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Professional Responsibility > Model Rules > Flashcards

Model Rules Flashcards

1
Q

Are the Comments binding?

A

No MR 8.1

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2
Q

If a lawyer violates the MRs, does that mean the lawyer is liable for malpractice?

A

No MR 8.1

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3
Q

When MUST an applicant for the bar disclose a piece of information?

A

Only when (1) necessary to correct a known misapprehension, or (2) in response to a lawful request for information. MR 8.1

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4
Q

An applicant for the bar CANNOT make a __________ __________ of __________ __________.

A

false statement of material fact MR 8.1

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5
Q

Can a lawyer be subject for discipline for statements/omissions during the bar admission process?

A

Yes MR 8.1

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6
Q

If a lawyer observes another lawyer or judge violating the MRs, when MUST the lawyer report it? Is there any exception?

A

ONLY IF the lawyer’s/judge’s conduct “raises a substantial question as to that lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects.” Yes, don’t have to report if (1) doing so would reveal privileged information, or (2) the lawyer is already involved in an assistance program for the behavior. MR 8.3

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7
Q

Is it a violation to assist someone else in violating the rules?

A

Yes MR 8.4

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8
Q

Is it a violation to violate the rules through someone else’s actions?

A

Yes MR 8.4

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9
Q

Does engaging in general dishonest conduct = professional misconduct under the rules?

A

Yes MR 8.4

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10
Q

Is it professional misconduct for a lawyer to commit any kind of crime?

A

No, only crimes re truthfulness or fitness as a lawyer. MR 8.4

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11
Q

Is it professional misconduct for a lawyer to imply that he can achieve certain results?

A

Not unless the lawyer implies that he can do so through violative means. MR 8.4

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12
Q

May a lawyer refuse to comply with any professional obligation?

A

Only if there is a good faith belief that the obligation requires breaking one of the rules. MR 8.4

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13
Q

T/F: A lawyer may only be subject to the rules of one jurisdiction at a time for the same conduct.

A

False. Can be subject to more than one jurisdiction’s rules for the same conduct. MR 8.5

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14
Q

If a lawyer violates the rules in connection with a matter before a certain tribunal, may he cite the rules of another jurisdiction as the rules he’s bound by?

A

Only if he “reasonably believed” the effect of the conduct would be felt in that other jurisdiction. Otherwise, subject to the rules of that tribunal. MR 8.5

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15
Q

Generally, what’s the rule of thumb for determining which jurisdiction’s rules apply?

A

Apply the rules of the jurisdiction in which either (1) the conduct occurred, or (2) the predominant effect of the conduct is felt. MR 8.5

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16
Q

What are the thee categorical instances in which confidential information can be disclosed?

A

Informed consent Impliedly authorized Or authorized under 1.6(b) MR 1.6

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17
Q

A lawyer shall not reveal information __________ ___ ___ __________ of a client unless…

A

relating to the representation MR 1.6

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18
Q

What are the seven exceptions for A-C privilege under 1.6(b)?

A

Prevent reasonably certain death or bodily harm Prevent client from committing crime/fraud with the lawyer’s help Prevent, mitigate or rectify injury resulting from the crime Secure legal advice about compliance with the Rules Establish a claim or defense related to the representation itself Comply with law or court order Detect or resolve conflicts of interest (unless doing so would prejudice the client) MR 1.6

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19
Q

What should a lawyer be careful to do when giving a hypothetical?

A

Make sure that the listener could not figure out confidential information from the hypo. MR 1.6

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20
Q

Can lawyers in the same firm share confidential information about cases they are working on? Why?

A

Yes, b/c it’s impliedly authorized. MR 1.6

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21
Q

Does the A-C privilege continue after the representation has ended?

A

Yes MR 1.9

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22
Q

What should a lawyer do if a client brings up proposed criminal activity?

A

CANNOT aid in the crime/fraud. MAY give legal advice as to the consequences of any proposed action, and give a good faith effort to explain applicable law. MR 1.2

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23
Q

Organizational client: In general, whose interests MUST a lawyer look out for in the event that a member of the organization wants to violate a law or legal obligation to the organization that is likely to result in substantial harm to the organizational client?

A

The interests of the organization come first. MR 1.13

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24
Q

Organizational client: When should a lawyer report the conduct of a constituent to a higher authority within the organization? Is this duty permissive?

