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MPRE > MPRE > Flashcards

MPRE Flashcards

1
Q

WHAT CONSTITUTES PROFESSIONAL MISCONDUCT?

A
  • Violating the RPC
  • Attempting to violate the RPC
  • Helping someone else violate the RPC
  • Using someone else to violate the RPC
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2
Q

When does a Lawyer have a mandatory duty to report a violation?

A

When the violation raises a substantial question as to the lawyer’s honesty, trustworthiness, or fitness to practice.

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3
Q

When is a lawyers duty to report not mandatory?

A
  • Question raised was not substantial
  • Suspect violation, but don’t know
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4
Q

Exceptions to Mandatory Reporting

A
  • Violation of duty of confidentiality to a client
  • Learned of violation in lawyer’s assistance program
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5
Q

Methods of temporary Out-of-State Practice

A
  • Associate with locally licensed attorney
  • Admission pro hac vice
  • Mediation or arbitration
  • Matter reasonably related to home state practice
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6
Q

Permanent Out-of-State Practice

A
  • In-house counsel and government lawyer can en- gage in non-litigation practice across state lines
  • Lawyers in certain restricted fields are specifically authorized by law to practice in other states
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7
Q

RESPONSIBILITY OF PARTNERS, MANAGERS, AND SUPERVISORY LAWYERS

A

Duty to Prevent Ethical Violations
* Partners and managers must take reasonable measures to ensure compliance with RPC
* Supervisory lawyers have same duty with respect to subordinates

Vicarious Responsibility
* Ordered or ratified misconduct
* Failed to avoid or mitigate consequences of viola-
tion

Partners, managers, and supervisors have the same duties as above with respect to nonlawyers working on client matters (both inside and outside the firm).

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8
Q

WHAT ARE THE RESPONSIBILITIES OF A SUBORDINATE
LAWYER

A

Acting on orders of another lawyer does not excuse misconduct unless it was a reasonable resolution of an arguable question of professional duty.

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9
Q

What are the rules on professional independence?

A
  • No partnerships with nonlawyers if any partnership activities involve practice of law
  • No nonlawyer control or ownership interest in firm
  • No fee splitting with nonlawyers (with limited ex- ceptions below)
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10
Q

When is fee splitting with a non lawyer permitted?

A
  • Death benefits to lawyer’s estate
  • Funds to purchase practice from deceased, dis- abled, or disappeared lawyer
  • Bonus plans and regular salaries
  • Court-awarded legal fees to nonprofit that retained or recommended lawyer
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11
Q

What are the RESTRICTIONS ON RIGHT TO PRACTICE
LAW?

A
  • Law firm-related agreements can’t restrict right to practice when relationship ends, except for retire- ment benefit agreements
  • Settlement agreements for clients can’t restrict right to practice
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12
Q

What are the Sellers Duties When Selling a Law Practice?

A
  • Sell entire practice or practice area
  • Written notice to clients that includes notice of sale, right to obtain other counsel or take pos- session of their files, and the fact that consent to transfer is presumed after 90 days
  • Generally cannot continue private practice in local area
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13
Q

What Are Buyer’s Duties When Buying a Law Practice?

A

Must honor existing fee arrangements.

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14
Q

Can Lawyers provide law related services alongside law-related services?

A

Yes

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15
Q

When does RPC apply to law-relate services?

A
  • When services are not distinct from legal services
  • When lawyer owns or controls entity providing services and does not take reasonable steps to ensure recipients understand that protections of attorney-client relationship don’t apply
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16
Q

How is a lawyer-client relationship formed?

A
  • Lawyer and client agreement
  • Implied assent and reasonable reliance
  • Court appointment
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17
Q

Is a written fee agreement required for contingent fees?

A

Yes.

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18
Q

Is a written fee agreement required for all fees that aren’t contingent?

A

No, it it is preferred.

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19
Q

Must all fess be reasonable?

A

Yes. Factors to consider:
* Time and labor
* Complexity
* Nature of relationship
* Fixed or contingent fee

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20
Q

When are continent fees not allowed?

A
  • Criminal cases
  • Domestic relations cases (but allowed in collec- tions cases)
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21
Q

Formalities for Contingent Fee Agreements

A

Must be in writing and signed by the client, and must disclose:
* Who is paying expenses
* How fee will be calculated
* Which expenses will be deducted and when
Must also provide written statement at case conclu- sion.

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22
Q

Is fee splitting with lawyers within a firm allowed?

A

Yes. Lawyer can share fees with current lawyers in their firm, retired members of their firm, and former firm members with pending cases.

