MPRE

Question 1

Who has the inherent power to regulate the legal profession in and out of court?

Answer 1

The courts, namely the highest court in the state, not the state legislator generally promulgates the ethics rules and oversees the discipline of lawyers.

Question 2

What does the Sarbanes-Oxley Act mandate attorneys to do?

Answer 2

The Sarbanes-Oxley Act imposes a mandatory reporting duty when a securities lawyer becomes aware of credible evidence that a client is materially violating a federal or state securities law.

Question 3

Where is attorney-client priviledge usually defined?

Answer 3

Attorney-client privilege is usually defined in a state evidence statute

Question 4

An attorney admitted to practice in several states: which regulation governs the conduct of such attorney?

Answer 4

A lawyer is subject ot regulation by each state in which the lawyer is admitted to practice, regardless of where the lawyer actually practices law or where the lawyer’s conduct occurred. If the rules of the states in which the lawyer is admitted are in conflict, choice of law rules apply.

Question 5

In which cases are crimes sufficient to deny admission to practice law?

Answer 5

The crime in question must involve moral turpitude (Niederträchtigkeit), such as a crime involving intentional dishonesty for the purpose of personal gain or a crime involving violence.

Question 6

What does an applicant have to avoid when applying for admission to the bar?

Answer 6

• knowingly make a false statement
• fail to disclose a fact necessary to correct a misapprehension known by the person in the matter or fail to respond to a lawful demand for information

Question 7

What constitutes professional misconduct?

Answer 7

• Violation of the rules of professional conduct (i.e. violate or attempt to violate, knowingly assisting or induce another to violate or use the acts of another person to commit a violation
• Certain criminal acts
• Dishonesty, Fraud, deceit or misrepresentation
• conduct prejudicial to the amdministration of justice
• stateing or implying ability to improperly influence officials
• assisting a judge in violation of judicial code
• harassment or discrimination in Law practice
  *

Question 8

In which case does an attorney have a duty to disclose misconduct by another attorney?

Answer 8

• knowledge of misconduct
• misconduct must be substantial

Question 9

What are the two exceptions to the duty to disclose?

Answer 9

• Information is protected by the confidentiality rules
• Information was gained while serving as amember of an approved lawyers’ assistance program

Question 10

Explain the choice of law in disciplinary proceedings

Answer 10

• conduct occurred in connection with a proceedings: ethics rules of the jurisdiction of tribunal
• Other conduct: rules of jurisdiction where the conduct ocurred or where the substantial effects of the conduct occured, unless lawyer reasonably believed that conduct had predominant effect in a jurisdiction in which conduct was proper.

Question 11

What are the four exceptions to the prohibition to practice in a jurisidiciton in which the lawyer is not admitted?

Answer 11

• Association with a local lawyer
• Special permission (pro hav vice)
• Mediation or Arbitration arising out of practice in home state
• Temporary practice arising out of practice in home state (reasonably related)

Question 12

What are the two persmissible types of multi-jurisdictional practice?

Answer 12

• lawyers employed by their only client (in-house counsel)
• Legal Services authorized by Federal or Local Law (patent prosecution)

Question 13

What typically constitutes legal practice?

Answer 13

• appearing in judicial proceedings
• engaging in settlement negotiations
• drafting documents that affect substantial legal rights or obligations
• providing tax law advice

Question 14

State an example of activities not constituting law practice

Answer 14

• Fill in the blanks on standard documents related to the sale of real property
• Publish books or pamphlets offering general advice, including DIY books and kits
• Preparing tax returns and answer questions incidental to the preparation of those returns

Question 15

Can legal work be delegated to nonlawyers?

Answer 15

Yes, a lawyer may delegate legal work to paralegals, law clerks, student intern or other such persons. However, the lawyer must supervise the delegates work carefully and remains ultimately responsible for the result.

Question 16

May a lawyer help a person to appear pro se (i.e. a person representing themself)?

Answer 16

Yes

Question 17

In which cases is a partner, manager or supervisory subject to discipline for a disciplinary violation committed by a second lawyer?

Answer 17

• the first lawyer ordered the misconduct
• the first lawyer knew about the misconduct and ratified it.
• Knew about the misconduct at a time when its consequences could still be avoided or mitigated and failed to take reasonable remedial action.

Question 18

Must lawyers follow ethical rules even if they are ordered to do something by a superior? Is there an exception?

Answer 18

Model Rule 5.2
a) A lawyer is bound by the Rules of Professional Conduct notwithstanding that the lawyer acted at the direction of another person.

(b) A subordinate lawyer does not violate the Rules of Professional Conduct if that lawyer acts in accordance with a supervisory lawyer’s reasonable resolution of an arguable question of professional duty.

Question 19

Under which circumstances may a lawyer share his fees (fee splitting) with non-lawyers?

Answer 19

• death benefits permitted to a dead lawyer’s estate or to designated persons
• Compensation and retirement plans for non-lawyer employees
• sale of law practice of a deceased lawyer
• sharing court awarded fees with non-profit organization that hired the lawyer

Question 20

May a law firm employ temporary lawyers through a placement agency without violating the fee-splitting rule?

Answer 20

Yes

Question 21

Can a lawyer form a partnership with a nonlawyer?

Answer 21

Not if any part of the partnership activities will constitute the practice of law.

Question 22

May a lawyer practice in an incorporated law firm or association to practice law if:
* a nonlawyer owns any interest in the firm or association
* a nonlawyer is a corporate director or officer
* a nonlawyer has the right to direct or control the professional judgment of the lawyer

Answer 22

No.

Question 23

May an insurance that pays the fees of attorney X representing party A to direct him or her?

Answer 23

No, a lawyer shall not permit a person who recommends, employs, or pays the lawyer to render legal services for another to direct or regulate the lawyer’s professional judgment in rendering such legal services.

Question 24

Describe the restrictions on the right to practice that are prohibited?

Answer 24

• Restrictive partnership and employment agreements (such as non-compete clauses), except relating to retirement
• restrictive settlement agreements for clients (barring lawyer form bringing similar suits on behalf of other clients
  *

Question 25

Under which circumstancs may a lawyer sell his law practice?

Answer 25

• the seller must cease to engage in the private practice of law or in the sold field of practice in the area where the practice has been conducted
• the entire practice or the entire field of practice must be sold
• written notice must be given to the seller’s clients regarding the sale, the clients’ right to retain other counsel or to take possession of their files, adn the fact that consent to the transfer of the cliens files will be presumed if the client does not take action within 90 days of receipt of the notice.

