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BARBRI LECTURE HANDOUT
LECTURE HANDOUT
PROFESSOR PAUL LISNEK
* If the lecturer in your jurisdiction is not Professor Lisnek, please contact your
local BARBRI office to obtain a copy of the handout.
Copyright ? 2014 by BARBRI, Inc.
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MULTISTATE PROFESSIONAL RESPONSIBILITY EXAM
DR. PAUL M. LISNEK, ESQ.
The following outline indicates the MPRE’s scope of coverage and the approximate
percentage of items that are included in each major area. (Most items in boldface
type are taken directly from the published MPRE testing specifications and have been
reprinted with permission.) The outline is not intended to list every aspect of a
topic mentioned. Although the test items for each MPRE are developed from these
categories, each topic is not necessarily tested on each
examination.
I. REGULATION OF THE LEGAL PROFESSION (6-12%)
A. Powers of Courts and Other Bodies to Regulate Lawyers
1. American Bar Association
a. Voluntary membership and no disciplinary authority
b. ABA Model Rules of Professional Conduct (1983) modified by Ethics 2000
1) “Must” rules — mandatory (disciplinary rules)
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2) “Should” rules — advisory (ethical considerations) – No punishment for
violation
Copyright ? 2014 by BARBRI, Inc.
2.
MULTISTATE PROFESSIONAL RESPONSIBILITY EXAMINATION
3) Types of Discipline for violating a Mandatory Rule:
a) Private Reprimand/Censure
b) Public Reprimand/Censure
c) Suspension (for a finite period)
d) Disbarment
2. Judicial exercise
a. U.S. Supreme Court is ultimate authority
b. State’s highest court determines rules for state
3. State laws—“moral turpitude” vs. “good moral character”
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B. Admission to the Profession
1. U.S. Supreme Court says state requirements for admission to bar need to be
rationally related to the practice of law
1) 2)
MULTISTATE PROFESSIONAL RESPONSIBILITY EXAMINATION
b. What
3.
rational? (i.e., what cannot be required)
1)
2)
2. Requirements a. Truth and full disclosure
b. Duty to cooperate
3. Requirements for lawyers regarding applicants
a. Good applicants – your input is aspirational/“should”
b. Bad applicants – duty to report when asked, or to correct something you believe
may have arisen in the matter.
C. Regulation After Admission – Lawyer Discipline
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1. Regulated by highest state court (and through its agencies)
D. Mandatory and Permissive Reporting of Professional Misconduct
1. a. b.
4.
MULTISTATE PROFESSIONAL RESPONSIBILITY EXAMINATION
2. If unethical conduct is a crime, must be relevant to some aspect of practice of
law.
3. A lawyer who commits fraud in the conduct of a business is subject to discipline,
even if the lawyer is not active in the practice of law.
4. Where a lawyer learns of the bad conduct of another lawyer through representation
of that lawyer as a client, the duty of confidentiality will trump the duty to report
the
that helps lawyers and judges with substance abuse problems.
Applicant is applying for admission to the State A Bar.
When Applicant was in high
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school, he and his parents lived in State B, next door to Attorney.
admitted to practice in State B, but not in State A.
Attorney is
Applicant seemed to be a
promising lad, and
Attorney was disappointed to learn that during his senior year in high school
Applicant
was convicted of burglarizing a liquor store.
After serving his sentence, Applicant
went
to college and later to law school.
Attorney has had no contact with Applicant since
his
high school years, but so far as Attorney knows, Applicant has not done anything since
high school that would reflect badly on his character.
The Bar of State A sent
Attorney a routine questionnaire, asking a series of questions about Applicant’s
character.
Attorney does not know whether Applicant disclosed the burglary
conviction on his Bar
application, and she does not know where to contact him to find out. A. Attorney should
not respond at all, because she has no relevant information to
provide.
B. Attorney should not respond at all, because as a State B lawyer she is not obligated
to provide information to the Bar of State A.
C. Attorney should not mention Applicant’s burglary conviction in her response
unless
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she first contacts him and obtains his permission to do so.
D. Attorney should state what she knows about Applicant, including mention of his
burglary conviction.
MULTISTATE PROFESSIONAL RESPONSIBILITY EXAMINATION
5.
ROBLEM O During the trial of a case by Attorney Dorothy, Attorney Blanche took shelter
in a tavern from an unexpected rainstorm. While in the tavern, Attorney Blanche saw
Attorney
Dorothy having a drink with a juror on the case Attorney Dorothy was trying. A. Keep
this knowledge confidential.
