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Carson's MPRE > Reg of the Legal Profession > Flashcards

Reg of the Legal Profession Flashcards

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MPRE flashcards
1
Q

<p>Should you guess on the MPRE?</p>

A

<p>Yes- no penalty for wrong guesses</p>

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2
Q

<p>Who is the main regulator of judicial conduct?</p>

A

<p>State's highest court (which then delegates to disciplinary commission or bar association)</p>

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3
Q

<p>What is the Supreme Court's standard for evaluating a state's requirements for admission to the bar?</p>

A

<p>The requirement must be "rationally related to the practice of law"</p>

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4
Q

<p>If there is a question on character and fitness, an applicant may be asked to appear before a hearing committe.</p>

<p>Who has the burden of proof for proving the "good moral character" required by the character and fitness portion of the bar application?</p>

<p>What duties does the applicant owe to the committee?</p>

A

<p>The applicant.</p>

<p>Owes duty to cooperate in reasonably investigations by the state bar and make disclosures relevant to his fitness to practice law</p>

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5
Q

<p>What kinds of misconduct/crimes can result in rejection of a bar application?</p>

A

<p>Conviction of any crime is not sufficient.</p>

<p>Misconduct involving "Moral turpitude" (ie dishonesty for personal gain, violence) is required. Nature of offense and motivation are considered. Adolescent misbehavior (e.g. fistfight) or civil disobedience are not moral terpitude</p>

<p>Lying on the bar application itself is an act of moral turpitude</p>

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6
Q

<p>What are two requirements that are not rationally related to the practice of law (and so cannot be asked on a bar application)?</p>

A

<p>Citizenship and residency</p>

Asking for these violates the equal protection and privileges and immunities clauses (respectively)

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7
Q

<p>Who is bound by the duty to comply with character investigations for a bar application? What is required by the duty?</p>

A

<p>The applicant and any of the attorney in connection with the applicat's application MUST NOT:</p>

<p>1) <strong>fail to disclose</strong> a fact necessary to correct a misapprehension <strong>known</strong> by the person to have arisen in the matter</p>

<p>2)<strong>knowingly fail to respond</strong> to a lawful demand for information</p>

<p>and of course,No KNOWINGLY false statements of material fact</p>

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8
Q

<p>B knows A lied on bar app. Does B have to report?</p>

A

<p>Yes</p>

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9
Q

<p>What constitutes professional misconduct?</p>

A

<p>violating the RPC, attempting to violate the RPC, assisting or inducing someone else to violate the RPC, using the acts of another personto violate the RPC</p>

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10
Q

<p>What kind of crimes subject a lawyer to discipline?</p>

A

Crimes involving honesty, interference with justice, violence, or fitness to practice law EVEN IF NOT CONVICTED.

The crime does not have to arise out of the practice of law, but is must reflect on some personal quality necessary to practice law in order to support professional discipline. (e.g. single instance of marijuana, soliciting prostitute, dwi don’t count)

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11
Q

<p>What kinds of acts subject a lawyer to discipline even if unrelated to their law practice?</p>

A

<p>Acts of dishonesty, fraud deceit, or misrepresentation</p>

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12
Q

<p>What is the catchall category that subjects a lawyer to discipline?</p>

A

<p>Conduct prejudicial to the administration of judtice</p>

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13
Q

<p>Can a lawyer harass or discriminate on the basis of race, sex, religion, national origin, ethnicity, age, sexual orientation, gender identity, marital status, or socioeconomic status?</p>

A

<p>Cannot harass/disciminate on those basis IN THEIR LAW PRACTICE (but can outside of their practice)

Does not affect ability to accept/decline/withdraw from a case, limit practice to only underserved populations, promote diversity. Use of preemptory strikes in a discriminatory way alone is not enough.</p>

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14
Q

<p>When does another lawyer HAVE TO report a violation?</p>

A

<p>If the lawyer KNOWS of a RPC violation that raises SUBSTANTIAL doubt as to the honesty, trustworthiness or fitness to practice</p>

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15
Q

<p>When is another lawyer PERMITTED to report a violation?</p>

A

The violation does NOT raise a SUBSTANTIAL question as to honesty, trustworthiness, or fitness

OR

The violation is SUSPECTED but not known

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16
Q

<p>What are two key exceptions to the mandatory reporting requirement?</p>

A

1) Reporting would violate a duty of confidentiality

2) Learned of the violation in a lawyer’s assistance program

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17
Q

<p>Where is a lawyer subject to regulation?</p>

A

<p>Subject to regulation in each state in which the lawyer is admitted to practice (REGARDLESS where the lawyer ACTUALLY practices or where the conduct occurred)</p>