Question 26

If the lawyer wishing to sell his practice is unable to give notice to his clients about the sale, what does he have to do?

Answer 26

The lawyer must seek a court order authorizing the transfer of representation.

Question 27

May the buyer of a law practice increase the fees?

Answer 27

No.

Question 28

May a buyer of a law firm select the clients he represents?

Answer 28

No, the buyer must accept all client matters in the practice.

Question 29

In which cases are law-related ancillary services provided by lawyers subject to the Rules of Professional Conduct?

Answer 29

Ancillary services such as financial planning, accounting, lobbying, trust services, real estate counseling, providing title insurance and preparing tax returns are subject to the rules of professional conduct if:
* the nonlegal services and legal services are provided together
* nonlegal services are provided by entity that is controlled by the lawyer (unless clients informed that this activity is not covered by rules of professional conduct)

Question 30

When does a lawyer-client relationship arise?

Answer 30

• A person manifests an intent that the lawyer provide legal services and the lawyer agrees (implied assent and reasonable reliance included)
• A tribunal appoints a lawyer to represent a client

Question 31

In which cases does a lawyer have duty to reject a case?

Answer 31

• client’s motive is harassment
• unsupportable factual or legal position
• lawyer not competent
• strong personal feelings
• impaired mental or physical condition

Question 32

Must the fee arrangement be communicated to the client and if so how?

Answer 32

A lawyer must, before or within a reasonable time after commencing a representation, communicate the basis or rate of the fee and the expenses for which the client will be responsible (except in case of routine representation).
Writing is only required (although always recommended) in case of a contigent fee agreement.

Question 33

What factors may be considered to determine whether a fee was reasonable?

Answer 33

• time and labor required
• novelty and difficulty of the quesitons involved
• skill needed to perform the legal services properly
• the likelihood, if apparent to the client, that the work for this client will preclude the lawyer from doing fee-paying work for others
• the fee customarily charged in the locality for similar legal work
• the amount at stake and the results obtained for the client
• the time limitations imposed by the client or the circumstances
• the nature and length of the relationship between the lawyer and the client
• the experience, reputation, and ability of the lawyer performing the services
• whether the fee is fixed or contigent (a contingent fee can be higher because it requires the lawyer to take a gamble)

Question 34

What is the difference between an advance and a retainer?

Answer 34

• An advance is an amount paid in advance for future work. It belongs to the client until the lawyer has actually performed his or her work.
• A true retainer is money that is paid solely to ensure the availability of the lawyer and the lawyer who is fired or withdraws generally need not refund the retainer fee.

Retainer and avance are two terms often used interchangeably to refer to an advance.

Question 35

Contracts to represent with a lawyer are construed against which party?

Answer 35

Since the lawyer is in a fiduciary role, the agreement with the client is construed against him if unclear.

Question 36

Must a lawyer be paid in money?

Answer 36

No a lawyer can be paid in money, shares or even a painting except if the object of payment involves an interest in the cause of action or subject of litigation.

Question 37

In which cases are contigent fee arrangements prohibited?

Answer 37

• Criminal cases
• Domestic Relations Cases (except if it is collection case for past dues under an alimony or support decree).

Question 38

What are the requirements for a contingency fee agreement?

Answer 38

• Contengent fee arrangement must be in writing
• Contigent fee mus be reasonable (not the case if it is expected that the case would settle within a short amount of time)

Question 39

What information is required for a valid contingent fee agreement?

Answer 39

• How the fee is to be calculated, including the percentage that the lawyer will get if the case is settled before trial, won after trial or won after appeal
• What litigation and other expenses are to be deducted form the recovery
• Whether deductions for expenses will be made before or after the contigent fee is calculated
• What expenses the client must pay, whether or not she wins the case.

Question 40

In case of a contigent fee arrangement, what must the lawyer do at the end of the case?

Answer 40

The lawyer must give the client a written statement showing the outcome of the case, the remittance to the client and how the remittance was calculated.

Question 41

What are the remedies available to the attorney in case of a fee dispute?

Answer 41

• lawsuit (cannot use confidential information or harass client)
• Common law or statutory charging lien, under which any recovery obtained for the client serves as security for the lawyer’s fee
• Retaining lien, under which the attorney can retain documents, funds and property of the client until his fee is paid

Question 42

Under which circumstances may a lawyer split his fees with other lawyers?

Answer 42

• Lawyers within the same firm
• Separation and retirement agreement (former partner or associate)
• Lawyers outside firm if (1) total fee is reasonable and (2) the split is in proportion to the services performed by each lawyer or some different proportion if each lawyer assumes joint responsibility for the matter and (3) the client agrees to the split in writing that discloses the share each lawyer will receive.

Question 43

Are referral fees proper?

Answer 43

No, true referral fee, i.e. when a lawyer is not involved at all or no joint responsibility is assumed, are not proper.

Question 44

Which decisions are always reserved for the client.

Answer 44

• Whether to accept a settlement offer
• What plea to enter in a criminal case
• Whether to waive a jury trial in a criminal case
• Whether the client will testify in a criminal case
  Whether to appeal

Question 45

May the lawyer assist the client in crime or fraud.

Answer 45

No. The lawyer may discuss the legal consequences of any porposed course of action.

If continuing to work for the client would imply assisting in the wrongdoing, the lawyer must withdraw.

Question 46

What is the lawyer’s authority to bind the client

Answer 46

• actual authority reasonably believed by the attorney to be expressy or impliedly agreed upon
• Apparent authority: third party’s reasonable belief that attorney has authority (retaining a lawyer is usually enough to create apparent authority)

Question 47

Under which circumstances does an attorney’s authority end?

Answer 47

• the matter is complete
• the lawyer is fired
• the lawyer withdraws
• the client dies
• the lawyer dies or is otherwise unable to continue the representation (disbarment or disability)

In case of apparent authority: it ends when the third party knows or should know that any of these events occurred. The lawyer has a duty to inform a third party about the end of authority if such third party is relying on apparent authority.

Question 48

What are the lawyer’s duties in case of a client with diminished or seriously diminished capacity?

