MPRE Flashcards
고객에게 직접적으로 악영향을 주는 판결이나 “controlling jurisdiction”으로부터 나온 판결이나 관련 규정을 변호사가 인용하지 않았다면 징계의 대상이 되나?
YES
A lawyer must not communicate about a matter with a person who is represented by another lawyer in the matter, unless that other lawyer consents.
YES
Discovery에서는 반드시 상대방 변호사가 요청한 증거를 제출해야 한다.
YES
An attorney must notify the other side of adverse factual evidence.
No, an attorney has no duty to notify the other side of adverse factual evidence, unless of course, the opponent has made a proper discovery request for the information.
An attorney must not reveal confidential information even if she reasonably believes necessary to prevent reasonably certain death or substantial bodily harm.
No, an attorney MAY reveal confidential information to the extent she reasonably believes necessary to prevent reasonably certain death or substantial bodily harm. (must가 아님)
In the malpractice action, P must prove by a preponderance of the evidence that he was innocent of the underlying criminal offense.
Yes
double jeopardy 주장을 fail한 것은 malpractice의 원인이 되지 않는다.
No, 된다.
A lawyer is prohibited from entering into a partnership with a nonlawyer including the partnership activities which do not constitute the practice of law.
No, prohibited if the partnership activities constitute the practice of law (법률 관련된 일을 하면서 nonlawyer와 파트너쉽을 형성해서는 안된다)
A lawyer may solicit business through an intermediary (a prepaid legal service program or an approved lawyer referral service).
Yes
When a lawyer appears before a nonadjudicative body on behalf of a client, he may not disclose that he is acting in a representative capacity.
No, when a lawyer appears before a nonadjudicative body on behalf of a client, he MUST disclose that he is acting in a representative capacity. (현명주의)
A lawyer must not represent a private client in a matter in which the lawyer has earlier participated personally and substantially while serving as an arbitrator.
Yes
A lawyer must not represent a private client in a matter in which the lawyer has earlier participated while serving as an arbitration panel.
No, arbitration panel is ok.
Judges are (___ or not) prohibited from making public statements in the course of their official duties or from explaining for public information the procedures of the court.
not
다른 로펌에 있는 변호사와 fee를 split할 수 있는 조건
(1) total fee 가 reasonable
(2) 각 변호사가 받을 share가 명시되어 있어야 하고,
(3) both lawyers either work (이게 제일 중요함) the case (if not, at least) OR assume joint reponsibility, and
(4) client의 informed, written consent가 있어야 함.
A lawyer must withdraw if the lawyer’s physical or mental condition will materially impair his ability to represent the client regardless of what client wants.
Yes
A prosecutor may comment on a D’s failure to testify like Fifth Amendment privilege.
No, a prosecutor is prohibited from commenting on a D’s failure to testify like Fifth Amendment privilege.
A lawyer must not state a personal opinion as to the credibility of a witness.
Yes
A lawyer’s belief that the D is guilty is a sufficient reason to turn down a court appointment.
No
Even if some of those other clients might take their work elsewhere in the future, that would not create the kind of immediate unreasonable financial burden that would justify a lawyer in rejecting the court appointment.
Yes
When a lawyer has served as a third-party neutral b/w two conflicted parties, he can later represent one of the parties in that matter w/o both parties’ informed, writeen consent.
No, when a lawyer has served as a third-party neutral b/w two conflicted parties, he cannot later represent one of the parties in that matter unless both parties give informed, writeen consent.
A lawyer may make a reciprocal referral agreement with another lawyer, or with a non-lawyer professional, if the agreement is NOT exclusive and the referred person is told about the agreement.
Yes
Reciprocal referral agreement may be indefinite in duration.
No, reciprocal referral agreement should NOT be indefinite in duration.
Reciprocal referral agreement does not require to be in writing.
Yes
A lawyer must not give something of value for a referral based on reciprocal referral agreement.
No, reciprocal referral agreements are one of four exceptions to the general rule that a lawyer must not give something of value for a referral.
A lawyer or law firm from accepting an appointed legal engagement if the lawyer or law firm makes a political contribution for the purpose of obtaining or being considered for that kind of leagal engagement.
Yes
Dispensation(like pro bono) of legal advice does not constitute the “practice of law”.
No, dispensation(like pro bono) of legal advice constitutes the “practice of law”.
Lawyer’s duty of confidentiality covers the duty that a lawyer should not tell his wife about his clients’ legal troubles.
Yes
A lawyer does not need to be licensed in order to dispense legal advice at a walk-in legal clinic.
