MPRE 1 of 2 Flashcards
(144 cards)
1
Q
Who has the power to regulate the legal function and what are their two duties?
A
The State’s highest court
First, adopts the ethical rules for the state
Second, enforces the rules through disciplinary commission or bar association
2
Q
What is the requirement for admissions requirements to practice in law?
A
Must be rationally related to the practice of law (e.g., graduated from an accredited law school, oath to uphold constitution, good moral character)
NOTE: Mere membership in a community party is OK
3
Q
What is the standard for your past conduct to results in your rejection from the Bar?
A
The conduct must involve moral turpitude with no strong evidence of rehabilitation
Bar looks at how young you were when you did it and whether you have demonstrated rehabilitation
4
Q
What is the definition of moral turpitude?
A
Crimes involving intentional dishonesty
(e.g., forgery, bribery, theft, perjury, robbery, extortion)
Crimes of violence
Lying even if not a crime
Lying to committee during character investigation
NOTE: Crime is too small if defined as (1) adolescent behavior or (2) civil disobedience
5
Q
What are two areas that are not rationally related to the practice of law?
A
Citizenship
Residency
6
Q
What is the duty to cooperate with character investigations?
A
- Duty to not knowingly respond to requests for info
- Duty to not knowingly make a false statement of material fact
- Duty to disclose a fact necessary to correct a misapprehension known about in the matter
NOTE: If I know a friend forged transcript, must voluntarily tell the bar
NOTE: If protected information, do not need to divulge
NOTE: If you are being investigated, you can disclose information relevant
7
Q
What crimes/acts can result in professional misconduct?
A
Acts related to dishonesty, fraud, deceit, or misrepresentation
Crimes related to honesty, trustworthiness, or fitness
8
Q
When is the duty to report misconduct triggered?
A
When the lawyer has knowledge
- Knowledge can be actual or inferred from circumstances
- Defined: More than a mere suspicion
9
Q
When must a lawyer report a professional misconduct?
A
Raises a substantial question as to honesty, trustworthiness, or fitness
10
Q
What are the two exceptions to mandatory reporting?
A
1) Would violate duty of confidentiality to a client
2) You learned of violation through lawyer’s assistance program (e.g., for alcohol issues)
11
Q
When do you NOT need to report someone to the bar?
A
- Issue raised is not substantial
- Suspect a violation but do not know
12
Q
Which state has the authority to discipline a lawyer?
A
Any state where the lawyer is admitted or
Any state where the lawyer provided or offered services
NOTE: If two different states and two different rules, authority will look at where the ‘predominant effect of the conduct’ was
NOTE: If you are barred in one state, you are not automatically barred in other states
NOTE: You cannot assist a lawyer who is suspended or disbarred
NOTE: A bank may not provide legal services to its customers through a salaried lawyer because banks are not authorized to practice law. By providing these services (sending newsletter to all bank customers from the trust attorney), the attorney is assisting the bank in the unauthorized practice of law.
13
Q
What are the 4 methods of temporary out of state practice?
A
- Associate w/ other attorney who actively participates in the matter
- Admission pro hac vice - OK to go and do prelim work before they get back to you
- Mediation or arbitration if services reasonably related to your practice
- Matter reasonably related to your home state practice
NOTE: Foreign lawyer can practice temporarily if relates to one of the four above OR if issue relates to international law or Jx outside of the states. Also, you cannot advise client on U.S. law
14
Q
What are the rules in permanent practice out of your Jx?
A
- ONLY OK for in-house counsel and government lawyers in NON-litigation matters
NOTE: If you want to do litigation, you need pro hac vice permission
NOTE: If you work under multiple Jx, you are responsible for all the rules
15
Q
What is the main rule on duty to prevent ethical violations at work?
A
- Partners, managers, supervisors must take reasonable measures to ensure compliance
- Same applies to non-legal staff
16
Q
When are you vicariously liable for an attorney or attorney staff actions (two situations)?
A
- Ordered or knew about it and ratified the misconduct
OR - In charge and knew about it when the consequences could be mitigated and did nothing about it
17
Q
What is the rule on the responsibilities of a subordinate lawyer?
A
You can still be punished unless it was a reasonable resolution of an arguable question of professional duty
NOTE: Junior lawyer must have knowledge to be up for discipline
NOTE: Not punished if above exception applies even if your boss punished
18
Q
What is the rule on professional independence and partnerships and a non lawyer having interest in the law firm?
A
i. No forming partnerships with non-lawyers IF activities involve practice of law
ii. No non-lawyer control or ownership interest in firm or non-lawyer interfering with judgement of a lawyer
Example: Non lawyer serving on law firm board, law firm operations members wants to be shareholder
Exception: When lawyer dies, her estate holds an interest in the firm during the administration of the estate
19
Q
What are the four exceptions to the no fee splitting with non attorneys rule?
