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2011-10-20 03:48:55
Jae mpre

MPRE flashcards
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  1. When can fees be shared with non-lawyers?
    • 1. death benefit by agreement with deceased lawyer
    • 2. purchase price for sale of deceased, disabled, disappeared lawyer's practice
    • 3.retirement/compensation of firm employees
    • 4. to pay non-profit organization that hired/recommended lawyer
  2. Membership in the ABA is...
  3. Does the ABA have disciplinary authority?
  4. What are the 4 types of discipline for violating a mandatory rule?
    1. private reprimand/censure

    2. public reprimand/censure

    3. suspension (finite)

    4. disbarment
  5. How are state disciplinary rules determined?
    by the highest court in the state

    note: moral turpitude (bad) v. good moral character (good)
  6. What are examples of rational state requirements for bar admission?
    1. graduation from an ABA accredited law school

    2. oath be taken to uphold fed & state constitutions
  7. What are examples of irrational requirements for bar admission?
    1. U.S. citizenship

    2. residency in a state
  8. What bar applicant requirements/responsibilities?
    truth and full disclosure

    duty to cooperate
  9. What are the requirements for lawyers regarding applicants?
    good applicants-input is aspirational

    bad applicants-duty to disclose/report when asked or correct something they believe may have arisen in the matter
  10. Advance payments of fees
    may be required by attorney, but any unearned part must be refunded if attorney is fired or withdraws
  11. Exceptions to privilege
    1. waived by client

    2. client seeks atty's service to engage in or assist in crime/fraud

    3. communication is relevant to issue of breach of atty-client
  12. What are the requirements for selling a law practice?
    1. entire practice or entire field of practice must be sold

    2. seller must exercise competence in identifying competent purchasers

    3. written notice to clients*

    4. seller must cease to engage in private practice (@least in sold field)

    5. purchaser must take all cases
  13. Contingent fee arrangements
    must be reasonable and signed by client

    ***NOT used in criminal or domestic (ok in debt collections)
  14. What are attorney decisions?
    1. which court to file in

    2. depos

    3. discovery

    4. continuances
  15. What are client decisions?
    1. whether to sue

    2. settle (must inform of all offers unless client gives range with I/C)

    3. testify ( D in criminal case)

    4. plea

    5. jury v. bench

    6. appeal

    ***case expenses & 3rd party well being
  16. Exceptions to accepting "must" appointments
    1. unreasonable financial burden

    2. duty to reject if: physical/mental inability, conflict of interest, frivolous claim or defense, strong feelings, or bias, incompetence
  17. Exceptions to general freedom to reject cases
    1. defenseless or oppressed (should take)

    2. fair share of pro bono (should do)

    3. appointments (must)
  18. Dual profession lawyers
    1. permissible (may be listed in ad)

    2. cannot solicit legal business through dual profession

    3. atty-client privilege doesn't apply to dual professsion

    4. ancilliary services ok
  19. What is the definition of a law firm?
    lawyers who frequently consult, work jointly, and have access to each other's files
  20. Activities that DO NOT require a license
    1. interviewing ppl

    2. filing in forms

    3. writing legal memos
  21. Activities that require a license (practice of law)
    1. appearance in judicial proceedings & depos

    2. drafting documents that impact sunstantial legal rights

    3. negotiating settlements
  22. When are subordinates not responsible for their actions?
    1. you were told to do it AND

    2. if its arguable that you didn't realize it was wrong
  23. When a supervisor responsible for subordinate actions?
    1. knew of misconduct at a time when consequences can be avoided or mitigated & lawyer fails to take reasonable remedial action or;

    2. if violation raises a substantial question as to lawyer's character & supervisor ordered or ratified conduct
  24. Permissible permanent multi-jurisdictional practice
    • 1. employed by only client which has several offices
    • ex. corp lawyer or govt lawyer

    • 2. legal services authorized by federal or local law
    • ex. patent (national license)
  25. Permissible temporary multi-jurisdictional practice
    1. associate w/active local lawyer

    2. special permission (pro hac vice-for this matter only)

    3. mediation or arbitration out of home-state practice

    4. anything reasonably related to lawyer's home state practice
  26. Duty when you know of violation (lawyers)
    1. must report what you know unless protected by atty-client

    2. being available to testify against them
  27. Exceptions to the confidentiality rule (8)
    1. waived by client

    2. required by law or court order

    3. informed consent

    4. implied authority to disclose to further the representation

    • 5.client fraud or perjury
    • a. past fraud/perjury can't be disclosed
    • b. present fraud/perjury lawyer must seek to withdraw, denied or withdrawal will not solve, lawyer must tell judge

    6. to get legal or ethical advice for lawyer

    7. to prevent reasonably certain death or substantial bodily harm

    8. to prevent substantial financial harm or fraud if the client is or has used the lawyer's services in the matter.
  28. Past crimes are consider
  29. Does death end confidentiality obligations?
  30. Conflicts (some) can be cured by...

    lawyer explaining risks & alternatives (informed consent)

    client agrees in writing (can be electronic)
  31. May lawyer make loans to their clients?
    No, except advancing costs of litigation
  32. Rule of imputation
    what one lawyer cannot take, the firm cannot take unless the conflict is unique to the lawyer or involves the lawyer as witness
  33. Sexual relationships
    if it starts during representation lawyer is subject to discipline (consent & harm are irrelevant)

    imputation does not apply, but screening is required
  34. Can lawyers acquire an interest in the case?

    exceptions: contingency fee & security lien
  35. Can lawyers enter business deals with clients?

    exceptions: ordinary transactions, terms fair & in writing
  36. How must aggregate settlement of claims for multiple clients be handled?
    each client must have full review which includes how the sum will be shared, the total amount to be paid or received, details on every other clients amount, how atty fees will be paid, and the existence/nature of all claims, defenses, and pleas involved
  37. Privilege for prospective clients
    applies to what they tell you
  38. Can 3rd parties pay atty fees?
    Yes, with written informed consent from client & confidences must be kept
  39. Imputed conflict-family
    lawyers related as parent, child, sibling, or spouse cannot represent adverse parties unless full informed consent; but no rule of imputation
  40. Can former judges, arbitrators, mediators, or other 3rd party neutral or govt lawyers represent parties in private practice?