B. Identify herself to Dorothy and reprimand Dorothy for drinking in a public place
with a juror.
C. Inform the judge trying the case of this incident.
D. Caution Dorothy and the juror not to talk further with each other.
E. Multi-jurisdictional Practice
1. Unauthorized practice – can’t do it where not admitted
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2. Permissible temporary multi-jurisdictional practice
a. Associate with an active local lawyer
b. Special permission called
pro hac vice
c. Mediation or arbitration out of home state practice
6.
MULTISTATE PROFESSIONAL RESPONSIBILITY EXAMINATION
d. Anything reasonably related to lawyer’s home state practice
NOTE: Foreign lawyers may also practice temporarily in the United States under similar
circumstances. Also, they may provide legal services temporarily in the U.S. if the
services are governed primarily by international law or the law of a foreign
jurisdiction.
3. Permissible permanent multi-jurisdictional practice–Employed by her only client
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which has several offices offices (applies to BOTH U.S. or Foreign lawyers)
NOTE: When a foreign lawyer serves as in-house counsel, he or she must consult
with a local lawyer before advising the client on the law of a U.S. jurisdiction and
must base advice to the client on the advice received from the U.S. lawyer.
a. Consequences – subject to both jurisdiction’s rules
4. Law firm with offices in more than one jurisdiction may use the same name in each
jurisdiction, but identification of the lawyers in an office of the firm shall
indicate the
jurisdictional limitations on those not licensed to practice in the jurisdiction
where the
office is located.
F. Responsibilities of Partners, Managers, Supervisory and Subordinate Lawyers
1. Supervisor responsible for acts of subordinate if
a. knew of misconduct at a and the lawyer fails to take reasonable remedial action
OR, if the violation raises a
b.
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MULTISTATE PROFESSIONAL RESPONSIBILITY EXAMINATION
7.
2. Subordinate not responsible for his/her own acts if
a. b. G. Unauthorized Practice of Law—by Lawyers and Non-Lawyers
1. The following activities require a license (and constitute the “practice of
law.”)
a. b. c. 2. The following activities do not require a license.
(These do constitute
the
“practice of law.”)
a.
b.
c.
SUPERVISORS MUST MAKE REASONABLE EFFORTS TO ENSURE THAT NON-LAWYER
CONDUCT ALSO CONFORMS TO THE RULES. THIS OBLIGATION APPLIES TO NON-LAWYERS
BOTH
WITHIN THE FIRM (SUCH AS LEGAL ASSISTANTS), AND
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__________________________________(SUCH AS DOCUMENT MANAGEMENT
COMPANIES AND PRIVATE INVESTIGATORS.)
8.
MULTISTATE PROFESSIONAL RESPONSIBILITY EXAMINATION
ROBLEM O Attorneys Franklin and Bash hire Sandy, a third-year student at a local law
school, to
assist them as their clerk.
Sandy is not licensed under any state law or court rule
that
allows third-year law students to engage in practice under the supervision of a
licensed
attorney.
For which of the following tasks performed by Sandy are Franklin and Bash
A. Filling in a release form for personal injury plaintiffs to sign after their cases
have
been settled.
(Franklin himself has the plaintiffs sign the forms.)
B. Interviewing witnesses to accidents, and having them sign Sandy’s written
version of the interview.
C. Reaching settlement agreements with insurance company representatives before
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suit has been filed.
D. Conducting legal research on a question of law involved in the case.
H. Fee Division With a Non-Lawyer (General Rule: Can’t do it)
Exceptions:
1. _____________________________
2. _________________________ in the form of __________________________ and as part
of _______________________ or
____________________________________
plans.
3. Lawyer may share court-awarded legal fees with a nonprofit organization that
employed, retained or recommended employment of the lawyer in the matter.
MULTISTATE PROFESSIONAL RESPONSIBILITY EXAMINATION
I. The Law Firm and Other Forms of Practice
9.
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1. Lawyers must not imply that they are partners or otherwise associated with each
other in a law firm unless they really are.
As to the public, the law firm includes
lawyers
who frequently _____________________, work __________________, and have
access to ________________________________.
2. Only lawyers can be ______________________________, or
__________________________ if we’re dealing with a corporation, if any part of the
partnership business is the practice of law.
