LECTURE HANDOUT 1.

MULTISTATE PROFESSIONAL RESPONSIBILITY EXAMINATION

DR. PAUL M. LISNEK, ESQ.

I.

Introduction; Test Overview

Multistate Professional Responsibility Exam (MPRE)
Three topics:
1.

The professional conduct of lawyers;

2.

The law of legal malpractice; and

3.

The professional conduct of judges.

Format of exam: 60 multiple choice questions with four possible answers per question.
-

Students are not penalized for a wrong answer; therefore, you should guess if dont
know the answer.

Two hours for exam; 2 minutes per question.

Outline for lecture and study strategy:

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II.

Regulation of the Legal Profession

A.

Sources of Regulation and Admission to Practice Law

1.

2.

ABA Model Rules of Professional Conduct

a.

Model Rules

b.

Comments

Courts

Courts cant require lawyers to be:

a.
b.

3.

United States citizens

Residents in the particular state

Bar admission and disciplinary matters

An applicant or lawyer recommending an applicant cannot:
a.

Make a false statement of material fact or omit a material fact

b.

Fail to respond to a lawful demand for information

c.

Fail to disclose a fact necessary to correct a misapprehension

LECTURE HANDOUT 3.
B.

Regulation After Admission

1.

2.

Duty of lawyer to report professional misconduct

a.

By other lawyers

b.

By judges

Duty of confidentiality

Example: Lawyer steals Clients money in April. In August of the same

year, Lawyer seeks advice from attorney Acton regarding an expected
investigation by the disciplinary authorities on this matter. Since Actons
knowledge of the matter is protected by the ethical duty of confidentiality,
Acton must not report Lawyers disciplinary violation. But, Acton cannot
recommend Lawyer to be admitted in another state.
** QUESTION **
Seymour is applying for admission to State As Bar. When Seymour was in high school, he and
his parents lived in State B, next door to attorney Azevedo. Azevedo is admitted to practice in
State B, but not in State A. Seymour seemed to be a promising lad, and Azevedo was
disappointed to learn that during his senior year in high school he was convicted of burglarizing
a liquor store. After serving his sentence, Seymour went to college and later to law school.
Azevedo has had no contact with Seymour since his high school years, but so far as Azevedo
knows, Seymour has not done anything since high school that would reflect badly on his
character. The Bar of State A sent Azevedo a routine questionnaire, asking a series of questions
about Seymours character. Azevedo does not know whether Seymour disclosed the burglary
conviction on his bar application, and she does not know where to contact him to find out.
How should Azevedo respond to the questionnaire?
A.

She should not respond at all, because she has no relevant information to
provide.

B.

She should not respond at all, because as a State B lawyer she is not
obligated to provide information to the Bar of State A.

4. LECTURE HANDOUT
C.

She should not mention Seymours burglary conviction in her response

unless she first contacts him and obtains his permission to do so.

D.

She should state what she knows about Seymour, including mention of his
burglary conviction.
***

3.

4.

Jurisdiction to Discipline a Lawyer

a.

The state in which lawyer is admitted to practice

b.

A lawyer not admitted in the state is also subject to the jurisdiction

of the state if the lawyer renders or offers to render any legal
services in the state.

Choice of Law in Disciplinary Matters

a.

For conduct in connection with a matter pending before a tribunal,

the rules of the jurisdiction in which the tribunal sits govern the
lawyers conduct.

b.

For any other conduct, the rules of the jurisdiction in which the
lawyers _____________________________, or, if the
predominant effect of the conduct is in a different jurisdiction, the
rules of that jurisdiction must be applied to the conduct.

Caveat: 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.
____________________________________________________________
____________________________________________________________
C.

Unauthorized Practice of Law

1.

Lawyers duties

a.

Appearances ___________________________________________

b.

Taking depositions

c.

Negotiating settlements

LECTURE HANDOUT 5.
2.

Clerks duties (paralegal, law student)

If properly supervised by a lawyer, a clerk can:
a.

Interview witnesses;

b.

Fill in blank forms; and

c.

Write memos.

** QUESTION **
Attorney Arlo has hired Clarissa, a third-year student at a local law school, to assist him as his
clerk. Clarissa 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. Arlo has Clarissa perform the
following tasks:
I.

Drafting a release form for personal injury plaintiffs to sign after their cases have been
settled (Arlo himself has the plaintiffs sign the forms).

II.

Interviewing witnesses to accidents, and having them sign Clarissas written version of
the interview.

III.

Reaching settlement agreements with insurance company representatives before lawsuits

have been filed.

For which, if any, of the above is Arlo subject to discipline?

A.

I. only.

B.

III. Only.

C.

I. and II., but not III.

D.

II. and III., but not I.

***

D.

Practicing Across Jurisdictional Boundaries

A lawyer who is not admitted to practice in a jurisdiction must not establish an
office to practice law in that jurisdiction.

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Pro hac vice (for one case only): A lawyer admitted in one jurisdiction can be
admitted in another jurisdiction to practice in one case.
A lawyer who is admitted in one jurisdiction, and who is in good standing, can
provide legal services on a temporary basis in another jurisdiction that are
undertaken in association with a lawyer who is admitted to practice in that other
jurisdiction and who ________________________________________________.

