Concepts MPRE practice tests 1 and 2 review Flashcards
T or F A lawyer has a duty to report their own misconduct to the bar.
False, they must not report their own misconduct but must report other lawyers’ misconduct under certain circumstances.
what happens to the attorney client privilege if the client reveals the same communication he made to the lawyer protected under the attorney client privilege to a friend or another third party?
The client waives the attorney client privilege.
Communications made for purposes of communicating with a privileged person during a joint defense meeting are privileged under what doctrine?
The common interest doctrine
A lawyer can use a trade name as long as it is not misleading. However, if a private firm uses a trade name that includes a geographical location, what is the disclaimer that may be required in addition to avoid violating the MRs?
If using a geographical location as a trade name, the lawyer may be required to use an express disclaimer that it is not a public legal aid agency to avoid a misleading implication.
T or F, when a prosecutor attempts to encourage a plea by threatening to seek additional charges it is not extortion.
True
The Code of Judicial conduct requires a judge to recuse himself when his impartiality might reasonably be questioned. What does the CJC also require? Hint: in a motion for disqualification
The CJC also requires a judge to disclose info on the record that the judge believes the parties might reasonably consider relevant to a motion for disqualification even if the judge does not think he should be disqualified.
when a lawyer changes firms and his prior firm is disqualified from representation of a client, a lawyer who changes firms may not automatically permanently be disqualified. What is the test to determine whether the lawyer previously employed at the disqualified firm is disqualified from representing the client?
The presumption when considering a firm for disqualification is that lawyers employed at the firm shares information. Who has the burden of proof to show information sharing with the lawyer (from previous disqualified firm) didn’t happen?
The test is whether the lawyer knows of disqualifying info about the client’s case.
The firm seeking to avoid disqualification has the burden of proof to show that information sharing didnt happen.
A lawyer is normally required to report another lawyer’s misconduct or violation of the rules that raises questions about the lawyer’s honesty, trustworthiness, or fitness as a lawyer. But if the knowledge of the misconduct is based on privileged confidential information can the lawyer reveal the information?
No, not without the client’s consent unless the information to be revealed is impliedly authorized to carry out the representation.
T or F, WRITTEN Informed Consent is required when a lawyer enters into a business transaction with a client.
True
T or F, a lawyer may ask a person who is not a relative, employee, or other agent of the corporation that is the lawyer’s client, to not speak to the opposing side’s attorneys.
False, they cannot
In settling a malpractice claim that has already arisen, as opposed to an agreement to limit malpractice liability, is it enough for the lawyer to advise the client to be advised to seek independent counsel and be given the opportunity to do so?
yes
The model rules limit the circumstances under which prosecutors can subpoena evidence from criminal defense lawyers. They can only subpoena the information if:
- if the prosecutor reasonably believes the info is not privileged;
- that it is essential to the successful completion of an ongoing investigation or prosecution; and
- there is no other feasible alternative to obtain the information.
In advertising material a lawyer may use the words “________” or “________” as long as he doesn’t state nor imply that he has a certification in a specialty that he doesn’t.
“specialist” or “specialize”
A lawyer cannot solicit professional employment for pecuniary gain from a perspective client using real time communications unless an exception applies. What methods are considered real time electronic communication? what method is not?
real time electronic communication includes a phone call, instant message, a chat room communication, etc.
An email is NOT considered real time electronic communication
How is an email for purposes of communication treated?
as a direct mail advertisement letter or a recorded message.
T or F, The code of judicial conduct requires that a judge resign her judgeship when becoming a candidate for non-judicial elective office.
If True, what is the reason for this?
True
because candidates cannot effectively run while refraining from all pledges, promises, or commitments to political positions as it is inconsistent with a judge’s fairness and impartiality.
Generally, a lawyer cannot pay anyone for referrals. However, an exception is that they can?
pay a qualified lawyer referral service that has been approved by a state agency.
When it is not feasible for a lawyer to donate pro bono services, what should they do as an equivalent?
They should donate cash equivalent to the value of services not donated.
A lawyer can take advantage of information obtained relating to the representation of a client as long as?
Is informed consent required?
The information obtained does not disadvantage the client. Informed consent is not required if the information does not disadvantage the client
generally, ex parte communications with the judge are not allowed. however some such communications are authorized by law and not considered misconduct. what is an example?
an application for a temporary restraining order
In a ___________ proceeding the lawyer’s duty of candor to the court includes the duty to?
ex parte proceeding
duty to reveal all the facts including adverse ones known to the lawyer that will enable the court to make an informed decision.
A lawyer may not offer an __________ that is prohibited by law to get a witness to testify.
inducement
T or F, the model rules prohibit communication with a represented person concerning matters outside the representation.
false, they do not prohibit
T or F, law firms are not required to enable lawyers to provide pro bono services.
True
Are lawyers permitted to solicit those who are not relatives with whom they have a close personal relationship?
Yes
Generally, a fee agreement is not required to be in writing except for?
Contingent fee agreements
T or F, sexual relationships with clients are considered to be the lawyer’s personal conflict and are not imputed to the rest of the firm.
True
T or F the model rules prohibit a lawyer from accepting a substantial unsolicited gift from a client who is not a relative.
If a client gives a lawyer a substantial gift what is the lawyer prohibited from doing?
False, they can
The lawyer is prohibited from drawing up the documents for the gift or transferring title
T or F a Tribunal may forbid direct contact with an opposing party’s expert witnesses even if the contact is intended for a matter outside the legal matter.
