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TABLE OF CONTENTS
MPRE BaR NotEs ................................................................................................. 1 INtRoductIoN ...................................................................................................... 39 MPRE REvIEw outlINE .................................................................................... 45
I. II. aBout thE MPRE........................................................................................... 47 thE aPPlIcaBlE law
ABA Model Rules of Professional Conduct (The Rules) ................................................. 47 ABA Model Rules of Judicial Conduct ............................................................................ 47
Becoming a Lawyer and Losing Your Right to Be a Lawyer .......................................... 51 Law Firms & Associations .............................................................................................. 57 The Lawyer’s Relationship with the Client ..................................................................... 59 Representing the Client .................................................................................................. 101 The Lawyer as an Advocate .......................................................................................... 105 The Lawyer as an Advisor, Evaluator, or Third-Party Neutral ......................................... 139 Appearances Before Legislative Bodies ......................................................................... 141 Maintaining the Integrity of the Legal Profession ............................................................ 141
Becoming a Judge .......................................................................................................... 155 Acting as a Judge ........................................................................................................... 157
TEST PREP AND ADMISSIONS
MPRE Bar Notes .
. . Test regarding the impact of a past incident on one’s ability to become a lawyer: c. Primary sources used by a jurisdiction to find out if a person is morally fit: ● ● c. Before one can become a lawyer. . . . . . lawYERs A. . . . . Losing Your Right to Be a Lawyer TEST PREP AND ADMISSIONS 3 . . Becoming a Lawyer and Losing Your Right to Be a Lawyer .MPRE BaR NOtEs MPRE BAR NOTES I. . . Becoming a Lawyer a.5 1. all jurisdictions require: b. Rules regarding the supply of information on behalf of an applicant: 2. . .
Responsibility for Another Person’s Conduct .MPRE BaR NOtEs a. . Responsibilities of Partners: b. Responsibilities of Supervising Attorneys: TEST PREP AND ADMISSIONS 4 . How one can lose the right to practice: b. . . Actions that constitute misconduct: ● ● ● c. . . . . . 11 a. . ABA Model Rules: General categories: ● ● ● d. . . . . . Jurisdiction to discipline: 3. . . . . . . . . .
. ○ 4. ○ 3. . . . . . . . . . . Responsibilities Regarding Subordinates: B. . . . Getting the Client a. ○ 5.MPRE BaR NOtEs c. . ○ 2. . The Lawyer’s Relationship with the Client . . Advertising Rules: ● Rule: Lawyer shall not make false/misleading communication about the lawyer’s services: ● Actions that violate this rule: ○ 1. . . . . . . TEST PREP AND ADMISSIONS 5 . . . .13 1. . . .
rules: ● Specialization. ● Firm Names. Solicitation Rules: ● Definition of Solicitation: TEST PREP AND ADMISSIONS 6 . rule: ● Required Contents of Advertisement: ● Listing Clients: ● Referrals: b.MPRE BaR NOtEs ● Actions that are allowed under this rule: ○ 1. ○ 2.
○ 2. TEST PREP AND ADMISSIONS 7 . ■ b. ■ c. Types of communication: ■ a. ○ 3. Motive: ● ExcEptions: ○ 1.MPRE BaR NOtEs ○ 1. ● Any type of communication violates solicitation rules if: ○ 1. ○ 2. ○ 2.
MPRE BaR NOtEs ● Written. recorded. or electronic communications: ● Rule regarding communication made by third person: TEST PREP AND ADMISSIONS 8 .
most of whom she has never met. Lawyer Specializing in Bankruptcy Law. he does these few things carefully.. He is a licensed lawyer in good standing. “Arturo Attorney. and on late night television. unless there is a substantial likelihood that it will lead a reasonable person to formulate a specific conclusion about the lawyer or the lawyer’s services for which there is no reasonable factual foundation. unless one of the staff members acts unethically. D) Yes. and puts out a sign saying. secretaries.” He also takes out similar ads in the local paper and yellow pages. Bar Application 2 In an attempt to increase the business side of her practice. D) No. To his credit. industrial section of town. meet with the clients to fill out the forms. TEST PREP AND ADMISSIONS 9 .. Ariel Attorney plans to offer free consultations to young businesspeople in hopes they will remember her when they have a paying matter. She then sends out the following text message to everyone on the list. advise clients who need it. Indeed. C) No. because the content of lawyer advertising is no longer subject to the old “dignified” standard and is now recognized as being absolutely protected under the First Amendment’s guarantee of free speech. C) Yes. and handle all telephone intake information-gathering. sign the finals. file the documents in court. by casting attorneys in an unfavorable public light through his flamboyant and undignified manner of advertising and his emphasis on cheap legal services. and law student clerks. Popton. He wants to take advantage of the many people who can’t pay their bills and would benefit from filing bankruptcy. using a prepaid number so that the recipients do not have to pay for receiving or reading the text: “R U in need of a bu$ine$$ lawyer? 1st consult free – Hit Reply & I’ll pay Ur minutes! Ariel Atty. The staff does almost everything: They prepare drafts of all the paperwork. B) Yes. copy machines. because his advertising on television involved a real-time electronic contact. 123 Third St. See Us for LOWEST Rates in Town! Routine work is done by staff. Ariel legally purchases from the Chamber a list of personal cell phone numbers of all its members under 35 years old. because even a truthful statement is misleading if there is a substantial likelihood that it will lead a reasonable person to formulate a specific conclusion about the lawyer or the lawyer’s services for which there is no reasonable factual foundation. puts in some big tables. as his staff is made up of paralegals. because an unsubstantiated comparison of the lawyer’s services or fees with the services or fees of other lawyers may be misleading if presented with such specificity as would lead a reasonable person to conclude that the comparison can be substantiated. Soon Arturo has hundreds of clients. but are too poor to hire a lawyer at the rates he normally charges.MPRE BaR NOtEs BaR aPPlIcatIoN QuEstIoNs Bar Application 1 Arturo Attorney has struck upon an idea for what he believes is the law firm of the future. AZ 83910” Is Ariel subject to discipline for the content of her text message? A) No. he has the lowest rates. computers. and telephones. At the suggestion of a friend in the local Junior Chamber of Commerce. which he achieves by having a “boiler room” operation. make the court appearances. Is Arturo subject to discipline? A) Yes. All Arturo does is review the draft paperwork. B) No. because he is making reasonable efforts to ensure that his staff’s conduct conforms to the professional obligations of the lawyer. and supervise the staff. So he rents a warehouse in a low-rent. with state bar certification as a bankruptcy specialist.
● Client consent. Duty of Competence: ● Test of competence: ● Options for lawyer if he/she is not competent: ○ 1. ○ 2. Keeping the Client: a. ○ 3.MPRE BaR NOtEs 2. rule: ● Emergency exception: ● Incompetent act by lawyer: ● Liability: ○ Civil liability: TEST PREP AND ADMISSIONS 10 .
b.MPRE BaR NOtEs ○ Ethical rules: ■ a. Litigation sanctions: ■ a. ■ b. ○ 3. ■ b. Fees Charged: ● General rule: ○ Reasonableness factors: ● Fee splitting: ○ with non-lawyer: ○ with lawyer: ■ of the same firm: TEST PREP AND ADMISSIONS 11 .
TEST PREP AND ADMISSIONS Client Funds or Property: 12 . ■ d.MPRE BaR NOtEs ■ not of the same firm: 1. ● Generally. 2. in writing? c. fee arrangements. ○ To be proper: ■ a. ● Contingent fees: ○ Prohibition: ■ a. ■ b. ■ b. ■ c. 3.
○ 3. ○ 2.MPRE BaR NOtEs ● General rule: ○ 1. ● Scenarios where lawyer is in possession of client funds: ○ 1. ● Client trust account: ○ Contents: ○ Record-keeping obligations: ○ Dispute over money in trust account: TEST PREP AND ADMISSIONS 13 . ○ 2.
What is the proper handling of the funds while the dispute is being resolved? ● Retainer v. and Attorney deposits the $300.MPRE BaR NOtEs HYPOTHETICAL Attorney and Client have a contingent fee agreement whereby Attorney gets 25 percent of any recovery before trial and one-third of any recovery after trial. • ii. Between client and lawyer: ○ Lawyer may represent client if 3 conditions exist: • i. • iii. Client accepts. While the jury is deliberating on the case. the defense gets nervous and offers Client $300.000 in her client trust account. Attorney and Client then dispute whether Attorney is entitled to a 25 percent fee or a one-third fee based on the definition of before or after trial. TEST PREP AND ADMISSIONS 14 . advancement of fees: d. Conflicts of Interest ● General rule: ● ● Three categories of conflicts: 1.000 in settlement of the claim.
serves on the executive board of the group. • iii. Can Lawyer represent Power Company in this matter? ○ Business dealing between lawyer and client permissible if 4 conditions are met: • i. • iv.MPRE BaR NOtEs HYPOTHETICAL Lawyer is a devoted member of a group that is committed to saving the environment. The environmental group is opposed to the building of this plant. ExcEption: ○ Gifts: ○ Book and media rights: TEST PREP AND ADMISSIONS 15 . and believes strongly in the ideals of the group. Power Company walks into Lawyer’s office one day and asks her to represent it in trying to build a coal-burning power plant right next to an ecological reserve. She has been a long-time member of this group. • ii.
○ Lawyer engaging in sexual relations with client: ○ Lawyer as witness: • General Rule: TEST PREP AND ADMISSIONS 16 .MPRE BaR NOtEs HYPOTHETICAL Inmate is on death row. 2. Would it be appropriate for Inmate to transfer his movie rights to Attorney? ○ Lawyer providing financial assistance to client: • General rule: • ExcEptions: 1. specifically by firing squad. Inmate has expressed his desire to die. Inmate’s story is so compelling that people have been clamoring for the rights to make a movie based on his life story. Although Attorney is working to get Inmate off of death row.
2.MPRE BaR NOtEs • ExcEptions: 1. 3. 3. Adversaries: TEST PREP AND ADMISSIONS 17 . Between one client and another client: ○ a. 2. • Representing both parties as: 1. ● 2. Between present clients: • Cannot represent unless 3 conditions are met: 1.
Parties to a settlement: a. b. 3.MPRE BaR NOtEs 2. 2. ○ b. • ExcEption: TEST PREP AND ADMISSIONS 18 . Criminal co-parties: 3. Between existing client and prospective client: • annot represent prospective client against present C client if 3 conditions exist: 1. Civil co-parties 4.
Between client and third party: A third party may pay a lawyer’s fee provided 3 prongs are met: ○ a. Between present client and former client: • • ○ d. Some of Lawyer’s cases would involve representing clients in cases against the IRS.MPRE BaR NOtEs ○ c. as former R employer: HYPOTHETICAL Lawyer went to work for the Internal Revenue Service in its corporate legal department after graduating from law school. TEST PREP AND ADMISSIONS 19 . After five years. epresenting private party against government. ○ b. Is Lawyer permitted to represent these clients? ● 3. Lawyer leaves the IRS and is asked by a private law firm to be its corporate tax expert.
Lawyer tells the parents that the marijuana can be suppressed and that as a result. The parents tell Lawyer that they would like to throw a scare into Little Johnnie because he has been on the wrong path lately. May Lawyer arrange this plea agreement? e. 2. In the course of discovery. Nevertheless. Vicarious Disqualification: ● Rule: ● ExcEptions: 1. Lawyer determines that the warrant used to seize the marijuana was improperly issued. TEST PREP AND ADMISSIONS 20 . His parents hire and pay Lawyer to represent Little Johnnie on the drug possession charge. Little Johnnie is of the age of majority. and they ask him to arrange a plea with the prosecutor whereby Little Johnnie will serve one day in prison for the drug possession charge. the charges will be dropped. HYPOTHETICAL Little Johnnie is busted for marijuana possession.MPRE BaR NOtEs ○ c.
I don’t think you’re as good as my brother. Must Lawyer withdraw from the representation? ● Permissive withdrawal. The night before closing arguments. This is the only way Lawyer will receive a fee. I think you’ve done a fantastic job.MPRE BaR NOtEs ○ 3. ○ 3. HYPOTHETICAL Lawyer has a contingent fee arrangement whereby he gets one-third of any recovery after trial. if: ○ 1. Withdrawal: ● Mandatory withdrawal. “I could not be happier with your representation up to this point. but when it comes to closing arguments.” Lawyer protests that Client is just trying to fire her at this point to avoid paying her a fee. So. if: TEST PREP AND ADMISSIONS 21 . you’re fired. f. ○ 2. but Client persists in his decision to fire her. who is also a lawyer. Client calls Lawyer and tells her.
○ 4.MPRE BaR NOtEs ○ 1. ● Requirements for both permissive and mandatory withdrawal: ○ 1. TEST PREP AND ADMISSIONS 22 . ○ 2. ○ 5. ○ 6. ○ 3.
MPRE BaR NOtEs ○ 2. ○ 3. TEST PREP AND ADMISSIONS 23 .
any advice is better than none at all. the President of Progressive invited you to become a member of the Board. sustainability. The fund claims it has video of Progressive’s “recycling” trucks doing so. One issue is a suit by shareholders of a so-called “green” fund that limits its investments to environmentally friendly companies. D) Yes. she will have the clients agree. and you should cease serving as a director or acting as the company’s lawyer when a conflict arises. Would Annette be subject to discipline if she puts her plan in action? A) No. Another issue is Progressive’s compliance with tax regulations that give credits to companies that conserve resources. possessory. Your firm isn’t currently handling any litigation for Progressive. which are entitled to be represented by counsel. you should not serve on the Board if a material risk of conflict exists. because corporations and other legal entities act through their governing bodies. Recently. F) No. 24 . and while these are not parties of equal bargaining power. G) Yes. Many of Annette’s clients have begged her to begin offering this service. may agree to this arrangement.MPRE BaR NOtEs BaR aPPlIcatIoN QuEstIoNs Bar Application 3 Your firm is one of several firms that serve as outside counsel to Progressive Corp. however. Before you accept. and parties of equal bargaining power. So Annette hits upon this plan: She will offer a special discount service to low-income clients that will allow her to give advice in new areas while she is learning and acquiring expertise in them. or other pecuniary interest adverse to a client. because even though a client is too poor to hire a lawyer who is already competent. The Rules expressly prohibit membership on a Board for a member of a law firm representing a corporation. The Rules expressly prohibit membership on a Board when potential conflicts of interest may arise. and the like. with written disclosure and consent. in writing after full disclosure. and environmentally friendly energy. You have never been asked to take on such a responsible position outside of your law firm. landlordtenant relations. In exchange. alleging that it lied to the public by claiming to be environmentally friendly. you concern yourself with possible ethical issues. H) Yes. security. So your firm’s representation of Progressive bars you from membership on the Board. For most of these clients. The IRS has brought an action seeking a refund of tax money saved by Progressive’s earlier claims for credits under the regulations. this arrangement does not overbear the client’s will. The Rules expressly permit membership on a Board under the “dual capacity” doctrine (lawyer as outside counsel and Board member). Many of these individuals are poor. The fund has sued Progressive. The Rules permit membership on the Board. a small but growing company specializing in renewable resources. because by training herself at her client’s expense while the client is obtaining a benefit. and criminal penalties against the tax lawyers who assisted Progressive in filing its tax returns in those years it claimed the credits.. that no malpractice claim will be brought against her if the low-cost advice turns out to be incorrect. B) No. because the attorney-client relationship is based upon contract. TEST PREP AND ADMISSIONS Bar Application 4 Annette Attorney wants to branch out into different areas of law. because the attorney-client relationship is based upon contract. but you have had several important court victories on its behalf. in order to hire one who is not competent. Her personal injury plaintiff clients often ask her advice regarding taxes. the client must pay a second lawyer to approve it. when it is nothing but an old-fashioned garbage-truck operation that illegally dumps waste into the local river. Annette has knowingly acquired a prohibited ownership. C) Yes. However. wills. May you serve on Progressive’s Board of Directors without being subject to discipline? E) No.
. Representing the Client . . . . . . . Zealous Representation: ● Division of decision-making responsibility between lawyer and client: ○ 1.MPRE BaR NOtEs 3. . . . . . Duty to Diligently Represent: ○ 3. . . . . . . . . . . Resolution of conflict: ● Duties owed to Client: ○ 1.55 a. . . . . . . . . . . . . . Duty of Loyalty: ○ 2. . . . . Communication with Client: ■ If lawyer reasonably believes client has diminished capacity: TEST PREP AND ADMISSIONS 25 .
remedial measures: TEST PREP AND ADMISSIONS 26 . Revealing adverse legal authority: ○ 2. Prosecutor learns of wrongful conviction: ■ b. When is claim not frivolous? ● Duty of Candor: ○ 1. When is claim frivolous? ○ 2.MPRE BaR NOtEs ● Duty to Avoid Frivolous Claims: ○ 1. Revealing adverse evidence: ■ General rule: ■ ExcEptions: ■ a. Perjured testimony.
MPRE BaR NOtEs 1. the lawyer announces that he cannot ethically represent the client. who again states that she was with the client at the time of the crime. The judge instructs the lawyer to continue with the case. “No. “Is that true?” The client responds that it is not. HYPOTHETICAL While preparing for trial. client asks his lawyer.” The lawyer stops the trial and explains to the judge in chambers that he wants to withdraw from the case because he believes a witness has perjured herself. 3. the lawyer puts the aunt on the stand and asks her if she believes her nephew committed the crime. The judge cites the lawyer for contempt of court and throws him in jail. At this point. At trial. 2. Duty of Fairness to Opposing Party and Counsel: TEST PREP AND ADMISSIONS 27 . and he refuses to continue with the trial. “Would it help my case if my aunt testified that I was with her at the time of the crime?” The lawyer replies. The lawyer continues to question the witness. She responds. because he was with me at the time of the crime. Was this decision correct? Why? b. The lawyer then advises the client that his aunt’s testimony would constitute perjury.
■ b. ● Approaching third party represented by counsel: ● Paying a witness to testify: ○ Expert witnesses: ● TEST PREP AND ADMISSIONS Referencing inadmissible material: 28 .MPRE BaR NOtEs ● Falsifying/altering evidence: ● Hiding witnesses or altering witness testimony: ○ ExcEptions: ■ a. ■ c.
Trial Publicity ● General test: ● ExcEption: e. Duty of Confidentiality: ● Rule: TEST PREP AND ADMISSIONS 29 . Duty to Maintain the Impartiality of the Tribunal: ● Rules: ● Communication with juror: d.MPRE BaR NOtEs ● Giving personal opinion: c.
○ 3. Rule: TEST PREP AND ADMISSIONS 30 . Avoiding the Unauthorized Practice of Law: a. ● Client’s informed consent: C.MPRE BaR NOtEs ● Confidence v. Lawyer’s Duty to the Legal Profession: 1. Secret: ● Sharing confidential information with other members of the firm: ● ExcEptions: ○ 1. ○ 2.
Spencer lets Amanda interview clients and give legal advice and judgments during the course of these interviews. Fee splitting: ● Salary. a lawyer. profit-sharing: e. Assisting the unauthorized practice of law: HYPOTHETICAL Spencer. a non-lawyer. employs Amanda.MPRE BaR NOtEs ● Definition of the “practice of law:” b. pension. Is Spencer subject to discipline? c. Associating with non-lawyers (partnership): TEST PREP AND ADMISSIONS 31 . Assisting a non-lawyer who wants to represent himself in court: d.
Becoming a Judge . ExcEption: 3. . . Duty to Better the Legal Profession: II. . . . . Reporting Professional Misconduct: a. . . . . .109 TEST PREP AND ADMISSIONS 32 . . . Commenting on Judges and Judicial Candidates: 4. . . . . . . . Rule: b. . . . . .MPRE BaR NOtEs ● Professional corporation with non-lawyer who owns interest or is a director: f. . . JudGEs A. . . . . . . . . . Multi-jurisdictional practice: 2. . . . . . . . . . .
TEST PREP AND ADMISSIONS 33 . ● 5. A judge cannot: ● 1. A judge can: ● 1. ● 4. b. ● 2. ● 3. ● 2.MPRE BaR NOtEs 1. Fair Campaigning Rules: a.
. . c. . . . . . . 2. . . . TEST PREP AND ADMISSIONS 34 .MPRE BaR NOtEs ● 6. Acting as a Judge . . . . . . . . . . . . . . . . . . 111 1. d. . . . Judge must: a. . . . . b. If judge becomes a candidate for non-judicial elective office: B. . ● 7. . . . . . . . . . .
2. if: a. Judge cannot: a. c. TEST PREP AND ADMISSIONS 35 . Judge’s duty to disqualify himself/herself.MPRE BaR NOtEs e. b. b. 3.
MPRE BaR NOtEs HYPOTHETICAL Judge Jenkins has a complex constitutional law issue in her court. she wants to consult with a constitutional law expert to help her better understand the issue at hand. ● ExcEption: 4. Would it be proper for Judge Jenkins to do so? If not. Duty to disqualify may be waived if: ● Rule: 1. She does not want advice on how to decide the outcome of the case. Ex parte Communication about Particular Case: TEST PREP AND ADMISSIONS 36 . However. 2. what actions could Judge Jenkins take to make this consultation proper? c.
Rule: b.MPRE BaR NOtEs a. Participation in Extra-Judicial Activities: TEST PREP AND ADMISSIONS 37 . ExcEption: 5.
and a criminal indictment alleging that she knowingly hired illegal aliens. everyone needs a boost now and again. If you did so unknowingly. a family law judge you know from the country club where you both play golf on occasion. You contact Patricia Powell. Suzanne employs several recent immigrants at low wages to do the menial sewing and other factory work. a very successful businesswoman. 38 . The design process involves “acid washing” and dying of fabrics to create unusual looks. the present ones would fail. Now. because Antonia’s duty of loyalty to the client outweighs her duty to truth when a client faces a criminal indictment. she is visibly upset and angry. Richard gave Antonia some background on Suzanne’s problem. C) Proper.MPRE BaR NOtEs BaR aPPlIcatIoN QuEstIoNs Bar Application 5 Suzanne. She creates designs. she must disclose the referral and let the other lawyer and party decide. Also. or loan from anyone— particularly a lawyer likely to come before her in court. and I can tell you that the runoff claim and illegal worker indictment against you depend upon whether you ‘knowingly’ allowed the runoff. “Don’t worry. she says. because a judge shall not accept a gift. you want to say something to that effect. TEST PREP AND ADMISSIONS Bar Application 6 You decide to branch out into family law. Perjury is a crime with consequences that might be worse than the claims against you. Richard gave me some background on your problems. B) Improper. Realizing that in your new practice you will likely appear before Judge Powell quite often. because it will involve her in frequent financial and business dealings with a lawyer likely to come before her in the court. let me explain some things to you. and ‘knowingly’ hired illegal aliens. was referred to Antonia Attorney by Richard. I recommend that you tell the truth about this. favor. while other less serious claims could be brought. but before you do. because Antonia has assisted Suzanne in testifying fraudulently. The judge thinks your plan is wise and offers to assist. Is Antonia subject to discipline? A) Yes. because Antonia merely discussed the legal consequences of a course of conduct. and helping low-income people in need find competent counsel is among such responsibilities. and proposes to send you potential clients. what do you think?” Judge Powell’s proposal to send you potential clients is: A) Improper. Who knows? You might be able to help me with my golf swing someday. makes the garments. jealous of her success. because a judge is required to discharge the judge’s administrative responsibilities. D) Proper. but if you represent her referrals in her court. she must disqualify herself if her impartiality might reasonably be questioned. B) Yes. When Suzanne enters Antonia’s office for an initial meeting. Well. bequest. including whether or not you ‘knowingly’ allowed the runoff and ‘knowingly’ hired illegal aliens. Suzanne runs a wholesale clothing design and manufacturing business. started false rumors that resulted in a civil suit by the city alleging that she knowingly allowed illegal chemical runoff into the sewers from the acid wash and dye operation. to ask her advice. Richard believes that her competitors. and supplies them to retailers throughout the city. She says that she comes across many lowincome people who desperately need such services. for impermissibly asking her client leading questions that suggest untruthful answers. tell me what happened. D) No. before you begin. You tell her you plan to start out representing lowincome individuals at reduced rates. Your reason is that such clients usually do not need complex litigation and starting with simple cases within your competence level will allow you to develop expertise over time. C) No. Before she begins to speak. and that she didn’t know the workers were illegal until the indictment. a new area for you. Antonia tells her the following: “Suzanne. one of Antonia’s clients.” Suzanne calms down and then relates that the runoff was accidental. If she wishes to continue on the case.
Our program curriculum has been designed to teach you the core content relative to how it will be tested on the actual exam. The Kaplan PMBR Team please see the following pages for an overview of the content in this book and how to use it with the online material. 5. you will review in detail all of the information needed to pass the MPRE. organized in the recommended sequence. print out a copy of your results. 9. Practice. 2. Watch the video lecture. 4. If you choose to complete it online. Complete the second full-length Practice Test (Available online only). using the Qbank. Complete Quiz 1. Below is a recommended approach to using the material (a more detailed overview of this is included in the “MPRE Program Overview and Course Guide. The book you are holding is a companion piece to your online course content. Complete the first full-length Practice Test (Available either online or in the book). THE COursE Your MPRE program includes the following components: Introduction • • • • • • MPRE Outline and Lecture Material Online Class Lecture Two Online Question Workshops Two 25-Question Quizzes Two Full-Length MPRE Practice Tests MPRE Qbank rECOmmEndEd APPrOACH The bulk of the MPRE program is provided online through a convenient course syllabus. This can be completed either online or in the book. 10. 3. 13. Practice areas in which you are weak. 8. Once you have completed this course of study and feel confident in your understanding of the material. taking notes on the enclosed Bar Notes (You can also access these Bar Notes online). Review Workshop 2. Watch the “MPRE Program Overview and Course Guide. Review Workshop 1. Review any areas in which you feel you need additional help. 12. Review any areas in which you feel you need additional help. which covers the questions from Quiz 2. If you choose to complete it online. 7. you are ready to take the MPRE! Best of luck. 6. TEST PREP AND ADMISSIONS 39 . 14. using the Qbank. Complete Quiz 2 either online or in your book. Review any areas in which you feel you need additional focus.INTRODUCTION W elcome to Kaplan PMBR’s program for the Multistate Professional Responsibility Exam! In this course. located on your syllabus. This syllabus contains all of the content you will need for your MPRE preparation.” Briefly review the enclosed outline to familiarize yourself with the structure of the material that will be covered. 11. as needed.” provided in your online syllabus): 1. which covers the questions from Quiz 1. print out a copy of your results.
