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MPRE Condensed Flashcards

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1
Q

Sources of Regulation – The State

A

1) Courts (rules of the court & case law)
2) Bar Associations (integrated - required membership)
3) Congress/State Legislatures

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2
Q

Sources of Regulation – Federal System

A

1) federal courts (case law, court rules)

2) government attorneys (subject to the ethical regulations where the attorney practices)

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3
Q

Sources of Regulation – Multiple States

A

subject to regulations in each state admitted (no matter where the lawyer practices or incident occurred)

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4
Q

Admission to Practice – The Application

A

1) must not knowingly make false statements
2A) must not fail to disclose known information
2B) must not knowingly fail to respond to demand for information

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5
Q

Admission to Practice – Good Moral Character –Investigation

A

1) Burden on applicant to prove good moral character

2) Duty to cooperate

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6
Q

Admission to Practice – Good Moral Character – Conduct Relevant

A

All Aspects reflecting honesty and integrity (all charges/litigation, even acquitted)

1) Criminal - Moral Turpitude (intentional dishonesty or violence – except adolescent misbehavior and civil disobedience)
2) Can rehabilitate moral character
3) False Statements is evidence of lack of moral character
4) Can deny application for failure to uphold federal/state constitution (not just for communism)

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7
Q

Admission to Practice – Citizenship/Residency

A

Not required
Citizenship – violation of equal protection clause
Residency – violation of privilege and immunities clause

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8
Q

Misconduct

A

1) Violate the Rules of Profession Conduct
2) Crimes (dishonesty, breach of trust, violence)
3) Dishonesty/Fraud/Deceit/Misrepresentation (any conduct)
4) Conduct Prejudicial to admin of justice
5) stating/implying ability to influence officials
6) assisting a judge’s violation of judicial code
7) harassment or discrimination in law practice

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9
Q

Misconduct - Violate the Rules of Profession Conduct

A

1) Violate/Attempt to violate any rule of PR
2) knowingly assist/induce another person to violate rules
3) use the acts of another person to violate the rules

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10
Q

Misconduct - harassment or discrimination in law practice

A

knows or should reliable know is discrimination based on protected classes (race, religion, gender, etc.)
Exceptions
1) limit practice to serving underserved community
2) provide legitimate advice
3) promote diversity/inclusion

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11
Q

Duty to Report Professional Misconduct

A

MUST report when a lawyer
1) knows (actual knowledge or inferred) other lawyer violated the rules AND
2) raising a substantial question of the lawyers moral character
Applies to reporting judges
May report if only suspected misconduct
subject to discipline for failing to report (except if knowledge was gained through confidential info.)

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12
Q

Disciplinary Process

A

1) Complaint
2) Screening
3) Hearing (Due process required and 5th Amendment)
4) Burden of proof on prosecuting party
5) Attorney entitled to review by court (dismissal cant be reviewed)
6) Sanctions

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13
Q

Disciplinary Process – Sanctions

A

1) Private or Public Reprimand/Censure
2) Suspension
3) Disbarment (permanent – readmission after proof of rehabilitation)
Impact in other Jurisdictions
1) Other States – not necessarily binding (conclusive proof)
2) Federal – comptent evidence

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14
Q

Disciplinary Process – Choice of Law

A

1) when compliant happened before a tribunal then ethics rules of the tribunal’s jurisdiction
2) all other situations, where the conduct occurred
3) Not subject to discipline if conduct is proper in a jurisdiction where lawyer reasonably believed the predominant effect will occur
4) Conflicts of Interest law through agreement (if there is a reasonable belief the predominant effect will occur in the agreed jurisdiction)

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15
Q

Disciplinary Process – Disability

A

disabled lawyer (impairment – drugs/alcohol) suspension from practice until rehabilitation

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16
Q

Unauthorized Practice

A

admitted in one jurisdiction doesnt permit practice in another jurisdiction
subject to the disciplinary rules of both jurisdictions
Except
1) Temporary Permission
2) Permanent Permission

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17
Q

Unauthorized Practice - Temporary Permission

A

1) Association with Local Lawyer
2) Special Permission to Practice in local tribunal
3) mediation/arbitration arising out of a practice in admitted state
4) other reasonably related practices arising out of practice in admitted state
5) Foreign Lawyers (great scrutiny)

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18
Q

Unauthorized Practice - Permanent Permission

A

1) Lawyers employed by their only client (in-house counsel)

2) legal services authorized by federal/local law (patents)

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19
Q

Unauthorized Practice - Non Lawyers

A

Practice of law –
1) requiring legal knowledge and skill
2) advice concerning binding legal rights
3) activity is traditionally performed by lawyers
Not filing in blanks on standard documents or preparing taxes
Sanctions - injunction, contempt, criminal conviction (assisting attorney subject to discipline – allowed to delegate work, must supervise/ultimate responsible)
Can hire suspended/disbarred to do layperson work