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23
Q

What are the requirements for fee splitting with lawyers from different firms?

A
  • Both lawyers must be involved or responsible
    Option 1: Split proportionate to services performed
    by each
    Option 2: Each assumes joint responsibility and split the fee any way they like
  • Client consent to arrangement and shares, con- firmed in writing
  • Total fee must be reasonable
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24
Q

What decisions are up to the client?

A
  • Civil Cases: Whether to settle
  • Criminal Cases: What plea to enter, whether to
    waive a jury trial, whether client will testify
  • All Cases: Whether to appeal
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25
Q

What decisions are up to the lawyer?

A

Lawyer generally makes strategic decisions, but must consult with client about how the work is done.

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26
Q

When will a lawyers actions bind client?

A

Lawyer’s actions will bind client when lawyer has actu- al or apparent authority.

Actual authority: Communicated by client to lawyer expressly or impliedly.

Apparent authority: Third party believes lawyer has authority based on client’s actions.

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27
Q

Lawyers role whir vulnerable clients

A
  • Maintain normal relationship to the extent possible
  • If client at risk of substantial harm, can take protec-
    tive action
  • When taking protective action, lawyer impliedly authorized to disclose client’s confidential infor- mation to the extent necessary to protect client’s interests
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28
Q

Required communication with client

A
  • Case status updates
  • Game plan
  • Response to reasonable requests for info
  • Anything that requires informed consent
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29
Q

Lawyers duty to client re Settlement and Plea Offers

A

Must promptly inform client of settlement and plea bargain offers unless client has expressly authorized acceptance or rejection of certain offers.

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30
Q

Lawyer must decline or withdraw when:

A
  • Physical or mental condition materially impairs abil- ity to represent client
  • Representation requires violation of RPC
  • Fired by client
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31
Q

Lawyer may withdrawal when:

A
  • Any reason if no material adverse effect
  • Reasonable belief client doing something criminal or fraudulent involving lawyer’s services
  • Client used lawyer’s services in past crime or fraud
  • Client’s actions repugnant
  • Client makes representation unreasonably difficult
  • Client hasn’t paid and has been warned
  • Unreasonable financial burden
  • Other good cause
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32
Q

post-termination duties

A
  • Reasonable notice to client
  • Refund advance payments if not earned
  • Return client’s file unless permitted by law to retain
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33
Q

Attorney-Client Privilege applies to:

A
  • Communications only
  • Applies only to disclosures in proceedings
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34
Q

Duty of confidentiality applies to:

A
  • All information relating to representation
  • Applies to disclosures in any setting
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35
Q

What communication does attorney-client privilege cover?

A

Information passed between lawyer and client for the purpose of obtaining legal assis- tance for the client.
* Does NOT cover communications not made for legal assistance
* Does NOT cover pre-existing documents or re- cords

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36
Q

Who holds attorney-client privilege?

A

Client holds the privilege and decides to claim or waive it, but lawyer must claim on client’s behalf in client’s absence.

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37
Q

When is attorney-client privilege waived?

A

Attorney, agent, or client can waive privilege by failing to object, or disclosing to third party.

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38
Q

Major exceptions to attorney-client privilege

A
  • Aid in future crime or fraud
  • Self-protection
  • Litigation between former joint clients
  • Competency or intent of deceased client
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39
Q

Summary of work-product doctrine

A

Anything made in anticipation of litigation generally isn’t discoverable UNLESS opponent shows substan- tial need and undue hardship (but even in that case, mental impressions or opinions don’t need to be dis- closed).

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40
Q

Duty of confidentiality

A
  • Broader than privilege
  • Third party’s knowledge does not affect duty
  • Information need not come from client
  • Cannot disclose to anyone
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41
Q

Informed Consent and Implied Authority as it related to Duty of Confidentiality

A
  • Can disclose with client consent
  • Authority to disclose may be implied if disclosure is in client’s interests
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42
Q

EXCEPTIONS TO DUTY OF CONFIDENTIALITY

A
  • Prevent death or substantial bodily harm
  • Prevent/rectify substantial financial injury to anoth- er if services used in furtherance
  • Defend self in dispute concerning lawyer’s conduct
  • Obtain legal ethics advice
  • Detect and resolve conflicts of interest due to change of employment, merger, or sale of practice
  • Comply with court order or law
    Note: Duty of candor to tribunal > duty of confidential- ity.
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43
Q

What does it mean to Act COMPETENTLY TO PRESERVE CONFIDENTIALITY

A

Must safeguard confidential information by making reasonable efforts to prevent disclosure or access.