No, a lawyer needs to be licensed in order to dispense legal advice at a walk-in legal clinic.
A law student or similar unlicensed person can work at a walk-in legal clinic under the close supervision of a lawyer.
Yes
Real estate brokerage business is not a “law-related service”.
No, real estate brokerage business is a “law-related service”.
A lawyer must follow the rules of legal ethics in her real estate brokerage work as well as her law work.
Yes, because real estate brokerage business is a “law-related service”.
Face-to-face pitches do not violate the no-solicitation rule if her statements are truthful and not misleading.
No, face-to-face pitches violate the no-solicitation rule even if her statements are truthful and not misleading.
회사를 대리하는 변호사는 반드시 회사의 이익을 위하여 노력을 해야 하며, 만일 회사에 악영향을 끼치는 일이 있다고 합리적으로 믿는다면 회사의 higher authority나 highest authority(if necessary, 최고 의결기관)에 보고를 해야 한다. 만일 보고를 하였으나 회사의 최고의결기관이 적절하게 대응하는데 실패한 경우 부적절한 대응이 회사에 심각한 피해를 줄 것이라고 합리적으로 믿는다면 외부에 알릴 수 있다. 법위반사실을 조사하고, 회사와 임원을 방어하기 위하여 고용된 변호사는 외부에 보고할 의무가 없다.
Yes. 그것이 duty of confidentiality에 의하여 보호되는 정보라 하더라도 보고 의무를 가진다.
Two ways to overcome a prospective client conflict
(1) Obtaining informed, written consent from BOTH the affected client and the prospective client. (비밀정보의 누설에 영향을 받는 고객(상담만 한 고객)과 prospective client의 informed written consent가 있다면 conflict가 극복될 수 있으며,)
(2) (i) Demonstrate that the lawyer who held discussions with the prospective client took care to avoid exposure to any more confidential information than was necessary to determine whether to represent the prospective client (prospective client를 변호할 것인지를 결정하는데 필요한 부분만큼만 비밀정보를 누설할 수 있도록 하고,)
(ii) Demonstrate that the disqualified lawyer is timely screened from any participation in the matter and will not share the fee (but he may take his ordinary salary or partnership share); and
(iii) Give written notice to the prospective client.
(disqualified lawyer(상담한 변호사)가 그 사안에 대하여 참가하지 못하도록 그리고 수임료도 공유할 수 없도록 되고, 서면통지한다면 prospective client를 변호할 수 있다.)
A lawyer may decide the plea to be entered w/o consluting her client.
No, a lawyer shall abide by the client’s decision whether to accept an offer of settlement as well as the PLEA to be entered.
The client must be informed when the attorney-client relationship has ended so it is clear that the lawyer is not monitoring the situation.
Yes
A lawyer may not abide by the client’s decision whether to take the stand and testify in a criminal trial because it is trial strategies.
No, a lawyer MUST abide by the client’s decision whether to take the stand and testify in a criminal trial.
A lawyer may usually make the decision as to trial strategies.
Yes
Litigation decisions the client has the ultimate authority to make
SJPT
(1) whether to accept or reject a Settlement offer; or in a criminal case, (2) Jury trial waiver, (3) entering a Plea, or (4) Testifying at trial.
A lawyer may refuse to take on the appeal if the representation agreement excluded any appeal.
Yes
Fee splitting arrangement b/w lawyers not in the same firm may be improper unless the fee distribution is proportional to the work performed.
No, it is not necessary that the fee be proportional to the work performed if the client approves and both lawyers either work the case or assume reponsiblility for the case.
In order for there to be legal malpractice liability there must be a breach of the representation contract or a failure to exercise reasonable care.
Yes
Offering to refer a potential client to another lawyer is conclusive on the question of malpractice.
No, offering to refer a potential client to another lawyer is NOT conclusive on the question of malpractice.
In an emergency, a lawyer may make a best effort until it is possible to locate a more competent practitioner.
Yes
A lawyer must attend classes provided by the State Bar Association.
No, to maintain competency in thier area of parctice, a lawyer must keep abreast of relevant changes in the law regardless of where that knowledg is obtained.
If the lawyer had a reasonable belief that the client had a legal right to refuse to answer, discipline would not be imposed.
Yes
Violation of a Rule may give rise to a cause of action against a lawyer or create presumption in such a case that a legal duty has been breasched.
No, violation of a Rule should NOT itself give rise to a cause of action against a lawyer NOR should it create ANY presumption in such a case that a legal duty has been breasched.
The client must sign the original contingent fee agreement.
Yes
The lawyer does not need to present the client upon conclusion of the contingency a detailed written statement containing cost allocations.