Except: ________________________________ and it’s only temporary by operation
of law.
3. Relationship of the Dual Profession Lawyer with Non-Lawyers
a. Dual professions: _____________________________________________
b. Soliciting legal business: can’t use dual profession to solicit
c. Attorney/client privilege: does not apply in the dual profession
d. Ancillary (or law-related) services: OK to provide services reasonably performed
in conjunction with and related to legal services, and note:
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1) Non-legal and legal provided together: ______________________________
10.
MULTISTATE PROFESSIONAL RESPONSIBILITY EXAMINATION
2) Non-legal services provided by entity controlled by the lawyer: lawyer must
assure that client knows of their interest and that it is not legal services.
Failure to do so will mean: _______________________________________.
J. Restrictions on Right to Practice (General Rule: Can’t do it)
Exceptions:
1. 2.
K. Solo Practitioner has a special duty to plan for death or disability by designating
another competent lawyer to ______________________________________________________
_______________________________________________________________________.
II. THE CLIENT-LAWYER RELATIONSHIP (10-16%)
A. Formation of Client-Lawyer Relationship (General Rule: Lawyers have general
freedom to reject cases)
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1. Exceptions to general freedom to reject cases
a. “Defenseless or oppressed” (“should”)
b. Fair share of pro bono (“should,” not “must”) – 50 hours per year recommended
MULTISTATE PROFESSIONAL RESPONSIBILITY EXAMINATION
11.
c. Appointments (“must”)
Exceptions (good cause shown) (i.e., “should” or “must” cases you may be able
to
reject):
1)
2) Duty to reject cases –
a) Physical or mental inability
b) Conflict of interest
c) Frivolous claim or defense
d) Strong feelings or bias
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e) Incompetence/Lacking the legal expertise
Exceptions (Take ALE):
(1) A
(2) L
(3) E
12.
MULTISTATE PROFESSIONAL RESPONSIBILITY EXAMINATION
B. Scope, Objective, and Means of the Representation
1. Decision-Making Authority: Important decisions belonging to the client
Whether to:
a. Sue
b. Settle (must inform client of all settlement offers unless client has specifically
and
with informed consent authorized a _______________________)
c. Testify (in a criminal case)
d. Plea
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e. Jury/bench
f. Appeal
2. Procedural and tactical decisions belonging to the attorney (law, tactics, and
strategy) a. Which court to file in
b. Depositions – do we take/not take?
c. Discovery – whether
what to seek/produce
d. Continuances – whether to request or grant a request
MULTISTATE PROFESSIONAL RESPONSIBILITY EXAMINATION
13. Case expenses
3. When client is under diminished mental capacity, or is a minor, client decisions
do
not shift to lawyer.
Rather, you must
_____________________________________.
But, the lawyer should both ____________________________________ the client as
much as possible for input on decisions that impact the client’s well-being.
C. Counsel and Assistance Within the Bounds of the Law
Means be honest and truthful…subject to discipline for knowingly making a false
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statement of fact or law to the court or failing to correct a previously made false
statement of ________________________________________________________
D. Termination of the Client-Lawyer Relationship
1. Need court permission when matter is in litigation and must return client’s
property,
including the case file and unused portion of retainer.
2. Judge’s decision is often affected by _______________________________________
when the withdrawal is sought.
3. Mandatory withdrawal
a. Duty to reject (see II A 1 c 2))
14.
MULTISTATE PROFESSIONAL RESPONSIBILITY EXAMINATION
b. Client fraud and refusal to rectify
c. Client “insists” on violation of law or ethical provision (Rule)
d. Client has begun an illegal course of action
4. Permissive withdrawal
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a. Can be for any reason where there’s no material harm to client, or
b. If client consents, or
c. Where one of these conditions is 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
d. But cannot abandon client.
Must take the proper steps to avoid material adverse
effect on client.
MULTISTATE PROFESSIONAL RESPONSIBILITY EXAMINATION
15.
HYPO: Client tells lawyer that client is “going to lie” under oath on the stand.
1) Dissuade client
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2) Request permission to withdraw
3) Do as instructed
4) Give client reasonable notice to get a new lawyer
E. Client-Lawyer Contracts
1. Lawyer can limit representation
2. Basic rules of contract construction apply
F. Fees
Fee arrangement (scope of representation, basis or rate of fee, and expenses for which
client will be responsible) shall be communicated to client before (or within a
reasonable time after) representation starts.
