MPRE1 Flashcards
ABA on disciplinary authority
The ABA has no disciplinary authority and membership is volutary
Most states have their own rules of
professional conduct and mdoel rules, and the model rules control the MPRE
Must rules
Mandatory and violating lawyer is subject to discipline
Should rules
advisory
The state’s highest court
have the inherent power to regulate lawuers and adopt ethical rules for lawyers
Requirements for bar admission must be
rationally related to the practice of law
What is a rational requirement?
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
What is not rational ?
US citizenship
Residency in the state
Banning groups or members of groups
A lawyer must not
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
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
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
Lawyers have the same duty to report
Judges who violate the CJC
A lawyer is subject to discipline for committing a crime f the crime is
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)
Any fraud, dishonesty, misrepresentation, or deciet is grounds for
discipline
In conduct related to the practice of law, a lawyer must not harrass or
discriminate on the basis of race, sex, religion, natl origin, ehtnicity, age, sexual orient..
Any state to which the lawer is admitted to practice has the power to discipline a lawyer, regardless of
where the misconduct occured
A lawyer not admitted to the state bar is also subject to the jurisdiction of the state if
the lawyer renders or offers to render any legal services in the state
Choice of law: which law applies for conduct in connection with a litigation?
Court that the litigation sits in
only licensed lawyers can negotiate
settlements
What activities require a license and constitute the practice of law?
Appearance in judicial proceedings and depositions
Drafting documents that affect substantial legal rights
negotiate settlements
What activities do not require a license
Interviewing people
Filling in forms
Writing memos
Permissible temporary MJD practice
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
Permissible permanent MJD practice
LAwyer employed by her only client (usual in house counsel like govt employees)
lawyers generally have no duty to accept
clients
A relationship may be formed if
client manifiests intention to be repped, lawyer fails to adequately decline, lawyer knows that the client is reaosnably relying on her to provide services
A lawyer must not seek to avoid appointment by a tribunal to represent a person except for good cause, such as
unreasonable financial burden or personal inability to represent client
A lawyer may reasonably limit the scope of the representation if
the client gives informed consent (im only going to rep you pre-trial)
In a civil case, the lawyer must abide by the clients decision to
settle
In a criminal case, the lawyer must abide by the clients decision, after consultation, to
Plea
waiver of jury trial
whether to testify
In a civ or crim case, the lawyer must abide by the client’s decision whether to
appeal
The lawyer may make _____ decisions
strategic
but client can veto when it comes to expenses
A lawyer must not counsel a client to engage, assist a client, in conduct that the lawyer knows is
criminal or fraudulent
If a client has diminished capacity, try to maintain a normal relationship. If necessary, the lawyer should
take protective action and get guardian appointed
A lawyer must reasonably consult with the client about the means by which the client’s
objectives are to be accomplished
Keep the client reasonably
informed about the status of the matter
Lawyer must promptly comply wth
reasonable requests for information
Lawyer must explain matters to a client to the extent
reasonably necessary to permit the client to make informed decisions regarding the representation
The fee arrangement must be
communicated with a client before or within a reaosnable amount of time after start of represenation
As a general rule, written fee arrangement is
preferred
All fees must be
reasonable
(time and labor, novelty, whehter must turn away other cases, what other attorneys charge, amount at stake, nature and length of the relationship
Contingent fees are generally permissible but the agreement must
be in writing signed by the client
contingent fee arrangement must clearly notify the client of
any expenses which the client will be liable for
contingent fees are prohibited when
representing a client in a criminal case
In a domestic relations case, contingent fees are prohibited if
the payment or amount is contingent upon the securing of the divorce or amount of alimony or support gauranteed
Past due contingency free arrangemetns are
ok. Contingency to be paid in future collections / breach of contract that looks like a DR case
Required disclosures to a client:
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
At the conclusion of a contingent fee matter, the lawyer ust
provide the client witha . written statement outlining how the fee was determined
When the lawyer is terminated before the contingent fee is awarded, without cause:
The lawyer is entitled to reasonable fee for the serivces provided, but not until contingency comes to pass
Contingent fee terminated with cause:
lawyer not entitled to payment
Fee splitting: lawyer in the same firm may split the fee
in any manner they may also split purusant to agreements for speation or retirment
Lawyers in different firms may split fees only if
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
Client always has the power to terminate a lawyer for
any reason
The lawyer must withdraw from represneaiton or make a motion to withdraw when
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
Permissive withdrawal: the lawyer may withdrawal when
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
In a litigation and lawyer wants to withdraw, need
court’s permission
Upon withdraw, lawyer must take steps to
protect a client’s interests, such as reasonable notice to client for other counsel
Upon withdrawal, a lawyer must surrender
papers and property and refund any advanced payment or fee to which the client is entitled that has not been earned or incurred
Competent representation requires the legal knowledge
skill thorougughness and preparation reaosnable necessary for the rep