No, the lawyer MUST present the client upon conclusion of the contingency a detailed written statement containing cost allocations.
It is not necessary that the client sign the written statement presented by the lawyer at the conclusion of the contingency.
Yes, 그냥 보면 되지 sign할 필요까지는 없다.
Suspedning the D’s right to affimatively defend upon the issue of experation of the statutory period is not a determinant decision in the case which at least requires client consultation and non-objection.
No, suspedning the D’s right to affimatively defend upon the issue of experation of the statutory period IS a determinant decision in the case which at least requires client consultation and non-objection.
A lawyer’s representation of a client does not constitute an approval of endorsement of a clent’s political, economic, social, or moral views.
Yes
Civil malpractice liability: Damage required?
Ethical Violations: Damage required?
Civil malpractice liability: Damage required (Nominal damage included)
Ethical Violations: Not
The most basic criteria of the contingency fee?
time and effort
The trial court lawyer will not be liable for malpractice in not raising the issue of double jeopardy at the beginning of the second trial.
No, LIABLE!!
The P must prove but for the lawyer’s malpractice the damages would not have occured.
Yes
Because a lawyer shall not counsel or assist a client in perpetrating illegal conduct, even good faith consultation on how to gain the legal standing necessary to challenge the law is improper.
No, while a lawyer shall not counsel or assist a client in perpetrating illegal conduct, good faith consultation on how to gain the legal standing necessary to challenge the law is NOT improper.
A lawyer shall not make an agreement prospectively limiting the lawyer’s liability to a client for malpractice unless permitted by law and the client is independently represented.
Yes (변호사는 고객과 수임계약을 할 때 고객이 독립적으로 다른 변호사에게 조력을 받지 않는 상태에서 malpractice에 대한 자신의 책임을 제한하는 agreement를 체결할 수 없다.)
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 a matter in which the lawyer represented the former client (unless the former client gives informed, written consent).
Yes (former client와의 conflict 는 substantially related matter에 대해서만 발생한다.)
Clients must agree to wait for research and relief of their legal problem until another client appears who has the same legal problem.
–> discipline?
No
A lawyer may accept compensation for representing a client from one other than the client if the client gives informed consent.
Yes
Disclosure must not be made even if a U.S. District Court signs an order requiring an attorney to disclose.
No, disclosure may be made IF a U.S. District Court signs an order requiring an attorney to disclose.
A lawyer becoming involved in an aggregate settlement of multiple clients who would share as Ps must receive written consent and inform them all of the total settlement and the amount EACH client will receive.
Yes, 다수의 원고에게 다른 사람이 받게 될 금액까지도 알려야 한다.
Confidential client information may not be shared internally within the law firm for consultation or in preparation for trial.
No, confidential client information MAY be shared internally within the law firm for consultation or in preparation for trial.
The client’s specific direction not to disclose the contributors’ identities will override the general rule that confidential client information may be shared internally within the law firm for consultation or in preparation for trial.
Yes. 이런 경우 알리면 안된다.
원칙적으로 하면 안되는 business relationship을 할 수 있는 조건
TIC requirement
(1) Terms reasonable and fair,
(2) Independent counsel (advised in writing, actual representation is not necessary), and
(3) Consent in writing
A lawyer must not disclose client confidential information even if necessary to establish a defense to a criminal charge based upon conduct in which the client was involved.
No, a lawyer MAY disclose client confidential information if necessary to establish a defense to a criminal charge based upon conduct in which the client was involved.
The attorney client privilege applies to in court testimony concerning client communications.
Yes. 이것이 ethical duty of confidentiality 와의 차이점이다. 즉 privilege는 증거법의 위법증거배제의 법칙에 해당하며, 법원은 attorney-client privilege에 해당하는 대화는 증거로 사용하지 못하게 하나, ethical duty of confidentiality은 변호사가 고객을 대리하면서 알게된 모든 정보를 자발적으로 발설하지 못하게 하는 것이다.
A law firm must not receive an equity interest from a client for a fee even if it is reasonable in amount and the business transaction of receiving the ownership interest meets all three TIC requirements.
No, a law firm MAY receive an equity interest from a client for a fee AS LONG AS it is reasonable in amount and the business transaction of receiving the ownership interest meets all three TIC requirements.
A lawyer serving as a corporate director while simultaneously advising the board about a matter in which her law firm’s interest may be adverse is under a conflict of interest requiring some affirmative actions.
Yes, 변호사는 그들의 conflict를 mitigate할 수 있는 조치를 취해야 한다. 아무것도 안하면 discipline받는다!
