MPRE Flashcards
Do AGGREGRATE SETTLEMENT AGREEMENTS require signed writing?
Yes
What are the req’ts for aggregate s’ment agmt?
- L must DISCLOSE terms
- L must make sure C’s COME TO AGMT about how s’ment to be divided
- INFORMED CONSENT IN WRITING
Can a L represent 2 C’s on opposite sides of the same TRANSACTIONAL matter?
Yes, but must get informed consent and believe you can competently and diligently represent both parties.
In class action, are UNNAMED members of the class considered clients for DIRECT ADVERSITY rule?
NO
When does rule for biz transx and adverse FIN’L interests NOT apply?
- Ordinary fee agmt btwn L & C
2. STD COMM’L TRANSX in which L buys goods/servs that C ROUTINELY MARKETS to the public
Can a L take a proprietary interest in a CoA or subject matter of litigation?
NO, but can when it’s not litigation.
When is it okay for L to acquire literary or media rights to a story?
After matter is completed (including appeals)
When rights are NOT substantially based on info relating to the rep’n
Is informed consent req’d for a 3rd P paying C’s fees?
Yes
When can L represent C against FORMER C w/o informed consent?
When it’s not SAME OR SUBSTANTIALLY RELATED MATTER
What’s the rule re rep’n against former C while at former firm?
Can’t work on opposite side if ACTUALLY ACQUIRED conf’l info while at former firm.
What’s involved w/ SCREENING L w/ former C conflict?
Can’t SHARE FEES
No ACCESS TO CASE FILES
NOTICE to former C w/ disclosure about procedures
UPDATES to former C
When would there be conflict w/ prospective C?
When there’s no adverse rep’n in SAME OR SUBSTANTIALLY RELATED matter if CONF’L INFO would be SIGNIFICANTLY HARMFUL to prospective C.
Note: Significantly harmful standard unique to prospective C
When can a L going from gov’t to private practice not rep C?
If SAME MATTER
L worked PERSONALLY AND SUBSTANTIALLY on matter
But CAN GET AGENCY’S CONSENT
When can’t L rep private C when they previously worked for gov’t?
When they gained CONF’L GOV’T INFO against the other party
When are matters SUBSTANTIALLY RELATED?
- They involve the SAME TRANSX OR LEGAL DISPUTE, or
- there’s SUBSTANTIAL RISK that CONF’L FACTUAL INFO as would normally have been obtained in the prior rep’n would MATERIALLY ADVANCE the new C’s position.
When is a L’s former firm prohibited from representing a person w/ interests materially adverse to those of a C of the formerly associated L?
When: 1. the matter is the SAME OR SUBSTANTIALLY RELATED to the one the formerly associated L rep’d the C, and
- ANY L remaining in the firm has MAT’L CONF’L INFO
When L goes from pvt practice to gov’t agency, whose consent must be obtained when he works on a matter he previously worked PERSONALLY AND SUBSTANTIALLY ON?
BOTH former C AND GOV’T AGENCY
What must L ensure re aggregate s’ment offers?
That C’s come to agmt as to how to split the money THEMSELVES
Under duty of candor, when must L make correction?
When it’s MATERIAL false statement to TRIBUNAL
Does NOT apply to pleadings or court documents
What’s rule re offering false E?
CAN’T offer any E L KNOWS TO BE FALSE
MAY REFUSE to offer E L RSNY BELIEVES to be false
What should L do when he finds out C offered false E?
Take RSN REMEDIAL MEASURES
Does duty of candor trump duty of confidentiality?
Yes
When does duty to rectify false E end?
When case is resolved, including all appeals.
What’s the approach when criminal D wants to offer false E?
ABA View:
Convince Client not to
Consider W/D
Tell the Ct
Some states: Narrative approach (L doesn't ask Q's on those topics)
Whats rule on paying W?
ONLY Expert W
Or expenses for a non-Expert W (not for servs of testifying)
When can’t L make a public stmt about case?
Applies to L connected to the case (including other L’s in firm), must not make public stmt outside the courtroom that L RSNY should know would have a SUBSTANTIAL LIKELIHOOD of MAT’Y PREJUDICING the case.
CANNOT discuss CHARACTER OR CREDIBILITY of a party or W, the performance or results OF AN EXAMINATION, the possibility of a GUILTY PLEA, or the existence or contents of a CONFESSION.