Exception: When a lawyer will charge a regularly represented client on the same basis
or rate in subsequent matters.
1. Factors in setting a reasonable fee
a. Time and labor
b. Difficulty and novelty of questions
c. Experience, reputation and abilities
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16.
MULTISTATE PROFESSIONAL RESPONSIBILITY EXAMINATION
d. Relationships: nature and length
e. Exclusions (whether lawyer must turn away other cases if client knows of this)
f. Fixed or contingent (contingent can be higher)
g. Fees customarily charged
2. Contingent fee arrangements – must be reasonable; signed by client
a. Must not use in criminal case
HYPO:
Emilio robs a convenience store and gets arrested.
As you spend some time
with Emilio down at the jail, you realize he is Emilio Estevez, the once popular actor.
Recognizing that this story is bigger than any fee you could collect in this case,
you offer to take the case for free in exchange for half of the television, movie
and book rights
flowing from the story of Emilio’s descent into petty theft.
Any problems?
1) No percentage of publication rights based upon representation until
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___________________________________________________
b. Must not use in domestic relations case
1) “Past due” support payments are debt and therefore okay
c. Contingent fee must be explained – in writing(s) and must notify the client of
any
expenses for which they are liable, whether or not the client wins the case.
1) Before you take the case
2) After the case is concluded (settlement letter)
MULTISTATE PROFESSIONAL RESPONSIBILITY EXAMINATION
17.
3. Lawyers can sell and buy a law practice (including goodwill)
a. the ____________ practice or entire field of practice must be sold and purchased
b. Seller must exercise competence in
c. Written notice must be given to seller’s clients regarding:
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1) the sale
2) clients’ right to get their files returned
3) clients’ right to get new counsel
4) consent will be presumed if the client takes no action ____________________
of the receipt of the notice. If notice cannot be given for some reason, then a
court order is required to authorize the transfer of the representation.
d. Seller must cease to engage in private practice of law (or at least in the sold
field).
18.
MULTISTATE PROFESSIONAL RESPONSIBILITY EXAMINATION
III. CLIENT CONFIDENTIALITY
(6-12%)
A. Attorney-Client Privilege and Confidentiality
1. Privilege protects confidential communication; confidentiality covers the same
AND any other information obtained by the attorney relating to representation,
regardless
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of the source, including that which may be embarrassing or derogatory to the client.
a. Privilege is held by _____________and NOT by the attorney.
2. Lawyers have an affirmative duty to protect information; i.e., lawyers MUST make
reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or
unauthorized access to, information relating to a client’s representation.
a. Reasonableness of the lawyer’s efforts depends on factors including: the
sensitivity of the information, the likelihood of disclosure absent safeguards, the
cost and difficulty of implementing such safeguards, and the extent to which
safeguards adversely affect the lawyer’s ability to represent clients.
3. Presence of Third Person: ________________________ confidentiality if the third
person was present to help further the attorney-client relationship.
B. Work Product Doctrine
1. Material prepared by a lawyer for or in anticipation of litigation is immune from
discovery unless the other side shows a _____________________for the material and
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an __________________________the material without ______________________
_________________.
2. A lawyer’s mental impressions and opinions are always immune from discovery
regardless of need, unless immunity is waived.
MULTISTATE PROFESSIONAL RESPONSIBILITY EXAMINATION
19.
C. Disclosures Expressly or Impliedly Authorized by Client (what a client authorizes
with informed consent to disclose)
1. Express authorization
client agrees to proposed course of conduct after lawyer
sufficiently explains material risks and reasonable alternatives.
2. Implied authorization to carry out representation (except screened member)
D. Exceptions to Privilege
1. Waived by Client
2. Client seeks attorney’s service to engage in or assist in future crime/fraud
3. Communication is relevant to issue of breach of attorney-client relationship
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E. Other Exceptions to the Confidentiality Rule
1. Waived by Client
2. Required by law or court order
3. Informed Consent
20.
MULTISTATE PROFESSIONAL RESPONSIBILITY EXAMINATION
4. Implied authority to disclose to further the representation
5. Lawyer has the duty to of the proceedings, appeals and all.
6. To obtain legal or ethical advice for lawyer.
Use of hypotheticals with colleague
is
ok if discreet to protect identity of client.
7. To prevent _________________________________ death or substantial bodily harm,
(assumes in the future): permitted to reveal information to the extent necessary to
prevent the harm which does not need to be the product of a crime.