A
a. Giving death benefits to a lawyer’s estate
b. Sale of a law practice / giving funds to purchase practice from a deceased, disabled, or disappeared lawyer
i. Example: You can use law firm money to buy practice of a dead lawyer and pay the lawyer’s family
c. Giving funds to non lawyer staff for their bonuses and regular salaries (do not pay them based on how much work they did on a case)
d. Giving court-awarded legal fees to a non-profit that retained or recommended you
20
Q
What are the two instances in which your right to practice law cannot be restrained?
A
- No non-compete except retirement
- No settlement agreements given if lawyer agrees not to sue
21
Q
What are the four requirements for lawyers selling a law practice?
A
- Must sell an entire practice or an entire practice area
- Must give written notice to clients that includes:
a. Notice of sale
b. Right to obtain other counsel or for client to obtain possession of their files
c. Client’s consent to transfer his case is assumed if client takes no action within 90 days of the receipt of the notice - Cannot continue the practice of this area of law in that locality
a. Three exceptions
i. Work as in-house counsel
ii. Work for providing services to indignant
iii. Face an unanticipated change in circumstances - Must exercise competence in identifying a qualified purchaser
22
Q
What are the buyer’s two duties in buying a law firm or practice?
A
- Must honor existing fee agreements (e.g., cannot increase price)
- Must take all of the clients not just the lucrative ones
23
Q
Is it OK for lawyers to provide law related services alongside legal services?
A
Yes
- Example: Financial planning, accounting, or finding investors for your client’s new joint venture and supplying the legal services
- Example: You are a tax attorney and help your client fill out the tax return. Here, the services are not distinct so if you make big error on returns, you violated rules.
24
Q
Under what two situations do the model rules apply to law related services?
A
- Services are not distinct from legal services; OR
- Lawyer controls non-legal services and doesn’t ensure client understands that attorney client relationship does not apply
a. Example: You provide legal services to women and also have a company who helps them find job but you do not tell the women that rules do not apply to them in job services. This makes you subject to the rules to the job services practice as well.
b. Example: No violation you are a lawyer and own dog grooming business and you don’t tell dog client that rules of attorney client privilege do not apply. This is OK because it is not a law related service.
25
What are the four requirements to a business transaction with a client?
1. Terms fair to client
2. Essential terms communicated to client in writing including lawyer's role
3. Client advised in writing that he should seek independent counsel with time to do so; AND
4. Client must give consent in writing.
5. NOTE: Does not apply to standard commercial transactions (e.g., you buy donut from guy and he is donut seller)
26
How is an attorney client relationship formed?
1. Express or implied consent
2. Lawyer knows person is reasonably relying
NOTE: Lawyer may fail to make clear he is not taking on the case (bad)
NOTE: If they say they want to talk about possibility of contract, it is not a relationship
NOTE: You do NOT need a written agreement to form a relationship. You do NOT even need an oral agreement, can be implied
NOTE: Only thing needs to be in writing is contingency fee
27
What are the five instances in which an attorney must reject the case?
1. Client’s motive is harassment
2. Unsupportable factual or legal position
- unless good faith argument facts are as claimed or the present law should be changed
3. Lawyer not competent or too busy to take case
4. Strong personal feelings against case that would impair ability to adequately represent
5. Significant impaired mental or physical condition
28
What are the three duties owed to prospective clients who you do not take on as clients?
a. Protect prospective client’s confidential information
i. Includes declining to represent other clients in the same or related matter if the confidential info could harm the initial/prospective client
b. Protect any property the prospective client gave the lawyer
c. Use reasonable care in giving the person any legal advice (e.g., whether the claim has merit, whether conflicts of interest exist, and when the action must be commenced
iv. Ethical obligation to accept unpopular cases
1. A lawyer can fulfill this obligation by accepting a fair share of unpopular matters or indigent or unpopular clients
v. Note from Helix: If guy calls and leaves voicemail and admits drunk driving, you do not have to keep that confidential b/c his expectation of being a prospective client must be reasonable; unilaterally sharing info and expecting it to form a client relationship is not reasonable
29
Can a fee be paid in non monetary property?
Yes such as an ownership interest in a business so long as it does not involve an interest in the subject of litigation
30
What do you need to convey to them about the fee?
1. Lawyers must communicate fee arrangement to client before representation starts or within a reasonable time after commencing representation
2. NOTE: You do NOT need to tell them the total amount to expect to pay; just convey the flat rate; but you NEED to tell them the types of expenses that the client may expect to pay (e.g., printing)
3. NOTE: You do NOT need a written contact with the fee arraignment inside
a. Model Rule 1.5(b) states that a fee arrangement shall be communicated to the client, preferably in writing, but written confirmation is not mandatory.
