MPRE Flashcards
(85 cards)
1
Q
Who has the ultimate authority to regulate the legal profession?
A
The courts
2
Q
Duty to disclose
A
Must disclose if lawyer knows another lawyer has violated the rules that raises a substantial question to that lawyer’s honesty, trustworthiness, or fitness as a lawyer
3
Q
Exceptions to duty to disclose
A
Confidential communications and approved lawyer’s assistance program (ie. substance abuse program)
4
Q
Rule for admission to legal profession
A
Must be psychologically and morally fit to practice law
5
Q
What does being morally fit mean?
A
Good moral character. No acts of moral turpitude (lying, violence, theft, recklessness, sexual misconduct, false statements to the bar, etc)
6
Q
Impermissible standards - what govt not allowed to require for admission
A
- citizenship - no need to be a US citizen or citizen of a particular state
- Political beliefs (Exception: refusing to swear allegiance to the state or US constitution and participating in organization involved in illegal objectives
7
Q
Duty to supervise
A
Each lawyer having direct supervisory authority over another lawyer must take measures to ensure that subordinate lawyer is complying with the RPC
8
Q
When is a supervisor responsible for ethical violations of Subordinates
A
Supervising authority responsible if:
- he fails to make remedial action,
- knows of conduct when it can be stopped or mitigated, and fails to take remedial action,
- ratifies conduct
9
Q
Duty to make independent judgments
A
Every lawyer responsible for his own actions unless following directions from a supervisor that he believes is REASONABLE
10
Q
Unauthorized practice of law by NON LAWYERS
A
Activity involves legal knowledge and skill AND person gives advice on binding legal rights
OR
involved activity traditionally performed by lawyers (drafting documents or appearing in court)
11
Q
Lawyer’s duties v. clerks duties
A
Lawyer: court appearances, taking depositions, negotiating settlements
Clerk (if supervised by a lawyer): interview witnesses, fill in blank forms, write memos
12
Q
Exception for when a lawyer can practice in a jurisdiction they are not admitted in
A
- Pro Hac Vice status - asks court in that state to practice in a particular case (usually one time)
- Taking deposition in other state as long as related to practice in jurisdiction where lawyer is admitted
13
Q
Fee splitting with a NON LAWYER
A
Generally prohibited, EXCEPT:
- employees
- estate of deceased lawyer: proceeds of deceased partner can be transferred to their estate
- non profit organization
14
Q
Can lawyers enter into business with a NON LAWYER?
A
Lawyer may own and operate a business with non-lawyers so long as any part of the business is not involved in practicing law
15
Q
Formation of lawyer-client relationship
A
Relationship formed when client intends to seek legal advice from lawyer and lawyer either accepts or fails to clearly decline the representation
16
Q
Duty to accept a client’s case
A
Lawyer has no duty to accept any case, UNLESS court appointed
17
Q
When can a lawyer get out of a court appointed case?
A
Good cause:
- conflict
- puts an UNREASONABLE financial burden on lawyer
- lawyer’s personal feelings toward client would impact effective representation
18
Q
Scope of representation -
Clients authority v. lawyer’s authority
A
Lawyer - allowed to make decisions regarding MEANS of litigation (strategy, discovery method, etc)
Client - makes decisions regarding ENDS of litigation
- In civil case, whether to settle
- in crim case, whether to take plea bargain, waiver of jury trial or testifying
19
Q
Agreement to limit scope of representation
A
May limit scope of representation if limitation is reasonable and client gives informed consent
20
Q
Duty to communicate
A
- Reasonably consult with client about means
- reasonably update client of status of case
- promptly comply with reasonable requests for info
- explain matters to client in order for them to make an informed decision
21
Q
When MUST a lawyer withdraw from representation?
A
- lawyer’s disability (mentally or physically)
- if continued representation will foster commission of crime or violate RPC
- client’s primary purpose is to harass or delay
- discharge: client fires attorney
- NOTE: if matter already in litigation, MUST ask for court’s permission to withdraw
22
Q
When MAY a lawyer withdraw from representation?