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20
Q

Lawyer-Client Relationship

A 
contractual relationship (rules varied by agreement - construed against attorney)
fiduciary duty/Agency
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21
Q

Creating Lawyer-Client Relationship

A

attorney free to refuse service for any reason (ethical obligation to accept a fair share of unpopular matters)
manifests of intent and lawyer agrees
Estoppel (client reasonably relies on lawyering providing services)
tribunal appoints lawyer (should not reject except for good cause – 1. violation of ethics rules 2. unreasonable financial burden 3. repugnant client would impair representation)

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22
Q

Lawyer-Client Relationship Implied/Reasonable Reliance

A

lawyer’s assent is implied when lawyer fails to clearly decline representation and client reasonably relies (reliance = question of fact)
unanswered letter = unreasonable reliance (no relationship)

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23
Q

Lawyer-Client Relationship – Duty to Reject

A

MUST refuse client

  1. Clients Motive is harassment (embarrass, delay, burden)
  2. unsupportable factual/legal position (frivolous)
  3. Lawyer not competent (too busy/inexperienced)
  4. strong personal feelings
  5. Lawyer impaired mental/physical condition
24
Q

Duties Owed to Prospective Client

A

person consults with an attorney (no relationship), duty to:

1) protect confidential info
2) decline to represent other clients in the same/related matter
3) protect any property given to the attorney
4) reasonable care when providing legal advice

25
Q

Fees

A

Court gives the benefit of the doubt to clients
not regularly represented client
1) fee must be communicated
2) before/within a reasonable time after commencing
May accept property for services (but not involved in the action/litigation)
Contingent need not be a % (must be reasonable)

26
Q

Unreasonable Fees

A

contract for unreasonable fee unenforceable (attorney subject to discipline) – Factors of Unreasonable

1) Lawyer’s Time/Labor required
2) novelty/difficult of case
3) Lawyer’s skill required
4) precluding lawyering from taking other work
5) fee customarily charged
6) amount at stake/results obtained
7) time limitations imposed by client/circumstances
8) nature and length of the relationship
9) lawyer’s experience/reputation/ability
10) fixed/contingent fee (contingent can be higher -more risk)

27
Q

Costs

A

must disclose/clearly show how computed
must NOT charge for ordinary overheard expenses (staff, etc.)
may charge for actual costs/reasonable amount through agreement
must NOT charge overheard for 3rd party’s services

28
Q

Collecting Fee

A

A. may require fee paid in advance (must refund if fired/withdraw)
B. retainer (doesn’t have to be refunded) - paid solely to ensure the availability of the attorney
C. Contract must NOT curtail services in the middle of the relationship
D. Can allow payment by credit card, interest-bearing promissory note, bar association allowed bank loan
E. can get a lien if allowed by statute

29
Q

Prohibition of Contingent Fees

A

1) Criminal Cases
2) Domestic Relations Case (divorce, amount of alimony, amount of property settlement) – except in recovering past due alimony

30
Q

Contingent Fee Writing Requirement

A

must be in writing and signed by client

1) how fee is calculated
2) expenses to be deducted from recovery
3) deductions before/after fee calculation
4) expenses client must play

31
Q

Fee Disputes

A 
may not 
1) employ unlawful collection methods
2) improperly use confidential info
3) harass a client
Remedies
1) Liens
2) Retention of funds in a trust (cannot withdraw the disputed amount)
3) arbitration/Mediation
32
Q

Splitting Fees

A

must not split a fee, except

1) lawyers in a firm
2) Separation/Retirement agreements
3) Certain splits with outside firm (A. Reasonable fee B. split is proportionate to work performed or other proportionate if assumption of joint responsibility AND C. client agree in writing and the client knows the fee split)

33
Q

Referral Fees

A

prohibited (referring attorney must 1) work on the matter and 2) assume responsibility to get fee)
reciprocal referrals allowed

34
Q

Scope or representation

A

defined/limited by agreement
without agreement, lawyer should pursue objectives in all reasonably available legal ways
lawyer can take actions impliedly authorized

35
Q

Decision made by client

A

Key decisions

1) accept an settlement offer
2) enter a plea
3) waive a jury trial
4) client should testify
5) appeal decision

36
Q

Limits on Lawyer’s responsibility/Authority

A

1) lawyer may with draw over disagreement with client
2) must withdraw if client want to break the law (after explanation)
3) must withdraw if lawyer discovers illegal behavior (allowed a noisy withdraw to protect harmed 3rd party)

37
Q

Client with Diminished Capacity

A

duty to maintain normal client/attorney relationship (within reasonableness) – attention and respect, must communicate about significant developments

