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MPRE > Roles of Lawyers > Flashcards

Roles of Lawyers Flashcards

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1
Q

What is the role of a lawyer as an advisor?

A

Must exercise indep. judgment - be candid and honest- can give client moral, econ, social, and political advice.

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2
Q

Can a lawyer give a client moral, economic, social, or political advice in addition to legal advice?

A

Yes

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3
Q

Can a lawyer evaluate a client’s affairs for a third party?

A

Yes if doing so is compatible with other responsibilities owed to the client.

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4
Q

In evaluating a client’s affairs for a third party, when does the attorney have the implied authority to disclose information to a third party?

A

When there is no significant risk to the client - can communicate directly with them.

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5
Q

In evaluating a client’s affairs for a third party, when does the attorney have to obtain the client’s consent before disclosing information to a third party?

A

When the information can be materially harmful to the client.

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6
Q

What is the lawyer’s responsibility as negotiator?

A

Cannot provide false statements of material facts in a negotiation.

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7
Q

If a lawyer is a negotiator, do they have to voluntarily give up information?

A

No

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8
Q

Can mere puffery be punished in a negotiation?

A

No

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9
Q

What items are puffed about?

A

Price

Settlement Limits

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10
Q

What is the lawyer’s responsibility as third party neutral?

A

Must make sure that an unrepresented party understand that the lawyer does not represent them.

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11
Q

What is the lawyer’s responsibility as prosecutor?

A

Must have probable Cause
Cannot violate the accused due process rights
Cannot attempt to get accused to waive pretrail rights

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12
Q

Must a prosecutor disclose evidence favorable to the defendant?

A

Yes

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13
Q

Must a prosecutor promptly disclose any new credible and material evidence of wrongful conviction?

A

Yes

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14
Q

What is the prosecutor’s responsibility if clear and convincing evidence of innocence and conviction is in its own jurisdiction?

A

Try to remedy the issue must take an actual step

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15
Q

Can a prosecutor subpoena a lawyer to get evidence about their clients?

A

No unless it is essential - non priv and can’t be obtain otherwise.

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16
Q

What is the lawyer’s responsibility in appearing in a non-adjudicative proceeding?

A

Need to state that you are appear on behalf of a client but dont need to give name.

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17
Q

What is the responsibility of a lawyer who reps an org?

A

Duty of loyalty to the organization - not the people.

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18
Q

How can a lawyer rep an org and the people?

A

Both parties must waive informed consent. Lawyer must tell them that if a conflict breaks out, you don’t rep the person and communications are not priv.

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19
Q

What happens if a person at the org keeps taking after you tell them you rep the org and what they said will hurt the org?

A

You must report it internally. If they ignore you, you MAY report it externally to prevent substantial injury.

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20
Q

If you were hired by a company to do an investigation of a violation, do you have a right to externally report violations?

A

No

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21
Q

Can a lawyer urge client to seek advice from a professional?

A

Yes

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22
Q

Can a lawyer volunteer advice to a client without being asked?

A

Yes

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23
Q

Does the duty of evaluation apply when the client asks you to evaluate the affairs of a third party?

A

No - only when you analyze the client’s affairs for a third party.

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24
Q

True or false: A lawyer who is hired to evaluate affairs for a third party can be liable to the third party for negligence in doing the eval?

A

True

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25
Q

When does a lawyer have a special obligation to be complete, accurate, and candid?

A

When the lawyer agrees to certify facts to a large number of people who will rely on this.

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26
Q

What cases lead to wide certifications?

A

Securities cases - related to prep of disclosure documents for investors. Can be held liable for misstatements and omissions of fact.

Tax shelter opinions.

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27
Q

True or false: If disclosures are inconsistent, lawyer has a duty to inquire about the correct facts?

A

True

28
Q

Is there a conflict when a lawyer who served as a partial arbitrator later becomes their lawyer

A

No

29
Q

Prosecutor and public statement about Def.

A

subject to the general rule against making statements that are likely to prejudice a trial. Furthermore, except for statements that are necessary to inform the public of the nature and extent of the prosecutor’s action and that serve a legitimate law enforcement purpose, a prosecutor must not make extrajudicial statements that have a “substantial likelihood of heightening public condemnation of the accused.” A prosecutor also must take reasonable care to prevent investigators, police, employees, and others assisting in a case from making statements that violate these rules.

30
Q

True or False: A prosecutor also must take reasonable care to prevent investigators, police, employees, and others assisting in a case from making statements that violate rules.

A

True

31
Q

True or False: A prosecutor must promptly disclose new, credible, and material evidence that creates a reasonable likelihood that a defendant was wrongly convicted. This is true even if the conviction occurred in a different jurisdiction.

A

True

32
Q

The Sarbanes-Oxley Act imposes additional obligations on securities lawyers who come across evidence of a material violation of the securities laws by their client.

How does the Sarbanes-Oxley Act differ from the ethical rule relating to violations by organizational clients?

