MPRE Flashcards
Purpose of ethical rules
min lvl of ethical behavior for trustworthy lawyers
sources of ethical rules
1) ABA Model Rules; 2) rules of evidence; 3) con law; 4) crim law
forms of discipline (2)
&
other sanctions (3)
D: 1) censure (scolded either publivly or privately by either disciplinary authority or SC); 2) disbarment (temporary or long term)
OS: 1) disqualified for client; 2) civil liability; 3) crim liability
mandatory v. aspirational rules
M: must
A: should
informed consent elements (3)
1) adequate disclosure; 2) consent; 3) confirmed in writing
knowing v. belief v. reasonable
K: actual subjective
B: actual subjective
R: objective based on reasonably prudent and competent lawyer std
who regulates legal profession
& with what
State SC & Fed DC
what: model rules as adapted by state
pre-admission reg (4)
1) accredited school; 2) character and fitness - looking at past crimes - specifically truth related, addiction, or debt; 3) truthfulness on apps to school and bar; 4) pass MPRE
post-admission reg (3)
1) violations of rules; 2) criminal acts involving honesty/fitness ot practice (crime type);
3) fraud/deceit (even non criminal if….a) fraud on ct OR b) common law fraud (statement + know false + intend deceive …. no harm req)
VL of attorneys: supervising (who and when?)
must make reasonable efforts to ensure that lawyers and non comply with rules - includes indie K-ers, IT, etc.
subject to VL for rule violation if supervisor a) orders; b) ratifies; or c) learns and fails remedial
defense for supervisor ordered ethical violatoin
only if reasonable order
compliance systems
partners have duty to have one in place regardless of past problems
snitch rule (3)
rq’d to report (lawyers or judges) if….
1) actual knowledge
2) substantial violation
3) goes to honesty/trustworthiness/fitness to practice
out of state conduct … home jur disciplinary authority?
yes, can still discipline in home jur
out of state conduct: conflict of laws
bound by jur where reasonably believe actions had predominant effect
out of state conduct: practicing while out of state admitted only
a) pro hac vice - related to specific dispute
b) associated w/ local counsel who actually participates
c) working for client from home jur + has home state qualification
result of unauthoirzed practice
non lawyers –> injunction
lawyers –> loss of fee
aiding and abetting unauthorized practice
aka failing to supervise non-professionals who are doing legal work
avoid by 1) having client contact; 2) supervise and take responsibility of their work, don’t just delegate
pro se litigants and ghost advice
lawyers allowed to give limited aid to pro se
entities cannot be pro se
splitting fees: who allowed (2)
1) only with lawyers (and estate of decedent lawyer, part of retirement plan)
2) who do legal work on the matter (without any non-lawyers or third-party payors controlling such)
sale of practice: when allowed
whole practice or some practice area
cannot increase fees associated with sale
sale of practice: reqs (3)
1) lawyer stops practice
2) give client notice
3) sold to another lawyer
sale of practice: return to practice (4 situations)
1) in-house counsel
2) pro bono
3) diff area of law
4) change in circ (family issues, financial issues)
sale of practice: non-competition covenants
not allowed except for sale of practice
Duty to represent
no general duty unless ct appointed
Duty to reject
coextensive with rules for mandatory withdrawal
When A/C relationship starts
reasonable person believes test (negligence-esque)
triggers civil/ethical responsibility
scope of A/C relationship
can be limited by agreement so long as doesn’t limit ability to effectively rep
decisions left entirely for client in crim (3)
1) testify (crim)
2) exercise jur right (crim)
3) plea bargain (crim)
duties towards client w/ disability/minority (4)
1) maintain ordinary relationship
2) seek guardian approval as necessary
3) can reveal info as necessary to protect
4) can take protective action if in best interest
counseling related to crime/fraud
can tell consequences not how to commit (cannot aid)
lawyer mandatory w/drawal (3)
1) client wants/needs something that would cause rule violation
2) impairment of attorney (drugs, etc.)
