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MPRE Flashcards

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1
Q

A court may order an attorney to disclose any info protected by…

A

duty of confidentiality that is NOT subject to the attorney client privilege

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2
Q

Can a lawyer reveal confidential info to settle a dispute bw lawyer and client?

A

yes! a lawyer can reveal confidential info to settle a dispute bw lawyer and client

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3
Q

Can a lawyer reveal confidential info to prevent a client’s future criminal act unrelated to lawyer’s services?

A

NO, a lawyer may not reveal confidential info to prevent a client’s future criminal act unrelated to lawyer’s services

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4
Q

When can a lawyer represent opposing parties in the same lawsuit?

A

NEVER

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5
Q

How do you determine if a conflict exists bw current and former client?

A
  1. Look at scope of prior representation
  2. Could lawyer have obtained info from prior representation?
  3. Would info be useful to current litigation?
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6
Q

noisy withdrawal

A

The method by which a lawyer is permitted to resign If the organization does not correct a violation of the law

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7
Q

A lawyer who knows of a violation of law that will likely result in substantial injury to a corp may…

A

refer the matter to the highest authority of the corporation

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8
Q

The lawyer represents a corporation, not the corporation’s…

A

constituents (e.g., officers, directors, employees).

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9
Q

A lawyer may not contact a person that the lawyer________________ _________________ is represented by counsel

A

reasonably believes

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10
Q

A lawyer may not _____________ a person who is unrepresented by counsel

A

contact

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11
Q

Confidential info (for purposes of the ethical rules)

A

Any info relating to representation of a client, REGARDLESS of source

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12
Q

Attorney-client privilege

A

Protects confidential comms bw attorneys and clients from disclosure.

Ask: 1) Was comms in q bw attorney and client? 2) Was the comms confidential?

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13
Q

What info is covered by duty of confidentiality?

A

Any info obtained directly from the lawyer’s representation of their client is covered by the duty of confidentiality

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14
Q

Do lawyers have a general ethical obligation to report crimes they know of?

A

NO! Lawyers do NOT have any general ethical obligation to report crimes of which they have knowledge.

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15
Q

Does the crime-fraud exception to the duty of confidentiality apply to a crime committed by a non-client?

A

NO!

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16
Q

Would a lawyer be subject to discipline for failure to report a crime?

A

NO - lawyers don’t have any duty to report crimes they know about

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17
Q

crime-fraud exception

A

Permits a lawyer, in her discretion, to disclose info about a crime without subjecting herself to discipline for violating her duty of confidentiality

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18
Q

2 exceptions when an attorney can reveal confidential info:

A

(1) client expressly gives informed consent
OR
(2) disclosure is impliedly authorized to carry out representation.

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19
Q

Can the work product doctrine overcome a federal subpoena?

A

Yes an attorney should refuse to provide documents created under the work-product doctrine

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20
Q

Does attorney-client privilege to a company apply to underlying facts that an attorney discovered?

A

Not unless they come from confidential conversations with the client (or their employees)

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21
Q

Can facts from records and interviews with 3P be covered by attorney client privilege?

A

Nope

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22
Q

Can facts from records and interviews with 3P be covered by the work product doctrine?

A

Nope

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23
Q

Does revealing info related to client representation if the attorney believes it is necessary to respond to a court order, violate the duty of confidentiality?

A

Not if the attorney follows procedure.

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24
Q

How must an attorney respond to a court order (subpoena) requiring disclosure of confidential info?

A

Attorney must:
1) reasonably try to notify client and get informed consent to disclose
2) If client doesn’t consent, attorney should assert, on client’s behalf, all nonfrivolous claims the court’s order isn’t authorized or info is protected by attorney-client privilege or other law.
3) If court rejects these arguments, attorney must consult with client about appeal.
4) If no appellate review is sought, attorney may disclose.

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25
Q

Attorneys in a law firm may disclose to each other info relating to a client of the firm, unless…

A

a client has instructed that particular info be confined to specified lawyers

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26
Q

An attorney MAY reveal info related to representation that the attorney reasonably believes is necessary to prevent, mitigate, or rectify…

A

a substantial financial or property-related injury that has resulted, or is reasonably certain to result, from a crime or fraud furthered by client’s use of attorney’s services.

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27
Q

When is an attorney impliedly authorized to use or disclose confidential client info?