NOTE: If change fee must be special circumstances like adding more Ds,
NOTE: If you do regular work for him for same rate, no need to communicate fee each time
NOTE: Cannot charge client for overhead expenses; no double billing; no charging more than for actual services
31
What three things must be written in a contingency agreement?
Must be signed in writing and include:
1) who is paying expenses
2) how fee will be calculated
3) which expenses will be deducted and when
Must also provide written statement of calculations at conclusion of case and must be reasonable
32
Can a client pay through credit card?
Yes
Credit card, Bank loan, promissory note
NOTE: Lawyer can use lien if ok by law
33
What are the three exceptions to the general rule that fees cannot be split with other lawyers?
1. Fee splitting with lawyers at same firm (includes retired or former members)
2. Separation and retirement agreements
3. Splitting with lawyer from another firm so long as (1) split fees proportionate to work; or (2) each assumes joint representation and client consents to arrangement and shares in writing
34
What is the rule on referrals?
1. Reciprocal referral agreements are OK (both lawyers agree to refer to each other, collect no money for it, and inform client of it) BUT BOTH PEOPLE HAVE TO BE PROFESSIONALS
a. Example: Lawyer agreement w/restaurant owner is NOT ok
Token gift OK but not in expectation of getting work
35
What are the two requirements for a lawyer limiting the scope?
1. Limitation reasonable; AND
2. Client gives informed consent.
36
What is the rule when a client asks you to do something illegal/fraudulent?
1. Lawyer MUST explain why he can't do it
2. Lawyer does NOT have to discourage client
3. If client insists, you must withdraw
NOTE: If you withdraw, may involve noisy withdrawal (e.g., disaffirming prior opinions) if court proceeding
37
If serious disagreements between lawyer and client, what is rule?
Lawyer may withdraw or client may fire lawyer
38
Define apparent authority and its application to settlement meetings
A third party or court must reasonably believe the lawyer has authority based on the client's actions
In settlements, the rules specify that merely having lawyer does not create apparent authority to settle unless client herself gives opposing party a signal that her lawyer did have authority
NOTE: Cashing a settlement check ratifies the lawyer's prior action w/o authority
39
What is the rule on clients with diminished capacity which includes minors?
Try to maintain normal relationship to extent possible; talk to child
However, if father gives you opinions and you agree on course of action you must go back and review the plan with the child
40
What is the rule about emergency legal assistance to NON clients with seriously diminished capacity?
Client must face irreparable harm to health or finances, then lawyer may take action though no client lawyer relationship
Lawyer should not seek compensation and should seek to normalize relationship as soon as possible
41
What is the rule on notification to client about settlement offers or plea deals?
Must promptly inform client of settlement and plea bargain UNLESS client has expressly authorized you to accept or reject certain offers
42
What is the rule on a lawyer letting the client know they made a mistake?
Must inform if material error where (1) reasonably likely to harm or prejudice the client; OR (2) would cause client to consider discharging lawyer
NOTE: Duty ends once relationship ends; no need to go back and inform client of mistakes lawyer discovered after case closed
NOTE: a. Lawyer may delay IF client likely to act imprudently to an immediate communication
i. NOTE: Does not apply to withholding settlement offers
b. However, lawyer must not withhold info to serve the lawyer or a third party’s own interest
43
When are the two situations in which a client may avoid a contract?
1. Contract not made at the outset (e.g., contract modified midway through case)
however this does not apply if attorney shows client the formation was fair and reasonable
2. Contract made after work completed
Usually applies if client was not informed of facts
44
What are the 3 situations in which an attorney must terminate a relationship?
1. Lawyer has severe physical or mental disability which impairs lawyer's ability to represent client
2. Representation requires lawyer to violate rules
3. Client fires lawyer
45
What is the rule on when termination occurs what fees does client owe?
The client is still liable to pay reasonable fees; however, you can only recover contingency when contingency comes to pass and you can only cover up to the amount you worked so that may be lower than contingency amount and that is ok
46
What are the 8 situations in which it is permissive for the attorney to terminate the relationship?
1. Any reason if no material adverse effect to client
2. Reasonable belief client is doing criminal conduct involving lawyer's services (note if client runs away you are not helping them so you can still represent them, you just can't help them commit a crime)
3. Client used lawyer's services in the past to commit a crime or fraud
4. Client's actions repugnant
5. Client makes representation unreasonably difficult (refusing to attend depo)
6. Client breaks promise to attorney after being reasonably warned (note - here, can terminate even if material adverse effect to client)
7. Unreasonable financial burden
8. Other good cause (but if court insists you continue, you must continue)
47
What are the four duties owed to clients after the relationship is terminated?