III.

The Client-Lawyer Relationship

A.

Creation of Relationship
1.

Consensual relationship
____________________________________________________________
____________________________________________________________

2.

Appointments
A lawyer must not seek to avoid appointment by a tribunal to represent a
person except for good cause, such as:
____________________________________________________________
____________________________________________________________
____________________________________________________________

3.

Rejecting cases
If a lawyer is not appointed to represent a client, the lawyer can reject the
case:
____________________________________________________________

B.

Scope of Representation
1.

A lawyer may limit the scope of the representation if: (1) the limitation is
reasonable under the circumstances, and (2) the client gives informed
consent.

2.

Clients decisions vs. lawyers decisions

In a civil case, a lawyer must abide by a clients decision whether to
____________________________________________________________
In a criminal case, the lawyer must abide by the clients decision, after
consultation with the lawyer, as to:

LECTURE HANDOUT 7.
a.
b.
c.
The lawyer may make the following decisions:
____________________________________________________________
____________________________________________________________
____________________________________________________________
3.

Illegal conduct by client

A lawyer must not counsel a client to engage, or assist a client, in conduct
that the lawyer knows is
.
But a lawyer may discuss the legal consequences of any proposed course
of conduct with a client and may counsel or assist a client to make a good
faith effort to determine the validity, scope, meaning, or application of the
law.

C.

Lawyers Duty of Communication

A lawyer must:

D.

1.

Reasonably consult with the client about the means by which the clients
objectives are to be accomplished;

2.

Keep the client reasonably informed about the status of the matter;

3.

Promptly comply with reasonable requests for information; and

4.

Explain matters to the client to the extent reasonably necessary to permit

the client to make informed decisions regarding the representation.

Fees
A lawyer must not make an agreement for, charge, or collect an unreasonable fee
or an unreasonable amount for expenses. The scope of the representation and the
basis or rate of the fee and expenses for which the client will be responsible must
be communicated to the client,
, before or
within a reasonable time after commencing the representation, except when the
lawyer will charge a regularly represented client on the same basis or rate.
1.

Minimum fees prohibited

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2.

3.

Factors in determining reasonableness of fee

a.

Time and labor required;

b.

Novelty and difficulty of questions involved;

c.

Whether lawyer must turn away other cases, if the client is aware
of this;

d.

What other attorneys in the community charge for similar work;

e.

The amount at stake and the results obtained for the client;

f.

Time limitations imposed by the client;

g.

The nature and length of the relationship between the lawyer and
client;

h.

The experience, reputation and ability of the lawyer; and

i.

Whether the fee is fixed or contingent; a contingent fee can be

higher.

Contingent fees are permissible, but must be _______________________

____________________________. The agreement must clearly notify the
client of any expenses for which the client will be liable, whether or not
the client is the prevailing party.
a.

Prohibited in:
1)

Criminal cases

LECTURE HANDOUT 9.
2)

b.

Domestic relations cases, if the payment or amount of the

fee is contingent upon the securing of a divorce or upon the
amount of alimony or support, or property settlement.

Termination
Without cause:
With cause:

c.

Writing

1)

How the fee is to be calculated, including the percentages

that will accrue to the lawyer in the event of settlement,
trial or appeal;

2)

What expenses are to be deducted from the recovery; and

3)

Whether deductions for expenses will be made before or

after the contingent fee is calculated.

At the conclusion of a contingent fee matter, the lawyer must

provide the client with a written statement outlining how the fee
was determined.
4.

Fee splitting with other lawyers

a.

Lawyers in firm

b.

Lawyers outside the firm

A division of a fee between lawyers who are not in the same firm
may be made only if:
1)

The division is in proportion to the services performed by

each lawyer or, each lawyer assumes joint responsibility for
the representation;

10. LECTURE HANDOUT

c.

2)

The client agrees to the arrangement, including the share

each lawyer will receive, and the agreement is confirmed in
writing; and

3)

The total fee __________________________ is reasonable.

Fee splitting pursuant to separation and retirement agreements

** QUESTION **
Two years ago, Weaver obtained a divorce from her husband Hubbard in State A. The court
awarded Weaver custody of the three children and ordered Hubbard to pay Weaver $3,000 per
month in child support and alimony payments. The lawyer who represented Weaver in the
divorce proceedings died. Hubbard failed to make the $3,000 payments for seventeen months in
a row. Weaver ran out of money and in desperation hired attorney Avilla to represent her in a
proceeding to collect the past due payments from Hubbard. State A has no law or court rule that
requires the loser to pay the winners attorney fees in domestic relations matters. Because
Weaver had no money to pay Avilla a regular fee, Avilla agreed to do the work on a contingent
fee basis for 10% of whatever amount Weaver was ultimately able to recover. Avilla won an
award for Weaver of the entire amount due ($51,000), and by tracking down and attaching
Hubbards secret bank account, he got the full amount paid to Weaver. He then sent Weaver a
bill for his share, $5,100.
Is Avilla subject to discipline?
A.

No, unless $5,100 is an unreasonably high fee for the work Avilla did.

B.

No, because Weaver had no money to pay a regular fee.

C.

Yes, because Avilla used a contingent fee in a domestic relations matter.

D.