A

If a securities lawyer becomes aware of credible evidence that her client is materially violating a federal or state securities law, she must report the evidence to her client’s chief legal officer (“CLO”).

33
Q

True or False: A prosecutor may obtain from an unrep person a waiver of pretrail rights.

A

False

34
Q

Can a protective order prevent a prosecutor from disclosing mitigating information?

A

Yes but otherwise must disclose to def. all unpriv info.

35
Q

A prosecutor must not make ____ statements that____

A

Extrajudicial

Have the substantial likelihood of heightening public condemnation of the accused.

36
Q

What is the limit of a govern lawyer over civil lit matters?

A

Should not institute or continue actions that are obviously unfair.

37
Q

Can a gov lawyer use their power to harrass parties or coerce settlement?

A

No must develop a full and fair record.

38
Q

True or false: When a lawyer represents a client before a legislative body, it must follow the same rules as though in court.

A

True

39
Q

The duty of administrative rep and duties of candor and respect do not apply when:

A
  1. Lawyer represents a client in bi-lateral negotiations with government.
  2. An application for a license.
  3. When the gov is investigating the client.
  4. when the government is investigating client’s compliance with reporting requirement.
40
Q

If a conflict breaks out between an ORG you represent and a person who works there, what should you do?

A

Tell them that you don’t represent them.

Tell them to get a lawyer.

41
Q

When a lawyer for an org learns that a person within the org has or will act in a way that violates a duty to the organization, and it will cause substantial injury, what must they do?

A

Do what is reasonably necessary to protect the interests of the organization.

42
Q

True or False: A lawyer need not report a violation to the highest authority in a corp if they reasonably believe that the org’s best interest do not require it to be reported.

A

True

43
Q

If a lawyer reports the violation to the highest authority in an org and they do nothing, the lawyer ___ report the relevant information outside of the org.

A

May

44
Q

What is the standard for a lawyer to report outside of the org?

A

Must reasonably believe that reporting is necessary to prevent substantial injury to the organization.

45
Q

Is there a duty to report if you are hired by the org to investigate a violation or to defend the org against a violation?

A

No

46
Q

If a lawyer believes that they were fired because they reported issues up the chain, they ____ proceed as they reasonably believe necessary to assure the highest authority knows of the firing or withdrawal.

A

Must

47
Q

Can you rep an org and a person?

A

Yes - must get informed consent from both parties and it cannot be the same person on both sides.

48
Q

Can a lawyer serve as both a director and lawyer to an org?

A

Yes

49
Q

If the attorney participates in a board meeting as a director and not a lawyer, does the attorney client priv apply?

A

No

50
Q

If there is a risk that the attorney cannot be both a director and keep its duties as lawyer, they must..

A

resign from one position.

51
Q

What is the law of lawyering?

A

Rules made by the SEC for securities lawyers who discover their clients are violating federal or state securities law.

52
Q

What lawyers does the SEC rules apply to?

A

Those who represent an issue of securities and who practice before the SEC.

53
Q

Do the SEC rules cover lawyers who give advice about a document that is filed by the SEC or about whether a documents should be filed by the SEC?

A

Yes

54
Q

If a securities lawyer becomes aware of credible evidence that her client is violating federal or state securities law, she ___ report the evidence to client’s _______ or ____.

A

Must

Chief Legal Officer or CEO.

55
Q

If a securities lawyer becomes aware of credible evidence that her client is or has breached a fiduciary duty under federal or state law, she ___ report the evidence to client’s _______ or ____.

A

Must

Chief Legal Officer or CEO.

56
Q

When you report a securities violation to the CLO, what must they do?

A

Investigate the situation to determine if the violation occurred or turn it over to the legal compliance committee.

57
Q

What does a CLO have to do if it determined that no violation occured?

A

Report that to the securities lawyer

58
Q

What does a CLO have to if they determine a violation occurred?

A

Must take reasonable steps to get the client to make an appropriate response for client to stop of remedy situation and must report to securities lawyer

59
Q

What must a securities lawyer do if it determines that CLO did not take appropriate action?

A 
Must report the evidence to:
- clients whole board of directors
- audit committee of the board
or
-a committee made up of outside directors.
60
Q

Is reporting required under Sarbanes=Oxley?

A

Yes

61
Q

True or False: A securities lawyer can reveal to the SEC without the client’s consent any confidential info?

A

True

62
Q

Under what cases can a securities lawyer reveal confidential info to the SEC?

A
  • Stop client from committing substantial injury to client to client or investors
  • rectify financial injury if lawyer’s services were used
  • prevent the client from committing perjury in the SEC or lying to the FEDs.
63
Q

True or False: A securities lawyer that violates Sarbanes Oxley can be disciplined by SEC.

A

True

64
Q

True or False: A securities lawyer who complies with Sarbanes Oxley can be held civilly liable for doing so.

A

False and cannot be discipline under any inconsistent state rule.

65
Q

If a securities lawyer is fired for complying with Sarbanes Oxley, she ___ report the firing to the client’s board of director.

A

may

MPRE (22 decks)

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