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18
Q

<p>Choice of law agreements are permitted for which area of RPC?</p>

A

<p>Conflicts of interest only</p>

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19
Q

<p>Who is subject to discipline for practicing law without a license?</p>

A

<p>The person without the license and anyone assisting them in the unauthorized practice of law</p>

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20
Q

<p>What are categories of activities considered practicing law?</p>

A
  • appearing at proceedings
  • drafting documents that affect substantial legal rights (but non-attorneys can take the first draft if reviewed by atty)
  • negotiating settlements
  • giving legal advice
  • divorce
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21
Q

<p>What are three categories of activities that are not the practice of law?</p>

A
  • non lawyers (e.g. accountants) may appear in court of federal agencies representing clients sometimes
  • interviewing people
  • filling in forms for documents (real estate brokers, title insurance cos, escrow cos can fill out forms to sell real estate)
  • preparing tax returns (not advice on tax law)
  • publish books/pamphlets with general advice including do-it-yourself books/kits
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22
Q

<p>What are the methods of temporary out of state practice?</p>

A

APAMR
- Associate with local atty that ACTIVELY PARTICIPATES in the matter. (Get Client consent)
- admission Pro hac vice (or reasonably expect to be admitted pro has vice)
- Arbitration or Mediation
- matter reasonably Related to home state practice
^These methods also work for foreign lawyers

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23
Q

<p>What are the two methods for permanently practicing in a state you are not licensed in?</p>

A
  • In house counsel (but not litigation) and govt lawyers in not litigation practices. to litigate must seek pro hac vice
  • Lawyers in certain restricted fields like patent prosecution as authorized by federal or local law that authorizes a lawyer to to practice a restricted branch of law in a state in which he is not otherwise admitted to practice
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24
Q

<p>What are the three theoretical factors to determine practicing law?</p>

A

1) Whether the activity involves legal knowledge and skill beyond that of an average lay person
2) Whether the activity is advice or services concerning binding legal rights/remedies
3) Whether the activity is traditionally performed by lawyers

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25
Q

<p>What are the two kinds of responsibilities that partners, managers and supervising attorneys have?</p>

(Remember, you don’t have to be a partner to be a supervising attorney, but all partners are held to the standard of a supervising attorney)

A

1) Duty to prevent (REASONABLE EFFORTS to ensure compliance with the RPC. reasonable is a function of the size of the firm)

2) Vicarious responsibility
a - ORDERED or KNEW ABOUT AND RATIFIED the misconduct OR
b- knows of misconduct when it could have been mitigated and fails to take reasonable remedial action

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26
Q

<p>Are subordinate lawyers responsible for violations of the RPC if they were advised to do it?</p>

A

<p>Yes, unless the action was a reasonable resolution of a n arguable question of professional duty.</p>

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27
Q

What are the three pillars of independence from non-lawyers?

A

1) No partnerships with non-lawyers if any of the partnership activities involve the practice of law
2) No non-lawyer control or ownership interest in the firm (other that the estate of a recently deceased partner)
3) No fee splitting with non-lawyers (with limited exceptions)

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28
Q

<p>What are the exceptions to splitting fees with a non-lawyer?</p>

A

1) Death benefits to the lawyer’s estate
2) Payments to purchase practice from dead/disappeared/disabled lawyer’s representative
3) Bonus plans and regular salaries (but can’t share % of fees tied to an individual case with a non-lawyer)
4) Court awarded legal fees to non-profit that retained or recommended the lawyer

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29
Q

What is the only circumstance where a law firm can restrict a lawyer’s ability to practice?

What is the consequence if lawyers offer or accept a disallowed restriction?

A

Retirement benefit agreements

Offering or agreeing to a disallowed restriction will subject a lawyer to discipline because it not only limits the lawyer’s ability to practice. It limits the ability of clients to choose a lawyer

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30
Q

I’m selling a law practice. What do I need to do?

A

0) Exercise competence in identifying a purchaser qualified to assume the practice
1) Sell the whole thing or an entire practice group (not pieces or cases)
2) Written notice to clients that includes notice of sale, right to obtain other counsel or take files, fact that consent to transfer to buyer is presumed after 90 days. If notice cannot be given then a court order is required to transfer the representation to the purchaser
3) Cannot continue private practice in the area where the practice has been conducted if entire practice was sold (or practice in the practice area that was sold in the area where the practice was conducted)

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31
Q

I’m buying a legal practice. What do I need to do?