Yes, because Avilla took a portion of the money that was intended for
support of Weaver and the children.
***

E.

Termination of Client-Lawyer Relationship

1.

Three ways:

LECTURE HANDOUT 11.

a.

Client fires lawyer (client always has power to terminate attorneyclient relationship)

b.

Attorney must withdrawmandatory withdrawal

1)

Lawyers disability ________________________________

2)

If the representation will result in a violation of the Rules

of Professional Conduct or other law.
In addition, a lawyer must consult with the client about any
relevant limitation on the lawyers conduct when the
lawyer knows that the client expects assistance not
permitted by the Rules or other law.

3)

c.

Discharge

Attorney may withdrawpermissive withdrawal

1)

Withdrawal can be accomplished without material adverse

effect on the client;

2)

Client persists in a course of action involving the lawyers

services that the lawyer reasonably believes is criminal or
fraudulent;

3)

Client has used attorneys services to commit past crime or

fraud;

4)

Client insists upon taking action that the lawyer considers

repugnant or with which the lawyer has a fundamental
disagreement;

12. LECTURE HANDOUT

2.

5)

Client breaks promise to lawyer, and has been given

reasonable warning that the lawyer will withdraw unless
the promise is fulfilled;

6)

Unreasonable financial hardship for attorney;

7)

Representation has been rendered unreasonably difficult by

the client; or

8)

Other good cause exists.

Need courts permission

When ordered to do so by a tribunal, a lawyer must continue

representation notwithstanding good cause for terminating the
representation.

IV.

3.

Reasonable notice

4.

Must return clients property promptly

Protecting Client Interests

A.

Competence
A lawyer must provide competent representation to a client. Competent
representation requires the legal knowledge, skill, thoroughness and preparation
reasonably necessary for the representation.
Three ways to avoid an incompetence problem:

LECTURE HANDOUT 13.

B.

1.

The lawyer associates herself with another lawyer who is competent to

handle the matter and the client consents

2.

The lawyer becomes competent in the subject matter

3.

Emergency cases: Exception applies only for period of the emergency

Diligence
A lawyer must act with reasonable diligence and promptness in representing a
client.
The lawyers duty to act with reasonable diligence does not require the use of
or preclude the treating of all persons involved in
the legal process with courtesy and respect.
A lawyers work load must be controlled so that each matter can be handled
______________________ and ______________________.
A lawyers duty to act with diligence does not preclude the lawyer from agreeing
to
that will not prejudice the lawyers client.

C.

Malpractice Liability

1.

Theories of malpractice liability

a.

Intentional tort

b.

Breach of fiduciary duties

c.

Breach of contract

d.

Negligence
1)

To clients;

2)

To prospective clients; _____________________________

________________________________________________

14. LECTURE HANDOUT

3)

To third to parties who are intended to benefit from legal

services.

Proximate cause

2.

Standard of care
a.

General practitioner
A lawyer must provide competent representation to a client,
which requires the legal knowledge, skill, thoroughness and
preparation reasonably necessary for the representation.

b.

3.

Specialists

Limitation of liability
A lawyer must not make an agreement prospectively limiting the lawyers
liability to a client for malpractice unless the client is independently
represented in making the agreement.

4.

Settlement of malpractice
A lawyer must not settle a claim or potential claim for legal malpractice
with an unrepresented client or former client unless:

D.

Duty of Confidentiality
A lawyer must not reveal information: __________________________________

1.

Broader than the attorney-client privilege

Attorney-client privilege covers:
a.
b.
c.

LECTURE HANDOUT 15.

Examples:
Lawyers conversation with a witness:

Newspaper article concerning clients case:

2.

Exceptions to duty of confidentiality

A lawyer may reveal information protected by the duty of confidentiality
in the following situations:
a.

The client gives informed consent

b.

The disclosure is impliedly authorized in order to carry out the

representation; e.g., plea bargain, settlement

c.

May reveal confidential information to the extent necessary to

defend self from civil, criminal or disciplinary claim

d.

May disclose or use confidential information to the extent

necessary to collect a fee

e.

To comply with other law or a court order

f.

To prevent reasonably certain death or substantial bodily harm

______________________________________________________
______________________________________________________
______________________________________________________

16. LECTURE HANDOUT

Example: A lawyer may reveal a clients intent to commit suicide.

3.

g.

To secure legal advice about the lawyers compliance with these

rules

h.

To prevent the client from ________________________ that is

reasonably certain to result in substantial injury to the financial
interests or property of another ____________________________
______________________________________________________
______________________________________________________

i.

To prevent, mitigate, or rectify ____________________________

_________________________________________ that is
reasonably certain to result or has resulted from the clients
commission of a crime or fraud ____________________________
______________________________________________________
______________________________________________________

k.

To detect and resolve conflicts of interest arising of a merger

between firms, a sale of a law practice, or a lawyers change in
employment (but disclosure must not compromise the attorneyclient privilege or prejudice the client)

Prospective clients
Even when no lawyer-client relationship ensues, a lawyer who has had
discussions with a prospective client must not use or reveal information
learned in the consultation.

E.

Safeguarding Funds and Other Property

1.

Duty not to commingle money or property

A lawyer may deposit the lawyers own funds in a client trust account for
the sole purpose of paying bank service charges.

