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Regula'on of the Legal Profession: American Bar Associa'on No disciplinary authority Membership is Voluntary Regula'on of the Legal Profession: "Must" Rules ABA Model Rules of Professional Conduct (1983) Mandatory Rules Viola'ons are subject to Discipline Displine for Viola'on of "Must" Rules
- Reproval
- Suspension
- Disbarment Reproval Censure or reprimand Mild Discipline Public or Private censure/reprimand Suspension Prohibited from prac'cing law for a finite period Name remains on the firm sta'onary and the door Disbarment Permenant punishment Name removed from firm name, door, and sta'onary Types of MPRE "Must" Ques'ons (The "Call" of the Ques'on)
BARBRI - MPRE EXAM
QUESTIONS AND ANSWERS
LATEST UPDATE 2024/
The lawyer MUST.... The lawyer MUST NOT... Is the lawyer subject to DISCIPLINE... Regula'on of the Legal Profession: "Should" Rules Advisory, Aspira'onal, Ethical Considera'ons No repurcussions for failure to follow or adhere Merely ethical considera'ons "Should be involved in..." Types of MPRE "Should" Ques'ons (The "Call" of the Ques'on) It would not be PROPER... Which of the following is PROPER... Which MAY the lawyer do... Which SHOULD the lawyer do... Regula'on of the Legal Profession is a ________ Excercise "Judicial" --- Therefore the State Supreme Court is the ul'mate authority (within the context of the Federal System) with the power to regulate a_orneys, admit them to the prac'ce, and discipline them. Moral Turpitude Bad thing We do not want Good Moral Character Good Thing State Law and Professional Responsibility State laws supplement the ABA Model Rules of professional conduct Moral Terpitude Bad thing We do not want it
Unaithorized Prac'ce of Law: Ac'vity requiring a law license This cons'tutes the prac'ce of law:
- Court Appearences and Deposi'ons (except clinicals, per se)
- Drading Legal Documents
- Conduc'ng Se_lements (except insurance companies) Unauthorized Prac'ce of Law: Aci'vity which does NOT require a license This does NOT cons'tute the prac'ce of law:
- File papers with the court
- Interviewing Witnesses (unless under oath, then it is a deposi'on)
- Filling out of forms Ways to Prac'ce in another jurisdic'on
- Associate with an in-state lawyer
- Get admi_ed Pro Hac Vice ("for this ma_er only")
- If you are employed by only one client (as in-house counsel)
- Media'on or Arbitra'on arising out of home state prac'ce
- Anything reasonably related to your home state prac'ce Fee Division with a Non-Lawyer NO splijng fees with non-lawyers; except...
- Payment to heirs (your dead partner's kids)
- Payment as part of a pension or bonus plan
- Court awarded fees with a non-profit organiza'on you represent (more or less a dona'on) Generally, defining a "firm" As a general rule, sharing space is NOT a firm but sharing informa'on usualy is Formal, defining a "firm" Lawyers who frequently consult, work together, and have access to each other's files
Who is "in charge" of a law firm? Only lawyers can be in charge of the law firm (as shareholders, partners, etc.) - excep'on would be temporary shareholder in the event of deat of a partner (un'l the remaining shareholders buy-out the dead partner's share) Rule of Imputa'on What you cannot do, your partner cannot do...what your partner cannot do, you cannot do. Solo Prac'oner: duty to plan A solo prac'o'oner has a special duty to plan for death or disability by designa'ng another competent lawyer to:
- Review files;
- No'fy clients; and
- Take protec've ac'on Supervising A_orneys are responsoble for the acts of subordinates if...
- Supervisor knew and did nothing; OR
- Supervisor told the person to do it Subordinate (of supervising a_orney) is NOT responsible if... It is arguable that the subordinate should not, or could not have...