When can L make a public stmt about case?
When the other side started it, to the extent needed to protect C
May publicly state DRY FACTS about case (how J ruled on a motion, time and place of arrest)
Rule re L being W?
Can’t be L in a case where you’re LIKELY TO BE A NEC W.
What are exceptions to rule that L can’t be W?
- Uncontested matters or mere formality
- Testimony pertains to LEGAL SERVICES in current case
- DQ would cause SUBSTANTIAL HARDSHIP to C
When can a L advise a person to not voluntarily give info to an opponent or other party?
When they’re:
1. C or a RELATIVE, EE, or AGENT of C, and
- L RSN BELIEVES person’s interests won’t be harmed by not volunteering the info.
In a civil matter, when must a L volunteer facts that are harmful to his C’s case?
Ex parte proceeding
Can a L use threats against an adversary to gain an advantage in a civil case?
Yes, but on threats to bring CRIMINAL CHARGES, provided the crim and civil matters are CLOSELY RELATED and WARRANTED BY LAW AND FACTS.
Can a L give legal advice to unrep’d person?
Not if RSN’Y POSSIBLE their interests will CONFLICT w/ C
When a L talks to a W, do they have a duty to investigate whether that person is represented by a L?
No, no duty to investigate. Rule applies where L KNOWS PERSON IS REP’D BY COUNSEL.
May a L give advice to unrep’d person who’s interests are in conflict w/ their own C if they explain they are disinterested?
No, can only tell them to get a L.
When must a L disclose facts to a 3rd party?
When NEC to avoid assisting C in a crime or fraud.
When is a L impliedly authorized to give info about C to a 3P?
When NO SIGNIFICANT RISK TO C
When is C’s informed consent req’d before disclosing info to a 3P?
When info is MATERIALLY HARMFUL TO C.
What type of stmt must prosecutor refrain from making publically?
Can’t make any stmt that’s likely to PREJUDICE A TRIAL
Any public stmt that would heighten PUBLIC CONDEMNATION OF ACCUSED, unless legit law enforcement purpose
What must L’s disclose when testifying before non-adjudicative proceeding?
That they’re there on behalf of a C (but don’t have to identify C).
What’s L’s duty when they rep organization and they learn someone in that org violated a duty or law that may cause substantial harm to org?
Duty to report inside org
If no action taken, L MAY report to outside party (even if confidentiality applies) if L RSNY BELIEVES it would harm org
Does L have authority to report outside org if they were hired for internal investigation?
NO
May a L give moral, economic, political or other nonlegal advice to a C?
YES, even if they don’t ask for it.
Does prosecutor have duty to prevent investigators, police, employees, and others assisting in a case from making stmts that have a substantial likelihood of heightening public condemnation of the accused?
Yes
How does Sarbanes-Oxley differ in the obligations it imposes on securities L who comes across E of MAT’L violation of securities laws by their C?
It REQUIRES sec/L to report violation to SPECIFIC AUTHORITIES W/I THE COMPANY.
If L for org learns EE violated a law, that law might be imputed to org, and violation is likely to cause substantial injury to org, what must L do?
Report violation to a higher authority at the org.
HOWEVER, she may choose not to report if she RSNY BELIEVES that org’s best interests do not require violation to be reported.
May a L volunteer advice to a C when they’re planning an act that has substantial legal consequences?
Yes, but no duty to do it.
At the criminal sentencing phase, is a prosecutor req’d to disclose mitigating info known to them?
Yes, unless relieved of this duty be a protective order from the court.
When can L put personal funds in trust account?
To pay bank fees.
How long must L keep records of money/property?
5 years
When a C entrusts L w/ money to pay costs and expenses not yet incurred, what must L do w/ regard to paying the expenses (which account)?
Put money into IOLTA and pay expenses directly from that account.
What’s rule re RECIPROCAL REFERRAL AGREEMENTS?
L may agree w/ L or NON-L professional to send C’s to each other.
CAN’T BE EXCLUSIVE.
Should NOT be INDEFINITE duration. (check it periodically)
Referred C MUST BE TOLD of agmt.
What’s rule on SOLICITATION?
L can’t initiate contact w/ person known to need legal services IN A PARTICULAR MATTER w/ LIVE PERSON-TO-PERSON CONTACT.
