Flashcards in MPRE Deck (111)
What are the two types of rules?
Mandatory "must rules" and advisory "should or proper rules, aspirational."
What types of discipline for breaking rules?
Private or public reprimand/censor
Suspension for finite period
Requirements for admission to bar?
Rational: law school, oath
Irrational: citizenship or state residency
Requirements for you to apply: duty to fully cooperate, truth and full disclosure
What is your duty when you know of violation?
Actual personal knowledge
Report what you know UNLESS protected as confidence
Available to testify
Duty to report is 24/7 worldwide duty
Can duty to report be trumped by another duty?
Yes. Duty of confidentiality OR membership in approved lawyer assistance program
When is multi-jurisdictional practice allowed?
General rule is can't practice where not admitted.
Temporarily permissible when: with local counsel, special permission, mediation or arbitration, anything "reasonably related" yo home practice
Permanently permissible as: in house or federal government
When is supervisor responsible?
Knew of misconduct at time when consequences could have been mitigated AND lawyer fails to take remedial action.
Violation raises substantial question to supervisor honesty or character/fitness to practice law AND you were told to do it.
Remember subordinate is not responsible when...
Told to do it AND arguable that you thought it was ok.
These activities require a law license
Appearance in judicial proceeding/depositions
Drafting documents that effect substantial legal rights
These activities do not require a law license
Filling in forms
Writing legal memos
Fee division with non-lawyer
General rule is fee division is not allowed with non-lawyer.
Heirs of deceased attorney
Employees- salaries, pension, bonus
Law firm and partnerships
Only lawyers can be partners in business that involves practice of law. Except s/h
No implication of partnership
You can list dual professions, but solicit rules apply like lawyer, and attorney/client privilege does not apply
Contractual restrictions on practice
Generally not allowed, except retirement or withdrawing from firm
General rule for accepting or rejecting clients
Generally, lawyers have freedom to reject cases.
Defenseless or oppressed (should)
Pro bono (should, also fulfill pro bono in other ways)
Appointments (must accept unless GOOD CAUSE)
When does lawyer have duty to reject cases?
Physical or mental inability
Conflict of interst
Strong feelings or bias
Frivolous claim or frivolous motion
Exceptions to duty to reject, take ALE.
Learn it in time
What decisions belong to client?
Sue, settle, testify, please, jury or bench, appeal
What decisions belong to lawyer?
Procedural and tactical decisions, to file, depositions, discovery, continuances
Within the bounds of the law
Means e honest and truthful, subject to discipline for knowingly making a false statement of fact/law to court or failing to correct previously made false statement of material fact/law
When can lawyer withdraw - terminate AC privilege?
Withdraw is judge's decision, depending on stage of matter.
Mandatory withdraw ("must see withdraw"):
Duty to reject situations
Client fraud and refusal to rectify fraud
Client insists on violation of law/ethical provision
Client has begun new illegal course of action
Permissive withdraw (lawyer may leave):
Any reason that will not harm the client
If client consents
In one of these conditions: client persis in criminal or fraudulent conduct, client has used attorneys services to commit past crime or fraud, client objective is imprudent, client breaks promise to lawyer to pay the fee, unreasonable financial hardship on attorney practice, client will not cooperate.
Client may not abandon client, must a lid material adverse effect on client by...
Request permission to withdraw
Do as instructed
If permitted to withdraw give clien reasonable notice to get new lawyer
Client lawyer contracts
Lawyer can limit representation through k
Quick advice programs
Conflict of interst ruled are relaxed, bc lawyer does not have time to run conflict check
Actual knowledge can be inferred
Rules change if lawyer actually hired.
When shall fee arrangement be determined?
Arrangement (which includes scope of representation, basis or rate of fee, and expenses for which client will be responsible) shall be communicated to client BEFORE representation starts.
Factors in setting reasonable fee.
Time and labor
Difficulty and novelty of questions
Fixed or contingent
Fees customarily charged
Contingent fee agreements, when are they allowed?
*Must be reasonable, signed by client (watch out for making promise - then breaking)
*Must not use in criminal case (no incentive fee AND no % of publication rights based upon representation - But client can take interest in book unrelated to representation watch for undue influence.)
*Mustnot use domestic relations case
What explanations required for contingency fees?
Must be explained - in writing, signed by client - be clear: before you take the case AND after the case is concluded (settlement letter)
Referral fees are unethical except when you meet all of the following...
Attorneys work together
With clients written informed consent that discloses the share each lawyer will get
Paid proportionally to work done, and,
One reasonable fee in total.