LECTURE HANDOUT 17.

V.

2.

Safeguard property

3.

Promptly notify client of receipt of property and money

4.

Promptly forward to client money and property

5.

Disputed claims
a.

Lawyer v. Client:
______________________________________________________

b.

Third Party v. Client: ____________________________________

Conflicts of Interest
A.

Rule of Imputed Disqualification

Generally, if one lawyer in a firm suffers from a conflict, it is imputed to all other
partners, associates and of counsel to the firm.
Exception: The conflict is based on a
of the
disqualified lawyer and does not present a significant risk of materially limiting
the representation of the client by the remaining lawyers in the firm.

B.

Conflicts Among Current Clients

A lawyer must not represent a client if the representation would be directly
adverse to another client.

18. LECTURE HANDOUT

C.

Multiple Clients in the Same Matter

1.

Aggregate settlement agreements

A lawyer who represents two or more clients must not participate in
making an aggregate settlement of the claims of or against the clients
unless each client gives informed consent in a signed writing, after a full
review of the entire settlement as to all parties.

D.

Lawyers Personal Interests and Duties

A lawyer must not represent a client if there is a significant risk that the
representation of that client will be materially limited by the lawyer's
responsibilities to another client, a former client or a third person or the lawyers
own
. For example, a lawyer may not refer clients to an
enterprise in which the lawyer has an undisclosed financial interest.

E.

Former Client Conflicts

A lawyer who has formerly represented a client in a matter must not thereafter
represent another person in the same or a substantially related matter in which that
persons interests are materially adverse to the interests of the former client unless
the former client provides informed consent, confirmed in writing.
For example, a lawyer who has represented a businessperson and learned
extensive private financial information about that person may not then represent
that persons spouse in seeking a divorce.

F.

Prospective Client Conflicts

A lawyer who has obtained information from a prospective client: (1) must not
use or reveal that information; and (2) must not represent a client with interests
materially adverse to those of a prospective client if the lawyer received
information from the prospective client that could be significantly harmful to the
prospective client in the matter.
This conflict can be waived with the informed consent of the client and
prospective client, confirmed in writing.

LECTURE HANDOUT 19.

G.

Former Government Employee in Private Practice

A lawyer who has formerly served as a public officer or employee of the
government must not otherwise represent a client in connection with a matter in
which the lawyer participated personally and substantially as a public officer or
employee, unless the appropriate government agency gives its informed consent,
confirmed in writing, to the representation.

Conflict not imputed if:

1.

Full disclosure to the government in writing to enable it to ascertain

compliance with the provisions of this rule;

2.

Former governmental lawyer receives no portion of fee; and

3.

No disclosure of confidential information.

Legislation

H.

Confidential Information
A lawyer must not use information relating to the representation of a client to the
disadvantage of a client without informed consent. Therefore, a lawyer may not
use one clients confidential information to benefit another client or the lawyer if
it will disadvantage the client.
However, the rule does not prohibit uses that do not disadvantage the client. For
example, a lawyer who learns a government agencys interpretation of trade
legislation during the representation of one client may properly use that
information to benefit other clients.

20. LECTURE HANDOUT

I.

Acquiring an Interest in Litigation

A lawyer may not acquire a proprietary interest in the cause of action or subject
matter of litigation the lawyer is conducting for a client, except:

J.

1.

A lawyer may acquire a lien authorized by law to secure the lawyers fee
or expenses. This may include liens granted by statute, liens originating in
common law, and liens acquired by contract with the client.

2.

A lawyer may contract with a client for a reasonable contingent fee in a

civil case.

Business Transactions with a Client

A lawyer must not enter into a business transaction with a client or knowingly
acquire an ownership, possessory, security, or other pecuniary interest adverse to
a client unless:
1.

Transaction is reasonable and fair to client;

2.

Terms are fully disclosed to client _____________________ that client

can reasonably understand;

3.

Client is advised in writing of the desirability of seeking and is given a

reasonable opportunity to seek the advice of independent legal counsel on
the transaction; and

4.

Client consents ____________________ to the essential terms of the

transaction and the lawyers role in the transaction.

__________________________________________________________________
__________________________________________________________________
__________________________________________________________________
K.

Financial Assistance
A lawyer must not provide financial assistance to a client in connection with
pending or contemplated litigation, except:

For example, a lawyer may not make a loan to the client for

LECTURE HANDOUT 21.

L.

Related Attorneys

__________________________________________________________________
__________________________________________________________________
M.

Gifts from Clients

N.

Literary or Media Rights

O.

Sexual Relations with Clients

P.

Third Party Paying Lawyers Fee

A lawyer must not accept compensation for representing a client from someone
other than the client unless:
1.
2.
3.

22. LECTURE HANDOUT

Q.

Organization as Client
A lawyer employed or retained by an organization represents the organization
acting through its duly organized constituents and, in dealing with those
constituents:

If a lawyer for an organization knows that a constituent of the organization is

engaged in action, refuses to act, or intends to act in a matter related to the
representation that is:
1.
, or
2.
and substantial injury is likely to result to the organization, the lawyer must:

VI.

Different Roles of the Lawyer

A.

Lawyer as Advisor
In rendering advice, a lawyer may refer not only to law but to other considerations
such as ___________________________________________________________
____________________________________________ that may be relevant to the
client's situation.