A lawyer may solicit s substantial gift from a client.
No. A lawyer may NOT solicit s substantial gift from a client.
A lawyer may accept a gift from client if the transaction meets general standards of fairness.
Yes
A lawyer who engages in a sexual relationship with a client that predated the legal representation is subject to discipline.
No. A lawyer who engages in a sexual relationship with a client CONCURRENT with legal representation is subject to discipline.
A lawyer who engages in a sexual relationship with a client is subject to discipline and any client waiver is ineffective.
Yes
A lawyer shall not use information relating to the representation of a client even if the client gives informed consent.
No. A lawyer shall not use information relating to the representation of a client UNLESS the client gives informed CONSENT.
The prohibition on use of information relating to the representation of a client only applies if such us would disadvantage the client.
Yes
A lawyer must disclose the confidential information when it is necessary to prevent a client from continuing a fraud in the future that is reasonably certain to result in substantial injury to the financial interests of another.
No. A lawyer MAY disclose the confidential information when it is necessary to prevent a client from continuing a fraud in the future that is reasonably certain to result in substantial injury to the financial interests of another. 따라서 이러한 경우에 아무 것도 안한 변호사에게 discipline은 없다.
A lawyer for one government unit does not represent any other affiliated upstream broader government control organization.
Yes. 하지만 현재 변호하고 있는 것이 아니라 그 직원으로 일하고 있는 경우, 한쪽의 변호사가 되어 상대쪽을 상대로 소송을 진행할 수 있다.
Representation at a flat hourly rate must be in writing.
No.
보험회사와 가입자 둘을 모두 대리하는 경우의 conflict 문제
양 당사자는 conflict를 waiver하는 거. 하지만 future conflict까지 waiver하는 건 아니다.
원칙적으로 변호사는 고객을 대신하여 비용을 지급하거나(advance)나 재정적으로 고객을 지원해서는 안된다.
Yes
(예외) litigation expenses
A living and medical care advances to a client is proper.
No
Guaranteeing a bank loan to a client is improper.
Yes
Court costs must not be paid for indigent clients.
No, court costs MAY be paid for indigent clients even if the funds will not be repaid.
Death is not the equivalent to or a substitute for consent regarding confidentiality.
Yes
When the client(a insured person) admitted her initial report was false, the lawyer does not have to file a motion seeking permission to withdraw.
No. When the client admitted her initial report was false, the lawyer MUST file a motion seeking permission to withdraw w/o informing the insurance company of the confidences of the ensured. 변호사는 양 당사자 공통의 이익을 위해 존재하는 것이므로, 둘의 이익이 상충될 수 있다는 것을 아는 순간 아무 말 없이 withdraw해야한다. 하지만 양 당사자의 동의가 있으면 할 수 있다.
A court has a responsibility to ensure a third party who is paying fees for a criminal does not interfere with the lawyer’s independence or professional judgment.
Yes. (동의가 있어도 안된다)
A lawyer using confidential information of a client w/o approval for their own profit is subject to potential civil liability and profit disgorgement, and professional discipline.
No. A lawyer using confidential information of a client w/o approval for their own profit is subject to potential civil liability and profit disgorgement but NOT professional discipline UNLESS the client is disadvantaged.
The portion belonging to the lawyer may be transferred to the lawyer’s regular account unless the client disputes the billing.
Yes
The disputed amount may withdraw even before the dispute is resolved.
No, the disputed amount shall NOT withdraw UNTIL the dispute is resolved.
When ordered to do so by a tribunal, a lawyer shall continue representation in the matter notwithstanding good cause for terminating the representation.
Yes
To disqualify a former governmental lawyer from representing a client before the agency, the subject of the representation does not need to be the same matter that the lawyer handled at the agency.
No. To disqualify a former governmental lawyer from representing a client before the agency, the subject of the representation MUST be the SAME matter that the lawyer handled at the agency.
A lawyer may not use “confidential government information” that was not disseminated to the public in representing a client in subsequent private practice.
Yes
A commingling of funds does not occur if the funds belonging to the lawyer and the client are in the same account.
No. A commingling of funds OCCUR IF the funds belonging to the lawyer and the client are in the same account.
After a reasonable time, the law firm entitlement to the billed fees left in the trust account constitutes commingling of funds.
Yes
The purchaser of a law firm can raise client fees to finance the purchase of the law firm.
No. The purchaser of a law firm can NOT raise client fees to finance the purchase of the law firm.
The purchase of a law firm must be of the entire law practice; a buyer may not cherry-pick the clientele and discard those clients which are less lucrative and would find it difficult to secure other counsel.