A

IF: (1) The conduct is likely to create substantial harm for the organization (2) Warranted by the circumstances, AND (3) The lawyer doesn’t reasonably believe that reporting the conduct isn’t necessary to protect the organization’s interests No, if the above are met, the lawyer MUST report to a higher authority. MR 1.13

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25
Q

Organizational client: When is a lawyer able to reveal information about a constituent’s conduct beyond the organization? Is this duty permissive?

A

MAY reveal the information ONLY IF and to the extent reasonably necessary to protect the interests of the organization — UNLESS the conduct in question is what the lawyer was hired to investigate to begin with. Yes, this is permissive. MR 1.13

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26
Q

Organizational client: What should a lawyer do if he is fired for reporting the conduct of a constituent? Is this duty permissive?

A

Report to higher authority No, not permissive. MR 1.13

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27
Q

Organizational client: What should a lawyer do when talking with constituents of the organization? Is this duty permissive?

A

If the constituent’s interests are ADVERSE to the organization, then MUST tell them of the lawyer’s role and who he represents No, not permissive. MR 1.13

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28
Q

Organizational client: Can a lawyer represent the organization and any of its constituents simultaneously?

A

Yes, although 1.7 (concurrent representation) conflicts may still arise. MR 1.13

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29
Q

Organizational client: Are conversations with a constituent protected as confidential information?

A

Yes, but that does not mean the constituent is a “client”—the lawyer can’t disclose confidential information to the constituent.

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30
Q

Does “knowledge” under the Rules require actual knowledge?

A

No, knowledge can be inferred from the circumstances—a lawyer cannot get away with ignoring the obvious.

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31
Q

Candor toward third persons: MUST not _________ make a ______________ to a third person.

A

knowingly false statement of material fact MR 4.1

32
Q

Candor toward third persons: What MUST a lawyer not fail to disclose when talking to a third person?

A

Material fact, IF disclosure is necessary to avoid assisting client in fraud/crime — UNLESS disclosure is prohibited by 1.6 MR 4.1

33
Q

Candor toward the tribunal: MUST not ________ make a _______________ or fail to _________.

A

knowingly make a false statement of fact or law to a tribunal correct a false statement of material fact or law previously made to the tribunal by the lawyer; MR 3.3

34
Q

Candor toward the tribunal: When MUST a lawyer disclose authority to the tribunal? What about at an ex parte proceeding?

A

MUST disclose legal authority: In the jurisdiction Known to be directly adverse, and Not disclosed by opposing counsel At ex parte proceeding, MUST disclose all material facts known (adverse or not) that would help the tribunal make an informed decision MR 3.3

35
Q

Candor toward the tribunal: MUST not offer ______________.

A

evidence known to be false MR 3.3

36
Q

Candor toward the tribunal: What MUST a lawyer do if the lawyer, the lawyer’s client, or a witness called by the lawyer, has offered material evidence and the lawyer comes to know of its falsity?

A

MUST take “reasonable remedial measures” IF necessary, disclose to the tribunal MR 3.3

37
Q

Candor toward the tribunal: May a lawyer offer evidence known to be false?

A

Yes, if reasonably believed to be false. BUT can’t refuse to offer CRIMINAL defendant’s testimony. MR 3.3

38
Q

Candor toward the tribunal: What MUST a lawyer do if the lawyer if he finds out that a that a person intends to engage, is engaging or has engaged in criminal or fraudulent conduct related to the proceeding?

A

MUST take “reasonable remedial measures” IF necessary, disclose to the tribunal MR 3.3.

39
Q

When do the candor duties in MR 3.3 end?

A

At the end of the proceeding MR 3.3

40
Q

Are any of these things okay? Unlawfully obstruct access to evidence Unlawfully alter, destroy, or conceal potential evidence Falsify evidence

A

Of course not MR 3.4

41
Q

What can a lawyer NOT do re discovery requests?

A

CANNOT Refuse to obey an obligation under the Rules or tribunal Make a frivolous discovery request MR 3.4

42
Q

May a lawyer offer evidence even if not reasonably believed relevant, or unsupported by evidence?

A

No MR 3.4

43
Q

May a lawyer assert personal knowledge of facts in issue (if not testifying as a witness)?

A

No MR 3.4

44
Q

What can a lawyer NOT state an opinion on?

A

The justness of a cause The credibility of a witness The guilt or innocence of an accused person MR 3.4

45
Q

Under what circumstances can a lawyer tell someone NOT to give the other side certain relevant information?