1. Give reasonable notice of termination
2. Provide client time to find another attorney
3. Refund payments if not earned
4. Return client's file unless permitted by law to retain (e.g., evidence needed to collect fees)
48
What are the three elements to attorney client privilege?
1) communication between client and attorney,
2) for purposes of legal representation
NOTE: Does NOT include pre-existing documents, pre-existing records, information received from other people including D
NOTE: Does NOT include info you learned from other people or sources
49
When does the attorney client privilege apply and give an example of when it does not apply?
Applies only to disclosures in court proceedings (e.g., subpoena)
Does not apply to a police calling you
50
What does the attorney client privilege do?
Prevents court from forcing you to give up information about your client
NOTE: Names of clients are not protected so if grand jury subpoena requires you to tell the names of your clients, this is OK
51
What are the 4 exceptions under which attorney-client privilege does NOT apply?
1. Client speaks to lawyer to assist in FUTURE crime/fraud and client accomplishes that purposes; does not matter if client has some intent or knows they are doing a crime
2. Self-protection
3. Civil litigation between former joint clients of attorney (e.g., divorced couple)
4. Lawyer must testify about competency or intent of deceased client (e.g., about how client wanted proceeds distributed after his death)
52
What are the three instances in which attorney client privilege applies to communications a lawyer has with his corporate client?
If client is a corporation, the privilege also extends to not only high level corporate officers but also lower level employees if:
1) Employee talks to lawyer at direction of employees' boss
2) Employees knows purpose of convo with lawyer is to obtain legal advice for company
3) Communication concerns subject within the scope of the employee's duties to act for the corporation
53
What are the two ways in which privilege is waived?
1. Failing to object
2. Disclosing to third party
NOTE: Lawyer must claim the privilege if client is not present
54
When does disclosure to a third party waive privilege and when does it not?
If reasonable belief outsiders will not hear convo, privilege is not waived. This means eavesdropper hears, still not waived
Family member present for psych support or legal staff member present, not waived
Scream details at a crowded party, you have waived privilege
55
What are the three elements to the duty of confidentiality?
1) All information no matter what the source
2) For purposes of legal representation
3) Even if a third party is present
56
How is the term 'confidential' defined?
Information that is generally not known which means it can only be obtained by special means and thus it is confidential
57
Which is broader - the duty of confidentiality or attorney client privilege and why?
The duty of confidentiality is broader because it applies to information learned from anyone while attorney client priv applies to only comms from client and also third party hearing does not change duty of confid but it does affect att client privilege
58
What are the 7 exceptions to the duty of confidentiality where you MAY disclose the information (but you are not required to)?
1. Implied consent or implied authorization
2. Prevent future death or substantial bodily harm no matter who may cause it
3. Prevent financial injury to another if your services are used in furtherance
4. Defend yourself in dispute concerning your own conduct
5. Obtain legal ethics advice but don't disclose too much info like client name
6. Detect and resolve conflicts of interest but only show client names and brief summary, not dollar values
7. Comply with court order (because duty to tribunal outweighs duty of confidentiality)
59
What is the rule on sharing client info with other lawyers at the same firm?
Lawyers may share info with other lawyers UNLESS client specifies otherwise but the info must be shared for professional reasons (not bad mouthing clients to the other lawyers)
60
What is the definition of work product?
1) Materials made in anticipation of litigation
61
What is the general rule on work product?
It is not discoverable
62
What is the difference between work product and attorney client privilege?
Work product can come from someone other than client while attorney client privilege only applies to communications with the client
63
How are mental impressions treated?
Completely immune from discovery
64
What is the exception to the general rule on work product being not discoverable?
Opposing party must show substantial need and undue hardship for info to be discoverable outside of mental impressions/opinions which will never be discoverable
65
What is the two element rule on concurrent conflicts of interest, that is, conflicts with current clients?
A concurrent conflict of interest exists where there is (1) direct adversity or (2) material limitation on obligations to another client
UNLESS both clients give informed consent in writing
66
Define the three examples of direct adversity
1) Clients on opposite side of same matter (though in a transaction this can be OK with both sides giving written consent)
2) Representing opponent in another case
3) Cross-examining client in case
NOTE: In class action litigation, unnamed members of a class are ordinarily not regarded as clients for purpose of ‘direct adversity’ conflicts
67
What are the two aspects of material limitation?
1) Responsibility to another person
2) Personal interests
68
What is the rule on personal interests?
These interests are OK meaning just get client consent and you are OK, also there is no imputation to rest of people at firm
iv. Note: Don’t need to screen partner with personal conflict b/c you only get screened off when the conflict arises from a non-personal (law firm arisen) conflict
v. Note: When personal conflict, new partner on case does not need client’s informed consent
69
What are the rules for waiving a concurrent conflict?
