Key Words & Phrases

Question 1

Subject to Discipline

Answer 1

This phrase corresponds to the mandatory language “shall” (i.e., “must”) in the Model Rules and CJC.

Question 2

May or Proper

Answer 2

Asks whether the conduct is professionally appropriate (i.e., conduct that is not subject to discipline, not inconsistent with the preamble, comments, or text of the Model Rules or CJC, and not inconsistent with generally accepted principles of the law of lawyering).

Question 3

Subject to Litigation Sanction

Answer 3

Asks whether the conduct would subject the lawyer or the lawyer’s law firm to a fine, fee forfeiture, disqualification, punishment for contempt, or other sanction by a legal tribunal.

Question 4

Subject to Disqualification

Answer 4

Asks whether the conduct would subject the lawyer or the lawyer’s law firm to disqualification as counsel in a civil or criminal matter.

Question 5

Subject to Civil Liability

Answer 5

Asks whether the conduct would subject the lawyer or the lawyer’s law firm to civil liability, such as a claim arising from malpractice, misrepresentation, or breach of fiduciary duty.

Question 6

Subject to Criminal Liability

Answer 6

Asks whether the conduct would subject the lawyer to criminal liability for participation in or aiding and abetting criminal acts, such as insurance or tax fraud, destruction of evidence, or obstruction of justice.

Question 7

Bar, State Bar, or Appropriate Disciplinary Authority

Answer 7

A reference to discipline by the “bar,” “state bar,” or “appropriate disciplinary authority” means the appropriate agency in the jurisdiction with the authority to administer the standards for admission to practice and for maintenance of professional competence and integrity.

Question 8

Certified Specialist

Answer 8

Identification of a lawyer as a “certified specialist” means that the lawyer has been so certified by the appropriate agency in the jurisdiction in which the lawyer practices.

Question 9

Tribunal

Answer 9

A “tribunal,” in addition to encompassing a court, includes an arbitrator in a binding arbitration proceeding, and a legislative body, administrative agency, or other entity that acts in an adjudicative capacity. An entity acts in an adjudicative capacity when a neutral official, after the presentation of evidence or legal argument by a party or parties, reaches a binding legal judgment that directly affects a party’s interest in a particular matter. MRPC 1.0(m).

Question 10

Law Firm

Answer 10

A “law firm” (or “firm”) is any association of lawyers authorized to practice law, and includes a partnership or professional corporation as well as lawyers employed in a legal services organization or the legal department of a corporation or other organization. MRPC 1.0(c).

Question 11

Partner

Answer 11

A “partner” is a member of a partnership, a shareholder in a law firm organized as a professional corporation, or a member of an association authorized to practice law. MRPC 1.0(g).

Question 12

Writing

Answer 12

A “writing” encompasses any tangible or electronic record of a communication or representation, including a photograph, audio- or video recording, and electronic communications. A writing can be signed by any means, including an electronic sound, symbol, or process that is attached to or logically associated with the writing and is executed or adopted by a person with the intent to sign the writing. MRPC 1.0(n).

Question 13

Informed Consent

Answer 13

In order to obtain a person’s “informed consent” to a proposed course of conduct, the lawyer must communicate adequate information about the material risks of the proposed course of conduct, as well as reasonably available alternatives. The lawyer is not required to inform a person of facts or implications already known to the person, and can take into account the person’s legal knowledge and representation by another lawyer, but the lawyer bears the risk as to adequacy of the information. Generally, consent may not be assumed from a person’s silence, but may be inferred from a person’s conduct. MRPC 1.0(e), cmts. 6, 7. For purposes of the MPRE, the term “consent after consultation” has the same meaning as “informed consent.”

Question 14

Confirmed in Writing

Answer 14

While the Model Rules require that a person’s informed consent be “confirmed in writing,” the informed consent need not take the form of a document signed by the person. In such circumstances, the consent can be given orally and a writing can be prepared by the lawyer as a confirmation of the oral consent. If it is not possible to obtain or transmit the writing at the time the informed consent is given, the lawyer must obtain and transmit it within a reasonable time thereafter, but may immediately act in reliance on the consent. MRPC 1.0(b), cmt. 1.

Question 15

Belief

Answer 15

“Belief” (or “believes”) indicates that the person actually supposed the fact in question to be true.

Question 16

Knowledge

Answer 16

“Knowingly” (or “known,” or “knows”) denotes actual knowledge of the fact in question. Each is subjective in nature, but each may be inferred from the circumstances.

Question 17

Reasonable/Reasonably

Answer 17

“Reasonable” (or “reasonably”) used in relation to a lawyer’s conduct denotes the conduct of a reasonably prudent and competent lawyer, an objective standard.

When the phrase “reasonable belief” (or “reasonably believes”) is used, the lawyer is required to believe the matter in question (a subjective standard) and the circumstances must be such that the belief is reasonable (an objective standard).

When the phrase “reasonably should know” is used, a lawyer of reasonable prudence and competence would ascertain the matter in question (an objective standard). MRPC 1.0(a),(f),(h),(i),(j).

Question 18

Screening/Screened

Answer 18

Screening requires the isolation of the lawyer from any participation in the matter through the timely imposition of procedures that are reasonably adequate under the circumstances to protect information that the isolated lawyer is obligated to protect. MRPC 1.0(k).

Question 19

Fraud or Fraudulent

Answer 19

“Fraud” (or “fraudulent”) is conduct that is fraudulent under the substantive or procedural law of the applicable jurisdiction and has a purpose to deceive. It does not include negligent misrepresentation. For disciplinary purposes, it is not necessary that anyone relied upon or suffered damages from the misrepresentation. MRPC 1.0(d), cmt. 5.

Question 20

Substantial

Answer 20

“Substantial,” when used in reference to degree or extent, indicates a material matter of clear and weighty importance. MRPC 1.0(l).