Reciprocal referral agreement are allowed with the following restrictions.
Not exclusive rangmen
Referred client must be told
Referral agreement must not interfere with lawyers professional judgment
Agreement should not be of indefinite duration.
Rules when lawyer is using or selling practice of law
Must sell entire practice
Seller must exercise competence in identify a buyer who is qualified to undertake representation
Written notice must be given to sellers clients
Seller must cease practice of law
Purchaser must take all clients and matters
AC privilege v. Confidentiality
protects confidential communications,
governs disclosure of info,
Protects confidential communications with prospective clients.
covers the same AND any other info obtained by attorney relating to representation regardless of source,
disclosure and use
Work product doctrine
Material prepared by a lawyer for litigation is immune from discovery UNLESS
other side shows substantial need, and,
Inability to gather material without nude hardship.
Client authorized disclosure
Express authorization requires informed consent (client agrees, lawyer sufficiently explains)
There is some I plied authorization, like sharing w/ paralegal.
Exceptions to privilege
Waived by client
Client seeks attorney service to assist in FUTURE CRIME/FRAUD
communication relevant to issue of breached AC relationship
Civil cases btwn parties who were formerly joint clients
Exceptions to confidentiality (WIIPPOR)
Wavied by client
Implied authority to disclose to further the representation
Prevent reasonably certain death or substantial bodily harm in future
Prevent substantial financial harm/fraud
Obtain legal or ethical advice for lawyer
Required by law or court order
Disclosure of past crimes.
Death of party and confidentiality
Death of party does not end your obligations
General rule for conflict of interest
Generally lawyer cannot represent adverse interests of CLIENT OR PROSPECTIVE CLIENT, but conflict can be cured in some instances if: lawyer explains risks AND client agrees in writing
Conflict of interest and lawyers personal interest
Rule or mutation
No sexual relationships unless preexisiting
No loans to clients in connection with pending litigation
Lawyers as witness?
Lawyer cannot be necessary witness for client
Uncontested or ministerial matter
Legal fee matter
If substantial hardship to client otherwise
General rule with Lawyer acquiring interest in litigation
Lawyer annot acquire interest in litigation
Screening of disqualifying lawyer
Lawyer conflict of interest will not be muted to firm... If arises out of prior association with her prior form provided she is Timmy screened
General rule with entering into business with clients
Lawyer can't enter into a business deal with client.
As long as terms are fair
Exceptions require writing: full disclosure of terms, advised to get individual legal counsel, informed consent and signed by client
Rules with conflict of interest
Lawyer have conflicting interests with prospective or current clients and former clients.
No interests adverse to clients
No multiple clients where "potential conflict (unless; reasonable belief of no adverse affect AND client gives written informed consent
Representing two clients and aggregate settlement claims
Lawyer shall not make ASC without,
Informed consent in writing from each client after full review of entire settlement.
Full review includes:
Clients come to agreement among themselves how to share aggregate sum
Disclosure to all the terms (including total amount to be paid or received, existence and nature of all claims defenses and pleas involved in settlement, details of other client participation, how lawyers fees will be paid)
Conflict of interest and corporate representation
Lawyer represents the corporation/entity, not individual officer or director.
If layer knows of action that violates duty to organization AND violation likely to cause substantial injury, lawyer MUST proceed as reasonable to protect interests of company.
*must report violation to higher authority
*may report to outside organization as necessary to prevent substantial injury
Duty of security lawyers to report up the chain and if no appropriate response must report to board of directors and may report to SEC
Conflict of interest and influence of third party persons
Lawyer may be paid by third party, but requires WIC from client AND client confidences must be kept
Lawyers related as parent, chld, sibling or spouse shall not represent adverse parties, unless full informed consent, but no rule of imputation.
Lawyer service as arbitrator, mediator or judge
Generally lawyer that transitions from public to private practice cannot take matters where previously acted or had substantial responsibility
Exceptions: drafting laws, compiling statistics, drafting leal opinions.
If lawyer involved in following situations, another lawyer in firm can take matter if Orr lawyer is timely screened: finding of guilt as judge, drafting contract,representing government.
Elements of screen:
Written disclosure to government, no fee to screened attorney, no working on or discussing case or access to files by screened attorney.
Competence is a two pronged duty
Professional responsibility and malpractice.
What cause of actions allow recovery for civil liability?
Successful claim for civil liability requires
*but for what the lawyer did, client would have won case.
Purpose of civil malpractice claim is compensation.
Standard of care for civil liability
General practitioner, lawyer shall provide "competent representation" to a client which requires legal knowledge, skill and preparation. ORDINARY STANDARD OF REASONABLE CARE.