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44
Q

Who are conflicts imputed to?

A

Conflicts are imputed to everyone at firm, except:
* Conflict uniquely personal to lawyer
* Certain conflicts based on past work of lawyer screened from case

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45
Q

General Conflicts with Current Clients Rule

A

Can’t represent client if:
* Representation will be directly adverse to another client, or
* Significant risk that representation will be materi- ally limited by another interest

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46
Q

Requirements for Waiving General Conflicts

A
  • Reasonable belief can represent each competent- ly and diligently
  • Informed consent, confirmed in writing from each affected client
    Note: Being on opposite sides of the same litigation → unwaivable.
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47
Q

Examples of Directly Adverse, in the context of conflicts of interest (cannot represent client if directly adverse to another client):

A
  • Clients on opposite sides of same matter
  • Representing client’s opponent in another matter
  • Cross-examining current client in another matter
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48
Q

What is a material limitation, in the context of conflicts of interest (can’t represent client if significant risk that representation will be materially limited by another interest)

A

When representation will be materially limited by:
* Lawyer’s responsibilities to different client, former client, or third person
* Lawyer’s personal interests

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49
Q

Representing co-parties in a criminal case

A

the risk of conflict is high and joint representation isn’t advisable.

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50
Q

Representing co-parties in a civil case

A

the conflict can usually be addressed:
* Must reasonably believe can represent all par-
ties well
* Must explain consequences
* Must get informed consent
* Must re-address conflict if potential conflict becomes real
* Must withdraw if reasonable lawyer would ad- vise any client against consent
* Must get consent of dropped clients if continu- ing to represent any co-parties

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51
Q

Conflicts related to lawyer’s personal interests

A
  • Representation may continue with client con- sent
  • Uniquely personal conflict (e.g., family member is opposing counsel) is not imputed to firm
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52
Q

Lawyer’s duties to former clients and third parties

A

Representation may be limited:
* Where lawyer owes a duty of confidentiality to a former client
* Where lawyer is corporate director
* When lawyer acts as fiduciary

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53
Q

Misuse of Client’s Confidential Information

A

Must not use client’s information against them without informed consent.

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54
Q

Business Transactions with Clients

A
  • Transaction must be fair and reasonable to client
  • Lawyer must disclose all terms to client in writing,
    in a way the client understands
  • Lawyer must advise client in writing to get inde-
    pendent counsel
  • Client must give informed consent in a signed writing
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55
Q

Acquiring an Interest in the Subject Matter of Litigation

A

No proprietary interest in cause of action or subject matter of litigation, except:
* Contingent fees
* Lien on client’s recovery (if authorized by law)

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56
Q

Gifts from Clients

A

A lawyer cannot:
* Solicit substantial gift from client unless relative
* Prepare instrument giving lawyer or relative sub- stantial gift unless donee related to client

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57
Q

Literary or Media Rights

A
  • Cannot have interest in book, movie, or other por- trayal during representation
  • Lawyer can have interest in media rights when case is completely over
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58
Q

Financial Assistance to Client in Litigation

A
  • No financial help to client in connection with pend- ing or contemplated litigation
  • Cannot guarantee loan from someone else to client
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59
Q

Exceptions to the prohibition on financial assistance to client in litigation

A
  • May advance court costs and expenses
  • May pay court costs and expenses for indigent client
  • When representing indigent client pro bono, may give client modest gifts for basic living expenses
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60
Q

Aggregate Settlement Agreements

A
  • Fully explain the claims and what everyone’s get- ting
  • Get informed consent from each client in a signed writing
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61
Q

Third Party Paying for Representation

A
  • Client must give informed consent
  • Third party cannot interfere with relationship
  • Cannot reveal client’s confidential information
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62
Q

Sexual Relations with Clients

A
  • Preexisting sexual relationship generally OK
  • Subject to discipline if sexual relationship follows attorney-client relationship
  • Conflict not imputed to the firm
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63
Q

Duty of Confidentiality to former Clients

A

Ongoing Duty of Confidentiality
Can’t reveal confidential information or use it to former client’s disadvantage without consent, unless informa- tion has become generally known.

64
Q

Opposing Former Clients

A

Cannot represent new client against former client if matter is same or substantially related to former client’s matter, unless former client consents.

Meaning of “Substantially Related”
* Same transaction/legal dispute, OR
* Substantial risk confidential information would materially advance new client’s position

65
Q

Conflicts with Former Firm’s Client

A

Cannot work on opposite side if actually acquired con- fidential information about the matter while at former firm.