8. To prevent _________________________________________________ if the client is or
has used the lawyer’s services in the matter. Also true if the client has already
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acted and disclosure can prevent or mitigate the consequent financial harm.
9. Information may be revealed to the extent believed necessary to detect and resolve
conflicts of interests arising from a
_____________________________________________________________________
_____________________________________________________________________
________________________________________________(perhaps from a merger or
purchase of the practice). But, such revealing of information MUST NOT include
anything that would compromise the attorney-client privilege or otherwise prejudice
the client.
F. Past Crimes:
1. Are 2. Death of client does not end obligations
MULTISTATE PROFESSIONAL RESPONSIBILITY EXAMINATION
IV. CONFLICTS OF INTEREST (12-18%)
21.
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In general, lawyer cannot represent adverse interests of client or prospective client.
In some 1. Lawyer fully explains risks and alternatives (informed consent)
2. Client agrees in writing (can be electronic)
A. Current Client Conflicts: Lawyer’s Personal Interest or Duties
1. No loans to clients in connection with pending or contemplated litigation; no de
minimis exceptions
2. Rule of imputation – what one lawyer can’t take, the
(partners, associates,
and
“of counsel”) can’t take (except the lawyer as witness (see below) and where
conflict
is uniquely personal to the lawyer).
a.
with clients that are not preexisting to the
representation are subject to discipline; consent or harm irrelevant; no rule of
imputation, but screening required.
B. Acquiring an Interest in Litigation
case)
(Lawyer can’t acquire an interest in the
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Exceptions:
1.
2.
22.
MULTISTATE PROFESSIONAL RESPONSIBILITY EXAMINATION
C. Conflicting Interests—Current Clients and Former Clients
(Lawyer cannot have conflicting interests with current clients and former clients)
1. No interests adverse to clients
a. Cannot represent client in one matter and oppose him in another
b. Cannot represent client whose interests are directly adverse to another client
c. Cannot represent client against former client when you acquired confidences in
former representation
D. Current Client Conflicts – Multiple Clients and Joint Representation
1. Must have reasonable belief of no adverse effect
2. Client gives written informed consent
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MULTISTATE PROFESSIONAL RESPONSIBILITY EXAMINATION
23.
3. When representing two or more clients, lawyer shall not make an aggregate
settlement of claims without informed consent in writing from each client after full
review of entire settlement as to all parties, which includes:
a. that the clients have come to an agreement among themselves about how the
aggregate sum will be shared;
b. disclosure to each client of all the terms, including:
i.
ii.
iii.
iv. and the existence and nature of all claims, defenses, and pleas involved in
the settlement.
c. These extensive disclosures may require the lawyer to share one client’s
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confidential information with the others, so at the outset of the case, the lawyer
should get each client’s informed consent.
E. Prospective Client Conflicts
1. with a lawyer
about the possibility of _________________________________ with respect to a
matter.
Basic Rule:
An expectation of Protection and a relationship will be seen as
established if:
1. Client manifests intent that there is representation and lawyer agrees.
24.
MULTISTATE PROFESSIONAL RESPONSIBILITY EXAMINATION
2. Client manifests intent and lawyer
prospective client is
and lawyer knows or should know that the
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F.
Imputed
Conflicts
Lawyers
related
as
__________________,
_________________________,
____________________, or ______________________shall not represent adverse
parties, unless full informed consent; but _________________________________.
G. Former Judge, Arbitrator, Mediator, or Other Third Party Neutral or
Government Lawyer
1. Judge or government employee who later goes into private practice may not represent
a party on a matter she or he worked on personally, to wit:
Rule: 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 the case.
a. “Matter” is specific facts with specific parties
1) Matter a lawyer in private lawyer/judge, he or she did the work.
a) ___________________________
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b) ___________________________
2) Matter a lawyer in private lawyer/judge, he did the work. However, someone else
in the firm can take the
case—so long as the former government lawyer is timely “screened.”
a) _________________________________
MULTISTATE PROFESSIONAL RESPONSIBILITY EXAMINATION
b)
25.
____________________________________________________________
b.
The
elements of the “Screen”
1) Written disclosure to the other side
2) No working on or discussing case or access to file by “screened-off” attorney
3) No fee to “screened-off” attorney
sponsored by court or “nonprofit” organization: lawyer-client
relationship exists but only through the quick-advice stage and informed consent to
the
limited scope of relationship required.
