MRPC: PREAMBLE + Rule 1.0 Flashcards
According to the MRPC Preamble, a lawyer plays three important roles. What are they?
Cite an example for each
1) A representative of clients;
2) An officer of the court; and
3) A public citizen
Examples:
1) A divorce lawyer filing for a client
2) Correcting a material mistake from trial (ie., a client commits perjury)
3) Jonathan Mitchell created the controversial Texas abortion law
True or false: The rules of a lawyer do NOT apply when a lawyer is not at work? How about a retired lawyer?
False
[3] Rules still apply to lawyers who are not active in the practice of law or to practicing lawyers even when they are acting in a nonprofessional capacity
According to Preamble [6], a lawyer should do what things as a public citizen?
[6] As a public citizen, a lawyer should
+ Seek improvement of the law, access to the legal system, administration of justice and the quality of service rendered by the legal profession as a member of a learned profession,
+ Cultivate knowledge of the law beyond its use for clients, employ that knowledge in reform of the law and work to strengthen legal education.
+ Further the public’s understanding of and confidence in the rule of law and the justice system because legal institutions in a constitutional democracy depend on popular participation and support to maintain their authority.
Should a lawyer report his/her own violations of professional conduct?
YES. A lawyer MUST report themselves if they violate the rules of conduct.
True or false: Misconduct (violation of rules) is relevant but dispositive (outcome determinative)
Provide an example
[20] Civil liability is probative, but NOT outcome determinative in regard to discipline under the rules.
Ex: An attorney is charged with malpractice by a client and the client wins. Does this mean that the attorney will be disbarred/sanctioned? NO
What is the state’s definition of a client-attorney relationship?
The MRPC do not have a definition for the formation of an attorney-client relationship
BUT the states seem to have a slightly more demanding definition of an attorney-client relationship:
“The client seeks and receives the advice of a lawyer, regarding the legal consequences of past or contemplated conduct.”
How would a lawyer “accidentally” form a lawyer-client relationship?
The key factor in formation is the reasonable, subjective belief of the client: What you think, as the lawyer, is not material, it’s what the client thinks.
For example, you’re out of the office and someone who’s not a client comes to you for advice on a legal problem and you offer a response other than “Hey, I’m not your lawyer so I cannot advise you on this” or something to that means.
If you begin to problem solve with client to help reach their objective, you’ve former a lawyer-client relationship.
How do you know if a lawyer represents a client?
Restatement of Law Governing Lawyers §14, R.2d on Agency
Person manifests a to a lawyer the person’s intent that the lawyer provide legal services for the person and either
(a) Lawyer manifests to the person to do so; or
(b) Lawyer fails to manifest lack of consent to do so and the lawyer knows or reasonably should know that the person reasonably relies on the lawyer to provide the services
Is the question of whether a lawyer is practicing at a firm or solo a question of law or fact?
Whether lawyers are practicing at a firm is a question of fact.
Depends on:
1) Access to information; and
2) Whether they hold themselves out to the public as a firm
Ex: Denton “holding yourselves out”
What are some factors that would determine whether or not two or more lawyers were a firm?
Rule 1.0 [2] Whether two or more lawyers constitute a firm depends:
+ Two lawyers who share a space and occasionally consult one another → not a firm
+ Two lawyers who share the same space and present themselves to the public or conduct themselves as a unit → probably a firm for purposes of the Rules
What are the elements to Informed Consent under Rule 1.0?
3 elements:
1) Explain the material advantages: WHY are you recommending the course of conduct?
2) Explain the disadvantages: You must give the disadvantages
Even if they agree then you have violated the rules of informed consent
You don’t have to explain ALL technically true disadvantages
3) Provide a discussion of options and alternatives
True or false the three parts to Informed consent are discretionary, not mandatory. Why?
False. Lawyer who does not personally inform the client or other person assumes the risk that the client or other person is inadequately informed and consent is invalid
[6] Informed Consent → Lawyer MUST make reasonable efforts to ensure that the client or other person possesses information reasonably adequate to make an informed decision.
Communication MUST INCLUDE
1) Disclosure of facts and circumstances giving rise to situation
2) Explanation reasonably necessary to inform the client or other person of material advantages and disadvantages of the proposed course of conduct
3) Discussion of the client’s or other person’s options and alternatives
AND, in certain situations,
Possibly seek advice for other counsel
How do you know if a client is reasonably informed and your explanations are sufficient?
Factors, not elements:
+ Is the person experienced in general legal matters?
+ Is the person used to making decisions like this?
+ Is the client or other person independently represented by other counsel in giving consent?
“Yes” → needs less information an explanation than others, represented by other counsel in giving consent should be assumed to have given informed consent
True or false: Under MRPC 1.0 “knowledge” may be either through direct communication or inferred
True
Knowledge may be inferred from the circumstances
If a reasonable person can infer something from the consequences, that is knowledge under the rule
