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Flashcards in MPRE1 Deck (116):

ABA on disciplinary authority

The ABA has no disciplinary authority and membership is volutary


Most states have their own rules of

professional conduct and mdoel rules, and the model rules control the MPRE


Must rules

Mandatory and violating lawyer is subject to discipline


Should rules



The state's highest court

have the inherent power to regulate lawuers and adopt ethical rules for lawyers


Requirements for bar admission must be

rationally related to the practice of law


What is a rational requirement?

A) graduation from an ABA accredited law school
B) Oath: must take an oath
C) good moral character: investigates past conduct, bad moral turpitude may jeopardize admission


What is not rational ?

US citizenship
Residency in the state
Banning groups or members of groups


A lawyer must not

Make a false statement of material fact - must report negative things
Fail to respond to a lawful demand for information (duty to cooperate)
Fail to disclose any fact necessary to correct a misapprehension


A lawyer who knows that another lawyer has committed a violaiton that raises a substantial question as to the lawyer's honesty trustworthiness or ability to practice must report the violation, unless

Duty of confidentiality applies (lawyer repped the other and learned during rep) or the lawyer learned of the violation while participating in a approved lawyers assistance program


Lawyers have the same duty to report

Judges who violate the CJC


A lawyer is subject to discipline for committing a crime f the crime is

relevant to some aspect of practicing law

(most crimes involving dishonesty and serious violence qualify, but solicitation, of prostitution or a single DUI would probably not)


Any fraud, dishonesty, misrepresentation, or deciet is grounds for



In conduct related to the practice of law, a lawyer must not harrass or

discriminate on the basis of race, sex, religion, natl origin, ehtnicity, age, sexual orient..


Any state to which the lawer is admitted to practice has the power to discipline a lawyer, regardless of

where the misconduct occured


A lawyer not admitted to the state bar is also subject to the jurisdiction of the state if

the lawyer renders or offers to render any legal services in the state


Choice of law: which law applies for conduct in connection with a litigation?

Court that the litigation sits in


only licensed lawyers can negotiate



What activities require a license and constitute the practice of law?

Appearance in judicial proceedings and depositions
Drafting documents that affect substantial legal rights
negotiate settlements


What activities do not require a license

Interviewing people
Filling in forms
Writing memos


Permissible temporary MJD practice

Associate with an active local lawyer
special permission called pro hac vice
Mediaiton or arbitration out of home state practice (bc encourage ADR)
Anything reasonably related to lawyer's home-state practice


Permissible permanent MJD practice

LAwyer employed by her only client (usual in house counsel like govt employees)


lawyers generally have no duty to accept



A relationship may be formed if

client manifiests intention to be repped, lawyer fails to adequately decline, lawyer knows that the client is reaosnably relying on her to provide services


A lawyer must not seek to avoid appointment by a tribunal to represent a person except for good cause, such as

unreasonable financial burden or personal inability to represent client


A lawyer may reasonably limit the scope of the representation if

the client gives informed consent (im only going to rep you pre-trial)


In a civil case, the lawyer must abide by the clients decision to



In a criminal case, the lawyer must abide by the clients decision, after consultation, to

waiver of jury trial
whether to testify


In a civ or crim case, the lawyer must abide by the client's decision whether to



The lawyer may make _____ decisions


but client can veto when it comes to expenses


A lawyer must not counsel a client to engage, assist a client, in conduct that the lawyer knows is

criminal or fraudulent


If a client has diminished capacity, try to maintain a normal relationship. If necessary, the lawyer should

take protective action and get guardian appointed


A lawyer must reasonably consult with the client about the means by which the client's

objectives are to be accomplished


Keep the client reasonably

informed about the status of the matter


Lawyer must promptly comply wth

reasonable requests for information


Lawyer must explain matters to a client to the extent

reasonably necessary to permit the client to make informed decisions regarding the representation


The fee arrangement must be

communicated with a client before or within a reaosnable amount of time after start of represenation


As a general rule, written fee arrangement is



All fees must be


(time and labor, novelty, whehter must turn away other cases, what other attorneys charge, amount at stake, nature and length of the relationship


Contingent fees are generally permissible but the agreement must

be in writing signed by the client


contingent fee arrangement must clearly notify the client of

any expenses which the client will be liable for


contingent fees are prohibited when

representing a client in a criminal case


In a domestic relations case, contingent fees are prohibited if

the payment or amount is contingent upon the securing of the divorce or amount of alimony or support gauranteed