B.

Lawyer as Evaluator
At the clients request, a lawyer may provide an evaluation of a matter affecting a
client for the use of a third party.
Examples: Lawyer for seller renders an opinion concerning the title of property
for the information of a prospective purchaser; lawyer for borrower provides
summary of clients financial information to a prospective lender.
When the lawyer knows or reasonably should know that the evaluation is likely to
have a material and negative effect on the clients interests, the lawyer must not
provide the evaluation unless __________________________________________
__________________________________________.

LECTURE HANDOUT 23.

C.

Lawyer as Negotiator
A lawyer is required to be _________________ when dealing with others on a
clients behalf, but generally has no affirmative duty to inform an opposing party
of ________________________________________.
Under generally accepted conventions in negotiation, certain types of statements
ordinarily are not taken as statements of material fact:

D.

1.

____________________________________________________________

2.

____________________________________________________________

Lawyer Serving As Third-Party Neutral

A lawyer serves as a third-party neutral when the lawyer assists two or more
persons who are not clients of the lawyer to reach a resolution of a dispute or
other matter that has arisen between them. Service as a third-party neutral may
include service as
__________________________________________________________________
__________________________________________________________________
or in such other capacity as will enable the lawyer to assist the parties to resolve
the matter.
A lawyer serving as a third-party neutral must inform unrepresented parties that
__________________________________________________________________
______________________________________________.
A lawyer who serves as a third-party neutral in a matter must not thereafter
become the lawyer for anyone involved in the matter, unless all of the parties give
their informed consent, confirmed in writing.

E.

Lawyer as Advocate
1.

Meritorious claims and contentions: A lawyer must not bring or defend a

proceeding, or assert or controvert an issue therein, unless there is a basis
in _____________ and ______________ for doing so that is not
_________________, which includes a good faith argument for an
extension, modification, or reversal of existing law.
A lawyer for the defendant in a criminal proceeding may defend the
proceeding so as to require that every element of the case be established.
Therefore, even if the lawyer knows the client is guilty of the criminal
charge, the lawyer may ________________________________________
___________________________________________________________.

24. LECTURE HANDOUT

2.

Duty of candor to the tribunal

a.

False statements
A lawyer must not knowingly make a false statement of
______________________________ to a tribunal or fail to correct
a false statement of material fact or law previously made to the
tribunal by the lawyer.

b.

Legal authority
A lawyer must disclose to the tribunal legal authority
______________________________________________________
known to the lawyer to be _________________________ to the
position of the client, and not disclosed by opposing counsel.

c.

False evidence
A lawyer must not offer evidence that the lawyer __________ to
be false. If a lawyer, the lawyers client, or a witness called by the
lawyer, has offered material evidence and the lawyer comes to
know of its falsity, the lawyer must take reasonable remedial
measures, including, if necessary,
________________________________________. A lawyer may
refuse to offer evidence, other than the testimony of a defendant
client in a criminal matter, that the lawyer
________________________________ is false.

3.

Fairness to opposing party and counsel

a.

Evidence
A lawyer may not unlawfully obstruct another partys access to
evidence or unlawfully alter, destroy, or conceal a document or
other material having potential evidentiary value.

b.

Discovery Requests
In pretrial procedure, a lawyer must not make a frivolous discovery
request or fail to make a reasonably diligent effort to comply with
a legally proper discovery request by an opposing party.

c.

At trial, a lawyer may not:

1)

Allude to any matter that the lawyer does not reasonably

believe is _______________________________________

LECTURE HANDOUT 25.

or that will not be supported by admissible evidence;

4.

2)

Assert personal ________________of facts in issue except

when testifying as a witness;

3)

State a personal ________________ as to the justness of a

cause, the credibility of a witness, the culpability of a civil
litigant, or the guilt or innocence of an accused; or

4)

Request a person other than a client to refrain from

voluntarily giving relevant information to another party
unless (1) the person is _____________________________
________________________________________________
of a client AND (2) the lawyer reasonably believes that the
persons interests will not be adversely affected by
refraining from giving such information.

Impartiality and decorum of the tribunal

A lawyer must not:
a.

Seek to influence a judge, juror, prospective juror or other official

by means prohibited by law;

b.

Communicate ex parte with such a person during the proceeding

unless authorized to do so by law or court order;

c.

Communicate with a juror or prospective juror _______________

_____________________________________________________:

d.
5.

(i)

The communication is prohibited by law or court order;

(ii)

The juror has made known to the lawyer a desire not to

communicate; or

(iii)

The communication involves misrepresentation, coercion,

duress or harassment; or

Engage in conduct intended to disrupt a tribunal.

Criticism of judges and adjudicating officials

A lawyer may criticize a judge, but may not make a statement that the
lawyer knows to be false, or with reckless disregard as to its truth or
falsity, concerning the qualifications or integrity of a judge, adjudicatory

26. LECTURE HANDOUT

officer or public legal officer, or of a candidate for election or appointment
to judicial or legal office.
F.

Lawyer as Prosecutor
A lawyer serving as a prosecutor in a criminal action must refrain from
prosecuting a charge that the prosecutor knows is not supported by
________________________________________________________.
A prosecutor must make timely disclosure to the defense of all known evidence or
information that tends to _____________________________________________
________________________________________________________.