1. Reasonable third person lawyer belief can represent client well
2. No prohibition by law
3. No representation on both sides litigation regardless of consent/non waivable
4. Informed consent in writing or written note memorializing oral convo
NOTE: If you discover non-fixable conflict mid way through case, must withdraw
70
What is the general rule for defining whether there is a former client conflict?
A former client conflict exists when there are materially adverse interests or it is the same case/substantially related
71
What is the definition of same case/substantially related?
Confidential info from former client could benefit current client
So if you have acquired info when at old firm you have a conflict that carries with you
So if client leaves, firm can't help other side so long as one lawyer at old firm has confidential info on the case unless former client consents
72
What are the paths to solving a former client conflict?
First path, client consents in writing to lawyer working on the case
Second path, if no consent to same guy on case, screen the guy office and provide notice to other side of process, do not share fees, do not share files with him
73
What is the general rule for whether there is a conflict when a government lawyer moves to private practice?
A conflict exists when the attorney participated personally and substantially on the matter
74
What does personally and substantially mean?
Same facts/case
75
What are the two paths for resolving a conflict with a government attorney moving to priviate practice?
1) Get government consent to old guy working on case
2) Screen guy off case and provide written notice to government, no fees, no sharing files
76
What is the special rule for judges and mediators who go to private practice?
Need all parties to consent for judge to work on the case in the private firm
77
What is the rule for private lawyer moving to government?
Same as government moving to private except this time if screening, inform private law firm of process
78
What is the rule for a lawyer who worked with the government not sharing confidential info and how is confidential info defined?
a. Defined: Info. gained under government authority and which the government is prohibited from revealing, or has a privilege not to reveal, and which is not otherwise available to the public. If information is available to the public through a channel like the Freedom of Information Act, it isn’t considered confidential government information.
NOTE: If you have confidential info, must remove yourself from case
79
What is the rule for conflicts and prospective clients?
If same case/substantially related AKA you have conf info that can benefit other side, need prospective client's informed consent
80
When are conflicts not imputed to others in the firm?
When conflict uniquely personal. This means others don't have a conflict so they don't need other side's consent to represent the person
Also, Don’t need to screen partner with personal conflict b/c you only get screened off when the conflict arises from a non-personal (law firm arisen) conflict
NOTE: Screening is NOT a solution if an attorney during a meeting w/prospective client did not take reasonable care to avoid learning more confidential info than he needed to
i. It is possible for another attorney in the firm to represent the current client, provided that the first attorney took reasonable measures in the consultation to prevent the disclosure of more disqualifying information than necessary to determine whether to take on the prospective client’s representation. Here, however, the consultation questionnaire was too open ended and invited prospective clients to share their most damaging secrets. That was not a reasonable measure; as a result, no attorney in the firm can represent the current client, regardless of screening.
81
Can consent to a conflict be revoked?
Yes
It can be revoked or terminated at any time. Rule: A client who has given consent to a potential conflict of interest may revoke the consent and may, like any other client, terminate the lawyer’s representation at any time. Example where wife in divorce initially agrees to joint rep but changes her mind and wants her own lawyer midway through
82
Can you represent two clients with inconsistent legal positions?
Yes but you need both client's consent
83
If you work for an insurer representing drivers, who do you owe the duty of confidentiality to?
The driver, not the insurance company/payer
Get driver's informed consent to sharing info with the insurance company
84
What is the rule on receiving gifts from clients?
A lawyer cannot solicit a gift from a client unless they are a relative but without asking, the lawyer can accept a gift from a client
A lawyer cannot prepare instrument giving lawyer or a lawyer’s relative a substantial gift UNLESS the donor is one of the lawyer’s relative
c. NOTE: A lawyer may seek to have herself named as the executor of an estate or counsel that involves a fee-paying position
85
What is the rule on financial assistance to a client?
NO financial help to a client in connection with a PENDING LITIGATION; however, lawyer can give financial help related to a case if it is a mere transaction
NOTE: Attorney cannot guarantee loan from someone else to the client
86
What are the four exceptions to the no financial help during litigation rule?
1) May advance court costs for any client and forgive repayment if client loses or make repayment contingent on outcome
2) May pay court costs for indigent client without seeking reimbursement
3) When representing indigent client pro bono, may give client modest gifts for basic living expenses but may NOT ask for reimbursement
NOTE: May not use the gift as inducement
NOTE: May not publicize this to get more clients
87
What are the two requirements for an aggregate settlement agreement?
1. Fully explain the claims and what everyone is getting; AND
2. Get informed consent from each client in writing
NOTE: This also applies to the rare case of a joint plea bargain in a criminal case
NOTE: If the individual Ps do not know how much money the other Ps are getting, the lawyer has violated the rules.
