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MPRE1 Flashcards

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1
Q

ABA on disciplinary authority

A

The ABA has no disciplinary authority and membership is volutary

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2
Q

Most states have their own rules of

A

professional conduct and mdoel rules, and the model rules control the MPRE

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3
Q

Must rules

A

Mandatory and violating lawyer is subject to discipline

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4
Q

Should rules

A

advisory

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5
Q

The state’s highest court

A

have the inherent power to regulate lawuers and adopt ethical rules for lawyers

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6
Q

Requirements for bar admission must be

A

rationally related to the practice of law

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7
Q

What is a rational requirement?

A

A) graduation from an ABA accredited law school
B) Oath: must take an oath
C) good moral character: investigates past conduct, bad moral turpitude may jeopardize admission

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8
Q

What is not rational ?

A

US citizenship
Residency in the state
Banning groups or members of groups

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9
Q

A lawyer must not

A

Make a false statement of material fact - must report negative things
Fail to respond to a lawful demand for information (duty to cooperate)
Fail to disclose any fact necessary to correct a misapprehension

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10
Q

A lawyer who knows that another lawyer has committed a violaiton that raises a substantial question as to the lawyer’s honesty trustworthiness or ability to practice must report the violation, unless

A

Duty of confidentiality applies (lawyer repped the other and learned during rep) or the lawyer learned of the violation while participating in a approved lawyers assistance program

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11
Q

Lawyers have the same duty to report

A

Judges who violate the CJC

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12
Q

A lawyer is subject to discipline for committing a crime f the crime is

A

relevant to some aspect of practicing law

(most crimes involving dishonesty and serious violence qualify, but solicitation, of prostitution or a single DUI would probably not)

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13
Q

Any fraud, dishonesty, misrepresentation, or deciet is grounds for

A

discipline

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14
Q

In conduct related to the practice of law, a lawyer must not harrass or

A

discriminate on the basis of race, sex, religion, natl origin, ehtnicity, age, sexual orient..

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15
Q

Any state to which the lawer is admitted to practice has the power to discipline a lawyer, regardless of

A

where the misconduct occured

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16
Q

A lawyer not admitted to the state bar is also subject to the jurisdiction of the state if

A

the lawyer renders or offers to render any legal services in the state

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17
Q

Choice of law: which law applies for conduct in connection with a litigation?

A

Court that the litigation sits in

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18
Q

only licensed lawyers can negotiate

A

settlements

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19
Q

What activities require a license and constitute the practice of law?

A

Appearance in judicial proceedings and depositions
Drafting documents that affect substantial legal rights
negotiate settlements

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20
Q

What activities do not require a license

A

Interviewing people
Filling in forms
Writing memos

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21
Q

Permissible temporary MJD practice

A

Associate with an active local lawyer
special permission called pro hac vice
Mediaiton or arbitration out of home state practice (bc encourage ADR)
Anything reasonably related to lawyer’s home-state practice

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22
Q

Permissible permanent MJD practice

A

LAwyer employed by her only client (usual in house counsel like govt employees)

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23
Q

lawyers generally have no duty to accept

A

clients

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24
Q

A relationship may be formed if

A

client manifiests intention to be repped, lawyer fails to adequately decline, lawyer knows that the client is reaosnably relying on her to provide services

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25
Q

A lawyer must not seek to avoid appointment by a tribunal to represent a person except for good cause, such as

A

unreasonable financial burden or personal inability to represent client

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26
Q

A lawyer may reasonably limit the scope of the representation if

A

the client gives informed consent (im only going to rep you pre-trial)

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27
Q

In a civil case, the lawyer must abide by the clients decision to

A

settle

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28
Q

In a criminal case, the lawyer must abide by the clients decision, after consultation, to