Answer 48

• Lawyer has a duty, so far as possible, to maintain a normal lawyer-client relationship with the client (attention and respect)
• When such client faces a risk of substantial physical, financial or other harm, the lawyer may take reasonable actions to protect the client (including consulting with guardian or organizations); when taking protective action, the lawyer has implied authority to reveal the client’s confidential information, but only to the extent necessary to protect the client.

Question 49

May an attorney withdraw from representing a client for any reason?

Answer 49

An attorney may withdraw from representing a client for any reason if it can be done without material adverse effect on the client’s interests (upcoming deadline, substantial work perfomed etc.) or if the client consents.

Question 50

In the absence of any material adverse effect, in which other circumstances is an attorney permitted to withdraw?

Answer 50

• Client persists in criminal or fraudulent conduct
• Client has used attorney’s services to commit past crime or fraud
• Client’s objective is repugnant or against lawyer’s beliefs
• Client breaks promise to attorney (e.g. fails to pay fees despite warning)
• Financial hardship for attorney
• Client fails to cooperate
• Other good cause

Question 51

What are the duties of the attorney upon termination of the representation?

Answer 51

• Providing the client with reasonable notice of the withdrawal
• Providing the client with time to obtain another attorney
• Refunding attorneys fees paid in advance and not yet earned and expense advances not yet spent
• Returning all papers and property to which the client is entitled

Question 52

What is the difference between attorney-client privilege and the duty of confidentiality?

Answer 52

• Attorney-client privilege is an exclusionary rule of evidence to prevent a court or government entity from compelling the revelation of confidential communications between an attorney and a client
• The ethical duty of confidentiality prohibits an attorney from voluntarily revealing information relating to the representation of a client.

Question 53

What is the information that is covered by the duty of confidentiality?

Answer 53

The ethical duty of confidentiality applies to all information that relates to the representation of the client, regardless of whether it is privileged, whether the client asked for it to be kept in confidence, and whether revealing it might harm or embarrass the client.

Question 54

What information is protected by attorney-client privilege?

Answer 54

Confidential communication between the attorney and client (or the agents of either of them).

Question 55

Communications between whom are covered by the attorney-client privilege?

Answer 55

• Attorney authorized to practice law (or whom the client reasonably believes to be authorized to practice law)
• Client (also prospective clients)
• Corporate clients: high ranking corporate officials

Question 56

What kind of communication is covered by the attorney-client privilege?

Answer 56

Information passed from the client to the attorney and from the attorney to the client (including through agents of either the attorney or the client).

Question 57

What type of information / documents are not covered by the attorney-client privilege?

Answer 57

• Mechnical details of the relationship between the attorney and the client (e.g. fee arrangement, existence of relationship), unless tantamount to revealing a privileged communication
• Preexisting documents and things (if discoverable in client’s hands, discoverable in the attorney’s hands)

Question 58

What is required for information to be protected by attorney-client privilege?

Answer 58

• communication between client and attorney
• communication that is confidential, i.e. it must have been made by a means not intended to disclose the communicated information to outsiders and the communcating person must reasonably believe that no outsider will hear the contents of the statement

Question 59

When does the presence of third-parties destroy confidentiality for the purposes of attorney-client privilege?

Answer 59

• third person present does not play a direct role in the communication or is not present because of the client’s psychological needs
• an unsuspected eavesdropper does not destroy attorney-client privilege

Question 60

Who can waive attorney-client privilege?

Answer 60

Client

Question 61

Can a lawyer be subject to discipline if he does not invoke privilege?

Answer 61

Yes.

Question 62

Name the four exceptions to attorney-client privilege

Answer 62

Privilege does not apply:
* if the client seeks the attorney’s services to engage in or assist a future crime or fraud
* to a communication that is relevant to an issue of breach of the duties arising out of the attorney-client relationship
* in civil litigation between two persons who were formerly the joint clients of the attorney
* in a variety of situations in which the attorney can furnish evidence about the competency or intention of a client who has attempted to dispose of property by will or inter vivos transfer.

Question 63

Explain the work product immunity

Answer 63

Material prepared by a lawyer for litigation in in anticipation of litigation is immune from discovery or other compelled disclosure unless the opposition shows a substantial need for the material and an inability to gather the material without undue hardship.

The lawyer’s mental impressions or opinions are immune from discovery or compelled disclosure regardless of the oppisition’s need unless immunimty has been waived.

Question 64

Is the duty of confidentiality destroyed by the presence of third parties?

Answer 64

No, the information remains confidential even if it is known to others, unless the information becomes generally known (not the case if special knowledge or substantial difficulty or expense is necessary to obtain the information).

Question 65

Name the exceptions to the duty of confidentiality.

Answer 65

• Client’s informed consent
• Implied authority (revealation in the client’s interest during representation)
• Disclosure to prevent death or substantial bodily harm
• Disclosure to prevent or mitigate substantial financial harm (if the client is using the lawyer’s services to do so)
• Dispute concerning attorney’s conduct
• Disclosure to obtain legal advice
• Disclosure to detect and resolve conflicts of interests
• Disclosure required by law or court order

Question 66

What are the requirements for lawyers to disclose limited client information in order to detect and resolve conflicts ahead of a merger of law firms?

Answer 66

• disclosure may be made only after substantive discussions regarding the new relationship have occurred
• the disclosure must be limited to the minimum necessary to detect any conflict of interest
• the disclosed information must not compromise the attorney-client privilege or otherwise prejdice the clients
• the disclosed information may be used only to the extent necessary to detect and resolve any conflicts of interest

Question 67

State the basic rule regarding conflicts of interest.

Answer 67

Absent the necessary informed consent, a lawyer must not represent a client if a conflict of interest exists (not accept or withdraw from the case).

Question 68

What are the three consequences for a lawyer’s failure to handle a conflict properly?

Answer 68

1. disqualification as counsel in a litigated matter
2. professional discipline
3. civil liability for legal malpractice

Question 69

What are the exceptions to imputed disqualification?

Answer 69

• Conflict based on uniquely personal interest of lawyer
• Specific situations involving lawyer’s former dealings if the lawyer’s is properly screened and written notice is given to the affected client

Question 70

A concurrent conflict exists in which two situations?

Answer 70

• The representation will be directly adverse to another client
• There is a significant risk that the representation of one client will be materially limited by the lawyer’s own interest or the lawyer’s responsabilities to another client, a former client or a third person

Question 71

In which situation a lawyer may represent a client despite a concurrent conflict of interest?