- Objected
- Acted contrarily, or
- Known the act was a viola'on Restric'ons on the Right to Prac'ce (Employment agreements, non-competes, etc.) As a general rule, no such restric'ons are typically allowed; EXCEPT
- As part of a re'rement plan (a law firm can restrict the ac'vitees of re'rees)
- Withdrawal from a firm but will collect a salary for some 'me ader (a firm can restrict people they are s'll paying)
- Client's mo've is harassment
- No supportable legal posi'on It is NOT a firvilious lawsuit.... ...to assert a posi'on without full substan'a'on, or even believing, that the posi'on will not ul'mately prevail Incompetence - EXCEPTIONS Ways to get around (or deal with) the fact that you are incompetent in a specific area of the law (A-L-E)
- Associate with another lawyer, but you musthave the client's permission in advance
- Learn the Law
- Emergency (but this only gets you around the ethical viola'on - you s'll may be liable for malprac'ce) Scope, Objec'ves, and Means of Representa'on A lawyer may take ac'on implyably authorized by client (it is implied that you will do "this" as the client's a_orney) Decision Making Authority (Actual and Apparent) CLIENT - makes the important decision ATTORNEY - makes the procedural and tac'al decisions Examples of Important Decisions (reserved for the Client) Sue, Se_le (therefore all offers for se_lement MUST be communicated to the Client), Tes'fy, Plea Entered, Jury or Bench (choice of type of trial), Appel Example of Procedural and Tac'cal Decisions (reserved for the A_orney) Where to file / which court, Deposi'ons (how many, who), Discovery (interrogatories, who to file against, what documents to request), Con'nuances (requests)
Excep'ons to the General Rule of Decisions (General Rule being Important=Cient, Procedural and Tac'cal = A_orney)
- Monetary Issues - for example, deposi'on and discovery costs may be beyond what the client can afford
- Third Person "Well Being" - If client is concerned of a_orney's ac'ons and impact on a 3rd Person Decision Making and Clients with Diminished Capacity In this situa'on, you need to get a guardian appointed to make decisions for the client (you will carry out the guardian's decisions) Counsel and Assistance Within the Bounds of the Law The lawyer must be honest. You have no duty to supplement under the ethical rules. Termina'on of Client-Lawyer Rela'onship (A_orney Withdrawal) If you are in li'ga'on, you need the court's permission to discon'nue representa'on and you must return the client's property Termina'on of Client-Lawyer Rela'onship (Client Termina'on) Client always has a right to fire his counsel. And in the case of firing counsel for incompetence, you may not be required to pay Termina'on of Client-Lawyer Rela'onship (Mandatory Withdrawal)
- Duty to Reject (same 5 circumstances as above)
- Client fraud and client's refusal to rec'fy
- Clients insists on viola'on
- Client has begun an illegal course of ac'on
- Lawyer discharged (fired by client) Termina'on of Client-Lawyer Rela'onship (Permissive Withdrawal)
- For any good reason (including non-payment), but there can be no abandonment. You can withdraw but you must s'll protect the rights of the
Con'ngent Fee: Criminal This is a MUST rule: you MUST NOT charge con'ngent fees in criminal cases; incen've fees in criminal cases go against public policy Con'ngent Fee: Domes'c Rela'ons This is a MUST rule: you MUST not charge con'ngent fees in domes'c rela'ons cases -- two excep'ons where con'ngent fee is acceptable are past due alimony and past due child support (collec'ons ma_ers) Con'ngent Fee: Future Publica'on Rights A_orney may not accept, as payment, a percentage of publica'on rights based on representa'on (sensa'onal case work can not be 'ed to future monetary profit) Con'ngent Fee: Wri_en Fee Agreements Con'ngent Fee Agreements must always be explained in wri'ng Con'ngent Fee: Client Terminates Rela'onship A_orney has a claim, based on quantum meruit, for fair value of legal servies but limited by the con'ngency amount; Where a con'ngent lawyer is fired before a case is resolved, the lawyer is en'tled to whichever is less, the con'ngent fee or a reasonable hourly fee for the 'me spent on the case Fee Splijng with Lawyers Outside of the Firm is Prohibited; UNLESS
- Work coopera'vely; AND
- With client's permission; AND
- The fee is paid propor'onatly to the work that is done; and
- The fee is one reasonable fee in total (OTHERWISE, under any other condi'ons in which the Client consents in wri'ng to any fee-splijng scenario) Clients: Sale and Purchase of a Prac'ce
Lawyer must:
- Cease to engage in private prac'ce in the geographic area in which the rpac'ce has been conducted; AND
- The en're prac'ce or area of prac'ce is sold to another lawyer or firm; AND
- Wri_en no'ce is given to seller's clients Restric'ons on Prac'ce
- No non-compete clause in contracts unless withdrawl of or re'rement of a partner
- Unable to restrict the right to prac'ce as part of a se_lement (GM Cases...GM wanted to se_le and make, as part of the se_lement, that this lawyer would not sue them anymore)
- Sale of Law prac'ce: Buyer can restrict seller's ability to compete MPRE Ques'ons: "Subject to Discipline" Asks whether the conduct described in the ques'on would subject the lawyer to discipline under the provisions of the ABA Model Rules of Professional Conduct. In the case of a judge, the test ques'on also asks whether the judge would be subject to discipline under the ABA Code of Judicial Conduct MPRE Ques'ons: "May" or "Proper" Asks whether the conduct described in the ques'on is professionally inappropriate in that it:
- Would not subject the lawyer or judge to discipline; AND
- Is not inconsistent with the Preamble and Comments, or text of the Model Rules of Professional Conduct of the ABA Code of Judicial Conduct; AND
- Is not inconsistent with generally accepted principles of the law of lawyering MPRE Ques'ons: "Subject to Li'ga'on Sanc'ons"
MPRE Ques'ons: "Always, only, never" Answers containing these phrases are usually a wrong answer. Nothing is typically so absolute. A_orney Client Privilege Exclusionary rules of evidence are very narrow; the duty is broader than the rules of evidence Professional Obliga'on of Confidence Lawyers have a duty TO THE CLIENT to protect secrets (anything derogatory or embarrassing learned about your client from ANY source) Excep'ons to Rule of Confiden'ality (Authorized by Client)
- Express authoriza'on ader informed consent (Client agrees ader the lawyer has explained risks and alterna'ves)
- Implied authoriza'on to assist lawyers in the work they are doing (i.e. To promote se_lement) Excep'ons to Rule of Confiden'ality (Other than Authoriza'on from Client)
- Li'ga'on with Client (offensive - you sue the client for fees; defensive - client sues you for legal malprac'ce)
- To obtain legal advice for the lawyer; you think you may have commi_ed an ethical viola'on
- Required by law or court order (judge orders you to reveal)
- To prevent substan'al financial harm (you may reveal if client intend to, in the future, commit an act that will result in substan'al financial harm)
- To prevent reasonably certain death or substan'al bodily harm (may reveal future act of anyone) Special Problems with Confiden'ality
- Past crimes are "secrets"
- Death of Client - secrets last forever and are not discloseable ader death of
the client actor
- RULE: Future crimes or acts (need not be of the client) involving a risk of reasonably certain death or substan'al bodily harm or future crime or act of the client involving substan'al financial harm to person or en'ty MAY be - not MUST and not SHOULD - revealed. Conflict of Interest: General Rule Lawyer cannot represent clients with adverse interests unless we have wri_en informed consent from all clients Wri_en Informed Consent (Conflict of Interest)
- Lawyer explains risks and alterna'ves
- Client agrees IN WRITING (can be electronic) Current Client Conflicts - Mul'ple Clients and Joint Representa'on OK as long as clients have similar interests LOANS (Current Client Conflicts - Lawyer Personal Interest and Du'es)
- Rule of Imputa'on Applies
- No loans, with no de minimus excep'on (except advancing or paying costs of li'ga'on INTERESTS ADVERSE TO CLIENT (Current Client Conflicts - Lawyer Personal Interest and Du'es)
- Rule of Imputa'on Applies
- No mortgages
- No buying property at a legal sale LAWYERS RELATED (Current Client Conflicts - Lawyer Personal Interest and Du'es)
- Rule of imputa'on does NOT apply
- Lawyers related as parent, child, sibling, or spouse shall not represent
Implied Disqualifica'ons from Representa'ons / Conflicts (mul'ple clients with poten'al conflicts) No mul'ple clients where "poten'al conflicts" exist unless:
- Lawyer has a reasonable belief of no adverse effect (you should always avoid mul'ple clients in the same case with poten'al adverse interests); AND
- Client gives informed consent; AND
- There can be no aggregate se_lement without informed consent from each client A lawyer is not permi_ed to acquire interest in Li'ga'on You can not "buy in" to interest in a case via legal services, with some excep'ons:
- Con'ngent Fee Agreements
- A_orney Lien A lawyer may not have business transac'ons with a client Excep'ons:
- Ordinary transac'ons
- Fair Deal, but only with certain condi'ons... A. Full disclosure to the client in wri'ng b. Client is advised in wri'ng to obtain advice from a separate counsel; AND c. Client gives informed consent in wri'ng A_orney can be paid by a 3rd Party, but there are condi'ons
- Wri_en informed consent by client
- Confidences must be kept between a_orney and client (paying the bill does not give you a right to know everything)
- A_orneys take direc'on from the client. Not from the 3rd party paying the fee Former Judge or Government Employee
A judge or government employee who goes into private prac'ce, cannot take "MATTERS" where he previously acted or had substan'al responsibility --- unless there is informed consent (but no rule of imputa'on, so long as "SCREENING" occurs) "MATTER" - specific facts with specific par'es (certain ma_ers a converted "private a_orney" CAN take) Even though the lawyer did the work as a government employee, these are not "ma_ers" by defini'on and, therefore, he can li'gate the ma_ers ader he converts to private a_orney:
- Draded legisla'on
- Compiled sta's'cs for the government
- Arranged logis'cs for commi_ees "MATTER" - specific facts with specific par'es (certain ma_ers a converted "private a_orney" can NOT take) The lawyer did the work as a judge or government employee, these are "ma_ers" by defini'on and, therefore, he can NOT li'gate the ma_ers ader he converts to private a_orney.
- Drading a contract between par'es
- Finding a Defendant guilty
- "Ac'ng on Habeas" or staying execu'on However...someone else in the firm can take the case so long as the former government employee/judge is SCREENED "SCREEN"
- Wri_en disclosure to the government (consent of the government is not required)
- The "screened" a_orney can get no fee; cannot financially benefit or share in the fees
