MPRE Flashcards

Question

FORMATION OF attorney-client RELATIONSHIP

Answer 1

Lawyer and client agreement * Implied assent and reasonable reliance (If client reasonably believes you represent them) * Court appointment

Answer 2

* Hourly fee * Flat fee * Contingency fee * Can be in the form of non-monetary property

Answer 3

Written fee agreement required for contingent fees * Written fee agreement preferred for all other fees Must communicate fee before or within reasonable time after representation. Includes changes. Exemption for routine representation of a regular client.

Answer 4

Reasonable. Type of fee must be reasonable. Shouldn’t do contingent fee for 2-hour deal. Many factors considered, including: * Time and labor * Complexity * Nature of relationship * Fixed or contingent fee If client pays an advance on fees, it’s not lawyer’s property until EARNED. Unearned fees are returned. Retainers are more like reservation fees. Belong to lawyer and don’t need to be returned. Lawyer might call something a “retainer” when it is really an advance.

Answer 5

Criminal cases * Domestic relations cases (but allowed in collec- tions cases) (Different because you aren’t negotiating the alimony/fee amount.)

Answer 6

Must be in writing and signed by the client, and must disclose: * Who is paying expenses * How fee will be calculated * Which expenses will be deducted and when Tell them what expenses they must pay even if they lose. Must also provide written statement at case conclu- sion.

Answer 7

Lawyer can share fees with current lawyers in their firm, retired members of their firm, and former firm members with pending cases.

Answer 8

Classic “referral fees” (with no work) aren’t allowed. * Both lawyers must be involved or responsible Option 1: Split proportionate to services performed by each Option 2: Each assumes joint responsibility and split the fee any way they like (joint responsibility ethically AND financially) Client consent to arrangement and shares, con- firmed in writing * Total fee must be reasonable

Answer 9

* Client generally decides scope, but lawyer can limit * Can’t advise or help to do something illegal or fraudulent, but you can tell them consequences

Answer 10

* Civil Cases: Whether to settle * Criminal Cases: What plea to enter, whether to waive a jury trial, whether client will testify * All Cases: Whether to appeal

Answer 11

Lawyer generally makes strategic decisions, but must consult with client about how the work is done. (must consult especially when costs are involved)

Answer 12

Lawyer’s actions will bind client when lawyer has actu- al or apparent authority. Actual authority: Communicated by client to lawyer expressly or impliedly. Apparent authority: Third party believes lawyer has authority based on client’s actions. Legally, client will be bound if you had apparent authority. can sue you, but still bound. You have a duty to inform 3Ps when your authority ends.

Answer 13

* Maintain normal relationship to the extent possible * If client at risk of substantial harm, can take protec- tive action (substantial financial or physical harm) * When taking protective action, lawyer impliedly authorized to disclose client’s confidential infor- mation to the extent necessary to protect client’s interests (but, general duty of confidentiality still applies.)

Answer 14

* Case status updates * Game plan * Response to reasonable requests for info * Anything that requires informed consent If client asks you to do something unethical, must explain why you can’t.

Answer 15

Must promptly inform client of settlement and plea bargain offers unless client has expressly authorized acceptance or rejection of certain offers.

Answer 16

* Physical or mental condition materially impairs abil- ity to represent client * Representation requires violation of RPC (like assisting in crime/fraud) * Fired by client (can be fired for any reason) Client merely suggesting something unethical doesn’t mean you have to withdraw. Withdraw only if client demands unethical.

Answer 17

* Any reason if no material adverse effect (on the client.) * Reasonable belief client doing something criminal or fraudulent involving lawyer’s services * Client used lawyer’s services in past crime or fraud * Client’s actions repugnant (like when you strongly morally disagree with client) * Client makes representation unreasonably difficult (lies, doesn’t answer, etc.) * Client hasn’t paid and has been warned * Unreasonable financial burden * Other good cause sometimes you need court permission, like if you’re court appointed.

Answer 18

* Reasonable notice to client * Refund advance payments if not earned (you’re entitled to reasonable fee for work you did.) * Return client’s file unless permitted by law to retain (You can keep the files through a lien if law allows it.)

Answer 19

Attorney-Client Privilege * Communications only * Applies only to disclosures in proceedings Duty of Confidentiality * All information relating to representation * Applies to disclosures in any setting Both apply to initial consultations. Both apply even after the end of representation or client’s death.

