Card Set Information

2014-03-28 13:52:19
MPRE law ethics

Show Answers:

  1. Topics  covered in the MPRE
    • 1. Regulation of the Legal Profession
    • 2. The Lawyer-Client Relationship
    • 3. Client Confidentiality
    • 4.
  2. Powers of Courts and Other Bodies to regulate Lawyers- Types and function
    • 1. ABA
    • - voluntary; no disciplinary authority
    • -"must" rules: mandatory
    • - "should" rules: advisory, no punishment for violation
    • - punishment= private reprimand/censure; public reprimand censure; suspension (for a finite period); disbarment

    • 2. Judicial system
    • - U.S. Supreme court ultimate authority
    • - State's highest court determines rules for state (not state legislatures)

    3. State laws- have "good moral character"
  3. State requirements for admission to bar need to be _____ to the practice of law
    rationally related: 

    • 1. graduation from ABA accredited law school
    • 2. take oath to uphold constitution

    • not rational:
    • 1. lack of U.S. citizenship
    • 2. lack of residency in state
  4. A bar applicant's requirements
    • 1. truth and full disclosure: every single thing, even if record expunged
    • 2. duty to cooperate
  5. Requirements for lawyers regarding applicants
    • 1. for good applicants, should have input
    • 2. for bad applicants, duty to report when asked, or to correct something you believe may have arisen in the matter
  6. After admission, lawyers are regulated by__
    highest state court and its agencies
  7. Profession is self-regulating, two pronged duty when lawyer knows of a violation:
    • 1. report what you know unless lawyer for other lawyer (protected by attorney-client relationship)
    • 2. be available to testify against that lawyer and cannot testify anonymously
  8. If unethical conduct is a crime, to be regulated by ABA, the crime must be__
    relevant to some aspect of practice of law

    (so one instance of drunk driving not necc punished)
  9. a lawyer who commits _1__ in the conduct of a business is _2___ even if__3__
    • 1. fraud
    • 2. subject to discipline
    • 3. the lawyer is not active in the practice of law
  10. membership in ____ an exception of duty to report
    approved lawyer's assistance program
  11. Multijurisdictional practice: basic rules
    • 1. can't do it where not admitted
    • 2. permitted to practice temporarily if either:
    • - associate with an active local lawyer OR
    • - special permission pro hac vice OR
    • - mediation or arbitration out of home state practice
    • - reasonably related to lawyer's home state practice

    NOTE: also includes foreign lawyers

    3. permanent multi-jur practice- employed by her only client which has several offices (i.e. in house counsel, government lawyer --> subject to both jursd's rules)
  12. supervisor responsible for acts of subordinate if__
    a. knew of misconduct at a time when consequences could be avoided or mitigated AND the lawyer fails to take remedial action


    if the violation raises a substantial question as to the lawyer's character and supervisor either ordered or ratified the conduct
  13. subordinate not responsible for his/her own acts if
    • a. was told to do it AND
    • b. at least arguable that she thought the action was okay
  14. The following activities require a license
    • 1. appearances in court and deposition
    • 2. drafting documents that impact substantial client rights
    • 3. negotiating settlements
  15. activities that don't require a license
    • 1. memo writing
    • 2. interviewing clients
    • 3. filling in forms (i.e. real estate docs)

    NOTE: supervisor must make reasonable efforts to ensure that non-lawyer conduct in AND outside the firm conforms to the rules
  16. fee division
    1. generally no fee division


    • 1. heirs of a deceased attorney
    • 2. employees in the form of salaries and as part of pension or bonus plans
    • 3. may share court-awarded fees with a nonprofit that employed, retained or recommended employment of the lawyer
  17. Law firm includes lawyers who___.