Answer 71

• the lawyer reasonably believes that he can competently and diligently represent each affected client
• the representation is not prohibited by law
• the representation does not involve asserting a claim by one client against another client represented by that lawyer in the same litigation
• each affected client gives informes consent, confirmed in writing

Question 72

Define informed consent

Answer 72

The affected client consents after having been made aware of all the relevant circumstances, reasonable alternatives and foreseeable ways the conflict might harm her.

Question 73

Explain how consent confirmed in writing operates

Answer 73

1. There is a tangible or electronic record that is physically or electronically signed by the client
2. there is an oral consent that is promptly memorialized in a tangible or electronic record that is promptly sent to the client.

Question 74

Give two examples of direct adversity

Answer 74

• opposite sides
• client in one case and opponent in other case
• vigorously cross-examining a client as a witness in a different case

Question 75

Give at least two examples of situations when there is a material limitation

Answer 75

• Co-parties (more problematic in criminal than in civil cases; not applicable in transaction matters)
• Representing two clients with inconsistent legal positions in two unrelated cases
• Conflicts caused by lawyer’s own interest
• Conflicts raised by liability insurance

Question 76

What are the four steps to follow for handling multiple representation conflicts?

Answer 76

1. The lawyer must analyze the facts and reach the conclusion that she can effectively represent both clients despite their potentially conflicting interests
2. The potential conflict must be disclosed
3. Clients may provide their informed consent to the joint representation (confirmed in writing)
4. If the potential conflict eventually ripens into a present conflict, the lawyer must repeat those steps; she must withdraw if a reasonable lawyer would have teo advise either of the clients not to consent; a lawyer may only continue to represent one of the parties with the informed consent of the other former client.

Question 77

What problem arises from joint representation?

Answer 77

The clients may not claim attorney-client privilege if they ever go to litigation against each other.

Question 78

May a lawyer use the client’s confidential information to the client’s disadvantage?

Answer 78

No, a lawyer may not use information relating to the representation to the client’s disadvantage, unless the client gives informed consent or some other exception applies. This also applies to the information of former or prospective clients.

Question 79

Under which conditions may a lawyer enter into a business transaction with a client (does not apply to standard commercial transactions like buying a car or using banking services)?

Answer 79

• the terms of the business transactions are fair to the client
• the terms are fully disclosed to the client in writing and expressed in a manner that the client can reasonably understand (including the essential terms and the lawyer’s role in the transaction)
• the client is advised in writing that he should get the advice of an indepedent lawyer (unless the client already has indepedent counsel)
• the client gives informed consent, in a writing that the client signs

Question 80

May a lawyer obtain a proprietary interest in the subject of litigation?

Answer 80

No, unless:
* contigent fee
* attorney’s lien

Question 81

What are the rules relating to substantial gifts from clients?

Answer 81

• A lawyer must not solicit a substantial gift form a client who is not a relative
• A lawyer may not prepare a legal instrument (such as a will or a deed of property) that creates a substantial gift to the lawyer, except when the donor is one of the lawyer’s relatives

Question 82

May a lawyer acquire literary or media rights concerning the client’s case?

Answer 82

A lawyer must not acquire literary or media rights to a story based in substantial part on information relating to the lawyer’s representation of a client.

He may do so after the client’s legal matter is entirely completed.

Question 83

May a lawyer provide financial assistance to client in litigation?

Answer 83

• a client may advance court costs and other litigation expenses on the client’s behalf and repayment may be contingent on the outcome of the case
• A lawyer may pay the court costs and litigation expenses for an indigent client, without any repayment
• A lawyer representing an indigent client pro bono may provide modest gifts to the client for food, rent, transportation, medicine and other basic living expenses

Question 84

What is the lawyer prohibited from doing if he provides modest gifts to indigent pro bono clients?

Answer 84

• lawyer may not promise or imply the availability of such gifts prior to retention or as an inducement to continue the client-lawyer relationship after retention
• lawyer may not seek or accept reimbursement from the client or anyone affiliated with the client
• a lawyer may not publicize or advertise a willingness to provide such gifts to prospective clients

Question 85

Under which circumstances may a lawyer participate in the making of an aggregate settlement agreement (an agreement in which an opposing party seeks to settle all claims of multiple clients for a lump sum)?

Answer 85

• Clients must have come to an agreement among themselves about how the aggregate sum will be shared
• The lawyer must disclose to each client all of the terms of the aggregate settlement

Question 86

Under which circumstances may a lawyer receive compensation from a third person for representing a client?

Answer 86

• the client gives informed consent
• the third person does not interfere with the lawyer’s independence or the representation of the client
• the arrangement does not compromise the client’s confidential information

Question 87

May a lawyer continue representing client after having started a sexual relationship with the client?

Answer 87

Only if the sexual relationship existed before the representation.

Question 88

May a lawyer represent a client against a former client?

Answer 88

A lawyer must not represent one client whose interests are materially adverse to those of a former client in a matter that is substantially related to the matter in which the lawyer represented the former client, unless the former client gives informed consent, confirmed in writing.

Question 89

When are two matters considered “substantially related”?

Answer 89

Matters are “substantialyl related” if
* they involve the same transaction or legal dispute
* there otherwise is a substantial risk that confidential factual information as would normally have been obtained in the prior representation would materially advance the new client’s position

Question 90

May a lawyer represent a person against a client of the lawyer’s former firm?

Answer 90

A lawyer whose firm formerly represented a client in a matter and who acquired protected confidential information may not thereafter represent another person in the same or a substantially related matter if that person’s interests are materially adverse to those of the former client (unless the former client gives informed consent, confirmed in writing).

Question 91

May a firm represent a client that a new lawyer is disqualified form representing?

Answer 91

If a lawyer who is disqualified form representing a client joins a new firm, the new firm may be disqualified as well, unless the lawyer is properly screened and does not share fees from the matter and the former client is given notice.

Question 92

May a lawyer’s former firm represent interests materially adverse to those of a client of the formerly associated lawyer?

Answer 92

A lawyer’s former firm is prohibited from representing a person with interests materially adverse to those of a client of the formerly associated lawyer if
1. the matter is the same or substantially related to that in which the formerly associated lawyer represented the client
2. a lawyer remaining in the firm has information protected by the Rules that is material to the matter

Question 93

May a lawyer work on the same matters in private practice after leaving a government position?