Yes
When it is clear that the client is under a disability with a foreseeable serious consequence, it is proper for a lawyer to “maintain a normal client-lawyer relationship”.
No. When it is clear that the client is under a disability with a foreseeable serious consequence, it is NOT proper for a lawyer to “maintain a normal client-lawyer relationship” because this presupposes the client can make adequately considered decisions.
If the client adequately act in her own interest because she is under a disability, the lawyer may seek court appointment of a guardian ad litem. The application for appointment should not disclose any unnecessary client confidences.
Yes
Even if no remaining member of the firm has information that is material to the current matter, the potential prior client conflict does not terminate.
No. If NO remaining member of the firm has information that is material to the current matter, the potential prior client conflict TERMINATES.
There is a prohibition on a lawyer-client transaction w/o informing the estate client of the conflict and to seek the advice of independent counsel which is imputed to all the lawyers in the law firm.
Yes (R3-27)
Client funds shall be kept in a separate trust account maintained in the state where the client’s home is situated.
No. Client funds shall be kept in a separate trust account maintained in the state where the LAWYER’S OFFICE is situated.
Rules do not require the trust account to earn interest.
Yes
A formal legal assistant may act as a lawyer in a matter in which her participation was personal and substantial.
No. A formal legal assistant may NOT act as a lawyer in a matter in which her participation was personal and substantial.
A government lawyer shall not negotiate for private employment with an attorney for a party in a matter in which the government lawyer is personally and substantially participating.
Yes. Negotiate도 안된다!
A lawyer may state a personal opinion on the culpability of a civil litigant.
No. A lawyer may NOT state a personal opinion on the culpability of a civil litigant.
A lawyer’s raised voice does not of itself violate the rule.
Yes
A lawyer may knowingly offer evidence that the lawyer knows is false.
No. A lawyer shall NOT knowingly offer evidence that the lawyer knows is false.
A lawyer may not directly contact a person represented by counsel unless that counsel approves. An exception applies if authorized by law or court order.
Yes
The duty to disclose to the tribunal false evidence entered in the proceeding does not terminate at the end of the proceeding.
No. The duty to disclose to the tribunal false evidence entered in the proceeding Terminates at the end of the proceeding.
A lawyer functioning as a intermediary may not subsequently represent any of the parties in any matter that was the subject of the representation.
Yes. 즉 중재의 내용과 소송의 내용이 다르면 수임할 수 있다.
A client shall not communicate with another party who is represented by a lawyer.
No, while an attorney shall not communicate with another party who is represented by a lawyer, there is NO restriction on the clients engaging in direct negotiations.
A juror may be investigated by a lawyer or a private detective after the jury has been discharged unless prohibited by law or court order or the lawyer engages in improper conduct during the communication.
Yes
Two requirements for evaluation for use by the third party
(1) A lawyer must reasonably conclude that truthfully making the evaluation is compatible with the lawyer’s other representations for the client; and
(2) The client must give informed consent. (NO need writing)
진행중인 사건에 대해 변호사는 그 claim과 defense에 대해서는 방송에서 이야기할 수 있다.
Yes. 하지만 법정에서 채택되지 않은 전문가의 의견, 당사자 또는 증인의 character or credibility에 대해서는 이야기하면 안된다.
A lawyer legislator must not represent private clients even if they do not obtain a special advantage which is clearly contrary to the public interest.
No. A lawyer legislator MAY represent private clients AS LONG AS they do not obtain a special advantage which is clearly contrary to the public interest. 이 법안으로 인해 이익을 받는 client가 있다는 것을 밝혀야 한다. 하지만 그 client가 누구라는 것은 밝힐 필요 없다.
A lawyer must not knowingly make a false factual or legal statement to a third party in the course of representing a client but need not disclose all the facts.
Yes
A lawyer must not directly contact a person who is loyal to an adverse party.
No. A lawyer MAY directly contact a person not represented by a lawyer and whether the third party is loyal to an adverse party is irrelevant.
Litigation sanctions could be imposed because a lawyer has a duty to make a sufficient investigation so there is a reasonable basis in both fact and law to any pleading they sign.
Yes
A lawyer is prohibited from improperly attempting to influence a juror and while this one case is over, they still are required to sit for _______ cases for __ more days.
criminal, 20
A lawyer shall not obstruct another party’s access to evidence or destroy documents having potential evidentiary value only if the degree of prejudice to the P is certain.
No. A lawyer shall not obstruct another party’s access to evidence or destroy documents having potential evidentiary value EVEN THOUGH the degree of prejudice to the P is UNcertain.