66
Q

Former Client Conflicts—Disqualification of Lawyer’s New Firm

A

If incoming lawyer has conflict, firm can screen the disqualified lawyer:
* No sharing of fees
* No access to case files
* Notice to former client with disclosures about pro- cedures
* Updates to former client

67
Q

Former Client Conflicts—Disqualification of Lawyer’s Old Firm

A

When client leaves, firm disqualified from represent- ing other side in same or substantially related matter if even one lawyer remaining at firm has confidential information about the case, unless former client con- sents.

68
Q

PROSPECTIVE CLIENT CONFLICTS

A
  • No adverse representation in same or substantial- ly related matter if confidential information would be significantly harmful to prospective client
  • Conflict imputed to firm but can be cured with screening
69
Q

Conflicts: moving from employment w/Government to Private Practice

A

Cannot represent private client without government agency’s consent if:
* Same “matter” (must involve specific facts and parties)
* Lawyer worked personally and substantially on matter while in government
* Conflict imputed to firm but cured with screening

Confidential Government Information
If lawyer acquired confidential government information about a person during government employment, can’t represent private client against them later.

70
Q

Conflicts: Moving from deployment in private practice to government

A

Normal conflict rules, plus:
* Cannot take part in any matter personally and substantially involved in while in private practice, unless government agency consents

71
Q

Conflict-Former judge or third-party neutral

A
  • Cannot represent client in matter lawyer was per- sonally and substantially involved in as a judicial actor or third-party neutral, or as a law clerk, unless all parties to the proceeding consent
  • Conflict imputed to firm but cured by screening, notice to all parties, and notice to the affected tribunal
72
Q

GOVERNMENT EMPLOYEE, JUDGE, OR THIRD-PARTY NEUTRAL NEGOTIATING FOR EMPLOYMENT

A
  • Government employee, judge, or third-party neu- tral cannot negotiate for private employment with any party in a matter they are personally or sub- stantially involved with
  • Exception for law clerks who give advance notice to judge
73
Q

DUTY OF COMPETENCE

A

Must act with the knowledge, skill, thoroughness, and preparation necessary to do the work.

74
Q

Avoiding a Competence Problem

A
  • Associate
  • Learn it in time
  • Emergency
75
Q

DUTY OF DILIGENCE

A

Must act with reasonable diligence and promptness.

76
Q

CIVIL LIABILITY TO CLIENT

A

Negligence:
* Duty of care:
- Competence and diligence exercised by attor- neys in similar circumstances
- Specialist held to higher standard

  • Breach of duty
  • Missing deadlines
  • Failure to send to specialist
  • Bad advice
  • Causation
  • But for malpractice, client would have won
  • But for malpractice, client would not have had to pay a large judgment
  • Damages
77
Q

CIVIL LIABILITY TO NON-CLIENTS

A

Duty of care owed to:
* Prospective clients given legal advice
* Those intended to benefit from legal services
* Those invited to rely on opinion or legal services

78
Q

LAW FIRM’S VICARIOUS LIABILITY

A

Firm is vicariously liable for damages caused by some- one at firm if:
* Action was in ordinary course of business, or
* Person was authorized to act
In a general partnership, all partners are jointly and severally liable for firm obligations.

79
Q

SETTLING MALPRACTICE CLAIMS

A

Before settling claim or potential claim with current or unrepresented former client, lawyer must:
* Advise them in writing to obtain independent counsel
* Give them reasonable opportunity to do so

80
Q

PROSPECTIVELY LIMITING MALPRACTICE LIABILITY

A

Cannot make agreement with client saying:
* They can’t sue the lawyer
* Lawyer has no responsibility for work
* Lawyer is liable only to certain amount UNLESS client is independently represented.
NOTES

81
Q

MERITORIOUS CLAIMS AND CONTENTIONS- what can a lawyer NOT do

A

Lawyer cannot:
* Bring frivolous claim
* Assert frivolous defense
* Take frivolous position

82
Q

Meaning of Frivolous

A
  • No good faith argument under current law, AND
  • No good faith argument for changing law

Exception:
When representing criminal defendant or one who could be jailed, can make prosecutor prove every element.

83
Q

CANDOR TO THE TRIBUNAL

A

Honesty when advocating before an official or body that issues binding legal judgment.

