Key Words & Phrases Flashcards
Subject to Discipline
This phrase corresponds to the mandatory language “shall” (i.e., “must”) in the Model Rules and CJC.
May or Proper
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).
Subject to Litigation Sanction
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.
Subject to Disqualification
Asks whether the conduct would subject the lawyer or the lawyer’s law firm to disqualification as counsel in a civil or criminal matter.
Subject to Civil Liability
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.
Subject to Criminal Liability
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.
Bar, State Bar, or Appropriate Disciplinary Authority
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.
Certified Specialist
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.
Tribunal
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).
Law Firm
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).
Partner
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).
Writing
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).
Informed Consent
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.”
Confirmed in Writing
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.
Belief
“Belief” (or “believes”) indicates that the person actually supposed the fact in question to be true.