A

Honor the existing fee arrangements (can’t raise fees) and not pick and choose clients. (Compliance with conflicts rules is the only excuse to pick and choose)

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32
Q

When does the RPC apply to non-legal services provided by lawyers?

A

1) BUNDLES: When the services are sold separately from the legal services (ie sold as a bundle) then RPC applies to the bundle.
2) If lawyer owns or controls an entity (even if separate from the law firm entity) that provides non-legal services and does not take reasonable steps to ensure recipients know atty-client protections don’t apply, then the RPC applies to all activities.

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33
Q

<p>Where do courts get their power to regulate the legal profession</p>

A

<p>The power is inherent since the practice of law is intimately connected with the administration of justice</p>

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34
Q

<p>What is the rulebook called?</p>

A

<p>the ABA Model Rules of Professional Conduct</p>

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35
Q

<p>What are the three bodies of law that state high courts use to regulate ethics?</p>

A

<p>1) The ethics rules (modeled on the RPC)2) Case law3) Rules of Court</p>

36
Q

<p>What is a rule of court?</p>

A

<p>established by state courts that govern lawyers practicing in those courts</p>

37
Q

<p>What is an integrated bar system?</p>

A

<p>Under an integrated bar system, every lawyer that is admitted to practice in the state must also be a member of the state bar association. Most states have these.</p>

38
Q

<p>Besides state high courts, what bodies regulate the practice of law?</p>

A

<p>Congress (e.g. SOX) and state legislatures</p>

39
Q

<p>What type of statute may determine the scope of attorney client privilege?</p>

A

<p>a state evidence statute</p>

40
Q

<p>True or false: Each federal court has its own bar</p>

A

<p>True. Must become a member of that court's bar before practicing in that court. Ethical rules specific to that court's rules of court may apply (in addition to federal statutes and case law)</p>

41
Q

<p>What bodies of ethical law are federal government attorneys bound by?</p>

A

<p>The federal law/court rules plus the state laws and rules that govern the state where the attorney does her work. Government attorneys are only bound the state ethical duties (not the state rules of evidence or procedure or substantive law)</p>

42
Q

<p>Describe the choice of law rules for ethics</p>

A

<p>If the conduct occurs in connection with a proceeding that is pending before a tribunal, the ethics rules of the tribunal's jurisdiction will apply. All other conduct is governed by the rules of the juridiction in which the conduct occurred unless the predominant effect will occur in another jurisdiction.A lawyer will not be subject to discipline if conduct is proper in the state where lawyer reasonably believes the the predominant effect will occur.</p>

43
Q

<p>How must a bar applicant respond to questions from the application or follow-up inquiries?</p>

A

<p>Truthfully and completely</p>

44
Q

<p>Which trumps which: Duty of confidentiality or duty to disclose information in a bar application</p>

A

<p>The duty of confidentiality trumps. Never break the duty of confidentiality to respond the a bar application or follow-up inquiry</p>

45
Q

<p>A bar applicant has been called into a committee proceeding relating to the C&F portion of the application. What rights does the applicant have?</p>

A

<p>Has the right to know the charges filed against him, right to explain away derogatory information, and right to confront critics (per SCOTUS).</p>

<p>If denied bar admission on the basis of bad moral character, has the right to judicial review (usually by the state's highest court)</p>

46
Q

<p>What may a bar committee consider when evaluating character and fitness?</p>

A

All aspects of the applicant’s past conduct that reflect on his honesty and integrity. May consider charges against the applicant even if acquitted. May consider any litgation to which the applicant was a party.

Bad personality traits like being overly sensitive, rigid, suspicious, accusatory, and self important are enough to deny admission to the bar

47
Q

<p>I've done some bad things in the past (lie, steal, fraud, violence). Can I still be an attorney? or should I cover it up?</p>

A

<p>Maybe. Must demonstrate sufficient rehabilitation of character and present fitness to practice law.</p>

<p>Concealment of past conduct constitutes moral turpitude (even if the underluing activity does not)</p>

48
Q

<p>I refuse to take the oath to uphold the state and federal constitutions. Can I still be a lawyer?</p>

A

<p>The state can deny admission forfailure to take the oath because there is a rational connecton between the requirement an the practice of law</p>

49
Q

<p>I'm a member of a fringe political party. Can I be a lawyer?</p>

A

<p>Yes, as long as you haven't engaged in or advocated actions to overthrow the government by force or violence</p>

50
Q

I am dishonest but it is not a crime. Does that support professional discipline?