SPECIALISTS. Higher standard of care for their speciality
Maintaining competence for professional responsibility
Purpose is punishment.
Doesn't require money loss or causation.
Acceptance of employment
Lawyers presumed to be GENERALISTS and COMPETENT.
Exercise of diligence and care.
Reasonably consult with client
Keep client reasonably informed
Promptly comply with reasonable requests
Explain matters to client
Communicate all settlement offers
Limiting liability for malpractice
Lawyer cannot do it prospectively unless client has independent counsel.
General duties in litigation
Authority to act for client: law,tactic, strategy
Civility, courtesy, decorum: mandatory duty to be truthful, aspirational duty to be courteous.
Attorney conduct for claims and defenses in litigation
Lawyer must have good faith basis for actions, make only meritorious claims and contentions.
Lawyer responsibility with client fraud or perjury
Client is COMMITTING fraud or perjury - lawyer must seek to withdraw from the matter. If denied, or if withdrawal does not resolve the problem, then lawyer may disclose fraud to the judge.
Client HAS COMMITTED fraud or perjury - secret cannot be disclosed. But lawyer does have duty rectify false testimony.
Communications in course of representation, unrepresented persons.
Can't give leal advice.
Cannot appear disinterested when you are in fact an advocate/adversary.
Can negotiate a transaction or settle clients disputes with unrepresented person.
Only advice you should give them get a lawyer.
Different roles of lawyers
Lawyer as advisor: client entitled to all information - entitled to candid advice; should give moral,economic or rival advice.
Lawyer as evaluator: doing something for client for benefit of 3p - must be compatible with other aspects of representation, and, clients WIC, must be truthful in evaluation.
Duty of lawyer as arbitrator or 3P neutral
Must explain that there is no AC privilege
Litigation, the must withdraw
When lawyer acts as trustee for client funds, lawyer must keep money in separate account, in the state where lawyer practices unless...
The client consents to account being in another state
Small sums may use pooled trust account
Note lawyer funds may only be used to cover bank service charges
Lawyer as trustee for client property (other than money)
Lawyer must safeguard clients property in bonded warehouse
How does general rule regarding receipt of settlements changed for DISPUTED CLAIMS?
Generally, receipt of style,ent requires prompt notification, keep records, render accounting and pay promptly.
For disputed claims, disputed amount remains in client trust account until settled.
Retainer, what are the types?
1. Advance on fees (belongs) to client (goes into trust account) and unearned portion is returned if layer is fired or withdraws.
2. Availability retainer (belongs) to attorney (goes into lawyers account)
Gifts from client?
Allowed if reasonable, but must not draft deed of gift or will, unless you are related to donor.
Public communications about services.
Advertising. Cannot be false or misleading - applies to ads, personal communication, office signs. Do not create misunderstandings: 1) cannot create unjustified expectations, 2) cannot have unsubstantiated comparisons, 3) cannot imply results by improper means.
Firm names and letterheads. Dead people can stay in name. Ratification names are ok if not misleading.
Direct contact with prospective clients - SOLICITATION.
General ban on solicitation.
Definition of solicitation: solicitation is seeking fee-paying work through in person, live telephone, or real time electronic contact with a non-lawyer prospect with whom the lawyer has no family, close personal previous rel.
Permissible solicitation (unless the prospective has made known to the lawyer a desire not to be solicited by the lawyer)
Targeted direct mail
Group and prepared legal services so long as the memberships or subscriptions for the plan are not solicited from persons who are...
No fee will be taken
Close friends and relatives, present clients and former clients.
Lawyer Activity in Improving the legal system - judges.
Judges -candor, must reveal adverse decisions or statute o appropriate jurisdiction. Must let judge know of adversarial law, from controlling jurisdictions.
Can't bury on adverse decision, but can distinguish bad cases away.
No explanation is required to be given to court (duty to reveal not explain)
Can offer good faith argument to change the law
No obligation to reveal facts opposed to your position.
Lawyer activity improving legal system - witnesses.
No contingent fees for experts.
Can pay reasonable expenses and lost wages lay witnesses
No need to obtain permission of other side to interview witnesses
Can advise witnesses they don't have to voluntary testify if 1) person is related to or is an agent of the party that lawyer represents, and 2) the person will be harmed by volunteering.
Lawyers interacting with jurors
Lawyer talking to lawyer = disbarment.
During trial, no communication with lawyer.