True
For purposes of judicial recusal, it is not enough just that the relative of the judge, even one within the 3rd degree of relationship is affiliated with a law firm that represents a party before a judge, for the judge to be disqualified, what circumstance is necessary?
If the relative’s financial interest in the outcome is great enough or if otherwise the judge’s impartiality might reasonably be questioned, then the judge is be disqualified.
T or F, a violation of the Model Rules create a cause of action
False, they do not.
T or F a lawyer is responsible for overseeing the work of non-lawyer associates and is subject to discipline if lawyer is a partner in a law firm where the non-lawyer associate is employed.
True
Even though a lawyer has a general obligation to not mislead the court, he is not required to report past criminal acts of his client UNLESS:
unless the lawyer’s services were used to commit the criminal act.
T or F, the lawyer does not violate the model rules concerning solicitation by explaining the need for legal services without charge or suggesting the person seek legal help and offer to answer questions free of charge
True
T or F, lawyers are not permitted to obstruct another’s access to evidence or to conceal unlawfully materials that have potential evidentiary value.
True
If evidence is concealed unlawfully it is just as much as a violation as ___________ or ____________ it.
destroying or altering
T or F a lawyer must wait for an indictment to be handed down to reveal confidential information to defend himself.
False, they must not wait.
in general a lawyer must consult with a client concerning legal means by accomplishing the client’s objectives but what situations exempt a lawyer from making a decision on behalf of the client without consultation as an exception to the general rule?
Give an example
in some situations when an immediate decision must be made during a trial, the exigency of the situation may require the lawyer to act without prior consultation with the client.
during a trial a lawyer didnt have time to consult with a client
Judges cannot always speak or publish even on legal topics. Under what circumstances is a judge not allowed to speak or publish on a topic?
If the compensation to the judge was excessive, or the reimbursement was coming from a trade group, or if the judge’s impartiality might reasonably be questioned, the judge could not undertake the extrajudicial activity.
A lawyer is prohibited from engaging in conduct intended to disrupt a tribunal. What is an example?
lawyer using belligerent tactics for the purpose of distracting and confounding his adversaries.
T or F, lawyers are encouraged to be civil to one another but their is no general civility requirement in the model rules.
True
When the lawyer knows that any person has engaged in criminal conduct relating to the proceeding the lawyer must?
Give an example
lawyer must take reasonable remedial measures including disclosure if necessary.
revealing the defendants threat to a juror to the judge
A lawyer for an entity or organization may disclose confidential information to protect the client if the Board of Directors refuses to do so and other conditions are met. But the authority for disclosure does not extend to?
info relating to the representation of an attorney who is investigating an alleged violation by the entity.
T or F under some circumstances an advance waiver of a conflict of interest will be effective. For instance, if an experienced consumer of legal services agrees to the advance waiver after consultation with its in house counsel, and waived only conflicts arising from matters unrelated to the representation, the waiver does not violate the rules .
True
T of F, Lawyers are permitted to undertake even an unrelated litigation against a current client.
Why?
False they are not
the current client will feel betrayed and the lawyer client relationship is likely to be damaged if the lawyer represents another party that is directly adverse to the current client even in an unrelated matter.
T or F A lawyer may not disclose confidential information if none of the 6 exceptions apply even if nondisclosure results in a miscarriage of justice
True
An attorney is under a duty to reveal confidential information only if doing so is necessary to avoid?
assisting in a crime or fraud
T or F Many prosecutors fulfill their disclosure duty to the defendant by keeping an “open file policy.” However, such a policy is not required under the model rules.
True
T or F A prosecutor must disclose exculpatory information but is not required to reveal everything that is within the prosecutor’s file to the defense
When must evidence be disclosed to the defense by the prosecutor?
True
When the evidence is exculpatory or tends to negate the guilt of a defendant even if slightly, the prosecutor must disclose it.
Lawyers themselves are not allowed to contact a person who is represented. However, if the lawyer’s own client asks the lawyer if they themselves can contact the person, can the lawyer advise their client that they can without violating the model rules?
When would this contact not be permitted under the rules?
yes, the lawyer may advise their client if asked that they may contact the client.
If the lawyer tells the client to contact the represented person on the lawyer’s behalf it would violate the model rules.
A lawyer must abide by the rules of the tribunal except when?
the lawyer makes an open refusal based upon an assertion that no valid obligation exists.
T or F, attorneys are permitted to make repayment of expenses contingent upon recovery in a case and routinely do so. However, they are not required to make such an agreement with the client. Instead they may agree that the client will reimburse the lawyer of expenses regardless of the outcome of the case.
True
T of F, the rules of professional conduct dictate how a contingency fee will be calculated.
False they do not
T of F, judges are permitted to commend or criticize jurors for their verdicts.
False they are not
A defense attorney has a limited right to publicly reply to the undue prejudicial effect of the prosecutor’s statements. But what are they not allowed to do while doing so?
The defense attorney may not make statements that exceed the necessity to reply.
T or F, contingency fees are not allowed In divorce cases but they can be used in a post judgement matter relating to the divorce.
True
T or F, a lawyer may take inconsistent legal positions in different tribunals on behalf of different clients. The mere fact that advocating a legal precedent adverse to the interests of a client represented by the lawyer in an unrelated matter does not create a conflict of interest.
True
Is it a violation for a judge to make accommodations for pro se litigants if doing so is necessary for their matters to be fully heard?
Is a judge required to make accommodations for pro se litigants?
No
It is not required
