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
Contingent fee agreements, when are they allowed?
- Must be reasonable, signed by client (watch out for making promise - then breaking)
- Must not use in criminal case (no incentive fee AND no % of publication rights based upon representation - But client can take interest in book unrelated to representation watch for undue influence.)
- Mustnot use domestic relations case
What explanations required for contingency fees?
Must be explained - in writing, signed by client - be clear: before you take the case AND after the case is concluded (settlement letter)
Referral fees are unethical except when you meet all of the following…
Attorneys work together
With clients written informed consent that discloses the share each lawyer will get
Paid proportionally to work done, and,
One reasonable fee in total.
Reciprocal referral agreement are allowed with the following restrictions.
Not exclusive rangmen
Referred client must be told
Referral agreement must not interfere with lawyers professional judgment
Agreement should not be of indefinite duration.
Rules when lawyer is using or selling practice of law
Must sell entire practice
Seller must exercise competence in identify a buyer who is qualified to undertake representation
Written notice must be given to sellers clients
Seller must cease practice of law
Purchaser must take all clients and matters
AC privilege v. Confidentiality
Privilege = protects confidential communications, compelled disclosures, governs disclosure of info, Protects confidential communications with prospective clients.
Confidentiality =
covers the same AND any other info obtained by attorney relating to representation regardless of source,
voluntary revelation,
disclosure and use
Work product doctrine
Material prepared by a lawyer for litigation is immune from discovery UNLESS
other side shows substantial need, and,
Inability to gather material without nude hardship.
Client authorized disclosure
Express authorization requires informed consent (client agrees, lawyer sufficiently explains)
There is some I plied authorization, like sharing w/ paralegal.
Exceptions to privilege
Waived by client
Client seeks attorney service to assist in FUTURE CRIME/FRAUD
communication relevant to issue of breached AC relationship
Civil cases btwn parties who were formerly joint clients
Exceptions to confidentiality (WIIPPOR)
Wavied by client
Informed consent
Implied authority to disclose to further the representation
Prevent reasonably certain death or substantial bodily harm in future
Prevent substantial financial harm/fraud
Obtain legal or ethical advice for lawyer
Required by law or court order
Disclosure of past crimes.
Not allowed
Death of party and confidentiality
Death of party does not end your obligations
General rule for conflict of interest
Generally lawyer cannot represent adverse interests of CLIENT OR PROSPECTIVE CLIENT, but conflict can be cured in some instances if: lawyer explains risks AND client agrees in writing
Conflict of interest and lawyers personal interest
Rule or mutation
No sexual relationships unless preexisiting
No loans to clients in connection with pending litigation
Lawyers as witness?
Lawyer cannot be necessary witness for client
Exceptions:
Uncontested or ministerial matter
Legal fee matter
If substantial hardship to client otherwise
General rule with Lawyer acquiring interest in litigation
Lawyer annot acquire interest in litigation
Exceptions
Contingent fees
Security liens
Screening of disqualifying lawyer
Lawyer conflict of interest will not be muted to firm… If arises out of prior association with her prior form provided she is Timmy screened
General rule with entering into business with clients
Lawyer can’t enter into a business deal with client.
Exceptions:
Ordinary transactions
As long as terms are fair
Exceptions require writing: full disclosure of terms, advised to get individual legal counsel, informed consent and signed by client
Rules with conflict of interest
Lawyer have conflicting interests with prospective or current clients and former clients.
This requires:
No interests adverse to clients
No multiple clients where “potential conflict (unless; reasonable belief of no adverse affect AND client gives written informed consent
Representing two clients and aggregate settlement claims
Lawyer shall not make ASC without,
Informed consent in writing from each client after full review of entire settlement.
Full review includes:
Clients come to agreement among themselves how to share aggregate sum
Disclosure to all the terms (including total amount to be paid or received, existence and nature of all claims defenses and pleas involved in settlement, details of other client participation, how lawyers fees will be paid)