    Only lawyers can be___
    -  frequently consult, work jointly, and have access to each other's files. 

    partners (or officers if corporation) if any part of business is practice of law EXCEPT shareholders and it's only temporary
  18. can't use dual profession to___
    solicit legal business
  19. attorney client privilege does not apply in the ___ profession
  20. it is okay to provide services______
    reasonably performed in conjunction with and related to legal services
  21. generally cannot have ____ clauses, except if ___
    • 1. non-compete
    • 2. partners are separating
  22. Generally, lawyers have freedom to ___ cases except when [list]____. And must ____, unless
    • 1. reject
    • 2. should accept "defenseless or oppressed cases", should do fair share of pro bono (50 hours/year recommended)
    • 3. accept judge appointments, unless it creates an unreasonable financial burden
  23. Duty to reject cases
    • physical or mental inability
    • conflict of interest
    • frivolous claim or defense
    • strong feelings or bias
    • incompetence/ lacking the legal expertise, unless: Association, Learn, or Emergency
  24. important decision belonging to the client
    whether to:

    • sue
    • settle
    • testify
    • plea
    • jury/bench
    • appeal
    • case expenses
  25. decision belonging to attorney
    • in which court to file
    • depositions
    • discover- whether to seek/produce
    • continuances- whether to request or grant a request
  26. when client under diminished mental capacity, or is a minor, client decision do not____ rather you must___
    • -shift to lawyer
    • - get a guardian appointed

    and lawyer SHOULD both respect and involve the client
  27. Subject to discipline for knowingly making a ___ or failing to ____
    • -false statement of fact or law to the court 
    • -correct a previously made false statement of material law or material fact
  28. to terminate client-lawyer relationship must:
    - get court permission, and judge decides. Affected by the particular stage of the matter (i.e. the earlier you ask, most likely able to terminate)
  29. Duty to withdraw
    • - duty to reject cases
    • - when client commits fraud
    • - client "insists' on violation of law or ethical provision
    • - client has begun an illegal course of action
  30. permissive withdrawal
    • - for any reason where no material harm to client OR
    • if client consents OR
    • one of following conditions met:
    • 1) client persists in criminal or fraudulent conduct
    • 2) client has used attorney's services to commit past crime or fraud
    • 3) client's objective is repugnant or imprudent
    • 4) client breaks promise to lawyer to pay the fee
    • 5) unreasonable financial hardship for attorney's practice
    • 6) client will not cooperate
  31. cannot use ___ fee in [list]___ cases

    • criminal
    • -no % of publication rights until case over, including appeals 

    • domestic (can be tricky)
    • - child support/alimony
    • - difference between debt collection (past money owed from alimony/support not % of FUTURE child support), which is OK
  32. lawyers have an ______ to protect information
    affirmative duty
  33. presence of third person ____ confidentiality if___
    • does not destroy 
    • the third person's presence furthers att-client relanshp
  34. material prepared by lawyer immune from discovery unless other side shows a___, ____ and___
    • substantial need
    • inability to gather 
    • without undue hardship
  35. exceptions to privilege
    • - waived by client
    • - client seeks attorney's service to engage in or assist in future crime/fraud
    • - communication is relevant in issue of breach of att-client rltnshp
  36. lawyer has duty to rectify ___ until ___
    • false testimony
    • the end of the proceedings
  37. past crimes are considered ___ and must___
    • secrets
    • never be revealed, even if client dies
  38. resolve conflicts of interest by ___
    gaining client's informed consent (fully explain risks and alternatives) confirmed in writing (can be electronic)
  39. client conflicts: lawyer's personal interest or duties
    - no loans to clients in connection with pending or contemplated litigation, even if indigent
  40. rule of imputation
    if lawyer can't take, firm can't take

    BUT if uniquely personal to lawyer, firm may take (i.e. sexual relationship with client)
  41. exceptions to interest in litigation
    • a. contingency fee
    • b. security lien ( i.e. wills)
  42. former client conflict
    - former client not a client, BUT can't oppose client after representing him on same issue

    - can't sue based on confidential information learned representing client and use against client
  43. current client conflict
    reasonable belief of no adverse effect (bus driver/accident example)
  44. parent, child, spouse, or sibling conflicts
    can't work on opposing side unless client provides informed consent BUT no rule of imputation (others in firm may take it)
  45. prospective client conflicts-- relationship if:
    1. lawyer and client both know 

    2. client manifests an intent and the lawyer fails to make it clear that there is not representation AND lawyer knows/should know person reasonably relying on representation
  46. conflict: judge or govern't employee who later goes onto private practice
    - may not represent a party on a "matter" she or he worked on personally but firm can take

