MPRE/PR

Question 1

What is MR 3.3: Candor Towards Tribunal?

Answer 1

(a) A lawyer shall not knowingly:
- Make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer

• Fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel
• Offer evidence that the lawyer knows to be false.
  If a lawyer, lawyer’s client, or a witness called by the lawyer has offered material evidence and the lawyer comes to know of its falsity, the lawyer shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal
• A lawyer may refuse to offer evidence other than the testimony of a defendant in a criminal matter, that the lawyer reasonably believes is false

(b) A lawyer who represents a client in an adjudicative proceeding and who knows that a person intends to engage, is engaging or has engaged in criminal or fraudulent conduct related to the proceeding shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal

(c) The duties states in paragraphs (a) and (b) continue to the conclusion of the proceeding and apply even if compliance requires disclosure of information otherwise protected by Rule 1.6

(d) In an ex parte proceeding, a lawyer shall inform the tribunal of all material facts known to the lawyer that will enable the tribunal to make an informed decision, whether or not the facts are adverse

Question 2

What institution controls bar admission and attorney discipline in the US?

Answer 2

State judiciaries

Question 3

What is the difference between integrated/unified and non-unified systems?

Answer 3

• Unified/integrated systems – the private bar is
  an administrative organ of the state judiciary.
  Slight majority of states.
• Non-unified systems – the private bar is
  separate. California became non-unified in 2019,
  splitting into the State Bar of California and the
  California Lawyers’ Association

Question 4

What is the ABA?

Answer 4

American Bar Association: Nationwide professional association w/ voluntary membership. Accredits law schools, rates judges, and promulgates ethics codes.

Question 5

What organization wrote the Model Rules of Professional Conduct?

Answer 5

American Bar Association

Question 6

Features of the Adversary System

Answer 6

• party control of evidence
• neutral, passive judge
• courtroom battle
• procedural rights
• rules of evidence

Question 7

Features of the Inquisitorial System

Answer 7

• active, investigatory judge
• limited procedural rights
• limited power to exclude evidence
• non-confrontational court procedure
• emphasis on truth over rights

Question 8

How do Model Rules say they should be interpreted?

Answer 8

As rules of reason in light of their purposes

Question 9

What are the three broad roles of the attorney?

Answer 9

1) representative of client
2) officer of the court
3) public citizen

Question 10

What is MR 5.3: Non-lawyer assistance?

Answer 10

For non-lawyers employed by lawyers:
A. Firm management ensure the person’s conduct is compatible w/ professional obligations of lawyer
B. Supervising lawyer must ensure conduct is compatible w/ prof obligations of lawyer
C. Lawyer is responsible for non-lawyers misconduct if (1) lawyer order or ratifies it, OR (2) lawyer knows of it in time

Question 11

What is MR 5.4: Lawyer Independence?

Answer 11

A) Cannot share legal fees with non-lawyers (narrow exceptions)
B) Cannot form law practice partnership w/ non-lawyers
C) Employer or payer cannot direct legal services
D) Cannot form professional lawyer corporation owned (even if just in part) by a non-lawyer

Question 12

What is MR 5.5: Unauthorized/Multi-district Practice?

Answer 12

Cannot practice in a Jx w/o authorization
- Exceptions:
1. Can appear temporarily in other Jx “pro hac vice”
2. Can provide services that “arise out of or are reasonably related to” a matter that the lawyer is involved with, but not appear in court
3. Can serve as in-house counsel, but not appear in court

Question 13

Is it a crime to practice law without a license?

Answer 13

In CA, guilty of a misdemeanor if not authorized through other means

Question 13

What is “pro hac vice” and what do you need to get it?

Answer 13

Temporary allowance from court to practice in another Jx. Requires an application

Question 13

What is MR 8.1: Bar Admission & Disciplinary Matters?

Answer 13

Applicant for bar or bar lawyer cannot (a) knowingly make a false statement of material fact; or (b) fail to disclose fact necessary to fix a lie they know about or fail to provide info from admissions or disciplinary authority unless protected

Question 14

What is MR 8.3: Reporting Professional Misconduct?

Answer 14

(a) lawyer that knows another has violated rules of professional conduct that raises a substantial q of their honesty, trustworthiness, or fitness as a lawyer shall inform appropriate authority
(b) lawyer that knows judge has committed violation of rules of conduct that raises substantial q of fitness shall inform appropriate auth
(c) does not require disclosure protected by rule 1.6 or info gained thru an approved lawyers assistance program

Question 14

What is MR 8.4: Misconduct?