A
With consent or for good reason
23
Q
General rule for fees
A
- communicated to client
- before or within a reasonable time after commencing representation
- preferably in writing
- NOTE: unless client is a regular client, then implied consent if same rate as before
24
Q
Minimum fees
A
Prohibited. If lawyers in a community all agree that they will not charge less than a certain amount for representation
25
Factors determining reasonableness of a fee
- Time and Labor
- Novelty and difficulty of questions involved
- If client is aware that lawyer must turn away other cases
- what other attorneys charge for similar work in community
- amount at state and results obtained for the client
- time limitations imposed by client
- Nature and length of relationship with client
- experience, reputation and ability of lawyer
- whether fee is fixed or contingent
26
Requirements for contingent fees
Must be
- in writing
- signed by client, AND
- state method by which the fee is to be determined
27
When are contingent fees not allowed?
Criminal cases and domestic relations cases
| NOTE: watch for collections cases involving domestic issues, contingent fee allowed here
28
Fees upon termination of lawyer (with or without cause)
Without cause - lawyer must be compensated for work already done
With cause - lawyer will not be compensated for work completed
29
When is fee splitting with lawyers not in the same firm allowed?
- division is proportional to services provided, OR each lawyer assumes JOINT LIABILITY,
- client agrees in writing (including share each lawyer will receive)
- total fee is reasonable
30
What must a lawyer do if withdrawing from representation?
- Give reasonable notice
| - Return client property (complete file)
31
Duty of competence
Must provide competent representation to a client, meaning:
- legal knowledge,
- skill,
- thoroughness and
- preparation reasonably necessary for the representation
32
3 ways to avoid incompetence problem
Incompetent? Drink some "ALE"
1. Associate with lawyer competent in area
2. Learn it - become competent in subject
3. Emergency situations
33
Duty of Diligence
Lawyer must act with reasonable diligence and promptness in repping a client.
-Does not mean use offensive tactics
34
Theories of malpractice
- intentional tort
- breach of fiduciary duties
- breach of contract
- negligence (most common)
35
To win malpractice case, must show....
Proximate cause - "but for" lawyer's malpractice, client would have won their case
36
Limitation of malpractice liability
Prohibited. Lawyer cannot make an agreement with client to limit liability
UNLESS: client is represented by independent counsel when making the agreement to limit liability
37
Duty of confidentiality
Requires lawyer to keep confidential all information provided to the lawyer in regard to a client's representation
NOTE: Broader than attorney client privilege
38
Attorney-client privilege
All confidential communication between a client and their attorney or attorney's agents in regards to legal advice cannot be compelled
39
Holder of privilege
Client holds privilege in perpetuity.
40
Exceptions to duty of confidentiality
- client gives informed consent
- prevent reasonably certain death or substantial harm
- prevent client from committing fraud or crime
- prevent, mitigate or rectifiy substantial injury to financial interests or property of another
- to extent necessary to defend self from civil, criminal or disciplinary claim
- to secure legal advice about the lawyer's compliance with RPC
41
Duty not to commingle money or property of a client
Lawyer must personal funds and client funds in separate accounts.
EXCEPTION: lawyer may put own money in client account only to pay bank service charges
42
Duty to safeguard property
Securities and valuable jewelry must be put in a safe deposit box.
43
Who does lawyer give money to when there is a disputed claim?
Lawyer v. Client - Hold DISPUTED funds in escrow until issue is resolved
Third party v. Client
- If lien or judgment, give to third party
- If no lien or judgement, give to client
44
Rule of Imputed disqualification
Generally, if one lawyer in a firm suffers from a conflict, it is imputed to all other lawyers in firm.
EXCEPTION: conflict is based on person interest and does not materially limit repping client effectively by other lawyers in firm
45
Rule with conflicts among current clients
Cannot represent a client if the representation would be directly adverse to another client, even if the matters are completely unrelated
46
Rule in representing multiple clients in the same matter
Permitted as long as no significant adverse consequence
47
If there is a conflict amount multiple clients in the same matter, can lawyer still represent all of them?