A

Plea
waiver of jury trial
whether to testify

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29
Q

In a civ or crim case, the lawyer must abide by the client’s decision whether to

A

appeal

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30
Q

The lawyer may make _____ decisions

A

strategic

but client can veto when it comes to expenses

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31
Q

A lawyer must not counsel a client to engage, assist a client, in conduct that the lawyer knows is

A

criminal or fraudulent

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32
Q

If a client has diminished capacity, try to maintain a normal relationship. If necessary, the lawyer should

A

take protective action and get guardian appointed

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33
Q

A lawyer must reasonably consult with the client about the means by which the client’s

A

objectives are to be accomplished

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34
Q

Keep the client reasonably

A

informed about the status of the matter

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35
Q

Lawyer must promptly comply wth

A

reasonable requests for information

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36
Q

Lawyer must explain matters to a client to the extent

A

reasonably necessary to permit the client to make informed decisions regarding the representation

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37
Q

The fee arrangement must be

A

communicated with a client before or within a reaosnable amount of time after start of represenation

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38
Q

As a general rule, written fee arrangement is

A

preferred

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39
Q

All fees must be

A

reasonable

(time and labor, novelty, whehter must turn away other cases, what other attorneys charge, amount at stake, nature and length of the relationship

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40
Q

Contingent fees are generally permissible but the agreement must

A

be in writing signed by the client

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41
Q

contingent fee arrangement must clearly notify the client of

A

any expenses which the client will be liable for

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42
Q

contingent fees are prohibited when

A

representing a client in a criminal case

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43
Q

In a domestic relations case, contingent fees are prohibited if

A

the payment or amount is contingent upon the securing of the divorce or amount of alimony or support gauranteed

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44
Q

Past due contingency free arrangemetns are

A

ok. Contingency to be paid in future collections / breach of contract that looks like a DR case

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45
Q

Required disclosures to a client:

A

How the fee is to be calculated, including percentages

What expenses are to be deducted from the recovery

Whether deductions for expenses will be made before or after the contingent fee is calculated

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46
Q

At the conclusion of a contingent fee matter, the lawyer ust

A

provide the client witha . written statement outlining how the fee was determined

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47
Q

When the lawyer is terminated before the contingent fee is awarded, without cause:

A

The lawyer is entitled to reasonable fee for the serivces provided, but not until contingency comes to pass

48
Q

Contingent fee terminated with cause:

A

lawyer not entitled to payment

49
Q

Fee splitting: lawyer in the same firm may split the fee

A

in any manner they may also split purusant to agreements for speation or retirment

50
Q

Lawyers in different firms may split fees only if

A

the division is in proportion to services performed by each lawyer (or some diff proportion if each lawyer assumes joint responsibility)

The client agrees to the arragnement including the share each lawyer will receive and the arrangement is confirmed in writing, and

the total fee for all lawyers is reasonable

51
Q

Client always has the power to terminate a lawyer for

A

any reason

52
Q

The lawyer must withdraw from represneaiton or make a motion to withdraw when

A

Physical or mental disability that reasonably impairs the ability to represent the client
If the rep will result in a violtion of the rules,

Discharge by the client

53
Q

Permissive withdrawal: the lawyer may withdrawal when

A

Can be accomplished without any material adverse effects

Client persists in a course of action involving the lawyer’s services that the lawyer reasonably beleives is criminal or fraudulent

CL has used the lawyer’s services to committ past crime or fraud,

CL insists ont aking action that the lawyer considers repugnant or fundamnetally disagrees

Client breaks promise to lawyer andhas been given reasonable warning that the lawyer will withdrawal unless promise fulfilled

unreasonable financial hardship

Rep has been rendered unreasonably difficult by the client

54
Q

In a litigation and lawyer wants to withdraw, need

A

court’s permission

55
Q

Upon withdraw, lawyer must take steps to

A

protect a client’s interests, such as reasonable notice to client for other counsel

56
Q

Upon withdrawal, a lawyer must surrender

A

papers and property and refund any advanced payment or fee to which the client is entitled that has not been earned or incurred