3) discharge (client absolute right to fire - cannot be modified via K, no penalties…. can keep earned if not discharged for cause)
withdrawal after proceedings begin
need leave of ct, even if mandatory
permissive withdrawal (6)
1) harmless even if client objects
2) reasonable belief client pursuing crime/fraud + services used in such
3) repugnant client actions
4) unreasonable financial burden (bad deal not enough)
5) client fails obligation to lawyer (Fees)
6) good cause (illness, family issue)
financial/property responsibility post-withdrawal (3)
1) return property and unearned fees
2) can keep retaining lien for earned unpaid
3) must continue to hold funds held in third party dispute until resolved
reasonability of fees
LODESTAR test:
1) explained up front
2) novelty? (new to all, allow more, just you, maybe not)
3) amount in controversy (higher ris, higher reward)
4) precluding employment
fee agreement format
must be actually communicated, but ned not be in writing
except: contingency fees req in writing + how calculated
retainers/advancements
must keep separate in escrow or trust and return unearned at end
holding client property in lieu of fees (4 reqs)
note: may create COI
1) terms in writing
2) fair
3) inform client in writing about getting indie counsel
4) informed consent
fee sharing between lawyers (4)
1) fair to client;
2) disclosed to client;
3) actual services provided
4) signed informed consent
fee sharing with non-lawyers
never allowed
duty of confidentiality
includes all info learned relating to rep (public info, ID, observations, etc.)
A/C privilege (5)
1) speech
2) testimonial
3) given confidentially
4) actually kept confidential
5) related to legal rep
A/C privilege inadvertent disclosure (2)
not waived if
1) reasonable steps prevent
2) reasonable corrective after inadvertent
A/C privilege exceptions (2)
1) criminal/fraud (can’t participate in such)
2) dispute between client and attorney (can disclose related to dispute)
WP docrine
prevent docs used in connection w/ client case
when is WP discoverable
1) substantial need; + 2) no other means to get w/out undue hardship
what can ct compel disclosed
yes: confidential and WP
no: A/C
permissive disclosure of confidential info (6)
a) client consents
b) implied by rep (say want to sue, need to disclose ID)
c) prevent death or substantial injury (no lawyer involvement req’d)
d) education so long as don’t reveal ID + can’t be figured out
e) financial injury (1) prevent future; 2) necessary to prevent; 3) substantial harm; 4) services used for
f) prevent mitigate or rectify substantial financial harm caused by completed crime/fraud for which services were used
mandatory disclosure
must disclose if failure to do so would assist client in crime
duration of confidentiality duties
forever (survives death of either A or C)
duty of confidentiality to entities
owed to entity itself
duty of confidentiality and prospective clients
must be held in confidence if invited the info
confidentiality and the cloud
must secure info to comply with rules
factors: 1) sensitivity; 2) cost; 3) client consent
duty of loyalty
COI rules to ensure indie professional judgement and preserve confidentiality
enforcement of COI rules
trial court via litigation sanctions or discipline
types of COI
1) direct adversity w/ concurrent (rep on both sides) –> non-waivable
2) material limitation on ability to rep (another client, former client, third party, lawyer interests) –> maybe waivable
waivable conflicts: how to waive (3)
1) in writing
2) reasonable belief by lawyer won’t adversely impact rep
3) all effective clients waive
waivable conflicts: former client
cannot rep if same matter or substantially related to prior where you were a representative (objective test)
test: scope of prior? could have learned info? would it be useful?
waivable conflicts: personal interest of lawyer (6)
1) business dealings or qcquisition of interest in client property
2) draft will or gift which lawyer is beneficiary (unless family)
3) related lawyer on other side
4) acquisition of story rights before or negotiated before end
5) proprietary interest in litgation (money interest with client - can’t loan to client or make advances except for court costs)
6) sex w/ client (unless pre-existing) - not contagious
lawyer as witness
cannot rep where maybe witness unless non-contested or limited value in case
contagious conflicts
conflict between lawyer and client –> no lawyer in firm can rep UNLESS informed consent + writing
OR personal interest of lawyer (sex)
new lawyer with contagious
reqs for others to rep (3)
others can still rep if
1) instant screening (no info passed between incoming and firm)
2) incoming gets no part of fee
3) client notified (no consent req’d)
gov lawyer job search
cannot negotiate for employment with party whom involved with matter on
exception: law clerk w/ judge notified
COI and prospective clients
non-contagious if immediately screened after learning info in such comm that is COI
if not solicited, not triggered
third-party payors interference
&
consent?
not allowed for
1) work control (task approval)
2) info control (demand to see all case info)
3) settlement control (reg nature/amount)
CLIENT CAN CONSENT TO SUCH!
agreements to limit or eliminate malpractice
not allowed unless client advised in writing of seeking indie counsel + reasonable opp.
