MPRE1 Flashcards
(116 cards)
1
Q
ABA on disciplinary authority
A
The ABA has no disciplinary authority and membership is volutary
2
Q
Most states have their own rules of
A
professional conduct and mdoel rules, and the model rules control the MPRE
3
Q
Must rules
A
Mandatory and violating lawyer is subject to discipline
4
Q
Should rules
A
advisory
5
Q
The state’s highest court
A
have the inherent power to regulate lawuers and adopt ethical rules for lawyers
6
Q
Requirements for bar admission must be
A
rationally related to the practice of law
7
Q
What is a rational requirement?
A
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
8
Q
What is not rational ?
A
US citizenship
Residency in the state
Banning groups or members of groups
9
Q
A lawyer must not
A
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
10
Q
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
A
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
11
Q
Lawyers have the same duty to report
A
Judges who violate the CJC
12
Q
A lawyer is subject to discipline for committing a crime f the crime is
A
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)
13
Q
Any fraud, dishonesty, misrepresentation, or deciet is grounds for
A
discipline
14
Q
In conduct related to the practice of law, a lawyer must not harrass or
A
discriminate on the basis of race, sex, religion, natl origin, ehtnicity, age, sexual orient..
15
Q
Any state to which the lawer is admitted to practice has the power to discipline a lawyer, regardless of
A
where the misconduct occured
16
Q
A lawyer not admitted to the state bar is also subject to the jurisdiction of the state if
A
the lawyer renders or offers to render any legal services in the state
17
Q
Choice of law: which law applies for conduct in connection with a litigation?
A
Court that the litigation sits in
18
Q
only licensed lawyers can negotiate
A
settlements
19
Q
What activities require a license and constitute the practice of law?
A
Appearance in judicial proceedings and depositions
Drafting documents that affect substantial legal rights
negotiate settlements
20
Q
What activities do not require a license
A
Interviewing people
Filling in forms
Writing memos
21
Q
Permissible temporary MJD practice
A
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
22
Q
Permissible permanent MJD practice
A
LAwyer employed by her only client (usual in house counsel like govt employees)
23
Q
lawyers generally have no duty to accept
A
clients
24
Q
A relationship may be formed if
A
client manifiests intention to be repped, lawyer fails to adequately decline, lawyer knows that the client is reaosnably relying on her to provide services
25
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
26
A lawyer may reasonably limit the scope of the representation if
the client gives informed consent (im only going to rep you pre-trial)
27
In a civil case, the lawyer must abide by the clients decision to
settle
28
In a criminal case, the lawyer must abide by the clients decision, after consultation, to
Plea
waiver of jury trial
whether to testify
29
In a civ or crim case, the lawyer must abide by the client's decision whether to
appeal
30
The lawyer may make _____ decisions
strategic
but client can veto when it comes to expenses
31
A lawyer must not counsel a client to engage, assist a client, in conduct that the lawyer knows is
criminal or fraudulent
32
If a client has diminished capacity, try to maintain a normal relationship. If necessary, the lawyer should
take protective action and get guardian appointed
33
A lawyer must reasonably consult with the client about the means by which the client's
objectives are to be accomplished
34
Keep the client reasonably
informed about the status of the matter
35
Lawyer must promptly comply wth
reasonable requests for information
36
Lawyer must explain matters to a client to the extent
reasonably necessary to permit the client to make informed decisions regarding the representation
37
The fee arrangement must be
communicated with a client before or within a reaosnable amount of time after start of represenation
38
As a general rule, written fee arrangement is
preferred
39
All fees must be
reasonable
(time and labor, novelty, whehter must turn away other cases, what other attorneys charge, amount at stake, nature and length of the relationship
40
Contingent fees are generally permissible but the agreement must
be in writing signed by the client
41
contingent fee arrangement must clearly notify the client of
any expenses which the client will be liable for
42
contingent fees are prohibited when
representing a client in a criminal case
43
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
44
Past due contingency free arrangemetns are
ok. Contingency to be paid in future collections / breach of contract that looks like a DR case
45
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
46
At the conclusion of a contingent fee matter, the lawyer ust
provide the client witha . written statement outlining how the fee was determined
47
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
48
Contingent fee terminated with cause:
lawyer not entitled to payment
49
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
50
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
51
Client always has the power to terminate a lawyer for