88
What is the rule on government employees (e.g., judge, third party neutral, SEC) negotiating for jobs?
i. The above parties cannot negotiate for a job with any party in a matter they were personally and substantially involved with
ii. Helix: A government attorney is prohibited from discussing employment with any parties or lawyers in matters in which the attorney is personally and substantially participating.
1. This includes Attorney General attorneys, those attorneys working for the government like for the SEC
iii. Exception: For law clerks who give advance notice to the judge
89
What is the rule for whether you can charge clients for coming up to speed on a case you were not initially competent in?
Cannot charge them for the coming up to speed time unless you have the client's consent
90
What is the rule for a solo practioner?
Must designate another lawyer who upon death/disability can notify clients, review files, etc.
91
What is the rule on using your client's confidential info for your own financial gain even if it never hurt your client?
You may not do this and whatever profits you make even if you don't harm them you have to give those profits to the client
Fatima’s client Brian told Fatima in confidence that he planned to open a massive new shopping complex at a particular location. Without telling Brian, Fatima quickly bought land one block away from the location and built a parking garage to serve the upcoming shopping complex. Brian had no plans to build a parking garage, so Fatima’s garage did not harm him. Does Brian have a viable civil suit against Fatima? Yes
92
Is an attorney liable for breach of warranty for telling a client their potential chance at success?
No
93
In negligence, is there a breach for a "mere error in judgement"?
No, if the judgement was well-informed and reasonably made
NOTE: a. Even if client loses case b/c of bad decision, if lawyer passes above test, not liable
Use reasonably prudent lawyer test
NOTE: If causation does not pass, no but for causation, client does not have a case
94
When are the two situations when the law firm is vicariously liable?
1) Action was in ordinary course of business; OR
2) Person authorized to act
95
What are the two requirements for settling a malpractice claim?
In writing, must advise them to
1) advise them in writing to obtain independent counsel;
2) give them reasonable opportunity to do so
96
What is the rule for limiting your malpractice liability?
Client MUST be independently represented
Does not matter if client doesn't want to get another lawyer, they have to
97
What are the two elements to define frivolous?
1. No good faith argument under the current law; AND
2. No good faith argument for changing the law.
NOTE: OK to go to trial in order to set precedent so long as you have a good faith argument
NOTE: When representing criminal defendant, can make prosecutor prove every element EVEN IF YOU KNOW DEFENDANT IS ‘CLEARLY GUILTY’
98
What are the rules regarding candor regarding the Law and regarding Facts?
1) Cannot knowingly make false statements of fact or law
2) Must correct, prior, unintentional false statements
a. NOTE: An attorney’s failure to speak out is often seen as the equivalent of an affirmative representation
3) Must disclose adverse controlling law if opposing counsel fails to
NOTE: Cannot raise an affirmative defense in trial (e.g., self defense) if you KNOW it has no basis in fact
NOTE: If client has not yet testified, do not call client to stand
99
What is the general rule on offering false evidence?
CANNOT offer evidence the lawyer KNOWS is false (including the testimony of a D) but MAY refuse to offer evidence reasonably believe is false other than testimony of a D
NOTE: This means if you only suspect your criminal D is lying, you must allow them to take stand
NOTE: Also applies to depositions
100
What are the three follow up rules if you discover you already offered false evidence?
1) Urge client to correct evidence/withdraw testimony
2) If client says no, ask court to withdraw BUT withdrawal alone is not enough if leaves false evidence with the court
3) Move to strike false evidence
NOTE If judge does not allow you to withdraw, must disclose situation to judge
101
For how long does the duty to rectify false evidence continue?
End of proceedings
aka final judgment on appeal or time for appeal has expired
102
What is the rule for statements you or your client make in a non-adjudicative proceeding (e.g., testify before Congress)?
Subject to the same ethics rules as when a lawyer is representing a client before a tribunal.
2. These rules include taking reasonable remedial measures (including disclosure, if necessary) when the lawyer knows that a person is providing false testimony. Rule 3.3(a)(3). That obligation is triggered here, since the lawyer knows that the CEO’s testimony that she had no knowledge of the securities fraud scheme is false.
103
What is the rule on not advising someone to talk to opposing counsel?
Model Rule 3.4(f) prohibits a lawyer from asking a person other than a client to refrain from voluntarily giving relevant information to another party unless the person is a relative or an employee or other agent of the client and the lawyer reasonably believes that the person's interests will not be adversely affected by refraining from giving such information.
104
What is the general rule about stating opinion of defendant's guilt?
Cannot state personal opinion about justness of cause, credibility of witness, or guilt or innocence of party
a. Quimbee: Both the defense attorney AND the prosecutor violated the Model Rules by invoking their personal beliefs about the defendant’s guilt or innocence.
b. Neither side can say whether they believe in innocence of client
c. Must focus on the evidence
105
Can a lawyer make an argument that they know the evidence does not support?
