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MPRE > Mistakes from Qs > Flashcards

Mistakes from Qs Flashcards

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1
Q

Can a lawyer represent a prospective client who’s interests are materially adverse to a former client’s interest in same/substantially related matter?

A

Only if lawyer gets former client’s informed consent, confirmed in WRITING.

Even if 10 years later and relationship was expressly terminated, lawyer needs former client’s informed consent IN WRITING

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2
Q

A lawyer who lacks legal knowledge, skill, thoroughness, and prep reasonably necessary to represent a client is subject to discipline unless lawyer…

A

(1) declines or withdraws from representation,
(2) gains competence by reasonable prep, or
(3) associates with other lawyers of established competence.

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3
Q

Must an attorney disclose his lack of experience?

A

Nope, not necessary

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4
Q

Is a subordinate lawyer subject to discipline if he acts according to his supervising lawyer’s reasonable resolution of an arguable q of professional conduct?

A

NO! An associate is NOT subject to discipline for acting according to his partner’s reasonable resolution of an arguable question of professional conduct— Even if associate believed actions taken violate a professional duty.

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5
Q

A subordinate lawyer is not subject to discipline if:

A

(1) issue giving rise to violation posed an arguable question of professional duty and
(2) subordinate lawyer acted in accordance with supervising lawyer’s reasonable resolution of that question.

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6
Q

A lawyer who reasonably believes their client (1) has diminished capacity, (2) is at risk of substantial harm unless action is taken, and (3) cannot adequately act in his own interest, should?

A

1) determine if a person or entity is likely to act adversely to client’s interests.

2) If they will act in client’s best interests, lawyer should consult with them.

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7
Q

Does a lawyer need to obtain court approval before disclosing the client’s confidential info to a person who can protect a client?

A

NO! A lawyer need not obtain court approval before disclosing the client’s confidential inf to a person who has ability to protect client.

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8
Q

Does apparent authority extend to accepting settlements?

A

NO!!!

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9
Q

A lawyer must promptly inform client of a settlement offer unless client has previously:

A

(1) indicated offer would be acceptable or unacceptable or
(2) authorized lawyer to accept or reject the offer.

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10
Q

A lawyer may disclose confidential client info if

A

(1) client used lawyer’s services to further a crime/fraud
(2) crime/fraud will or has resulted in substantial injury to another’s financial interests or property, and (3) lawyer reasonably believes disclosure is necessary to prevent, mitigate, or rectify injury.

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11
Q

Does a lawyer owe former clients a duty of confidentiality if he learns new info before or after representation ends?

A

YES! A lawyer owes former clients a duty of confidentiality regarding any info relating to representation, REGARDLESS of if lawyer learns info before or after representation ends.

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12
Q

Can a lawyer solicit family members for legal work?

A

YES

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13
Q

Can a lawyer solicit a gift from a client or preparing an instrument that gives the lawyer a gift?

A

ONLY if the client is a family member.

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14
Q

When can a 3P pay a lawyer on behalf of another…

A

If: (1) client gives informed consent,
(2) there’s no interference with lawyer’s professional judgment or client-lawyer relationship, and
(3) lawyer protects client’s confidential info

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15
Q

Can a father pay for his son’s legal fees?

A

Only with the son’s INFORMED CONSENT

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16
Q

When is a lawyer’s conflict of interest NOT imputed to lawyer’s firm?

A

if (1) based on a personal conflict and
(2) doesn’t present a significant risk of materially limiting client representation by remaining lawyers in firm.

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17
Q

Does an associate’s owe a duty of confidentiality to the other members of his firm?

A

No - just the client

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18
Q

When is a conflict based on a lawyer’s personal interest is imputed to firm?

A

If it presents a significant risk of materially limiting client representation by other lawyers at firm.

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19
Q

What does civil liability for legal malpractice based on a theory of negligence require?

A

Proof lawyer breached a duty of care: failed to exercise competence and diligence normally exercised by lawyers in similar circumstances—owed to P and caused P harm.

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20
Q

What is a lawyer’s duty of care?

A

A lawyer must act with competence and diligence normally exercised by lawyers in similar circumstances.

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21
Q

What is a lawyer’s duty of care?

A

A lawyer must act with competence and diligence normally exercised by lawyers in similar circumstances.

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22
Q

A lawyer who Ks with a 3P on the client’s behalf is liable under the K if:

A

(1) client’s existence or identity was not disclosed to 3P or
(2) 3P provides goods or services used by lawyers and, as lawyer knows or reasonably should know, is relying on lawyer’s credit.

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23
Q

Whose performance is a 3P relying on if the 3P doesn’t know of the client’s existence when the K is made?

A

The lawyers.

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24
Q

Who is liable on a K with a 3P if the lawyer is acting on an undisclosed client’s behalf?

A

The lawyer.

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25
Q

If a client is contractually liable for the payment of all litigation expenses, can a lawyer still be liable?

A

Yes! Lawyer’s liability is not eliminated if a client is contractually liable for all expenses. It allows attorney to seek reimbursement from client for litigation expenses.

26
Q

Lawyer’s duty of candor

A

Requires lawyer to correct false statements of material fact made to court.

27
Q

Material fact

A

fact of consequence in determining case’s outcome

28
Q

Is a lawyer required to take reasonable steps to confirm client’s factual assertion before including it in a pleading?

A

No because a lawyer need not have personal knowledge of facts asserted therein.

29
Q

Does an attorney have to correct a statement of material fact she made to court if she later finds out it’s false?

A

YES!

30
Q

What should a lawyer do if he made a false statement of material fact?

A

Duty of candor requires lawyer to correct his statement with court.

31
Q

When can a lawyer request that a person refrain from volunteering info to another party?