1. Conflict of Interest rules:
__________________________________________, but
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where a conflict is actually known to the lawyer, it cannot be ignored.
2. Actual knowledge
can be inferred from the circumstances.
3. Where client hires lawyer after the quick advice (for regular and continued
representation), the conflicts rules WILL apply.
V. COMPETENCE, LEGAL MALPRACTICE, AND OTHER CIVIL LIABILITY (6-12%)
A.
Maintaining
Competence:
Competence
is
a
2-pronged
Responsibility and Malpractice; committing malpractice does
duty:
Professional
automatically mean a
disciplinary rule has been violated, and vise-versa.
26.
MULTISTATE PROFESSIONAL RESPONSIBILITY EXAMINATION
B. Civil Liability to Client, Including Malpractice:
1. Recovery comes from cause
of action based in contract, tort or fiduciary relationship.
2. Requires __________________________and ________________________
Causation =
“BUT FOR…….”
3. Purpose of civil malpractice claim is _______________________________________
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C. Distinguished from Disciplinary Process
1. Purpose is
________________________________________
2. Doesn’t require _________________________or _____________________ D. Exercising
Diligence and Care: A lawyer must:
1. Reasonably consult with client about the means
by which the client’s objectives are to
be accomplished
2. Keep client reasonably informed about status of/developments in the case
3. Promptly comply with reasonable requests for information
4. Explain matters to client to extent reasonably necessary to permit client to make
informed decisions regarding representation.
5. Communicate all settlement offers not specifically addressed in blanket authority
from client.
MULTISTATE PROFESSIONAL RESPONSIBILITY EXAMINATION
27.
E. Limiting Liability for Malpractice – Lawyer can’t do it prospectively unless
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client has
independent representation in making the agreement.
F. Malpractice Insurance and Risk Prevention
VI. LITIGATION AND OTHER FORMS OF ADVOCACY (10-16%)
A. Candor to the Tribunal: Must reveal adverse decision or statute of controlling
jurisdiction
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
28.
MULTISTATE PROFESSIONAL RESPONSIBILITY EXAMINATION
ROBLEM O
Attorney Ralph Kramden is moving for a summary judgment in a case where the law of
on a critical point of law. That case in turn leads to two Olympia decisions which
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are
directly opposed to his client’s position. His adversary has not cited any of the
three
cases, and the judge appears to be unaware of them. A. Argue the motion without
disclosing any of the three cases.
B. Disclose all three cases to the judge without explaining why they are harmful to
his client’s position.
C. Disclose the Franklin case to the judge without explaining why it is harmful to
his client’s position.
D. Disclose all three cases to the judge and explain briefly why they are harmful
to his client’s position.
B. Fairness to Opposing Party and Counsel: civility and courtesy are aspirational
C. Meritorious Claims and Contentions
Lawyer must have good faith basis for actions;
make only meritorious claims and contentions. D. Trial Publicity:
1. Lawyer
connected with case must not make a public statement outside courtroom that
____________________________________________________ the case.
MULTISTATE PROFESSIONAL RESPONSIBILITY EXAMINATION
29.
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2. Lawyer can speak publicly what a reasonable lawyer would believe is required to
protect client from substantial undue prejudicial effect of recent publicity not
initiated by the lawyer or client.
E.
Lawyer as Witness
1. Rule: Lawyer can’t be necessary witness for client
2. Exceptions:
a. ____________________________
b. ____________________________
VII. Transactions and Communications with Persons Other than Clients (2-8%)
A. Truthfulness in Statements to Others
B. Communications with Represented Persons
1. Must go through the person’s lawyer (even if party initiates or consents)
2. Parties may communicate directly with each other and lawyers may inform them of
this fact.
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30.
MULTISTATE PROFESSIONAL RESPONSIBILITY EXAMINATION
C. Communications with Unrepresented Persons
1. Can’t give legal advice
2. Cannot appear disinterested when you are in fact an advocate/adversary
3. Can negotiate a transaction or settle client’s dispute with unrepresented person
D. Respect for Rights of Third Persons
1. Witnesses
a. No contingent fees for experts
b. Can pay reasonable expenses and lost wages, but can’t condition payment on
testimony
c. No need to obtain permission of other side to interview a witness
1) Except: Corporate employees of managerial responsibility or whose acts could
be imputed to corporation requires consent of organization’s in-house counsel
and if corporate employee has independent counsel then the constituent’s
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attorney’s consent (rather than corporate counsel’s) is sufficient.