G.

Lawyer as Witness
A lawyer must not act as an advocate at a trial in which the lawyer is likely to be a
necessary witness.

Exceptions:

H.

1.

Testimony relates to uncontested matter

2.

Where testimony pertains to legal fees

3.

Substantial hardship
____________________________________________________________
____________________________________________________________

4.

Disqualification not imputed

____________________________________________________________
____________________________________________________________

Lawyer in Nonadjudicative Proceeding

A lawyer representing a client before a legislative body or administrative agency
in a nonadjudicative proceeding must disclose that the appearance is
________________________________________.

VII.

Transactions with Third Persons

A.

Truthfulness in Statements to Third Parties

In the course of representing a client a lawyer must not knowingly:

LECTURE HANDOUT 27.

B.

1.

Make a false statement of ____________________________ to a third

person; or

2.

Fail to disclose a ___________________________ to a third person when

disclosure is necessary to avoid assisting a criminal or fraudulent act by a
client, unless disclosure is prohibited by the lawyers duty of
confidentiality.

Communications with Represented Persons

No direct communication with adverse party if represented by lawyer, unless it
meets one of the following requirements:
1.

Lawyer consents

2.

Authorized by law

3.

Communication does not concern representation

Note: The parties to the lawsuit may communicate directly with each other and a
lawyer does not violate the above rule by informing the client of that fact.
Note: If the adverse party is an organization (e.g., corporation), the lawyer must
obtain permission from the organizations counsel to communicate with:
1.

Person who has authority to obligate the organization;

2.

Person whose conduct can be imputed to organization; or

3.

Person who supervises, directs, or regularly consults with the

organizations lawyer on the matter.

Note: Consent is not required to speak with a former employee of the

organization, unless that person is separately represented in the matter.
C.

Communication with Unrepresented Persons

1.

A lawyer can ______________________ with an unrepresented person.

2.

In dealing on behalf of a client with a person who is not represented by

counsel, a lawyer must not _____________________________________
___________________________________________________________.

28. LECTURE HANDOUT

3.

D.

A lawyer cannot provide legal advice to an unrepresented person, other

than _______________________________________________________
___________________________________________________________.

Respect for Rights of Third Persons

1.

In representing a client, a lawyer must not use means that have no

substantial purpose other than to _______________________ third
person, or use methods of obtaining evidence that ___________________
___________________________________________________________.

2.

A lawyer who receives a document or electronically stored information

relating to the representation of the lawyers client and knows or
reasonably should know that the document or electronically stored
information was inadvertently sent must ___________________________
___________________________________________________________.

VIII. Law Firms and Associations

A.

Responsibilities of Partners, Managers, and Supervisory Lawyers

1.

Partners
A partner in a law firm, and a lawyer with comparable managerial
authority in a law firm, must make reasonable efforts to ensure that the
firm has in effect measures giving reasonable assurance that all lawyers in
the firm _____________________________________________________
___________________________________________________________.

2.

Supervising lawyers
A lawyer having direct supervisory authority over another lawyer must
make reasonable efforts to ensure that the other lawyer _______________
___________________________________________________________.

3.

Vicarious responsibility
A lawyer is responsible for another lawyers violation of the Rules of
Professional Conduct if:
a.

The lawyer ____________ or, with knowledge of the specific

conduct, ____________ the conduct involved; or

b.

The lawyer is a partner, has comparable managerial authority, or

has direct supervisory authority over the other lawyer, and knows

LECTURE HANDOUT 29.

of the conduct at a time when its consequences can be avoided or
mitigated but __________________________________________.
B.

C.

D.

Responsibilities of a Subordinate Lawyer

1.

A lawyer is bound by the Rules of Professional Conduct notwithstanding

that ________________________________________________________
____________________________________________________________
___________________________________________________________.

2.

A subordinate lawyer does not violate the Rules of Professional Conduct if

that lawyer acts in accordance with a supervisory lawyers
_______________________of an ___________________ question of
professional duty.

Responsibilities Regarding Nonlawyer Assistance

1.

A partner in a law firm, a lawyer with comparable managerial authority in

a law firm, and a lawyer having direct supervisory authority over a
nonlawyer must make reasonable efforts to ensure that the firm has in
effect measures giving reasonable assurance that the conduct of all
nonlawyers at the firm is compatible with __________________________
___________________________________________________________.

2.

Vicarious responsibility: A lawyer is responsible for conduct of a

nonlawyer that would be a violation of the Rules of Professional Conduct
if engaged in by a lawyer if:
a.

The lawyer orders or, with the knowledge of the specific conduct,
__________________ the conduct involved; or

b.

The lawyer is a partner, has comparable managerial authority in

the law firm, or has direct supervisory authority over the person,
and knows of the conduct at a time when its consequences can be
avoided or mitigated but fails to ___________________________
_____________________________________________________.

Professional Independence of a Lawyer

1.

Partnerships with nonlawyers

A lawyer must not form a partnership with a nonlawyer, such as
___________________________________________________________
____________________________________________, if any of the
activities of the partnership consist of the practice of law.

30. LECTURE HANDOUT

2.

