Generally, no “ex parte” communications by the lawyer o Applies to pending and impending litigation * Persons with whom lawyer cannot communicate ex parte: Judges, jurors, the prospective venire (potential jurors) o Might be permitted to speak to jurors after the trial (survey)  Regulated by local court rules  Typically requires judicial permission  Cannot talk to the juror about inadmissible evidence

Answer 33

o A lawyer (or the lawyer’s agent) may not communicate with represented people. o A lawyer must have knowledge of representation o Once a lawyer knows a person is represented, the lawyer must deal with the attorney

Answer 34

Presume that members of the control group of an entity are represented by the lawyer for the entity. o Former employees are no longer represented by the entity’s attorney.

Answer 35

o A lawyer cannot talk to a person who could make a statement that would be used as an admission.

Answer 36

A lawyer cannot mislead the unrepresented person. o Special rule—undercover attorneys  Use of an undercover agent is permitted, particularly in criminal cases and in civil litigation, where information cannot be obtained by other means.

Answer 37

Lawyer must notify the sender Permitted to read any inadvertent communication

Answer 38

* Prejudice—lawyers cannot make statements to media that have a substantial likelihood of prejudicing the proceeding. * Exceptions: o To protect from other publicity o General facts of the case and procedure (e.g., how litigation will proceed, scheduling, or warning to public) NEVER: Can make bad statements about witnesses MAY: Respond to media to protect client from publicity not initiated by the client or lawyer.

Answer 39

o Client asks an attorney to evaluate something; o The attorney’s evaluation will be given to the third party Basic rule o An attorney must give candid advice to a third party. o An attorney must tell the client before communicating unfavorable information.

Answer 40

* Neutral as to third parties, not to clients

Answer 41

* Prosecutors are subject to a set of constitutionally mandated rules: o Must have probable cause to bring a criminal action; o Cannot take advantage of unrepresented persons; o Must disclose exculpatory information; o No subpoena of a lawyer in order to destroy attorney client privilege; o Like other lawyers, restrictions against talking to the media; and o Required to seek a remedy if new evidence is clear and convincing.

Answer 42

* General rule—a lawyer must keep her own property separate from the client’s property.

Answer 43

* All forms of communications are considered advertising.

Answer 44

1. May not be false or misleading 2. Unverifiable self-promotion (ex. greatest lawyer ever) 3. Expertise and fields of practice 4. Disclosure of location of offices 5. Names of client (Advertisement can include the name of regularly represented client, provided lawyer has the client’s consent) 6. Identification of advertiser (Any communication about a lawyer or firm must include the name and contact information of at least one attorney or law firm responsible for its content.) 7. No implication of a partnership unless one really exists

Answer 45

Can be a "specialist", but cannot call themselves a "certified specialist" unless: (i) certified by an appropriate state authority or ABA-accredited org, (ii) or name of the certifying organization is clearly identified)  Patent: If a lawyer is admitted to practice before the US Patent and Trademark Office, the lawyer can call herself a “Patent Attorney.”  Admiralty: If a lawyer is engaged in admiralty practice, the lawyer can call herself “Proctor in Admiralty,” or designate her practice “Admiralty”

Answer 46

1. Can’t be false or misleading o Applies to websites and social media as well o Firm may be designated by names of all or some of its members, including deceased members. o If a firm uses a trade name that includes a geographic name, the communication must include a statement that it is not a public legal aid organization. 2. Firm name cannot imply a connection with: o Government agency; o A deceased lawyer who was not a former member of the firm; o A lawyer not associated with the firm; o A non-lawyer; or o A public or charitable legal services organization. 3. Firm cannot use the name of a lawyer holding public office 4. Firms with offices in more than one jurisdiction may use the same name in each.

Answer 47

Real-time, direct contact to solicit business is prohibited.  This includes in-person, on the telephone, and synchronous electronic communication.  Does not include chat rooms, text messages, other communications that recipients may easily disregard.  Exceptions: * Another lawyer * Family, close personal, or prior business relationship * Person who routinely uses the lawyer’s type of legal services  The prohibition is on the lawyer seeking pecuniary gain

Answer 48

Generally permitted, but:  Cannot involve coercion, duress, or harassment; and  Cannot be to someone who has said they don’t want to be solicited.