Three ways to avoid an incompetence problem (ALE
Associate
learn it in time
emergency
when repping a client, a A lawyer must act with
reasonable dilligence and promptness
Violation of a RPC does not necessarily mean
there is legal malpractice
Malpractice requires
money loss and causation
malpractice code
but for lawyer’s malpractice, the client would have won
Theories of malpractice liability
intentional tort
breach of fiduciary duties
breach of contract
neglience
negligence standard of care
standard of care:general practitioner: regular competent representation
specialist: higher standard, the standard of other specialists
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
to seek the advice of independent legal counsel and gives the client a reasonable oppotunity to do so
a lawyer must not make an agreement prospectively limiting the lawyer’s liability to a client for malpractice unles
the client is independently represented in making the agreement
A/C privelege only covers
confidential communications between a lawyer and a client made for the purpose of legal advice
AC priv protects a court from
compelling the revelation of communications
AC is held by the
client, not the attorney
exceptions to AC
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
Duty of confidentiality protects
all infromation relating to the representation
DoC applies to
any typpe of disclosure by the lawyer (not just in the courtroom)
DOC is held by the
lawyer
DOC exceptions
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,
DOC length
continues after the representation ends, and aslo applies to information learned during discussions with a prospective slient
Safeguarding funds: trust accounts
lawyer must not commingle funds
L
LAwyer can deposit his own funds in a trsut account for the sole purpose of
paying the bank service charges
for small sums, lawyer should use a
pooled trust account IOLTA)
Types of retainers
advance on fees
availability
Disputed claims: lawyer vs client:
lawyer holds on to the disputed portion until the dispute is resolved
Third party vs client
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
Rule of imputed conflicts
if a lawyer in a firm has a conflict, it is generally imputed t the rest of the lawyers in the firm
Exception to rule of imputed conflicts
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
Direct adversary rule
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
A laywer must not rep a client if there is signifcant risk that the rep will be..
materially limited by the lawyer’s responsiblities to another client, former client, or third person, or lawyer;s own personal interests
If multple clients in the same matter become adverse,
the lawyer must obtain informed consent at the outset of the
Laywer may not refer clients to an enterprise
in which the lawyer has an undisclosed financial interest
All COI can be cured if
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
conflict cannot be cured if
lawyer would be on both sides
A lawyer may not rep a client with adverse interests to a former client
in the same or substantially related matter without the former client’s consent
Prospective client COI
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
Lawyer cant acquire an interest in the litigation, except
can get a lien auth b law to secure fee, and
can contract for contingent fee
no business transaction with a client, or ownship or interest adverse to a client, except
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
when settling on behalf of multiple clients for a lump sum, the lawyer must
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
A lawyer mut not provide financial assistance to a client
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
a lawyer must not solicit
any substantial gift from a client
lawyer can be reciepient of substantial gift in an instrument only if
related to lawyer
no literary or media rights based on
substantial related to representation. but can once pending litigation is complete (after appeals
A lawyer must not accept compensation from a third party unless
cl gives informed consent
payor doesnt interfere with lawyer cl relationship
confidential infromation is not revealed
if somethign bad is happening in a corporation
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,
LAeyers related to each other ordinarily may not rep adverse parties unless
each client gives informed consent
this is personal not imputed
A lawyer must not have sex with a cleint
unless sexual rel. existed before the representation
A lawyer may advise a client not only to law but also to
other considerations usch as moral economic social political factors that may be relevant to the client’s situation
lawyer maye provide a client with an evaluation of the matter for use by a
third party - but must be honest about evaluation
If the evaluation is likely to have a material and negative effect on the client the law must
get informed consent from the client before conducting the evaluation
Lawyer bust not make a false statement of material fact when dealing with others, butgernally has no affirmative duty to
volunteer harmful facts
A lawyer is allowed to exaggerate
estimates of price and value
acceptable settlement limits
A lawyer serving as a third party neutral must inform
unreppred parties the lawyer is not repping them
if litigation arises, the lawyer must not rep any of the parties unless
all parties can give informed consent
LAwyer must not make false statement to tribunal and
fail to correct previous false statement
A lawyer ust reveal to a tribunal
adverse decision or statue of controlling jurisdiction
a lawyer cannot offer false evidecne
that the lawyer knows to be false
IF a lawyer knows the criminal defendant cleint plans to committ perjury, the lawyer must
attempt to persuade client to testify truthfully
if client persists, consder withdraw
if all else fails, reveal to judge
Duty to rectify false testimony lasts..
until end of proceedings including appeals
a lawyer may refuse to offer evidence..
that she reasonably beleives is flase, but does not know if it is false, except for testimoby of a D in a criminal case
IF lawyer comes to know E is false, the lawyer must
take reasonable remedial measures including disclore to the tribunal