representing organizations
rep org not constituents individually bu can jointly rep
bad behavior of org
if a) know violation of law +2) substantial injury
must
1) refer to highest org authority
2) if not corrected, MAY resign (noisy withdrawal allowed - disclose confidential)
duty of professional competence: standards of review
3
negligence std (Duty, breach, causation, damages)
OR
breach of fiduciary relationship (COI)
OR failure of performance (K std)
duty of professional competence: duty to decline/withdraw
not competent and can’t become without unreasonable delay
duty of professional competence: duties to third-party beneficiaries & for unauthorized acts
1) third party beneficiaries - yes
2) unauthorized acts (attorney goes beyond scope of rep –> may be personally liable)
duty of professional competence: referrals
must reasonably believe other lawyer will contribute
duty of professional competence: tort defenses (2)
+ crim defense
1) defamation defense: publication related to proceeding
2) malicious prosecution - had PC
CD: advice re: crimes not criminal if dissuading
duty of diligence
must be diligent and must withdraw if cannot (too busy)
not allowed to delay for sake of delay
duty of zealous advocacy and frivolous claims
cannot assert or defend such unless good-faith arg to etend law
what is frivolous claim?
can rely on client facts, but duty to make reasonable investigation before filing
duty to develop facts which may make something frivolous later on
duty of candor to tribunal… cannot: (3)
cannot:
1) knowingly make false statement fact/law
2) fail to disclose controlling authority on other side (but can give other side opp to do so first)
3) offer evidence knowing false (DCin crim cannot refuse client testimony unless knows false)
remedial measures when know put on false evidence or perjury
1) remonstrate (dissuade + tell to correct)
2) take matter to ct and seek withdraw (usually denied)
duration of duty to correct false evidence/perjury
until litigation ends
tampering with evidence & paying witnesses
cannot tamper with witness or evidence
can only pay witness cost of coming to ct OR EW
client give stolen items, evidence of crime
must turn over to police who will keep confidential
ex parte comm’s for lawyers
generally not allowed for pending, active, or impending
not with judge, jurors, prospective
when: before/during… maybe survey after
comm w/ rep’d persons
generally can’t if know rep’d - must comm w/ lawyer instead
covers anyone who could make statements that might be admission
comm w/ rep’d persons: entities
must presume control group rep’d by entity lawyer…. former employees not covered
comm w/ rep’d persons: inadvertent comm
simply must notify them they sent it
can read it
media contact rule + exceptions (3)
cannot make statements with substantial likelihood of prejudicing…. especially bad to make about witnesses
exceptions:
1) protect from other publicity
2) general facts/procedure
3) “he started it” response
roles: candid advisor/third party eval
1) notify and client consent if bad info
2) must give candid info to third party
roles: neutral arbitrator, etc.
must be neutral, not clients
roles: prosecutor reqs (6)
1) PC to bring action
2) cannot take advantage of unrep’d
3) disclose exculpatory
4) cannot subpoena lawyer to destroy A/C
5) restrictions on media statements
6) seek remedy if new evidence is clear and convincing
roles: safekeeping property
keep client and attorney property separate
advertising: what is included
all forms of comm
advertising: restrictions (6)
1) cannot be false/misleading
2) cannot be unverifiable self-promotion
3) cannot call self certified specialist unless 1) state approved authority or ADA accredited AND 2) ID org
4) must include name + contact info of at least 1 attorney at firm
5) cannot imply work in partnership w/ another unless do
6) no real-time, direct contact to solicit (doesn’t include chat rooms, text easily disregarded, but DOES include phone)
advertising: specializing
can say specialize and hold self out as such OR state field of practice
patent and admiralty attorneys allowed
advertising: can include
a) location of offices
b) names of clients if reg rep + consent
advertising: mail and non-real time
allowed if no coercion, duress, harassment, not to those don’t want solicitations
advertising: referrals/endorsements services
referral service permitted but can’t charge percentage of fees
advertising: names and letterheads of firms
1) cannot be false/misleading
2) cannot imply association with gov agency, deceased lawyer not formerly member, non-associtaed lawyer, non-lawyer, public/nonprofit legal services org
3) cannot use name of lawyer holding public office
firms in mult. locations can hvae same name
pro bono
&
pro bono conflict rules
aspire 50 hrs/yr
special conflict rules
1) reg conflict rules only apply if aware of conflict
2) if decision will benefit other clients, must disclose but not ID of other
limited legal service (ex. hotline)
permitted but may arise tension with possible lawyer liability
lawyers and campaign contributions: soliciting & participating in political work?