A

if it is appropriate to do so as part of the attorney’s representation

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28
Q

Can attorneys within a firm may disclose a client’s confidential info to one another as part of representation without a client’s consent?

A

Yes UNLESS client gave instructions that info should be shared only with specific attorneys, or ethical rules require attorneys be screened from representation to avoid conflicts of interest.

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29
Q

Attorneys within a firm may disclose a client’s confidential info to one another as part of representation, unless…

A

1) client gave instructions that info should be shared only with specific attorneys, or
2) MRPC require some attorneys be screened from representation to avoid conflicts of interest.

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30
Q

Does a client control the means or objective of representation?

A

Client controls only the objective of representation, not the means.

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31
Q

May a client have concerning the means of representation?

A

Yes, lawyer must consult with a client concerning the means of representation.

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32
Q

How does the MPRC suggest a disagreement be resolved?

A

MPRC do not state how to resolve a disagreement.

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33
Q

What should a lawyer do if they believe a client with diminished capacity is not acting in the client’s own best interests?

A

Lawyer can seek appointment of a guardian or conservator. They may NOT override client’s decision on the objective of representation, even if they believe it is in the client’s best interest

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34
Q

When can a client who retained a lawyer terminate the lawyer’s representation?

A

Any time, even without cause.

  • even if the client hasn’t paid all the fees yet!
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35
Q

If accepting a case would create substantial financial hardship for a lawyer, is the lawyer required to reject representation?

A

NO. A lawyer MAY reject representation, but isn’t required to reject representation.

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36
Q

If accepting a case would require the lawyer to assert a frivolous claim, is the lawyer required to reject representation?

A

YES

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37
Q

If accepting a case would create a conflict of interest with an existing client, is the lawyer required to reject representation?

A

YES

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38
Q

$ separation rule for lawyers

A

A lawyer is obligated to segregate clients $ and lawyers $.

No co-mingling!

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39
Q

As a defense attorney, when can you NOT let your client testify?

A

if you KNOW his testimony will be false

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40
Q

When is an attorney required to disclose adverse case law from the highest court in the state ?

A

only AFTER opposing counsel fails to disclose it

41
Q

Is a lawyer allowed to represent a new client if their interests are materially adverse to a former client’s interest in the same or a substantially related matter?

A

NO, unless the lawyer obtains the former client’s informed consent, confirmed in writing.

It doesn’t matter if this happened yesterday or 20 years ago! It’s not allowed w/o consent

42
Q

If a client has adequate notice client-lawyer relationship was terminated (decades ago) , can a lawyer represent a new client with interests are materially adverse to a former client’s interest in same or a substantially related matter?

A

Nope!!! Not unless lawyer obtains former client’s informed consent, confirmed in writing.

43
Q

When can a lawyer accept payment from a 3P for representation from someone other than the client?

A

If (1) client gives informed consent (verbal or writing),
(2) there’s no interference with lawyer’s professional judgment or client-lawyer relationship, and
(3) client-lawyer confidentiality is preserved.

44
Q

Can a 3P pay for a client’s representation if payment was conditioned on attorney’s agreement not to pursue a legal strategy that results in liability for the company?

A

NO!!! this condition would interfere with attorney’s professional judgment, so it’s improper

45
Q

Is a lawyer with supervisory authority over a nonlawyer subject to discipline for failing to reasonably ensure nonlawyer conformed to lawyer’s professional obligations?

A

YESSS

46
Q

What is judicial duty of impartiality and fairness as it relates to interpreting and applying the law?

A

A judge has an obligation to interpret and apply the law without regard to if the judge approves or disapproves of the law in question.

47
Q

Can a judge act on good faith belief to dismiss a indictment bc she disapproved of a law?

A

NO!!

48
Q

Can a judge disregard a law if judge is personally opposed to it?

A

NO! Judges must uphold and promote the integrity of the judiciary. Disregarding laws creates impression that judges are above the law.

49
Q

When is a client-lawyer relationship formed?

A

if a prospective client reasonably believes a relationship has been created

50
Q

Does giving legal advice to a prospective client create a client-lawyer relationship?

A

No BUT giving legal advice can form the basis for a nonclient’s reasonable belief that a client-lawyer relationship has formed, esp if belief is combined with other conduct that implies existence of a relationship.