Past due contingency free arrangemetns are

ok. Contingency to be paid in future collections / breach of contract that looks like a DR case


Required disclosures to a client:

How the fee is to be calculated, including percentages

What expenses are to be deducted from the recovery

Whether deductions for expenses will be made before or after the contingent fee is calculated


At the conclusion of a contingent fee matter, the lawyer ust

provide the client witha . written statement outlining how the fee was determined


When the lawyer is terminated before the contingent fee is awarded, without cause:

The lawyer is entitled to reasonable fee for the serivces provided, but not until contingency comes to pass


Contingent fee terminated with cause:

lawyer not entitled to payment


Fee splitting: lawyer in the same firm may split the fee

in any manner they may also split purusant to agreements for speation or retirment


Lawyers in different firms may split fees only if

the division is in proportion to services performed by each lawyer (or some diff proportion if each lawyer assumes joint responsibility)

The client agrees to the arragnement including the share each lawyer will receive and the arrangement is confirmed in writing, and

the total fee for all lawyers is reasonable


Client always has the power to terminate a lawyer for

any reason


The lawyer must withdraw from represneaiton or make a motion to withdraw when

Physical or mental disability that reasonably impairs the ability to represent the client
If the rep will result in a violtion of the rules,

Discharge by the client


Permissive withdrawal: the lawyer may withdrawal when

Can be accomplished without any material adverse effects

Client persists in a course of action involving the lawyer's services that the lawyer reasonably beleives is criminal or fraudulent

CL has used the lawyer's services to committ past crime or fraud,

CL insists ont aking action that the lawyer considers repugnant or fundamnetally disagrees

Client breaks promise to lawyer andhas been given reasonable warning that the lawyer will withdrawal unless promise fulfilled

unreasonable financial hardship

Rep has been rendered unreasonably difficult by the client


In a litigation and lawyer wants to withdraw, need

court's permission


Upon withdraw, lawyer must take steps to

protect a client's interests, such as reasonable notice to client for other counsel


Upon withdrawal, a lawyer must surrender

papers and property and refund any advanced payment or fee to which the client is entitled that has not been earned or incurred


Competent representation requires the legal knowledge

skill thorougughness and preparation reaosnable necessary for the rep


Three ways to avoid an incompetence problem (ALE

learn it in time


when repping a client, a A lawyer must act with

reasonable dilligence and promptness


Violation of a RPC does not necessarily mean

there is legal malpractice


Malpractice requires

money loss and causation


malpractice code

but for lawyer's malpractice, the client would have won


Theories of malpractice liability

intentional tort
breach of fiduciary duties
breach of contract


negligence standard of care

standard of care:general practitioner: regular competent representation
specialist: higher standard, the standard of other specialists


a lawyer must not settle a claim or potential claim for legal malpactice with an unreprenseted client or former client unless she advises the client in writing

to seek the advice of independent legal counsel and gives the client a reasonable oppotunity to do so


a lawyer must not make an agreement prospectively limiting the lawyer's liability to a client for malpractice unles

the client is independently represented in making the agreement


A/C privelege only covers

confidential communications between a lawyer and a client made for the purpose of legal advice


AC priv protects a court from

compelling the revelation of communications


AC is held by the

client, not the attorney


exceptions to AC

clients seeks attorny's services for crime
communication is relevant to a breach of attorny client relationship
civil litgation between former joint clients
certain cases involving comeptency


Duty of confidentiality protects

all infromation relating to the representation


DoC applies to

any typpe of disclosure by the lawyer (not just in the courtroom)


DOC is held by the



DOC exceptions

client gives informed consent
necessary to defendt self from malp. claim
to comply with court order
to prevent reasonably certain death
to secure advice about the compliance with rPC
to prevent client from commiting a crime or fraut that would result in substantial injury to dinancial interest of another,


DOC length

continues after the representation ends, and aslo applies to information learned during discussions with a prospective slient


Safeguarding funds: trust accounts

lawyer must not commingle funds


LAwyer can deposit his own funds in a trsut account for the sole purpose of

paying the bank service charges


for small sums, lawyer should use a

pooled trust account IOLTA)


Types of retainers

advance on fees


Disputed claims: lawyer vs client:

lawyer holds on to the disputed portion until the dispute is resolved


Third party vs client

if the 3rd has a lien on the funds held by the lawyer, the lawyer must hold the dusputed portion. If no lien, thn the lawyer must give the funds