Answer 93

Except when expressly permitted by law, a lawyer who leaves government service and enters private practice must not represent a private client in a matter in which the lawyer participated personally and substantially while in government service, unless the government agency gives informed consent, confirmed in writing

Question 94

Under what circumstances is the firm of a lawyer who formerly worked for the government disqualified to work on a matter?

Answer 94

Everyone in the lawyer’s firm is also disqualified unless (1) the lawyer is timely screened from the matter and (2) the lawyer is not apportioned any part of the fee earnied in the matter

Question 95

May a government lawyer negotiate for private employment with a party or a lawyer representing that party?

Answer 95

When a person in government service is currently working personally and substantially on a matter, she must not negotiate for private employment with any party or lawyer who is involved in the matter. Law clerks may do so, but they must notify the judge before negotiating.

Question 96

May a lawyer represent a person if he had previously obtained confidential information during a consultation with another prospective client?

Answer 96

A lawyer who obtains confidential information during a consultation with a prospective client must not later represent a different person in the same or a substantially related matter if the confidential information could significantly harm the prospective client.

Question 97

Define the duty of competence

Answer 97

When representing a client, a lawyer must act competently, i.e., with the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.

Question 98

What is the mnemonic that describes what a lawyer should do if he does not feel competent?

Answer 98

ALE:
* Associate with somebody competent
* Learn in time
* Emergency: you can help your client in an emergency even if you are not competent

Question 99

May a lawyer be subject to discipline for a single violation of the duty of competence, diligence and promptness?

Answer 99

Yes, a single instance of misconduct is sufficient for disciplinary proceedings.

Question 100

What is the attorney’s standard of care owed to his client (for the purpose of the tort of negligence)?

Answer 100

The standards of care for an attorney is the duty and diligence normally exercised by attorneys in similar circumstances.

An attorney that has held out to the client to be a specialist will be held to a higher standard.

Errors of judgment are not subject to liability if they were well-informed and reasonably made.

Question 101

Describe a major challenge a client faces when suing an attorney for malpractice.

Answer 101

It is often difficult to prove that the harm would not have been suffered but for the attorney’s breach of his duty of care.

Question 102

Is a lawyer liable for the injuries caused by a negligent legal secretary, law clerk, paralegal or employee associate when acting within the scope of employment.

What about the injuries caused by a negligent partner?

Answer 102

A lawyer is liable for the negligent condut of its employees (vicarious liability).

Partners of a general partnership are jointly and severally liable for the negligence of another partner committed in the ordinary course of the partnership business.

Question 103

May a lawyer prospectivly agree with a client to arbitrate all malpractice claims?

Answer 103

Yes, provided such an agreement is proper under local law and the client understands the scope and effect of the agreement.

Question 104

What are the requirements to settle malpractice claims with an unrepresented client?

Answer 104

• lawyer must first advise the client in writing to seek advice of an independent lawyer
• lawyer must give the client a reasonable chance to obtain such advice

Question 105

May a lawyer seek a waiver of malpractice liability from a client?

Answer 105

A lawyer must not make an agreement with a client that prospectively waives or limits the lawyer’s liability for legal malpractice, except in the unlikely event that the client is actually independently represented in making the agreement.

Question 106

A lawyer is subject to discipline for bringing a frivolous proceeding or for asserting a frivolous position. Define what constitutes a frivolous position.

Answer 106

A “frivolous” position is one that cannot be supported by a good faith argument under existing law and that cannot be supported by a good faith argument for changing the existing law. However, it is not frivolous:
* to assert a position without substantiating all the facts first
* to assert a position knowing that vital evidence can be uncovered only through discovery proceedings
* to assert a position even though the lawyer believes that the position will not ultimately prevail

Question 107

May a lawyer put forward a plea of not guilty for a defendant if he/she knows that the client is guilty as charged?

Answer 107

A lawyer is not subject to discipline for putting the prosecution to its proofs and requiring every element of the case to be proven beyond a reasonable doubt.

Question 108

Define the duty of candor to the tribunal

Answer 108

An attorney :
* must be candid about the law that applies (no false statements about the law and duty to disclose controlling authority that is directly adverse)
* must not knowingly make false statements of fact or failing to correct previsouly made false statement of material fact

Question 109

Does the duty of candor require an attorney to disclose harmful facts?

Answer 109

No, an attorney has no obligation to volunteer a fact that is harmful to his client’s case (except in ex parte proceedings).

Question 110

May an attorney refuse to offer evidence that he suspects to be false?

Answer 110

A lawyer may refuse to offer evidence that he reasonably believes is false, except for a criminal defendant’s testimony on his own behalf. He is only subject to discipline if he offers evidence knowing that it is false.

Question 111

What must a lawyer do if she discovers that she offered evidence that is false?

Answer 111

• Speak to client urging his cooperation in withdrawing or correcting the false evidence
• Seek court’s approval to withdraw from representation
• If withdrawal of evidence / case is not permitted, lawyer must disclose the situation to the judge (duty supersedes duty of confidentiality)

Question 112

May a lawyer call a client to the stand if he knows that the client will make a false testimony?

Answer 112

Civil case: cannot call client to stand; if subsequent discovery, duty to take remedial steps

Criminal case: client has a right to take the stand (6th Amendment), but ABA Solution:
* convice client not to testify falsely
* consider withdrawal from representation
* reveal situation to judge (who must decide what to do)

Note that some states (New York/California) allow testimony in “narrative fashion” allowing a defendant to read out a prepared statement rather than answering questions by the lawyer.

Question 113

Name at least three aspects of the duty of fairness

Answer 113

• No unlawful obstruction of access to evidence
• no falsification of evidence or assistance in perjury
• no abusive discovery procedures
• do not pay witnesses (except for expenses, and loss of time as well as expert witnesses fees )
• do not secure absence or noncooperation of witnesses
• Do not violate court rules and orders
• No chicanery at trial (referring to inadmissible material, asserting personal knowledge of contested facts, asserting personal opinions)
• No threats to gain advantage in civil case

Question 114

In which situation may a lawyer advise a person not to voluntarily give information to an opponent?

Answer 114

• The person is a client, or a relative, employee or agent of a client
• the lawyer reasonably believes that the person’s interests will not be harmed by not volunteering the information

Question 115

What type of public statements is a lawyer allowed to make during a trial?