51
Q

Is a writing or explicit agreement required to form a client-lawyer relationship?

A

NO! No formal writing, explicit agreement (like a representation agreement) is required to form a client-lawyer relationship

52
Q

Is a payment of a fee for legal services required to form a client-lawyer relationship.

A

No! No payment of a fee for legal services is required to form a client-lawyer relationship.

53
Q

Can lawyers pay non-lawyers to recommend them?

A

NO!!!! You can’t just pay your client to recommend you to other clients. You can’t pay them a percentage fee.

Exception: you can pay lead generating services to get a ton of leads if you never communicate directly

54
Q

Can you give a non-lawyer a referral fee to recommend you?

A

No.

55
Q

Can you share fees with non-lawyers?

A

No.

56
Q

Can you compensate people for giving you leads?

A

ONLY IF compensation is NOT based on money generated from client fees you get if they sign on with you.

57
Q

If a client is using your services in furtherance of fraud, you CAN disclose confidential info to someone else if:

A

(1) it reasonably will result in another’s substantial financial injury, or
(2) to prevent reasonably certain death or substantial bodily harm.

58
Q

What can a lawyer do if they realize a client is using his services to break the law?

A

Send notices of withdrawal and disaffirmance of documents

59
Q

What should a lawyer do if his client testifies falsely in front of a tribunal?

A

The lawyer must disclose that the info is false to the tribunal, even if info is confidential

60
Q

When, broadly, does a judge need to disqualify himself?

A

In ANY proceeding where judge’s impartiality may reasonably be questioned, like if judge has a personal bias or prejudice about a party or a party’s lawyer, or personal KNOWLEDGE of facts in dispute

61
Q

When does a judge need to disqualify himself in terms of financial interests?

A

If judge or his families have a FINANCIAL interest in the proceeding or their family members are connected to the proceeding in ANY way.

62
Q

In terms of judicial disqualification, if there’s no issue with judge’s bias or prejudice what should judge do?

A

Judge can state on the record basis for disqualification and let parties and their lawyers consider OUTSIDE PRESENCE of judge and court personnel if to waive disqualification.

63
Q

Must judge state basis of his disqualification on the record?

A

YES! he does.

64
Q

Must the judge allow the parties to have a chance to talk about disqualifying outside his presence?

A

YES, the judge must let the parties a chance to talk about disqualifying him outside the presence of the judge himself.

65
Q

What must you do if you want to waive or limit a lawyer’s legal malpractice liability?

A

BE INDEPENDENTLY REPRESENTED

66
Q

If a lawyer has their client sign a waiver prospectively limiting their legal malpractice liability…

A

this is only allowed if the client is independently represented by another lawyer.

67
Q

If a lawyer does something that is solely to embarrass, delay, or burden a 3P…

A

Not allowed.

68
Q

If a lawyer does something that has no substantial purpose other than to embarrass, delay, or burden a 3P…

A

not allowed.

69
Q

What duty does a lawyer have if someone accidentally sends you ESI you weren’t supposed to receive?

A

You must notify the sender.

70
Q

Can a lawyer be part of a committee to change laws?

A

Yes! But if one of their client’s may benefit from a decision they made in committee they must: DISCLOSE they have a client, but they don’t have to disclose the identity of the client

71
Q

Can you have a contingency fee in a crim matter?

A

nope!

72
Q

Can you have have a contingency fee in a family law matter?

A

Nope!

73
Q

lawyer’s duty of confidentiality

A

prohibits lawyer from disclosing client’s confidential info w/o the client’s consent, implied authorization, or applicable exception

74
Q

If an attorney opens a business account with $ for office expenses, then deposits an $5k advance from his client into that account, is this okay?

A

NO!!!! Impermissible comingling! Attorney will be subject to discipline

  • Even if funds were combined for only three days.
75
Q

Can a lawyer practicing law as a sole proprietorship be considered a law firm?

A

YES! a lawyer practicing law as a sole proprietorship falls within the definition of a “law firm.”

76
Q

Does a lawyer’s communications regarding fees and expenses have to be written?

A

NO! Only contingency fee arrangements must be written

77
Q

What should a lawyer do with advanced legal fees?

A

lawyer must deposit advanced legal fees into a client trust account to be withdrawn by lawyer only as fees are earned during representation.

78
Q

In civil litigation, what should a lawyer do with evidence that the lawyer reasonably believes is false?