any reason
52
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
53
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
54
In a litigation and lawyer wants to withdraw, need
court's permission
55
Upon withdraw, lawyer must take steps to
protect a client's interests, such as reasonable notice to client for other counsel
56
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
57
Competent representation requires the legal knowledge
skill thorougughness and preparation reaosnable necessary for the rep
58
Three ways to avoid an incompetence problem (ALE
Associate
learn it in time
emergency
59
when repping a client, a A lawyer must act with
reasonable dilligence and promptness
60
Violation of a RPC does not necessarily mean
there is legal malpractice
61
Malpractice requires
money loss and causation
62
malpractice code
but for lawyer's malpractice, the client would have won
63
Theories of malpractice liability
intentional tort
breach of fiduciary duties
breach of contract
neglience
64
negligence standard of care
standard of care:general practitioner: regular competent representation
specialist: higher standard, the standard of other specialists
65
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
66
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
67
A/C privelege only covers
confidential communications between a lawyer and a client made for the purpose of legal advice
68
AC priv protects a court from
compelling the revelation of communications
69
AC is held by the
client, not the attorney
70
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
71
Duty of confidentiality protects
all infromation relating to the representation
72
DoC applies to
any typpe of disclosure by the lawyer (not just in the courtroom)
73
DOC is held by the
lawyer
74
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,
75
DOC length
continues after the representation ends, and aslo applies to information learned during discussions with a prospective slient
76
Safeguarding funds: trust accounts
lawyer must not commingle funds
| L
77
LAwyer can deposit his own funds in a trsut account for the sole purpose of
paying the bank service charges
78
for small sums, lawyer should use a
pooled trust account IOLTA)
79
Types of retainers
advance on fees
| availability
80
Disputed claims: lawyer vs client:
lawyer holds on to the disputed portion until the dispute is resolved
81
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
82
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
83
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
84
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
85
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
86
If multple clients in the same matter become adverse,
the lawyer must obtain informed consent at the outset of the
87
Laywer may not refer clients to an enterprise
in which the lawyer has an undisclosed financial interest
88
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
89
conflict cannot be cured if
lawyer would be on both sides
90
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
91
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
92
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
93
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
94
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
95
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
96
a lawyer must not solicit
any substantial gift from a client
97
lawyer can be reciepient of substantial gift in an instrument only if
related to lawyer
98
no literary or media rights based on
substantial related to representation. but can once pending litigation is complete (after appeals
99
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
100
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,
101
LAeyers related to each other ordinarily may not rep adverse parties unless
each client gives informed consent
| this is personal not imputed
102
A lawyer must not have sex with a cleint
unless sexual rel. existed before the representation
103
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
104
lawyer maye provide a client with an evaluation of the matter for use by a
third party - but must be honest about evaluation
105
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
106
Lawyer bust not make a false statement of material fact when dealing with others, butgernally has no affirmative duty to
volunteer harmful facts
107
A lawyer is allowed to exaggerate
estimates of price and value
| acceptable settlement limits
108
A lawyer serving as a third party neutral must inform
unreppred parties the lawyer is not repping them
109
if litigation arises, the lawyer must not rep any of the parties unless
all parties can give informed consent
110
LAwyer must not make false statement to tribunal and
fail to correct previous false statement
111
A lawyer ust reveal to a tribunal
adverse decision or statue of controlling jurisdiction
112
a lawyer cannot offer false evidecne
that the lawyer knows to be false
113
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
114
Duty to rectify false testimony lasts..
until end of proceedings including appeals
115
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
116
IF lawyer comes to know E is false, the lawyer must
take reasonable remedial measures including disclore to the tribunal