Answer 20

Attorney: Any person the client consults to obtain legal assistance. (Includes anyone the client believes is a lawyer.) Client: Anyone seeking lawyer’s legal services. (Even if you don’t end up representing them.) Agents: Includes support staff, someone else brought in to assist with the matter, and someone who’s there to help client communicate.

Answer 21

Communication: Information passed between lawyer and client for the purpose of obtaining legal assis- tance for the client. * Does NOT cover communications not made for legal assistance * Does NOT cover pre-existing documents or re- cords Privilege does not cover basic information.

Answer 22

Reasonable belief that outsiders will not learn the contents of the communication. Eavesdropper—communication generally remains privileged

Answer 23

Client holds the privilege and decides to claim or waive it, but lawyer must claim on client’s behalf in client’s absence.

Answer 24

Attorney, agent, or client can waive privilege by failing to object, or disclosing to third party.

Answer 25

* Aid in future crime or fraud * Self-protection * Litigation between former joint clients * Competency or intent of deceased client

Answer 26

Anything made in anticipation of litigation generally isn’t discoverable UNLESS opponent shows substan- tial need and undue hardship (but even in that case, mental impressions or opinions don’t need to be dis- closed).

Answer 27

* Broader than privilege * Third party’s knowledge does not affect duty (Info remains confidential even if 3Ps know about it. ) * Information need not come from client * Cannot disclose to anyone Can ask for advice and keep client secret IF there is no reasonable likelihood that they’ll figure out who the client is. Informed Consent and Implied Authority: Can disclose with client consent. Authority to disclose may be implied if disclosure is in client’s interests. Can share info with anyone at your firm.

Answer 28

These exceptions are all permissive, not mandatory. Can disclose if necessary to: Prevent death or substantial bodily harm * Prevent/rectify substantial financial injury to anoth- er if services used in furtherance * Defend self in dispute concerning lawyer’s conduct * Obtain legal ethics advice * Detect and resolve conflicts of interest due to change of employment, merger, or sale of practice (Can only disclose (minor stuff) after substantive decisions) * Comply with court order or law Note: Duty of candor to tribunal > duty of confidential- ity.

Answer 29

Must safeguard confidential information by making reasonable efforts to prevent disclosure or access. Be careful with the internet.

Answer 30

discipline, disqualification from the case, and even malpractice liability.

Answer 31

Conflicts are imputed to everyone at firm, except: * Conflict uniquely personal to lawyer * Certain conflicts based on past work of lawyer screened from case Conflicts based on Lawyer A’s past work with can be solved by screening Lawyer A from the matter at the current firm.

Answer 32

Rule Can’t represent client if: * Representation will be directly adverse to another client (Even if the two matters are unrelated), or * Significant risk that representation will be materi- ally limited by another interest

Answer 33

* Reasonable belief can represent each competent- ly and diligently * Informed consent, confirmed in writing from each affected client Note: Being on opposite sides of the same litigation → unwaivable. Can waive both “direct adversity” and “material limitation” conflicts, but not when representing two sides of a case. Confirmed doesn’t need to mean “signed by client.” It can mean a CYA email, but it needs to be sent to the client.

Answer 34

Clients on opposite sides of same matter Representing client’s opponent in another matter (against the first client) Cross-examining current client in another matter

Answer 35

When representation will be materially limited by: * Lawyer’s responsibilities to different client, former client, or third person (EX: If one client’s case will establish a precedent that will hurt another.) * Lawyer’s personal interests

Answer 36

In criminal cases, the risk of conflict is high and joint representation isn’t advisable. In civil cases, the conflict can usually be addressed: * Must reasonably believe can represent all par- ties well (Consider whether their interests are aligned.) * Must explain consequences (like no privilege if they sue each other later) * Must get informed consent * Must re-address conflict if potential conflict becomes real * Must withdraw if reasonable lawyer would ad- vise any client against consent * Must get consent of dropped clients if continu- ing to represent any co-parties

Answer 37

Representation may continue with client con- sent * Uniquely personal conflict (e.g., family member is opposing counsel) is not imputed to firm

Answer 38

Representation may be limited: * Where lawyer owes a duty of confidentiality to a former client * Where lawyer is corporate director * When lawyer acts as fiduciary

Answer 39

Must not use client’s information against them without informed consent. Exceptions: (1) Client gives informed consent (doesn’t need to be in writing) (2) if a confidentiality exception applies

Answer 40

* Transaction must be fair and reasonable to client * Lawyer must disclose all terms to client in writing, in a way the client understands * Lawyer must advise client in writing to get inde- pendent counsel * Client must give informed consent in a signed writing Doesn’t apply to normal services offered to the public like a store.