84
Q

Candor Regarding Law

A
  • Cannot knowingly make false statements of law
  • Must correct unintentional, material false state- ments
  • Must disclose adverse controlling law if opponent fails to
85
Q

Candor Regarding Facts

A
  • Cannot knowingly make false statements of fact
  • Must correct unintentional, material false state-
    ments
  • No duty to volunteer facts (except in ex parte pro- ceedings)
86
Q

False Evidence

A
  • Cannot offer evidence lawyer knows to be false
  • May refuse to offer evidence lawyer reasonably believes is false (except testimony of a criminal defendant)
  • If false evidence offered, must take reasonable remedial measures (supersedes confidentiality)
  • Duty to rectify continues until proceeding is com- pletely over, appeals and all
87
Q

False Testimony by Criminal Defendant Client

A
  • Try to persuade otherwise
  • Consider withdrawal
  • If all else fails, disclose situation to judge
    Note: Some jurisdictions allow narrative testimony, but that is not the ABA approach.
    NOTES
88
Q

FAIRNESS TO OPPOSING PARTY AND COUNSEL-Lawyer Cannot:

A
  • Hide, tamper with, or falsify evidence
  • Make frivolous discovery requests
  • Advise a person not to talk to the other side, UN- LESS the person is the client, the client’s relative, or the client’s agent
  • Make unlawful payments to witnesses
  • Violate a court rule or order (but can openly refuse to obey on the basis that it is not valid)
89
Q

Fairness in Trials

A
  • Cannot allude to anything inadmissible
  • Cannot assert personal knowledge
  • Cannot state personal opinion about justness of cause, credibility of witness, or guilt or innocence of party
90
Q

IMPARTIALITY AND DECORUM OF THE
TRIBUNAL

A
  • Cannot attempt to influence court or jurors in way prohibited by RPC
  • Cannot disrupt proceedings
  • Cannot speak to judge or court officials without other side present
  • Cannot talk to jurors about ANY subject during case
  • Post-discharge interviews of jurors allowed unless juror does not want to talk, or it involves misrepre- sentation, coercion, or harassment
91
Q

TRIAL PUBLICITY

A

No public statement if lawyer should know it is likely to cause material prejudice, including:
* Character or credibility
* Results of examinations
* Whether defendant will plead guilty
* Whether defendant confessed
* Anything inadmissible at trial

92
Q

Trial Publicity-Permitted Statements

A
  • Dry facts of case
  • “They started it”—can make statement to protect client from prejudice caused by another
93
Q

ADVOCATE AS WITNESS

A

Lawyer can’t act as advocate in case where lawyer is likely to be a necessary witness.

If disqualified under this rule, disqualification not imputed to firm but generally need client consent, confirmed in writing, if another lawyer at the firm takes over.

94
Q

Exceptions to disqualify a lawyer who will appear as a witness

A
  • Testimony concerns uncontested matters or for- mality
  • Testimony concerns the nature and value of legal services in the case
  • Withdrawal would cause substantial hardship to client
95
Q

TRUTHFULNESS IN STATEMENTS TO
OTHERS

A
  • Must not knowingly make false statement of mate- rial fact or law to third person
  • Must disclose material fact necessary to avoid helping client commit crime or fraud (BUT must stay within confidentiality rules)
96
Q

COMMUNICATIONS WITH REPRESENTED
PERSONS

A
  • When representing a client in a matter, must get counsel’s consent before talking to represented person about the matter
  • Parties can communicate directly with each other
97
Q

Communications with Organizations

A

Need permission from organization’s counsel to talk to:
* Anyone with authority to obligate organization
* Anyone whose conduct can be imputed to organi- zation
* Anyone who supervises or regularly consults with organization’s lawyer
NOTES

98
Q

COMMUNICATIONS WITH
UNREPRESENTED PERSONS

A
  • Can communicate with unrepresented person, but
    must not act disinterested
  • Must not give unrepresented person legal advice if reasonably possible their interests will conflict with client’s
99
Q

HEAVY-HANDED TACTICS

A

Cannot do something with no substantial purpose other than to embarrass, delay, or burden someone.

100
Q

RECEIVING DOCUMENTS SENT INADVERTENTLY

A

Must promptly notify sender so sender can take pro- tective measures.

101
Q

EVALUATING CLIENT’S AFFAIRS FOR
THIRD PARTY

A

Can evaluate client’s affairs if doing so is compatible with other responsibilities to client.
* No significant risk to client → impliedly authorized to disclose to third party
* Materially harmful to client → client’s informed consent required before disclosure

102
Q

LAWYER AS NEGOTIATOR

A

No false statements of material fact in negotiations, but can “puff” (e.g., on estimates of price or value, or acceptable settlement limits).