Below is a review of some of the key features and devices that you will see in the curriculum: MPRE little intrinsic value gifts from friends and relatives social hospitality commercial opportunities available to non-judges random prizes scholarships and fellowships available to non-judges media supplied for official use gifts to a household member with incidental benefit gifts incident to public testimonial the Roadmap Every outline page is accompanied by a flowchart on the facing page that shows where you are in a subject and how various subjects interrelate. you may choose to follow the lecture using one or both sides of the page. A copy is also available as a PDF on your course syllabus. The lawyer must relay all material information about any settlement or plea to all of the clients. serves on the executive board of the group. This difference is deliberate. 2) the terms must be set forth in a writing understandable to the client. in a signed writing. or highly tested issues. She has been a long-time member of this group. we have provided Examples and Hypotheticals for important. In 1994. In many cases. As you work through a lecture. The environmental group is opposed to the building of this plant. officer. TEST PREP AND ADMISSIONS 35 TEST PREP AND ADMISSIONS 40 . Power Company walks into Lawyer’s office one day and asks her to represent it in trying to build a coal-burning power plant right next to an ecological reserve. Note that these hypotheticals appear in your Bar Notes. HYPOTHETICAL Lawyer is a devoted member of a group that is committed to saving the environment. (b) Attorneys must not use information obtained from clients against them without informed consent (subject to the exceptions set forth elsewhere in the Rules). difficult. and believes strongly in the ideals of the group. he represented a large class of plaintiffs who sued an asbestos manufacturer for damages. your professor will provide additional examples in class. this outline will probably look different from most other review material you might have seen. EXAMPLE: John is an attorney who handles mostly mass tort actions. the result of a curriculum designed to help you more quickly review key legal concepts and how they relate to one another—understanding that is crucial to your success on the exam. reporting unnecessary Gifts to Judges reporting necessary invitations to law related activities gifts from those who have or are likely to come before the judge TEST PREP AND ADMISSIONS 78 c.3]. Can Lawyer represent Power Company in this matter? (3) Conflict Between Client and Lawyer (a) Where an attorney enters into a business transaction with a client: 1) the terms must be fair to the client. or (b) favorable to his client to the detriment of a person served by the organization [MR 6. An Example provides a scenario and answer for you. (2) A lawyer may serve as a director. provided the lawyer does not participate in a decision or action of the organization that is: (a) incompatible with the lawyer’s obligations to his client. 3) the client must be advised in writing that he should seek the independent advice of another lawyer and be given an opportunity to do so. (d) Attorneys cannot solicit gifts from clients or prepare documents giving gifts to themselves (except as a favor to a relative). A lawyer can receive a gift from a client unless the lawyer receiving a gift drafts the instrument that creates the gift. John represented a different asbestos manufacturer and argued to the court that the manufacturer had no duty to reveal the risks of asbestos to the plaintiff. (c) An attorney may not accept a plea on behalf of defendant clients without each one’s written consent. or member of a legal services organization that serves persons having interests adverse to a client of the lawyer. while a Hypothetical forces you to think about the answer before the professor provides it in class. In 2001. In that case he asserted that the asbestos manufacturer knowingly and illegally withheld information from the plaintiffs that asbestos was harmful if inhaled. to the essential terms of the transaction and the lawyer’s role in it. although contradictory. John’s advocacy. Conflicts of Interest (1) It is acceptable to take opposite positions on the same legal question in a different and later case or on behalf of different clients. is acceptable in both cases. Examples & hypotheticals Throughout the lecture. including whether the lawyer is representing the client in the transaction. and 4) the client must give informed consent. At first glance.mPrE InTrOduCTIOn OvErvIEW Of OuTLInE & LECTurE mATErIAL This book is provided as a companion to your online lecture and testing material.
(d) knows or learns by a party’s motion that a party’s lawyer or law firm has made contributions to the judge’s election campaign beyond that permitted by that state’s law. probation officers. 2) is a lawyer in the proceeding. and you should take notes in the space provided. managing member. parent. and law student clerks. parents. TEST PREP AND ADMISSIONS Bar application The professor will often discuss specific issues that have come up on recent MPREs. file the documents in court. domestic partner. Our goal is to ensure you know the law and how to apply it on test day. secretaries. promises. meet with the clients to fill out the forms. has an economic interest in the case or in a party. Ariel Attorney plans to offer free consultations to young businesspeople in hopes they will remember her when they have a paying matter. and others [Comment ]. Important note: As a student of Kaplan PMBR’s program. Question 2 In an attempt to increase the business side of her practice. He is a licensed lawyer in good standing. To his credit. unless there is a substantial likelihood that it will lead a reasonable person to formulate a specific conclusion about the lawyer or the lawyer’s services for which there is no reasonable factual foundation.g. including videos of the course and workshop lectures. Is Arturo subject to discipline? A) Yes. (b) not make pledges. as his staff is made up of paralegals. (6) The rule against ex parte communications does not apply to judges in specialized therapeutic mental health or drug courts where they must often interact with parties.. (5) Judges must supervise court staff and others subject to their control to ensure against violations of this rule. and telephones. he does these few things carefully. by casting attorneys in an unfavorable public light through his flamboyant and undignified manner of advertising and his emphasis on cheap legal services. because the content of lawyer advertising is no longer subject to the old “dignified” standard and is now recognized as being absolutely protected under the First Amendment’s guarantee of free speech. general partner. and (c) require court staff and others subject to their control to refrain from making statements that they would be prohibited from making. he has the lowest rates. unless one of the staff members acts unethically. brothers/sisters. puts in some big tables. grandchildren.11].10 (E). AZ 83910” Is Ariel subject to discipline for the content of her text message? A) No. 3) has more than a de minimis economic interest that could be substantially affected. C) Yes. or trustee of a party. under any circumstances. uncles/aunts. advise clients who need it. but are too poor to hire a lawyer at the rates he normally charges.” He also takes out similar ads in the local paper and yellow pages. situations where the judge: (a) has a personal bias for. As indicated in your enrollment agreement. Introduction Frequency stars Highly tested subjects on the MPRE will be starred on the right-hand margin of the page. copy machines. legal sanctions and notification to the character and fitness TEST PREP AND ADMISSIONS committee of your board of bar examiners. Kaplan PMBR views a breach of this agreement—and the unauthorized use of this content—as a serious legal and ethical matter and will respond to violations with. Comment ]. Your curriculum also contains specific illustrations of how a topic has appeared on past exams. treatment providers. which he achieves by having a “boiler room” operation. and handle all telephone intake information-gathering. such as a writ of mandamus) and respond to allegations in the media or elsewhere concerning her conduct [Rule 2. or any other member of the judge’s family residing in the judge’s household. because an unsubstantiated comparison of the lawyer’s services or fees with the services or fees of other lawyers may be misleading if presented with such specificity as would lead a reasonable person to conclude that the comparison can be substantiated. because even a truthful statement is misleading if there is a substantial likelihood that it will lead a reasonable person to formulate a specific conclusion about the lawyer or the lawyer’s services for which there is no reasonable factual foundation. B) No. p. Indeed. a party or his lawyer. and on late night television. He wants to take advantage of the many people who can’t pay their bills and would benefit from filing bankruptcy. The staff does almost everything: They prepare drafts of all the paperwork. So he rents a warehouse in a low-rent. 123 Third St. great grandparents. with state bar certification as a bankruptcy specialist. TEST PREP AND ADMISSIONS 117 Bar application Questions Question 1 Arturo Attorney has struck upon an idea for what he believes is the law firm of the future. or commitments” to rule in a certain way in a case. These Bar Applications also appear in your Bar Notes. Lawyer Specializing in Bankruptcy Law. Soon Arturo has hundreds of clients. Doing so will help you remember the concepts being lectured on and create a comprehensive reference guide for later review. (2) Examples include. and puts out a sign saying. this content is made available for your exclusive use and should not. most of whom she has never met. (e) has made a public statement that violates the prohibition in Rule 2. Disqualification (1) Judges must disqualify (“recuse”) themselves in any proceeding in which their impartiality might reasonably be questioned [Rule 2. B) Yes. (c) knows that he or his spouse. See Us for LOWEST Rates in Town! Routine work is done by staff. She then sends out the following text message to everyone on the list. grandparents. or make any non-public statement that might interfere with a fair hearing [Rule 2. or commitments about how they will decide cases or issues that are inconsistent with the impartial performance of their duties in connection with those that are likely to come before them. “Arturo Attorney. 23 Remember—the Bar Notes are designed to be used with the lecture.. among other actions. (b) knows that he. She has violated this rule. C) No.researches the terms using an Internet search engine and scientific dictionary website. children. nieces/nephews) to either the judge or his spouse or domestic partner of such a person: 1) is a party or an officer. great grandchildren. director. sign the finals. D) Yes.10 (B) against “pledges. participated personally and o. or child. 1) A judge may comment on proceedings in which she is a litigant (except those where she is in an official capacity. or 4) is likely to be a material witness. (f) was a lawyer in the matter. social workers. make the court appearances. or a person within the third-degree of relationship (e. Popton. and supervise the staff. his spouse or domestic partner. or knowledge of disputed facts. because his advertising on television involved a real-time electronic contact. but are not limited to. industrial section of town. because he is making reasonable efforts to ensure that his staff’s conduct conforms to the professional obligations of the lawyer.10 (A)].. Ariel legally purchases from the Chamber a list of personal cell phone numbers of all its members under 35 years old. D) No. computers. (g) during government employment. Judicial Statements on Pending and Impending Cases (1) Judges must: (a) not make any public statement that might be expected to affect the outcome or impair the fairness of a matter in any court. or was associated with a lawyer who participated substantially as a lawyer in the matter during such association. or prejudice against. we trust you with the content for our MPRE course. be shared with others. All Arturo does is review the draft paperwork. promises. 41 . using a prepaid number so that the recipients do not have to pay for receiving or reading the text: “R U in need of a bu$ine$$ lawyer? 1st consult free – Hit Reply & I’ll pay Ur minutes! Ariel Atty. At the suggestion of a friend in the local Junior Chamber of Commerce.
Fees TEST PREP3. “May” or “proper” means the conduct in question: a. Fee Division with a Non-Lawyer g. Regulation of the Legal Profession (8–12%) a. 5. “Certified specialist” a. or obstruction of justice. fine. Client-Lawyer Contracts f. “Subject to criminal liability” a. misrepresentation. “Subject to disqualification” a. Within the Bounds of the Law d. such as insurance and tax fraud. Maintaining Professional Standards—Peer Responsibility e. This term means a lawyer who has been so certified by the appropriate agency in the jurisdiction in which he practices. The question is asking whether the conduct in the facts would subject the lawyer to discipline under the MRs. Lawyer-Client Privilege and the Work Product Doctrine 42 . is not inconsistent with the Preamble. is not inconsistent with generally accepted principles of the law of lawyering. Regulation after Admission d.” or “appropriate disciplinary authority” a. and Means of the Representation c. The Client-Lawyer Relationship (10–14%) a. Objective. The question is asking whether the conduct in the facts would subject the lawyer or the lawyer’s law firm to sanction by a tribunal. and breach of fiduciary duty. The question is asking whether the conduct in the facts would subject the lawyer or the lawyer’s law firm to disqualification as counsel in a civil or criminal matter. Scope. and c. criminal acts. Privilege and Confidentiality (6–10%) AND ADMISSIONS a. 7. 3. The question is asking whether the conduct in the facts would subject the lawyer to criminal liability for participation in. Law Firm and Other Forms of Practice h. or the judge to discipline under the CJC. such as claims for malpractice. b. Contractual Restrictions on Practice 2. or aiding and abetting. Acceptance or Rejection of Clients b. disqualification. Comments. The NCBE identifies the MPRE’s scope of coverage by general topic area and the approximate percentage of items that are included in each one: 1. destruction of evidence. Admission to the Profession c. 8. fee forfeiture. “Subject to litigation sanction” a. 6. or text of the MRs or with the CJC. or other sanction. Withdrawal e. such as contempt. “Subject to civil liability” a. “Subject to discipline” a. These terms mean the agency with the authority to administer the standards for admission to practice and for maintenance of professional competence and integrity. 4. 2.mPrE InTrOduCTIOn GLOssArY And TOPIC ArEAs The MPRE uses certain words and phrases in the question-call with meanings specific to the examination: 1. Unauthorized Practice of Law f.” “state bar. The question is asking whether the conduct in the facts would subject the lawyer or the lawyer’s law firm to civil liability. would not subject the lawyer or judge to discipline. Inherent Powers of Courts to Regulate Lawyers b. “Bar.
or Judge 5. Exceptions to Confidentiality e. Safekeeping Property and Funds of Clients and Others (4–8%) a. Lawyer as Custodian of Property of Client or Third Persons c. Conflicting Interests—Prospective Clients. Disputed Claims 9. Mediator. Lawyer as Evaluator c. Independent Professional Judgment—Conflicts of Interest (12–16%) a. Group Legal Services d. Exercise of Diligence and Care e. Professional Obligation of Confidentiality c. Duty to Uphold the Integrity and Independence of the Judiciary b. Direct Contact with Prospective Clients (Solicitation) e. Candidate for Judicial Office Introduction TEST PREP AND ADMISSIONS 43 . Lawyer as Negotiator d. Civility. Lawyer as Witness c. Imputed Disqualification h. and Decorum c. and Other Civil Liability (8–12%) a. Appearances Before Legislative Bodies 8. Defenses. Client-Authorized Disclosure d. Impropriety Incident to Public Service 11. Lawyer as Trustee of Funds of Client or Third Persons b. Different Roles of the Lawyer (4–8%) a. and Evidence d. Activities to Improve the Legal System e. Duty to Avoid Impropriety and the Appearance of Impropriety c. As Affected by Lawyer’s Personal Interest b. Extra-Judicial Activities f. Special Obligations of the Lawyer in Public Service e. Current Clients. and Former Clients f. Communications in Course of Representation 7. Testimony. Lawyer as Advisor b. Competence. Lawyer’s Service as Arbitrator. Courtesy. Entering into Business Transactions with Client e. Fields of Practice—Limitations of Practice and Specialization 10. Lawyers and the Legal System (2–6%) a. Communication About Legal Services (6–10%) a. Maintaining Competence c. Judicial Ethics (6–10%) a. Civil Liability. Authority to Act for Client b. Referrals c. Legal Malpractice. Public Communications About Services b. Political Activity of Judges g. Litigation and Other Forms of Advocacy (12–16%) a. Client Fraud and Perjury by a Client or Witness e. Limiting Liability for Malpractice 6. Including Malpractice b. Duties of Impartiality and Diligence d.b. Acceptance of Employment d. Influence by Persons Other Than Client g. Lawyer Activity in Improving the Legal System b. Special Problems 4. Conduct in the Course of Litigation—Claims. Acquiring an Interest in Litigation d.
MPRE Review Outline .
principles.mPrE rEvIEW OuTLInE aBa Model Rules of Professional conduct aBa Model code of Judicial conduct sources of MPRE generally accepted majority rules. and common law Federal Rules of civil Procedure Federal Rules of Evidence TEST PREP AND ADMISSIONS 46 .
II. Other behavior. generally accepted majority rules. Only those rules which contain mandatory language or imperatives such as “shall” TEST PREP AND ADMISSIONS 47 . will not provide a correct answer. c. thE aPPlIcaBlE law Outline A.” which is a nonrepresentational role in helping parties resolve a dispute or other matter. and common law regulating lawyers apply. b. Often they test arguably fine distinctions. As a representative of clients. 2. C. including a comprehensive revision in 2002.” “demonstrate respect for the system. The Multistate Professional Responsibility Examination (MPRE) is a 60-question. multiple-choice questions require precise knowledge of the rules. Model Rules of Professional Conduct). For questions that raise procedural or evidentiary issues. 3. twohour-and-five-minute. In addition. as adopted in 1983 and subsequently amended. use law only “for legitimate purposes. such as the availability of litigation sanctions or the scope of the attorneyclient evidentiary privilege. the lawyer may serve as a “third-party neutral. The law governing the conduct of lawyers is based on the rules of professional conduct currently set forth in the American Bar Association’s Model Rules of Professional Conduct (“the Rules”). However. territories. the MPRE tests knowledge of what the current ABA rules say is acceptable behavior. As a public citizen having special responsibility for the quality of justice. The MPRE is not a test of an individual’s personal ethical values or of the law of an individual’s home jurisdiction. multiple-choice examination required in all but three states. pretest questions. Outside of the disciplinary context. the Federal Rules of Civil Procedure and of Evidence apply unless otherwise stated in a question. There are 50 scored questions and 10 non-scored. the lawyer should seek improvement of the law and equal access to the legal system. principles. resources and civic influence on behalf of persons who cannot afford adequate legal counsel. and devote professional time. The purpose of the Model Rules is both to regulate the profession and to provide ethical norms. aBout thE MPRE A. 1. B. As an officer of the legal system. the Rules guide the lawyer in performing each of the lawyer’s three basic roles and in resolving conflicts that may arise between two or more of these roles: a. advocate.” and “uphold legal process. and evaluator. so all 60 questions should be treated with equal regard. In addition.S. the non-scored questions are indistinguishable from the scored questions. cultivate knowledge. though perhaps equally moral or ethical. The MPRE is not a test of an individual’s personal ethical values or of the law of an individual’s home jurisdiction. personal conscience. In conjunction with “substantive and procedural law. as well as in several U. The MPRE is developed and administered by the National Conference of Bar Examiners (NCBE). 4.OUTLINE I.” challenging “the rectitude of official action” only when necessary. Rather. One need not know rule numbers for the test. and the approbation of professional peers” (Preamble. negotiator. the lawyer is advisor. The MPRE’s purpose in asking questions pertaining to disciplinary measures is to ascertain knowledge of the American Bar Association (ABA) Model Rules (MRs) of Professional Conduct and the ABA Model Code of Judicial Conduct (CJC). the lawyer must conduct all professional and personal activities in conformity to law. just the principles of law.
and common law Federal Rules of civil Procedure Federal Rules of Evidence TEST PREP AND ADMISSIONS 48 . principles.mPrE rEvIEW OuTLInE aBa Model Rules of Professional conduct aBa Model code of Judicial conduct sources of MPRE generally accepted majority rules.
seriousness. The applicable law also includes constitutional decisions in areas such as lawyer advertising.5. “Both the admission and the removal of attorneys are judicial acts. The Federal Rules of Civil Procedure and the Federal Rules of Evidence will be assumed to apply unless otherwise stated when questions of professional responsibility arise in the context of procedural or evidentiary issues. or “must” require attorney discipline. as amended) is the sole official authority for questions dealing with judicial conduct. provided that the standards bear a rational connection to the lawyer’s fitness or capacity to practice. The Model Rules and generally accepted principles regulating the legal profession in the United States govern for purposes of the MPRE. and prior violations may determine whether or not to discipline the lawyer and the severity of any discipline imposed. rules with permissive language such as “may” do not require attorney discipline when broken. 3. 1. violation of any obligation or prohibition imposed by a Rule warrants invoking the disciplinary process. but does not necessarily warrant discipline. The “Comments” construing the Rules may use the word “should. and generally accepted principles established in leading federal and state cases and in procedural and evidentiary rules. but merely serve to help guide the lawyer in making choices and taking action in areas where the lawyer is expected to exercise discretion and professional judgment. 1. The creation of standards by which to judge a lawyer’s professional conduct is a valid exercise of the state’s power to regulate. Circumstances such as willfulness. Assessment is made on the basis of facts and circumstances as they existed at the time of the conduct and in recognition of the fact that a lawyer often has to act upon uncertain or incomplete evidence. d. TEST PREP AND ADMISSIONS 49 . and does not depend upon an express constitutional grant or any grant from the executive or legislative branches. 523 (1868)]. Such local variants will be discussed herein where they may be testable. unless a specific test question includes the text of a local statute or rule that must be considered when answering that question. Brigham. The Model Code of Judicial Conduct (1990. control. 74 U.” [Randall v. This power to control and discipline the conduct of licensed attorneys applies even if the attorney is not engaged in the practice of law in his wrongful conduct.S. B. including officers such as a justice of the peace. they only explain and illustrate the meaning and purpose of the Rules. In practice. only five or six of the 60 MPRE questions test judicial conduct. and remove attorneys as officers of the court is said to be “inherent” in the judicial branch of government. referee. The source of this power is the licensing power of the court. 2. Outline C. special master. Generally. The CJC applies to full-time judges. The MPRE also tests the rules governing judicial conduct. extenuating circumstances. The remaining questions test professional responsibility as discussed above. or administrative law judge. The power to license. Part-time and retired judges must comply with some of the limitations on outside and political activities. The power to impose a code of conduct on lawyers and to provide sanctions for its violation rests in the highest court of each jurisdiction. Different jurisdictions may impose different sanctions for similar behavior. magistrate. court commissioner.” but do not add obligations to the Rules.
mPrE rEvIEW OuTLInE duty to disclose information to bar authorities Becoming a lawyer constitutional and legal issues in disclosing information TEST PREP AND ADMISSIONS 50 .
the possibility of discipline by the state bar is not sufficient justification. d. A lawyer who writes a letter of recommendation for a bar candidate or is asked by bar authorities for information is subject to the same Rule. TEST PREP AND ADMISSIONS 51 . not only in the practice of law. Becoming a Lawyer a.1 when making an application can result in disciplinary action after a candidate is admitted to the bar. it is professional misconduct for a lawyer to: Outline 2. b. non-confidential information. such as those asking about treatment for chemical dependency and mental illness. bar applicants.4 is the disciplinary rule that defines a lawyer’s misconduct. The application asks. Nevertheless. lawYERs A.1. Rule 8. states may require more disclosure from applicants for a law license than employers may require. However.4. Bar applications often contain questions not permitted by constitutional or employment law in job applications. omit a material fact. The duty of candor also applies to reinstatement petitions. but in other areas of life as well. and those appearing before a disciplinary board shall not lie. Susan may not answer “No” to this question. it is generally held that the right to invoke the privilege applies only when the attorney is threatened with criminal prosecution. including a suspension or revocation of the license to practice law. Comment ]. Losing Your right to Be a Lawyer a.III. fail to correct a misapprehension. and her record has since been expunged. Violating Rule 8. and the like. e. This rule applies to non-lawyer applicants as well as lawyers [MR 8. despite the duty to respond. However. “Have you ever been convicted of a misdemeanor?” Susan was convicted of a misdemeanor as a minor. EXAmPLE: Susan is applying to become a member of the Bar. as well as the denial or voidance of admission. a lawyer who knows of derogatory information about a bar candidate is not obliged to come forward of his own accord with that information. Violations may include submission of a false transcript or failure to disclose prior or pending disciplinary actions in connection with any type of professional license. Subject to the Fifth Amendment. c. and cannot disclose that information if it is confidential information protected under Rule 1. which are treated like admission proceedings. Lawyers. Becoming a Lawyer and Losing Your right to Be a Lawyer 1. Under Rule 8. but must do so openly and not use the right of nondisclosure defensively as the reason for not complying with the Rule.6. Paragraph (b) of the Rule requires correction of any prior misstatement in the matter that the applicant or lawyer may have made [Comment ]. Openly invoking the Fifth Amendment privilege cannot in itself subject the lawyer to discipline. Applicants sign under penalty of perjury. records of arrests not leading to convictions. A candidate for admission has the right to claim the privilege against self-incrimination as a ground for lawfully refusing to disclose information. whether one has been a party to any lawsuit. or fail to provide demanded.
deceit. or misrepresentation conduct prejudicial to the administration of justice stating or implying improper influence knowingly assisting in violation of rules of judicial conduct TEST PREP AND ADMISSIONS 52 . or fitness losing Your Right to Be a lawyer conduct involving dishonesty. trustworthiness. fraud.mPrE rEvIEW OuTLInE violation of Model Rules criminal act that reflects adversely on honesty.
and thus Rule 8. or misrepresentation. Comment ]. fraud. knowingly assist or induce another to do so. so a charge under Rule 8. (a) “Fraud” for these purposes means conduct that has a purpose to deceive.. trustworthiness. or any attempt to do so. (5) state or imply an ability to influence improperly a government agency or official or to achieve results by means that violate the Rules of Professional Conduct or other law. is a violation of Rule 8. or (6) knowingly assist a judge or judicial officer in conduct that is a violation of the applicable rules of judicial conduct or other law. or fitness as a lawyer in other respects. she has violated Rule 8. or failing to file a return. guardian. or do so through the acts of another. even if the lawyer is proven wrong in a challenge to the law or Rule. including one of the Rules of Professional Conduct.e.4. Although none of the Model Rules specifically prohibited sexual relations between lawyer and client or sexual harassment of law firm employees before the 2002 amendments.4 as well. such relationships were sometimes found to involve violations of various rules.3 (lawyer shall not make a false statement of law or fact to a tribunal).4 may include sexist or rude remarks or behavior toward the judge or other attorneys or parties. the client does not thereby become the lawyer’s agent in a violation of the Rules. (3) engage in conduct involving dishonesty. Violations involving dishonesty. Willfully filing a false personal income tax return.1 (lawyer shall not make false statements of law or fact to a third party). or trustee gives rise to an inference of unfitness to practice law and can be a violation of Rule 8. Outline TEST PREP AND ADMISSIONS 53 .4(a).4. Lawyers who attempt to defraud their own partners or law firms by submitting false disbursement requests or by requesting clients to pay their fees to the lawyer directly instead of to the firm may be suspended or disbarred for violations of Rule 8. (2) commit a criminal act that reflects adversely on the lawyer’s honesty.(1) violate or attempt to violate the Rules of Professional Conduct. deceit. Violation of the standards imposed upon those holding public office or fiduciary responsibilities such as executor. (b) Rule 8.4(c). If a lawyer is also a real estate broker and lies in a material way about the condition of a house that she is selling. in the good-faith belief that no valid obligation exists. Rule 3. i. (c) A lawyer does not violate Rule 8. are examples.0(d).4. but this term as used in the Rules does not include merely negligent misrepresentation or negligent failure to inform [MR 1. It is not necessary that anyone have suffered damages or relied on the misrepresentation or failure to inform. often are violations of other rules as well. (a) Criminal acts or dishonest conduct need not be related to the practice of law to constitute a violation of Rule 8. for example. (4) engage in conduct that is prejudicial to the administration of justice. (a) Conduct “prejudicial to the administration of justice” under Rule 8.4 if that lawyer refuses to comply with a legal obligation.4 may occasionally fill in a gap where no other Rule is applicable.4 (lawyer shall not falsify or conceal evidence). or Rule 4. Paragraph (a) does not prohibit a lawyer from advising a client concerning action the client is legally entitled to take. such as Rule 3.4(a) should accompany almost any other charge in a disciplinary complaint. including those dealing with confidentiality and conflict of interest. (a) Any violation of the Rules.