A

Yes, conduct involving dishonesty, fraud, deceit, or misrepresentation constitute professional misconduct even if they are not crimes.
e.g. cheating on the bar or plagiarism can be disciplined

51
Q

What are the two main ways a lawyer can get themselves into trouble that relate to the judiciary?

A

1) Lawyers can’t state or imply the ability to improperly influence a government agency or official
2) Can’t KNOWINGLY assist a judge or judicial officer in conduct that violates the CJC or other law

52
Q

When does a lawyer have to report a judge for violations of the CJC?

A

If the lawyer KNOWS that the judge has violated the CJC in a way that raises a SUBSTANTIAL question as to their fitness for office, MUST report.

If a lawyer does not know for sure if the CJC has been violated or if the question as to fitness is not substantial, then MAY report

53
Q

What is the consequence for failing to report misconduct?

A

Discipline for failure to report

54
Q

What are the key stages for professional discipline?

A

1) Complaint (often from aggrieved client)
2) Screening by the committee (may be dismissed without lawyer involvement)
3) Lawyer asked to respond (may be dismissed after the response)
4) Hearing
5) Decision (and possible lawyer appeal to the state’s highest court)

55
Q

Can a complaint be the basis of an action by the lawyer against the complainant for defamation?

A

No the complaint is considered privileged and so cannot be the basis for any action

56
Q

Does a complainant have any right to appeal the dismissal of the complaint?

A

No

57
Q

What rights apply in a disciplinary hearing?

A

Procedural due process applies (Right to counsel, to proper notice, to be heard and to introduce evidence, to cross-examine adverse witnesses). Hearing must be limited to the charges in the complaint.

58
Q

Can the lawyer take the 5th in a disciplinary hearing?

A

Yes and no disciplinary action may be taken on solely on the basis of the lawyer taking the 5th

59
Q

Who has the burden of proof in a disciplinary hearing?

A

The party prosecuting the charge. Must states require a burden that is heavier than the preponderance of the evidence but less than beyond a reasonable doubt.

60
Q

Do rules of evidence apply in disciplinary hearings?

A

Exclusionary rules of criminal law don’t apply to disciplinary proceedings so evidence from illegal searches admissible.

BUT rules of evidence do apply so inadmissible hearsay would be excluded

61
Q

What are the options for a decision following a disciplinary hearing?

A
  • Dismiss the complaint
  • recommend sanctions
  • take disciplinary action
62
Q

What is the standard of review if a lawyer appeals the result of a disciplinary hearing?

A

Burden is on the lawyer to prove that the committee’s action or recommendation is not supported by the record or is otherwise unlawful

63
Q

What are the most common sanctions imposed on a lawyer found to have committed professional misconduct?

A
  • Private or public reprimand or censure
  • Suspension of license to practice (automatically reinstated at the end of the suspension)
  • Disbarment (permanent revocation of the lawyer’s license. May apply for readmission upon proof of rehabilitation)
  • Could also have probation, restitution, costs of the disciplinary proceedings and limitations on the lawyer’s practice
64
Q

I’ve been suspended/disbarred in one jurisdiction, what happens in the other jurisdictions (State and federal)?

A
  • Nothing happens automatically and one state’s decision is not binding on others
  • Most states take a finding of a ethical violation in one state as conclusive proof of the violation (but the state may impose a different sanction)
  • Each federal court must make its own independent evaluation of the lawyer’s conduct. State discipline is evidence in this investigation and may be sufficient for the court to recognize the violation and impose a similar sanction
65
Q

What does a disability proceeding look like for lawyers who are incapacitated by some impairment that risks harm to clients/public/justice?

A

Procedures are same as disciplinary proceedings but provision can be made for psychiatric evaluation and diversion into a rehab program

66
Q

I’m about to associate with a local attorney so that I can temporarily practice in a new jurisdiction. What are the two things I need to make sure of?

A
  • Make sure the local counsel ACTIVELY PARTICIPATES

- and make sure you get client consent

67
Q

What is often a condition to admission pro hac vice?

A

Association with local counsel

68
Q

I plan to be admitted pro hac vice but I want to get started on the case now, can I?

A

Yes if you reasonably expect to be admitted pro hac vice, it would be proper to begin meeting with clients, reviewing documents, and interviewing witnesses in anticipation EVEN IF the case has not been filed yet

69
Q

Under what conditions can a foreign lawyer temporarily practice in the United States?