Rule of imputed conflicts

if a lawyer in a firm has a conflict, it is generally imputed t the rest of the lawyers in the firm


Exception to rule of imputed conflicts

the conflict is based on a perosnal interest of the disqaulified lawuer ad doesnt present a signifcatn risk of materially limiting the representation of the client by the remaining lawyers in the firm


Direct adversary rule

in general lawyer may not represnet a client whos interest are directl adverse to client 2 even if the lawyer represnet client 2 in compltely unrelated matters


A laywer must not rep a client if there is signifcant risk that the rep will be..

materially limited by the lawyer's responsiblities to another client, former client, or third person, or lawyer;s own personal interests


If multple clients in the same matter become adverse,

the lawyer must obtain informed consent at the outset of the


Laywer may not refer clients to an enterprise

in which the lawyer has an undisclosed financial interest


All COI can be cured if

the lawyer reaosnably beleives he can rep the affect client competnetely and dilligently AND
lawyer fully explains the risks and alternatives and consent is confirmed in writing


conflict cannot be cured if

lawyer would be on both sides


A lawyer may not rep a client with adverse interests to a former client

in the same or substantially related matter without the former client's consent


Prospective client COI

lawyer cant rep a client if a client if a prosepctive client gave him information which is adverse to the client - if that informaiton would be significantly harmful to the prospective client

this can be waived with consent


Lawyer cant acquire an interest in the litigation, except

can get a lien auth b law to secure fee, and
can contract for contingent fee


no business transaction with a client, or ownship or interest adverse to a client, except

reaosnable and fair transactions to client,
fully disclosed to cl in writing
opportunoity to seek independent legal counsel
client consents in writing signed by the cl to essnetial terms


when settling on behalf of multiple clients for a lump sum, the lawyer must

assure that the cl agree on how to share the sum
make extensive disclosures to the clients regarding terms
get client informed consent signed in writing


A lawyer mut not provide financial assistance to a client

in connection with pending litigation, except, advance court cosets and expenses contingent upon the outcome, and lawyer repping indigent may pay court costs and expenses


a lawyer must not solicit

any substantial gift from a client


lawyer can be reciepient of substantial gift in an instrument only if

related to lawyer


no literary or media rights based on

substantial related to representation. but can once pending litigation is complete (after appeals


A lawyer must not accept compensation from a third party unless

cl gives informed consent
payor doesnt interfere with lawyer cl relationship
confidential infromation is not revealed


if somethign bad is happening in a corporation

lawyer must report to a higher authority in org

if higher authority fails to act, lawyer MAY report relevant informaiton to the apprpoirate persons outside the org,


LAeyers related to each other ordinarily may not rep adverse parties unless

each client gives informed consent
this is personal not imputed


A lawyer must not have sex with a cleint

unless sexual rel. existed before the representation


A lawyer may advise a client not only to law but also to

other considerations usch as moral economic social political factors that may be relevant to the client's situation


lawyer maye provide a client with an evaluation of the matter for use by a

third party - but must be honest about evaluation


If the evaluation is likely to have a material and negative effect on the client the law must

get informed consent from the client before conducting the evaluation


Lawyer bust not make a false statement of material fact when dealing with others, butgernally has no affirmative duty to

volunteer harmful facts


A lawyer is allowed to exaggerate

estimates of price and value
acceptable settlement limits


A lawyer serving as a third party neutral must inform

unreppred parties the lawyer is not repping them


if litigation arises, the lawyer must not rep any of the parties unless

all parties can give informed consent


LAwyer must not make false statement to tribunal and

fail to correct previous false statement


A lawyer ust reveal to a tribunal

adverse decision or statue of controlling jurisdiction


a lawyer cannot offer false evidecne

that the lawyer knows to be false


IF a lawyer knows the criminal defendant cleint plans to committ perjury, the lawyer must

attempt to persuade client to testify truthfully
if client persists, consder withdraw
if all else fails, reveal to judge


Duty to rectify false testimony lasts..

until end of proceedings including appeals


a lawyer may refuse to offer evidence..

that she reasonably beleives is flase, but does not know if it is false, except for testimoby of a D in a criminal case


IF lawyer comes to know E is false, the lawyer must

take reasonable remedial measures including disclore to the tribunal