Answer 14

Professional misconduct for a lawyer to:
(a) violate or attempt to violate rules of professional conduct, knowingly assist another, or do so thru acts of another
(b) commit a criminal act that reflects poorly on lawyer’s honesty, trustworthiness, or fitness as lawyer in other respects
(c) engage in conduct – dishonesty, fraud, deceit, or misrepresentation
(d) engage in conduct that is prejudicial to the admin of justice
(e) state or imply an ability to influence improperly a govt agency or in a way that violates professional rules
(f) knowingly assist a judge in conduct that violates rules of conduct
(g) engage in conduct lawyer knows or reasonable should know is harassment or discrimination

Question 14

What is MR 8.5: Disciplinary Authority: Choice of Law?

Answer 14

(a) Disciplinary Authority: Lawyer admitted to practice in Jx subject to autho of Jx regardless of where conduct occurs
- also not limited to only the discipline of the Jx if they offer services elsewhere
- can also be subject to auth of multiple Jx at once

(b) Choice of Law:
rule of conduct applied as follows:
1. for conduct in connection with a matter pending before a tribunal, the rules of the jurisdiction in which the tribunal sits, unless the rules of the tribunal provide otherwise; and
2. for any other conduct, rules of Jx where conduct occurred applies. If predominant effect of conduct felt in diff Jx, can be punished in that Jx instead.

Question 14

What is MR 2.1: Advisor

Answer 14

In representing a client, a lawyer shall exercise independent professional judgment and render candid advice.

In rendering advice, a lawyer may refer not only to law but to other considerations such as moral, economic, social and political factors, that may be relevant to the client’s situation.

Question 14

What is MR 1.2: Scope of Representation

Answer 14

(a) client decides on objectives of representation

(b) A lawyer’s representation of a client, including representation by appointment, does not constitute an endorsement of the clients political, economic, social, or moral views or activities

(c) A lawyer may limit the scope of the representation if the limitation is reasonable under the circumstances and the client gives informed consent

(d) cannot advise “conduct that the lawyer knows is criminal or fraudulent,” but the lawyer MAY “discuss the legal consequences of any proposed course of conduct with a client

Question 15

What is MR 1.4: Communications?

Answer 15

Need to communicate with the client so that the client can meaningfully exercise decision-making authority. Have to explain the issues in a way that the client can understand

(1) Promptly inform the client when their consent is needed for a decision;

(2) Reasonably consult with the client about the means by which the client’s objectives are to be accomplished

(3) Keep the client reasonably informed about the status of the matter

(4) Promptly comply with reasonable requests for information; and

(5) consult with the client about any relevant limitation on the lawyer’s conduct when the lawyer knows that the client expects assistance not permitted by the Rules of Professional Conduct or other law.

(b) explain matter to reasonable extent to allow client informed decisions

Question 16

What is MR 1.14: Clients w/ Diminished Capacity

Answer 16

The lawyer shall, as far as reasonably possible, maintain a normal client-lawyer relationship with the client”

• If the client is at risk and the client cannot act in their own interest, lawyer may seek outside help including guardianship and other coercive measures
• Can reveal client information, but only as necessary to protect client’s interests

Question 17

What is MR 1.1: Competence?

Answer 17

A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation.

Question 18

What do you do to gain competence if you lack experience or time on the job?

Answer 18

A.L.E.
- ask
- learn
- expert: find a knowledgable source

Question 19

What is MR 1.3: Diligence?

Answer 19

A lawyer shall act with reasonable diligence and promptness in representing a client

Question 20

What is MR 3.5: Impartiality & Decorum of the Tribunal

Answer 20

A lawyer shall not:

(a) seek to influence a judge, juror, prospective juror or other official by means prohibited by law;

(b) communicate ex parte with such a person during the proceeding unless authorized to do so by law or court order;

(c) communicate with a juror or prospective juror after discharge of the jury if:

(1) the communication is prohibited by law or court order;

(2) the juror has made known to the lawyer a desire not to communicate; or

(3) the communication involves misrepresentation, coercion, duress or harassment; or

(d) engage in conduct intended to disrupt a tribunal.

Question 21

What is MR 8.2: Criticism of Judges?

Answer 21

“A lawyer shall not make a statement that the lawyer knows to be false or with reckless disregard as to its truth or falsity concerning the qualifications or integrity of a judge, adjudicatory officer or public legal officer, or of a candidate for election or appointment to judicial or legal office”

Question 22

What is MR 3.6: Pretrial Publicity?

Answer 22

“A lawyer who is participating or has participated in the investigation or litigation of a matter shall not make an extrajudicial statement that the lawyer knows or reasonably should know will be disseminated by means of public communication and will have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter.”

Question 23

What is MR 4.2: Represented Parties?