A

If (1) person is a relative, or an employee or agent, of client and
(2) lawyer reasonably believes person’s interests won’t be adversely affected.

32
Q

If a client wishes to pursue a claim the lawyer thinks will fail, must lawyer advance it anyways?

A

Only if there’s a nonfrivolous basis for doing so: (if case, even if unsuccessful, can lead to a change in existing law)

33
Q

Can a lawyer’s conduct may violate the MRPC even if conduct doesn’t harm anybody ?

A

YES. Harm has no bearing on a MRPC violation.

34
Q

Duty of zealous representation to her client re: puffing in sales

A

duty of zealousness is not relevant in distinguishing false statements of material fact from puffery.

35
Q

If no party moves to disqualify a judge, does a judge need to disqualify himself if their impartiality may be questioned?

A

YES A judge must disqualify himself in any proceeding which judge’s impartiality may be reasonably questioned.

36
Q

4 occasions where a judge should disqualify

A

If judge/judge’s spouse has a relationship with:
1) a party to proceeding
2) acting lawyer in proceeding
3) person whose salary could be affected by proceeding or
4) a likely material witness in proceeding.

37
Q

if a judge communicates with a disinterested expert about a pending case, judge must give parties…

A

1) advance notice of expert and topics to be consulted &
2) reasonable time to object and respond to notice

38
Q

A judge is NOT required to give parties notice if …

A

Consulting another judge about a case.

39
Q

Can judges consult with other judges on their court about pending cases?

A

yes if they do not abrogate their judicial responsibilities.

40
Q

Can a judge investigate facts in a matter independently?

A

NO A judge can’t investigate facts in a matter independently, and can only consider evidence presented and facts that may properly be judicially noticed.

41
Q

What can/can’t a lawyer do if discussing a client’s crim conduct?

A

A lawyer CAN discuss legal consequences of a client’s crim/ fraudulent acts and advise or assist client in a good-faith effort to understand law.

BUT, a lawyer CAN’T assist client in crim or fraudulent acts.

Lawyer MUST withdraw from representation if conduct begun and continues.

42
Q

A lawyer cannot offer or make an employment agreement that restricts lawyer’s right to practice law at end of employment relationship. EX) ->

A

Agreements that have noncompete or forfeiture-for-competition clauses restricting a lawyer’s right to practice.

43
Q

Rule about false or misleading statements on behalf of a judge or judicial candidate

A

Judges and judicial candidates are prohibited from knowingly, or with reckless disregard for truth, making a false or misleading statement.

Judge/judicial candidate must reasonably ensure others don’t make false or misleading statements on their behalf.

44
Q

When can you limit malpractice liability?

A

only if client is independently represented by another lawyer

45
Q

A lawyer is subject to discipline for another lawyer’s violation of MRPC if lawyer

A

(1) is a partner or a superviser,
(2) knew of conduct when consequences could’ve been avoided or mitigated, but
(3) failed to take reasonable remedial measures.

46
Q

What does the duty of confidentiality cover?

A

Protect all info related to client representation

47
Q

Must a lawyer’s misconduct relate to his law practice?

A

No misconduct can be any criminal act that reflects adversely on a lawyer’s honesty.

48
Q

EXCEPTIONS to duty to report misconduct of other lawyers

A

you don’t have to report info
1) gained by a lawyer or judge while participating in an approved lawyers’ assistance program or
(2) is protected by duty of confidentiality.

49
Q

Does duty of confidentiality apply to prospective clients?

A

Yes even if lawyer declines representation

50
Q

If a lawyer acts with actual or apparent authority, client is…

A

bound by lawyer’s acts.

51
Q

Simply retaining a lawyer confers broad ______________ authority on the lawyer—

A

APPARANT authority – unless facts known or apparent to tribunal or 3P indicate lawyer’s authority is narrower.

52
Q

Rules for fee-sharing/fee-splitting arrangements

A

Fee-sharing agreements bw lawyers from different firms are permitted if (1) fee is shared proportional to each lawyer’s services;
(2) client agrees to fee-sharing arrangement and share each lawyer receives in writing; and
(3) total fee is reasonable.

53
Q

Rule for revealing clients protected info in hypotheticals

A

A lawyer is not allowed to reveal, w/o client’s informed consent, protected info related to client’s representation or info that could reasonably lead to discovery of such info—e.g., hypothetical that may reveal client’s identity or situation involved.

54
Q

A lawyer is prohibited from revealing a client’s confidential info UNLESS

A

1) Client consents to disclosure,
2)exception to duty of confidentiality applies, or
3) disclosure is impliedly authorized.

A lawyer’s implied authority to disclose such info may be limited by client’s instructions or special circumstances.

55
Q

advocate-witness rule

A

A lawyer is prohibited from serving as advocate & witness in same trial unless:

testimony relates to uncontested issue, testimony relates to nature & value of legal services rendered in case or disqualification of lawyer would work substantial hardship on client

56
Q

Can another lawyer in firm serve as a witness?

A

Lawyer may serve as advocate in trial in which another lawyer in firm is likely to be called as witness unless witness-lawyer’s conflict of interest is imputed to firm

57
Q

When is a conflict imputed to the firm?

A

If the conflict involves client loyalty or the protection of confidential info

58
Q

When does a concurrent conflict of interest exists?

A

When a lawyer acts as an advocate in one matter against a person the lawyer represents in another matter, even if matters are wholly unrelated.

59
Q

Concurrent conflict of interest

A

conflict of interest that occurs when a lawyer acts as an advocate in a matter against a person the lawyer represents in another matter– even if matters are completely unrelated

60
Q

How do you waive a concurrent conflict of interest?

A

By getting informed consent from each affected client, confirmed in writing.

MPRE (3 decks)

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