Answer 49

 General mail should not be restricted Note:  Florida Bar v. Went For It * Florida enacted a 30-day restriction on contact with accident victims. * The restriction was upheld as a reasonable restriction on advertising rights BUT: NY ban on pop up ads is unconstitutional

Answer 50

* Referral services are permitted. o Watch for Internet-based client generators: E.g., “divorce.com”, may cross the line * No payments for percentage of fees, but, ad rates are okay

Answer 51

* Aspirational rule (i.e., not mandatory)—fifty hours of pro bono service per year * Conflicts may arise between your pro bono and legal services work and your regular work. o Special conflicts rules apply:  Conflicts rules do not apply unless the lawyer is aware of the conflict.  “Special Material Benefit Disclosure” rule—this is the situation where a decision in the pro bono matter will benefit one of lawyer’s other clients. * A lawyer must disclose the existence of a conflict, but… * The duty of confidentiality prevents disclosure of the client’s identity.

Answer 52

* Potential tension between providing public with legal services and the lawyer’s possible liability for such services * These services are nevertheless allowed.

Answer 53

o Solicitation of campaign contributions and participation in political work is permitted. o No bribery, because of course not o Cannot make contributions in exchange for an appointment or for favor in a lawsuit o Applies to all political offices, not just judicial offices

Answer 54

o Not permitted to lie about candidate’s fitness for office o NY Times v. Sullivan—the First Amendment protects speech against public figures.  Not defamation unless the speaker made the comment with “Actual Malice”—knowing falsity or reckless disregard for truth

Answer 55

o Permitted, subject to legal ethics as well as judicial ethics

Answer 56

Interplay with Lawyer’s Ethics * A lawyer may not induce a judge in the violation of judicial ethics.

Answer 57

* Structure o Canons = General principles o Rules = specific rules o Comments = suggestions

Answer 58

1. Judges must comply with the law. o Unlike a lawyer, a judge must avoid the appearance of impropriety. 2. No abuse of office for gain

Answer 59

* Judges must be diligent and impartial (i.e., no favoritism). * Justice must be blind

Answer 60

1. Generally prohibited o The prohibition applies to judges as well as lawyers. o Staff control—the judge is responsible for controlling her staff, particularly in the area of ex parte communications 2. Permitted ex parte contacts: scheduling, consultation with experts, communication with staff, settlement discussions (only with parties’ consent), etc. 3. Judge as detective—a judge may not conduct an independent factual finding of any matter before the court

Answer 61

* Judges should not make public comments on pending or impending cases. * Applies to cases before any court if it might affect the outcome or fairness

Answer 62

Judge: “I will not hear this case.” o Arises when the judge’s impartiality is questioned o Look for:  Money—some interest in the outcome  Relatives  Anger  Bias o Exception—rule of necessity  If no judge can hear the case, someone has to do it.

Answer 63

o Personal bias toward a party or lawyer; o Personal knowledge of facts in the case; o Judge and spouse’s relationship; o Money involved for the judge or the judge’s family; o Political contributions by one party generally are not grounds for recusal;  Exception—contribution in excess of what is legal o Judicial conflict—judge has previously served as a:  A lawyer in the matter;  as a prior official; or  Prior judge in the matter before the court

Answer 64

o Must disclose to the litigants all information that is useful to judge whether recusal is appropriate

Answer 65

o Recusal may be waived by the parties, even in cases of mandatory recusal. o Exceptions—recusal based on personal bias and personal knowledge may not be waived.

Answer 66

* Judges are obligated to report known violations of the rules by another lawyer that implicates the lawyer’s honesty, trustworthiness, or fitness as a lawyer. * Impairment—if the judge has a reasonable belief that a lawyer is impaired, the judge must take appropriate action. Note: The Rules treat knowledge and reasonable belief the same. A judge must disclose.

Answer 67

1. Overall theme o Judges cannot engage in activities that undermine the integrity of the judge or of the court. 2. Character witness o A judge cannot be a voluntary character witness. o A judge can be a character witness if summoned to testify. 3. Fiduciary o No fiduciary appointments (e.g., trustee, executor) o Exception—family matters 4. Practice of law o A judge may not practice law. o Exception—pro se practice 5. Outside business o No outside business o Exception—family business, so long as it does not interfere with judicial work.