5. A lawyer cannot make arguments not reasonably supported by the evidence
a. Quimbee: If you know opposing counsel did not find the evidence but nonetheless you know it exists, you can’t say in closing argument that there is no evidence ABC did the crime
106
What is the rule on bringing up a criminal charge during civil suit?
OK to file criminal charges so long as you are NOT using it as a bargaining chip but need client consent
i. In a civil case, OK for lawyer to threaten to bring criminal charges IF the two cases are related and warranted by law and facts so long as you are not trying to gain an advantage in the civil proceeding
107
What is the general rule on trial publicity?
No public statement if lawyer should know it is likely to cause material prejudice including:
- Character or credibility
- Results of exams
- Whether confessed or plead guilty
- Anything inadmissible at trial
NOTE: ONLY applies to the lawyers in the actual litigation and their law partners, not an attorney saying something before they ever get involved in the case
NOTE: What can be shared
108
What is the general rule on a lawyer being a witness and what are the three expections?
A lawyer cannot represent if likely they will be a witness
EXCEPT
1. Testimony concerns uncontested matters or formality
- Example: Lawyer will testify to authenticate a letter
2. Testimony concerns the nature and value of legal services in the case
- Example: At fee hearing, attorney can testify as to number of hours they worked on the case and his normal fee
3. Withdrawal would cause substantial hardship to client
- NOTE: Court apply this only in select situations
Quimbee: If replacing the lawyer would cause substantial hardship on client, court might let lawyer testify (that co-D once told him that co-D did the crime)
NOTE: If disqualified under this rule, disqualification is NOT imputed to firm but generally need client consent in writing (another lawyer at the firm can take over)
a. NOTE: Conflict of interest rules still apply
iii. Example – Quimbee - Review
1. A lawyer may NOT represent a party who contests a will prepared by the lawyer, but that lawyer MAY represent the executor of the client’s estate UNLESS the lawyer is likely to become a witness.
a. Example from Quimbee: Here, because the attorney is the sole surviving witness to the testator’s mental state, he is very likely to be called as a witness at the will-contest hearing. Therefore, he should decline the representation. The executor can retain a different attorney.
109
What is the general rule about talking to someone who has a lawyer?
Prohibited however talk about weather or non issue is OK and where lawyer KNOWS you have a lawyer and where you are an actual lawyer on the case, if you are not on the case, you can talk to them
NOTE: Two clients can talk to each other but if you are pro se then you are client plus lawyer so you cannot reach out to other side
110
What is the rule on communications with organizations?
A lawyer must get consent with the org before talking to any of the following:
1) Anyone w/authority to obligate the org
2) Anyone whose conduct can be imputed to the org criminally or civilly
3) Anyone who supervises or regularly consults with the org's lawyer
NOTE: Consent is not needed before talking to a former employee, just don't ask about privileged/conf comms between the employee and the company's legal counsel
111
What is the rule on dealing with unrepresented people like a potential witness?
- Can communicate with unrepresented person but do NOT ask disinterested
- Make reasonable effort to correct person's misunderstanding of lawyer's' job
- Do not give person unrepresented legal advice is possibility the advice will conflict your client's (you CAN explain a contract neutrally)
-
112
What is the rule for a lawyer serving as a mediator/arbitrator and the rule for such a person wanting to later represent a client?
Must make sure UNrepresented parties know lawyer does not represent them
And
If you want to be a persons' client, need to get all parties consent and conflict is imputed to firm
113
When does a prosecutor have to try and remedy a conviction?
7. Try to remedy conviction if clear and convincing evidence of innocence AND conviction in own jurisdiction
a. Note: If in another Jx, must promptly disclose evidence
8. Not subpoena other lawyers to give evidence about clients unless evidence is essential, not privileged, and cannot be obtained in another way
114
What is the rule on a lawyer joining the Senate?
A lawyer who is also on the senate may not use the official authority of the office to benefit a private client; however, one who no longer practices law can use senate letterhead to benefit a constituent
115
What is the rule for a lawyer working for the corporation and also wants to serve on the board?
This is OK but if a substantial conflict comes up must give up one of the two roles
116
What is the role for a lawyer being a whistleblower at same time?
A lawyer who reasonably believes she has been fired or had to withdraw for following the rules/reporting must report it to the organization's highest authority
117
Where must the client trust account be located?
In the state where lawyer practices unless client consents to otherwise
NOTE: If you abuse your friends money with deceit outside of representation you can still be disciplined
118
Should lawyer get involved if third party lien on client's money?
Hold money in trust account until dispute resolved but do NOT arbitrate the dispute (file interpleader to have court resolve)
119
What are the general rules about communications about legal services / advertising?
