MPRE Flashcards
What are the general requirements to be admitted into the bar
Although different jurisdictions have slightly different requirements the general requirements are 1) Graduation from an ABA-Accredited or State Accredited Law School 2) A finding the applicant is of good moral character; and 3) Passage of one or more entrance exams.
Pro Hac Vice Admission
“For Occassion” - If a lawyer does not wish to go through the process of bar admission in a jurisdiction but would like to represent a client on a particular legal matter there. 1) The other lawyer MUST be licensed in the jurisdiction + activey participate in the representation; and 2) Must understand the rules and procedures of that jurisdiction to ensure competant representation.
Duties of Candor and Cooperation
Through the application process ABA Model Rule 8.1 prohibits a bar applicant from:
1) Knowingly making a false statement of material fact;
2) Failing to disclose a fact necessary to correct a misapprehension known by the applicant to have arisen in the matter; or
3) Knowingly failing to respond to a lawful demand for information from an admissions authority.
An applicant must be forthcoming with any requested information.
Look for conduct affecting moral character + fitness
Lawyer Discipline - Jurisdiction
Lawyers may be subject to professional discipline for violating the rules which have been adopted in that juridiction in which the lawyer is licensed, regardless if the misconduct occured outside that jurisidction or not.
Moving to another jurisdiction does not absolve the duty.
Steps in the disciplinary process
- Complaint filed + investigated by the disciplinary agency; 2. Disciplinary Agency chooses to file charges (formal charge); 3. Hearing is held + decided by the jurisdictional panel; 4. Panel reccomends sanctions (subject to court review).
Steps must be followed for a valid process.
Lawyer Conduct During Disciplinary Process
Duty to Disclose information regarding another’s conduct
Confidentiality
If a lawyer receives a request from a disciplinary authority to provide information about another lawyer’s misconduct, then the lawyer must provide truthful and timely responses or else be in violation of the rules and duties, even if the contacted lawyer is not the target of the investigation. Rule 8.1. However, a lawyer who is representing another lawyer in a disciplinary matter may decline to reveal confidential information learned during the course of the representation.
Public Discipline + 3 Types
For rule violations involving harm or potential harm to clients, third persons, the public, or the legal profession, or for a pattern of minor rule violations that are not necessarily harmful on their own.
- Public Reprimand (or censure) - no restiction on the right to practice law.
- Suspension - restricts a lawyer’s ability to practice law in the jurisdiction for a certain period of time.
- Disbarment - termination of the right to practice law; lawyer can seek readmission to the bar after 5 years upon showing sufficient rehabilitation to resume practice.
Mandatory Reporting
If the following are met, the attorney must report the violation.
1. Knowledge of the rule violation
* it may be inferred where a lawyer is willfully blind to the facts (e.g. firm has a strong suspicion that other lawyers in the firm are committing misconduct).
2. Misconduct raises substantial questions of honestly, truthfulness, and fitness.
3. If information is not protected by confidentiality nor has been gained in connection with a formal lawyer’s assistance program to allow disclosure without breaching confidentiality.
Permissive Reporting
What is in question in permissive reporting?
Where a lawyer does not know for certain that a violation has occurred or where the violation does not raise a substantial question as to fitness.
Even if a lawyer is not required to report an instance of misconduct, a lawyer generally is permitted to report misconduct to a disciplinary authority.
Unauthorized practice of law
The unauthorized practice of law happens where EITHER (1) the lawyer engages in the practice of law in a jurisdiction in which the lawyer is not admitted, OR (2) the lawyer engages in the practice of law while his license to practice is suspended or on inactive status.
Invalid license in the juridiction + inactive license.
Criminal statute prohibiting unauthorized practice of law.
Activities that fall under the practice of law.
The following activities are generally considered to be part of the practice of law:
- Providing legal advice to others;
- Drafting legal documents or agreements for others; and
- Representing others in legal proceedings.
Applying the law to the facts = determinative factor
Appearance of Impropriety
A lawyer in State A has violated State A’s rules of professional conduct.
Who has the power to discipline that lawyer?