2. Jurors
a. During trial:
1) No lawyer connected with the case can talk about case with a juror unless
authorized by law or court order.
MULTISTATE PROFESSIONAL RESPONSIBILITY EXAMINATION
2)
31.
No de minimis exception
b. After trial: must not communicate if any of these 3 conditions is met:
1)
2)
3)
VIII. DIFFERENT ROLES OF THE LAWYER (4-10%)
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A. Lawyer as Advisor
1. Client entitled to all information—entitled to candid
advice
2. Should give legal, moral, economic, or ethical advice
B. Lawyer as Evaluator
1. Must be compatible with other aspects of representation,
and
2. Client’s informed consent
3. Must be truthful in the evaluation; if harmful result, get informed consent in
writing
___________________________________________
32.
MULTISTATE PROFESSIONAL RESPONSIBILITY EXAMINATION
C. Lawyer as Negotiator
1. Lawyers don’t lie but can exaggerate
2. Documents sent to lawyer by mistake (including electronic) – must promptly notify
sender
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D. Lawyer as Arbitrator, Mediator or Other Third Party Neutral 1. Must explain that
there is no attorney-client relationship to an _________________
party
2. If litigation, must withdraw
E. Prosecutors and Other Government Lawyers
1. Must not prosecute without probable
cause 2. Assure the accused is advised of his right to counsel, knows how to get counsel,
and
is given a chance to get counsel.
3. Must seek to remedy the conviction of a defendant in his/her jurisdiction if he/she
knows of clear and convincing evidence that the defendant was innocent.
4. Disclose new, credible and convincing evidence that creates a reasonable
likelihood
that a defendant was wrongly convicted.
MULTISTATE PROFESSIONAL RESPONSIBILITY EXAMINATION
33.
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F. Lawyer Appearing in Nonadjudicative Proceeding
1. A lawyer may serve as a state legislator or hold other public office when permitted
by
law. The lawyer may not use her public office to attempt to influence a tribunal in
a
pending matter.
2. A lawyer may serve as a director, officer or member of an organization involved
in
reform of the law or its administration, notwithstanding that the reform may affect
the interests of a client of the lawyer.
G. Law Reform Activities Affecting Client Interests
When lawyer works on law reform project and is asked to participate in a decision
that
would
materially
benefit
a
client,
the
lawyer
must
_______________________________________.
H. Lawyer Representing an Entity or Other Organization
1. Corporate representation – you represent the corporation/entity, not an
individual
officer or director
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a. Lawyer can be a director of company, but no attorney-client privilege in board
meetings
b. If lawyer for organization learns that an act has been or is about to be committed
in a way that violates a duty to the organization or a law in a way that might be
imputed to the organization, AND if the violation is likely to cause substantial
injury to the organization, the lawyer must proceed as is reasonably necessary to
protect the interests of the organization.
34.
MULTISTATE PROFESSIONAL RESPONSIBILITY EXAMINATION
1) Must report violation to higher authority (president) and to outside directors
if
necessary.
2) May report relevant information to appropriate persons outside the
organization only if, and to the extent that, the lawyer reasonably believes
such reporting is necessary to prevent substantial injury to the organization.
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3) Narrow range of discretion: lawyer need not report violation if she reasonably
believes that the organization’s best interests do not require the violation to be
reported.
c. Security Violations – Sarbanes-Oxley Act: There is a Duty of
____________________________ to report up the chain of command to CEO; If
not appropriate response, must report to board of directors and may report to SEC.
1) Consequences of Reporting: SEC protects lawyer
d. Revealing confidential information – only to extent necessary to protect
corporation.
IX. SAFEKEEPING FUNDS AND OTHER PROPERTY
(2-8%)
A. Establishing and Maintaining Client Trust Accounts
1. Lawyer must keep all clients’ money in a separate (trust) account and may NOT
mix client funds with lawyer funds. Doing so would be called ; nor
may the lawyer remove any funds from the client fund account for any use other than
the client’s case as doing so would be called actions are disciplinable.
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MULTISTATE PROFESSIONAL RESPONSIBILITY EXAMINATION
35.
2. but cannot use one client’s money for the benefit of another client. For a large
sum
held for a long period of time, must be separate interest-bearing account with
interest going to client.