No false or misleading statements
Misleading if leaves out important fact
Disclaimers can cure
If client testimonial needs disclaimer
120
What are the two things all advertisements must include:
Name of at least one lawyer
Contact information
121
What three groups of people can be included in firm name or letterhead?
Current
Retired
Deceased
- Cannot have a name in firm name of someone who not a lawyer
122
What is the exception?
An attorney in a public office cannot be on firm name if attorney not actively practicing
123
When are firm names misleading?
- Implies multiple lawyers there when only one (e.g., & Associates)
- Implies connection with government agency or charity
- Implies connection with a geography
- Implies false indication of partnership (e.g., Offices of A and B when they just share office space)
124
When can two law firms say they are associated or affiliated?
- Close, regular, ongoing relationship
- Not misleading
- However, treated as one unit for conflict of interest purposes; anything that disqualifies one firm, disqualifies the other
125
Lawyers can pay for ads, participation in legal service plan and what else?
Cost of participating in non profit referral service like run by bar association, can pay to belong and give them referral fee
126
What is the rule on online lead generators?
OK if not false or misleading.
127
When is an online lead generator false or misleading?
- Recommends the lawyer at top of list or with a star
- Analyzes a legal problem for someone
NOTE: If you join a bad service, can be disciplined
128
What is the rule on reciprocal referral agreements?
1) Must not be exclusive (e.g., refer ALL clients or refer forever)
2) Clients must be informed
3) Must not interfere with lawyer's professional judgment
NOTE: Must be with lawyer or non-professional (e.g., doc/accountant/field regulated)
129
What's the difference between advertising and solicitation?
Advertising: General public, have NOT initiated contact with individual, e.g., website form that says need a lawyer
Solicitation: individual who you know needs legal services. TEST: If need for legal services, it's solicitation
130
What is the general rule on solicitation and the two exceptions?
No live person to person contact
- UNLESS
- not for financial gain (e.g., ACLU)
- relative, close friend, former client, former prof/biz relationship, other lawyers, routine users of service
HOWEVER it is ok to solicit through texts, emails, letter and prerecorded (not live) videos
131
Are you accountable for the actions of the legal service plan?
Must reasonably assure plan sponsor in compliance with advertising and solicitation rules (no false or misleading ads)
132
What is the rule on accepting court appointments?
MUST except unless good cause not to:
- Appointment would violate law/rules
- Unreasonable financial burden
- Repugnant
133
What is the pay against play rule?
Lawyer/law firm CAN make contributions so long as NOT pay to play
- OK to give money to judge campaign as long as it is not in return for appointment by judge
NOT Prohibited
1. Uncompensated services;
2. Engagements or appointments made on the basis of experience, expertise, qualifications, and cost, following a process that is free from influence based on political contributions; and
3. Engagements or appointments made on a rotating basis from a list compiled without regard to political contributions.
134
What is rule on judge using their letterhead for personal reasons?
OK so long as no attempt to exert pressure
135
What is the two element rule on appointments a judge makes?
1) Impartial (nepotism/favoritism) and on basis of merit; AND
2) No unnecessary appointments
136
When is the general rule and three exceptions on a judge appointing a lawyer who contributed to the judge's campaign?
Generally a judge shall not appoint a lawyer who contributed to judge's campaign unless
1) Position mostly uncompensated
2) Lawyer selected from random list without regard to contributions; or
3) No other lawyer available
137
What are the three elements to a judge seeking advice from a legal expert?
1. Advice must be in writing
2. Expert must be disinterested
3. Notify parties in advance with opportunity to respond to the advice
138
What are the six grounds for a judge's disqualification and which is not waivable?
1. Bias or personal knowledge (includes close friend but not acquaintance)
2. Prior involvement in case
3. Judge or family member w/economic interest
4. Family in proceeding
5. Excessive contribution's to judge's campaign
6. Judge made public comment about position or result
BIAS or personal knowledge not waivable
Other items waived w/both parties consent
139
Can a judge get paid for teach/speak/writing?
Yes
140
What are the reporting requirement?
Must report
- any extrajudicial comp
- Reimbursement
- Certain gifts/bequests of value
141
What are the prohibited activities for a judge?
1. Activities that would lead to frequent disqualification
2. Cannot accept appointment to government position or voluntarily testify at a government hearing unless it relates to law or the administration of justice
3. Officer, director, manager, general partner, advisor, or employee of a BUSINESS (exception for personal/family investments and businesses)
4. Cannot testify as character witness, except when subpoenaed
5. Cannot be affiliated with organization that practices invidious discrimination
6. Cannot serve as executor, administrator, guardian, or other fiduciary (except for family members)
142
Full time judges must not practice law or be mediators/arbitrarors except in 2 situations
- appearing pro se
- giving legal advice / drafting legal docs for fam
143
Can judge's publicly endorse or oppose other candidates?
no
when run for non judicial office must resign
144