Fee splitting with nonlawyers

Four exceptions:

E.

a.

Death benefits to lawyers estate or to one or more specified

persons

b.

Payment to purchase practice made to estate or other representative

of deceased or disabled lawyer

c.

Compensation and retirement plans for nonlawyer employees

d.

Lawyer may share court-awarded legal fees with a nonprofit

organization that employed, retained, or recommended
employment of the lawyer in the matter

Restrictions on Right to Practice

1.

A lawyer must not participate in offering or making an agreement that

restricts the right of a lawyer to practice after termination of the
relationship, except _______________________________________
_______________________________________________________.

2.

A lawyer may not offer or make an agreement in which a restriction on the

lawyers right to practice is part of the ____________________ of a client
controversy.
Example: In connection with settling a claim on behalf of a client, a
lawyer cannot agree not to represent other persons.

IX.

Public Service
A.

Voluntary Pro Bono Service

A lawyer ________ aspire to render at least ______ hours of pro bono legal
services per year.

LECTURE HANDOUT 31.

B.

C.

D.

Serving in Legal Services Organizations

1.

A lawyer may serve as a director, officer, or member of a legal services

organization, apart from the law firm in which the lawyer practices,
notwithstanding that the organization serves persons having interests
________________________________ to a client of the lawyer.

2.

A lawyer serving in a legal services organization must not knowingly

participate in a decision or action of the organization:
a.

If participating in the decision or action would result in a conflict

with __________________________________ clients; or

b.

Where the decision or action could have a material adverse effect

on the representation of a client ____________________________
_______________________________________ whose interests
are adverse to a client of the lawyer.

Law Reform Activities

1.

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.

2.

When the lawyer knows that the interests of a client may be materially
benefited by a decision in which the lawyer participates, the lawyer must
disclose _____________________________________________________
___________________________________________________________.

Political Contributions to Obtain Government Employment

A lawyer or law firm must not accept a government legal engagement or an
appointment by a judge if the lawyer or law firm makes a political contribution or
solicits political contributions for the purpose of obtaining or being considered for
that type of legal engagement or appointment.

X.

Promoting Legal Services

A.

Attorney Advertising

Examples: Yellow page ads, office signs, business cards, announcements,

letterhead, brochures, letters sent by mail, recorded phone messages, Internet
websites.

32. LECTURE HANDOUT

1.

Identification of Advertiser
Any communication concerning a lawyers services must include the
name and office address of at least one lawyer or law firm responsible for
its content.

2.

3.

Attorney advertisements cannot include:

a.

False or misleading statements;

b.

Statements which create unjustified expectations.

Subjects that are specifically permitted in advertisements:

a.

Languages spoken;

b.

Educational background;

c.

The basis on which the lawyers fees are determined, including

prices for specific services and payment and credit arrangements;

d.

Memberships in bar associations; and

e.

Names of regular clients, provided they give consent.

4.

Radio and T.V. advertisements

5.

Direct mail

Every written, recorded or electronic communication from a lawyer

soliciting professional employment from a prospective client known to be
in need of legal services in a particular matter, and who is not a lawyer,
family member, close personal friend or former client, must include the

LECTURE HANDOUT 33.

words Advertising Material on the outside envelope, if any, and at the
beginning and ending of any recorded or electronic communication.
B.

Solicitation
A lawyer must not solicit professional employment from a prospective client by
in-person, live telephone or real-time electronic contact when a significant motive
for the lawyers doing so is the lawyers pecuniary gain.
Permissible solicitations:
1.

Group and prepaid legal services

A lawyer may participate with a prepaid or group legal service plan
operated by an organization not owned or directed by the lawyer that uses
in-person or telephone contact to solicit memberships or subscriptions for
the plan from persons who are not known to need legal services in a
particular matter covered by the plan, provided the contact is not made by
the lawyer who will be conducting the representation.

2.

Education

3.

No fee

4.

Close friends and relatives

5.

Present clients

6.

Former clients

Even these permissible solicitations are prohibited if the prospective client has
made known to the lawyer a desire not to be solicited by the lawyer ___________
_________________________________________________________________.
C.

Communication of Fields of Practice

1.

A lawyer may state that he or she does (or does not) practice in particular

34. LECTURE HANDOUT

fields of law.
2.

D.

A lawyer must not state or imply that she is certified as a specialist in a

particular field of law, unless:
a.

The lawyer has been certified as a specialist by an organization

that has been approved by an appropriate state authority or that has
been accredited by the ABA; and

b.

The name of the certifying organization is clearly identified in the

communication.

Firm Names and Letterheads

1.

Partners

2.

Trade names

3.

Multistate law firms

A 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 must indicate the jurisdictional limitations on those not licensed
to practice in the jurisdiction where the office is located.

XI.

Judicial Ethics
A.

ABA Code of Judicial Conduct

B.

General Obligations
1.

Conduct

LECTURE HANDOUT 35.

C.

2.

Gifts

3.

Duty to report

4.

Follow the law

5.

Activities outside judicial office

6.

Disinterested experts: Parties must receive a) advance notice of experts

identity; b) notice of advice to be solicited from expert; and c) reasonable
opportunity to object and respond to the advice.

Litigation Responsibilities
1.

Competence

2.

Promptness __________________________________________________

3.