103
Q

LAWYER AS THIRD-PARTY NEUTRAL

A

When lawyer acts as mediator, arbitrator, etc., must make sure unrepresented parties understand that law- yer is not representing them.

104
Q

LAWYER AS PROSECUTOR

A

Prosecutors must:
* Have probable cause
* Ensure accused advised of right to counsel, how to get counsel
* Ensure accused given opportunity to get counsel
* Not attempt to get accused to waive important pretrial rights
* Disclose evidence favorable to defendant
* Promptly disclose any new, credible, and material evidence of wrongful conviction
* Try to remedy conviction if clear and convincing evidence of innocence, and conviction in own juris- diction
* Not subpoena other lawyers to give evidence about clients unless evidence is essential, not privi- leged, and cannot be obtained in another way

105
Q

LAWYER APPEARING IN NON-
ADJUDICATIVE PROCEEDING

A

Must disclose if appearing on behalf of client (but need not identify client).

106
Q

LAWYER REPRESENTING ORGANIZATION-Relationship with Constituents

A
  • Duty of loyalty to organization, not people
  • Representing both organization and person in organization requires both to waive with informed consent
  • If interests conflict, lawyer must tell person work- ing for organization they don’t represent them and communications aren’t covered by privilege
107
Q

LAWYER REPRESENTING ORGANIZATION-Violations

A

If counsel learns that someone in organization violated duty or law that may cause substantial harm to organi- zation:
* Counsel normally has duty to report inside organi- zation
* If no action taken, counsel MAY report to outside authority even if confidentiality applies

108
Q

COMMINGLING AND TRUST ACCOUNTS- Safeguarding Property of Others

A
  • No commingling with own property
  • Held to standard of fiduciary
109
Q

COMMINGLING AND TRUST ACCOUNTS-
Trust Accounts

A
  • Firm’s money in office account
  • Client money in trust account, including advance payments (firm can put own money in client trust account for bank services charges only)
110
Q

RECORDKEEPING, NOTIFICATION, AND DELIVERY

A

Lawyer must:
* Keep complete records of all money and property
* Preserve records for five years after representation
* Comply if client requests accounting
* Promptly notify client or third party upon receipt of property in which they have interest
* Promptly deliver property

111
Q

Dispute Between Lawyer and Client

A

Must keep disputed portion in client trust account until dispute resolved.

112
Q

Dispute Between Client and Third Party

A

If third party has a valid claim (e.g., creditor with lien), must keep disputed portion of recovery in client trust account until dispute resolved.

113
Q

communications about legal services must not be false or misleading which is:

A

Must not make false or misleading statements.
- Omitted facts: Misleading if leaves out fact necessary to make communication as a whole not materially misleading.
- Unfounded conclusions: Misleading if substantial likelihood reasonable person will formulate specific conclusion without reasonable factual foundation.
- Unjustified expectation based on past results: Mis- leading if reasonable person could think that lawyer could do as well in a similar case, without regard to facts and law in that case.
- Unsubstantiated comparisons: Misleading if reason- able person would think comparison can be substanti- ated.

114
Q

Communications about legal services-REQUIRED INFORMATION

A

All communications about lawyer or legal services must include:
* Name of at least one lawyer or firm responsible for content
* Contact information (can be phone number, physi- cal office location, email address, or website ad- dress)

115
Q

Communications about legal services-FIRM NAMES, LETTERHEADS, OR OTHER DESIGNATIONS

A
  • Generally can include names of deceased or re- tired partners
  • If named partner is in public office, cannot use name during any substantial period when lawyer is not regularly and actively practicing with firm
  • Trade name misleading if it implies that lawyers are practicing in a firm when they are not (e.g., solo practitioner includes “and Associates” in firm name)
  • Trade name misleading if it implies a connection with a government agency or charity; geographi- cal names may require a disclaimer
116
Q

Communications about legal services-FIELDS OF PRACTICE AND
SPECIALIZATION

A

Lawyer can state that they practice in certain fields, or “specialize in” or “concentrate in” or are a “specialist” in certain fields if statement is based on their expe- rience, specialized training, or education, and is not false or misleading.

117
Q

Communications about legal services-Certified Specialist

A

If lawyer states or implies that they are a certified specialist:
* Must be certified by organization accredited by ABA or approved by state authority
* Must clearly identify certifying organization
NOTES

118
Q

Communications about legal services-RECOMMENDATIONS

A

Generally cannot give or promise anything of value in return for recommendation.

119
Q

Nominal Gifts

A

Permitted if token of appreciation, but not if lawyer already promised it in exchange for the recommen- dation or if there is an expectation of more gifts in the future.