Answer 41

No proprietary interest in cause of action or subject matter of litigation, except: * Contingent fees * Lien on client’s recovery (if authorized by law)

Answer 42

A lawyer cannot: * Solicit substantial gift from client unless relative (Can receive a gift, but can’t solicit.) * Prepare instrument giving lawyer or relative sub- stantial gift unless donee related to client

Answer 43

Cannot have interest in book, movie, or other por- trayal during representation (unless the media isn’t really about/related to the matter) * Lawyer can have interest in media rights when case is completely over

Answer 44

* No financial help to client in connection with pend- ing or contemplated litigation * Cannot guarantee loan from someone else to client Exceptions * May advance court costs and expenses * May pay court costs and expenses for indigent client * When representing indigent client pro bono, may give client modest gifts for basic living expenses If they’re gifts, can’t reimburse.

Answer 45

* Fully explain the claims and what everyone’s get- ting * Get informed consent from each client in a signed writing

Answer 46

* Client must give informed consent * Third party cannot interfere with relationship * Cannot reveal client’s confidential information

Answer 47

* Preexisting sexual relationship generally OK * Subject to discipline if sexual relationship follows attorney-client relationship * Conflict not imputed to the firm For companies, you can’t date the person you deal with for legal matters. But, another employee is fine.

Answer 48

Can’t reveal confidential information or use it to former client’s disadvantage without consent, unless informa- tion has become generally known. a lawyer who uses the confidential information for her own pecuniary gain other than in the practice of law may be subject to civil liability

Answer 49

Cannot represent new client against former client if matter is same or substantially related to former cli- ent’s matter, unless former client consents. Meaning of “Substantially Related” * Same transaction/legal dispute, OR * Substantial risk confidential information would materially advance new client’s position

Answer 50

Cannot work on opposite side if actually acquired con- fidential information about the matter while at former firm. UNLESS FORMER CLIENT CONSENTS

Answer 51

If incoming lawyer has conflict, firm can screen the disqualified lawyer: * No sharing of fees * No access to case files Notice (not consent) to former client with disclosures about pro- cedures * Updates to former client

Answer 52

When client leaves, firm disqualified from represent- ing other side in same or substantially related matter if even one lawyer remaining at firm has confidential information about the case, unless former client con- sents.

Answer 53

Prospective clients are those who had a reasonable expectation of representation No adverse representation in same or substantial- ly related matter if confidential information would be significantly harmful to prospective client (UNLESS PROSPECTIVE CLIENT CONSENTS) * Conflict imputed to firm but can be cured with screening

Answer 54

Cannot represent private client without government agency’s consent if: * Same “matter” (must involve specific facts and parties) * Lawyer worked personally and substantially on matter while in government * Conflict imputed to firm but cured with screening UNLESS GOVERNMENT AGENCY CONSENTS

Answer 55

If lawyer acquired confidential government information about a person during government employment, can’t represent private client against them later.

Answer 56

Normal conflict rules, plus: * Cannot take part in any matter personally and substantially involved in while in private practice, unless government agency consents

Answer 57

Cannot represent client in matter lawyer was per- sonally and substantially involved in as a judicial actor or third-party neutral, or as a law clerk, unless all parties to the proceeding consent * Conflict imputed to firm but cured by screening, notice to all parties, and notice to the affected tribunal

Answer 58

Government employee, judge, or third-party neu- tral cannot negotiate for private employment with any party in a matter they are personally or sub- stantially involved with * Exception for law clerks who give advance notice to judge

Answer 59

Must act with the knowledge, skill, thoroughness, and preparation necessary to do the work.