Answer 68

1. Non-reportable gifts o Gifts to judges are permitted without reporting, if in the ordinary course. 2. Reportable gifts o Large gifts are subject to reporting rules. o Conventions—reimbursement for judge’s attendance at a convention  Recreation—the judge must report.  Education—the judge need not report. (thin line)

Answer 69

o A judge must stay out of politics—including endorsement of political candidates, even family members

Answer 70

no pledges, promises, or commitments o No commitments o Candidate for judicial office (issues v. parties)  General comments about issues—allowed  Specific comments about parties—not allowed Keep in mind! Judge comments might be the basis for recusal.

Answer 71

o A judge can have a campaign committee. o A judge can endorse candidates for the same office.

Answer 72

o A judge must quit the judgeship

Answer 73

o A judge need not have to quit job.

Answer 74

Censure: Getting scolded  Privately—by the disciplinary authority  Publicly—by the Supreme Court o Disbarment: loss of license to practice law  Long-term suspension (more common)

Answer 75

Disqualification Civil liability Criminal liability

Answer 76

usually a court, but not always Binding legal judgment

Answer 77

Writing can be electronic. o Informed consent; requires:  Adequate disclosure (i.e., communication), and  Consent  Confirmed in writing * Consent may sometimes be oral.

Answer 78

o “Knowingly” (or “known,” or “knows”): Actual subjective knowledge o “Belief” (or “believes”): Actual subjective belief o “Reasonable” (or “reasonably”): What a reasonably prudent and competent lawyer would know/believe/do; an objective standard

Answer 79

1. State supreme courts 2. Federal district courts

Answer 80

1. Education—graduation from ABA-accredited law school 2. Character and fitness test (mostly concerned with criminal history; crimes of honesty and truth telling can be disqualifying) 3. Residency—no residency requirement for admission (a constitutional issue) 4. Truthfulness—no lying on the application for bar admission or law school admission 5. Exam

Answer 81

o Permission to sit cases arise when an issue is discovered before the exam. o Permission to enter cases arise after the exam. Penalty: usually suspension

Answer 82

1. Violation of the rules 2. Criminal act that touches on attorney’s honesty or fitness to practice 3. Fraud or deceit even if not criminal

Answer 83

lying to the court

Answer 84

 Making a statement;  Knowing it is false;  Intending to deceive;  Causing reasonable reliance; and  Resulting in damage. For disciplinary purposes under the MRPC, it is not necessary that anyone relied upon or suffered damages from the misrepresentation.

Answer 85

a. Partners must make reasonable efforts to ensure that the lawyers and non-professional employees comply with the Rules. b. Compliance  Must have a system in place to ensure compliance c. Non-professional employees  Applies to any non-lawyer who works with the law firm (employee, independent contractor, IT staff, etc.)

Answer 86

Supervisory attorneys are liable for Rules violations of supervised attorneys and non-professionals if they: 1) Order, 2) Ratify, or 3) After learning of a violation, fail to take remedial action o Responsibility for the conduct of non-professional employees is exactly the same as it is for lawyers

Answer 87

o A subordinate lawyer or staff person cannot defend by saying, “I was only following orders.” o Only a reasonable order by a supervisor is a defense.

Answer 88

* Out-of-state conduct can expose you to discipline at home. Conflict of Laws—which law applies (other than the home state)? Lawyer’s belief—the conduct must conform to the rules of the jurisdiction in which the lawyer reasonably believes his conduct will have a predominant effect.

Answer 89

A lawyer is required to report violations to disciplinary authorities. o The reporting lawyer has actual knowledge of a substantial violation. o The violation goes to lawyer’s substantial honesty, trustworthiness, and fitness to practice law * Same obligation for bad judicial conduct

Answer 90

An out-of-state lawyer may practice in a jurisdiction on a temporary basis. 1. Pro hac vice admission o There must be a “vice” (dispute). Note: Also applies to mediation and arbitration 2. Association with local counsel o Local counsel must actually participate; she can’t be a mere silent partner 3. Working for a client from home jurisdiction o The attorney must have home-state qualification.