57
Q

Competent representation requires the legal knowledge

A

skill thorougughness and preparation reaosnable necessary for the rep

58
Q

Three ways to avoid an incompetence problem (ALE

A

Associate
learn it in time
emergency

59
Q

when repping a client, a A lawyer must act with

A

reasonable dilligence and promptness

60
Q

Violation of a RPC does not necessarily mean

A

there is legal malpractice

61
Q

Malpractice requires

A

money loss and causation

62
Q

malpractice code

A

but for lawyer’s malpractice, the client would have won

63
Q

Theories of malpractice liability

A

intentional tort
breach of fiduciary duties
breach of contract
neglience

64
Q

negligence standard of care

A

standard of care:general practitioner: regular competent representation
specialist: higher standard, the standard of other specialists

65
Q

a lawyer must not settle a claim or potential claim for legal malpactice with an unreprenseted client or former client unless she advises the client in writing

A

to seek the advice of independent legal counsel and gives the client a reasonable oppotunity to do so

66
Q

a lawyer must not make an agreement prospectively limiting the lawyer’s liability to a client for malpractice unles

A

the client is independently represented in making the agreement

67
Q

A/C privelege only covers

A

confidential communications between a lawyer and a client made for the purpose of legal advice

68
Q

AC priv protects a court from

A

compelling the revelation of communications

69
Q

AC is held by the

A

client, not the attorney

70
Q

exceptions to AC

A

clients seeks attorny’s services for crime
communication is relevant to a breach of attorny client relationship
civil litgation between former joint clients
certain cases involving comeptency

71
Q

Duty of confidentiality protects

A

all infromation relating to the representation

72
Q

DoC applies to

A

any typpe of disclosure by the lawyer (not just in the courtroom)

73
Q

DOC is held by the

A

lawyer

74
Q

DOC exceptions

A

client gives informed consent
necessary to defendt self from malp. claim
to comply with court order
to prevent reasonably certain death
to secure advice about the compliance with rPC
to prevent client from commiting a crime or fraut that would result in substantial injury to dinancial interest of another,

75
Q

DOC length

A

continues after the representation ends, and aslo applies to information learned during discussions with a prospective slient

76
Q

Safeguarding funds: trust accounts

A

lawyer must not commingle funds

L

77
Q

LAwyer can deposit his own funds in a trsut account for the sole purpose of

A

paying the bank service charges

78
Q

for small sums, lawyer should use a

A

pooled trust account IOLTA)

79
Q

Types of retainers

A

advance on fees

availability

80
Q

Disputed claims: lawyer vs client:

A

lawyer holds on to the disputed portion until the dispute is resolved

81
Q

Third party vs client

A

if the 3rd has a lien on the funds held by the lawyer, the lawyer must hold the dusputed portion. If no lien, thn the lawyer must give the funds

82
Q

Rule of imputed conflicts

A

if a lawyer in a firm has a conflict, it is generally imputed t the rest of the lawyers in the firm

83
Q

Exception to rule of imputed conflicts

A

the conflict is based on a perosnal interest of the disqaulified lawuer ad doesnt present a signifcatn risk of materially limiting the representation of the client by the remaining lawyers in the firm

84
Q

Direct adversary rule

A

in general lawyer may not represnet a client whos interest are directl adverse to client 2 even if the lawyer represnet client 2 in compltely unrelated matters

85
Q

A laywer must not rep a client if there is signifcant risk that the rep will be..