mPrE rEvIEW OuTLInE in any jurisdiction where lawyer is licensed Jurisdiction to discipline conflict of law principles apply if lawyer practices in more than one jurisdiction where conduct occurred if not related to tribunal TEST PREP AND ADMISSIONS 54 .
or a pattern of repeated minor offenses may subject a lawyer to discipline [MR 8. such as offenses involving fraud and willful failure to file an income tax return. A lawyer is subject to discipline in both the lawyer’s home jurisdiction and another jurisdiction for the same conduct [MR 8. EXAmPLE: Cynthia is a lawyer in the state of Sandville. Blueacre may discipline her even though her unprofessional act occurred in Whiteacre.1(b) to respond truthfully to requests for information relative to disciplinary proceedings against himself or against other lawyers after admission. When applying for a law license in the state of Whiteacre. administrative agency. If a lawyer is licensed in only one jurisdiction. or other body acting in an adjudicative capacity. However. A lawyer licensed in a state is subject to discipline in that state for all unprofessional or unethical acts committed anywhere. meaning that a neutral official will render a binding legal judgment Outline c. EXAmPLE: Joan is a lawyer in Blueacre.4 as well. TEST PREP AND ADMISSIONS 55 . A lawyer is under an obligation under Rule 8. MR 8. One jurisdiction’s determination of a lawyer’s misconduct may be treated as conclusive in another state’s disciplinary proceeding.4.6. Some conduct specifically prohibited by other MRs violates the general prohibitions in MR 8. serious interference with the administration of justice. It is a separate disciplinary offense to lie or to refuse to cooperate in an investigation of a lawyer’s own conduct.4 is a catchall provision permitting discipline for serious misconduct not specified elsewhere in the MRs. If a lawyer is licensed in more than one jurisdiction or practices substantially and continuously in a jurisdiction other than the one in which he or she is licensed. then conflict of law principles will determine which rules are applicable.5(b) provides a choice of law provision under which a lawyer is subject to the ethical regulations of the jurisdiction where the tribunal sits if the lawyer’s conduct is related to a matter pending before a tribunal. c. trustworthiness. but also any other criminal behavior that reflects adversely on the lawyer’s honesty. or fitness as a lawyer “in other respects. Cynthia steals money from a fellow traveler and is prosecuted in Wellington for theft. Discipline can be imposed for failure to cooperate with the disciplinary authorities even if no substantive violations are found. Comment ].” d.b. she lies on her application. Exam Tip 3. A “tribunal” includes a court. the Rules of Professional Conduct of that jurisdiction govern her activities even if she occasionally acts outside of that jurisdiction. Professional misconduct includes not only that specified in the various MRs. the better answer is the one referring to the more specific rule violated. Offenses involving violence. b.5]. While on vacation in the state of Wellington. or a legislative body. dishonesty. Again. Jurisdiction to discipline a. If one answer identifies a more specific rule that was violated. Many kinds of illegal conduct reflect adversely on fitness to practice law. he would have the right to claim the privilege against self-incrimination and to refuse to disclose confidential information to the extent protected by Rule 1. but different jurisdictions may impose different sanctions for the same conduct. Rule 8. and another answer offers the general prohibitions contained in MR 8. an arbitration proceeding. a lawyer who is admitted in more than one jurisdiction may be disciplined in any or all of those jurisdictions for conduct that occurred in only one of the states.4. breach of trust. and the Rules of Professional Conduct or judicial interpretations differ between the two jurisdictions. Sandville may also discipline Cynthia even though her crime occurred in Wellington.
mPrE supervising attorneys responsible for subordinate if order or ratify Partners and subordinate attorneys subordinate attorneys responsible even if following orders attorneys responsible for non-lawyer assistant if order or ratify TEST PREP AND ADMISSIONS 56 .
directly affecting a party’s interests in a particular matter after the presentation of evidence or legal argument by a party or parties [MR 1.1 provides that partners and supervising attorneys shall make reasonable efforts to ensure that all attorneys in their employ comply with the ethical rules and shall have policies in place to further that goal. Following a supervisor’s orders is not a defense for a subordinate lawyer. If Lois follows Peter’s orders. where a subordinate acts in accordance with a supervisory lawyer’s reasonable resolution of an arguable question of professional duty. XYZ is responding to a document request from opposing counsel. 2. Peter Partner. The responsible lawyers must make reasonable efforts to establish internal policies and procedures designed to provide “reasonable assurance” that all the lawyers in the firm will comply with the Rules. responsibilities of Partners and supervising Attorneys a. a large law firm. but should include procedures designed to detect and resolve conflicts of interest. The subordinate’s own ethical duties remain [MR 5.0(m)]. MR 5. EXAmPLE: Jamie’s paralegal. both Peter and Lois will be personally responsible. supervising attorneys are personally responsible for subordinates’ ethical violations if they order or ratify the subordinates’ work. Gail finds a “smoking gun” that all but sinks Jamie’s case. identify dates by which actions must be taken in pending matters so that deadlines are not missed. The lawyer will not be subject to discipline if the lawyer’s conduct conforms to the rules of a jurisdiction in which the lawyer reasonably believed the predominant effect of the conduct would occur [MR 8. even though these have been requested. c. In the course of going through the documents. account for client funds and property.2]. If the predominant effect of the conduct is in a different jurisdiction. the lawyer or law firm conduct themselves in a manner “compatible with the professional obligations of the lawyer. In a small firm that does not practice in areas where ethical problems frequently arise. tells her not to produce documents with handwritten notes on them.3 imposes a parallel obligation on a partner or managing or supervisory lawyer to ensure that non-lawyers employed or retained by. Her boss. Rule 5.” (1) All firms are urged to comply with these Rules by encouraging continuing legal education in ethics and encouraging an ethical atmosphere in the firm. the rules of that jurisdiction will be applied. B. (1) However. For conduct not related to a proceeding before a tribunal. Law firms & Associations 1. Rule 5.1. b. This could include referring ethics problems to an ethics committee or to a senior partner.d. EXAmPLE: Lois Lawyer is a first-year associate at XYZ LLP. and ensure that inexperienced lawyers are properly supervised. particularly one practicing in areas involving difficult ethical problems.5(b)]. Jamie will be subject to discipline. however. If Jamie tells Gail to go ahead or does not stop her. Moreover. Comment . Gail tells Jamie that she is going to conveniently spill grape juice all over the only copy of the document. The precise measures required to fulfill these obligations depend on the structure and the work of the firm. Lawyers are responsible for overseeing the work of their non-lawyer assistants and are subject to discipline if they order or ratify wrongdoing. an informal program is sufficient. is working on a document production for one of Jamie’s clients. responsibilities regarding subordinates a. TEST PREP AND ADMISSIONS Outline 57 . a formal structure is required. In a larger firm. the lawyer will be subject to the rules of the jurisdiction where the lawyer’s conduct occurred. or associated with. Gail.
by telephone. or real-time electronic contact TEST PREP AND ADMISSIONS 58 .mPrE rEvIEW OuTLInE must not be false or misleading may identify areas of practice advertising must include name and office address not in person.
an advertisement that no fee would be charged unless a successful result was obtained was found misleading because it failed to mention that the client would be liable for expenses and costs of litigation in any event. The Lawyer’s relationship with the Client 1.1. Even a truthful statement is misleading if it omits a fact necessary to make the statement as a whole not misleading [MR 7. The inclusion of an appropriate disclaimer or qualifying language may preclude a finding that a statement is likely to create unjustified expectations or otherwise mislead a prospective client [MR 7.2. Lois follows Peter’s orders and does not produce such documents. EXAmPLE: Lois Lawyer believes a document request to which she is responding requires production of documents with handwritten notes on them.1(a)]. (a) A statement is misleading if it contains a material misrepresentation of fact or law or if it omits facts considered necessary to make the statement. Peter will be personally responsible. considered as a whole. An advertisement that truthfully reports a lawyer’s achievements on behalf of clients or former clients may be misleading if presented so as to lead a reasonable person to form an unjustified expectation that the same results could be obtained for other clients in similar matters without reference to the specific factual and legal circumstances of each client’s case.the subordinate does not violate the Rules. EXAmPLE: If a lawyer advertised “Wills for $100” and charged that amount only for simple wills. 7. Advertising and solicitation [MRs 7. For example. not materially misleading [MR 7. (2) the whole practice is sold to one lawyer or group. their right to obtain other counsel or their file. 3. Outline TEST PREP AND ADMISSIONS 59 .2 permits advertising so long as the communication is not misleading in accordance with the standards of Rule 7. but Lois will not. the statement would be misleading because it does not say that larger amounts would be charged for complex wills.1. Comment ].3.1. (4) no greater fees will be charged. sale of Law Practice a. C. Comment ]. A lawyer may sell or buy a law practice if: (1) the seller will no longer practice law in the same geographical and/or substantive area. Her supervisor Peter disagrees. The document request as framed is arguably ambiguous on this issue. 7.4. 7. Getting the Client a. advertising is the communication of information about the availability of a lawyer’s services in a general way. Rule 7. 7. and that they will remain with the practice if they do nothing for 90 days.1. The court later holds that refusing to produce documents with handwritten notes was an ethical violation. not personally targeting any specific individual where they might be put on the spot to accept or decline employing the lawyer. and (a) If a client cannot be notified. (b) A truthful statement may also be misleading if there is a substantial likelihood that it will lead a reasonable person to formulate a specific conclusion about the lawyer or the lawyer’s services for which there is no reasonable foundation. (3) the seller notifies all clients in writing about the sale.5] (1) In broad terms. his case will not be transferred to the new owner without a court order.
mPrE rEvIEW OuTLInE must not be false or misleading may identify areas of practice advertising must include name and office address not in person. by telephone. or real-time electronic contact TEST PREP AND ADMISSIONS 60 .
but are not partners cannot denominate themselves a partnership or give themselves a name like “Smith & Jones.’ or ‘specializes in’ particular fields. the statement must be truthful [MR 7. is personal contact with a specific prospective client in order to obtain employment with respect to a particular matter.1. Comment ]. and the name of the certifying organization is identified [MR 7. unless he has been so certified by an organization approved by a state authority (like the State Bar) or accredited by the ABA. “Jim is an attorney. (2) Solicitation. Comment ].” which implies a partnership [MR 7. a lawyer may not state or imply that he is certified as a specialist in a particular field of law. Comment ].” This ad will not subject Jim to discipline. such as a secretary. (a) Trade names are permitted if they are not misleading and do not imply a connection with government or a charitable legal services organization. EXAmPLE: Jim. He specializes in automobile ‘lemon-law’ cases but also handles simple wills.3 now draws the line between advertising and solicitation by focusing on personal contact. even if she had not retired from the firm. (c) Lawyers who are merely sharing office facilities. a lawyer holding down a full-time governmental position for an indefinite period could not. For example.4. a lawyer.4].4. (3) Law firm names must not be misleading. (a) “A lawyer is generally permitted to state that the lawyer is a ‘specialist. conference room.” but like all lawyer communications concerning the services.An unsubstantiated comparison of the lawyer’s services or fees with the services or fees of other lawyers may be misleading if presented with such specificity so as to lead a reasonable person to conclude that the comparison can be substantiated [MR 7. The ad reads. on the other hand. Comment ]. Rule 7. business contracts. However. divorces. (b) National law firms are permitted to use the same name in every state provided their communications in each state identify those partners not licensed to practice in the state. or the like. State bar rules that prohibit lawyers from sending targeted direct-mail solicitations to victims and their relatives for 30 days following an accident or disaster have been upheld. A lawyer continuing to practice who holds a part-time government job could continue to have her name as part of the firm name.5].’ practices a ‘specialty. and may specify patent or admiralty law [MR 7. (4) In an advertisement.5. a lawyer can not advertise that she is the best plaintiff’s malpractice lawyer in town because that statement involves a subjective judgment that cannot be substantiated. a lawyer may identify the area of law in which he does or does not practice. her name cannot be used on the letterhead or as part of the firm name during any substantial period when she is not actively and regularly practicing with the firm. (c) An attorney who holds an active Certified Public Accountant (CPA) license as well as a Certified Financial Planner (CFP) designation TEST PREP AND ADMISSIONS (c) Outline 61 . and residential real estate. The names of lawyers holding public office cannot be used in law firm names when the lawyers are not regularly practicing with the firm [MR 7. (b) However. places an ad in his town newspaper. (d) If a member or former member of a firm holds public office. library.
by telephone.mPrE rEvIEW OuTLInE must not be false or misleading may identify areas of practice advertising must include name and office address not in person. or real-time electronic contact TEST PREP AND ADMISSIONS 62 .
unless the person solicited is a lawyer. A lawyer has the right to approach persons in need of legal services. Outline (a) Advertising circulars sent through the mail targeted to those known to be in need of particular legal services are allowed. to explain that need. unless it is to another lawyer. or electronic communication. or real-time electronic contact solicit fee-generating employment. John will not be subject to discipline for sending out this mailing. These limits are reflected in the exceptions contained in the rule: 1) Solicitation is permitted where the lawyer does not have a substantial pecuniary motive. A state could prohibit advertisement of certifications issued by organizations that make no inquiry into a petitioner’s fitness or that issue certificates indiscriminately for a fee. she sees a major accident on the highway. close personal. a qualified non-profit lawyer referral service. (c) There are constitutional limits to a ban on in-person solicitation. however. legally obtains listings of individuals who have filed for bankruptcy pro se (without a lawyer) in his jurisdiction from the bankruptcy court. While driving home. but the outside envelope must include the words “Advertising Material. They are believed to have a coercive effect because of their immediacy. ]. including public media. (7) A lawyer cannot by in-person. She can tell that this accident will yield major damages. a legal services plan. EXAmPLE: Lisa is an attorney who specializes in personal injury cases.” Those words must also be used at the beginning and ending of any recorded or electronic communication. EXAmPLE: John. TEST PREP AND ADMISSIONS 63 . and truthfully states. “I offer bankruptcy-related legal representation to low-income individuals at rates below those charged by large law firms.2. Contact me at the toll-free number below for a free consultation to determine whether you wish to hire me. recorded. (b) Electronic real-time communications are those that are analogous to live phone calls.” The words “Attorney Advertisement” appear on the envelope in which the brochure is mailed. and then to suggest that they obtain a lawyer or obtain the services of the soliciting lawyer without charge. (5) A lawyer may advertise through written. or has a family. or a reciprocal referral arrangement to exchange clients with a non-lawyer professional [MR 7. which identifies himself and his office address. duress. All ads must include the name and office address of at least one attorney in the firm [MR 7. He mails them his brochure. Comments . live telephone. a bankruptcy lawyer. or harassment. or prior professional relationship with the lawyer. (6) A lawyer cannot give anything of value for client referrals.2 (a) & (c)].from the Certified Financial Planner Board of Standards may list both designations in her listing in the yellow pages and on her business cards and law office stationery. A lawyer may not engage in solicitation involving coercion. A lawyer may not solicit employment from anyone who has made it known to the lawyer that he doesn’t want to be solicited. She is subject to discipline if she stops and offers her card to the accident victims.
mPrE rEvIEW OuTLInE it would result in violation of Rules or law ability materially impaired by physical / mental condition cannot be performed competently. promptly. to completion improper conflict exists May Not Represent Prospective client If TEST PREP AND ADMISSIONS 64 .
beneficiaries. A person who discusses with a lawyer the possibility of forming a client-lawyer relationship with respect to a matter is a prospective client. the lawyer has a duty of loyalty to the prospective client. 5) A lawyer also has the right to contact the representatives of organizations or groups interested in establishing a group or prepaid legal services plan for their members. a) A lawyer may participate in a prepaid or group legal services plan which uses personal solicitation to secure clients. While the Rule is not specific as to what family relationships are exempt. In addition to the duty to keep confidences.9 with respect to information of a former client [MR 1. Acceptance or rejection of and duties Toward Prospective Clients (1) A lawyer may not represent a client if the representation will result in violation of the rules of professional conduct or other law. promptly.3(d)]. and to completion [MR 1. The Rule also does not define a “close personal” relationship. except as permitted under Rule 1. and even if no representation ensues. if a lawyer drew up a will for a client and tax law changes made it advisable to change the will. the lawyer who has had discussions with a prospective client may not use or reveal information learned in the consultation. and a disqualification will be imputed to the lawyer’s firm. (8) Lawyers cannot accept government legal work or appointment by a judge if they make or solicit political contributions to obtain such work or appointment [MR 7.18(d)]: (a) both the affected client and the prospective client have given informed consent.b. A lawyer has the right to solicit former clients for additional legal services. Comment ]. ii) the organization is not owned or directed by the lawyer.16(a)(1). A lawyer should not accept representation in a matter unless it can be performed competently.18(a). There is less potential for abuse when the person contacted is also a lawyer. or if the lawyer’s physical or mental condition materially impairs the lawyer’s ability to represent the client [MR 1. without improper conflict of interest. unless [MR 1. For example. (2) A lawyer has certain duties to prospective clients. or other third persons [MR 7. as long as: i) the lawyer is not personally involved in the solicitation. 4) A lawyer has the right to solicit business from other lawyers. and iii) the persons solicited are not known to be in need of legal services. (2)]. 3) A lawyer has the right to solicit relatives and friends for legal services. relatives by marriage as well as blood relatives are included. or 2) Outline TEST PREP AND ADMISSIONS 65 . (b)].6]. confirmed in writing. a lawyer has the right to initiate personal contact with the former client and suggest that they have a conference about changing the will.16. The lawyer may not represent a client with interests materially adverse to those of a prospective client in the same or a substantially related matter if the lawyer received information from the prospective client that could be significantly harmful to that person.
mPrE rEvIEW OuTLInE lawyer Representing client with Interests Materially adverse to Prospective client both clients give informed consent in writing lawyer avoided exposure to disqualifying information lawyer timely screened written notice to prospective client TEST PREP AND ADMISSIONS 66 .
A person who communicates information unilaterally to a lawyer. a lawyer considering whether to undertake a new matter should limit the initial interview to only such information as reasonably appears necessary for that purpose [Comment ]. without any reasonable expectation that the lawyer is willing to discuss the possibility of forming a client-lawyer relationship. and 1) the disqualified lawyer is timely screened from any participation in the matter and is apportioned no part of the fee therefrom. is not a “prospective client. and 2) written notice is promptly given to the prospective client. Even in the absence of such agreement. The lawyer may also condition conversations with a prospective client on the person’s informed consent that no information disclosed during the consultation will prohibit the lawyer from representing a different client in the matter. (3) Comment  clarifies that not all persons who communicate information to a lawyer are entitled to protection under this Rule.” (4) In order to avoid acquiring disqualifying information from a prospective client. the lawyer is not prohibited from representing a client with interests adverse to those of the prospective client in the same or a substantially related matter unless the lawyer has received from the prospective client information that could be significantly harmful if used in the matter [Comment ]. Outline TEST PREP AND ADMISSIONS 67 .(b) the lawyer who received the information took reasonable measures to avoid exposure to more disqualifying information than was reasonably necessary to determine whether to represent the prospective client.
mPrE rEvIEW OuTLInE TEST PREP AND ADMISSIONS 68 .
he has the lowest rates. and supervise the staff. as his staff is made up of paralegals. Indeed. industrial section of town. because his advertising on television involved a real-time electronic contact. So he rents a warehouse in a low-rent. unless there is a substantial likelihood that it will lead a reasonable person to formulate a specific conclusion about the lawyer or the lawyer’s services for which there is no reasonable factual foundation. by casting attorneys in an unfavorable public light through his flamboyant and undignified manner of advertising and his emphasis on cheap legal services. The staff does almost everything: They prepare drafts of all the paperwork. C) Yes. C) No. B) Yes. All Arturo does is review the draft paperwork. D) No. using a prepaid number so that the recipients do not have to pay for receiving or reading the text: “R U in need of a bu$ine$$ lawyer? 1st consult free – Hit Reply & I’ll pay Ur minutes! Ariel Atty. meet with the clients to fill out the forms. and law student clerks. At the suggestion of a friend in the local Junior Chamber of Commerce. and on late night television. Ariel Attorney plans to offer free consultations to young businesspeople in hopes they will remember her when they have a paying matter. puts in some big tables. He wants to take advantage of the many people who can’t pay their bills and would benefit from filing bankruptcy. Outline TEST PREP AND ADMISSIONS 69 . and telephones.” He also takes out similar ads in the local paper and yellow pages. make the court appearances. See Us for LOWEST Rates in Town! Routine work is done by staff. copy machines. but are too poor to hire a lawyer at the rates he normally charges. advise clients who need it. because the content of lawyer advertising is no longer subject to the old “dignified” standard and is now recognized as being absolutely protected under the First Amendment’s guarantee of free speech. because he is making reasonable efforts to ensure that his staff’s conduct conforms to the professional obligations of the lawyer. file the documents in court. secretaries. with state bar certification as a bankruptcy specialist. he does these few things carefully. sign the finals. To his credit. Question 2 In an attempt to increase the business side of her practice. which he achieves by having a “boiler room” operation.BaR aPPlIcatIoN QuEstIoNs Question 1 Arturo Attorney has struck upon an idea for what he believes is the law firm of the future. AZ 83910” Is Ariel subject to discipline for the content of her text message? A) No. She then sends out the following text message to everyone on the list. “Arturo Attorney. Is Arturo subject to discipline? A) Yes. computers... Ariel legally purchases from the Chamber a list of personal cell phone numbers of all its members under 35 years old. most of whom she has never met. Popton. because an unsubstantiated comparison of the lawyer’s services or fees with the services or fees of other lawyers may be misleading if presented with such specificity as would lead a reasonable person to conclude that the comparison can be substantiated. unless one of the staff members acts unethically. because even a truthful statement is misleading if there is a substantial likelihood that it will lead a reasonable person to formulate a specific conclusion about the lawyer or the lawyer’s services for which there is no reasonable factual foundation. B) No. and puts out a sign saying. Lawyer Specializing in Bankruptcy Law. Soon Arturo has hundreds of clients. D) Yes. He is a licensed lawyer in good standing. and handle all telephone intake information-gathering. 123 Third St.
mPrE rEvIEW OuTLInE decline / withdraw attorney who Is Not competent May make himself competent associate with competent counsel TEST PREP AND ADMISSIONS 70 .
he may: (a) decline or withdraw from the representation. Outline NoTE (c) Even newly admitted attorneys should have these skills. Keeping the Client a. and 5) whether it is feasible to refer the matter to. a lawyer needs expertise in a particular. 4) the preparation and study the lawyer is able to give the matter. a lawyer must do factual and legal research into a client’s problem. or by associating oneself with a competent attorney. (e) In emergencies. even if he lacks the skill or knowledge ordinarily required. b) evaluate evidence. (d) A lawyer should always keep up-to-date about changes in the law through continuing legal education and self-education. and d) identify legal issues. or (c) associate with competent counsel. lawyers should limit their emergency assistance to that reasonably necessary under the circumstances. a lawyer need only have the knowledge of a general practitioner in order to be competent. (2) If the lawyer is not competent to handle the representation. This requirement is satisfied by reasonable knowledge. duty of Competence (1) The Rules require lawyers to be reasonably competent in order to take a case. (b) take action to make himself competent to handle the representation. a lawyer may give advice to clients who need it.2. skill. (4) A competent lawyer may nevertheless act incompetently in his representation of a client and be subject to civil liability for malpractice. c) draft legal documents. In order to be competent. TEST PREP AND ADMISSIONS 71 . 3) the lawyer’s training and experience in the field in question. (a) Factors used to assess the sufficiency of a lawyer’s knowledge and skill include: 1) the relative complexity and specialized nature of the matter. 1) Fundamental skills necessary for competence include the ability to: a) analyze precedent. In others. and preparation. or associate or consult with. (3) The client’s consent to representation when an attorney is not competent does not release the attorney from the duty of competence. However. a lawyer of established competence in the field. (b) In some cases. 2) the lawyer’s general experience. thoroughness. specialized field.
reputation whether fee is fixed or contingent TEST PREP AND ADMISSIONS 72 . novelty & difficulty involved likelihood that representation will preclude other work customary fee Reasonableness of Fees amount involved time limitations nature & length of relationship between lawyer and client lawyer’s experience.mPrE rEvIEW OuTLInE time.
(6) An attorney may be subject to litigation sanctions for: (a) pursuing a nonmeritorious claim. 4) A lawyer may advance court costs and other expenses of litigation. (c) the customary fee in the locale for this kind of work. EXAmPLE: Frank needs a lawyer to help him in his custody battle with his ex-wife. and (h) whether the fee is fixed or contingent. A lawyer representing an indigent client may agree in advance to absorb all such expenses [MR 1. Frank must retain another lawyer to advise him whether to accept Maria’s offer. fresh out of law school. the lawyer absorbs the costs and expenses. (e) time limitations imposed by the client or circumstances. preferably in writing. (f) the nature and length of the professional relationship between the lawyer and client. (d) the amount involved and results obtained. and difficulty involved. alimony. MR 1. but all the family law lawyers in his locale charge more than he can afford. such as Outline TEST PREP AND ADMISSIONS 73 . Such writing must include the method of fee calculation and court and other costs to be borne by the client. and ability. reputation. 2) Contingency fees are prohibited in criminal and domestic-relations cases other than collection of post-judgment amounts due under support. and is given a reasonable opportunity to seek. Under such an arrangement. Maria.5 sets forth eight factors to consider in deciding whether a fee is reasonable: (a) the time. b. only to be collected upon if a successful result is reached.8 (e)]. A lawyer may seek reimbursement for the cost of services performed inhouse. 1) A contingent fee requires the client to pay a fee (or a bonus) only if there is a favorable outcome to the matter. if the client loses the case. or financial orders. the repayment of which may be contingent on the outcome of the matter. lawyers shall explain the fee and how it is calculated. The fee may be calculated as a percentage of the amount recovered. or may be billed on an hourly basis or at a flat rate. novelty. 3) Contingent fees must be agreed to in writing. or (b) failing to respond to a discovery order.5] (1) Fees must not be unreasonable. such as copying. nor may he settle a claim or potential claim for such liability with an unrepresented client or former client unless that person is advised in writing of the desirability of seeking. The lawyer must also promptly communicate fee changes. the lawyer must make a written accounting to the client. (b) the likelihood that acceptance of this representation will preclude the lawyer from accepting other employment.(5) A lawyer shall not make an agreement prospectively limiting his liability to a client for malpractice unless the client is independently represented in making the agreement. but in exchange requires him to agree not to sue her for malpractice if she makes a mistake. or for other expenses incurred in-house. If there is a recovery. the advice of independent legal counsel in connection with the matter [MR 1. before or soon after the representation begins.8 (h) (1)]. contingent fees are generally valid. Except when prohibited by local law or the Rules. offers to help him for a very low price. (3) Expenses for which the client will be charged must also be reasonable. (g) the lawyer’s experience. (2) Particularly with new clients. fees and Client funds [MR 1.
mPrE rEvIEW OuTLInE proportional division of Fees client agreement in writing total fee is reasonable TEST PREP AND ADMISSIONS 74 .
