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Rule Statements MBE and MEE > Professional Responsibility > Flashcards

Professional Responsibility Flashcards

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MBE flashcards
1
Q

Employing a disbarred attorney

A

Cannot employ disbarred attorney for purposes of giving legal advice, representing client, or engaging in activities that constitute the practice of law

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2
Q

Assisting in unauthorized practice of law

A

Lawyer knowingly assist a person not admitted to the bar in unauthorized practice of law. The non-lawyer is subject to civil and criminal penalties

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3
Q

Supervision of non lawyers

A

Supervising attorney must make reasonable efforts to ensure that person’s conduct conforms to ethics rules

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4
Q

Threatening criminal charge for advantage

A

CA lawyers prohibited from threatening criminal or disciplinary charges for an advantage in a civil suit

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5
Q

Duty of Candor - frivolous claim

A

CA RPC a lawyer must not present a claim or defense in litigation that is not warranted under existing law, unless it can be supported by a good faith argument for change in law

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6
Q

Communication with represented person

A

Not permitted to speak about subject of the case with person known to be represented by counsel unless lawyer has consent by other lawyer or court order

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7
Q

Duty of competence

A

CA RPC requires lawyer must not intentionally, recklessly, with gross negligence, or repeatedly fail to perform legal services with competence

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8
Q

Duty of loyalty

A

Owe clients duty of loyalty. Loyalty and independent judgment are essential elements in lawyers relationship with client

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9
Q

Conflict of interest and how to get around it

A

Arises when significant risk that representation of client will be materially limited by lawyers personal interests or interests of 3rd party.

1) lawyer reasonable believes he can competently and diligently represent client
2) not prohibited by law
3) does not involve association of a claim by one client against another client in the same case
4) each client gives informed written consent

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10
Q

Duty to withdraw

A

Lawyer must withdraw when representation will result in violation of the rules of professional conduct or other law

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11
Q

Inadvertent disclosure

A

Under CPRC, when it is apparent that writing was inadvertently sent, and should know it’s privileged or work product, lawyer shall
1) refrain from examining any more than necessary to determine it’s privileged
2) promptly notify the sender and try to return it

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12
Q

Duty to Communicate

A

Lawyer has duty to keep client reasonably informed of status of the case and all important matters relevant to the case and promptly comply with reasonable requests for information. In CA must keep client informed about significant developments

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13
Q

Duty of Candor

A

Must not knowingly make false statement of fact or law to tribunal or fail to correct false statement of material fact or law previously made, and not knowingly offer false evidence

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14
Q

Duty of Confidentiality

A

Prohibited from disclosing information relating to the representation of a client unless authorized by informed written consent, impliedly authorized, or an exception applies

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15
Q

Duty of loyalty - former clients

A

Lawyer who previously represented a client must not later represent another person in the same or substantially similar matter if that person’s interests are materially adverse to the former client’s interest unless informed written consent given by former client

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16
Q

Corporate misconduct

A

Upon discovery, lawyer must report matter to higher authority in organization

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17
Q

Corporate misconduct - no higher authority to report to

A

1) clear violation of law
2) violation certain to cause substantial injury to organization
3) lawyer MAY reveal information to outside authorities to the extent necessary to prevent the injury

CA rules: CANNOT report unless risk of substantial harm or death

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18
Q

Attorney client relationship

A

Begins when client reasonably believes relationship exists, no formal writing required

19
Q

Retainer agreement

A

Contingent fee - must be in writing

CA: Any services contract must be in writing if total expenses to client exceeds $1k. Signed by both parties. Copy given to client

20
Q

Fees

A

Must be reasonable based on skill required, labor, time. In CA must not be unconscionable

21
Q

Permissive withdraw in CA

A

Model rules: can withdraw at any time if not materially harming client
CA: needs proper reason

22
Q

ABA reasons to permissively withdraw despite material harm

A
  1. Client Crime or fraud
  2. Used attorney services to commit crime or fraud
  3. Client insists on (attorney pov) repugnant action
  4. Client makes Representation unreasonably difficult
23
Q

CA rules when lawyer may withdraw

A
  1. Client claim or defense not warranted under existing law, and no GF argument to change it
  2. Client pursuing criminal or fraudulent activity, or used lawyers services for it
  3. Client insists on lawyer pursing criminal conduct
  4. Client makes rep unreasonably difficult
  5. Continuation likely to result in CA rule violation
24
Q

Procedures to withdrawing

A

Must give client reasonable notice
If litigation pending, must get court approval

25
Q

Termination duties

A
  1. Return everything to client
  2. CA rules cannot hold anything for payment, must return everything
  3. Cannot hold any unearned advanced fees
26
Q

Corporation fee agreement

A

Writing not required if client is corporation (unless contingency fees)

27
Q

Contingent fees not allowed in

A

Crim or domestic case (if contingent on result of obtaining divorce if on amount of support recovered

28
Q

Contingent fee requirements

A
  1. Writing, signed by both w copy to client
  2. Terms of calculating fees
  3. Expenses that Client is liable for

If failure to comply, lawyer still entitled to reasonable fee

29
Q

Fee splitting

A

Same firm: totally ok
CA rules:
1. lawyers written agreement between each other
2. Client informed written consent
3. Total fee is not unconscionable

30
Q

Referral fees

A

CA allowed
May give gift or gratuity for a referral, but gift or gratuity can’t be offered in anticipation of referral or for future referrals

31
Q

Fee-split w non-lawyers

A

Cannot fee split w non lawyers or partnership w them if any activities include the practice of law

32
Q

Client privilege CA rules

A

Terminates when clients estate is settled and the personal representative is discharged

33
Q

Exceptions to client privilege

A

CA: future crime or fraud committed by anyone
- or lawyer reasonably believes that disclosure is necessary to prevent death or substantial bodily harm of an individual

34
Q

Opposing lawyers related

A

Must notify client in writing

35
Q

Lawyer as a witness

A

Cannot act as an advocate in a trial if likely to be a necessary witness unless testimony related to uncontested issue or nature and value of legal services

36
Q

Acquiring interest in litigation

A

Cannot obtain proprietary interest unless:
1. Lawyer acquires lien by law to secure payment OR
2. Contingency fee

37
Q

CA limiting malpractice recovery

A

Prohibited from doing so, ABA allows it if client rep’d by another lawyer

38
Q

Third party payment

A

Client needs to give informed written consent

39
Q

Gaining competence

A

May accept case and gain competence by preparation of association with experienced attorney in that field

40
Q

Duty of fairness to OC

A

Lawyer must not unlawfully obstruct opposing parties access to evidence

CA: May not pay witness fee contingent on their testimony or outcome of case, only for their expenses or expert witness fees

41
Q

False evidence

A

Prohibited ONLY if attorney knows it’s false

42
Q

If client refuses to retract or correct false evidence

A

Withdraw if possible

If not allowed, CA says cannot disclose confidential info that is protected by rules
Just don’t restate anything false in closing argument

43
Q

Who can you solicit

A

Lawyers, family member, close friend, or someone that the soliciting lawyer had a professional relationship with

44
Q

Integrity of other attorneys

A

CA: no duty to report attorney wrongdoing
ABA: duty if actual knowledge

Rule Statements MBE and MEE (15 decks)

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