Yes. IF:
- lawyer reasonably believes he can represent ALL parties effectively
- inform each affected client
- clients give informed WRITTEN consent
48
Aggregate Settlement Agreements
Conflict of interest. Lawyer cannot accept aggregate settlement unless EACH client consents in writing after full review of the entire settlement as to all parties
49
Former Client Conflicts
Cannot represent a client in a matter that is the same or substantially related to a former representation without informed written consent
Cannot oppose a former client if if lawyer learned confidential info in prior representation relevant to present case, UNLESS former client gives informed written consent or info is now revealed or generally known
50
Conflicts regarding former govt employee now in private practice
Can't represent a client in connection with a matter in which lawyer participated personally and substantially as a govt employee, unless appropriate govt agency gives its informed consent.
Imputed to entire firm UNLESS:
- full disclosure to govt in writing
- former govt lawyer receives no portion of the fee
- no disclosure of confidential info to lawyer "screening out"
51
Business transaction with client
Permissible if:
- terms of transaction are fair and reasonable
- terms fully disclosed to client in writing that client can reasonably understand
- client advised in writing to seek opinion of another lawyer, and be given opportunity to do so
- client consents in writing
52
Rule regarding giving financial assistance to client
Cannot give money to client in connection with pending or contemplated litigation, except for court and filing fees.
Also can't pay for living expenses or medical bills
53
Rule regarding acquiring interest in litigation
Lawyer may not acquire a property interest in the cause of action of subject matter of litigation the lawyer is conducting for a client
54
Exception to rule against acquiring interest in litigation
1. Lien to secure payment of his fees
| 2. Reasonable contingent fees in civil cases
55
Sexual relations with a client
Before AC relationship existed, permissible.
After AC relationship existed, not allowed.
56
Acquiring literary or media rights
Lawyer cannot do this until the case is over, appeals and all.
57
Rule for related attorneys
Cannot rep a client where the lawyer on the opposing side is a parent, child, spouse, or sibling.
Not imputed to firm though.
58
Rules regarding a third party paying lawyer's fees
Can't receive compensation from anyone other than client unless:
- client gives informed consent
- payer doesn't interfere with AC relationship
- confidential info not disclosed to payer
59
Duty of lawyer when client is an organization or corporation
Duty is to organization, not directors, shareholders, etc.
If conflict between org and constituents, must reveal ID of client (basically tell them organization is client not them)
Can rep org and constituents simultaneously if reasonably believes he can do so and obtain consent from all parties
60
What to do if lawyer knows that a constituent of an org is in violation that will result in injury to the org?
1. Proceed as is reasonably necessary in best interests to org
2. Report matter to a higher authority within org
3. If higher authority fails to timely act, MAY report info to appropriate person outside of organization
61
Different roles of lawyers
- Advisor
- Negotiator
- Evaluator
- arbitrator, mediator, 3rd party neutral
*Look at outline for nuances
62
Rule for lawyers as a witness
Cannot act as an advocate at a trial which lawyer is likely to be a necessary witness. CANNOT be waived by client.
EXCEPTION:
- testimony relates to uncontested matter (ie. document authentication)
- testimony pertains to legal fees
- substantial hardship to client
- disqualifications not imputed to firm
63
Truthfulness in statements to third parties in course of representing a client
Lawyer must not knowingly:
- make a false statement of material fact or law
- fail to disclose a material fact or law
64
Communications with represented persons
Generally, no contact!!! Unless:
- their lawyer consents
- authorized by law
- communication doesn't concern representation
65
If adverse party is an organization, lawyer must obtain permission from the org's counsel to communicate with....