When developments occur during the representation which make an earlier fee estimate substantially inaccurate.” (c) Both options require that: 1) the client agrees to the arrangement.” the total fee is reasonable. (6) MR 1. either by charging a reasonable amount to which the client has agreed in advance or by charging an amount that reasonably reflects the cost incurred by the lawyer [MR 1. Comment  warns the referring lawyer: “A lawyer should only refer a matter to a lawyer whom the referring lawyer reasonably believes is competent to handle the matter. and 3) the total fee is reasonable. and does no legal work at all. (7) A lawyer may collect a fee in advance in the form of a retainer.” 1) This arrangement is useful when the referring lawyer has no expertise in the matter referred and so cannot perform any legal services. where the referring lawyer has some knowledge of the law involved but wishes to associate another with more expertise. Modification of a fee agreement during the course of the representation presumptively shows fraud by the attorney unless the client consents based on full disclosure and adequate consideration. Under this alternative. and the client agrees to the arrangement in writing. Often this is precisely why the referring lawyer sought another with expertise. a revised estimate should be sent to the client.5 (e) (1) provides two options for the division of fees between lawyers: (a) Fees can be divided if “the division is in proportion to the services performed by each lawyer.” 3) This means that the referring lawyer will be financially liable for the other lawyer’s malpractice.5. just as partners are liable for each other’s obligations in a general partnership. receives a percentage of the fee.telephone charges. Similar to the first option. the lawyer must usually return any unearned portion. for example. this protects the client from mistakes. (4) Any changes in the basis or rate of the fee or expenses must be communicated to the client. Comment ]. including the share each lawyer will receive. Outline TEST PREP AND ADMISSIONS 75 . 2) This option is not risk-free for the referring lawyer. (b) Alternatively. (5) A lawyer should not establish a fee arrangement that may put the client at a disadvantage if circumstances change during the course of the representation. 4) Thus. a lawyer refers the case. At the end of the relationship. and b) both lawyers are answerable for any mistakes (malpractice) they may make while performing their portion of the work. 2) the agreement is confirmed in writing. fees can be divided if “each lawyer assumes joint responsibility for the representation. 2) The division of fees protects clients because: a) it encourages lawyers to associate others with expertise while still allowing them to keep the client and receive remuneration for their work. 1) This arrangement is useful when both lawyers anticipate working on the case. The term “joint responsibility” is defined in Comment : “Joint responsibility for the representation entails financial and ethical responsibility for the representation as if the lawyers were associated in a partnership. The referring lawyer has performed a valuable service to the client by locating someone with expertise.
mPrE rEvIEW OuTLInE separate account safekeeping client Property lawyer’s state of residence records kept for five years TEST PREP AND ADMISSIONS 76 .
one of whom may be the lawyer. it shall be kept there until the dispute is resolved. the lawyer is not required to remit to the client funds that the lawyer reasonably believes represent fees owed. Albert Attorney may accept an acre of the land she is buying as payment for his services. by agreeing to represent a client. Any amounts not in dispute must be promptly disbursed to the parties entitled to the undisputed amount. (8) A lawyer may collect a fee through credit cards or by arranging a bank loan for a client. to be withdrawn by the lawyer only as fees are earned or expenses incurred [MR 1. the local Bar may require that it be arbitrated. in the lawyer’s state of residence. (c) A lawyer may deposit only so much of his own funds in a client trust account as are necessary to pay bank service charges. such as arbitration. the lawyer should consider submitting to it. (g) When two or more persons. (f) The lawyer must promptly deliver to the client or third persons funds from the trust to which they are entitled. Outline (10) In the event of a dispute with the client about the fee. then she has the right to ask for a nonrefundable retainer.16(d). EXAmPLE: Susan needs help with a real estate transaction. TEST PREP AND ADMISSIONS 77 . So long as the attorney clearly explains to the client that the retainer is nonrefundable. and provide a prompt accounting upon request by the client or third person. Only the amount in dispute may be kept in the account.(a) If a lawyer. upon termination of representation.15]. Other client property should be similarly safeguarded [MR 1. The lawyer should suggest means for prompt resolution of the dispute. this arrangement may be reasonable. and even where fee arbitration is not mandatory. because it may be considered a “business transaction” with the client. claim an interest in trust account funds. unless the client consents to an out-of-state account. not litigated. (b) Records of all property must be kept for five years. (9) The Comments indicate that lawyers are permitted to receive property instead of money from clients. (d) The lawyer must deposit into a client trust account any legal fees and expenses that have been paid in advance. However. She is buying a large farm and needs a lawyer to handle the closing. However. which requires the lawyer. she is using all of her money to buy the property. the lawyer must give prompt notice to the client. She may take an interest-bearing promissory note for a fee. (e) Upon receipt of client funds.15(c)]. and shall deposit prepaid legal fees and expenses from the client into the client trust account.” Some courts fear that a nonrefundable retainer may interfere with the free exercise of the client’s right to discharge the lawyer. a lawyer may obtain a lien upon a potential recovery to secure the payment of a fee. (11) safekeeping Client Property (a) Client fees are to be kept in a separate account. But such an arrangement is subject to more scrutiny if there is a dispute. Any unearned fees must be returned upon the termination of the attorney-client relationship. to refund “any advance payment of fee that has not been earned. If local law permits. has foreclosed herself from other valuable legal work. usually called a trust account. (b) Courts are increasingly invalidating nonrefundable retainers as violative of public policy and Rule 1.
mPrE rEvIEW OuTLInE generally no duty InterestBearing account if interest-bearing fiduciary management principles lawyer may not keep interest without client consent TEST PREP AND ADMISSIONS 78 .
000 in her client trust account.000.000 in Patrick’s case and deposited it in the trust account.000 in settlement of the claim. Unless permitted by the Rules or by agreement. a) If trust funds are to be kept for a very short time. and account for. and third parties with legitimate interests. the lawyer must promptly deliver the property to the person entitled to receive it. (h) The attorney owes a duty to her client.000 out of the trust account and deposit it in her personal account. He says she should get no more than 25%. then fiduciary management principles apply. TEST PREP AND ADMISSIONS 79 . 1) If the funds are to be held in trust. Their fee agreement provided that she would get 45% of any recovery. then they should ordinarily be placed in an interest-bearing account with the client receiving the interest. b) If they are to be kept longer.000. What is the proper handling of the funds while the dispute is being resolved? Outline (i) (j) (k) Generally. HYPOTHETICAL Attorney and Client have a contingent fee agreement whereby Attorney gets 25 percent of any recovery before trial and one-third of any recovery after trial. received a settlement check for $100. client property that is not cash. Patrick replies that she fraudulently induced him to sign the agreement and told him he’d never have to pay 45%. the lawyer may not retain the interest without the client’s informed consent. Property belonging to others must be kept safely. While the jury is deliberating on the case. To avoid difficulties in accounting for small amounts of interest on interest-bearing accounts. Susan must promptly send Patrick $55. 1) When a lawyer receives property belonging to others. Susan tells Patrick she’s sending him a check for $55.EXAmPLE: Patrick’s lawyer. securities should be kept in a safe deposit box. whereby the interest on clients’ accounts is paid into a special fund that uses the money for purposes such as the provision of legal services to low-income recipients. they may be placed in a non-interest-bearing account. a lawyer is under no duty to place client funds in an interest-bearing account. Attorney and Client then dispute whether Attorney is entitled to a 25 percent fee or a one-third fee based on the definition of before or after trial. Susan. but if a client account does earn interest. she must promptly notify the client or the third person. and Attorney deposits the $300. and leave the remaining $20. take $25. A lawyer may have a duty to protect such third-party claims against wrongful interference by the client and not disburse money to the client unless sufficient funds remain to satisfy the lien claim. as that amount is in dispute. the defense gets nervous and offers Client $300. such as a client’s creditor who has a lien on funds recovered in a personal injury action and placed in the trust account.000 in the trust account. The lawyer must also safeguard. Client accepts. the states have established Interest on Lawyer Trust Account (IOLTA) plans.
mPrE rEvIEW OuTLInE between client and lawyer Conflicts of Interest between two clients between client and third party TEST PREP AND ADMISSIONS 80 .
or (b) favorable to his client to the detriment of a person served by the organization [MR 6. EXAmPLE: John is an attorney who handles mostly mass tort actions. (c) Lawyers may not accept a plea on behalf of defendant clients without each one’s written consent. he represented a large class of plaintiffs who sued an asbestos manufacturer for damages. officer. serves on the executive board of the group. including whether the lawyer is representing the client in the transaction. and 4) the client must give informed consent. In that case he asserted that the asbestos manufacturer knowingly and illegally withheld information from the plaintiffs that asbestos was harmful if inhaled. (2) A lawyer may serve as a director. or member of a legal services organization that serves persons having interests adverse to a client of the lawyer. unless the lawyer receiving a gift drafts the instrument that creates the gift. in a signed writing. to the essential terms of the transaction and the lawyer’s role in it. Power Company walks into Lawyer’s office one day and asks her to represent it in trying to build a coal-burning power plant right next to an ecological reserve. although contradictory. (d) Lawyers cannot solicit gifts from clients or prepare documents giving gifts to themselves (except as a favor to a relative). John represented a different asbestos manufacturer and argued to the court that the manufacturer had no duty to reveal the risks of asbestos to the plaintiff.3]. She has been a long-time member of this group. is acceptable in both cases. 2) the terms must be set forth in a writing understandable to the client. (b) Lawyers must not use information obtained from clients against them without informed consent (subject to the exceptions set forth elsewhere in the Rules). There is no rule prohibiting a lawyer from receiving a gift from a client. In 2001. provided the lawyer does not participate in a decision or action of the organization that is: (a) incompatible with the lawyer’s obligations to his client. and believes strongly in the ideals of the group. The environmental group is opposed to the building of this plant. The lawyer must relay all material information about any settlement or plea to all of the clients. TEST PREP AND ADMISSIONS 81 . Can Lawyer represent Power Company in this matter? Outline (3) Conflict Between Client and Lawyer (a) Where a lawyer enters into a business transaction with a client: 1) the terms must be fair to the client. HYPOTHETICAL Lawyer is a devoted member of a group that is committed to saving the environment. John’s advocacy.c. In 1994. Conflicts of Interest (1) It is acceptable to take opposite positions on the same legal question in a different and later case or on behalf of different clients. 3) the client must be advised in writing that he should seek the independent advice of another lawyer and be given an opportunity to do so.
mPrE rEvIEW OuTLInE using information obtained from clients against them accepting a plea on client’s behalf without written consent soliciting gifts from clients obtaining book or media rights during representation providing financial assistance obtaining a proprietary interest in the subject of litigation having sexual relations with a client representing client if lawyer is a necessary witness between client and lawyer Conflicts of Interest between two clients between client and third party TEST PREP AND ADMISSIONS 82 .
7(a)]: 1) the matter is uncontested. However. For example. (h) Except for liens to collect his fee or contingency fees. Inmate’s story is so compelling that people have been clamoring for the rights to make a movie based on his life story. it is permissible to obtain as a fee a percentage of independent literary material that is the subject of the representation. unless [MR 3. b) A lawyer may accept a gift that does not require an instrument. Although Attorney is working to get Inmate off of death row. (j) A lawyer should not represent a client if the lawyer is a necessary witness. a lawyer may draft a document conveying an insubstantial gift to the lawyer. TEST PREP AND ADMISSIONS 83 . including a testamentary gift. or may accept a new suit from a client who is elated at winning an important case. For example. It is permissible for repayment of the costs of litigation to be contingent on the outcome of the case.According to Rule 1. specifically by firing squad. and may advance litigation costs provided the client remains liable to repay such costs. Would it be appropriate for Inmate to transfer his movie rights to Attorney? (g) A lawyer cannot settle a claim or potential claim for malpractice with an unrepresented client or former client unless that client is advised in writing to seek the advice of independent legal counsel and is given the opportunity to do so. a lawyer could draw a stock transfer document if the client wanted to give the lawyer one share of stock worth $50. child. a lawyer may not obtain a proprietary interest in the subject matter of litigation. HYPOTHETICAL 1) Outline Inmate is on death row. (e) Lawyers must not obtain book or media rights regarding a pending representation prior to the conclusion of the representation. Such an instrument must be drawn by another lawyer who is not a donee or subject to the imputed conflict rules. when the lawyer is the only person who can introduce the evidence in question.8(c). or prepare on behalf of a client an instrument giving the lawyer or a person related to the lawyer any substantial gift unless the lawyer or other recipient of the gift is related to the client. For purposes of this paragraph. the lawyer may draw the instrument. 3) There are three types of gifts that are not subject to this rule: a) If the client is related to the lawyer or the lawyer’s spouse. grandparent or other relative or individual with whom the lawyer or the client maintains a close. a lawyer may accept a case of liquor from a client as a birthday present. “A lawyer shall not solicit any substantial gift from a client. They may. however. related persons include a spouse. grandchild. familial relationship.” 2) The client’s consent will not absolve the lawyer.e. i. parent. (i) A lawyer may not have sexual relations with a client unless a consensual sexual relationship existed between them when the clientlawyer relationship commenced. do so in the case of an indigent client. (f) Lawyers should not provide financial assistance to a client in connection with litigation. c) Finally. Inmate has expressed his desire to die..
mPrE rEvIEW OuTLInE between client and lawyer Conflicts of Interest between two clients reasonably believes can provide competent representation each client gives informed consent in writing not prohibited by law between client and third party TEST PREP AND ADMISSIONS 84 .
(4) Conflict Between Client and Another Client (a) Conflicts Involving Present Clients 1) A lawyer must not represent a client if the representation is directly adverse to another client or materially limited by the responsibilities to another client unless: a) the lawyer reasonably believes he will be able to provide competent representation. However. the lawyer must first subjectively believe that she can accept the representation even though she may be limited in exercising certain options because she represents other clients. a) If representing co-parties in a civil case: Outline TEST PREP AND ADMISSIONS 85 . and so the lawyer may be prohibited from obtaining a valid consent.0(c) defines “informed consent” as “the agreement by a person to a proposed course of conduct after the lawyer has communicated adequate information and explanation about the material risks of and reasonably available alternatives to the proposed course of conduct.0(i)]. the lawyer’s duty of confidentiality may make it impossible for the lawyer to make the disclosures necessary for one of the clients to make an informed decision. as he still feels that the property she claims as her own actually belongs to him. If a disinterested lawyer would conclude that a client should not agree to the representation under the circumstances. Loretta may not accept Luis’s case unless Simone consents. The rules strongly recommend against representing co-defendants in a criminal case or co-parties in a civil case. another lawyer in the disqualified lawyer’s firm may still take the case [MR 1. or disqualifying the lawyer will constitute a substantial hardship to the client. 2) A lawyer may not represent both the plaintiff and the defendant in the same lawsuit. the lawyer may not take the case unless each client gives informed consent. ii) Second. Luis. If opposing counsel is a close relative. c) the joint representation is not prohibited by law. In 1993.” If the conflict involves two clients. Luis approached Loretta and asked her to sue Simone for trespass. Loretta represented Simone in an action for encroachment against Simone’s next-door neighbor. Comment ]. i) Under the definition of “reasonably believes” in the Rules. EXAmPLE: In 1991. A lawyer may ask a client to waive conflicts in advance if the client is an experienced user of the legal services involved and reasonably informed of the risks. that belief must be objectively reasonable under the circumstances [MR 1. the lawyer involved cannot properly ask for consent or provide representation even if the client consents. and that the new representation will not be adversely affected because of those limitations. if the lawyer is disqualified because of a familial relationship to opposing counsel.7. b) each client gives informed consent in writing.2) 3) (k) the testimony involves the nature and value of legal services. and i) Rule 1.
mPrE rEvIEW OuTLInE between client and lawyer client gives informed consent Conflicts of Interest between two clients third party does not interfere confidentiality preserved adverse interests present and prospective client substantially related matter potentially harmful information confidential information issues substantially related between client and third party present and former client TEST PREP AND ADMISSIONS 86 .
where the company pays for defense of the client. If a conflict arises between the interest of the company and the interest of the client because a claim is made for damages over the policy limits or because one theory for liability is not covered by the policy. (b) Conflicts Involving a Present Client and a Prospective Client 1) A lawyer cannot represent a present client whose interests conflict with a prospective client if: a) the interests of the clients are materially adverse. and c) the lawyer received information from the prospective client that could be significantly harmful to the present client. (c) In a business context. unless that information has been revealed. Likewise. regardless of the interests of the company. Rule 1. however. if a corporation provides counsel for an officer accused of wrongdoing. and ii) each client must give informed consent in a signed writing to the settlement agreement. (c) Conflicts Involving a Present Client and a Former Client 1) A lawyer may not represent a present client against a former client if: a) the lawyer received confidential information from the former client relating to the present litigation which can now be used against the former client.7(a)(2) prohibits a lawyer from representing a client if the representation might be materially limited because of the lawyer’s responsibilities to a third person. (5) Conflict Between Client and Third Party (a) Rule 1. The government may still give informed consent in writing for the representation. is generally known.8(f) provides a specific rule on this type of conflict. or b) the issues in the two representations are substantially related. unless the former client gives an informed consent. and 3) confidentiality is preserved. the attorney must be able to represent the interests of the officer independently. b) the representations involve the same or a substantially related matter. 2) The lawyer may take on such representation. unless the lawyer reasonably believes the representation will not be adversely affected and the client consents after consultation. A third party may pay for a client’s representation only if: 1) the client gives informed consent. Outline TEST PREP AND ADMISSIONS 87 . the company must advise the insured to obtain independent counsel. confirmed in writing. if both clients give informed consent.i) the attorney must disclose to each client the nature and extent of all claims and the participation of each person in the settlement. or is otherwise discoverable. (b) Many third-party conflicts occur when the third party pays the lawyer to represent the client. confirmed in writing. conflicts under this Rule arise in insurance liability cases. 2) A lawyer cannot represent a private party against a government agency for which the lawyer worked if the subject matter involves exactly the same subject matter in which the lawyer participated personally and substantially while working for the government. 2) there is no interference by the third party with the lawyer’s professional judgment.
mPrE rEvIEW OuTLInE actual conflict potential conflict and client declines whole firm if one attorney is disqualified old firm—disqualified if substantially related and remaining lawyer has knowledge new firm—can’t join if lawyer has knowledge of an adversary of new firm’s client Disqualification changing firms government lawyer TEST PREP AND ADMISSIONS 88 .
or other lawyers are actually contaminated with the departing lawyer’s knowledge. representation is nevertheless permitted if the lawyer: a) took measures to limit exposure to information necessary to determine whether to represent the prospective client. (a) Imputed disqualification is based on a presumption that all partners and associates in a firm know about all cases. does not accept the arrangement. the lawyer cannot accept the suggestion of a parent that reform school would be good for the child and that the child should plead guilty and accept the punishment unless. b) is timely screened from any participation in the current client’s matter. 1) If the disqualification stems from the government being the former client. the question is whether she took all the contaminant with her. suppose a lawyer leaves one firm and wants to go to a new firm that represents a client with interests adverse to Outline TEST PREP AND ADMISSIONS 89 . (d) In the family context. (e) When lawyers leave or join firms.d. the lawyer cannot reveal to the parents protected information involved in the representation without the consent of the child. 2) If a lawyer received disqualifying information from a prospective client. The lawyer must independently represent the child and not defer to the parent. 1) Thus. the former government attorney is given no direct portion of the fees and has no involvement in the representation.10 (a)].10]. unless the new matter is substantially related to ones the departed lawyer worked on and any lawyer in the firm has actual knowledge about those matters [MR 1. and d) promptly gives written notice to the prospective client. The knowledge of one lawyer working on a case is “imputed” to all the others while that lawyer is at the firm [MR 1. (c) The disqualification does not apply if the lawyer is being disqualified because he is a necessary witness. 2) Similarly. when one attorney is disqualified. Think of knowledge as a contaminant. Lawyers in firms are presumed to have contaminated each other with their knowledge. This is called “imputed disqualification” [MR 1. her whole firm is also disqualified. Likewise. (d) The disqualification does not apply if it arises from matters personal to a lawyer. unless the conflict is based on a personal interest of the disqualified lawyer that does not materially limit representation by other lawyers in the firm. a parent often pays for the representation of a minor child accused of a crime. then another member of the firm may represent the client. the key to analyzing whether a firm is disqualified because of a conflict of interest is to determine who knows what. and the government is notified in writing. c) receives none of the fees therefrom. For example. The firm may represent someone with interests adverse to the departed lawyer’s clients. after being so informed. Disqualification (1) Disqualification is necessary where there is either an actual conflict of interest regarding the lawyer’s duty of loyalty to the client or where there is a potential conflict and the client. in the lawyer’s independent judgment in this case. that would be the best result for the child. Comment ].10 (b). (b) The disqualification does not apply if the lawyer can be screened from the representation. when a lawyer leaves a firm. (2) As a general rule.
mPrE rEvIEW OuTLInE actual conflict potential conflict and client declines whole firm if one attorney is disqualified old firm—disqualified if substantially related and remaining lawyer has knowledge new firm—can’t join if lawyer has knowledge of an adversary of new firm’s client Disqualification changing firms former may not represent if personally & substantially participated same matter personally & substantially involved government lawyer current may not participate if same matter negotiate for private employment TEST PREP AND ADMISSIONS 90 .
Lawyer leaves the IRS and is asked by a private law firm to be its corporate tax expert.a client of the lawyer’s former firm. for example. Is Lawyer permitted to represent these clients? (3) Rule 1.11(a) permits a former government lawyer to join a firm which has clients with direct conflicts with the government agency and about which the attorney possesses protected information. and 3) written notice must be promptly given to the appropriate government agency to enable it to ascertain compliance with the Rule. was contaminated with actual knowledge of the former firm’s client that can be used against that client by the new firm’s client. Rule 1. (4) Lawyers currently serving as government attorneys shall not participate in matters in which they were personally and substantially involved while in the private sector.11(a) only prohibits a lawyer from personally representing a client after government service when the lawyer has personally and substantially participated in the matter as a public officer or employee. (c) If the lawyer is switching from one government agency to another government entity. the state agency would be treated like a private firm. HYPOTHETICAL Lawyer went to work for the Internal Revenue Service in its corporate legal department after graduating from law school. After five years. It only prevents a direct nexus between the fee in the tainted case and the compensation of the former government employee. while at the former firm. (a) Personal involvement does not include general supervisory authority over the matter. 2) the lawyer cannot be apportioned any part of the fee in the matter. Nor can they negotiate for private employment with Outline TEST PREP AND ADMISSIONS 91 . If that lawyer. 3) The affected client may waive the disqualification under the conditions stated in Rule 1. the lawyer can’t go to the new firm. Such circumstances are rare because few clients are willing to let their former lawyer now represent their adversary. This part of the Rule does not prevent the lawyer from being paid a salary or partnership share. For example. This notice must be given as soon as practicable but need not be given prematurely so that the client might be injured or the lawyer might lose the job offer.7. (b) Other lawyers in the former government lawyer’s new firm may handle matters the former government lawyer participated in while in public service. a district attorney who supervises an office of 50 lawyers would be disqualified only with respect to those cases the district attorney handled personally. She must not communicate any protected information to the lawyers working on the case. if a lawyer left the Environmental Protection Agency for a similar position in state government. the new entity is treated like a private firm for the purposes of the Rule. The only restrictions are: 1) the former government lawyer must be effectively screened from any participation in the matter. Some of Lawyer’s cases would involve representing clients in cases against the IRS. A lawyer who had such personal involvement will be disqualified even if the new representation is not adverse to the government. The term “matter” does not include making policy or drafting general regulations.
mPrE rEvIEW OuTLInE violation of Rules or law mandatory attorney is impaired attorney fired withdrawal permissive TEST PREP AND ADMISSIONS 92 .
Inc. Lawyer determines that the warrant used to seize the marijuana was improperly issued. he cannot negotiate with National. arbitrators. (5) Former judges. mediators. His loyalty belongs to the client. However. the charges will be dropped. Rule 1.16 deals with two basic types of premature termination of the relationship: (a) Withdrawal is mandated when: 1) continued representation will result in the attorney violating the Rules or other law. HYPOTHETICAL Little Johnnie is busted for marijuana possession. or TEST PREP AND ADMISSIONS 93 . The parents tell Lawyer that they would like to throw a scare into Little Johnnie because he has been on the wrong path lately. 2) the attorney is so ill as to be impaired. and law clerks shall not accept as clients parties who appeared before them unless all involved parties give informed consent. While handling that case. and they ask him to arrange a plea with the prosecutor whereby Little Johnnie will serve one day in prison for the drug possession charge. Jonathan should decline to prosecute Tommy. Lawyer tells the parents that the marijuana can be suppressed and that as a result. His parents hire and pay Lawyer to represent Little Johnnie on the drug possession charge. Jonathan is now a District Attorney and has been assigned to prosecute Tommy for bank fraud. the lawyer must also withdraw when he or she cannot provide competent and diligent representation. In the course of discovery. EXAmPLE: Alan is a District Attorney prosecuting National.anyone in whose matter they are presently personally and substantially involved. and so he must preserve the client’s confidentiality. Nevertheless. mandatory and Permissive Withdrawal (1) A lawyer’s representation of a client ordinarily continues until the completion of the matter. confirmed in writing. a) If continuation of representation will cause the lawyer to violate the Rules of Professional Conduct or other law. the lawyer must withdraw from representation. not the payer. This most commonly occurs when the client insists upon the lawyer’s participation in a course of fraudulent conduct. for a position as its general counsel when he leaves the District Attorney’s office. Inc. EXAmPLE: When Jonathan was an attorney with Hale & Farewell. May Lawyer arrange this plea agreement? Outline e. he represented Tommy. (6) A lawyer may accept fee payments from third parties. or when a conflict of interest arises. Little Johnnie is of the age of majority. The mere suggestion of fraudulent conduct by the client is not sufficient ground for mandatory withdrawal because the lawyer may be able to explain the ethical violation and dissuade the client from this suggested course of conduct. the lawyer’s judgment must remain independent. In such a case. other third-party neutrals.
mPrE rEvIEW OuTLInE violation of Rules or law mandatory attorney is impaired attorney fired client persists in crime or fraud client uses lawyer for crime or fraud action repugnant to lawyer withdrawal permissive client fails to pay unreasonable financial burden on lawyer other good cause no material harm to client TEST PREP AND ADMISSIONS 94 .