If client faces substantial physical/financial harm the lawyer may take reasonable actions to protect the client (implied authority to disclose confidential info to protect client)

38
Q

Emergency Legal Assistance to Non-Client with Diminished Capacity

A

1) seriously diminished capacity
2) imminent and irreparable harm (Health, safety, financial interest)
3) lawyer has consulted with the person/agent
4) lawyer reasonably believes the person has no other representative
5) reasonably necessary to maintain status quo/avoid harm
No compensation
normalize relationship ASAP
disclose confidences to prevent harm

39
Q

Informed Consent

A

promptly inform client
client agrees to proposed course of action
sufficiently explained the 1) material risks 2) reasonable alternatives

40
Q

Communicating Status

A

keep client reasonably informed (based on relationship/client’s understanding)
1) status of the matter
2) means/plans to accomplish objectives
lawyer needs to make immediate decision (need not to consult with client)
Urgent situations should still consult

Must inform current client if lawyer believes he has materially erred (1. reasonably likely to harm or 2. would cause client to think about firing lawyer)
No duty to inform past client of error

41
Q

Client Request Information

A

client reasonable request for information
attorney must respond promptly
if not possible, should acknowledge request and tell client when info will be available (specifically phone calls)

42
Q

Withhold Info from Client

A

may withhold info if

1) client is likely to act imprudently to an immediate communication
2) not to serve another’s interest

Court rule/order may forbid lawyer sharing info with client – lawyer must comply

43
Q

Client Fires Attorney

A

with or without cause / at will
no breach of contract claim

Clients Liability for fees - liable for reasonable work done before firing (attorney cant recover more than provided for in the express contract),

Contingent fee - liable for reasonable word done before firing (claim doesn’t arise until contingency comes pass)

44
Q

Substituting Attorneys

A

Court permission required most of the time

permission denied if substitution would cause undue delay/disruption

45
Q

Mandatory Attorney Withdrawal

A

1) Disability (mental/physical condition materially impairing representation)
2) Illegality/Ethical Violation

46
Q

Permissive Withdrawl

A

May withdraw for any reason (done without material adverse effect on client/client consents)

  1. Client’s persisting Criminal/Fraudulent Conduct - reasonably believes of crime/fraud
  2. Used client services to commit crimes
  3. Clients objective is repugnant
  4. client breaks promise to attorney (substantially fails an obligation/has been warned about withdrawal)
  5. Attorney Financial Hardship
  6. Client will not Cooperate (unreasonably difficult)
  7. Other good cause
47
Q

Attorney Duties after Termination

A

attorney must take reasonable steps to protect clients interest
1. reasonable notice of withdraw
2. provide time to obtain new attorney
3. returning advance attorneys fees
4. returning all papers/property
Solo practitioner should designate another competent attorney in case of death

48
Q

Competence

A 
lawyer must act competently
1. legal knowledge
2. legal skill
3. thoroughness
4. preparation
Reasonably necessary for the representation
49
Q

Competence - Legal Knowledge/Skill

A

Factors to determine if lawyer has knowledge/skill

1) complexity/specialized nature of matter (not necessary for most matters)
2) lawyers general experience
3) lawyers training/experience in the field
4) lawyers preparation and study in the matter (every attorney can gain knowledge/skill through reasonable preparation)
5) feasible to refer or associate to establish competence

50
Q

Competence - Emergency Situation

A

may assist client even without competence (if referral to competent attorney is impractical)
should not exceed what is necessary for the emergency

51
Q

Diligence

A

lawyer must act with reasonable diligence and promptness (may agree to reasonable postponement if it doesn’t prejudice client)
should pursue matter despite
1) opposition
2) obstacles
3) personal inconvenience (must control workload)
may take whatever lawful/ethical measure required
dedication and commitment
zeal in advocacy (good judgement - not incivility)
not required to press every conceivable advantage

52
Q

Completion

A

must see the matter through to completion (unless fire/withdraw)
lawyer should clarify the representation has completed

53
Q

Competence and diligence

A

requires a pattern of misconduct for discipline

personal crisis is not not an excuse

54
Q

Difference between malpractice and discipline

A

1) malpractice = civil court
2) malpractice the former client is adverse to the lawyer
3) goal of malpractice is to compensate harmed client

55
Q

Discipline as evidence in malpractice case

A

ethicals rules not designed for basis of civil liability
breach of ethical rules does not automatically/presumptively create malpractice
ethics breach is relevant evidence of attorney acting below appropriate standard of care

56
Q

Theories of Malpractice

A

1) Intentional Tort –
2) Breach of Fiduciary Duty
3) Breach of Contract
4) Negligence

mpre (2 decks)

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