Answer 60

Associate (get help) * Learn it in time * Emergency (can help during emergency, even if not competent, but only for a short time)

Answer 61

Must act with reasonable diligence and promptness. Diligence is breached only if your conduct prejudiced (hurt) your client

Answer 62

Negligence * Duty of care * Breach of duty * Causation * Damages Duty of Care * Competence and diligence exercised by attor- neys in similar circumstances * Specialist held to higher standard (if you hold yourself out to your client as a specialist) Examples of Breach * Missing deadlines * Failure to send to specialist * Bad advice Note: No breach if judgment was well-informed and reasonable. ethical violations are evidence of failing to meet standard of care. But not conclusive. Causation * But for malpractice, client would have won * But for malpractice, client would not have had to pay a large judgment

Answer 63

Duty of care owed to: * Prospective clients given legal advice * Those intended to benefit from legal services * Those invited to rely on opinion or legal services

Answer 64

including non-lawyer employees Firm is vicariously liable for damages caused by some- one at firm if: * Action was in ordinary course of business, or * Person was authorized to act In a general partnership, all partners are jointly and severally liable for firm obligations (doesn’t usually apply to LLCs or LLPs)

Answer 65

Before settling claim or potential claim with current or unrepresented former client, lawyer must: Advise them in writing to obtain independent counsel * Give them reasonable opportunity to do so

Answer 66

Cannot make agreement with client saying: * They can’t sue the lawyer * Lawyer has no responsibility for work * Lawyer is liable only to certain amount UNLESS client is independently represented.

Answer 67

Lawyer cannot: * Bring frivolous claim * Assert frivolous defense * Take frivolous position Meaning of Frivolous * No good faith argument under current law, AND * No good faith argument for changing law Exception When representing criminal defendant or one who could be jailed, can make prosecutor prove every element.

Answer 68

* Must make reasonable efforts to expedite litigation consistent with client’s legitimate interests * Financial benefit is not legitimate interest to delay litigation

Answer 69

Honesty when advocating before an official or body that issues binding legal judgment. Doesn’t apply to mediation

Answer 70

Cannot knowingly make false statements of law Must correct unintentional, material false state- ments * Must disclose adverse controlling law if opponent fails to

Answer 71

* Cannot knowingly make false statements of fact * Must correct unintentional, material false state- ments * No duty to volunteer facts (except in ex parte pro- ceedings) Doesn’t apply to pleadings and other court documents

Answer 72

Cannot offer evidence lawyer knows to be false * May refuse to offer evidence lawyer reasonably believes is false (except testimony of a criminal defendant) * If false evidence offered, must take reasonable remedial measures (supersedes confidentiality) * Duty to rectify continues until proceeding is com- pletely over, appeals and all False Testimony by Criminal Defendant Client * Try to persuade otherwise * Consider withdrawal * If all else fails, disclose situation to judge Note: Some jurisdictions allow narrative testimony, but that is not the ABA approach. Narrative testimony: Client testifies on the stand openly, not really guided by their attorney’s questions.

Answer 73

* Hide, tamper with, or falsify evidence * Make frivolous discovery requests * Advise a person not to talk to the other side, UN- LESS the person is the client, the client’s relative, or the client’s agent * Make unlawful payments to witnesses (Reasonable expenses to experts usually OK, not contingency) * Violate a court rule or order (but can openly refuse to obey on the basis that it is not valid)

Answer 74

* Cannot allude to anything inadmissible * Cannot assert personal knowledge * Cannot state personal opinion about justness of cause, credibility of witness, or guilt or innocence of party

Answer 75

Cannot attempt to influence court or jurors in way prohibited by RPC * Cannot disrupt proceedings (including depos) * Cannot speak to judge or court officials without other side present * Cannot talk to jurors about ANY subject during case Post-discharge interviews of jurors allowed unless juror does not want to talk, or it involves misrepre- sentation, coercion, or harassment

Answer 76

Also applies to colleagues within the same firm No public statement if lawyer should know it is likely to cause material prejudice, including: * Character or credibility * Results of examinations * Whether defendant will plead guilty * Whether defendant confessed * Anything inadmissible at trial Can talk about publicly available info Permitted Statements * Dry facts of case * “They started it”—can make statement to protect client from prejudice caused by another If OC makes statement first, can respond

Answer 77

Lawyer can’t act as advocate in case where lawyer is likely to be a necessary witness. Exceptions to Disqualification * Testimony concerns uncontested matters or for- mality * Testimony concerns the nature and value of legal services in the case * Withdrawal would cause substantial hardship to client If disqualified under this rule, disqualification not imputed to firm but generally need client consent, confirmed in writing, if another lawyer at the firm takes over.