A
  • Under circumstances similar to those for an out of state domestic lawyer (APAMR)
    PLUS may provide legal services temporarily in the US if the services are governed primarily by international law or the law of a foreign jurisdiction
70
Q

What is the difference in pro hac vice admission for foreign lawyers and out of state domestic lawyers?

A

Foreign lawyers are subject to greater scrutiny than domestic lawyers. Even if the foreign lawyer is admitted pro hac vice, the judge has dissection to limit the foreign lawyer’s participation in the matter

71
Q

What is the rule for an international lawyer acting as in house counsel?

A

If a foreign lawyer practices as an in house counsel or government lawyer, they MAY NOT DIRECTLY ADVISE their client on the law of a US jurisdiction. They must consult with a lawyer who is licensed in the relevant jurisdiction and base any advice on advice obtained from the local counsel

72
Q

I’m only admitted in one state, but I practice in more than one state, who can discipline me? Where do I have to do CLE?

A
  • If practice temporarily (APAMR) or permanently (in house or special law) in a state where you are not licensed, you are subject to the disciplinary rules of the jurisdiction you are licensed in and the jurisdiction you actually practice in.
  • May be subject to both jurisdictions CLE requirements and client security assessments
73
Q

What are the possible punishments for unauthorized practice of law?

A
  • injunction
  • Contempt
  • Criminal conviction
    (and lawyers who assist are subject to professional discipline)
74
Q

When can I delegate tasks that would otherwise be the practice of law to a non-lawyer?

A

if the lawyer SUPERVISES the delegated work carefully and retains ULTIMATE RESPONSIBILITY for the results. The lawyer, not the delegate, would be the one signing documents.

75
Q

I want to hire a suspended or disbarred lawyer, can I?

A

Can only hire the suspended or disbarred lawyer to do work that a layperson is permitted to do. The suspended/disbarred lawyer may not be permitted to do any work that constitutes the practice of law

76
Q

What are lawyer’s duties with respect to non-lawyer employees of the firm/corp legal dept? What about contracted non-lawyers outside the firm?

A

Must instruct them concerning ethics of the profession and retain ultimate responsibility for the work. Partners and managers must make reasonable efforts to assure that the conduct of the non lawyers is compatible with the obligations of the legal profession. Supervising attorneys must do the same for the lawyers they supervise

77
Q

In what two situations is a lawyer subject to discipline for actions of a non lawyer which if done by a lawyer would subject them to discipline?

A

1) Lawyer ordered or knew about the conduct and ratified it OR
2) lawyer is a partner or manager or supervisor over the non lawyer and the lawyer knows about the misconduct at a time when its consequences can be avoided or mitigated and fails to remediate

78
Q

Is paying a non-attorney secretary a violation of the fee splitting rule? What about employing temporary lawyers through a placement agency?

A

Neither is a violation of the fee splitting rule

79
Q

I’ve sold my legal practice, can I still practice law?

A

You can’t practice in the field of practice of the practice that you sold in the area that you were practicing in.

BUT you can staff a public agency or legal services entity that provides services to the poor OR as in house counsel to a business

AND if there is an unanticipated change in circumstances, then returning to private practice does not necessarily violate the rules

80
Q

When do the rules for a business transaction with a client apply?

A

When a client-lawyer relationship exists

81
Q

A lawyer knows a bar applicant in another state (that the lawyer is not licensed to practice in) and the applicant listed them as a reference. The bar authority calls them as a reference, what are the lawyer’s obligations

A

Is the lawyer must be truthful and complete unless they are bound by the duty of confidentiality.

82
Q

Does the rule prohibiting an attorney from acquiring a personal interest in the subject of litigation prohibit a contingency fee where the contingency awards the attorney a portion of the subject matter of the litigation?

A

No - the rule against having a personal state in the subject matter of the litigation has a carveout for contingency fees

83
Q

Can a partner in a firm split fees with a lawyer-employee?

A

Yes - they are in the same firm so can split fees however they want.

84
Q

A lawyer must not counsel or assist a person to destroy material that has “potential evidentiary value.” At what point does this rule to preserve potential evidence come into effect?

A

If the commencement of proceedings can be foreseen, then can’t destroy anything with potential evidentiary value.

(This applies even if no claim has been asserted against the person yet)

85
Q

What is subornation of perjury?

A

the corrupt procurement of perjured testimony. Lawyers don’t want to do this

86
Q

If two lawyers in different firms are splitting shares of a contingency fee, does the writing given to the client have to identify the respective shares of the split even if the attorneys take joint responsibility? What if no joint responsibility and split according to time spent?

A

The writing given to the client must always state how the fee is being split.

Carson's MPRE (12 decks)

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