3. Exception: Lawyer money can cover bank service charges
4. The interest from an IOLTA (or similar)
B. Safekeeping Funds and Other Property of Clients
If other than money, lawyer must safeguard
C. Disputed Claims
Following the receipt of settlement, the lawyer must notify the client promptly, keep
records, render accounting, and pay out promptly. If disputed, that portion remains
in the client trust account.
D. Retainer – 2 Types
1. ___________________________ (belongs) to client (goes into trust account) and is
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transferred to operating account once earned; and any unearned portion must be
returned if lawyer is fired or withdraws.
2. ___________________________ (belongs) to attorney (goes into lawyer’s account)
36.
MULTISTATE PROFESSIONAL RESPONSIBILITY EXAMINATION
ROBLEM O Attorney, who represented Plaintiff, received a check from Defendant payable
to
Attorney’s order in the sum of $10,000 in settlement of Plaintiff’s claim against
Defendant. A. Endorse the check and deposit it in Attorney’s account.
B. Deposit the check in Attorney’s personal bank account and send his (Attorney’s)
personal check for $10,000 to Plaintiff.
C. Deposit the check in a Client’s Fund Account, advise Plaintiff and forward check
drawn on that account to Plaintiff.
D. Call the client and see if Client will re-negotiate to give Attorney more fees
E. Lawyer may accept a reasonable gift from client, but must not draft deed of gift
or will, unless _____________________________________________
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X. COMMUNICATIONS ABOUT LEGAL SERVICES (4-10%)
A. Advertising and Other Public Communications About Legal Services
1.
Advertising
(information
concerning
the
name
of
the
lawyer/firm,
the
lawyer’s/firm’s
address and telephone number; kinds of services offered; basis on which fees are
determined, including prices for specific services and payment/credit arrangements;
lawyer’s ____________________________; names of references; email address and
website; and other information that might invite the attention of persons seeking
legal assistance.)
a. Cannot be false or misleading – applies to ads, personal communication, office
signs, cards, letters, emails, etc.
Any communication concerning a lawyer’s services shall include the name and
address of at least one lawyer or law firm responsible for its content.
MULTISTATE PROFESSIONAL RESPONSIBILITY EXAMINATION
37.
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1) Cannot create unjustified expectations (in the ad)
2) Cannot have unsubstantiated comparisons (in the ad) unless ______________
3) Cannot imply results by improper means (in the ad)
Attorney placed an advertisement in City Newspaper, the city in which Attorney
practiced.
The ad contained Attorney’s name, office address, telephone number, and
the following additional information: (i) “Attorney is a graduate of State
University Law School”; (ii) “Attorney has an M.B.A. from City Graduate School of
Business”; and (iii) “Attorney is the only lawyer in town who speaks Spanish
fluently.”
Is Attorney’s advertisement proper?
A. Yes, if all statements contained therein are true and verifiable.
B. Yes, provided City Newspaper’s distribution area is limited to City.
C. No, because the ad is self-laudatory.
D. No, because an M.B.A. is not law-related.
2. Firm names and letterhead
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a. Artificial names are okay if not misleading b. Temporarily bad or good lawyer’s
name stays; permanently bad or good lawyer’s
name leaves; Dead people can stay in name
B. Referrals – okay to split fees with other lawyers outside of firm as follows:
1. Work together,
2. With client’s written informed consent that discloses the share each lawyer will
get,
38.
MULTISTATE PROFESSIONAL RESPONSIBILITY EXAMINATION
3. Paid proportionally to work done (OR, some different proportion IF each lawyer
____________________________________________________________________)
4. One reasonable fee in total
5. Lawyers can enter into a ___________________________________________ with
another lawyer, or non-lawyer professional, with the following restrictions:
a. Arrangement cannot be exclusive
b. Referred client must be told of the arrangement and if the arrangement creates
a conflict of interest for either the referring or receiving lawyer, then the lawyer
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must get the client’s written informed consent.
c. The referral agreement must not interfere with the lawyer’s professional judgment
as to making referrals
d. The agreement should not be of ___________________________________ and
should be reviewed periodically to be sure it complies with the Rules.
C. Solicitation: Direct Contact With Prospective Clients
1. General ban on
solicitation.
Definition: Solicitation is seeking targeted communication, initiated by the lawyer,
that is directed to a specific person, that offers to provide or can reasonably be
understood as offering to provide legal
services through
with a non-
lawyer with whom the lawyer has no family, close personal or previous relationship.
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