Rule only applies when solicitation is motivated by PECUNIARY GAIN.
Who are potential C’s not covered by in-person solicitation ban?
Relatives Close Friends Persons w/ PRIOR BIZ R'SHIP Persons w/ PRIOR PROF R'SHIP Other L's ROUTINE BIZ USERS of services
What are instances when solicitation banned?
Person has made it known they don’t want rep’n
Coercion, duress or harassment
Specific legal restrictions (civil or crim penalties apply)
What’s rule on group and prepaid plans?
L CAN reach out to orgs about adopting plan
L CANNOT reach out to potential members
Plan can reach out to potential members if not known to need particular legal servs
Can L who owns or directs plan provide legal servs thru plan?
NO
What are the exceptions to the rule that a L can’t compensate or give anything of value in exchange for a person recommending the L’s services?
- L may give NOMINAL GIFT as expression of appreciation to person who recommended the L, provided the gift wasn’t intended or RSNy expected to be a form of compensation for recommending L’s services
- L may pay permitted COSTS OF ADVERTISING
- L may pay USUAL CHARGES OF LEGAL SERVICE PLAN, a not-for-profit L referral service, or approved L referral service
May 2 law firms hold themselves out to the public as being affiliated with each other?
Yes, but they’re treated as a single unit for conflict purposes.
When can L reject court appointment?
- Would cause VIOL’N OF LAW OR RPC
- Would be UNRSN FIN’L BURDEN
- Personally UNABLE TO REP C EFFECTIVELY
- LACK LEGAL KNOWLEDGE
When can L not participate in a decision or a legal servs org?
If doing so could adversely affect the rep’n of one of the org’s C’s whose interests are adverse to those of a C of the L.
May a L serve as a member of a law reform group if the reform advocated by the group may affect one of his C’s?
Yes, but he must NOTIFY THE COMM’N when any of his Cs would be MAT’Y BENEFITED by a decision (though he doesn’t need to identify the C)
What’s the rule re L’s stmts about the qualifications or integrity of a J, hearing officer, public legal officer, or a candidate for jud’l or legal office?
Can’t make stmt L KNOWS is false about the qualifications or integrity
When does L-C R’ship end w/ quick advice legal hotline?
Neither party expects the r’ship to continue past the quick advice stage.
Can J’s write letters of recommendation on official letterhead?
Yes, if
- Ref is PERSONAL
- not perceived as attempting to EXERT PRESSURE
MUST NOT ABUSE PRESTIGE OF OFFICE TO ADVANCE PERSONAL INT OR PERMIT OTHERS TO DO SO ON THEIR BEHALF
What are exceptions to rule that J’s can’t initiate ex parte communications?
- When expressly authorized by law or court order
- Mediation or s’ment, w/ consent of Ps
- In emergency, if comm is NONSUBSTANTIVE and circumstances REQUIRE comm w/ only 1 P, but J must NOTIFY other P w/ opp to respond and NO PARTY will gain an ADVANTAGE
What should J do if inadvertent receipt of ex parte comm?
Promptly notify Ps and give OPP TO RESPOND
What are rules re J’s comm about current case to court personnel and other Js?
May NOT discuss facts NOT ON RECORD
What are rules re J’s comm about current case w/ LEGAL EXPERTS?
- Advice must be IN WRITING
- Expert must be DISINTERESTED
- Must NOTIFY Ps in advance and give chance to respond
Can P’s waive (remit) DQ of J?
Yes, for all grounds except
PERSONAL BIAS against P or L
Can J be officer, director, manager, gen’l partner, advisor or EE of a business?
NO, except they can manage own or family’s investments and
Participate in family biz
Can J testify as character W?
No, except if duly summoned
Can full-time J practice law?
No, except:
- Pro Se
- Legal advice TO FAMILY
- Drafting LEGAL DOCS for FAMILY
Can FT J act as arbitrator, mediator?
No, only if auth’d by law
Can J publicly endorse candidates?
NO
What’s rule re J who becomes candidate for nonjudicial elective office?
Must RESIGN from jud’l office
What’s rule for J’s re misconduct by L’s or other J’s?
J knows, MUST REPORT
J receives info but isn’t certain, must TAKE APPROPRIATE ACTION
What’s the R re when a J must recuse themselves when fam member has economic interest in the outcome (which fam members included in that rule)?