Answer 78

Includes misleading things— not just straight lies. But, you can flex in negotiations. Must not knowingly make false statement of mate- rial fact or law to third person * Must disclose material fact necessary to avoid helping client commit crime or fraud (BUT must stay within confidentiality rules) (Need a confidentiality exception, or else withdraw.)

Answer 79

Only applies if you KNOW they are represented. When representing a client in a matter, must get counsel’s consent before talking to represented person about the matter * Parties can communicate directly with each other (You can advise your client on this.)

Answer 80

Need permission from organization’s counsel to talk to: (For all other categories, don’t need OC’s permission.For all other categories, don’t need OC’s permission.) * Anyone with authority to obligate organization * Anyone whose conduct can be imputed to organi- zation (Includes the person at the center of the case.) * Anyone who supervises or regularly consults with organization’s lawyer If employee is personally represented, only need consent from their counsel. Don’t need consent for former employees unless they have their own lawyer.

Answer 81

Can communicate with unrepresented person, but must not act disinterested * Must not give unrepresented person legal advice if reasonably possible their interests will conflict with client’s

Answer 82

Cannot do something with no substantial purpose other than to embarrass, delay, or burden someone.

Answer 83

Must promptly notify sender so sender can take pro- tective measures.

Answer 84

Must be candid, and can give client moral, economic, social, or political advice in addition to legal advice.

Answer 85

Must be honest Can evaluate client’s affairs if doing so is compatible with other responsibilities to client. * No significant risk to client → impliedly authorized to disclose to third party * Materially harmful to client → client’s informed consent required before disclosure

Answer 86

No false statements of material fact in negotiations, but can “puff” (e.g., on estimates of price or value, or acceptable settlement limits).

Answer 87

When lawyer acts as mediator, arbitrator, etc., must make sure unrepresented parties understand that law- yer is not representing them.

Answer 88

Prosecutors must: * Have probable cause * Ensure accused advised of right to counsel, how to get counsel * Ensure accused given opportunity to get counsel * Not attempt to get accused to waive important pretrial rights * Brady Rule: Disclose evidence favorable to defendant * Promptly disclose any new, credible, and material evidence of wrongful conviction (even in another jurisdiction) * Try to remedy conviction if clear and convincing evidence of innocence, and conviction in own juris- diction * Not subpoena other lawyers to give evidence about clients unless evidence is essential, not privi- leged, and cannot be obtained in another way Can’t make public statements that heighten public condemnation of the accused, unless legitimate law enforcement purpose. Must also take reasonable care to prevent others from making such statements.

Answer 89

Must disclose if appearing on behalf of client (but need not identify client). EX: Lawyer testifying in political/admin proceeding must say they are acting for a client.

Answer 90

Relationship with Constituents * Duty of loyalty to organization, not people * Representing both organization and person in organization requires both to waive with informed consent * If interests conflict, lawyer must tell person work- ing for organization they don’t represent them and communications aren’t covered by privilege Violations If counsel learns that someone in organization violated duty or law that may cause substantial harm to organi- zation: * Counsel normally has duty to report inside organi- zation * If no action taken, counsel MAY report to outside authority even if confidentiality applies (Can only do it if you reasonably believe reporting is necessary to prevent substantial harm to the organization.) No authority to report outside if hired to investigate violation.

Answer 91

Safeguarding Property of Others * No commingling with own property * Held to standard of fiduciary Trust Accounts * Firm’s money in office account * Client money in trust account, including advance payments (firm can put own money in client trust account for bank services charges only) Keep records Client trust account must be located in the state where the lawyer practices, unless client consents otherwise.

Answer 92

Lawyer must: * Keep complete records of all money and property * Preserve records for five years after representation * Comply if client requests accounting * Promptly notify client or third party upon receipt of property in which they have interest * Promptly deliver property

Answer 93

Dispute Between Lawyer and Client Must keep disputed portion in client trust account until dispute resolved. Dispute Between Client and Third Party If third party has a valid claim (e.g., creditor with lien), must keep disputed portion of recovery in client trust account until dispute resolved.