Answer 91

Practicing law: Any activity which develops facts or law What is the result? o Non-lawyers—injunction (e.g., “Stop doing that.”) o Lawyers—Lose fees (e.g., the lawyer is not qualified or licensed)

Answer 92

o A lawyer is prohibited from aiding and abetting the unauthorized practice of law by failing to supervise non-professionals To avoid this, the lawyer:  Must have client contact; and  Must supervise and take responsibility for the work of the non-professional Pro se litigants: o Ghostwriting—a lawyer can give limited aid and assistance. o Pro se litigants cannot be entities.

Answer 93

A lawyer CANNOT divide legal fees with non-lawyers o Exceptions: Estates of decedent lawyer, retirement plans, etc. o Legal fees are for legal work. Real firms may split fees—the entity must be a professional corporation. No non-lawyer can be in control of a lawyer’s judgment. o No control by a third-party payor Lawyer-owned related services (e.g., document retention or delivery services): o Clients must know they are not dealing with a lawyer

Answer 94

The sale of a practice to other lawyers is permitted. o The Lawyer:  Must stop the practice;  Give notice to the client; and  Sell the practice to a lawyer. o May sell the whole practice or only one area o Cannot increase the fees associated with the sale

Answer 95

o In-house counsel; o Pro bono o Different area of law; o Change in circumstances (e.g., illness, financial difficulty).

Answer 96

* No covenants not to compete with other lawyers * Exception—sale of practice

Answer 97

* Generally, a lawyer has no duty to represent a client. o Exception—court appointments; however, they may be declined for cause. o Sufficient causes—not being paid, violation of rule of professional responsibility, commission of a crime

Answer 98

Duty is coextensive with the Rules for mandatory withdrawal.

Answer 99

Triggering event—the formation of an attorney-client relationship triggers civil and ethical responsibilities. Requirements—no need for fee or agreement to create the relationship

Answer 100

o The test is not contractual. o The test is like a tort test o Would a reasonable person determine that an attorney-client relationship has been formed?

Answer 101

o Just say, “No.” o Make clear to the prospective client that you are not in an attorney-client relationship.

Answer 102

o Lawyers and clients may limit the scope of representation. The scope cannot be so limited as to create ineffective representation.

Answer 103

The lawyer must tell the client everything the client needs to know to make an informed decision about the case. o Settlement offers must be communicated to the client. o Exception—a prior agreement with client concerning a limitation (ie no settlements below a set amount)

Answer 104

Only the client can make the following decisions: o Whether to testify; o Whether to exercise the right to trial by jury; and o Plea deals must be communicated to the client.

Answer 105

example: Minority (underage), medical disability (mental disability, drug addiction) Lawyer Duties:  Maintain an ordinary relationship;  Seek appointment of a guardian, if necessary; and  Permitted to reveal information as necessary to protect the client. * You are allowed to take protective action.

Answer 106

Yes to legal consequences No as how to commit crime

Answer 107

coextensive with the attorney-client relationship a. Violation of Rules of Professional Conduct b. Attorney impairment c. Discharge of attorney

Answer 108

 A client has an absolute right to fire an attorney. * Cannot be modified by contract * Cannot have a penalty provision such as liquidated damages or elevated fees  Client still owes fees due to the discharged attorney (unless discharged for cause

Answer 109

Must get leave of court to withdraw; even if the withdraw is mandatory

Answer 110

a. Harmless withdrawal (no harm to client even if they object)

Answer 111

 “Reasonable belief” the client is pursuing crime or fraud and the lawyer’s services were used in the client’s crime or fraud  Client’s action is repugnant to the attorney  Unreasonable financial burden * Usually arises in the case of a court appointment * Caution: A bad deal is not enough.  Client fails an obligation to the lawyer * What Obligation? Not paying fees.  Good cause (e.g., illness or family emergency) REMEMBER: When in the court process, an attorney must always obtain court permission to withdraw.

Answer 112

Return the client’s property and unearned fees. o If the client still owes a fee, the lawyer can have a retaining lien on the client’s property.  Should not harm the client  Passive lien—cannot sell the property; operates like collateral Disbursement of funds (third-party dispute)  An attorney must hold disputed funds until the third party’s dispute is resolved.

MPRE Flashcards

(136 cards)