The highest court in each jurisdiction In administering discipline, the highest jurisdictional court generally delegates its authority to a specific agency, commission, or other entity.
A lawyer is sued for malpractice in a trial court by a former client.
Which of the following best describes the role of the ABA Model Rules in the malpractice case?
The ABA Model Rules are not automatically adopted as the standard of care in a malpractice case, but they are influential in determining what conduct is considered reasonable or appropriate.
ABA Rules are guidlines, but they are not applied as a standard.
Lawyer A works at a law firm. Lawyer A is not a partner or a manager at the firm, but Lawyer A does supervise some of the junior lawyers.
Which of the following best describes Lawyer A’s responsibilities?
Lawyer A MUST make reasonable efforts to ensure the junior lawyers are following the ethical rules.
Supervisors, even if they are not partners or managers in the firm, must make reasonable efforts to ensure that the persons they directly supervise are following the rules.
*Supervisor will be sanctioned for the failure to make reasonable effort in ensuring compliance, but not for the violation of the junior lawyers.
Temporary Legal Services
1) Where the lawyer associates with another lawyer who is admitted in the other jurisdiction and is actively participating in the case;
2) Where the lawyer has received or expects to receive permission to appear pro hac vice; or
3) Where the lawyer is engaged in work (including an alternative dispute resolution proceeding) that is reasonably related to the lawyer’s practice in a jurisdiction where the lawyer is admitted.
Reasonably related = involves work for an existing client or implicates the lawyer’s area of expertise or specialization.
A lawyer not admitted to practice in a jurisdiction cannot:
4 Exceptions
1) Establish a law firm or have a similiar systemic or continuos presence in that jurisdiction (i.e. advertising or marketing services in that jurisdiction);
2) Make a representation that the lawyer is admitted to practice in that jurisdiction.
Exceptions: TEMPORARY LEGAL SERVICES; INFORMING OTHERS OF NO LICENSE; IN HOUSE COUNCIL (evaluating legal claims prior to litigation or reviewing the terms of an employment contract; NOT adjuticating matters bc that would require a pro hac vice; FEDERAL GOVERNMENT
Does the law firm’s name violate the rules?
Yes, if the name is misleading or false.
- Includes the name of an unassociated lawyer.
- Implies a connection with a government agency or a public legal aid/services organization when no such connection exists.
- Trade name is misleading (i.e. The Winning Law Firm *implying they win every case).
4. Implies connection with a public official during any substantial period in which the lawyer holding the public office is not actively and regularly practicing with the firm
What are the reasonable efforts a partner, managing partner and direct supervisors must take to ensure complaince from junior attornies?
Generally, these reasonable efforts include measures to:
- Detect conflicts of interest (running conflict checks);
- Ensure that lawyers comply with deadlines;
- Safeguard client property;
- Properly supervise junior lawyers; and
- Provide appropriate instruction to nonlawyer assistants on crucial matters such as confidentiality.
Responsibility for Another’s Violation of the Rules
A lawyer is not responsible for another lawyer’s rule violation unless the first lawyer ordered the second lawyer to commit the violation or **knowingly ratified the misconduct. ** (i.e. participated in the violation).
Mere knowledge of another lawyer’s misconduct, without more, is not enough.
Partners, managers, and direct supervisors, however, have additional obligations under Rules 5.1 and 5.3 when they (1) know of lawyer misconduct that has occurred, and (2) the consequences of the misconduct can still be avoided or mitigated at the time they learn of the misconduct. (REASONABLE REMEDIAL ACTION_
If a subordinate acts “in accordance with a supervisory lawyer’s reasonable resolution of an arguable question of professional duty”, then
The subordinate will not be considered to have violated the rules (though the supervisor may have committed a violation).
Applies only where the supervisor’s resolution of the professional duty is reasonable under the circumstances.
A senior associate is supervising a junior associate in a civil case in which the client must respond to a discovery request. The junior associate finds a document that she believes is responsive to the request, but the senior associate instructs her not to produce the document. Unless the senior associate’s decision to withhold the document is a reasonable one given the nature of the discovery request, both the senior associate and junior associate have violated the rules regarding discovery compliance.