- person who has authority to obligate the org
- person whose conduct can be imputed to the org, or
- person who supervises, directs, or regularly consults with the organization's lawyer on the matter
66
Communication with unrepresented persons
Lawyer can communicate, but:
- when dealing on behalf of client with unrepped person, cannot state that lawyer is a disinterested party
- lawyer cannot give legal advice to unrepped person other than give advice to seek counsel
67
Pro bono work
SHOULD aspire to do 50 hours a year.
NOT REQUIRED THOUGH
68
Serving in Legal Services Organization
Lawyer can serve as director, officer or member, but must not knowingly participate in decision or action that would result in a conflict with the lawyer's clients or has a material adverse effect on the rep of the client
69
Advertising legal services, general rule
Lawyers have the right to advertise their business as long as they don't make false statements or statements that create an unjustified expectation
70
Identification of advertiser
Every communication re lawyer's services must contain name of the lawyer and office address of the firm
71
Communication of specialization rule in promoting legal services
CANNOT state or imply that lawyer is a specialist in a field UNLESS:
- lawyer has been certified by an org approved by state authority or ABA, and
- name of certifying org is clearly identified in the communication
72
In person solicitation rule
Lawyer cannot solicit a client
- in person
- live telephone, or
- real time elctronic contact (messenger, text, etc)
UNLESS,
- for education
- for no fee
- person contacted is a lawyer
- person is family, OR has close person or prior professional relationship
NOTE: Cannot solicit if it involves coercion, duress or harassment
73
Direct mail solicitation
Must contain the words "Advertising Material" on the outside envelope
74
Rule for Firm names and letterheads
Partners - current or deceased allowed to be in name, but must have been an ACTUAL partner
Trade names - permissible but cannot be false or misleading
75
General judicial obligations
Maintain independence, integrity and impartiality in court and in personal life
No gifts if it impairs impartiality. Duty to report if given a gift.
Activities outside judicial office don't interfere or create a conflict with judicial duties.
76
Litigation responsibilities of a judge
- Competence: keep up with the law
- Promptness
- Decorum: judge's responsibility to keep their courtroom under control
- Not take part in ex parte communication (communicating with one party when other party not present)
77
When must a judge disqualify themselves from hearing a case?
When their impartiality might reasonably be questioned.
- bias or personal knowledge of case or parties (ie. prior involvement in matter)
- former partner or close relative (anyone closer than a cousin)
- more than a DE MINIMIS economic interest (interest can also be held by spouse, parent, child, or anyone residing in judge's household)
78
Remittal of disqualification of a judge allowed?
Yes. Parties can waive disqualification of a judge.
NOTE: Personal bias CANNOT be waived though
79
Judge rule for fundraising
Can assist in planning a fundraiser, but cannot personally solicit UNLESS they are:
- a family member, OR
- another judge that they do not supervise
80
Judge rule for fiduciary activities
Generally, judge cannot serve as an executor, administrator, trustee or guardian, or other fiduciary.
EXCEPTION: Can do it for a family member IF...
- no interference with judicial duties
- judge can't be involved in proceedings that normally would come before him
- no adversary proceedings in the judge's court or under its appellate jurisdiction
81
Judge rule for testifying as a character witness
Judge cannot testify unless subpoenaed by the court
82
Judge rule for participating in business
Judge must not be an officer, director, manager, GP, advisor or employee of any business entity and cannot engage in business dealings that might be perceived to exploit their judge position or that involve frequent dealings with lawyers that may come before them.
EXCEPTION:
- Can do above for a closely held family business, AND
- Can hold and manage ther own investments or those of a family member
83
Judge rule for membership in an organization
Cannot belong to an org that discriminates on race, sex, gender, religion, national origin, ethnicity or sexual orientation.
EXCEPTION:
Organizations dedicated to preserving the religious and cultural values of its members
84
Judge rule for practicing law
Cannot practice law. Can only represent themselves pro se or give family members free legal advice
85
Judge rule for political activities
Judge or candidate for judicial office must not participate in political or campaign activity that is inconsistent with independence, integrity, or impartiality of the judiciary
