Kaplan Mod 4 Flashcards
What is the most heavily tested area on the MPRE?
Conflicts of interest
What are the two categories of conflicts of interest?
– rules that identify representations that ought to be generally avoided
– representations that are always prohibited
Attorneys must not represent clients if the representation is what in relation to another client?
Directly adverse to another client, or materially limited by the responsibilities to another client, former client, third-party, or by the attorney’s own interest UNLESS the attorney reasonably believes he will be able to provide competent and diligent representation to each affected client
Could an attorney represent both parties on each side of the V if each gave their informed consent?
No there is no unicorn exception here. This cannot be done.
If an attorney puts something in writing to his client, does that supplant the need for the attorney to speak with the client about it?
No, the attorney still needs to explain the risks and advantages as well as alternatives and deal with questions and concerns
Why is a writing so important in an attorney client relationship?
Because it impresses upon the client the seriousness of the decision they are being asked to make and it avoids disputes or ambiguities that might later occur
When would an attorney be allowed to obtain an economic interest that is adverse to his client?
- If he first made sure that the transaction and its terms were fair and reasonable
- he fully disclosed the transaction and its terms to the client
- transmitted them in writing to the client
- advised the client in writing of the desirability of getting independent outside counsel
- gave a reasonable opp to seek that advice
- got a writing signed by the client giving their informed consent to the essential terms of the transaction and the attorney’s role in the transaction
What is the exception to the rule that an attorney is not allowed to solicit a substantial gift from his client?
If the attorney is related to the client or has a close familial relationship
What is the exception to an attorney not being able to negotiate literary rights to an account based on information relating to a client’s representation?
As long as the negotiation occurs after the representation has concluded, it is OK because it will not affect the representation
What are costs and expenses of litigation that an attorney can advance to a client?
He can pay for the filing, a stenographer, an expert, costs and expenses of litigation on behalf of an indigent client
Is it proper for an attorney to advance the costs or expenses of litigation on behalf of a client, and have re-payment be made contingent on the outcome of the matter?
Yes
If a third-party is paying for the legal costs of an attorney’s client, can the attorney provide confidential information to the third-party?
No, confidentiality is only owed to the client, and it doesn’t bleed out to the third person
If an attorney is representing multiple parties in the same action, before settling, what does he need to do?
He must lay out what the terms are for each party and have each client sign a writing. Each client must know what the settlement terms are for each party
What is the exception to the rule that says that attorneys cannot enter agreements with a client to limit their liability for malpractice?
This is allowed if the client is independently represented by counsel when he makes the agreement
When can an attorney not represent someone because their interests are adverse to a former client?
When it involves the same or a substantially related matter and the interests of the client are materially adverse to the interests of the former client
What is the exception that allows an attorney to represent someone in a matter if their former firm previously represented a client in the same or a substantially related matter and the interest of the former firm’s client is materially adverse to the attorney’s current client, and the attorney had information relating to the representation of the former client, and this information is material in the current matter?
Only if informed consent confirmed in writing was gotten from the former firm’s client, because that is the person that is being disadvantaged
What is the exception to the rule that an attorney or a firm that has formerly represented a client in a matter cannot later use information relating to the representation to the disadvantage of that former client?
If the information has become generally known, it loses its confidentiality
Is there an exception to the rule that an attorney cannot use information he gained from a confidential representation of a former client to later disadvantage that former client through informed consent confirmed in writing?
No, no unicorn applies here
What is the exception to the rule that an attorney must not knowingly represent a client when another attorney in their firm is disqualified from representing the same client because of a conflict involving a former client?
The attorney must get from each affected client informed consent confirmed in writing, or the disqualification must arise out of the disqualified attorney’s association with a prior firm, and the disqualified attorney must be timely screened from any communication in the matter, must not get any part of the fee, and written notice must be promptly given to any affected former clients
What is the rule about special conflicts that involve government officers and employees?
Attorneys that were formally government officers or employees minds must not represent a client if it is in connection with a matter that the attorney participated in personally and substantially as a public officer or employee
If an attorney previously worked at the DA’s office when a particular defendant was prosecuted, does that create a special conflict later if the attorney went into private practice and wants to represent that client?
No, because just working at the office doesn’t mean he was personally or substantially involved in the participation of that matter
If an attorney agrees to represent a client who is being prosecuted for murder, and the attorney’s Sister is the prosecutor, does that create a conflict of interest that needs to be remedied with informed consent confirmed in writing?
Yes
In general when a criminal case is involved, is it reasonable for an attorney to believe that joint representation is a viable option?
No, because in criminal cases it is more likely that defendants are motivated to inform on codefendants
If four codefendants come to an attorney and ask her to represent all of them, and she interviews each and finds out that three are guilty and one is innocent, so she tells the three that she will represent them and tells the one that he needs to speak to the prosecutor, is it proper for her to represent those three?
No, because when she interviewed the innocent one, that put her in a position where she had a private attorney-client relationship with that one, who is now on the opposite side of the three others, which puts her on both sides of the dispute, and that cannot be erased by consent