Answer 94

Must not make false or misleading statements. Omitted facts: Misleading if leaves out fact necessary to make communication as a whole not materially misleading. Unfounded conclusions: Misleading if substantial likelihood reasonable person will formulate specific conclusion without reasonable factual foundation. Unjustified expectation based on past results: Mis- leading if reasonable person could think that lawyer could do as well in a similar case, without regard to facts and law in that case. (Even if it’s true, it sounds like a future guarantee. Can cure with a disclaimer (no guarantees)) Unsubstantiated comparisons: Misleading if reason- able person would think comparison can be substanti- ated.

Answer 95

Name of at least one lawyer or firm responsible for content * Contact information (can be phone number, physi- cal office location, email address, or website ad- dress)

Answer 96

Can’t include non-lawyer in firm name. * Generally can include names of deceased or re- tired partners * If named partner is in public office, cannot use name during any substantial period when lawyer is not regularly and actively practicing with firm * Trade name misleading if it implies that lawyers are practicing in a firm when they are not (e.g., solo practitioner includes “and Associates” in firm name) * Trade name misleading if it implies a connection with a government agency or charity; geographi- cal names may require a disclaimer

Answer 97

Lawyer can state that they practice in certain fields, or “specialize in” or “concentrate in” or are a “specialist” in certain fields if statement is based on their expe- rience, specialized training, or education, and is not false or misleading. Certified Specialist If lawyer states or implies that they are a certified specialist: * Must be certified by organization accredited by ABA or approved by state authority * Must clearly identify certifying organization

Answer 98

Generally cannot give or promise anything of value in return for recommendation.

Answer 99

Permitted if token of appreciation, but not if lawyer already promised it in exchange for the recommen- dation or if there is an expectation of more gifts in the future.

Answer 100

Paying for Advertising and Other Services Lawyer can pay: * Reasonable costs of advertising * Usual charges of legal service plan * Cost of participating in nonprofit referral service

Answer 101

Lawyer may agree with lawyer or nonlawyer profes- sional to send clients to each other, but: * Must not be exclusive * Shouldn’t be of indefinite duration * Referred client must be told of agreement

Answer 102

Definition: Communication initiated by or on behalf of lawyer and directed to a specific person known to need legal services in a particular matter. Public communications =/= solicitation. Not solicitation if client initiates.

Answer 103

Must not solicit employment by live person-to-person contact when significant motive is money: * No in-person contact * No live telephone contact * No real-time audio or video Ban applies ONLY when solicitation is motivated by pecuniary gain. Texts, emails, letters, and recorded messages are all generally permitted because there is no live per- son-to-person contact. Potential Clients Not Covered by Ban Can use live person-to-person contacts when solicit- ing: * Relatives * Close friends * Persons with prior business relationships * Persons with prior professional relationships * Other lawyers * Routine business users of services

Answer 104

Regardless of method or identity of potential client, all solicitation is banned in the following circumstances: * Person has made known to lawyer that they do not want the solicitation * Solicitation amounts to coercion, duress, or harass- ment * Specific legal restrictions (civil or criminal penalties)

Answer 105

* Lawyer can reach out to organizations about adopting plan * Lawyer cannot reach out to potential members * Plan can reach out to potential members if not known to need particular legal services * Lawyer who owns or directs plan cannot provide legal services through the plan

Answer 106

ABA suggests 50 hours per year, but non-complying lawyer will not be subject to discipline.

Answer 107

Must accept unless good cause not to, such as: * Appointment would cause violation of law or RPC * Appointment would be unreasonable financial burden * Personally unable to represent client effectively Lack of necessary legal knowledge

Answer 108

RPC apply to limited legal service programs (e.g., quick advice hotline), except the conflicts rules are relaxed because there is no time to run a conflicts check. Lawyer only subject to discipline if there was a known conflict problem.

Answer 109

When serving as a member, director, or officer, lawyer does not have attorney-client relationship with per- sons served by organization, but must not participate in actions that would harm lawyer’s regular clients or persons served by the organization.

Answer 110

* Permitted even if reform will harm interests of cli- ent * Must disclose to organization if client may benefit from reform

Answer 111

Cannot make statements about the qualifications or integrity of judges or public legal officials, or candi- dates for these positions, if such statements are false or made with reckless disregard as to truth or falsity. Can give honest opinion.

Answer 112

Cannot state or imply ability to influence government agency or official, or to achieve results in an illegal or unethical way.

Answer 113

Cannot make a “pay to play” contribution to obtain a government position (rule does not apply to unpaid positions). Whether there is a violation depends on the purpose of the contribution.