Answer 23

A lawyer shall not communication about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized to do so by law or a court order
- does not matter who starts convo or if consent from other layperson

Question 24

What is MR 4.3: Dealing with Unrepresented Person

Answer 24

In dealing on behalf of a client with a person who is not represented by counsel, a lawyer shall not state or imply that the lawyer is disinterested. When the lawyer knows or reasonably should know that the unrepresented person misunderstands the lawyer’s role in the matter, the lawyer shall make reasonable efforts to correct the misunderstanding. The lawyer shall not give legal advice to an unrepresented person, other than the advice to secure counsel, if the lawyer knows or reasonably should know that the interests of such a person are or have a reasonable possibility of being in conflict with the interests of the client.

Question 25

What is MR 4.4: Respect for Rights of 3rd Persons

Answer 25

(a) In representing a client, a lawyer shall not use means that have no substantial purpose other than to embarrass, delay, or burden a third person, or use methods of obtaining evidence that violate the legal rights of such a person.

(b) A lawyer who receives a document or electronically stored information relating to the representation of the lawyer’s client and knows or reasonably should know that the document or electronically stored information was inadvertently sent shall promptly notify the sender.

Question 26

What is MR 4.1: Truthfulness?

Answer 26

An attorney cannot:
- Make a false statement of material fact or law to a third person;
- Fail to disclose a material fact to a third person, where disclosure is NECESSARY to avoid ASSISTING a CRIM or FRAUDULENT act by the client UNLESS disclosure is prohibited by rule 1.6

Question 27

What is MR 3.4: Fairness to Opposing Party and Counsel?

Answer 27

1. Cannot obstruct a party’s access to evidence
   Cannot alter or falsify evidence
2. Cannot destroy or conceal material having “potential evidentiary value”
3. Cannot knowingly disobey a rule imposed by tribunal UNLESS doing so openly and asserting the rule does not exist
4. Cannot make frivolous discovery requests or fail to diligently comply with legitimate discovery requests
5. Cannot allude to irrelevant or inadmissible evidence
6. Cannot assert personal knowledge of facts or personal opinion on an issue (no “vouching”)
7. Cannot try to persuade a person other than the client to refrain from voluntarily giving information to another party, EXCEPT if:
   - A relative, employee, or agent of the client, AND
   - Refraining from giving the information does not affect them adversely

Question 28

What is MR 1.6: Duty of Confidentiality?

Answer 28

(a) Must keep confidential all info relating to representation
- Can reveal info if client gives informed consent
- Can also reveal info if client implicitly authorizes
- Must make reasonable efforts to prevent disclosure of confidential info
- Continues after lawyer/client relationship ends

(b) In exercising the discretion conferred by this Rule, the lawyer may consider factors such as:
- Nature of lawyer’s relationship w/ client
- With those who might be injured by the client
- The lawyer’s own involvement in the transaction
- And factors that may extenuate the conduct in question

(c) A lawyer shall make reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized access to, information relating to the representation of a client.

(d) A lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary”

Question 29

What are Exceptions to MR 1.6: Confidentiality?

Answer 29

1) to prevent reasonably certain death or substantial bodily harm

2) to prevent the client from committing a crime or fraud that is reasonably certain to result in substantial injury to the financial interests or property of another and in furtherance of which the client has used or is using the lawyer’s services

3) to prevent, mitigate or rectify substantial injury to the financial interests or property of another that is reasonably certain to result or has resulted from the client’s commission of a crime or fraud in furtherance of which the client has used the lawyer’s services

4) to secure legal advice about the lawyer’s compliance with these rules;

6) to comply with other law or a court order

7) to detect and resolve conflicts of interest arising from the lawyer’s change of employment or from changes in the composition or ownership of a firm, but only if the revealed information would not compromise the attorney-client privilege or otherwise prejudice the client.

Question 30

What is the United States v. Thoreen holding?

Answer 30

implicitly lying by having someone who is not your D at the counsel table and asking witness to ID person

Question 31

What are the rules regarding how to handle cross-examining a truthful witness?

Answer 31

General consensus is to be an aggressive advocate for your side even if you know other person is truthful– however limited by what tactics you can use and might be limited by rules such as Rape Shield Laws

Question 32

When does concurrent conflict of interest exist? (What is MR 1.7)

Answer 32

(1) Representation of one client will be directly adverse to another client; or
(2) There is a significant risk that the representation of one or more clients will be materially limited by the lawyer’s responsibilities to another client, a former client or a third person or by a personal interest of the lawyer

Question 33

Can a lawyer engage in a representation that involves concurrent conflicts of interest? (MR 1.7)

Answer 33

General presumption is no– with some exceptions:

following conditions need to be met:

(1) the lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected client;

(2) The representation is not prohibited by law

(3) The representation does not involve the assertion of a claim by one client against another client represented by the lawyer in the same litigation or other proceeding before a tribunal, and

(4) Each affected client gives informed consent, confirmed in writing.