(b) Withdrawal is permitted if: 1) the client persists in an action the lawyer reasonably believes is a criminal or fraudulent course of action. “I could not be happier with your representation up to this point. many courts have held that a client is not liable for wrongful termination.If the lawyer’s physical or mental condition materially impairs his or her ability to represent the client. who is also a lawyer. So. Sharon must withdraw. Absent a clear contractual or quasicontractual right to recover. you’re fired. TEST PREP AND ADMISSIONS 95 . The night before closing arguments. the lawyer must withdraw upon discharge by the client. the appointing authority may decide that a successor appointment is unjustified. leaving the client to represent himself or herself. a) Note that this rule does not cover the situation where the lawyer might be personally involved in such activity. subject to liability for payment for the lawyer’s services. in that situation. One day. but when it comes to closing arguments. alcohol.” Lawyer protests that Client is just trying to fire her at this point to avoid paying her a fee. I don’t think you’re as good as my brother.. If the termination results in breach of contract. This ground for withdrawal may include problems with drugs. I think you’ve done a fantastic job. c) If a client discharges appointed counsel. and/or depression. Clara tells Sharon. then the lawyer cannot collect damages until the matter has been successfully concluded. Sharon refuses. The client should be warned of this potential consequence before appointed counsel is discharged. a) The attorney-client relationship is terminable at will by the client with or without cause. then the attorney is entitled to recover damages. A lawyer may be disciplined for refusing to withdraw after discharge by the client. a lady who has trouble getting along with people. however. some states permit contract damages. This is the only way Lawyer will receive a fee. b) Under Rule 1. after Clara thinks Sharon looked at her in a funny way. e. then the lawyer must withdraw. Sharon must withdraw in order to avoid violating both the Rules and criminal law. Must Lawyer withdraw from the representation? EXAmPLE: Sharon represents Clara. but Clara insists. HYPOTHETICAL a) Outline Lawyer has a contingent fee arrangement whereby he gets one-third of any recovery after trial.g. but Client persists in his decision to fire her. If the lawyer and the client entered into a contingent fee agreement. EXAmPLE: Clara orders Sharon to hide evidence from the prosecution. “You’re fired!” Even if she does not want to. for failing to relinquish the file or for continuing to appear at hearings on behalf of the client.16(a)(3). Client calls Lawyer and tells her. while others permit recovery in quantum meruit. 3) the attorney has been fired. withdrawal is mandatory.
mPrE rEvIEW OuTLInE mandatory withdrawal client persists in crime or fraud client was lawyer for crime or fraud action repugnant to lawyer permissive client fails to pay unreasonable financial burden on lawyer other good cause no material harm to client TEST PREP AND ADMISSIONS 96 .
The lawyer need not give notice of withdrawal or termination to the client in such case. or 7) no material harm results to the client.the client has used the lawyer’s services to perpetrate a crime or fraud. the lawyer may retain client papers until the client pays fees owed. or whether a particular settlement offer should be accepted. either by representing himself or by substituting another lawyer in place of the one wishing to withdraw. 6) other good cause for withdrawal exists. is not sufficient grounds for withdrawal when the withdrawal would harm the client. 3) the client insists upon taking action that the lawyer considers repugnant or with which the lawyer fundamentally disagrees. the client’s refusal to accept advice coupled with threats and accusations against the lawyer may render the representation “unreasonably difficult. the lawyer should state merely that professional considerations or an irreconcilable conflict with the client requires termination of employment. (6) The duty of confidentiality continues after withdrawal. and has warned Jonathan she would withdraw if he failed to bring his account current. (2) The client’s refusal to accept the lawyer’s advice on questions such as whether the client should testify at trial. EXAmPLE: Jessica has represented Jonathan throughout his civil case. such as giving the client notice and time to retain other counsel. but must seek permission of the tribunal. If asked by the court to explain a withdrawal based on the client’s insistence on fraudulent conduct. 2) Outline TEST PREP AND ADMISSIONS 97 . (5) Upon terminating representation. However. If applicable law allows it. Trial is a month away. the court should accept such explanations.” (3) Representation may be automatically completed when the agreedupon assistance has been rendered. She has not been paid for months. but must comply with any applicable law regarding notice to a tribunal in which the lawyer may have appeared. 4) the client fails to pay the lawyer for the lawyer’s services and has been given reasonable warning that the lawyer will withdraw unless the obligation is fulfilled. withdrawal requires permission of the court if the client will not voluntarily relieve the lawyer from the representation. She may withdraw. She will be permitted to withdraw only if Jonathan has adequate time to find another lawyer to prepare for and represent him at trial. The lawyer must also return client papers and the unearned parts of prepaid fees. the lawyer must take steps to protect the client’s interests. (4) Once a lawyer is of record in a case before a tribunal. 5) the representation will result in an unreasonable financial burden on the lawyer or has been rendered unreasonably difficult by the client.
mPrE rEvIEW OuTLInE TEST PREP AND ADMISSIONS 98 .
the client must pay a second lawyer to approve it. Many of Annette’s clients have begged her to begin offering this service. possessory. Would Annette be subject to discipline if she puts her plan in action? A) No. In exchange. The IRS has brought an action seeking a refund of tax money saved by Progressive’s earlier claims for credits under the regulations. The fund has sued Progressive. The Rules expressly prohibit membership on a Board when potential conflicts of interest may arise. and while these are not parties of equal bargaining power. alleging that it lied to the public by claiming to be environmentally friendly. One issue is a suit by shareholders of a so-called “green” fund that limits its investments to environmentally friendly companies. and criminal penalties against the tax lawyers who assisted Progressive in filing its tax returns in those years it claimed the credits. D) Yes. Question 4 Annette Attorney wants to branch out into different areas of law. the President of Progressive invited you to become a member of the Board. The Rules expressly prohibit membership on a Board for a member of a law firm representing a corporation. Many of these individuals are poor. B) No. a small but growing company specializing in renewable resources. Her personal injury plaintiff clients often ask her advice regarding taxes. because by training herself at her client’s expense while the client is obtaining a benefit. C) Yes. So Annette hits upon this plan: She will offer a special discount service to low-income clients that will allow her to give advice in new areas while she is learning and acquiring expertise in them. B) No.BaR aPPlIcatIoN QuEstIoNs Question 3 Your firm is one of several firms that serve as outside counsel to Progressive Corp. because the attorney-client relationship is based upon contract. and you should cease serving as a director or acting as the company’s lawyer when a conflict arises. Recently. For most of these clients. Another issue is Progressive’s compliance with tax regulations that give credits to companies that conserve resources. which are entitled to be represented by counsel. she will have the clients agree. you should not serve on the Board if a material risk of conflict exists. However. and environmentally friendly energy. this arrangement does not overbear the client’s will. The Rules permit membership on the Board. You have never been asked to take on such a responsible position outside of your law firm. when it is nothing but an old-fashioned garbage-truck operation that illegally dumps waste into the local river. that no malpractice claim will be brought against her if the low-cost advice turns out to be incorrect. The Rules expressly permit membership on a Board under the “dual capacity” doctrine (lawyer as outside counsel and Board member). May you serve on Progressive’s Board of Directors without being subject to discipline? A) No. The fund claims it has video of Progressive’s “recycling” trucks doing so. however. any advice is better than none at all. and parties of equal bargaining power. security. So your firm’s representation of Progressive bars you from membership on the Board. wills. C) Yes. sustainability. D) Yes.. TEST PREP AND ADMISSIONS Outline 99 . Before you accept. you concern yourself with possible ethical issues. or other pecuniary interest adverse to a client. Your firm isn’t currently handling any litigation for Progressive. because the attorney-client relationship is based upon contract. may agree to this arrangement. landlord-tenant relations. in order to hire one who is not competent. because even though a client is too poor to hire a lawyer who is already competent. and the like. but you have had several important court victories on its behalf. because corporations and other legal entities act through their governing bodies. in writing after full disclosure. Annette has knowingly acquired a prohibited ownership. with written disclosure and consent.
mPrE rEvIEW OuTLInE zealous representation within the law duty of diligence communicate with client client determines objective lawyer decides means Representing the client TEST PREP AND ADMISSIONS 100 .
2(a) specifically allocates the following decisions to the client: 1) whether to settle the matter in a civil case. she instructs Chris to accept the prosecution’s plea offer. no court appeal will be taken. A lawyer must do everything legally and ethically necessary to further the client’s interest. she will not go to jail. the lawyer may not assume consent from silence. however. Against Chris’s advice. Under those circumstances. If they cannot reach an agreement. Her lawyer. (1) A lawyer is to assume the client’s motive is proper. (1) “Informed consent” as used in the Rules means the client’s agreement to a proposed course of conduct after the lawyer has communicated to the client adequate information and explanation about the material risks of. EXAmPLE: Sara is on trial for attempted murder. Outline (3) A client may discharge his lawyer at any time. with the client’s informed consent. Consent may be inferred. 3) whether to waive jury trial. the attorney. can limit the scope of the representation if the limitation is reasonable under the circumstances [MR 1. At the outset of the representation. division of Labor (1) The client decides the objectives of the representation. Where a client and lawyer disagree about this. The obligation to pay for legitimate services rendered remains. She is a single mother and can’t afford to go to jail. from the client’s conduct after he or she has reasonably adequate information about the matter [MR 1. and reasonably available alternatives to. If she pleads. or to plea bargain in a criminal case. feels that she will probably be acquitted if the case goes to trial. (2) Clients generally defer to the lawyer regarding the means to be used for reaching those objectives. The attorney and client agree that the attorney will only attempt to obtain the variance at the local board of zoning appeals and that if she is unsuccessful. 2) the plea to be entered.2(c)]. but informed consent requires some affirmative response from the client. Chris. ABA Rules do not say how this should be resolved. however. for any reason.0(e)]. the lawyer should consult with the client to resolve the disagreement. Zealous representation: scope and Allocation of Authority a. The client’s consent for purposes of this rule need not be confirmed in writing. Since the contractual relationship is consensual. (a) Rule 1. the attorney would not be required to continue the representation through a court appeal if the client changed his mind and requested the attorney to take the appeal. The lawyer may withdraw or the client may fire her. Comment ].0. Sara. unless the client’s motive is solely to harass or maliciously injure another party. the proposed course of conduct [MR 1. c. the client should be apprised of the belief but have the right to veto that decision because of the expense involved. is very nervous about going to trial. EXAmPLE: if a lawyer believes it is beneficial to the case to hire an expert witness. EXAmPLE: A client wishes to obtain a variance from the zoning laws.d. unless the lawyer has clear evidence to the contrary. Even though he does not agree with Sara’s decision. and 4) whether the client will testify. representing the Client 1. b. the client may authorize the lawyer to take specific action(s) on the client’s behalf without TEST PREP AND ADMISSIONS 101 . Chris must accept the plea offer on Sara’s behalf.
mPrE rEvIEW OuTLInE zealous representation discuss proposed conduct within the law Representing the client suggest alternatives test validity of law controlling workload duty of diligence file within statute of limitations avoid procrastination inform client when representation is complete communicate with client TEST PREP AND ADMISSIONS 102 .
Rule 1. c.2(d)]. b. Outline TEST PREP AND ADMISSIONS 103 . nor is she required to use offensive tactics or precluded from treating all persons involved with courtesy and respect. Absent a material change in circumstances and subject to Rule 1. d. A lawyer’s duty to act with reasonable promptness. 3. keeping in mind the potential trauma and expense to the client of an appointment and the particular client interest. does not preclude the lawyer from agreeing to a reasonable request for a postponement that will not prejudice his client. the lawyer must consult with the client regarding the limitations on the lawyer’s conduct. mental illness. the lawyer has an obligation to prevent or rectify a guardian’s misconduct when the lawyer learns that the guardian is acting adversely to the ward’s interest. the lawyer should seek such appointment ab initio. Within the Bounds of the Law a. The lawyer should exercise professional judgment in this decision. The Rules will be modified if the client has diminished capacity to make decisions regarding the representation because of minority. The Comments also indicate that lawyers must especially attend to: (1) controlling workload. if the proper way to test the validity of a law or regulation is to violate that law and then litigate its validity.2. Likewise. the lawyer can suggest appropriate alternatives. she is not bound to press for every advantage that might be realized for a client. However. The client may. Where necessary to assist in the representation. If appointment of a legal representative would be in the client’s best interest.4. meaning. Diminished capacity may prevent a client such as a minor. b. or application of the law [MR 1. then the attorney should consult with the client in the same manner used when consulting with other clients. and will be required to withdraw if the client insists that the lawyer pursue illegal or fraudulent conduct [MR 1.16]. further consultation. or other reason. who has the intellectual ability to make normal client decisions. a lawyer can discuss with a client a proposed course of conduct and tell the client that he believes it is either fraudulent or criminal [MR 1. However. the lawyer may rely on such advance authorization. However. (3) avoiding procrastination. the attorney should look to the guardian to make the decisions normally made by the client. A lawyer may not engage in fraud or criminal conduct in the course of the attorney-client relationship even if the client requests or demands that the attorney do so. MR 1.2. however. revoke such authority at any time. (2) filing within statutes of limitations. scope. If the client is legally but not intellectually disabled.14]. from making legally binding ones.2(d)]. If the client has a legal guardian. or the client may not have the intellectual capacity to make personal decisions. duty of diligence a.3 requires lawyers to be reasonably diligent and prompt. such as the property to be protected. c. or if the lawyer learns or reasonably should know that the client expects assistance that is not permitted by the Rules or other law. the lawyer may participate in that activity in a good-faith effort to determine the validity. e. The Comments state that while a lawyer must act with zeal in advocacy for her client. however. Comment . If the lawyer intends to act contrary to the client’s instructions. the lawyer may allow family members to participate without abrogating the attorney-client privilege [MR 1. and (4) informing clients when representation is complete so that they know the lawyer is no longer overseeing their affairs.
or fail to correct make material facts known at ex parte proceedings duties of lawyer as advocate not conceal.mPrE rEvIEW OuTLInE zealous representation within the law Representing the client duty of diligence keep client informed communicate with client make sure client understands respond to client inquiries non-frivolous basis not knowingly lie. offer false evidence. destroy or falsify evidence not ask a non-client to withhold information expedite litigation not disrupt tribunal or seek to communicate ex parte with judge or jurors TEST PREP AND ADMISSIONS 104 .
If a lawyer’s actions cannot pass this test. or reversal of existing law is not frivolous. Sam. the lawyer comes to reasonably believe that the client has a diminished capacity. Although a lawyer shall not assist a client in committing a fraud. (3) In explaining legal concepts. 2) An action or defense is not frivolous even if the lawyer cannot prove all of the elements necessary to prevail when the action is brought but may only be able to establish the necessary facts TEST PREP AND ADMISSIONS 105 . He asks his lawyer. EXAmPLE: Jacob is on trial for spousal battery. economic. if there is a good-faith argument that existing law will be extended. d. c. (2) The lawyer should tell the client the truth. The Lawyer as an Advocate 1. the lawyer must take steps that are reasonably necessary to protect the interests of the client. or assert or controvert an issue. A good-faith argument for an extension. to ask what is happening with the case. which is a felony. unless there is a non-frivolous basis in law or fact for doing so. Ethical requirements of the Lawyer as an Advocate a. EXAmPLE: Sydney’s divorce has been pending in family court for many months. Sydney calls her lawyer. James should investigate (e. (2) make sure clients understand what the lawyer is doing. the lawyer. modified. (1) When rendering such advice. he may discuss the legal consequences of actions with the client. maintaining a frivolous defense. cannot bring the action or defense. Sam should instruct Jacob that lying on the stand would constitute the crime of perjury. even when the truth is unpleasant. The term “frivolous” is defined both positively and negatively by the Rule and the Comment: 1) An action or defense is not frivolous even though the lawyer is unlikely to prevail because existing law is contrary to the position asserted. (a) A lawyer violates the Rule by bringing a frivolous action. call the court.1]. duty to Avoid frivolous Claims (1) Lawyers shall not bring or defend a proceeding. This rule is designed to allow clients to make informed decisions about their cases. or reversed such that the lawyer would prevail. (4) If. Outline E. A lawyer must render candid advice to a client.g.” as well as a client’s legal concerns [MR 2. during the course of representing the client.. a lawyer should try to use layperson language and avoid technical terms. This is an objective test of the reasonable likelihood of a change in existing law. or continuing with an action once she knows that it is frivolous. unless it would not be prudent to do so. social and political factors. what would happen “hypothetically” if he were to say (untruthfully) on the witness stand that he was out of town when his wife was hurt. even with the best intentions. James. unless the client is legally sophisticated. b. and (3) respond to client inquiries. modification. the lawyer should take into account nonlegal concerns such as “moral. Sam cannot help Jacob by allowing him to so testify.4. communicate with opposing counsel) and promptly return Sydney’s call. Communications with Client a. Rule 1. Lawyers should keep the lines of communication open and must tell clients the consequences of proposed actions.4 indicates that lawyers must: (1) keep clients reasonably informed as to the status of their cases.
mPrE rEvIEW OuTLInE non-frivolous basis not knowingly lie. or fail to correct make material facts known at ex parte proceedings duties of lawyer as advocate not conceal. offer false evidence. destroy or falsify evidence not ask a non-client to withhold information expedite litigation not disrupt tribunal or seek to communicate ex parte with judge or jurors TEST PREP AND ADMISSIONS 106 .
through discovery. Lawyers must, however, inform themselves about the facts of their clients’ cases and the applicable law and determine that they can make good-faith arguments in support of their clients’ positions. An action or defense is not frivolous even if the lawyer, as an objective observer predicting the outcome of the case, believes that he will not win. However, an action is frivolous if the lawyer is unable to either make a good-faith argument on the merits of the action taken or support the action taken by a good-faith argument for an extension, modification, or reversal of existing law. EXAmPLE: David does not like his co-worker, Ryan. David asks his lawyer, Samantha, to bring a sexual harassment claim against Ryan, claiming that Ryan laughed at David in a funny way and David was sexually intimidated. In this jurisdiction, laughing at someone is not considered sexual harassment. Unless Samantha can make a good-faith argument that laughing should be considered sexual harassment, she should not accept the case.
(2) It is not frivolous to require the prosecution to prove the case against the defendant; nor is it frivolous to appeal a conviction. (a) The constitutional right of the accused in a criminal matter to the assistance of counsel in presenting a claim or contention overrides the lawyer’s obligations under Rule 3.1. EXAmPLE: Ella has been convicted of larceny. Her lawyer, Christopher, wants to appeal the conviction. Christopher may argue that Ella was actually sleepwalking (and therefore incapacitated) when she stole a radio if he has a non-frivolous basis in fact for it, even if this defense is not promising. b. duty of Candor (1) Lawyers shall not knowingly lie to a judge regarding facts or law, offer evidence they know is false, or fail to correct a material false statement made by them to the court. (a) A lawyer may not misstate the facts in a cited case, or misstate the legal reasoning, the holdings, or the dicta in a case. Likewise, she may not knowingly cite as authority an overruled case. 1) This rule does not prevent a lawyer from distinguishing an adverse precedent or placing a strained interpretation on the language of the court, as long as it is done honestly. (b) Moreover, lawyers must cite legal authority in the controlling jurisdiction known by them to be directly adverse to the position of the client, even if opposing counsel misses such law. There factors must combine before this affirmative obligation arises:
TEST PREP AND ADMISSIONS
mPrE rEvIEW OuTLInE
non-frivolous basis not knowingly lie, offer false evidence, or fail to correct make material facts known at ex parte proceedings duties of lawyer as advocate not conceal, destroy or falsify evidence not ask a non-client to withhold information expedite litigation not disrupt tribunal or seek to communicate ex parte with judge or jurors
TEST PREP AND ADMISSIONS
The legal authority must be controlling in the jurisdiction. Persuasive cases from other jurisdictions need not be cited unless some choice of law rule in the jurisdiction, such as the Erie Railroad doctrine, makes them controlling precedent. The authority must be directly adverse. A case that is directly adverse on only a closely related issue need not be cited under this rule. Moreover, this rule does not prevent a lawyer from arguing that the adverse precedent cited should be overruled. The duty does not arise until opposing counsel has failed to cite the authority. If a lawyer argues first or submits briefs simultaneously with opposing counsel, she has no obligation at that time to cite the adverse precedent. The duty only arises after she has seen that it has not been cited by opposing counsel. EXAmPLE: Greg brings a case against Sarah for stalking. His lawyer, Fred, writes a brief in support of his motion for preliminary injunction, citing old cases which held that following someone home from work could alone constitute stalking. Fred must also cite a recent precedential case in the jurisdiction which holds that essential elements of stalking are threats and intimidation, even if citing the case would hurt Greg’s chances of prevailing. EXAmPLE: Greg’s stalking case against Sarah is in state M. The night before the hearing on Fred’s motion, Sarah’s lawyer, Nadia, discovers two appellate cases not cited in Fred’s brief. One is from state M with a holding by analogy against Sarah, and the other is from state X with a holding directly against her. Nadia need not present either case to the court: The one from M, while it is from the controlling jurisdiction, is not directly adverse; it is only adverse by analogy. The one from X, while it is directly adverse, is not from the controlling jurisdiction.
Lawyers shall not make a false statement of fact, fail to correct a false statement of fact or law previously made by them to the tribunal, or offer false evidence. Lawyers shall take reasonable remedial measures to correct or prevent a crime or fraud on the tribunal, including disclosure to the tribunal if necessary. (a) In both civil and criminal cases, a lawyer must refuse to put on the stand a witness who the lawyer knows will lie. In civil cases, the lawyer must refuse to put the client on the stand if he knows the client intends to lie. Where the client intends to perjure himself, the lawyer should not assist him in doing so. 1) If a client or witness commits or plans to commit perjury, the lawyer must pursue the following remedial measures: a) first, try to talk the client or witness out of giving the perjured testimony or recanting the testimony; b) next, try to withdraw if that will solve the problem; and c) last, tell the judge. (b) The confidentiality requirements of Rule 1.6 are inapplicable when the crime or the fraud is upon the tribunal itself. 1) If a client plans to commit a fraud in a proceeding, for example, by offering false testimony, the lawyer should confidentially remonstrate with the client to convince him not to do so. 2) If the client persists in his intention and testifies falsely, the lawyer should attempt to persuade the client to rectify the fraud. If the client refuses to rectify it and disclosure of the fraud to the
TEST PREP AND ADMISSIONS
destroy or falsify evidence not ask a non-client to withhold information expedite litigation not disrupt tribunal or seek to communicate ex parte with judge or jurors TEST PREP AND ADMISSIONS 110 . offer false evidence. or fail to correct make material facts known at ex parte proceedings duties of lawyer as advocate not conceal.mPrE rEvIEW OuTLInE non-frivolous basis not knowingly lie.
duty of fairness to Opposing Party and Counsel (1) A lawyer cannot [MR 3. lawyers shall make material facts known to the tribunal. The judge cites the lawyer for contempt of court and throws him in jail. In some jurisdictions. The lawyer then advises Eric that his aunt’s testimony would constitute perjury. (b) Often the trial has progressed to the point where the court will refuse a request to withdraw. Sissy confides to Bully that Rocky did not actually beat her up. (4) In ex parte proceedings.3. Sissy claims that Rocky beat her up. Bully cannot ask her questions on the witness stand about Rocky’s conduct and may not put her on the stand at all if he knows that she is going to perjure herself. however. courts have required counsel to (1) present the accused as a witness. TEST PREP AND ADMISSIONS 111 . “whether or not the facts are adverse” [MR 3. or (2) allow the accused to give a “narrative” statement if the accused so desires. “Would it help my case if my Aunt testified that I was with her at the time of the crime?” The lawyer replies. The judge instructs the lawyer to continue with the case. and he refuses to continue with the trial. but that she wants to collect damages from him because he is very rich and can afford to pay. Outline c. Absent litigation. The lawyer continues to question the witness.4]: (a) falsify evidence. the lawyer announces that he cannot ethically represent Eric. Eric asks his lawyer. At this point. She responds. Comment ]. even if counsel knows that the testimony or statement will be false [MR 3. While preparing for trial. a defendant has a constitutional right to testify on his own behalf. there is nothing to prevent a lawyer from counseling a client to routinely destroy records. At trial. She may reveal only so much confidential information as is necessary to make the request. “Is that true?” Eric responds that it is not. because he was with me at the time of the crime. Was this decision correct? Why? EXAmPLE: Bully is Sissy’s lawyer in a case against Rocky. This rule applies in the context of adversarial litigation. (a) If. the lawyer may seek the judge’s permission to withdraw. or (c) obstruct the other side’s access to evidence.3 (d)]. who again states that she was with Eric at the time of the crime. a lawyer or a client acting under a lawyer’s instructions cannot systematically purge files of all harmful documents even though discovery has not begun.(c) HYPOTHETICAL tribunal by the lawyer is the only way to do so. “No. This obligation to inform the tribunal continues only until the conclusion of the proceeding.” The lawyer stops the trial and explains to the judge in chambers that he wants to withdraw from the case because he believes a witness has perjured herself. the lawyer puts Eric’s aunt on the stand and asks her if she believes Eric committed the crime. a defendant insists on offering false testimony. Once litigation has begun. (3) In criminal matters. despite the lawyer’s remonstration. (b) alter or destroy documents or any other material evidence. then the lawyer must disclose it. in order to avoid assisting the client in committing a fraud on the court. She says that she plans to testify that Rocky broke her nose.
offer false evidence. or fail to correct make material facts known at ex parte proceedings duties of lawyer as advocate not conceal.mPrE rEvIEW OuTLInE non-frivolous basis not knowingly lie. destroy or falsify evidence not ask a non-client to withhold information expedite litigation not disrupt tribunal or seek to communicate ex parte with judge or jurors TEST PREP AND ADMISSIONS 112 .