Answer 114

CJC applies to all who perform judicial functions at state level.

Answer 115

Must uphold and promote judiciary’s independence, integrity, and impartiality. * Must avoid impropriety or even the appearance of impropriety: conduct that creates reasonable perception that judge has violated CJC, or conduct that reflects poorly on judge’s honesty, impartiality, temperament, or fitness * Letters of recommendation may be on official let- terhead if reference is personal, and not perceived as attempting to exert pressure; otherwise, must not use judicial letterhead for personal business * Must not abuse prestige of office to advance per- sonal interests, or permit others to abuse it

Answer 116

* Must hear and decide all matters assigned, unless disqualification is required * Must not let outside interests influence conduct or judgment * Must not allow impression that judge can be influ- enced * No bias, prejudice, or harassment * May encourage settlement, but must not coerce

Answer 117

Definition: Communication between judge and repre- sentative from one side when no representative from other side is present. Usually prohibited. When Allowed * Expressly authorized by law or court order * In mediation or settlement, with consent of parties * Emergencies (when non-substantive and won’t give one side an advantage) Inadvertent Receipt of Ex Parte Communication Judge must promptly notify parties and give opportu- nity to respond.

Answer 118

Court Personnel and Other Judges Can discuss cases with court personnel and other judges, but must not discuss facts not on the record. Legal Experts * Advice must be in writing * Expert must be disinterested * Must notify parties in advance Interfering with Case Judge must not make comments about any case, in any court, that might affect case’s outcome or inter- fere with fair trial. Can’t make comments about future cases either. Jurors No commending or admonishing jurors for the sub- stance of their verdict.

Answer 119

Must not independently investigate the facts in a case * Must consider only the evidence presented

Answer 120

Judge must disqualify self when impartiality might rea- sonably be questioned. Grounds for Disqualification * Bias or personal knowledge * Prior involvement in the case * Judge or family member has economic interest * Family member is involved in proceeding (Covers everything closer than cousins.) * Excessive contributions to judge’s election cam- paign * Judge publicly committed to a position or result Remitting Disqualification Parties can remit (waive) disqualification for all grounds, EXCEPT personal bias against a party or party’s lawyer Judge must disclose conflict, and parties must be able to meet without the judge to discuss.

Answer 121

Judge may be reasonably compensated unless it would reasonably appear to undermine indepen- dence, integrity, or impartiality.

Answer 122

Judge must publicly report amount or value of: * Extrajudicial compensation * Reimbursement * Certain gifts, loans, bequests, and other things of value

Answer 123

Judge may take part in activities sponsored by: * Organizations concerned with law or administra- tion of justice * Educational, religious, charitable, fraternal, or civic nonprofits Only if they don’t interfere with their judicial duties.

Answer 124

* Cannot participate in activities that would lead to frequent disqualification * Cannot accept appointment to governmental po- sition or voluntarily testify at a government hear- ing unless it relates to law or the administration of justice * Cannot serve as officer, director, manager, general partner, advisor, or employee of a business (excep- tion for personal/family investments and business- es) * Cannot testify as character witness, except when duly summoned * Cannot be affiliated with organization that practic- es invidious discrimination (OK if religious/cultural, but not if discriminatory.) * Cannot serve as executor, administrator, guardian, or other fiduciary (except for family members)

Answer 125

Full-time judge must not practice law, unless: * Appearing pro se * Giving legal advice to family * Drafting legal documents for family Part time judges can practice law.

Answer 126

Full-time judge must not act as arbitrator, mediator, or private judge unless expressly authorized by law.

Answer 127

* Can speak on behalf of own candidacy, but must keep independent from political organizations * Cannot make pledges or promises inconsistent with impartial performance of duties * Cannot personally solicit (or accept) campaign contributions * Cannot publicly endorse or oppose other candi- dates * Can make factually accurate public response to false or misleading statements * Judge who becomes candidate for nonjudicial elective office must resign from judicial office

Answer 128

Misconduct by Lawyers or Other Judges * Judge knows -> Must report * Judge receives information but isn’t certain -> Must take appropriate action Disability or Impairment of Lawyers or Other Judges Must take appropriate action if judge reasonably believes that lawyer’s or other judge’s performance is impaired by drugs, alcohol, or their mental, physical, or emotional condition.

MPRE Flashcards

(152 cards)