MPRE Flashcards
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What types of discipline for breaking rules?
Private or public reprimand/censor
Suspension for finite period
Disbarment
What are the two types of rules?
Mandatory “must rules” and advisory “should or proper rules, aspirational.”
Requirements for admission to bar?
Rational: law school, oath
Irrational: citizenship or state residency
Requirements for you to apply: duty to fully cooperate, truth and full disclosure
What is your duty when you know of violation?
Actual personal knowledge
Report what you know UNLESS protected as confidence
Available to testify
Duty to report is 24/7 worldwide duty
Can duty to report be trumped by another duty?
Yes. Duty of confidentiality OR membership in approved lawyer assistance program
When is multi-jurisdictional practice allowed?
General rule is can’t practice where not admitted.
Temporarily permissible when: with local counsel, special permission, mediation or arbitration, anything “reasonably related” yo home practice
Permanently permissible as: in house or federal government
When is supervisor responsible?
Knew of misconduct at time when consequences could have been mitigated AND lawyer fails to take remedial action.
Or
Violation raises substantial question to supervisor honesty or character/fitness to practice law AND you were told to do it.
Remember subordinate is not responsible when…
Told to do it AND arguable that you thought it was ok.
These activities require a law license
Appearance in judicial proceeding/depositions
Negotiate settlements
Drafting documents that effect substantial legal rights
These activities do not require a law license
Interview
Filling in forms
Writing legal memos
Fee division with non-lawyer
General rule is fee division is not allowed with non-lawyer.
Exceptions:
Heirs of deceased attorney
Employees- salaries, pension, bonus
Law firm and partnerships
Only lawyers can be partners in business that involves practice of law. Except s/h
No implication of partnership
You can list dual professions, but solicit rules apply like lawyer, and attorney/client privilege does not apply
Contractual restrictions on practice
Generally not allowed, except retirement or withdrawing from firm
General rule for accepting or rejecting clients
Generally, lawyers have freedom to reject cases.
Exceptions:
Defenseless or oppressed (should)
Pro bono (should, also fulfill pro bono in other ways)
Appointments (must accept unless GOOD CAUSE)
When does lawyer have duty to reject cases?
Physical or mental inability Conflict of interst Strong feelings or bias Frivolous claim or frivolous motion Incompetence
Exceptions to duty to reject, take ALE.
Association
Learn it in time
Emergency
What decisions belong to client?
Sue, settle, testify, please, jury or bench, appeal
What decisions belong to lawyer?
Procedural and tactical decisions, to file, depositions, discovery, continuances
Within the bounds of the law
Means e honest and truthful, subject to discipline for knowingly making a false statement of fact/law to court or failing to correct previously made false statement of material fact/law
When can lawyer withdraw - terminate AC privilege?
Withdraw is judge’s decision, depending on stage of matter.
Mandatory withdraw (“must see withdraw”):
Duty to reject situations
Client fraud and refusal to rectify fraud
Client insists on violation of law/ethical provision
Client has begun new illegal course of action
Permissive withdraw (lawyer may leave):
Any reason that will not harm the client
If client consents
In one of these conditions: client persis in criminal or fraudulent conduct, client has used attorneys services to commit past crime or fraud, client objective is imprudent, client breaks promise to lawyer to pay the fee, unreasonable financial hardship on attorney practice, client will not cooperate.
Client may not abandon client, must a lid material adverse effect on client by…
Dissuade client
Request permission to withdraw
Do as instructed
If permitted to withdraw give clien reasonable notice to get new lawyer
Client lawyer contracts
Lawyer can limit representation through k
Quick advice programs
Conflict of interst ruled are relaxed, bc lawyer does not have time to run conflict check
Actual knowledge can be inferred
Rules change if lawyer actually hired.
When shall fee arrangement be determined?
Arrangement (which includes scope of representation, basis or rate of fee, and expenses for which client will be responsible) shall be communicated to client BEFORE representation starts.
Factors in setting reasonable fee.
Time and labor Difficulty and novelty of questions Experience, reputation Relationships Exclusions Fixed or contingent Fees customarily charged