(2) The right to pretrial discovery and the right to summon witnesses are essential parts of modern litigation. A lawyer does not have the right to frustrate or abuse the discovery process. Rule 3.4(d) forbids a lawyer in pretrial procedure to 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. (a) A lawyer must make a reasonably diligent effort to search for requested documentary evidence and must not frustrate the taking of depositions of witnesses, including clients and employees of clients. (b) In all discovery proceedings, a lawyer has the right to assert evidentiary privileges and to refuse to disclose any work product. However, courts are showing increasingly little tolerance for discovery abuse. An action may be dismissed for failure to respond or for providing evasive, incomplete answers. Such behavior may also result in the imposition of attorney’s fees against a party, or suspension or disbarment of the lawyer. (c) A lawyer may also be disciplined for rude and condescending comments to another party’s counsel in the discovery process. (d) A lawyer cannot make frivolous or unduly burdensome discovery requests as a tactic to interpose delay and additional expense on other parties. (3) A lawyer cannot hide witnesses or alter or interfere with their testimony. (a) A lawyer cannot counsel a witness not to talk to the other side, unless the witness is: 1) a client; 2) a close relative of a client; or 3) an employee or agent of a client. (b) A lawyer and her client ordinarily have no obligation to help an opponent find witnesses. If the other side does find a witness, however, a lawyer cannot hinder the efforts of the opponent to interview the witness, nor obstruct the witness from voluntarily giving relevant information to the opponent except under the above conditions. (4) Rule 3.4(b) forbids a lawyer to falsify evidence, counsel or assist a witness to testify falsely, or offer an inducement to a witness that is prohibited by law. (a) A lawyer may not advise or assist any witness to give false testimony. A lawyer must be aware of this ethical limit when preparing witnesses for a deposition or trial. A lawyer can try to refresh a witness’ memory by referring to the stories of other witnesses and by referring to documentary evidence. The lawyer can help the witness testify coherently and completely, but cannot put words in the witness’ mouth simply because they will advance the case. (b) Rule 3.4(b) prohibits a lawyer from offering inducements to witnesses. A witness may not be paid for telling the truth, since this duty is already imposed by law. Different rules apply to fact witnesses and to expert witnesses. 1) A lawyer may reimburse a fact witness for expenses incurred in testifying, such as travel, hotel, and meal expenses. The lawyer can also reimburse a fact witness for losses incurred because the witness testified, such as lost wages or expenses paid to third parties such as babysitters. 2) In addition to reimbursement, an expert witness can be paid a fee for preparing to testify and for testifying. However, that fee cannot be contingent upon the outcome of the litigation. Likewise, a lawyer cannot agree to pay an expert witness a fee
TEST PREP AND ADMISSIONS
mPrE rEvIEW OuTLInE
non-frivolous basis not knowingly lie, offer false evidence, or fail to correct make material facts known at ex parte proceedings duties of lawyer as advocate not conceal, destroy or falsify evidence not ask a non-client to withhold information expedite litigation not disrupt tribunal or seek to communicate ex parte with judge or jurors
TEST PREP AND ADMISSIONS
which would depend on the testimony that the witness will give. For example, an actuary in a tort case cannot be paid more money if the actuary is willing to testify to higher damages. (5) A lawyer ordinarily must obey the orders and rules of a tribunal, even where such rules are not mandated by other legal or ethical requirements. Rule 3.4(c) requires the lawyer not to knowingly disobey an obligation under the rules of a tribunal except for an open refusal based on an assertion that no valid obligation exists. (a) A lawyer can test the validity of a rule by openly and publicly refusing to obey that rule on the ground that the rule is invalid. This refusal can then be the means for testing the validity of the rule. For example, if a lawyer is ordered to comply with a discovery request which the lawyer believes is invalid on the ground that it is protected work product, the lawyer can refuse to produce the material so that the issue of the scope of the work product rule can be litigated. (6) At trial, a lawyer is forbidden by Rule 3.4(e) to allude to any matter that the lawyer does not reasonably believe is relevant or that will not be supported by admissible evidence; assert personal knowledge of facts in issue except when testifying as a witness; or state a personal opinion 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. (7) A lawyer may not attempt improperly to influence the jury by comments at trial whose prejudicial damage cannot be corrected by objecting to and striking the comments. (8) If a lawyer knows that opposing party is represented by counsel, he must not speak directly to the party. Instead, he must speak to the opposing party’s counsel. duty to Expedite Litigation (1) A lawyer should attempt to expedite litigation consistent with the interests of his client. (a) A lawyer cannot prolong litigation for the sole purpose of frustrating the other party’s attempt to obtain legal redress. Saving the client money by delaying the time when a judgment must be paid is not proper legal justification for using delay tactics such as appealing a case where success on appeal is very unlikely. The standard set by the Rule is whether a competent lawyer acting in good faith would find some substantial purpose in the lawyer’s actions other than delay. duty to maintain the Impartiality of the Tribunal (1) In order to preserve the impartiality of judicial officers and to give all parties equal access to the judicial system, limitations are placed upon lawyers in their contact with judicial officials. Rule 3.5 provides that a lawyer may not: (a) seek to influence a judge, juror, potential juror, or public official by means prohibited by law; 1) A lawyer may make gifts or loans to judges only as permitted by section D(5) of Canon 4 of the Code of Judicial Conduct. 2) If the lawyer is not a person who has appeared or is likely to appear before the judge, the only limitation is that any gift or loan in excess of $150 must be reported by the judge. 3) If a lawyer does practice or is likely to practice before a judge, the lawyer may only accord the judge ordinary social hospitality, such as a wedding or engagement gift. The lawyer may not loan money to the judge. If a judge is a candidate for judicial office, a
TEST PREP AND ADMISSIONS
destroy or falsify evidence not ask a non-client to withhold information expedite litigation not disrupt tribunal or seek to communicate ex parte with judge or jurors TEST PREP AND ADMISSIONS 116 . or fail to correct make material facts known at ex parte proceedings duties of lawyer as advocate not conceal.mPrE rEvIEW OuTLInE non-frivolous basis not knowingly lie. offer false evidence.
or harassment. but may not discuss the case on trial in any way. and employees may not communicate with the jurors or their families in any way. lawyers connected with the case. coercion. if a juror does not understand the evidence presented in a case. 2) A lawyer has a right to investigate potential jurors for possible bias and to learn about their backgrounds. protect the record for subsequent review. 2) the juror has made known to the lawyer a desire not to communicate. might provoke such acts. such as sitting with jurors at a restaurant. and flamboyant acts such as scattering papers all over the floor. even though the trial judge. a lawyer may communicate with jurors and members of the venire during an official proceeding such as the jury selection process. The prohibition extends to socializing. (b) communicate ex parte with such a person during the proceeding unless authorized to do so by law or court order. The investigation must not be vexatious or harassing. or 3) the communication involves misrepresentation. (c) communicate with a juror or prospective juror after discharge of the jury if: 1) the communication is prohibited by law or court order.5 states that the advocate’s function is to present evidence and make arguments so that the cause may be decided according to law. Outline TEST PREP AND ADMISSIONS 117 . the lawyer’s client. A lawyer who does not expect to have a case on trial in a session where those prospective jurors are expected to sit could communicate with the venire as long as the lawyer does not talk about the specifics of a case to be tried. Refraining from abusive or obstreperous conduct is a corollary of the advocate’s right to speak on behalf of litigants. b) Lawyers not connected with the case may communicate with the jury during trial. table pounding. An advocate can present the cause. and persons working for the lawyer are prohibited from communicating with anyone they know to be a member of the venire from which the jury will be chosen.lawyer may contribute funds to the campaign committee but not personally to the judge. and preserve professional integrity by patient firmness no less effectively than by belligerence or theatrics. Of course. but only subject to the following restrictions: a) Except during official proceedings. For example. The Comment to Rule 3. 3) A lawyer is permitted to communicate with the jury during trial. a lawyer not associated with the case may not explain it to the juror. 1) Before trial. a lawyer connected with a case. duress. their clients. the judge’s dereliction is no justification for similar conduct by an advocate. 1) The Rules require that a lawyer preserve the decorum of a tribunal by refraining from yelling. 4) Gifts to court clerks and employees are also prohibited by the Code of Judicial Conduct. members of the juror’s family cannot be contacted. through intemperate conduct. or (d) engage in conduct intended to disrupt a tribunal. A lawyer may stand firm against abuse by a judge but should avoid reciprocation.
mPrE rEvIEW OuTLInE identity or credibility of witnesses criminal guilt or innocence expected testimony impermissible plea confession trial Publicity examination results criminal charges excludable evidence permissible TEST PREP AND ADMISSIONS 118 .
(d) a plea. the lawyer may not make the statement [MR 3.6. If a lawyer is doublecrossed by a reporter who promises to keep the information off the record. (g) the fact that a defendant has been criminally charged. or acts in a way that makes it likely that the information will be disseminated. such a statement should be prefaced by an explanation that the charge is an accusation only and that the defendant is “presumed innocent until and unless proven guilty” [MR 3. the lawyer would not be liable under this Rule. but only to the extent necessary to mitigate the potential prejudice. the same behavior may lead to criminal liability as well as disciplinary sanctions. or candidate for elective or appointive legal office. paragraph ]: TEST PREP AND ADMISSIONS 2) Outline 119 . an attorney may testify as to her typical hourly rate to perform this service even if she acts as an advocate in the matter. adjudicatory officer. such as remarks made to the judge in a hallway. (c) expected testimony. (3) Trial publicity by a lawyer is not allowed concerning: (a) the identity. 3) To protect the integrity of the judiciary.Some courts evaluate disruptive conduct in light of the standards for criminal contempt. public legal official. Trial Publicity (1) The general test is whether the statement has a substantial likelihood of materially prejudicing an adjudicative proceeding. (a) Rule 3. unless: (a) she will testify about an uncontested issue. Rule 8. (f) examination results. (b) a criminal defendant’s guilt or innocence. Courts differ on whether conduct occurring outside the courtroom. (b) her testimony will concern the worth of her services. Lawyers are also urged to defend judges who are unjustly criticized.2 specifically prohibits a lawyer from making a statement she knows is false or making a statement with a reckless disregard as to its truth or falsity about the qualifications or integrity of a judge. or 1) Although it is acceptable for the prosecutor to state a charge. EXCEPTIOn: A lawyer may make a statement that a reasonable lawyer would believe is required to protect his client from undue prejudice caused by recent publicity that was not initiated by either the lawyer or the client. Other rules prevent improper direct contact between a lawyer and adjudicatory officials. character.6(a)].6 is not concerned with statements made at courtroom proceedings. (2) Rule 3. Comment .6 is applicable when a lawyer involved in the case or in a firm involved in the case either talks to the media with the reasonable expectation that the statement will be published. EXAmPLE: If a matter involves a dispute about the cost of preparing a will. can be considered disruptive to the tribunal or subject to criminal contempt penalties. If so. or credibility of witnesses. (e) whether there was a confession. or (c) her disqualification would create substantial hardship for the client. f. (2) A lawyer must not serve as an advocate if she is likely to be a witness.
mPrE rEvIEW OuTLInE identity or credibility of witnesses criminal guilt or innocence expected testimony plea confession examination results impermissible trial Publicity criminal charges excludable evidence claim or defense public record investigation is ongoing involved parties scheduling or result of step in litigation request for help obtaining evidence warning of public danger identity of accused prosecutor information to aid in apprehension time and place of arrest identity of officers and agencies permissible belief of probable cause tell accused of right to counsel not attempt to seek waiver of fundamental rights duties of Prosecutors disclose exculpatory evidence not subpoena lawyers to disclose privileged evidence prevent police from making impermissible statements TEST PREP AND ADMISSIONS 120 .
(d) the involved parties. and 3) there is no other feasible alternative for getting the information. No lawyer associated in a firm or a government agency with a lawyer participating in the investigation or litigation of a matter may make a prohibited statement [MR 3. i. employees. (f) a request for help in obtaining evidence. and others associated with the prosecutor from making statements prohibited by Rule 3. h.EXAmPLE: A prosecutor may state the defendant “allegedly” trespassed on his neighbor’s lawn or that a defendant is charged with criminal trespass. is suing Donald Defendant. A lawyer may respond to recent publicity that may prejudice her client to the extent necessary to mitigate it. residence. He may not state that the defendant “trespassed. (b) tell the accused of his right to counsel. and family status of the accused. (d) disclose all exculpatory evidence. law enforcement personnel. a prosecutor is specifically prohibited from making statements that have a substantial likelihood of heightening public condemnation of the accused. (4) A lawyer may publicly state: (a) a claim or defense. (e) not subpoena lawyers to disclose privileged information about clients unless: 1) the information sought is not protected from disclosure by applicable privilege. (a) A prosecutor must also use reasonable care to prevent investigators. occupation. special duties of Prosecutors (1) Prosecutors must: (a) believe there is probable cause to prosecute. (c) that an investigation is ongoing. (5) A prosecutor may reveal: (a) the name. (e) the scheduling or result of any step in litigation. EXAmPLE: A prosecutor may not tell the press that the defendant has been convicted on similar charges in the past if such information is likely to be excluded at trial.6. (b) if the accused has not been apprehended. 2) the evidence sought is essential to completion of the investigation/ prosecution. information necessary to aid in doing so. (2) When a prosecutor knows of new evidence likely proving that a convicted Outline TEST PREP AND ADMISSIONS 121 .8.6.” (h) potentially excludable evidence [MR 3. (c) the time and place of arrest. Polly Plaintiff. (f) prevent police from making statements that the prosecutor would be prohibited from making under Rule 3. and (g) a warning of danger to the public. and (d) the identity of the investigating and arresting officers or agencies and the length of the investigation. (c) not attempt to seek a waiver of fundamental rights from the accused. (b) matters that are part of the public record. Comment ]. (6) In addition to the general prohibition against extrajudicial statements that have a substantial likelihood of prejudicing an adjudicatory proceeding. EXAmPLE: Adam Attorney may state that his client. g.6 or 3.6(d)].
mPrE rEvIEW OuTLInE duty to organization. not officers or workers Business organization as client misconduct solve inside entity climb the corporate ladder reveal information outside organization TEST PREP AND ADMISSIONS 122 .
ordinarily the Board of Directors. defendant is innocent. (1) If there is no conflict of interest or if there is informed consent where required. the lawyer may take reasonably necessary protective action. if possible. The attorney should not immediately disrupt the organization by disclosing the conduct to third parties (“blow the whistle”). EXAmPLE: Jennifer represents BigCorp. and the client can’t help himself. the attorney should ask the constituent within the organization to reconsider his conduct [MR 1. the prosecutor must undertake further investigation to determine if the defendant was wrongly convicted. the attorney should “climb the corporate ladder” and advise higher authority within the corporation. the prosecutor shall seek to remedy the conviction. but only to the extent necessary to protect the client’s interests. When a lawyer appears in a non-court proceeding. not to any of its officers or workers [MR 1. The Business Organization as Client a. to the defendant. a lawyer may represent supervisors or other employees of the entity. the prosecutor must promptly disclose that evidence to the authorities and. (1) Where the attorney learns of illegal or injurious conduct by a supervisory constituent of the entity. with potentially devastating consequences for the lawyer and parties. the lawyer may reveal information outside the organization to prevent the injury. the client is at risk of harm.13(a)]. the constituent continues in activity that clearly violates the law and will substantially injure the organization.13. the lawyer should be careful to apprise Outline TEST PREP AND ADMISSIONS 123 . a software engineer at BigCorp. (4) If a lawyer is fired by the constituent for following the rule and taking action permitted by it. (2) However. approaches Jennifer and asks her to represent him in an action against his former wife for child custody. (3) If. Jennifer may accept the representation. If this approach fails and the matter is of sufficient seriousness. on various corporate and litigation matters. The attorney-client relationship commences when a potential client reasonably believes it has. or chooses or feels compelled to withdraw from representation. the attorney should proceed as is reasonably necessary in the best interest of the organization. If she is competent to handle such a matter. Comment ]. whether or not the lawyer thinks so. his duty is to the organization itself. When a client’s decision-making capacity is diminished because of minority. mental impairment.6. Jason. but should instead first attempt to assist the client by solving the problem inside the entity. then the lawyer should inform the organization’s highest authority of the lawyer’s discharge or withdrawal. a software manufacturer. if the conviction was obtained in the prosecutor’s jurisdiction. (1) This includes revealing confidential information. (3) When a prosecutor knows of clear and convincing evidence establishing that a defendant in the prosecutor’s jurisdiction was convicted of an offense that the defendant did not commit. including seeking the appointment of a guardian. including its highest authority. When an attorney is representing a business organization. seeking the Appointment of a Guardian When the Client’s Abilities Are Impaired a. In addition. When the lawyer thinks that such a relationship is not possible.2. such as an officer. (2) In some circumstances. b. representation of employees is permitted. or the like. Thus. unexpected conflicts may arise. b. despite the lawyer’s efforts. 3. In some circumstances. j. even beyond the disclosure permitted by Rule 1. the lawyer shall try to maintain a normal clientlawyer relationship with the client. he must disclose for whom he is lobbying.
mPrE rEvIEW OuTLInE
client’s privilege refuse to disclose prevent others from disclosing attorney-client Privilege confidential communications between client or his representatives and lawyer or his representatives to facilitate legal services
TEST PREP AND ADMISSIONS
workers, before they confide in him, that he represents the company, not them individually. (3) The lawyer must state, before a worker reveals information with the reasonable expectation that the lawyer will keep it confidential, that unless the lawyer expressly agrees to represent the worker, the confidentiality rules do not protect their communication. If the lawyer fails to clarify her role, she may find herself in a conflict of interest that requires her to withdraw from representing both the entity and the worker [MR 1.13, Comment ]. Duty of Confidentiality a. Attorney-Client Privilege (1) The attorney-client privilege was codified in Rule 503 of the Proposed Federal Rules of Evidence. Although not enacted as part of the Federal Rules of Evidence, this Proposed Rule has become an authoritative model on the nature and extent of the attorney-client privilege. (2) The client, as the holder of the privilege, has a right: (a) to refuse to disclose, and to prevent any other person from disclosing, 1) The attorney is under an ethical duty not to disclose privileged communications to anyone, and must claim the privilege unless the client waives it. The attorney also has an ethical duty to supervise those in his employ so that they do not disclose confidential communications and claim the privilege if they are compelled to disclose confidential communications by judicial process. (b) confidential, 1) The term “confidential” is defined in terms of intent to disclose. If the communication was not intended to be disclosed to third persons other than those to whom disclosure is made in furtherance of those services, or those reasonably necessary for the transmission of the communication, then it is confidential. If the communication goes astray or is overheard by an eavesdropper, the communication is still confidential because it was not intended to be disclosed. If the communication is knowingly made in the presence of unnecessary third parties, then it was probably not intended to be confidential, and so is not covered by the privilege. 2) If eavesdroppers or persons to whom disclosure has been made in an unauthorized manner attempt to disclose confidential communications, the holder of the privilege has a right to prevent that disclosure by objecting to the question if it is asked in a judicial proceeding, whether or not he is a party. (c) communications, 1) Communications clearly include spoken and written words intending to convey a message. Acts, such as the exhibition of a physical characteristic or a gesture to call the attorney’s attention to some physical object, are also considered communications. The fact of employment, the identity (name, address, and occupation) of the client, the scope of employment, the fee arrangement, and the identity of the lawyer are not within the privilege. 2) However, if a lawyer while working on his client’s case obtains information from witnesses and third parties (other than representatives of the client), those communications are not within the attorney-client privilege, but are protected from pretrial discovery by the opponent.
TEST PREP AND ADMISSIONS
mPrE rEvIEW OuTLInE
client may refuse to disclose prevent others from disclosing attorney-client Privilege confidential communications between client or his representatives and lawyer or his representatives to facilitate legal services
furtherance of crime or fraud claimants through deceased client Exceptions breach of duty documents attested by lawyer joint clients
TEST PREP AND ADMISSIONS
the client’s attorney. This requirement is very important when dealing with communications between parties other than the lawyer and the client.If the client is called to testify. statements made to him that are not related to legal advice or legal services would not be protected by the privilege. (5) Exceptions (a) Even if all other conditions for the privilege exist. his representatives. Examples of conversations that might come within this exception would be conversations held in preparation for litigation. or intercompany memos do not become privileged merely because they are handed over to the lawyer. the power to waive the privilege lies with management and is normally exercised by its officers or directors. or confidant is not within the privilege. 1) Pre-existing written documents such as contracts. (d) between the client. it may be claimed or waived by a guardian or conservator if the client is alive. If the client is a corporation. The party seeking to introduce the evidence must make a showing of crime or fraud before the judge may admit the evidence of the conversation. (e) made for the purpose of facilitating the rendition of professional legal services to the client. However. 2) The communication must be for the purpose of obtaining legal advice or legal services. to or from the client. (4) The lawyer (or his representative) to whom the statement was made is presumed to have authority to claim it on behalf of the client even if his services have been terminated. where the lawyer condones or encourages perjury. Consultation of a lawyer in the role of business advisor. or by his personal representative if he is deceased. or in the criminal situation. but need not produce extrinsic evidence of it. The applicability of the crime/fraud exception should be resolved by an in camera examination of the very documents for which the privilege is claimed. and not the facts or actions that are the subject matter of those communications. Even if the lawyer is consulted in his professional capacity. Written documents are communications within the privilege only when they were written specifically to or from the lawyer. A lawyer has an ethical duty to claim the privilege unless the client has waived it and authorized disclosure. it does not apply under the following conditions: 1) furtherance of Crime or fraud [MR 503(d)(1)] a) If the purpose of the communication to the lawyer is to plan or perpetrate a future crime or fraudulent act. he may only refuse to testify about the communications made to his lawyer. (3) The privilege belongs to the client and no one else. TEST PREP AND ADMISSIONS 3) Outline 127 . if the client is not competent to claim it. and the attorney’s representatives. friend. The lawyer’s statements to the client are also privileged because in the give-and-take of conversation each party adopts the other’s language. leases. Such communications are not privileged unless they are made for the purpose of obtaining legal advice for the client. Discussions of past frauds or crimes held for the purpose of defending an individual are within the privilege. then the privilege will not arise. where the lawyer gives advice on how to cover up the crime.
mPrE rEvIEW OuTLInE furtherance of crime or fraud claimants through deceased client Exceptions breach of duty documents attested by lawyer joint clients TEST PREP AND ADMISSIONS 128 .
2) Outline TEST PREP AND ADMISSIONS 129 . however. is limited to communications necessary to establish the attorney’s claim or defense. Claimants Through the same deceased Client [MR 503(d)(2)] a) Death ordinarily does not terminate the attorney-client privilege. Moreover. statements made among all three are confidential with respect to any matters. or the disclosure is permitted by paragraph (b).” The lawyer must adequately train. except where the two clients are later engaged in litigation against each other. 5) Joint Clients [MR 503(d)(5)] a) If two clients consult a single lawyer on a common legal problem. The privilege is applicable. 4) documents Attested by the Lawyer [MR 503(d)(4)] a) In this instance. so long as it pertains to the representation. The extent of the disclosure. In that case. if a client and his agent make statements in confidence to an attorney. in suits against an estate for breach of contract to make a will or for services rendered. and the client is presumed to have waived any privilege. monitor.b. because all claimants are trying to inherit through the same deceased client. and the attorney is not bound to remain silent. and no person has the right to claim the privilege. since the attorney is often in the best position to know the testator’s wishes. Likewise. he may use privileged conversations to prove his case if he is suing a client for a fee or other breach of duty. there is an overriding public policy reason for this vital evidence to be brought before the trier of fact. and discipline non-lawyer employees to protect client information.6(a). the testimony of the attorney who drew up the will about his conversation with the deceased is not privileged. the lawyer is acting more as a witness than as a lawyer. the disclosure is impliedly authorized in order to carry out the representation. Likewise. they would not be privileged in a later suit between the client and agent. in a will contest. which provides that a lawyer shall not reveal information relating to representation of a client unless the client gives informed consent. (b) Information is also protected if obtained by the lawyer before she represented the client. However. the lawyer may defend himself by revealing previously privileged communications. 3) Breach of duty by the Lawyer or Client [MR 503(d)(3)] a) If a client sues the lawyer for malpractice or for breach of contract. the communications are not considered confidential. Professional Obligation of Confidence (1) The basic professional ethics rule on confidentiality is Rule 1. The inapplicability of the privilege in this instance has also been justified on the ground that the testator did not intend that his instructions concerning his will remain confidential after his death. (a) Confidentiality protections extend to statements made to the lawyer’s employees and assistants. such as a plea made to a lawyer’s secretary that the caller needed to speak to a lawyer because he had “just committed a homicide. The use of outside agencies for processing and storage of client data does not violate client confidentiality so long as similar safeguards are in place. It may be claimed after the death of the client by his personal representative. however.
mPrE rEvIEW OuTLInE prevent reasonably certain death or substantial bodily harm prevent client’s crime or fraud reasonably certain to cause substantial harm to another’s property or financial interests using lawyer’s services. or rectify such harm obtain advice about compliance with Model Rules defend against claims made by client comply with laws represent client acceptable disclosures TEST PREP AND ADMISSIONS 130 .
or in negotiation by making a disclosure that facilitates a satisfactory conclusion. a lawyer reasonably believes that a client will commit a criminal act likely to result in death or substantial bodily harm. Comment 5]. but not the obligation. a lawyer must communicate a great deal of protected information. without making any disclosures to anyone. withdrawal is the lawyer’s only option. or rectify substantial injury to the financial interests or property of another from the client’s commission of a crime or fraud for which the client has used the lawyer’s services. but only those that are necessary to prove the services (c) Outline TEST PREP AND ADMISSIONS 131 . mitigate. the lawyer has the right. b) A lawyer can reveal matters to the opposing counsel and to the court if those revelations will further the client’s case.6(b)]: (a) prevent reasonably certain death or substantial bodily harm. to reveal such information as is necessary to prevent the act [MR 1. a) The lawyer has the right to communicate with other lawyers in the firm and with the firm’s staff unless the client specifically instructs otherwise [MR 1. Comment 5 notes that a lawyer may disclose information in litigation by admitting a fact that cannot properly be disputed. on the basis of protected information. 1) Rule 1. The lawyer. for which the client has used or is using the lawyer’s services. but only after consultation.6 permits an attorney to disclose confidences to obtain her fee. 1) Since the rules of confidentiality are for the client’s benefit. Nor does the Rule permit disclosure merely to rectify the consequences of the client’s past acts. 1) When. For example. the client can consent to disclosure.6. they are implied in the client’s authorization for the lawyer to carry out the representation for the benefit of the client.A lawyer can reveal any information to which the client gives his informed consent or if disclosure is impliedly authorized in order to carry out the representation. However. 2) In order to represent a client effectively. the client could ask the lawyer to represent him and to handle the entire matter personally. (c) prevent. and disclosures to opponents that will help more than harm the client’s case. The lawyer need not specifically seek the client’s consent to each of these types of disclosures. If the lawyer’s services were used in some way in the commission of the act. (d) obtain legal advice about compliance with the MRs. (b) prevent the client from committing a crime or fraud that is reasonably certain to result in substantial injury to the financial interests or property of another. there may be circumstances where a lawyer cannot even reveal information to persons in the firm. (e) establish a claim against a client and to defend themselves against claims made by a client or based on the client’s conduct. if a prominent client was arrested for possession of a small amount of cocaine. Common examples are disclosures to others with whom the lawyer is working on the case. 2) This exception does not cover past crimes or harms committed without the assistance or complicity of the lawyer.6(b)(1)]. under these circumstances. would be required to do even the photocopying and legal research. (2) Lawyers may reveal confidential information to [MR 1.
or rectify such harm obtain advice about compliance with Model Rules defend against claims made by client comply with laws represent client acceptable disclosures TEST PREP AND ADMISSIONS 132 .mPrE rEvIEW OuTLInE prevent reasonably certain death or substantial bodily harm prevent client’s crime or fraud reasonably certain to cause substantial harm to another’s property or financial interests using lawyer’s services.