J’s spouse, domestic partner, parent or child, or any family members residing in J’s house
What must be done to properly remit (waive) grounds for DQ?
P’s must be able to consult privately with their C’s outside presence of the J.
Can a J running for re-election personally solict or accept campaign contributions?
No, must use campaign committee
Can J or Jud’l candidate personally solicit or accept campaign contributions?
No. They may establish a CAMPAIGN COMMITTEE to manage and conduct her campaign.
It’s OK for committee to accept RSN contributions from Ls that may appear before candidate.
When a L knows that another L has violated RPC in a way that raises substantial Q about L’s honesty, trustworthiness, or fitness as a L, MUST OR MAY they report?
MUST report. They can be subject to discipline if they don’t
In gen’l, can L split a legal fee w/ another L? Exceptions?
No
Exceptions: 1. Current partners & associates w/i a firm may split.
- Firm may make payments to former partner/associate under sep’n/retirement agmt.
- 2 or more L’s from diff firms can split fee if it’s RSN, in proportion to servs (unless each L assumes JT RESPONSIBILITY), and C AGREES IN WRITING.
When does ACP apply to comms btwn L and lower level corp EE?
- EE communicates w/ L AT DIRECTION OF HIS SUPERIOR.
- EE KNOWS THE PURPOSE of the comm is to OBTAIN LEGAL ADVICE for corp
- Comm concerns a subject w/i THE SCOPE OF EE’S DUTIES to act for corp.
Under what circumstances can L accept compensation from a 3rd person?
- C gives INFORMED CONSENT
- 3rd person does NOT interfere w/ L’s independent or rep’n of the C.
- Arrangement does not compromise C’s conf’l info
What’s the rule re when a L obtains conf’l info during a consultation w/ a prospective C1 (and C2 later wants L’s rep’n in same or substantially related matter)?
May not rep C2 if CONF’L INFO COULD SIGNIFICANTLY HARM C1 (unless C1 and C2 give informed consent, confirmed in writing)
Can a L ask C to consent to future conflicts?
Yes, if 1. it’s RSN TO DO SO, and 2. C truly understands particular kinds of conflicts that may arise and the consequences of consenting
Can a J testify at a public hearing in matter concerning the law?
YES
May a L participate in a legal service board decision that may adversely affect one of his C’s?
NO
Does a subordinate L violate RPC by acting in accordance w/ supervisor’s RSN resolution of an ARGUABLE Q of pro duty?
NO
When is a J prohibited from testifying voluntarily?
As a character W
When can a L reveal conf’l info (other than informed consent, or death/bodily harm)?
When disclosure is IMPLIEDLY AUTH’D in order to CARRY OUT THE REP’N
Can a L give legal advice on a matter that she wouldn’t be competent to handle in an ordinary situation in an emergency?
Yes
Can a L solicit employment when he’s offering pro bono services?
Yes, as long as his pecuniary gain is not a SIGNIFICANT MOTIVE
When can a J serve as an officer, director, etc of a business entity?
Only when it’s closely held by J or fam, or engaged in investment of FIN’L resources of J (or J’s fam)
What’s the exception to the gen’l prohibition on FT J practicing law?
May give advice or draft docs for fam member w/o compensation
Pro Se
Can a L express their views in the media?
Yes, as long as they don’t make false or misleading stmts about himself or his services
What are the req’ts for a reciprocal referral agreement between L’s?
Agmt must be NONEXCLUSIVE and
Referred C’s are told about the agmt
Can a jud’l candidate personally solicit campaign contributions or publicly stated support?
No
Can a L request that someone other than a C refrain from voluntarily giving RVT info to another party?
Yes, if the P is RELATIVE OR AGENT of C and L RSN’Y believes person’s interests won’t be adversely affected by refraining from giving info.
When may a J accept a gift from someone who has come or may come before them?
If they make a PUBLIC REPORT of the gift
Can a L give anything of value in return for a recommendation?
No
Can a L who self-deals in a C’s conf’l info be forced to disgorge any profit when C is not harmed?
YES
When can a L serve as a neutral arbitrator?
When he assists 2 or more ppl who ARE NOT C’s of the L.
Can a L pay a W’s RSN expenses and lost wages?
Yes