Answer 115

• a statement that the lawyer should reasonably know to have no “substantial likelihood of materially prejudicing the case”
• right of reply to protect the client from the substantial undue prejudicial effect of recent publicity not initiated by the lawyer or the lawyer’s client
• statements about “dry facts of the case” (names of people invovled, schedules, etc.)

Question 116

In which situations may a lawyer take the stand as a witness?

Answer 116

• uncontested matter or mere formality
• testimony about legal services rendered in the case (at the fee setting hearing)
• Substantial hardship to client (to obtain different counsel)

Question 117

Does a lawyer have a duty of truthfulness in his dealings with a third party?

Answer 117

When dealing on behalf of a client with a third person, a lawyer must not knowingly make a false statement of law or material fact.

However, a lawyer does not have a general duty to inform a third person of relevant facts.

Question 118

What is the difference between misrepresentation and conventional puffery?

Answer 118

• a misrepresentation occurs when a lawyer makes a statement knowing that it is false, when the lawyer affirms or incorporates a statement knowing that it is false, when the lawyer states something that is partly true but misleading, or in some contexts when the lawyer fails to speak or act
• Under generally accepted conventions in negotiation, certain types of statements ordinarily are not taken as statements of material fact (e.g. estimates of price or value placed on the subject of a transaction or intention as to the settlement of a claim)

Question 119

May a lawyer speak to an opposing party directly if that party is represented by counsel?

Answer 119

A lawyer must not communicate about the matter with a person the lawyer knows is represented by counsel, unless that person’s counsel consents, or unless the law or a court order authorizes the communication.

This includes talking to the following officers of a company represented by counsel without consent of the organization’s counsel (or person’s personal counsel’s consent):
* a person who supervises, directs, or regularly consults with the organization’s lawyer about hte matter at hand
* a person whose conduct may be imputed to the organization for purposes of criminal or civil liability
* a person who has authority to obligate the organization concerning the matter

Question 120

In which cases is a lawyer allowed to communiate directly with a represented party?

Answer 120

The exclusion of communication with represented parties does not apply:
* when the communication is authorized by law or court order or when the communication does not concern the subject of the representation
* when the represented persons communicate directly with each other (does not apply to the lawyer who represents himself)

Question 121

What does a lawyer have to do when dealing with an unrepresented opposing party?

Answer 121

When dealing with an unrepresented person, a lawyer must not state or imply that the lawyer is disinterested. When the lawyer knows, or reasonably should know, that the unrepresented person misunderstands the lawyer’s role in the matter, the lawyer must make reasonable efforts to correct the misunderstanding.

If the lawyer suspects a conflict with the interests of his client, he must not give legal advise to that unrepresented party.

Question 122

What tactics must a lawyer avoid?

Answer 122

In representing a client, a lawyer must not use means that have no substantial purpose other than to embarass, delay or burden a third person.

A lawyer must not use methods of obtaining evidence that violate the legal rights of a third person.

Question 123

What is the ABA rule regarding documents sent to lawyers by mistake (other rules may apply)?

Answer 123

According to the ABA Rule 4.4(b), when a lawyer obtains such a document, and when she knows or reasonably should know that it was sent by mistake, she must promptly notify the sender so that the sender can take protective measures.

Question 124

What is the rule(s) when giving advice?

Answer 124

When acting as advisor to a client, a lawyer must exercise independent judgment and render candid advice.

A lawyer may give advice other than legal advice.

A lawyer may give unsolicited advice when a client is planning a course of action that will have substantial adverse legal consequences.

Question 125

What rules apply when a lawyer is asked to provide an evaluation for the use of a third person?

Answer 125

• lawyer must reasonably believe that making the evaluation is compatible with the lawyer’s other responsabilities to the client
• if the lawyer knows or should know that the evaluation will materially harm the client, the lawyer must obtain the client’s informed consent before making the evaluation

Question 126

What particular duty does a lawyer have when acting as a third-party neutral (arbitrator, mediator)?

Answer 126

A lawyer acting as a third-party neutral must clearly explain to the parties unfamiliar with the process that he does not represent any of the parties and that attorney-client privilege does not apply to communications between them.

Question 127

May a lawyer act for a party that was previously a party in an arbitration where he acted as arbitrator?

Answer 127

A lawyer who serves as a third-party neutral in a matter must not thereafter become the lawyer for anyone involved in the matter, unless all of the parties give their informed consent, confirmed in writing.

However, no conflict arises when a lawyer who served as partisan arbitrator for a party is later asked to become that party’s lawyer.

Question 128

Name three special responsabilities of a prosecutor

Answer 128

• no prosecution without probable cause
• duty to protect the accused’s right to counsel
• no solliciation of a waiver of important pretrial rights
• timely disclosure of all evidence and information known to the prosecutor that tends to negate the guilt of the accused or mitigate the degree of the offense
• disclosure of all unprivileged mitigating information known to the prosecution
• no public statements about pending matters “that have a substantial likelihood of heightening public condemnation of the accused”
• disclosure of evidence that remedy conviction
• no subpoena of another lawyer to give evidence about a client or former client that is privileged or essential and can be obtaine in another way.

Question 129

Explain the Brady Rule

Answer 129

A prosecutor must timely disclose to the defense all evidence and information known to the prosecutor that tends to negate the guilt of the accused or mitigate the degree of the offense.

Question 130

What must a lawyer due when appearing before a group that acts in a rule-making or policy-making capacity?

Answer 130

The lawyer must disclose that he is acting in a representative capacity if he appears on behalf of a client (that she is not obliged to disclose).

Question 131

What is a particular duty of a lawyer representing an organization?

Answer 131

A lawyer who represents an organization owes a duty of loyalty to the organization, not to the people who are its constituents.

If there is a conflict between the organization and its constituents, the lawyer must advise the constituent in question that the lawyer’s duty is to the organization and that the constituent should obtain independent legal counsel (no attorney-client privilege).

Question 132

Describe the duties of an attorney acting for an organization if he learns that persons associated with the organization have acted or are about to act in a way that violates a duty to the organization or a law in a way that might be imputed to the organization and such violation might cause substantial injury to the organization.

Answer 132

In that case, the lawyer must proceed as is reasonably necessary to protect the interests of the organization:
* Duty to report to higher authority of the organization
* Discretion to report to appropriate person outside of the organization if highest authority fails to act (supersedes duty of confidentiality), if the lawyer reasonably believes that the reporting is necessary to prevent substantial injury to the organization

Question 133

May a lawyer act both as a director and a lawyer?