120
Q

Paying for Advertising and Other Services

A

Lawyer can pay:
* Reasonable costs of advertising
* Usual charges of legal service plan
* Cost of participating in nonprofit referral service

121
Q

Reciprocal Referral Agreements

A

Lawyer may agree with lawyer or nonlawyer profes- sional to send clients to each other, but:
* Must not be exclusive
* Shouldn’t be of indefinite duration
* Referred client must be told of agreement

122
Q

SOLICITATION definition

A

Definition: Communication initiated by or on behalf of lawyer and directed to a specific person known to need legal services in a particular matter.

123
Q

Solicitation rule re on Live Person-to-Person Contacts

A

Must not solicit employment by live person-to-person contact when significant motive is money:
* No in-person contact
* No live telephone contact
* No real-time audio or video
Ban applies ONLY when solicitation is motivated by pecuniary gain.
Texts, emails, letters, and recorded messages are all generally permitted because there is no live per- son-to-person contact.

124
Q

Are potential Clients covered by the ban on live person-to-person solicitation?

A

No. Potential clients are not covered by this ban.

Can use live person-to-person contacts when solicit- ing:
* Relatives
* Close friends
* Persons with prior business relationships
* Persons with prior professional relationships
* Other lawyers
* Routine business users of services

125
Q

When All Solicitation Prohibited

A

Regardless of method or identity of potential client, all solicitation is banned in the following circumstances:
* Person has made known to lawyer that they do not want the solicitation
* Solicitation amounts to coercion, duress, or harass- ment
* Specific legal restrictions (civil or criminal penalties)

126
Q

GROUP AND PREPAID SERVICE PLANS

A
  • Lawyer can reach out to organizations about adopting plan
  • Lawyer cannot reach out to potential members
  • Plan can reach out to potential members if not known to need particular legal services
  • Lawyer who owns or directs plan cannot provide legal services through the plan
127
Q

ACCEPTING APPOINTMENTS (pro-bono)

A

Must accept unless good cause not to, such as:
* Appointment would cause violation of law or RPC
* Appointment would be unreasonable financial burden
* Personally unable to represent client effectively

128
Q

How does RPC applies to QUICK-ADVICE PROGRAMS?

A

RPC apply to limited legal service programs (e.g., quick advice hotline), except the conflicts rules are relaxed because there is no time to run a conflicts check. Lawyer only subject to discipline if there was a known conflict problem.

129
Q

MEMBERSHIP IN LEGAL SERVICES
ORGANIZATIONS

A

When serving as a member, director, or officer, lawyer does not have attorney-client relationship with per- sons served by organization, but must not participate in actions that would harm lawyer’s regular clients or persons served by the organization.

130
Q

LAW REFORM ACTIVITIES

A
  • Permitted even if reform will harm interests of cli- ent
  • Must disclose to organization if client may benefit from reform
131
Q

STATEMENTS ABOUT JUDGES AND
PUBLIC LEGAL OFFICIALS

A

Cannot make statements about the qualifications or integrity of judges or public legal officials, or candi- dates for these positions, if such statements are false or made with reckless disregard as to truth or falsity.

132
Q

ABILITY TO INFLUENCE GOVERNMENT
OFFICIALS

A

Cannot state or imply ability to influence government agency or official, or to achieve results in an illegal or unethical way.

133
Q

POLITICAL CONTRIBUTIONS

A

Cannot make a “pay to play” contribution to obtain a government position (rule does not apply to unpaid positions). Whether there is a violation depends on the purpose of the contribution.

134
Q

WHAT GOVERNS JUDICIAL CONDUCT

A

CJC applies to all who perform judicial functions at state level.

135
Q

Judicial Conduct-MAINTAINING INDEPENDENCE AND
IMPARTIALITY

A

Must uphold and promote judiciary’s independence, integrity, and impartiality.
* Must avoid impropriety or even the appearance of impropriety: conduct that creates reasonable perception that judge has violated CJC, or conduct that reflects poorly on judge’s honesty, impartiality, temperament, or fitness
* Letters of recommendation may be on official let- terhead if reference is personal, and not perceived as attempting to exert pressure; otherwise, must not use judicial letterhead for personal business
* Must not abuse prestige of office to advance per- sonal interests, or permit others to abuse it

136
Q

Judicial Conduct-PERFORMING DUTIES IMPARTIALLY,
COMPETENTLY, AND DILIGENTLY

A
  • Must hear and decide all matters assigned, unless disqualification is required
  • Must not let outside interests influence conduct or judgment
  • Must not allow impression that judge can be influ- enced
  • No bias, prejudice, or harassment
  • May encourage settlement, but must not coerce
137
Q

Judicial Conduct-EX PARTE COMMUNICATIONS

A

Definition: Communication between judge and repre- sentative from one side when no representative from other side is present. Usually prohibited.