Decorum

4.

Ex parte communication
A judge must not initiate, permit, or consider ex parte communications,
i.e., a communication between a judge and a representative from one side
of a matter when no representative from the other side is present.

36. LECTURE HANDOUT

Three exceptions:

D.

a.

Expressly authorized by law

b.

Mediation or settlement

c.

Emergencies

Disqualification
A judge must disqualify himself or herself in a proceeding in which the judges
impartiality might reasonably be questioned.
1.

Bias or personal knowledge _____________________________________

Prior involvement:
a.

Served as a material witness in the matter;

b.

Served as a lawyer in the matter;

c.

Was associated in law practice with lawyer who was involved in

the matter when they practiced together.

2.

Former partner or close relative _________________________________

3.

Economic interest
A judge must disqualify herself if she knows that, either as an individual
or a fiduciary, she has an economic interest in the matter or in one of the
parties or she has any other interest that is more than de minimis and that
could be substantially affected by the proceedings.

LECTURE HANDOUT 37.

Disqualification is also required if the economic interest is held by the
judges: (1) spouse, (2) parent, (3) child, or (4) by any other member of
the judges family who resides in the judges household.
4.

E.

Remittal of disqualification

Extrajudicial Activities
1.

Law-related organization
A judge may serve as an officer, director, trustee, or nonlegal advisor of a
government agency or private organization devoted to the improvement of
the law.

2.

Fundraising

3.

Fiduciary activities
Generally, a judge must not serve as an executor, administrator, trustee,
guardian or other fiduciary.
Exception: A judge may serve in such a capacity for a member of the
judges family where these conditions are met:
a.

No interference with the judges official duties;

b.

The judge must not become involved in proceedings that would

ordinarily come before him, or her; and

c.

The matter will not involve the judge in adversary proceedings in

the court on which the judge sits or under its appellate jurisdiction.

Except for situations in which the judge participates in the management of

a legal or equitable interest, or the interest could be substantially affected
by the outcome of a proceeding before a judge, an economic interest does
not include an interest in securities held by an educational, religious,
charitable, fraternal, or civic organization in which the judge or the
judges spouse, domestic partner, parent, or child serves as a director, an
officer, an advisor, or other participant.

38. LECTURE HANDOUT

Caveat: When it becomes apparent that the duties of a fiduciary conflict
with the judges duties under the Code of Judicial Conduct, the judge
should resign as a fiduciary. Similarly, in managing her own investments,
a judge must seek to minimize the number of cases in which she will be
disqualified. As soon as it can be done without serious loss, a judge must
eliminate her investments that might require frequent disqualification.
4.

5.

Reporting misconduct
a.

Personal knowledge

b.

Information of violation

Testimony
A judge must not testify as a character witness unless ________________.

6.

Nonprofit organizations
A judge may serve as an officer, director or trustee for a nonprofit
educational, religious or charitable organization.

7.

a.

Board member of a public educational institution

b.

Except board member of a public law school

c.

Board member of private educational institution

Participation in a business
A judge must not engage in financial or business dealings that might be
perceived to exploit the judges position or that involve frequent dealings
with lawyers who are likely to come before the court on which the judge
sits.
A judge must not be an officer, director, manager, general partner, advisor
or employee of any business entity.

LECTURE HANDOUT 39.

A judge may, however, manage or participate in a business that is closely
held by the judge or members of his family, unless it would interfere with
her judicial duties.
8.

Teaching

9.

References

10.

Membership in organization
a.

A judge cannot belong to an organization that discriminates on one

of these grounds: race, sex, gender, religion, national origin,
ethnicity, or sexual orientation.
Exception:

b.
11.

F.

A judge can belong to an organization that discriminates on

grounds that do not constitute invidious discrimination.

Practice of law

Judges and Politics

1.

Judges running for office

a.

Public speaking

b.

Soliciting votes

c.

Fundraising ___________________________________________
______________________________________________________

40. LECTURE HANDOUT

** QUESTION **
State A Appeals Court Judge Joy is the treasurer of Food for Millions, a national charitable
organization that raises money to send food to starving nations.
Which of the following may Judge Joy do in his capacity as treasurer?
I.

Personally solicit contributions from other judges on the State A Appeals Court.

II.

Personally solicit contributions from State A trial court judges.

III.

Plan the organizations national fundraising campaign.

IV.

Be the keynote speaker at the organizations national fundraising dinner.

A.

I., II., III., and IV.

B.

I. and III. only.

C.

IV. only.

D.

I., II., and III. only.

***

G.

Conflict of Interest

** QUESTION **
Judge Josephine ruled in favor of Plaintiff in a civil action where Defendant was ordered to pay
Plaintiff $50,000 in damages. Josephine has since resigned from the bench. Defendant has
refused to pay the $50,000, asserting that the verdict was obtained through improper means.
Defendant asks Josephine, now in private practice, if she will represent him.
Would Josephine be subject to discipline if she represents Defendant?
A.

No, because Josephine is no longer on the bench.

LECTURE HANDOUT 41.

B.

No, unless Josephine was a party to fraud when the original verdict was handed
down.

C.

Yes, because Josephine ruled on this case when she was a judge.

D.

Yes, because former judges may not engage in private practice.