Question 34

What is MR 1.8: Specific Rules Regarding Conflicts?

Answer 34

Cannot enter a business transaction with a client, or secure an interest adverse to a client

• Exceptions:
  (1) Transaction is fair and reasonable to client and fully disclosed
  (2) Client advised in writing of desirability of getting independent legal counsel re: transaction
  (3) Client gives informed consent in writing

A lawyer shall not use info relating to representation of a client to the disadvantage of the client
UNLESS client gives informed consent, except as permitted or required by these Rules

A lawyer shall not solicit any substantial gift from a client, including a testamentary gift, or prepare on behalf of a client an instrument giving the lawyer or a person related to the lawyer any substantial gift unless the lawyer or other recipient of the gift is RELATED to the client

Prior to the conclusion of representation of a client, a lawyer shall not make or negotiate an agreement giving the lawyer literary or media rights to a portrayal or account based in substantial part on information relating to the representation

A lawyer who represents two or more clients shall not participate in making an aggregate settlement of the claims of or against the clients, or in a criminal case an aggregated agreement as to guilty or nolo contendere plea…
- UNLESS each client gives informed consent, in a writing signed by the client. The lawyer’s disclosure shall include the existence and nature of all the claims or pleas involved and of the participation of each person in the settlement

Question 35

When can you have someone else other than client pay for services? (MR 1.8)

Answer 35

shall not accept UNLESS:
(1) the client gives informed consent;
(2) there is no interference with the lawyer’s independence of professional judgment or with the client-lawyer relationship; and
(3) information relating to representation of a client is protected as required by Rule 1.6.

Question 36

What rules govern liability? (MR 1.8)

Answer 36

A lawyer shall not:

(1) make an agreement prospectively limiting the lawyer’s liability to a client for malpractice unless the client is independently represented in making the agreement; or

(2) settle a claim or potential claim for such liability with an UNREPRESENTED client or former client UNLESS they are advised in writing of the desirability of seeking and is given a reasonable opportunity to seek the advice of independent legal counsel in connection therewith.

Question 37

Can a lawyer have sexual relations with a client? (MR 1.8)

Answer 37

No, unless a consensual sexual relationship existed between them when the client-lawyer relationship commenced

Question 38

What is MR 1.9: Former Clients?

Answer 38

• Cannot represent a person whose interest are “materially adverse” to those of a former client
  UNLESS you get informed consent in writing with former client
• Also applies where you worked at a firm that had confidential client info

Question 39

What is MR 3.7: Lawyers as witnesses?

Answer 39

Do not become a witness in a case where you are also a lawyer
EXCEPTIONS:
- Uncontested issue
- Testimony is about your legal services
- Disqualifying you would create serious hardship

Question 40

What is MR 1.10: Imputation of Conflicts of Interest Generally

Answer 40

When lawyers have a conflict, then whole law firm is prevented from representing that client UNLESS
1) it is a personal conflict on the behalf of the lawyer
2) lawyer is timely screened:
a) includes written notice to former client with screening procedures, statement, and agreement w/ inquiries or objections
b) certifications of compliance w/ Rules and screening procedures provided to former client at regular intervals
- when lawyer has been terminated, firm can then represent the person unless matter substantially related to one previously tried

Question 41

What is MR 1.11:

Answer 41

(a) Lawyer who previously worked as a public officer or govt employee cannot represent a client connected to a matter they personally and substantially worked on UNLESS govt agency gives informed consent

(b) When a lawyer is disqualified, no lawyer from their firm can knowingly take that representation UNLESS
1) disqualified lawyer is screened from participation in a timely manner and not given fee
2) written notice is promptly given to govt agency to determine compliance

(c) ALSO, lawyer with confidential govt info about a person CANNOT represent a private client with adverse interests to person where info could be used to their disadvantage

(d) When CURRENTLY working as govt officer:
CANNOT
1. participate in matter they personally and substantially participated in private practice unless govt agency gives informed consent
2. negotiate for private employment w/ someone involed in a matter they worked on p&s unless a law clerk

Question 42

What is screening?

Answer 42

Way to get a firm to continue working on a case when one lawyer has a conflict.

Process:
1. Disqualified lawyer is screened off
2. Written notice to former client describing the screening procedure
3. Written updates at reasonable intervals
Former client can also waive conflict with informed consent

Question 43

What is MR 1.12: Specific Rule for Judges, arbitrators, and law clerks?

Answer 43

Can’t represent someone in a case where you served as a 3rd party neutral unless all parties give written informed consent
law clerks can do it, but only after notifying the judge. Judges cannot.

Question 44

Can lawyers work in legal service organizations when conflict? (MR 6.3)

Answer 44

You can work for a legal services org even if indigent clients have interest adverse to your other clients
UNLESS clear conflict under rule 1.7