    Cannot take "matters" where previously acted or had substantial responsibility absent written informed consent, but no rule of imputation-so long as lawyer is screened off from case
  41. Matters that lawyer in private practice can take despite working on them as govt lawyer or judge
    drafting law

    compiling statistics
  42. Matters that a lawyer in private practice CANNOT take because of work done as a judge or govt lawyer
    drafting a contract for the govt

    judge-when they ruled on the merits of a case
  43. Quick advise programs ethics rules
    conflicts rules relax, but where a conflict is actually known, it cannot be ignored

    actual knowledge can inferred from the circumstances

    where client hires lawyer after the quick advice (conflicts rules will apply)
  44. Competence
    professional responsibility + malpractice

    ***malpractice does not automatically mean a rule has been violated & vice versa
  45. Civil liability to client (including malpractice)
    recovery- based in contracts, torts, or fiduciary relationship

    requires $$$ loss & causation (but for)

    purpose of civil malpractice-compensation
  46. How is the disciplinary process different from civil liability?
    • disciplinary process' purpose is punishment
    • & does not require money loss or causation
  47. malpractice insurance
    prudent lawyers carry malpractice insurance
  48. Limiting liability to malpractice
    lawyers cannot prospectively limit unless client has independent representation in making agreement
  49. What does candor to the tribunal entail?
    • 1. can't bury adverse decision
    • 2. no explanation is required to be given to court
    • 3. can distinguish away
    • 4. can offer a good faith argument to change the law
  50. Trial publicity
    no statements outside courtroom that lawyer reasonably should have known would have substantial likelihood of materially prejudicing case
  51. Can a lawyer be a witness?
    generally: lawyer cannot be material witness

    exceptions: uncontested matter or if about legal fees, substantial hardship on client
  52. May lawyers communicate with represented parties?
    No, have go through their lawyer

    but parties can communicate directly with each other
  53. May lawyers communicate with unrepresented people?
    • 1. can't give legal advice
    • 2. cannot appear disinterested when they are advocate/adversary
    • 3.can negotiate transaction or settle clients dispute with un-represented person
  54. Can a witness be paid for testimony?
    No contingent fees for experts

    reasonable expenses & lost wages, but cannot be conditioned on testimony
  55. May lawyers communicate with jurors during trial
    absolutely not (unless authorized by law or court order)
  56. Juror communication after trial
    Lawyers must not communicate with jurors if:

    1. court says no

    2. juror says no contact

    3. if communication involves coercion or harassment
  57. Duties of prosecutor
    1. must not prosecute w/o probably cause

    2. assure accused is advised of right to counsel, know how to get counsel, & given chance to do so

    3. must seek to remedy conviction of D in jurisdiction if they know of clear & convincing evidence of innocence

    4. disclose new credible & material evidence that creates reasonable likelihood that D was wrongfully convicted
  58. Disclosure duty when working on law reform project
    must disclose if they have clients that will benefit from decision, but must keep client identity confidential
  59. corporate representation
    you represent the company, not the individual officer or director
  60. Duty of security lawyers under Sarbanes-Oxley
    to report up the chain of command to CEO

    if not appropriate response then must report to board & may report to SEC
  61. IOLTA
    • interest on lawyers trust accts
    • (interest goes to non-profit bar assn for pro bono)
  62. Advance on fees
    belongs to client (goes in trust acct) any unearned part must be returned if lawyer is fired or withdraws
  63. availability retainer
    belongs to atty (goes into lawyers acct)
  64. Gifts
    may be accepted (if reasonable), but must NOT draft will or deed of gift unless related to donor
  65. Splitting fees
    is ok with lawyers from outside firms if they work together, client gives written informed consent & knows share each lawyer gets, pay is portional to work

    or different proportion if lawyers assume joint responsibility for matter

  66. Reciprocal referal arrangements
    ok (with lawyers & non lawyers)

    as long as they are not exclusive, referred client must be told about arrangement, I/C needed for conflict, referall agreement cannot interfere with lawyers professional judgment

    agreement should not be indefinite duration
  67. solicitation
    seeking fee paying work through in person, live telephone, or real time electronic w/a non-lawyer that is not family, close personal or previous relationship
  68. Permissible solicitation
    targeted direct mail, group & prepaid legal services (as long as not solicited to those "in need of legal services"), education,close friends/family, present client, former client
  69. What kind of lawyers can call themselves specialists?
    patent & admiralty (special bar)


    others if certified by org approved by state or ABA (must ID org)
  70. Appearance of impropriety (judges)
    when judge's conduct creates a reasonable perception that CJC has been violated or that otherwise reflects adversity on the judge's honesty, impartiality, temperament or fitness as a judge.
  71. Judicial competence
    requires legal knowledge, skill, thoroughness, & preparation
  72. When can judges have ex-parte communications?
    1. expressly authorized by law (drug or mental health judges)

    2. mediation or settlement (w/consent of parties)

    3.emergency or de minimus

    4. inadvertent receipt of unauthorized ex parte communication (must notify & allow opportunity to respond)
  73. Administrative appointments
    must be impartially based on merit & not nepotism or favoritism