(5) This rule is one of the MRs compromises between the competing values of truth and loyalty. (g) represent the client. 1) Comment  states that disclosure of confidential information when discussing the case with firm members or when engaging in authorized negotiations is permitted. to reveal Elaine’s whereabouts if known to Karen. When a lawyer’s services have been used to commit a crime or fraud that hurt or will hurt the financial interests of another. (3) Lawyers cannot help clients defraud a tribunal or commit a crime. Olivia admits to Gary. The court may require Karen. her lawyer. they may disaffirm any opinion or document that they produced based on fraudulent information. EXAmPLE: Evan. Elaine’s attorney. (a) For example. In addition. not mandatory. Gary cannot reveal the fact that Olivia has killed three people but may reveal that she plans to kill in the future. Moreover. assisting the lawyer in doing his job. that she did kill the patients. when a client tells his lawyer he plans to kill someone. the lawyer may reveal it to mitigate or prevent the injury. Evan may share pertinent confidential information about the client with Larry. But they are permitted to obey a court order to disclose confidential information. wants advice from Larry. She may also reveal those confidences necessary to defend herself against a claim by the client of complicity in the client’s misconduct or of other misconduct by the lawyer involving the representation [Comment ]. the confidentiality protection of Rule 1. lawyers must withdraw if their services are to be used to further a crime or fraud. Furthermore. though he is not required to do so.6 is broader: Unless the information falls within one of the exceptions. even when such obedience compromises the privilege. even when clients forewarn them of the intent to commit a violent crime.(f) rendered [Comment ]. The rule uses permissive. (6) Although the attorney-client evidentiary privilege only applies when the attorney is called to be a witness or produce evidence. Unless the client has instructed Evan to confine the information to specified lawyers in the firm. a partner in his firm who handles litigation matters. Some confidences cannot be revealed by the lawyer under any circumstances. lawyers “may” reveal these things. Other confidences may be revealed when the client’s interests give way to the larger needs of society. and 1) Attorneys must invoke the attorney-client privilege to protect the client in court. comply with a court order or the law. which promotes candor between the lawyer and the client. the rule prohibits disclosing any information “relating to Outline TEST PREP AND ADMISSIONS 133 . unless appellate review of the disclosure order is sought [Comment ]. language. EXAmPLE: Olivia is on trial for murdering three patients at the nursing home where she works. about a corporate client’s potential exposure to litigation. EXAmPLE: Elaine has jumped bail and left the court’s jurisdiction. to the extent reasonably necessary. a corporate attorney. (4) This rule does not require lawyers to reveal confidential information. the lawyer may reveal it to prevent the harm. she tells Gary that she plans to kill another patient as soon as he is moved onto her floor.
mPrE rEvIEW OuTLInE must not lie need not volunteer unless client has committed a crime not communicate with represented parties without their counsel be sure unrepresented parties know lawyer is not neutral must not harass or embarrass inform of misdirected documents dealings with third Parties TEST PREP AND ADMISSIONS 134 .
and Grace does not ask.2(d) that a lawyer is prohibited from knowingly counseling or assisting a client in a crime or fraud [Comment ].1(b) addresses the situation where a client’s crime or fraud takes the form of a lie or misrepresentation.6. (8) Pre-retention communications by a prospective client to a lawyer for the purpose of retaining the lawyer are protected by attorney-client privilege and Rule 1. or when the information has become generally known. (11) If protected information from a prior representation would be helpful to a lawyer in representing a new client. lawyers must not lie [MR 4. such information is no longer protected by either the evidentiary privilege or the professional duty of confidentiality. EXAmPLE: Evan Attorney is representing BigCorp. (3) Rule 4. (9) The obligation survives the client-lawyer relationship.6 just as though the person communicating was already a client. (4) A lawyer generally has no obligation to inform a third party of relevant facts. in other words. The executor or administrator possesses the consent and waiver rights formerly vested in the client. no duty to volunteer information. he says that he represents BigCorp. When Grace asks him who he is.9(c) provides that a lawyer who has formerly represented a client in a matter or whose present or former firm has formerly represented a client in a matter shall not thereafter: (a) use information relating to the representation to the disadvantage of the former client except as these Rules would permit or require with respect to a client. a person who interviews a lawyer for the purpose of representation is considered to be a prospective client. a lawyer must disclose facts necessary to avoid helping a client commit a crime or fraud unless disclosure is prohibited by Rule 1. a lawyer can avoid assisting a client’s crime or fraud by withdrawing from the representation. the representation. (2) Ordinarily. (7) Even if he does not ultimately retain the lawyer. document.1 (a)]. It states a specific application of the principle in Rule 1. (1) Unless a client’s crime or fraud is involved. Sometimes the lawyer must give notice of withdrawal to third parties and disaffirm an opinion. Transactions with Persons Other Than Clients—Treatment of Third Parties a. He has a conversation with one of Agnes’s neighbors. Grace.5. but does not volunteer that Agnes has sued BigCorp. (10) An attorney cannot use or reveal protected information to the disadvantage of a former client unless that information has become generally known (use or disclosure is permitted by the exceptions in Rule 1. the lawyer will not be able to represent that new client without first obtaining the consent of the former client to use the protected information. When dealing with third parties in their representation of clients. the lawyer need not volunteer information.3). or (b) reveal information relating to the representation except as these Rules would permit or require with respect to a client. His behavior is proper. Rule 1. In this situation. a lawyer Outline TEST PREP AND ADMISSIONS 135 .” regardless of its source. Regardless of how the information became generally known. Note that Rule 1. which is being sued by Agnes for environmental pollution.6 does not prohibit this disclosure. (12) The obligation also survives the death of the client.6 discussed below and in cases of client fraud or perjury in Rule 3. However. or affirmation to avoid being deemed to have assisted the client’s crime or fraud.
mPrE rEvIEW OuTLInE must not lie need not volunteer unless client has committed a crime not communicate with represented parties without their counsel be sure unrepresented parties know lawyer is not neutral must not harass or embarrass inform of misdirected documents dealings with third Parties TEST PREP AND ADMISSIONS 136 .
(1) In the criminal context. For example.1 significantly different from Rule 3. Outline TEST PREP AND ADMISSIONS 137 . directs. This interpretation of Rule 4. the lawyer must do so if permitted by Rule 1. Inserting substantive or onerous provisions into documents without calling them to opposing counsel’s attention may also subject a lawyer to discipline. Comment ].6 would prevent disclosure. Under Rule 4. Furthermore. Defense counsel for another defendant may not contact Scott without his lawyer’s permission.1(a). as part of a noncustodial investigation before Miranda rights attach. or regularly consults with the organization’s lawyer concerning the matter or has authority to obligate the organization with respect to the matter. b. if the information the lawyer would have to reveal is “protected information.1. The concern for protection of confidentiality makes Rule 4. the permission of that attorney is required before a lawyer can communicate with that person.2. if a lawyer’s silence incorporates or affirms a misstatement of material fact made by another person that the lawyer knows is false. information relating to the representation of the client.may have a duty to disclose relevant information when asked explicitly about it by the third person where a failure to answer would have the same effect as a deliberately misleading answer. Lawyers shall not communicate with parties they know to be represented absent their lawyer’s consent [MR 4. courts have generally held that communications with represented criminal suspects by government attorneys before the initiation of formal judicial proceedings. a lawyer should not give legal advice to an unrepresented person whose interests conflict with her client’s. and for failure to disclose the client’s death before accepting a proposed settlement.3]. overriding the duty of confidentiality if necessary.16. or whose act or omission in connection with the matter may be imputed to the organization for purposes of civil or criminal liability. EXAmPLE: Scott is a witness in a criminal trial. are not subject to the anti-contact rule.” that is. The ABA Committee on Ethics and Professional Responsibility rejected the view that the Rule does not apply until Sixth Amendment rights attach. If the lawyer can avoid assisting a client’s crime or fraud only by disclosing protected information.2] or authorization by law or court order. If a constituent of the organization has a personal attorney. (2) If the opposing party is an organization. lawyers have been disciplined for failure to disclose the existence of insurance policies in negotiating settlement. but the permission of the organization’s attorney is not required for communication with a former constituent [MR 4. When dealing with unrepresented persons. other than to secure counsel [MR 4. However.1(a) prevents overreaching in negotiating deals and settlements. then the lawyer must withdraw from representation pursuant to Rule 1. the Rule prohibits communications with a “constituent” of the organization who supervises. d. (a) Furthermore. Although he has been granted immunity. The lawyer may need to notify the third person of the withdrawal and disaffirm any opinion or other written work product previously rendered. then Rule 1.3(a). he was also involved in the crime in question and is represented by counsel. c. If the client refuses. the lawyer shall not state that she is disinterested and shall affirmatively correct any misunderstanding these persons may have about the lawyer’s opposing or potentially opposing role.6. then he violates Rule 4. the lawyer must urge the client to either reveal the misrepresentation himself or permit the lawyer to reveal it. which requires the lawyer to correct misapprehensions of the tribunal resulting from client fraud.
mPrE rEvIEW OuTLInE must not lie need not volunteer unless client has committed a crime not communicate with represented parties without their counsel be sure unrepresented parties know lawyer is not neutral must not harass or embarrass inform of misdirected documents dealings with third Parties TEST PREP AND ADMISSIONS 138 .
A lawyer may refer a client to other types of professionals. and political factors that may be relevant to the client’s situation [MR 2.3 sets out the following guidelines on the lawyer’s role in preparing evaluations for use by third persons: a. 2. ethical. This may mean discussing a problem that a client is unwilling to confront. the lawyer should not warn clients that the matter will be difficult to handle merely to negotiate the payment of a higher fee. e. and (b) whether to return a wrongfully sent document is a matter reserved for the lawyer’s own professional judgment. b. when the lawyer knows that a proposed course of action is likely to result in adverse consequences to the client. Thus. even on matters beyond the scope of his representation. the lawyer’s function is to give honest advice. Evaluator.4 (a)]. The Lawyer as an Advisor. Since the client is in control of the relationship. the lawyer should advise the client to seek such other advice. technical opinion limited to the law. the lawyer should not ordinarily limit his or her advice to the legal consequences. or obtain evidence in ways that violate their rights [MR 4. When a lawyer is an advisor to a client regarding a future course of action. including e-mails. not to put the client’s actions in the best possible light. lawyer-client sexual relationships have been found to violate this rule where no existing rule specifically prohibited such relationships. Even where there is no technical conflict of interest. financial. In representing a client. relating to the representation of their clients and know or should know that the documents were inadvertently sent to them should promptly inform the sender [MR 4. A lawyer may be disciplined under this Rule for offering highly inflated claims as to the possible results he can obtain for the client. At times. However.1]. Conversely. economic. however. d. where it is appropriate to do so. such as therapists or social workers. 3. While the lawyer can present that advice in the most palatable manner to the client. as opposed to an advocate dealing with the client’s past actions. The Rules encourage a lawyer to volunteer advice. a lawyer will be asked by a client experienced in legal matters to advise only on the legal consequences of a particular course of action. Lawyers who receive documents.4 (b)]. but should consider the moral. c. a. the lawyer must follow that request and render a narrow. it must be honest and candid. Outline TEST PREP AND ADMISSIONS 139 . a lawyer may refer not only to law but also to other considerations such as moral. a lawyer might be forced to advise a client that her business is hopelessly insolvent and that she should file for protection of the bankruptcy court. practical. and political consequences of a course of action. or Third-Party neutral 1. This rule may be implicated by the types of situations that invoke the conflict of interest rules. For example. The lawyer often gives the final recommendation based on the conflicting advice of other professionals. If the advice of other professionals is required. Rule 2. f.e. One of a lawyer’s duties in advising a client is to give a realistic and reasonable assessment of the likely results of the representation. (1) Comment  states: (a) whether the receipt of the document would waive its privileged status is beyond the scope of the MRs. social. In rendering advice. A lawyer may provide an evaluation of a matter affecting a client for the use of someone other than the client if the lawyer reasonably believes that making the evaluation is compatible with other aspects of the lawyer’s relationship with the client. the lawyer’s independent professional judgment may be compromised by situations that upset the lawyer’s emotional detachment and objectivity needed on behalf of the client. f. Lawyers must not harass or embarrass third parties. a lawyer shall exercise independent professional judgment and render candid advice.
mPrE rEvIEW OuTLInE disclose representative capacity lawyers appearing Before legislative Bodies candor regarding law and fact fairness regarding access to evidence obey rules of tribunal impartiality and decorum TEST PREP AND ADMISSIONS 140 .
if a lawyer is defending a client accused of serious misconduct. If a lawyer puts a layperson in a position where the layperson ends up rendering legal judgments. Evaluations are confidential except as otherwise authorized. the obligation to obey the rules of the tribunal imposed by Rule 3.4(a) and 3. explain the difference between an advocate and a neutral [MR 2.6.1 through 4. Lawyers who appear before those bodies in a representative capacity are required to disclose that fact to the tribunal.6.5. b. and municipal councils that perform legislative. administrative agencies. In many cases. however. A lawyer making an evaluation for a third party does not establish an attorneyclient relationship with that party. 4. information relating to the evaluation is otherwise protected by Rule 1. it is reasonably likely that providing the evaluation will affect the client’s interests materially and adversely. and the lawyer is impliedly authorized to disclose information as necessary to carry out the representation. However. The evaluation for the benefit of a third party will undoubtedly result in the disclosure of protected information. (1) If the evaluation will be detrimental to the client. 6. and the rules designed to secure the impartiality and decorum of the tribunal imposed by Rule 3.9 also imposes upon lawyers appearing in nonadjudicative proceedings the same obligations of candor as to both law and fact imposed by Rule 3. A lawyer may make an evaluation of a matter affecting the client for the use of a third person. A lawyer should advise the client if the rendering of such an evaluation will create a duty for the lawyer to a third party or a duty to disseminate the evaluation’s findings. 5. it is unlikely that the lawyer could make a contemporaneous evaluation of the case for a third party.3(a). the lawyer shall not provide the evaluation unless the client gives informed consent.4]. the obligation to play fairly with respect to access to evidence imposed by Rules 3. as permitted by Rule 1. 2. policy. Where. the lawyer must first obtain the client’s consent after the client has been adequately informed concerning the important possible effects on the client’s interests. Rule 3. G. H. maintaining the Integrity of the Legal Profession 1. 7. the lawyer must obtain the client’s permission for the evaluation. the Rules pertaining to dealings with persons other than clients (Rules 4. 3. A lawyer is not permitted to make any such evaluation if it is incompatible with other obligations to the client. Except as disclosure is authorized in connection with a report of an evaluation. (1) It is permissible to assist a non-lawyer in engaging in the practice of law when the non-lawyer wants to represent himself in court.4(b). That disclosure is limited to the information required by the report to the third person. Lawyers regularly appear before governmental bodies such as legislative committees. Common examples are reports about a client’s title to property or the propriety of a securities offering. For example.When the lawyer knows or reasonably should know that the evaluation is likely to affect the client’s interests materially and adversely.4(c). A lawyer may serve as a third-party neutral to help non-clients resolve their disputes. c. the lawyer must clearly inform the parties to such an intermediation that he does not represent them and. When a lawyer engages in bilateral negotiations with a government agency. and is acting in an adversarial role to exonerate the client. but owes that party the duty of truthfulness.4) are substituted for the Rule governing appearances before a tribunal. Avoiding the unauthorized Practice of Law a. Appearances Before Legislative Bodies 1. providing an evaluation to a third party poses no significant risk to the client. and rule-making functions. then the lawyer is subject to discipline for assisting in the unauthorized practice of law. Outline TEST PREP AND ADMISSIONS 141 . a. if necessary.
mPrE rEvIEW OuTLInE fee sharing partnership to practice law impermissible allow non-lawyer to control lawyer’s judgment allow non-lawyer to own interest in law firm Non-lawyers salary retirement plans/estates of retired lawyers permissible retirement/compensation plans to employees legal fees to non-profits TEST PREP AND ADMISSIONS 142 .
Kate handles all of the closings for the homes that Bonnie and Sally sell. c. However. and (d) share court-awarded legal fees with non-profit organizations that employed. A lawyer may delegate tasks to those who are non-lawyers without being in violation of the Rules so long as the lawyer maintains a direct relationship with the client. TEST PREP AND ADMISSIONS Outline e. the lawyer can be held responsible for negligence or malfeasance of non-lawyer employees that the lawyer knew or should have known about and guarded against. Comment ]. the nature and extent of activities in which a suspended or disbarred lawyer may engage. law clerks. however. and examine court documents. depends on state law. a lawyer may refer clients to a non-lawyer professional in return for the non-lawyer referring clients to the lawyer under certain circumstances [MR 7. or (c) practice in a professional corporation if a non-lawyer owns an interest. except that they may: (a) pay non-lawyers a salary. EXAmPLE: Kate. Kate is a lawyer. A law school graduate who has not passed the bar or been admitted to practice in any jurisdiction. 143 . Bonnie. or has the right to control the lawyer’s judgment. Associating with non-Lawyers (1) Lawyers may not: (a) form a partnership with non-lawyers if any activity of the partnership is law practice. f. and Sally work together. and that an insurance adjuster can negotiate a settlement if the attorney received the case before a final settlement was approved. that a layperson can conduct an initial interview with a client so long as no service is given and the layperson reports to a lawyer. or pay them to represent another to control their judgment. (2) However. and retains complete professional responsibility for the work. is a director or officer. A lawyer may work as a paralegal or law clerk during such periods. supervises the delegated work. make collections. retained. however. However. employ them. multi-Jurisdictional Practice (1) Each state has adopted rules permitting limited practice by law students supervised by a licensed lawyer. and secretaries permits the efficient delivery of legal services. or recommended the lawyer [MR 5. Kate may not give Bonnie and Sally a portion of the fees she earns for performing legal work. fee-splitting (1) Lawyers shall not share legal fees with non-lawyers. a lawyer may violate this rule by continuing to practice while suspended for non-payment of bar dues or non-compliance with continuing legal education requirements. may be guilty of the unauthorized practice of law by giving legal advice or holding himself out as a member of the bar. a layperson cannot appear in court for a lawyer. d.b. (b) pay into the retirement plans of retired lawyers and estates of former partners. Appropriate delegation of tasks to paralegals. and Bonnie and Sally are real estate agents. even if the fees are earned from homes that Bonnie and Sally sold or from clients Bonnie and Sally referred to Kate. It has been held that law student employees can interview witnesses. Likewise.2. (c) include non-lawyer employees in retirement or compensation plans. (b) allow third parties who recommend them.4].
mPrE rEvIEW OuTLInE in association with admitted lawyer Permissible Practice in Jurisdictions where Not admitted services related to pending arbitration. or adR in the home jurisdiction services arising out of practice in the home jurisdiction TEST PREP AND ADMISSIONS 144 . mediation.
foreign. The broad exception above is designed to permit lawyers not locally admitted to assist a client when the client’s activities or the legal issues involve multiple jurisdictions. or international law [Comment ]. and others who are employed to render legal services to the employer may do so in other jurisdictions. government lawyers.5(b) provides that a lawyer who is not admitted to practice in a jurisdiction shall not: (a) except as authorized by these Rules or other law. establish an office or other systematic and continuous presence in the jurisdiction for the practice of law. The lawyer’s ability to represent the employer outside the jurisdiction in which the lawyer is licensed serves the interests of the employer and does not create a risk to the employer and others because the employer is well situated to assess the lawyer’s qualifications and quality of work [Comment ]. nationally uniform. (3) Rule 5. or hold themselves out as licensed where they are not admitted. However. Cecilia may not do so.(2) Lawyers must obey the laws of the jurisdiction in which they practice. Lawyers cannot practice. (6) Lawyers not admitted locally may practice if a federal or local law authorizes it. or (d) where the services otherwise arise out of or are related to the lawyer’s practice in her home jurisdiction. the fact that a matter is “related to” the lawyer’s practice does not alone permit her to go to court in a jurisdiction where she is not admitted. mediation. (4) Lawyers may provide temporary services in a jurisdiction where they are not admitted: (a) in association with a lawyer actively participating in the matter who is admitted there. such as when the officers of a multinational corporation survey potential business sites and seek the services of their lawyer in assessing the relative merits of each. EXAmPLE: Gretchen approaches her friend. TEST PREP AND ADMISSIONS 145 . (5) In-house corporate lawyers. unless Cecilia associates with a lawyer admitted in Gulf or obtains admission pro hac vice for this case. (c) where the services are related to a pending or potential arbitration. if associated with a lawyer admitted there or authorized by the court. (b) where the services are related to a pending or potential proceeding in court there or elsewhere. or the services draw on the lawyer’s expertise developed through regular practice involving a particular body of federal. (7) Lawyers are always subject to the rules of the jurisdiction in which they are practicing. or other alternative dispute resolution (ADR) proceeding there or elsewhere and related to the lawyer’s practice in his home jurisdiction. As none of the exceptional circumstances stated above exist. an attorney admitted in the state of Camden. Cecilia. Outline NoTE These exceptions are subject to any court rule or other law that requires a lawyer who is not admitted to practice locally to obtain admission pro hac vice before appearing before a tribunal or administrative agency [Comment ]. and asks Cecilia to file a lawsuit for her in the state of Gulf. Cecilia is not admitted in Gulf. regardless of whether they are admitted there. open an office or establish a continuous presence. or (b) hold out to the public or otherwise represent that the lawyer is admitted to practice law in the jurisdiction.
mPrE rEvIEW OuTLInE substantial question as to honesty or fitness duty to Report Misconduct actual knowledge of violation TEST PREP AND ADMISSIONS 146 .
and other rehabilitation. The lawyer must know.6. and should not unjustly criticize them [MR 8.3]. A lawyer is also not required to disclose any confidential information learned from a lawyer or judge while participating in an approved lawyers’ or judges’ assistance program (e. (2) The Rule specifically phrases the duty as one involving knowledge of another lawyer’s conduct. Commenting on Judges and Judicial Candidates (1) Lawyers can support or oppose a candidate for judicial office. a junior lawyer in a firm must report a senior lawyer’s violation of which the junior lawyer has unprivileged knowledge. or fitness for office or practice. (6) A lawyer cannot report information protected by the confidentiality requirements of Rule 1.g. judicial candidates. employs Amanda.3(b) requires a lawyer to report a judge’s violation of the applicable rules of judicial conduct that raises a substantial question as to the judge’s fitness for office. but the ABA Committee on Ethics and Professional Responsibility has so interpreted them. Spencer lets Amanda interview clients and give legal advice and judgments during the course of these interviews. h. a violation occurred.1) to report oneself. but should encourage a client to consent to disclosure where prosecution would not substantially prejudice a client’s interests. but cannot make knowingly false statements or those with reckless disregard for the truth about judges.g. drug. gambling. not merely believe. For example. but mere suspicion does not give rise to a reporting obligation. is not required. trustworthiness. Comment ]. a lawyer who takes over a case for another lawyer must report ethics violations discovered in the files.2. (a) The violations must raise a substantial question as to honesty. (3) The Rules do not expressly prohibit a lawyer from threatening to file disciplinary action against opposing counsel in order to induce a settlement or gain a tactical advantage in a case. a non-lawyer. Note. a substance abuse program). there is no duty under this Rule (apart from the process of admission to the bar under Rule 8. though.. Thus. (4) Rule 8. Most ethics opinions on the certainty of knowledge required indicate that absolute certainty is not necessary.3 does not require a lawyer to report every technical offense committed by another lawyer. (b) Disclosure of information learned during an approved lawyers’ assistance program. The lawyer has discretion to determine if the offense is serious enough to require compliance with the Rule. Outline HYPOTHETICAL Spencer. such as those for alcohol. (5) Rule 8. The obligation to report another lawyer exists regardless of any supervisory authority over the offending lawyer. or public legal officers. reporting Professional misconduct (1) Lawyers who know of serious ethical violations by judges and other lawyers must tell the appropriate authority [MR 8. a lawyer. that this rule would still require a lawyer to disclose another lawyer’s declared intent to perform some illegal conduct in the future. Is Spencer subject to discipline? TEST PREP AND ADMISSIONS 147 .
mPrE rEvIEW OuTLInE business relationship that restricts rights after termination impermissible settlement conditioned on restricting right to practice noncompetition agreements Restrictions on Right to Practice in connection with retirement benefits permissible incident to the sale of a law practice TEST PREP AND ADMISSIONS 148 .
and (b) incident to the sale of a law practice. (2) “Law-related services” include providing title insurance. legislative lobbying. (a) Noncompetition agreements between lawyers as an incident of an employment agreement are prohibited by Rule 5. violates this Rule. is prohibited. Any such agreement. or to clients of the firm.” Nevertheless.” These legal duties and causes of action are defined in cases. even if limited to a short time. financial planning. medical. j. Although the ethical standards for lawyers may be considered in malpractice suits brought by clients or other intended beneficiaries of the lawyer-client relationship. The Scope section specifically states that a violation of the Rules “may be evidence of a breach of the applicable standard of conduct. The Rules now recognize. however. Where the lawyer chooses not to disclose knowledge that the client may intend death or serious bodily harm to another (which is not required by the Model Rules). the majority judicial view that a violation of an ethical rule can be evidence of negligence under tort law principles. Violation of a Rule does not automatically give rise to a cause of action against a lawyer. Civil Liability a. or environmental consulting [Comment ]. and that company desires to limit future litigation against it by restricting the right of the plaintiff’s lawyer to pursue additional cases [MR 5. they do not create private rights of action and may not be used in any manner in suits brought by third parties alleging to have been harmed by the representation. (b) A lawyer is not permitted to agree not to represent other persons as part of a settlement of a claim.6(b)]. nor does it “create any presumption in such a case that a legal duty has been breached. such as misrepresentation or fraud. Law-related services (1) Some lawyers provide non-legal services to legal clients and non-clients. (3) The MRPC applies to the lawyer in his provision of such services. statutes. restrictions are permitted: (a) in connection with receiving retirement benefits. and regulations of the various jurisdictions. to a particular locality. since the Rules establish a standard of conduct for lawyers. trust services. psychological counseling. on a lawyer’s violation of an ethical rule. c. Plaintiffs generally cannot base a cause of action. (2) However.i. tax preparation. unless the services are distinct from the lawyer’s legal services. 2. The only exception is that parties can agree that retirement benefits will be forfeited if an attorney enters into competition after leaving the former firm’s employment. accounting. restrictions on the right to Practice (1) Lawyers cannot agree to participate in any business relationship that restricts their right to practice after termination of the relationship. The lawyer must take measures to assure that anyone obtaining solely non-legal law-related services knows that no attorney-client relationship exists. and patent. even if the client would receive a substantially larger settlement offer because of this agreement. the section states that the Rules are not designed to be a basis for civil liability or warrant other nondisciplinary remedies. real estate counseling. as well as the employee who agrees to it. b.6(a). This problem arises most commonly where a lawyer has achieved a substantial expertise in product liability litigation against a particular company. social work. economic analysis. The employer or partner imposing the restriction. nor can a client settlement be conditioned on restricting the lawyer’s right to practice. This is one case where the lawyer’s obligation to potential clients takes precedence over an obligation to the current client. Outline TEST PREP AND ADMISSIONS 149 .