limits? (2)
allowed to solicit on behalf of candidate + participate in political work
limits:
1) no bribery
2) no contribution in exchange for favor
lawyers on comments on qualifications of candidates
cannot lie about fitness
defamation only if actual malice (know false, reckless disregard)
lawyers running for judgeship
subject to both ethical codes
judicial and lawyer ethics interplay
cannot induce ethics of other
source of judge ethics
model code of judicial conduct
judge duty of judicial integrity (2)
1) must comply with law + avoid appearance of impropriety
2) no abuse of office for gain (but can rec clerks)
judge duty of impartiality and diligence
no favoritism, must be neutral
ex parte comm’s for judges
prohibited
judges responsible for staff control
exceptions: scheduling, consulting experts, settlement discussions w/ party consent
public comment as judge
generally prohibited for any case before any ct that may impact outcome or fairness
judicial recusal: mandatory (6)
1) personal bias
2) personal knowledge of facts of case
3) spousal relationship
4) money involved for judge or family
5) contribution to political party beyond legal limit
6) previous served as lawyer, official, judicial in matter
judicial recusal: mandatory exception
necessity - no judge could hear case, somebody must
judicial recusal: duty of disclsoure
must disclose all info to litigants useful to decide if recusal is proper
judicial recusal: waiver
any can be waived with consent except personal bias or personal knowledge
judge duty to report
2
1) known violations + implicates honesty, trustworthy, fitness
2) reasonable belief lawyer impaired
extra-judicial activities limits
1) can’t be character witness unless summoned to testify
2) cannot be fiduciary except in family matter
3) cannot practice law except pro se
4) no outside business except family business
judicial gifts
non-reportable if ordinary course gift (all judges, reg, small), legal convention reasonable amount
reportable: large gifts, convention for recreation
judge and politics
must stay out of politics, including endorsements (even family)
no pledges, promises, commitments about how will handle cases
when running for judge can make general comments, not about parties
can endorse others for same office, can have campaign committee
if run for diff office must quit judgeship
if seeking appointment don’t need to quit
who the rules apply to (2)
1) lawyers engaging in legal work, including VL for those that they supervise
2) lawyers who no longer actively practice law (ex. working as financial planner)
when is there a COI
when both side shave legal rights and duties in conflict (not mere expectations of inheriting money, etc.)
duty if client dies
inform opposing party in first communication after the fact
settlement obligations where rep multiple clients
disclose full amount and amounting going to each to all clients
disputed fee amount
can take or disperse undisputed amount but whatever amount is in dispute must be held in segregated account until resolved
duty of overseeing other legal professionals
must take reasonable efforts to ensure conform to model rules
cannot fully delegate responsibilities to them that they are not familiar with and not competent in…. must oversee their work
conflict of interest? one client witness against another in entirely unrelated
yes this is directly adverse conflict (can be waived with informed consent + writing)
maybe not if calling on other client’s behalf
confidential info and GJ
can disclose unless A/C, then must assert A/C
duty of informing counterparty
no general duty, but cannot misrep facts, even if client instructs to
non-disclosure of existing non-ID’d principal in purchasing negotiations
not a material misstatement of fact - don’t need to notify
req when switching from firm to gov and working on same case
1) written informed client consent
2) government agency consent
judicial rules and mediation, arbitration, etc.
not allowed unless part of lawfully assigned judicial duties
arbitrators/mediators and the representation of parties from the matter in same matter
if substantially participated as arbitrator, generally cannot w/out written consent of all parties
exception: partisan member of party of multi-member arbitration panel (regardless of how voted)
discussing rep w/in firm
absent client instruction not to, allowed
judges and prior general comments on issues
generally no need to disqualify self, presumed can be impartial and put aside
First req for COI to be an issue
Must have personal and substantial involvement in the prior rep
ex. judge who did only admin stuff on a case can later rep one of the parties b/c never substantially participated in the matter
campaigning statements for judge
cannot make pledges about how will treat cases (ie differently from current) BUT can attack judges w/ factual incidents
judicial duty of diligence and timeliness
must expedite matters before the court… allowing excessive delay violates
fee splitting amongst lawyers (2)
1) reasonable total amount
2) informed consent in writing by client
COI with current rep of unnamed client in CA lawsuit
no need for informed consent before representing the opponent in the CA suit (ie who the class is suing)
what counts as pro bono credit
must have entered into work without expectation of fee
lawyers and legislative hearings
must disclose in what capacity they appear (ie for a client, self, etc.)
aka lobbying
lawyers: personal beliefs in front of the jury
not allowed in civil courts - limited to comments rooted in evidence
malpractice insurance
no requirement to have it… thus not ethical violation to fail to report malpractice settlement to them
judicial consulting with neutral expert
allowed if
1) give prior notice about who and subject matter
2) give opp to respond/object to BOTH notice of plan to do it AND info retrieved after
communicating with third parties by using third party
not allowed still
what is adequate precaution to avoid VL?
