Kaplan Mod 1

Question 1

If an attorney commits an ethical violation, is it a defence that the attorney acted in accordance with the supervising attorney’s orders?

Answer 1

When the subordinate seeks the guidance of a supervisory attorney on an arguable question of a professional duty, he can act according to the supervisor’s reasonable recommendation. But if there is no arguable question, then the subordinate and the supervising attorney are both subject to discipline

Question 2

Can lawyers and non-lawyers share fees?

Answer 2

No

Question 3

Can lawyers or law firms include their non-lawyer employees in a compensation or retirement plan, even if the plan is based wholly or in part on a profit-sharing arrangement?

Answer 3

Yes, so as long as payments are made as part of compensation under a profit-sharing plan, and not as a referral bonus or something else, then it is OK

Question 4

If a firm’s office manager referred clients to the firm, could the firm pay the office manager a referral fee?

Answer 4

No

Question 5

Is it OK for an attorney to lie on his bar application?

Answer 5

No

Question 6

If you know a judge or another attorney did something bad, how bad does it have to be for you to have to report it?

Answer 6

It has to involve a substantial question of honesty, trustworthiness, or fitness to be a lawyer. If it does, you must report it or you are subject to discipline

Question 7

If an attorney learns about another attorney’s misconduct while participating in an approved attorney assistance program like group therapy, must the misconduct be reported?

Answer 7

No, it cannot be divulged. Otherwise no one would participate in these programs

Question 8

Lawyers are only professionally answerable for offences they commit that show a lack of what?

Answer 8

Characteristics that are relevant to the practice of law

Question 9

If you have an affair, are you subject to discipline under the model rules?

Answer 9

No because that has nothing to do with your characteristics that are relevant to practice the law

Question 10

What are characteristics that are relevant to the practice of law?

Answer 10

Offences that involve violence, dishonesty, breach of trust, or serious interference with the administration of justice

Question 11

A pattern of repeated offences by an attorney, even if they are minor in significance, can indicate what?

Answer 11

they can indicate indifference at large to the attorney’s legal obligation

Question 12

Where are the places that an attorney is subject to discipline?

Answer 12

Anywhere he is licensed to practice law

Question 13

If you are a partner or a supervisor, what is your ethical obligation?

Answer 13

To ensure that attorneys in your firm, or the ones you supervise also conform to the model rules

Question 14

If you are a partner in a law firm, what is your obligation regarding ensuring that attorneys comply with the rules?

Answer 14

You have an obligation to put into place internal policy to ensure that the attorneys comply with the rules. The bigger the firm, the more systematic it should be. I.e.: formal training. The smaller the firm, the less formal the process needs to be

Question 15

What are some situations that an attorney might be responsible for an ethical violation of another attorney?

Answer 15

If you ordered that attorney to violate the rule, or if you knew that they violated a rule and you ratified it, or you were in a supervisory position and you knew of the violation, but failed to take reasonable remedial action

Question 16

What is the situation where a subordinate attorney is not responsible for his own ethical violation?

Answer 16

If you reasonably relied on the advice in guidance of a supervisor who made a reasonable judgement call that you followed

Question 17

What are some examples of subordinates that are not attorneys that an attorney would be responsible for their ethical violations?

Answer 17

Secretaries, Private investigators, student legal interns, paralegals

Question 18

Attorneys are responsible for the what of their non-attorney employees?

Answer 18

Work product

Question 19

Attorneys must do what to ensure that non-attorneys who work for them perform their work in ways that are compatible with the attorney’s ethical duties under the rules?

Answer 19

Instruct them on the rules and supervise them

Question 20

When a third-party non-client either recommends or pays the attorney to provide legal services to a client, what can the attorney not allow?

Answer 20

Cannot allow the third-party to influence his professional judgment. It is the client’s interest that is paramount. The loyalty and duty is to the client, not to the chequebook

Question 21

What kinds of partnerships are not permitted?

Answer 21

Anytime there’s a partnership between a non-lawyer and the lawyer, where the partnership’s activities include the practice of law

Question 22

If a lawyer and a doctor go into business together to run a mini golf, is that prohibited?

Answer 22

No, because the partnership has nothing to do with the practice of law

Question 23

If an attorney and a doctor own a law business together is that OK?

Answer 23

No because the partnership is based on the practice of law, and a doctor is not an attorney

Question 24

The law cannot be practised by who?

Answer 24

Non-lawyers

Question 25

What is included in the definition of the practice of law?

Answer 25

Evaluating client matters, accepting cases, signing clients up with a retainer or some engagement letter, and court appearances

Question 26

To be authorized to practice in a jurisdiction, you have to be what?

Answer 26

Either admitted to the jurisdiction by passing the bar, or authorized by a rule or some court order to practice there on a limited basis like pro hac vice

Question 27

Can a California lawyer go to Pennsylvania, where he’s not licensed, just to defend a deposition that links to his out-of-state practice?

Answer 27

Yes because this is a situation when the services are reasonably related to the attorney’s out of state practice

Question 28

If an attorney provides non-legal services, do the regular attorney-client ethical duties apply?

Answer 28

No. That is why it is very important to let the client know of this, so there’s no misunderstanding. Super good idea to put it in writing, especially since the burden is on the attorney for this good communication with the client

Question 29

If you just reasonably believe that another lawyer has engaged in conduct that raises a substantial question about his honesty, trustworthiness, or fitness, do you have to report it?

Answer 29

No, the standard for mandatory reporting is actual knowledge. So you must know that the other lawyer has engaged in this conduct before you have to report it

Question 30

What are the four limited circumstances when a lawyer can split fees with a non-lawyer?

Answer 30

– Sharing court-awarded legal fees with a nonprofit organization that employed, retained, or recommended the attorney
- according to agreement
– when a law firm pays money on a lawyer‘s death to his estate
– when a lawyer buys the practice of a dead lawyer
– when non-lawyer employees are paid salary or through retirement plans

Question 31

What is the rule for partners and supervising attorney’s responsibilities to ensure that all attorneys comply with the ethical rules?

Answer 31

They must make reasonable efforts to establish internal policies and procedures to provide reasonable assurance that all attorneys in their employ comply with the ethical rules

Question 32

What are the exact measures that are required for a partner or supervising attorney to take to ensure that attorneys in their employ comply with the ethical rules?

Answer 32

It depends on the structure of the firm, but it should include: procedures to detect and resolve conflicts of interest, specific dates the actions have to be taken by in pending matters so that deadlines don’t get missed, accountability for client funds and property, supervision of inexperienced lawyers, etc.

Question 33

Is it OK for a lawyer to ask her secretary to draft a brief for her, if there is an instruction not to file it until the lawyer has reviewed it?

Answer 33

That is OK because a lawyer can delegate tasks to non-lawyers without violating the rules as long as he maintains a direct relationship with the client, supervises the delegated work, and retains complete professional responsibility for the work (the atty’s name goes in the filing)

Question 34

Is it proper for an attorney to ask his secretary to do the client agreement letter?

Answer 34

No, that would be the unauthorized practice of law by a non-attorney

Question 35

Is it proper for a paralegal to be in court getting a continuance date for an attorney?

Answer 35

No, because that would be the unauthorized practice of law by a non-attorney