Answer 133

Yes, the ABA Rules do not forbid a lawyer from serving both as a director of an organization and as its lawyer, but the dual role may give rise to conflicts (no attorney-client privilege for director role)

Question 134

What is the primary duty of a lawyer who receives money or property belonging to the client?

Answer 134

• lawyer must not steal it, borrow it or put it to his own use
• lawyer must keep it separated from the lawyer’s own money and property (no commingling of funds)
• lawyer must hold property with the care required of a professional fiduciary (i.e. keep small items in bank safe deposit box)

Question 135

What does a lawyer need to do with money received in connection with a representation?

Answer 135

• must be held in client trust fund account, separate from lawyer’s own personal or business account
• account must be located in the state where the lawyer practices, unless the client consents to having it elsewhere
• lawyer must not put his own money in such account, unless it is to pay banking fees

Question 136

What happens with the interest earned on the client’s money in a client trust fund account?

Answer 136

• large sums held for a long period: should be put in separate, interest-bearing account; interest belongs to the client
• small sums: usually put in a pooled client trust account; interest goes to the bar association’s charitable legal programs

Question 137

If there is a dispute over funds, is the lawyer entitled to transfer these funds to his personal account?

Answer 137

If there is a dispute over funds, the lawyer must keep the disputed portion in the client trust account.

Question 138

What is the basic rule regarding communication about legal services?

Answer 138

A lawyer is subject to discipline for any type of communication about the lawyer or the lawyer’s services that is false or misleading.

This rules applies to all kinds of communications, including advertisements, personal communications, office signs, professional cards, professional announcements, letterheads, brochures, letters sent by post or e-mail and recorded telephone messages.

Question 139

Name at least three types of false or misleading communications.

Answer 139

• Outright falsehoods
• Omitted facts (a communication can be true but misleading if it omits a fact that is necessary to make the communiction as a whole not materially misleading)
• Unfounded conclusions (substantial likelihood that the communication will lead a reasonable person to formulate a specific conclusion about the lawyer)
• Unjustified expectations (particularly based on past results)
• Unsubstantiated comparisons

Note that depending on the circumstances, the inclusion of an appropriate disclaimer or other qualifying language may preclude a finding that the advertisement is misldeading to the public.

Question 140

What information must any advertisement or other communication about the legal services include?

Answer 140

Name and contact information of at least one lawyer or law firm responsible for the communication’s content

Question 141

What are the types of information that a lawyer may publicly disseminate?

Answer 141

• information concerning the name of the lawyer or her firm, including the address, e-mail, website and phone number
• kinds of services the lawyer will undertake
• basis on which fees are determined, including prices for specific services and payment and credit arrangements
• lawyer’s foreign language ability
• names of references
• other information that might invite the attention of persons seeking legal assistance

Question 142

What are the rules regarding firm names and letterheads?

Answer 142

• Can include current, deceased and retired partners
• May not include the name of lawyers who hold public office during any substantial period in which the lawyer is not regularly and actively practicing with the firm
• Must not imply connection with public or charitable organization
• Must not imply that there lawyers practice in a partnership if they are not practicing together as one law firm (may use “associates”)

Question 143

What is the requirement for a lawyer who wants to advertise himself as a certified specialist?

Answer 143

• the lawyer has in fact been certified as a specialist by an organization approved by teh ABA or by an appropriate state authority
• the name of the certifying organization is clearly identified in the communication

Question 144

What are the rules regarding recommendations?

Answer 144

A lawyer must not compensate, give anything of value or promise to give anything of value to a person for recommending the lawyer’s services, except:
* to pay for advertising and other services (reasonable costs of permitted advertising and usual charges for legal service plans, not-for-profit lawyer referral service and qualified (i.e. approved) lawyer referral service)
* to purchase a law practice
* for a reciprocal referral agreement
* to give a nominal gift or gratuity not intended or reasonably expected to be a form of compensation for recommendation

Question 145

What are the rules regarding a reciprocal referral agreement?

Answer 145

A lawyer may permitted to set up a reciprocal referral agreement with another lawyer or with a nonlawyer professional (someone belonging to a professional body that requires a high level of proficiency) if:
* the agreement is not exclusive
* the referral client ist told about the agreement
* the agreement does not interfere with the lawyer’s professional judgment as to making referrals or providing substantive legal services
* the agreement is not indefinite and is reviewed periodically

Question 146

What consitutes solicitation?

Answer 146

A solicitation is a communication initiated by a lawyer or firm that is directed to a specific person the lawyer knows or reasonably should know needs legal services in a particular matter, and that offers to provide, or can reasonably be understood as offering to provide, legal services for that matter.

Question 147

What are the rules regarding solication?

Answer 147

• No solicitation by live person-to-person contact (unless no financial motive or soliciation of other lawyers, family, friends or prior business partners or professionals that routinely use legal services)
• Written, recorded or electronic solicitation is generally permitted
• No soliciation allowed if person made it known that she does not want to be solicited by the lawyer or if the solicitation involved coercion, duress or harassment

Question 148

What are the rules regarding group and prepaid legal service plans?

Answer 148

• A lawyer may personally contact the sponsoring organization
• Lawyers are permitted to participate in a group or prepaid legal service plan, even though the plan uses live person-to-person contacts to enroll membership or sell subscription provided the personal contact is not undertaken by the lawyer and the plan only contacts persons who are not known to need specific legal services in a particular matter
• lawyer must reasonably assure that the plan sponsors are in compliance with advertising and solicitation rules

Question 149

What has the Supreme Court said about communication about legal services?

Answer 149

The Supreme Court has recognized lawyer advertising as commercial speech protected by the First and Fourteenth Amendments, holding that a state may adopt reasonable regulations to insure that lawyer advertising is not false or misleading, but may not flatly prohibit all lawyer advertising.

Question 150

Regulation regarding attorney advertising is subject to which type of scrutiny?

Answer 150

Because attorney advertising is commercial speech, regulation of it is subject to only intermediate, rather than strict scrutiny. This means:
* the government must assert a substantial interest in support of its regulation
* the government must demonstrate that the restriction on commercial speech directly and materially advances the interest
* the regulation must be narrowly drawn

Question 151

What is the rule regarding pro bono work?