    - matter= specific facts with specific parties (so helping draft Obamacare and suing on it later okay, since no specific facts with specific parties)

    • may: draft laws, compile statistics
    • may not: drafting contract with gov't the party; judge who ruled on a case

    - if in a firm that opposes issue you were a part of, be screened out
  47. quick advice programs
    -rules relax, but if conflict known to lawyer, can't ignore

    - run conflicts check if meet further with client
  48. civil liability/ malpractice recovery comes from_1__ and requires _2__
    1. cause of action based in contract, tort, or fiduciary relationship and

    2. money loss and causation (but-for)
  49. disciplinary process in malpractice ____ require ___ or ___
    1) doesn't require 2) money loss or 3) causation 

    purpose is punishment not recovery
  50. must reveal ____ or ___ of controlling jurisdiction
    adverse decision or statute
  51. lawyer connected with case must not make a public statement outside courtroom that lawyer reasonably should know it would have
    substantial likelihood of materially prejudicing the case
  52. lawyer can't be necessary witness for client unless
    • a. an uncontested matter (something that's not a big deal)
    • b. it involves legal fees
  53. communications with reprsented persons
    • lawyer to party: must go through the person's lawyer
    • parties may communicate with each other
  54. unrepresented persons
    • can't give them legal advice
    • can't appear disinterested when you are
    • can negotiate settlement
  55. respect for rights of 3rd persons (i.e. witnesses)
    • - no contingent fees
    • - pay reasonable expenses, but can't condition payment on testimony 
    • - no need to obtain permission to interview a witness UNLESS corporate managerial responsibility --> consent of org's in house counsel or consent of employee's attorney
  56. communication with jurors during trial
    can't (verbal or nonverbal  NOTHING)
  57. can't communicate with juror after trial if
    • 1.  judge says can't
    • 2. juror doesn't want to talk
    • 3. purpose is to harrass
  58. lawyer as evaluator must:
    be compatible with other aspects of representation


    have client's informed consent 


    must be truthful in evaluation
  59. as negotiator, lawyer may ____ and must___
    • -exaggerate but may not lie
    • -promptly notify sender if receives documents by mistake (i.e. emails)
  60. duty as in house counsel
    affirmative duty to disclose all the way to director of corporation if any act that could cause substantial injury to company
  61. interest from IOLTA account
    gets swept out by state's non-profit bar foundation
  62. disputed claims re. client funds/property
    keep disputed amount in client trust account until dispute resolved
  63. retainer- two types
    • 1. advance on fees- goes into trust account and taken out as it's earned
    • 2. availability retainer - earned from day one (buying availability)
  64. when advertising legal services, can't
    • -create unjustified expectations
    • -have unsubstantiated comparisons unless factually verifiable
    • - imply results by improper means (i.e. connections)
  65. names and letterhead
    name off the door if permanent unless dead
  66. true/false: may split fees if refer to another attorney
    True, IF work together and with client informed consent AND paid proportionally to work done
  67. mutual referrals with lawyers and nonlawyers
    • okay
    • -but no exclusive arrangement
    • -client must be told of arrangement
    • -referral must not interfere with lawyer's professional judgment
    • - no indefinite duration
  68. solicitation
    general ban on seeking fee paying work 

    can't go to people in person, over live telephone, or electronic communication. person seeking representation must call me


    • -close friends relatives, present, or former clients 
    • - mail 

    - prepaid legal services (unless I know specific targets that need service)
  69. retired judges can serve as__
    arbitrators or mediators but not while serving as a judge
  70. appearance of impropriety
    when judge's conduct creates a reasonable perception that the ethics code is being violated
  71. judge can only speak to someone outside of parties if
    • authorized by law or parties
    • emergency or de minimis
    • receive something inadvertently
  72. parties cannot remit for judge to step down if judge
    shows personal bias against a party
  73. if judge running for office can___, but must not
    • 1. speak at gatherings
    • 2. make pledges, promises or commitments inconsistent with impartial performance of duties with respect to cases, controversies, or issues likely to come before the court