A

They MAY refuse to offer it into evidence, but don’t have to

79
Q

When does a lawyer owe a duty of care to a non-client?

A

If (1) lawyer knows a client’s primary objective is to benefit nonclient
(2) duty to nonclient won’t impair lawyer’s duties to client, and
(3) absence of a duty to a nonclient would make it unlikely lawyer could perform duties owed to client.

80
Q

When is a lawyer who lacks legal knowledge, skill, thoroughness, and prep reasonably necessary to represent a client, subject to discipline?

A

If the lawyer
(1) declines or withdraws from the representation,
(2) achieves competence by reasonable preparation, or
(3) associates with other lawyers of established competence.

81
Q

3 rules for law firm names:

A

(1) names of all or some of its current members
2) names of deceased members if there’s been a succession in firm’s identity, or
(3) a trade name if not false or misleading.

82
Q

A lawyer must generally report misconduct by another lawyer if?

A

conduct is a substantial violation and reporting lawyer has actual knowledge of misconduct.

83
Q

Does a lawyer have a duty to accept representation of a client?

A

A lawyer is generally not under a duty to accept representation of a client.

84
Q

Can a client and lawyer agree to limit the scope of the lawyer’s representation?

A

YES! A client and a lawyer may agree to limit the scope of the lawyer’s representation.

85
Q

Can recusal of a judge be waived?

A

YES Recusal may be waived by parties, even in cases of mandatory recusal.

86
Q

Can a judge run a non-family business?

A

NO! NO! NO!

87
Q

When can a lawyer can give professional advice to a nonlawyer?

A

If the nonlawyer’s
(1) employment requires legal knowledge or
(2) authorized by the law of a jurisdiction to provide particular law-related services.

88
Q

litigation privilege

A

Gives lawyers an absolute defense to a defamation for the publication of matters relating to a nonclient if certain requirements are met. Only for civil liability - no protection from discipline under the rules of professional ethics.

89
Q

abusive and unruly conduct

A

Conduct beyond zealous advocacy of the client’s position. Ie - a motion accusing a judge to be unethical

90
Q

reciprocal referral agreement

A

A lawyer agrees to refer clients to another lawyer or a nonlawyer professional in return for that person referring clients to the lawyer. Must be: non-exclusive and for a definite duration

91
Q

What duty does a lawyer owe a client at termination of the relationship?

A

A lawyer MUST take reasonable steps to the extent reasonably practicable to protect the client’s interests. Ie - responding to pending discovery or asking court for additional time to respond before a deadline expires.

92
Q

When can names of regularly represented clients be communicated in a lawyer’s ads for legal services?

A

ONLY IF the lawyer obtains the clients’ consent.

93
Q

Do the Model Rules of Professional Conduct impose a requirement or professional responsibility on a lawyer to provide pro bono services?

A

Professional responsibility, NOT requirement

94
Q

When can lawyer solicit employment by live person-to-person contact?

A

If the person is:
(1) a lawyer,
(2) a person who has a close personal relationship, family, or prior business or professional relationship with the soliciting lawyer, (prior client) or
(3) a person who routinely uses for business purposes type of legal services offered by lawyer.

95
Q

Can an attorney who helped a client pro-bono, offer to represent the client on another claim for a contingency fee?

A

YES!

96
Q

When can a former client settle a claim or potential claim against a lawyer for malpractice?

A

If the client is:
1) advised IN WRITING of the desirability of seeking independent legal counsel and (2) given a reasonable opportunity to seek such advice.

97
Q

What is the rule for aggregate settlements?

A

A lawyer may make aggregate settlement only if each P consents in WRITING after lawyer consults with each P and discloses:
(1) nature/extent of all claims and pleas (settlement amt received by each P) and
(2) participation of each party in the settlement.

98
Q

Rule for disputed fees

A

If lawyer gets $ from a client that lawyer’s fees needs to be paid and client disputes amount, lawyer must
1) keep disputed fee amount separate in a client trust account until dispute is resolved and
2) promptly distribute undisputed funds to client and/or lawyer.

99
Q

JUDGES can join an org, but…

A

it
1) CAN’T INTERFERE WITH JUDICIAL DUTIES

2) GROUP CAN’T PRACTICE BEFORE THE JUDGE’S COURT

MPRE (3 decks)

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