warning not to do something is typically enough
lawyer’s comments on judicial candidates
allowed to express good faith views that serve admin of justice (honest and candid)
allowed even if running for judge
solo practitioners death/incapacity plan
req’d
must designate competent attorney who will
1) review client files
2) notify clients
3) determine if cases need immediate protective action
no need for consent or notification to existing clients
requirements for withdrawing from rep (2)
1) leave of court
2) take all reasonable steps to mitigate harm to client
delaying disclosure of info to client
can delay if in their best interests, but not for own
supervising attorney’s ethics instructions
subordinates are still responsible for their own work even if ordered.
allowed to rely on reasonable resolution of ethics by a manager, but not unreasonable
duty to report knowledge lvl
must have actual knowledge for duty to be triggered (ie rumors that have no other corroboration insufficient)
confidentiality and taking protective action for decreased capacity clients
allowed to disclose confidential info to extent necessary but before doing so must ascertain whether the person disclosing to is going to act in the interests of the client, not adversely
confidentiality and dispute between client and lawyer
can only disclose what is relevant to the actual issue at hand between the client and lawyer, nothing more
confidentiality and prospective client
can’t reveal info without informed consent, even if no a/c is formed… even if in best interests of prospective client
confidentiality and ethical advice
allowed to reach out to get confidential ethical advice and give details
third party payor reqs (3)
1) client informed consents; 2) no interference w/ professional judgement; 3) A/C relationship preserved
personal disqualification contagious?
no - generally not
general rule is that if one lawyer is disqualified, then the firm is, but not for personal interest disqualifications so long as it does not present a significant risk of materially limiting the representation of the client by the remaining lawyers in the firm.
lawyer enters into K without disclosing client ID –> liability?
lawyer personally liable although if ordered by client can seek indemnification
attorney liability for third party services commonly used goods and services
even when client disclosed, attorney personally liable b/c they will rely on attorney’s credit to take the job
client on the hook for reimbursement/indemnification
asking employees of client to not speak with other side without contacting attorney first
this is ok as long as doing so doesn’t materially limit the rights of the person asking
standard of review for when in trouble for false evidence
+ when can refuse to put on false evidence
must KNOW it’s false, reasonably believe is not enough to trigger ethical violation
may refuse to offer if reasonably believe though
puffing v. statements of facts in negotiations
attorney allowed to puff (opinions, judgements not as rstatement of fact) - opinion on value, etc. included
no false statements of material fact
escrow v. client trust account
always must keep finances separate from attorney’s BUT sometimes must also keep separate from other clients (like if agree for escrow)
reciprocal referral agreements (3)
allowed,
1) not indefinite ones (only limited duration)
2) disclosed to clients
3) not exclusive
can non-pre-existing sexual relationship be waived?
no - it can never be waived
lawyer advice on non-legal issues
allowed - anything within scope of client’s situation, legal, moral, business, ethical, etc.
when money rules apply (intermingling, etc.)
money received from client or a lawyer who is representing someone
does not apply to money pooled by lawyers for recreation, etc.
lawyer representing organization - when duty to report an employee for wrongdoing?
if know did something + substantial harm to org –> report to higher authority
allowed to reasonably investigate a tip before deciding whether to report
criminal defense and contingent fees
not allowed ever
are attorneys sharing workspace associates for purpose of COI rules?
not if take reasonably adequate measures to protect confidential client information so that it will not be available to other lawyers in the shared office.
receive funds for client steps (3)
1) promptly notify client
2) keep separate
3) pay over funds
duty to control workload: vacation
duty to ensure properly handled while away
when owe duty to third party/non-client (3)
An attorney may owe a duty to a non-client when the attorney knows that the client intends the attorney’s services to benefit the non-client. An attorney will owe a duty to a non-client to use care when and to the extent that: (i) the attorney knows that the client intends as one of the primary objectives of the representation that the attorney’s services benefit the non-client, (ii) such duty would not significantly impair the attorney’s performance of obligations to the client, and (iii) the absence of such duty would make enforcement of those obligations to the client unlikely
misleading-as-presented advertising
cannot advertise results of one case such that reasonable person would form unjustified expectations without specific facts/context of case or disclaimer
lawyer holding office and firm name
cannot use their name if they will not be practicing for substantial amount of time due to public office (not actively and regularly practicing)
fee increases
must always be communicated to client
duty of candor to tribunal: legislative hearings
applies! must correct known misstatements - withdrawing from rep is insufficient.
when can lawyer rep both sides of issue (4)
1) reasonably believes that she will be able to provide competent and diligent rep to each
2) representation is not prohibited by law
3) not a claim rep’d by lawyer in previous litigation or other proceeding before a tribunal
4) each gives informed consent, confirmed in writing
client former perjury
told confidentially –> cannot disclose
must disclose and maybe withdraw if done in this matter
parties discussions whether will waive judge disqualification
must be outside of judge or staff presence