Answer 151

Every lawyer has a professional responsability to provide legal service to people who cannot pay for it.

The ABA recommends that every lawyer should spend 50 hours per year on pro bono work.

Question 152

What is the rule regarding court appointments to represent indigent clients and clients with unpopular causes?

Answer 152

• A lawyer must not seek to avoid such an appointment except for good cause
• A lawyer must decline a court appointment if to accept would require the lawyer to violate a law or disciplinary rule
• A lawyer may seek to be excused from an appointment if to accept it would impose an unreasonable financial burden on the lawyer
• A lawyer may seek to be excused from a court appointment if the lawyer finds the client or the cause so repugnant that the lawyer-client relationship would be impaired or the lawyer could not represent the client effectively

Question 153

Which rule of professional ethics does not apply during “quick advice” offered through a state court or a nonprofit organization?

Answer 153

A lawyer-client relationship exists between the lawyer and the person who obtains the quick advice, but neither person expects the relationship to continue past the quick advance stage.

All ethics rules apply, except for conflict of interest rules, unless the lawyer actually knows that giving the quick advice creates a conflict of interest.

Question 154

May a lawyer make public statement about public legal officials?

Answer 154

A lawyer must not make a statement that the lawyer knows is false about the qualifications or integrity of a judge, hearing officer, or public legal official, or about a candidate for a judicial or legal office. The same applies to statements made with reckless disregard as to truth or falsity.

Question 155

May a lawyer make public statements about his ability to improperly influence a government agency or official or to achieve results by means that violate the law or legal ethics rules?

Answer 155

No.

Question 156

What are the rules regarding “pay to play” contributions?

Answer 156

A lawyer or firm must not accept a government legal engagement or an appointment by a judge if the lawyer or firm makes or solicits a political contribution for the purpose of obtaining such employment or appointment.

Question 157

What is the basic rule that judges must follow?

Answer 157

A judge must uphold and promote the independence, integrity and impartiality of the judiciary at all times and avoid both actual impropriety and the appearance of impropriety.

Question 158

In which cases are ex parte communications permitted?

Answer 158

• when expressly authorized by law (e.g. in spezialized courts)
• with the consent of the parties in the context of mediation or settlement discussions
• in an emergency (required by the circumstances, concerning an emergency or a schedulign or administrative matter distinct from a substantive matter, the judge must notify the other party of the essence of the communication and give an opportunity to respond)

Question 159

May a judge investigate the facts of a case on his own or receive information that is not part of the record?

Answer 159

No.

Question 160

What type of facts must the judge disclose to the parties?

Answer 160

The judge should disclose on the record any information the judge believes that the parties or their lawyers might consider relevant to the question of disqualification, even if the judge believes there is no reasonable basis for disqualification.

Question 161

Explain the rule of necessity.

Answer 161

Case law has created a rule of necessity that overrides the rules of disqualification (e.g. only available judge, all judges equally affected). In such cases, the judge may still hear the case but needs to disclose the ground for disqualification on the record and should use reasonable efforts to transfer the matter to a different judge as soon as possible).

Question 162

Name three grounds for disqualification.

Answer 162

• Judge served a material witness in the matter
• Judge served as a lawyer in the matter
• Judge was associated in law practice with a person who participated substantially as a lawyer in the matter at the time they practices together
• Judge presided over the matter in another court
• Judge served in governmental employment and in such capacity participated personally and substantially as a lawyer or public official in the matter or expressed an opinion about it.

Question 163

A judge must disqualify himself if he knows that he, either as an individual or as a fiduciary, has an economic interest in the matter or in one of the parties. This also applies when the interest is held by the judge’s spouse, domestic partner, parent or child or any other member of the judge’s family residing with him.
How is economic interest defined?

Answer 163

Economic interest means that a person owns more than a de minimis (insignificant interest that raises no reasonable questions regarding the judge’s impartiality) legal or equitable interest. Exceptions:
* Mutual funds
* Securities held by an organization that the judge is a member of
* Bank deposits, mutual insurance policies
* government securities

Question 164

When does a judge have to disqualify himself due to the involvement of a family member in the proceedings?

Answer 164

A judge must disqualify himself if the judge knows that he, his spouse or domestic partner, or a person within the third degree of relationship (not a cousin) to either of them, or the spouse or domestic partner of such person, is:
* a party, or an office,r director, general partner, managing partner or trustee of a party
* a lawyer in the proceeding
* a person with more than a de minimis interest that could be substantially affected by the proceeding
* likely to be a material witness in the proceeding

Question 165

Can parties waive the grounds of disqualification?

Answer 165

The parties and their lawyers may remit/waive all of the gounds of disqualificaiton, except personal bias concerning a party or a party’s lawyer.

Question 166

Can a judge appear as a character witness?

Answer 166

No

Question 167

May a judge participate in educational, religious, charitable, fraternal or civic organizations and activites?

Answer 167

A judge may take part in activities sponsored by organizationr or governmental entities concerned with the law, the legal system, or the administration of justice, and those sponsered by or on behalf of educational, religious, chartiable, fraternal, or civic organizations not conducted for profit.

However, a judge must not hold memberhsip in an organization that practices invidious discrimination based on race, sex, gender, religion, national origin, ethnicity, or sexual orientation.

Question 168

May a judge accept gifts?

Answer 168

A judge must not accept gifts, loans, bequests, benefits, or other things of value if acceptance thereof is prohibited by law or would reasonably appear to undermine the judge’s independence, integrity, or impartiality.

Question 169

May a full-time judge act as arbitrator, mediator or pviate judge or practice law?

Answer 169

A full-time judge must not act as an arbitrator, mediator, or private judge unless expressly authorized by law.
A full-time judge may also not practice law. He may, however, act pro se and may give legal advice without compensation to a member of his family (without acting as a lawyer in any forum).

Question 170

What are the requirements for a waiver of the grounds of disqualification?

Answer 170

• judge discloses on the record the ground for disqualification
• lawyers consult privately with their respective clients
• all of the parties and their lawyers meet, outside the presence of the judge, and agree that the judge should not be disqualified. the agreement must be incorporated into the record
• if the judge is willing to do so, she may then proceed with the case.

Question 171

May a judge solicit campaign contributions?

Answer 171

A judge or judicial candidate must not personally solicit or accept campaign contributions other than through a campaign committee.