A

materially limited by the lawyer’s responsiblities to another client, former client, or third person, or lawyer;s own personal interests

86
Q

If multple clients in the same matter become adverse,

A

the lawyer must obtain informed consent at the outset of the

87
Q

Laywer may not refer clients to an enterprise

A

in which the lawyer has an undisclosed financial interest

88
Q

All COI can be cured if

A

the lawyer reaosnably beleives he can rep the affect client competnetely and dilligently AND
lawyer fully explains the risks and alternatives and consent is confirmed in writing

89
Q

conflict cannot be cured if

A

lawyer would be on both sides

90
Q

A lawyer may not rep a client with adverse interests to a former client

A

in the same or substantially related matter without the former client’s consent

91
Q

Prospective client COI

A

lawyer cant rep a client if a client if a prosepctive client gave him information which is adverse to the client - if that informaiton would be significantly harmful to the prospective client

this can be waived with consent

92
Q

Lawyer cant acquire an interest in the litigation, except

A

can get a lien auth b law to secure fee, and

can contract for contingent fee

93
Q

no business transaction with a client, or ownship or interest adverse to a client, except

A

reaosnable and fair transactions to client,
fully disclosed to cl in writing
opportunoity to seek independent legal counsel
client consents in writing signed by the cl to essnetial terms

94
Q

when settling on behalf of multiple clients for a lump sum, the lawyer must

A

assure that the cl agree on how to share the sum
make extensive disclosures to the clients regarding terms
get client informed consent signed in writing

95
Q

A lawyer mut not provide financial assistance to a client

A

in connection with pending litigation, except, advance court cosets and expenses contingent upon the outcome, and lawyer repping indigent may pay court costs and expenses

96
Q

a lawyer must not solicit

A

any substantial gift from a client

97
Q

lawyer can be reciepient of substantial gift in an instrument only if

A

related to lawyer

98
Q

no literary or media rights based on

A

substantial related to representation. but can once pending litigation is complete (after appeals

99
Q

A lawyer must not accept compensation from a third party unless

A

cl gives informed consent
payor doesnt interfere with lawyer cl relationship
confidential infromation is not revealed

100
Q

if somethign bad is happening in a corporation

A

lawyer must report to a higher authority in org

if higher authority fails to act, lawyer MAY report relevant informaiton to the apprpoirate persons outside the org,

101
Q

LAeyers related to each other ordinarily may not rep adverse parties unless

A

each client gives informed consent

this is personal not imputed

102
Q

A lawyer must not have sex with a cleint

A

unless sexual rel. existed before the representation

103
Q

A lawyer may advise a client not only to law but also to

A

other considerations usch as moral economic social political factors that may be relevant to the client’s situation

104
Q

lawyer maye provide a client with an evaluation of the matter for use by a

A

third party - but must be honest about evaluation

105
Q

If the evaluation is likely to have a material and negative effect on the client the law must

A

get informed consent from the client before conducting the evaluation

106
Q

Lawyer bust not make a false statement of material fact when dealing with others, butgernally has no affirmative duty to

A

volunteer harmful facts

107
Q

A lawyer is allowed to exaggerate

A

estimates of price and value

acceptable settlement limits

108
Q

A lawyer serving as a third party neutral must inform

A

unreppred parties the lawyer is not repping them

109
Q

if litigation arises, the lawyer must not rep any of the parties unless

A

all parties can give informed consent

110
Q

LAwyer must not make false statement to tribunal and

A

fail to correct previous false statement

111
Q

A lawyer ust reveal to a tribunal

A

adverse decision or statue of controlling jurisdiction

112
Q

a lawyer cannot offer false evidecne

A

that the lawyer knows to be false

113
Q

IF a lawyer knows the criminal defendant cleint plans to committ perjury, the lawyer must

A

attempt to persuade client to testify truthfully
if client persists, consder withdraw
if all else fails, reveal to judge

114
Q

Duty to rectify false testimony lasts..

A

until end of proceedings including appeals

115
Q

a lawyer may refuse to offer evidence..

A

that she reasonably beleives is flase, but does not know if it is false, except for testimoby of a D in a criminal case

116
Q

IF lawyer comes to know E is false, the lawyer must

A

take reasonable remedial measures including disclore to the tribunal

MPRE (2 decks)

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