After trial, must not communicate if any of these 3 conditions are met:
1. Local law/gvt order prohibits
2. Juror tells you they don't want to talk
3. Purpose of contract is to harass or coerce the juror.
No public statement outside courtroom that lawyer should reasonably know would have a substantial likelihood of materially prejudicing the cases.
Lawyer can speak publicly what a reasonable lawyer would believe is required to protect client from substantial undue prejudicial effect.
Special responsibilities of the prosecutor.
Must not prosecute without probable cause.
Assure the accused is advised of his counsel
Must not seek a waiver of pretrial rights from an unrepresented accused.
Disclose known evidence and information that ends to negate guilt (Brady rule) or mitigate the degree of the offense.
CJC Judicial Ethics; who does CJC apply to?
CJC applies to those who perform judicial functions (including magistrates, court commissions)
CJC rules for family members
Judges must take reasonable steps to ensure family members follow the rules.
Rules for judge and receiving gifts
Judge can accept and not report BOOKS, HONORARIA or ORDINARY SOCIAL GIFTS, as long as
1. Not excessive for purpose/relationship.
2. Not reasonably perceived to influence judge
3. No gifts from person likely to appear before judge
Must report gifts in excess of $150 (may vary by statute)
Can accept and MUST report invitations to attend activity without cost (waived conference fee).
Judges and he law.
Must follow the law. 24 hour day duty.
Never off duty
Cannot use judicial letterhead for personal business.
Cannot criticize or commend jury outside court opinion.
No continuing business relationship with lawyer likely to come before court.
Judges and impropriety and the appearance elf impropriety.
Judges must avoid appearance of impropriety with respect to cases and issues that are likely to come before court.
Must not make pledges, promises or commitments that are inconsistent with duties of office when judge creates a reasonable perception that CJC has been violated.
Four cannons of CJC. (udep)
1. upholding the integrity and independence of the judiciary
2. duties of impartiality and diligence
3. Extra-judicial activities including compensation
4. Political activity of judges
Judge should be disqualified or offer to step down (unless parties remit) when...
1. Judge has personal knowledge of possibly disputed facts.
2. If former partner or close relative is party, attorney or witness before the judge (close relative = immediate family NOT COUSINS, and you count spousal family as yours)
3. Judge cannot have economic interest in matter before her. Exceptions: mutual funds and securities held by charitable orgs.
4. When judge knows parry contributed more than specifics amount to campaign.
In an emergency necessity overrides disqualification
Judge litigation responsibilities
1. Maintain professional competence
2. Prompt disposition of court business
3. Responsibility of decorum is on judge, not lawyers
4. No ex parte communications with 4 exceptions: expressly authorized by law, emergency, mediation or settlement with consent of parties, de minimums communications
Judge and activities to improve the legal system; ADMINISTRATION.
Must not appoint on basis of nepotism or political contribution
No independent investigations of facts
Judge and activities to improve the legal system; OUTSIDE LEGAL ACTIVITIES.
Judge may serve as officer for organization devoted to improvement of law provided, org is not engaged in proceeding that could come before judge.
Judge can't FUND RAISE personally. Judge cannot be guest of honor or keynote speaker at fundraiser judge is involved with.
FIDUCIARY RELATIONSHIPS, generally judge must not serve as executor - except for close family - but can if: there is no interference with official duties, proceedings would not come before judge, matter not involved in court under judge's appellate jurisdiction.
No economic interest
Judges duty to report others
Judge must report to agency if he KNOWS BY PERSONAL/ACTUAL knowledge of lawyer or judge who violates rules
Judge and extra-judicial activities including compensation
MAY: serve as officer on nonprofit board, teach, give personal references for others if stated its personal.
MAY NOT: serve on profit board, be member of or use organization that discriminates. (actual knowledge of discrimination is key)
Exception; private org. designed to preserve religious or cultural values
Once judge learns of discrimination MUST resign from org.
May judge practice law?
No, unless Practicing pro se, or giving free legal advice to family
Judges in business
Judges MUST NOT engage in business dealings that might be perceived to exploit judges position
Rules when judge is running for office
Can speak at gatherings, but judge must not make pledges, promises or commitments that are inconsistent with impartial performance of duties
Can ask for vote for self, but not for ticket.
A lawyer is not a bus, she is a piano
Lawyer is not a bus, which takes all comers (except those appointed or oppressed), she is a piano, which has an affirmative duty to respond appropriately and be honest in response.
Unconnected lawyer communication with juror
NO LAWYER, whether connected to case or not, may communicate with juror about case.
Attorney civil liability for potential clients
Lawyer does not owe duty to of care to prospective client.