A

ONLY IF: The person is a relative, employee, or agent of the client, AND The lawyer reasonably believes the person’s interests will not be adversely affected by withholding the information MR 3.4

46
Q

A lawyer CANNOT bring a claim UNLESS: What changes if it’s a CRIMINAL case?

A

There is a good faith basis in law and fact, including a good faith argument for extension, modification, or reversal of existing law If CRIMINAL case, MAY defend requiring that every element of the crime be established MR 3.1

47
Q

When talking with a person known to be represented by another lawyer, what MUST the lawyer NOT do? Can consent cure this rule?

A

Communicate about the subject of the representation Yes, the other lawyer can give consent MR 4.2

48
Q

When talking to an un-represented person, what MUST the lawyer NOT do? What MUST the lawyer do?

A

CANNOT state or imply that the lawyer is disinterested IF an unrepresented person misunderstands the lawyers role in the matter, the lawyer MUST make reasonable efforts to correct MR 4.3

49
Q

May a lawyer give legal advice to an un-represented person?

A

Generally there’s no problem with this. BUT CANNOT give legal advice to unrepresented person whose interests are or reasonably could be in conflict with the lawyer’s client — in that case, MAY ONLY tell the person to get a lawyer MR 4.3

50
Q

What MUST a lawyer do if he receives information from someone that he believes was inadvertently sent to him?

A

Only MUST notify the sender — any other implications are beyond the scope of MR’s, other than the general rules of professional judgment that apply. MR 4.4

51
Q

Under what circumstances may a lawyer enter a business transactions with a client?

A

ONLY IF: Terms are reasonable Terms are fully disclosed to the client in writing The client is advised in writing to seek counsel, AND Written consent as to the terms and the lawyer’s role. Also if just a standard commercial transaction between the lawyer and the client for products or services that the client generally markets to others MR 1.8

52
Q

May a lawyer ever use information related to the representation to the disadvantage of a client?

A

No, UNLESS client gives informed consent MR 1.8

53
Q

May a lawyer receive a gift from a client? Under what circumstances would taking the gift be inappropriate?

A

Yes, even if a substantial gift (as long as no undue influence). CANNOT solicit a substantial gift. MR 1.8

54
Q

May a lawyer grant himself a portion of the estate if the lawyer is the executor of the estate?

A

ONLY IF the lawyer or other recipient of the gift is related to the client. “related” includes “close familial relationship” MR 1.8

55
Q

When may a lawyer negotiate the literary or media rights related to a representation?

A

ONLY after the representation is totally over. MR 1.8

56
Q

What are the only two instances in which a lawyer could give a client financial assistance?

A

Advancing court costs to be paid back contingent on the outcome Paying court costs of an indigent client MR 1.8

57
Q

When can a lawyer accept payment from someone other than the client?

A

ONLY IF: Informed consent No interference with the lawyer’s judgment, AND Does not require disclosure of 1.6 info MR 1.8

58
Q

When can a lawyer acquire a lien/interest in the outcome of a cause of action?

A

ONLY IF: Lien to collect attorney’s fees, OR Reasonable contingency fee MR 1.8

59
Q

When can a lawyer have sexual relations with the client?

A

ONLY IF the relationship existed already MR 1.8

60
Q

Which of the 1.8 current client conflicts can be imputed to the other lawyers at a firm?

A

ALL of them EXCEPT the one about sexual relations MR 1.8

61
Q

May a lawyer advocate at a trial if it’s possible he might be called as a witness? What if another lawyer from the firm is the one that might be called?

A

CANNOT if the lawyer is likely to be a necessary witness UNLESS: (1) the testimony relates to an uncontested issue; (2) the testimony relates to the nature and value of legal services rendered in the case; or (3) disqualification of the lawyer would work substantial hardship on the client. MAY advocate at the trial if it’s just another lawyer at the firm who will be called. MR 3.7

62
Q

When may a lawyer NOT undertake a concurrent representation?

A

IF: (1) Direct adversity with another client, OR (2) Significant risk that either representation will be materially limited OR if it doesn’t meet the four requirements for permissive concurrent representation: (1) Reasonably believes representation of both will be competent and diligent (2) Not prohibited by law (3) Not one client against another in the same litigation, AND (4) Each affected client gives informed, written consent MR 1.7

63
Q

What are the four requirements for permissive concurrent representation?