When Allowed
* Expressly authorized by law or court order
* In mediation or settlement, with consent of parties
* Emergencies (when non-substantive and won’t give one side an advantage)

138
Q

Judicial conduct-Inadvertent Receipt of Ex Parte Communication

A

Judge must promptly notify parties and give opportu- nity to respond.

139
Q

COMMUNICATIONS ABOUT PENDING CASES-Court Personnel and Other Judges

A

Can discuss cases with court personnel and other judges, but must not discuss facts not on the record.

140
Q

COMMUNICATIONS ABOUT PENDING CASES-
Legal Experts

A
  • Advice must be in writing
  • Expert must be disinterested
  • Must notify parties in advance
141
Q

Judicial Conduct-Interfering with Case

A

Judge must not make comments about any case, in any court, that might affect case’s outcome or inter- fere with fair trial.

142
Q

Judicial Conduct-Jurors

A

No commending or admonishing jurors for the sub- stance of their verdict.

143
Q

Judicial Conduct-INDEPENDENT INVESTIGATION

A
  • Must not independently investigate the facts in a case
  • Must consider only the evidence presented
144
Q

Judicial Conduct-DISQUALIFICATION

A

Judge must disqualify self when impartiality might rea- sonably be questioned.

145
Q

Judicial Conduct-Grounds for Disqualification

A
  • Bias or personal knowledge
  • Prior involvement in the case
  • Judge or family member has economic interest
  • Family member is involved in proceeding
  • Excessive contributions to judge’s election cam- paign
  • Judge publicly committed to a position or result
146
Q

Judicial Conduct-Remitting Disqualification

A

Parties can remit (waive) disqualification for all grounds, EXCEPT personal bias against a party or party’s lawyer

147
Q

EXTRAJUDICIAL ACTIVITIES-Teaching, Speaking, Writing, Etc.

A

Judge may be reasonably compensated unless it would reasonably appear to undermine indepen- dence, integrity, or impartiality.

148
Q

EXTRAJUDICIAL ACTIVITIES-
Reporting Requirements

A

Judge must publicly report amount or value of:
* Extrajudicial compensation
* Reimbursement
* Certain gifts, loans, bequests, and other things of value

149
Q

EXTRAJUDICIAL ACTIVITIES–Participating in Organizations

A

Judge may take part in activities sponsored by:
* Organizations concerned with law or administra- tion of justice
* Educational, religious, charitable, fraternal, or civic nonprofits

150
Q

EXTRAJUDICIAL ACTIVITIES-Prohibited Activities

A
  • Cannot participate in activities that would lead to
    frequent disqualification
  • Cannot accept appointment to governmental po- sition or voluntarily testify at a government hear- ing unless it relates to law or the administration of justice
  • Cannot serve as officer, director, manager, general partner, advisor, or employee of a business (excep- tion for personal/family investments and business- es)
  • Cannot testify as character witness, except when duly summoned
  • Cannot be affiliated with organization that practic- es invidious discrimination
  • Cannot serve as executor, administrator, guardian, or other fiduciary (except for family members)
151
Q

Can a full-time judge practice law?

A

Full-time judge must not practice law, unless:
* Appearing pro se
* Giving legal advice to family
* Drafting legal documents for family

152
Q

Can a judge act as a third-party neutral?

A

Full-time judge must not act as arbitrator, mediator, or private judge unless expressly authorized by law.

153
Q

Judicial Conduct-POLITICAL AND CAMPAIGN ACTIVITIES

A
  • Can speak on behalf of own candidacy, but must keep independent from political organizations
  • Cannot make pledges or promises inconsistent with impartial performance of duties
  • Cannot personally solicit campaign contributions
  • Cannot publicly endorse or oppose other candi- dates
  • Can make factually accurate public response to false or misleading statements
  • Judge who becomes candidate for nonjudicial elective office must resign from judicial office
154
Q

Misconduct by Lawyers or Other Judges

A
  • Judge knows -> Must report
  • Judge receives information but isn’t certain ->
    Must take appropriate action
155
Q

Disability or Impairment of Lawyers or Other
Judges

A

Must take appropriate action if judge reasonably believes that lawyer’s or other judge’s performance is impaired by drugs, alcohol, or their mental, physical, or emotional condition.

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