Lawyer must not represent client in present piece of litigation and substantially opposed in different litigation.
What is lawyers duty to client regarding papers?
Lawyer must give client all papers, legal memos and document drafts.
Can a judge accept benefits associated with spouse?
Yes, judge may accept benefits that INCIDENTALLY benefit the judge through association with spouse.
Acceptance cannot appear to undermine judges integrity or impartiality.
Wife wanted to obtain past due child support. She hires a new attorney and they agree to a contingency fee based on 10% of recovery. Is the attorney subject to discipline?
NO. Despite the domestic issue, rules do not prohibit a lawyer from using a contingency fee to recover money that is PAST DUE.
Lawyers and drafting legal instruments that bestow gifts on themselves.
Lawyer that drafts an instrument that bestows a substantial gift on himself IS SUBJECT TO DISCIPLINE. Lawyer may not draft legal instrument for client that gives substantial gift to himself, unless relative.
If the lawyer suspects, but does not know for sure, both his client and clients mother, who will be witness, of lying, can the attorney call these witnesses to the stand?
YES. Lawyer ha a general duty to client of dedication and commitment. Therefore, lawyer must resolve reasonable doubts in favor of client. Lying requires actual knowledge to act upon.
*note lawyer may refuse to offer evidence that he reasonably believes to be false, other than the testimony of criminal defendant.
Lawyer did not notify client that settlement check had arrive, is this proper?
NO. Lawyer should have made sure client was promptly notified that check arrived.
Lawyer agreed to do legal work on contingency basis, based on 1.75% of gross receipts from movie if they win, is this proper?
The lawyers free agreement is PROPER even though it gives the lawyer a personal interest in the subject of the litigation because THE RULE AGAINST PERSONAL INTEREST IN SUBJECT TO LITIGATION HAS AN EXCEPTION THAT ALLOWS REPRESENTATION FOR CONTINGENCY FEES.
Attorney is voting member of legislation committee hat is voting on issue that, if anacted, would materially benefit one of her regular clients. Would it be proper for the attorney to participate in debate and vote?
YES, provided that she informs the legislative committee that she represents an unnamed client whose interests could be materially benefitted by the statue.
Rules allow lawyer to participate in law reform activity that will effect the interests of a client.
A judge, whose colleagues wrote the majority opinion and he wrote a scholarly dissent on matter A, was invited to testify on a bill that would amend that statute to reflect the judge's position on matter A. May the judge testify?
Yes, because a judge may engage in activities designed to improve the law. Rules only limit SOME types of political activities, not including legislative testimony.
Partner and associate form partnership agreement that includes agreement as to fee division, AND that associate will remit to partner all fees he earns after, if he leaves early. Are they subject to discipline?
YES, bc the agreement places a restriction on associates right to practice if he leaves partnership early.
If a public accountant,whose testimony is relevant to your clients case, calls you and asks for advice when Ps ttorney calls to speak privately, is it proper for you to advise him to not talk unless subpoenaed?
YES, bc the accountant acted as your clients agent in rendering accounting advice.
When are two solo attorneys working in same office space considered a "firm" for purposes of the imputed disqualification rule with respect to conflicts of interest?
Relevant factors in determining whether lawyers who share office space are deemed a firm include: whether they hold themselves out to public as a single unit, frequently consult and assist each other, refer cases to each other, work jointly on cases, and have access to each other files.
Mere fact that lawyers share fees does not make them a firm.
If a prosecutor states to a reporter hat, "she was certain the D was the right man bc he has a history of crime...etc." is the prosecutor subject to punishment?
YES, bc the prosecutor should have known the statement would likely prejudice the trial.
A lawyer who is connected with a case must not make a public statement outside the courtroom that the lawyer should reasonably would have substantial likelihood of materially prejudicing the case.
A lawyer strongly suspected, but had no proof that the opposing party was skydiving after he claimed to be totally disabled due to a back injury sustained at work. If the lawyer told opposing counsel he had movies of his party skydiving, is that lawyer subject to discipline?
YES, bc the employer's lawyer lied about having movies.
When dealing on behalf of a client with a 3P, a lawyer must not knowingly make a false statement of law or material fact.
Is a judge allowed to solicit contributions for her own campaign?
Judge is prohibited from personally soliciting contributions for her own campaign.
Is it proper for partner to represent client that was previously represented by another partner in firm, but no other attorney gained access to confidential information?
Yes, it would be proper for second partner in firm to represent client, despite being previously represented by another partner BECAUSE neither the new partner, nor any other lawyer gained access to the confidential information regarding the prior matter.