A

(1) Reasonably believes representation of both will be competent and diligent (2) Not prohibited by law (3) Not one client against another in the same litigation, AND (4) Each affected client gives informed, written consent MR 1.7

64
Q

X lawyer CANNOT represent C IF _________ UNLESS ________?

A

IF:
Had previously represented another client in the same or a substantially related matter, AND
The new client’s interests are now materially adverse to the former client’s interests,

UNLESS:informed consent in writing

MR 1.9

65
Q

X lawyer CANNOT represent C IF ________ UNLESS ________?

A

The lawyer’s previous firm previously represented another client in the same or a substantially related matter,
The new client’s interests are now materially adverse to the former client’s interests
The lawyer, while at the previous firm, had collected protected information about the former client.
UNLESS former client informed consent in writing

MR 1.9

66
Q

CANNOT reveal information received from a prospective client, UNLESS …?

A

ONLY IF 1.9 would permit it, as if the person was a former client

67
Q

X lawyer CANNOT represent B IF _______ UNLESS ________ ?

A

IF:
The new client’s interests are materially adverse to the prospective client in the same or substantially similar matter, AND
If the lawyer received information from the prospective client that is substantially harmful to the new client.

UNLESS:
Both the affected client and the prospective client give written consent, OR
The lawyer took reasonable measures to lean only what was needed to determine if representation was proper, AND the lawyer is screened and notice is promptly sent to the prospective client

MR 1.18

68
Q

X is disqualified through imputed DQ UNLESS … ?

A

(1) The DQ is based on a personal conflict and does not present a significant risk of materially limiting the remaining lawyers’ representations, OR
(2) The DQ is based on a conflict with a former client from the DQ’d lawyer’s prior firm, AND
(i) The lawyer is screened
(ii) The former client is notified
(iii) The firm certifies compliance with the rules

MR 1.10

69
Q

If the DQ lawyer (L) leaves, is X still DQ from taking representation materially adverse with L’s old client?

A

No, UNLESS:
The matters are the same or substantially related, AND
Any lawyer still at the firm has confidential information (1.6 and 1.9(c))

70
Q

May an affected client give consent to cure imputed DQ?

A

Yes, but must follow consent requirements from 1.7 (concurrent representation):

(1) Reasonably believes representation of both will be competent and diligent
(2) Not prohibited by law
(3) Not one client against another in the same litigation, AND
(4) Each affected client gives informed, written consent

Plain old consent will not do.

MR 1.10

71
Q

If a lawyer moves from gov’t to private practice, what kind of matters can he NOT work on?

A

CANNOT represent a client in connection with a matter in which the lawyer participated personally and substantially as a gov’t employee UNLESS the gov’t consents.

MR 1.11

72
Q

X is DQ through imputed DQ UNLESS … ?

A

UNLESS:
Primary DQ lawyer is screened
Written notice to gov’t agency

MR 1.11

73
Q

IF former gov’t lawyer has confidential gov’t information about a person, the lawyer CANNOT undertake representation ________ UNLESS _______.

A

CANNOT undertake representation in which the information could be used to the material disadvantage of that person UNLESS screened

MR 1.11

74
Q

What is “confidential government information” in the context of a former gov’t lawyer?

A

information obtained under gov’t authority that is not publicly available (i.e. gov’t can’t disclose it, or is privileged not to do so)

MR 1.11

75
Q

If a former gov’t lawyer obtained confidential gov’t information at his previous job, are the other lawyers DQ through imputed DQ?

A

Yes, UNLESS the lawyer is screened.
*Note that notice isn’t required in this case. If the former gov’t lawyer were DQ b/c he participated personally and substantially in a matter, then the firm would need to send notice to the gov’t agency.

MR 1.11

76
Q

If a lawyer goes from private practice to gov’t agency, then the lawyer: (1) _______ and (2) CANNOT ______.

A

(1) Is subject to 1.7 (concurrent conflicts) and 1.9 (former client conflicts)
(2) CANNOT participate in a matter in which the lawyer participated personally and substantially while in private practice UNLESS the gov’t agency consents

MR 1.11

77
Q

If a lawyer goes from private practice to gov’t agency, lawyers at the agency may be DQ through imputed DQ if …?

A

No imputed DQ. 1.10 doesn’t apply and 1.11 has no imputed DQ provisions for this kind of move. Although, 1.11, cmt 2 suggests that screening the lawyer would be prudent.

1.11

Professional Responsibility (2 decks)

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