MPRE Flashcards
You have no duty to volunteer facts that might help the other side
BUT in ex parte proceedings you must inform the court of all material facts that will enable it to make an informed decision
You must not charge a contingent fee (1) when representing a defendant in a criminal case or (2) in a domestic relations case
you can in a domestic relations case if collecting a post-judgement balance due under an existing order for child support, alimony, etc.
you may pay the reasonable fees of an expert witness
such fess must never be contingent on the content of the testimony or the outcome of the case
You generally must not have sexual relations with a client
you can if a consensual sexual relationship already existed when the representation started (but still check for a material limitation conflict), can’t have one after either
If you withdraw or are fired, you must refund all unearned fees and expenses that were paid by the client in advance
you generally don’t need to refund a “true retainer” fee (money that was paid by the client solely to ensure you availability)
You generally must not limit your malpractice liability in advance
you can if the client is independently represented in making the agreement
you must communicate the basis or rate of the fee to the client before or within a reasonable time after the representation begins
you don’t need to repeat yourself if you have regularly represented the client in the same type of matter and will be charging the client on the same basis or rate
a judge generally must not testify as a character witness
the judge can do so if duly summoned to testify (i.e. subpoena)
you may refer a client to a lawyer or a non-lawyer professional pursuant to a reciprocal referral agreement
the reciprocal referral agreement must not be exclusive, and the referred client must be informed of the existence and nature of the agreement
Mandatory Reporting of Violation
Substantial question to lawyer’s honesty, trustworthiness, fitness to practice, must be substantial, can’t suspect, must know
Exceptions: if reporting would cause violation of duty of confidentiality to client, learned of violation in lawyer’s assistance program (substance abuse)
You must not bring/defend a frivolous proceeding or take a frivolous position
when representing a criminal defendant (or any client who may be incarcerated), you can require that the prosecutor prove every element
Informed Consent Verbally
Limiting the scope of the representation; their person paying client’s legal fees; providing a materially harmful evaluation of client’s affairs for use by a third party; revealing client’s confidential information or using it to their disadvantage (unless exception applies or otherwise permitted by RPC)
Informed Consent Confirmed in Writing
Most waivable conflicts of interest: direct adversity/material limitation, former client & employment, prospective clients, government work, prior involvement in the matter as judge, arbitrator, etc. (but certain imputed conflicts can be cured with just screening/written notice)
Client’s agreement to fee-splitting arrangement with attorney at different law firm
Informed Consent in writing and signed by client
Business transaction with/pecuniary interest adverse to client; aggregate settlement between clients; contingent fees agreement
Methods of Out-of-State Practice
Associated with locally licensed attorney
Admission pro hac vice (court allows for this matter only)
Mediation or Arbitration related to home state practice
Matter reasonably related to home state practice (real estate example)
Out of State Practice w/o license
In-house counsel or government work
Restricted branches of law (patent prosecution)
Admission requirements
must be rationally related to the practice of law: graduation from an accredited law school, oath to uphold the constitution, good moral character
Effect of Criminal Acts and Other Misconduct on Admission to Bar
To result in rejection, misconduct must involve moral turpitude: crimes involving intentional dishonesty, crimes of violence, lying is always moral turpitude even if not crime
Duty to Cooperate with Character Investigations
No knowingly false statements of material fact, respond to all requests for information, correct any misapprehensions, but not required to disclose confidential information
What is professional misconduct?
Violating rules of professional conduct
Committing crimes relevant to honesty, trustworthiness, or fitness
Committing acts of dishonesty, fraud, deceit, or misrepresentation
Conduct prejudicial to the administration of justice
Harassment or Discrimination in Connection with Law Practice
Unauthorized Practice of Law
Subject to discipline for engaging in unauthorized practice or assisting someone else in unauthorized practice
Practice: appearing at judicial proceeding, drafting documents, negotiating settlements, giving legal advice
Not practice: interviewing people, filling in forms, preparing tax returns
appearing pro se is not unauthorized practice, lawyer can help
Responsibility of partners, managers, and supervisory lawyers
Duty to prevent ethical violations: partners and managers must take reasonable measures to ensure compliance with rules and supervisory lawyers have same duty with respect to subordinates
Vicarious Responsibility: ordered or ratified misconduct or failed to avoid or mitigate consequences of violation
same with non-lawyers
Responsibilities of a Subordinate Lawyer
Acting on orders of another lawyer does not excuse misconduct unless it was a reasonable resolution of an arguable question of professional duty (i.e. whether something was a conflict of interest)
Partnerships with Non-Lawyers
no partnerships with non-lawyers if any partnership activity involves the practice of law, no non lawyer control or ownership interest in firm, no fee splitting with non lawyers
Exceptions to fee splitting with nonlawyers
Death benefits to lawyer’s estate
funds to purchase practice from deceased, disabled, or disappeared lawyer
Bonus plans and regular salaries
court-awarded legal fees to nonprofit that retained or recommended lawyer