mPrE rEvIEW OuTLInE representation would violate MRPc appointed lawyer should Represent the client unless unreasonable financial burden client or cause repugnant TEST PREP AND ADMISSIONS 150 .
or (3) the client or cause is so repugnant to him that accepting it would impair the client-lawyer relationship or his representation [MR 6. or charitable. the lawyer will not be held liable on that basis alone for injuries to a third person by the client. Conversely.1. Comment ].3. (c) The remainder of the lawyer’s pro bono hours can be accorded to: 1) discounted legal services to disadvantaged individuals (i.g. The rule is hortatory. those above poverty level).. Bettering the Law a. he should not participate in a decision of the organization if doing so would prejudice his client or a client of the organization whose interests are adverse to his client’s [MR 6.3]. On the other hand. Appointed lawyers have the same duties to clients as those chosen and retained by the client. religious. the legal system. as well as the traditional legal representation of individuals and groups. 2) free or discounted legal services to individuals or disadvantaged organizations seeking to further civil rights or liberties (e. Legal services include legislative lobbying and the like. because this Rule establishes only an aspirational standard.1(a)]. or the legal profession. A lawyer may serve as an officer or member of a legal services organization. such as for the maintenance of advertising copy for a period of several years. even if the state’s rule requires such disclosure. d. Outline TEST PREP AND ADMISSIONS 151 . First Amendment rights). not mandatory. Lawyers “should aspire to render at least 50 hours of pro bono public legal services per year” [MR 6. courts may allow expert testimony regarding the standards established by the Rules in formulating the standard of care relevant to a particular cause of action. (1) Lawyers may aggregate to satisfy the pro bono requirements collectively (e. pro bono work is not required. b. such as a violation of the duty of competence. d. “this Rule is not intended to be enforced through disciplinary process” [MR 6.. Where a lawyer is appointed to represent a client. will also give rise to a cause of action for malpractice. or 3) activities designed to improve the law. no cause of action would arise because of a violation of one of the technical requirements. (a) A “substantial majority” of the attorney’s pro bono hours should be devoted to the delivery of free legal services to persons of limited means or organizations designed primarily to service the needs of such persons [MR 6. the fact that a lawyer is later compensated for work she intended to render free of charge does not disqualify those services from counting as pro bono work.1]. malpractice (1) Despite the caveat in the Preamble. (2) Even if violation of a Rule is not negligence per se. However. he should accept the appointment unless: (1) doing so would violate the MRPC. (2) it would cause him an unreasonable financial burden. (b) The intent that the services be rendered for free is critical. it is apparent that facts that give rise to violation of some Rules. or educational purposes.g. even if the organization serves persons having interests adverse to a client of the lawyer. However. civic.2]. a 40-lawyer firm may assign one lawyer to full-time pro bono work).. c. The fact that a lawyer is not paid for billed services does not convert legal services rendered for a fee to pro bono work. but strongly recommended.e.
mPrE rEvIEW OuTLInE TEST PREP AND ADMISSIONS 152 .
a volunteer organization committed to improving housing in the state. an attorney who sues landlords on behalf of indigent clients. EXAmPLE: Paul. or other setting where neither lawyer nor client expects continuing representation.4]. He is required to withdraw only where he actually knows of a conflict [MR 6. A lawyer may provide short-term limited legal services for a client through a non-profit organization. is asked to serve on the state housing commission. But when a client’s interest will be benefited by a decision in which the lawyer participates. A lawyer may participate in a law-reform organization. a legal-advice hotline. f.e. for example. the lawyer must disclose that fact but not the client’s identity [MR 6. Outline TEST PREP AND ADMISSIONS 153 . If he participates in a decision by the commission that helps one of his clients. The lawyer may not be able to systematically screen for conflicts of interest in these situations. an advice-only legal aid clinic for indigents.5]. Paul must disclose that one of his clients was helped but not the client’s identity.
mPrE rEvIEW OuTLInE act with independence. integrity. and impartiality comply with election laws approve campaign materials ensure others do not undertake prohibited activities must Judicial candidates establish campaign committee speak on behalf of candidacy publicly endorse or oppose candidates for the same office may attend events sponsored by political organization or candidate obtain endorsements not from partisan political organizations contribute to political organization or candidate TEST PREP AND ADMISSIONS 154 .
as authorized by Rule 4. (4) attend or purchase tickets for dinners or other events sponsored by a political organization or a candidate for public office.1. (2) not to solicit or accept contributions for a candidate’s current campaign earlier than the amount of time set by state law before the applicable Outline TEST PREP AND ADMISSIONS 155 . and (4) take reasonable measures to ensure that other persons do not undertake on a candidate’s behalf activities. d. and (2) seek endorsements for the appointment from any person or organization other than a partisan political organization [Rule 4. and (6) contribute to a political organization or candidate for public office.Iv. non-partisan. Political and Campaign Activities of Judicial Candidates in Public Elections a. at the start of a campaign. or use endorsements from any person or organization other than a partisan political organization. 2. Campaign Committees a. or general election: (1) identify themselves as a candidate of a political organization. (2) speak on behalf of their candidacy through any medium. other than those described in Rule 4. and election campaign fundraising laws and regulations of the jurisdiction. or nominating commission or similar agency. to solicit or accept only such contributions that are reasonable in amount. Candidates for elective judicial office may. (3) review and approve the content of all campaign statements and materials produced by them or their campaign committee before dissemination. not earlier than the time set by state law before the first applicable primary election.4. Becoming a Judge 1. but not more than an amount set by state law to any one organization or candidate. or general or retention election: (1) establish a campaign committee. Candidates must ensure that their campaign committee complies with these Rules.3]. caucus. not earlier than the time set by state law before the first applicable primary election. including any selection. c. that a candidate is prohibited from doing by Rule 4. websites.4. Judicial candidates subject to public election cannot personally solicit or accept contributions [Rule 4. (3) publicly endorse or oppose candidates for the same judicial office for which they are running. or retention public election must: (1) act at all times in a manner consistent with the independence.4. and impartiality of the judiciary. screening. Candidates for appointment to judicial office may: (1) communicate with the appointing or confirming authority. accept. caucus. and use endorsements of a political organization [Rule 4. integrity. and in conformity with applicable law [Comment ]. Judicial candidates in a partisan public election may. Comment ]. (5) seek. election campaign. They may establish a campaign committee to manage and conduct a campaign. b. Judicial candidates in a partisan. accept. including advertisements. JudGEs A. and (2) seek. Judicial candidates subject to public election must direct their campaign committee. b. or campaign literature. (2) comply with all applicable election. appropriate under the circumstances.2]. Their directions must include: (1) to solicit and accept from individuals or organizations only such campaign contributions that are reasonable and do not exceed the amount set by state law.
mPrE rEvIEW OuTLInE elective office—must resign judgeship unless law permits candidacy for Nonjudicial Office appointive office—need not resign TEST PREP AND ADMISSIONS 156 .
Allison is seeking new employment as a clerk for Judge Smith. impartiality. Outline B. Thus. unless permitted by law to continue to hold judicial office [Rule 4. How about giving me a break and not ticketing me? I’ve seen you in my courtroom. (3) A judge may provide references or recommendations for individuals on official letterhead if they are based on the judge’s personal knowledge and won’t be seen as an attempt to exert pressure by reason of the judicial office. Allison asks Judge TEST PREP AND ADMISSIONS 157 . and employer of each person who has made campaign contributions to the committee exceeding an amount set by state law. Upon becoming a candidate for a non-judicial elective office. Canon 1: Integrity.5]. a judge is not required to resign from judicial office. judges who wish to run for such an office must resign their judgeship upon becoming a candidate [Comment ]. Judges also should not allow others to think that they are in a “special position” to influence decisions that judges will make [Rule 1. or commitments related to positions they would take and ways they would act if elected to office that are inconsistent with the role of a judge. Judges must comply with all laws and avoid not only impropriety but also “the appearance” of impropriety. She struck a motorcyclist in a car accident and had a blood alcohol level over the legal limit. She is subject to discipline. the dangers are not sufficient to warrant imposing the “resign to run” rule [Comment ]. We can help each other out. and Avoidance of Impropriety a. EXAmPLE: In the above example. address. or fitness to serve as a judge [Rule 1. and (3) to comply with all applicable requirements for disclosure and divestiture of campaign contributions. Acting as a Judge 1. Independence. provided that the judge complies with the rest of the Rules. or general or retention election. Activities of Judges Who Become Candidates for Non-Judicial Office a. when a police officer arrived at the scene.3. a judge shall resign from judicial office. The report must be filed within the number of days following an election set by state law. candidates may make pledges. temperament. (1) In campaigns for non-judicial elective public office.3. Comment ]. because they are under constant scrutiny by the public. or more than the number of days set by state law after the last election in which the candidate participated.2. primary election.” She is subject to discipline. b. influence. occupation. EXAmPLE: Judge X has been ticketed for driving under the influence of alcohol. “The motorcyclist looks alright to me. (2) Judges must not use their name. We’re both officers of the court. (1) The test for appearance of impropriety is whether the conduct would create in reasonable minds a perception that the judge violated the Rules or engaged in other conduct that reflects adversely on the judge’s honesty. or the prestige of their office to support private or personal causes. caucus. Upon becoming a candidate for a non-judicial appointive office. (1) When a judge is seeking appointive non-judicial office. and to file with the appropriate state authority a report stating the name. promises. however. EXAmPLE: Allison currently works as a clerk for Judge Judy. Judge X told the officer. Comment ].
competence.mPrE rEvIEW OuTLInE judicial duties before all else perform fairly and impartially act without bias or prejudice require subordinates to refrain from bias or prejudice Impartiality. diligence not be swayed by public opinion be competent and diligent seek resources and be punctual give all parties the right to be heard encourage settlement hear matters unless disqualification required TEST PREP AND ADMISSIONS 158 .
or hostile acts. that based on race. disability.3 (A)]. Judges must act without bias or prejudice. or political affiliation [Rule 2. Outline TEST PREP AND ADMISSIONS 159 . d. jurors. though the client has indicated no trouble hearing.1]. permit family. Judges should seek the necessary docket time.3 (B) & (C)]. national origin. age. Judges must perform their duties fairly and impartially [Rule 2. and cooperate with other judges and court officials [Rule 2. but must not coerce anyone to do so [Rule 2. or convey or permit others to convey the impression that anyone is in a position to influence them [Rule 2. the media. and other verbal or physical conduct of a sexual nature that is unwelcome [Comment ]. expertise. f. h. Even facial expressions and body language can convey an appearance of bias or prejudice to parties and lawyers in the proceeding. or other interests or relationships to influence their judicial conduct or judgment. lawyers. sex. (4) the parties participate with their counsel in settlement discussions. requests for sexual favors. Judges must give the right to be heard to everyone so entitled in a proceeding. Judges may encourage parties and their lawyers to settle. i.2]. ethnicity. financial. including. j. EXAmPLE: Nancy has a case before Judge John Jones. (4) Judges must retain sufficient control over the advertising for materials they write or contribute to for-profit entities for publication to avoid exploitation of their judicial office. be punctual in attending court and determining matters. Judges must put their judicial duties before all else [Rule 2. Judges shall not be swayed by public clamor or fear of criticism. socioeconomic status. threatening. (3) the case will be tried by the judge or a jury.6]. Sexual harassment includes sexual advances. marital status. Judges must require court staff. social. but not limited to. c.5]. m. political. devote adequate time to their judicial duties. Judge Judy is not subject to discipline for writing the letter on court stationery. k. sexual orientation.Judy to provide a reference letter. and resources to do their job. e. Canon 2: Impartiality. and irrelevant references to personal characteristics. and others subject to their direction to refrain from bias or prejudice as well [Rules 2. Judges must be competent and diligent. slurs. Judges must hear matters assigned to them except when disqualification is 2. Competence. religion. or nationality and crime. and diligence a.4]. gender. “Harassment” is verbal or physical conduct that denigrates or shows hostility or aversion toward a person on the bases above [Comment ]. The judge is subject to discipline. and others [Comment ]. epithets. ethnicity. and take steps to ensure that all participants in their courtroom cooperate to these ends [Comments  & ]. g. and (6) the matter is civil or criminal [Comment ]. b. (2) the parties and their counsel are relatively sophisticated in legal matters. negative stereotyping. demeaning nicknames. (5) any parties are unrepresented. suggestions of connections between race. In encouraging a settlement. Examples of prohibited conduct by judges include. attempted humor based upon stereotypes. intimidating. The judge in open court refers to Nancy as “sweetheart” and “little miss” and speaks especially slowly when addressing Nancy’s elderly client. court staff. judges should consider whether: (1) the parties have requested or consented to a certain level of participation by the judge in settlement discussions. l.
demeanor. communication TEST PREP AND ADMISSIONS 160 .mPrE rEvIEW OuTLInE maintain order and decorum no ex parte communication may obtain written advice of legal expert may consult with court staff or judges may confer separately with parties to settle notify parties of unauthorized ex parte communication not investigate on his own supervise staff to prevent violations decorum.
and does not abrogate her responsibility to decide the matter. She does not want advice on how to decide the outcome of the case. be patient. including electronic. provided the judge: 1) believes that no party will gain a procedural. dignified. A judge shall not initiate. Outline HYPOTHETICAL Judge Jenkins has a complex constitutional law issue in her court. controversial. she TEST PREP AND ADMISSIONS 161 . or tactical advantage. Would it be proper for Judge Jenkins to do so? If not. and must consider only the evidence presented or judicially noticed. (3) A judge may: (a) obtain the written advice of a disinterested expert on the law. and gives them an opportunity to respond. (b) consult with court staff or with other judges (except for those who have previously been disqualified from hearing the matter or who have appellate jurisdiction over it). demeanor. and (d) have any other ex parte communication authorized by law. required. and courteous to all participants. EXAmPLE: In the course of presiding over a complex patent trial. (c) with the consent of the parties. if she gives advance notice to the parties of the person to be consulted and the subject matter of the advice to be solicited. substantive. Comment ]. what actions could Judge Jenkins take to make this consultation proper? (4) Judges must not investigate facts using any medium. (a) Judges must not commend or criticize jurors for their verdict other than in a court order or opinion to avoid creating an expectation about what is expected in future cases [Comment ]. administrative. she wants to consult with a constitutional law expert to help her better understand the issue at hand. Judge Harris finds that she does not understand some of the scientific terms of art used by one of the expert witnesses. (a) Nor can a judge consider other communications made to her outside the presence of the parties or their lawyers concerning a pending matter. she must promptly notify the parties of it and provide them an opportunity to respond.8]. decorum. and require the same of all subject to their direction and control [Rule 2. except if required solely for scheduling. permit. 1) If a judge inadvertently receives an unauthorized ex parte communication.n. During a lunch break. or unpopular [Rule 2. and Communication with Jurors (1) Judges must maintain order and decorum in court. However.9]. confer separately with the parties and their lawyers in an effort to settle. and affords the parties an opportunity to object and respond to the notice and to the advice received. (2) Ex parte means “by or for one party” and refers to situations where one side alone attempts to communicate with the judge. (b) Judges may meet with jurors who choose to remain after trial but should not discuss the merits of the case [Comment ]. and 2) promptly notifies all other parties of the substance of the communication. or emergency purposes. provided she makes efforts to avoid receiving factual information not part of the record. or consider ex parte communications [Rule 2.7. and not use disqualification to avoid cases that are difficult.
mPrE rEvIEW OuTLInE bias or prejudice household member has economic interest knows of excessive contributions to election campaign by lawyer Disqualification public statement promising a particular decision was a lawyer in the matter participated substantially in the matter was a material witness previously presided TEST PREP AND ADMISSIONS 162 .
(g) during government employment. or prejudice against. (5) Judges must supervise court staff and others subject to their control to ensure against violations of this rule.10 (A)]. grandparents.g.10 (B) against “pledges. uncles/aunts. social workers. great grandparents. a party or his lawyer. brothers/sisters. Outline p. 3) has more than a de minimis economic interest that could be substantially affected. great grandchildren. participated personally and o. (d) knows or learns by a party’s motion that a party’s lawyer or law firm has made contributions to the judge’s election campaign beyond that permitted by that state’s law. (6) The rule against ex parte communications does not apply to judges in specialized therapeutic mental health or drug courts where they must often interact with parties. his spouse or domestic partner. Comment ].11]. and (c) require court staff and others subject to their control to refrain from making statements that they would be prohibited from making. probation officers. She has violated this rule. or commitments” to rule in a certain way in a case. promises. 1) A judge may comment on proceedings in which she is a litigant (except those where she is in an official capacity. or 4) is likely to be a material witness. (b) knows that he. or make any non-public statement that might interfere with a fair hearing [Rule 2. or knowledge of disputed facts. children. director. treatment providers. (e) has made a public statement that violates the prohibition in Rule 2. or was associated with a lawyer who participated substantially as a lawyer in the matter during such association.. (2) Examples include. (f) was a lawyer in the matter. or child. or trustee of a party. managing member. nieces/nephews) to either the judge or his spouse or domestic partner of such a person: 1) is a party or an officer. general partner. or a person within the third-degree of relationship (e. promises. Disqualification (1) Judges must disqualify (“recuse”) themselves in any proceeding in which their impartiality might reasonably be questioned [Rule 2. TEST PREP AND ADMISSIONS 163 . parents. domestic partner. or commitments about how they will decide cases or issues that are inconsistent with the impartial performance of their duties in connection with those that are likely to come before them.researches the terms using an Internet search engine and scientific dictionary website. such as a writ of mandamus) and respond to allegations in the media or elsewhere concerning her conduct [Rule 2.10 (E). grandchildren. has an economic interest in the case or in a party. (c) knows that he or his spouse. but are not limited to. and others [Comment ]. or any other member of the judge’s family residing in the judge’s household. (b) not make pledges. Judicial statements on Pending and Impending Cases (1) Judges must: (a) not make any public statement that might be expected to affect the outcome or impair the fairness of a matter in any court. parent. 2) is a lawyer in the proceeding. situations where the judge: (a) has a personal bias for.
mPrE rEvIEW OuTLInE bias or prejudice household member has economic interest knows of excessive contributions to election campaign by lawyer Disqualification public statement promising a particular decision was a lawyer in the matter participated substantially in the matter was a material witness previously presided discloses basis Remittal of Disqualification asks lawyers and parties lawyers and parties agree agreement incorporated into decision TEST PREP AND ADMISSIONS 164 .
the party in the previous example. the judge does not disqualify herself. If either of these situations exist. when in fact the company is XYZ Inc. The judge must disclose on the record the basis for possible disqualification and endeavor to transfer the matter to another judge as soon as practicable [Comment ].. She is not subject to discipline. or (b) the relative is known by the judge to have more than a de minimis Outline TEST PREP AND ADMISSIONS 165 . and make a reasonable effort to keep informed about the personal economic interests of his spouse or domestic partner and minor children residing in his household. even if she believes there is no basis for disqualification [Comment ]. the judge is disqualified if: (a) the judge’s impartiality might reasonably be questioned for any of the reasons above. However. (h) was a material witness concerning the matter. or (i) previously presided over the matter in another court.substantially as a lawyer or public official concerning the matter or has publicly expressed in such capacity an opinion on the merits of it. or a matter requiring immediate action such as a hearing on probable cause or a temporary restraining order. However. following the disclosure and consideration without participation by the judge or court personnel.000 worth of stock in XYZ Inc. and (d) the agreement must be incorporated into the record of the proceeding. case. When assigned to the XYZ Inc. whether to waive disqualification.. (b) she asks the lawyers and parties to consider.000 worth of stock as WXY Inc. the lawyers and parties agree to it. outside the presence of the judge and court personnel. She disqualifies herself from participation in the case and asks that it be transferred to another judge. (5) A judge subject to disqualification. (4) A judge must keep informed about his personal and fiduciary economic interests. Examples include review of a judicial salary statute. EXCEPTIOn: The parties cannot agree to waive a judge’s disqualification based on personal bias or prejudice concerning a party. She is not subject to discipline. EXAmPLE: Judge Salcido regularly reviews her retirement fund securities portfolio. the judge must disqualify himself.. she may participate. other than for bias or prejudice. her partner innocently misidentifies to the judge a company in which the partner holds $50. a party in a case that has just been assigned to her. buying and selling a wide range of securities each day. (6) Sometimes necessity requires a judge to participate in a matter because no other non-disqualified judge is available. EXAmPLE: Judge Salcido’s domestic partner is an active day-trader in the public securities market. (7) The fact that a lawyer related to the judge is in a law firm that is representing a party does not itself disqualify the judge. She discovers she holds $50. (c) if. (3) A judge should disclose on the record information that she believes the parties or their lawyers might reasonably consider relevant to a possible motion for disqualification. may seek “remittal” (waiver) of disqualification if the following requirements are met: (a) the judge fully discloses on the record the basis of her disqualification. The judge regularly asks her partner what securities are in her partner’s portfolio.
mPrE rEvIEW OuTLInE mutual or common investment fund Economic Interests Not leading to Disqualification securities held by organization in which a judge or household member participates bank deposit issuer of government securities TEST PREP AND ADMISSIONS 166 .
Q. which is in dire financial trouble. religious. has filed a suit assigned to the judge seeking to accelerate Columbia’s multi-million dollar debt to Q. special masters.. and EXAmPLE: Judge Winter has a $100. fraternal. The judge would not be disqualified. The judge would be disqualified. A judge supervising other judges must endeavor to ensure that those judges discharge their responsibilities properly and promptly [Rule 2.financial interest in the law firm that could be substantially affected by the proceeding [Comment ]. a defendant in a case assigned to the judge. It does not include the following. advisor. or deposits or ownership interests as a member of a mutual savings association or credit union. discovery referees. including JetDyne. The judge is not involved in managing Petrol. or other participant. charitable. The judge would not be disqualified. a portfolio of various stocks. including doing work promptly. b) an interest in securities held by an educational. d) an interest in the issuer of government securities held by the judge.. the outcome of which won’t substantially affect the value of FidelityFund. JetDyne is the plaintiff in a case before the judge. the value of the bonds will fall dramatically because Columbia may not be able to pay the interest due on them.000 Certificate of Deposit (CD) held in the Federal Credit Union. then the judge is disqualified: a) an interest in the individual holdings within a mutual or common investment fund. domestic partner. parent. criminal defense counsel for indigents. Inc. the outcome of which will not substantially affect the value of the CD. which is a plaintiff in a case assigned to her. guardians. If Q prevails. The judge does not participate in management of FidelityFund. c) a judge’s deposit in a financial institution. and the outcome of the case will not substantially affect its value. United Way owns 1. (8) Judges must require court staff and others they control to act in a manner consistent with their obligations. 1) Economic interest is defined as ownership of more than a de minimis legal or equitable interest [Comment ].12]. avoid nepotism Outline TEST PREP AND ADMISSIONS 167 . or child serves as a director. (9) Judges must administer appointments (for example. and court personnel) impartially on the basis of merit. The judge would not be disqualified.000 shares of Petrol. EXAmPLE: Judge Winter’s personal 401(k) retirement plan includes ownership of 200 shares of FidelityFund. or civic organization in which the judge or the judge’s spouse. but if the judge manages the vehicle in which the interest is held. EXAmPLE: Judge Winter’s personal 401(k) retirement plan is invested substantially in municipal bonds issued by the city Columbia. officer. EXAmPLE: Judge Winter and her daughter are directors of the United Way charity. one of Columbia’s creditors. or the outcome of the case will substantially affect the judge’s interest. Inc.
or impartiality engage in coercive conduct use court resources for activities not concerning the law appear at a public hearing testify as a character witness accept appointment to governmental committee not concerning the law use nonpublic information for a purpose unrelated to judicial duties belong to an organization practicing discrimination Impermissible Extrajudicial activities TEST PREP AND ADMISSIONS 168 .mPrE rEvIEW OuTLInE interfere with duties lead to frequent disqualification appear to undermine independence. integrity.
except for incidental use in activities that concern the law. emotional. and must not retaliate against a person known or suspected to have cooperated with an investigation of a judge or a lawyer [Rule 2. (10) If a judge believes a lawyer or judge is performance-impaired by drugs or alcohol. Comment ]. or fitness in other respects must inform the appropriate authority. judges must conduct their personal and extra-judicial activities in such a way that minimizes the risk of conflict with their judicial obligations. judges are encouraged to engage in non-profit educational. 2) the lawyer has been selected in rotation from a list of lawyers without regard to his having made political contributions. c. In addition. teaching. and not approve compensation beyond fair value [Rule 2. or (2) use court premises. or 3) the judge or another presiding or administrative judge finds that no other lawyer is willing.16]. Nor may they: (1) engage in conduct that would appear coercive. and unnecessary appointments. and the administration of justice (collectively. or impartiality. or other resources.1. (a) A judge shall not appoint a lawyer if the judge herself knows that the lawyer or the lawyer’s spouse or domestic partner has contributed more than an amount and during a time specified by state law to the judge’s election campaign. (hiring relatives). writing. favoritism.15]. (b) A judge who receives information indicating a substantial likelihood that another judge or lawyer has committed such violation must take appropriate action [Rule 2. religious. except: (1) concerning the law. such as reporting the impaired person to the appropriate authority [Rule 2. A judge must not appear voluntarily at a public hearing or consult with an executive or a legislative body or official.14]. the legal system. she must take appropriate action. 1) Appropriate action may include communicating directly with the person involved or a supervising judge. staff. or a mental.3. (12) A judge must cooperate candidly and honestly with disciplinary agencies. d. integrity. equipment. fraternal. Comment ]. of the MRPC for lawyers) that raises a substantial question regarding his honesty. “the law”). the judge may be required to take other action.15. stationery.13]. or (3) would appear to undermine their independence. b. (2) will lead to frequent disqualification. or physical condition. or learns of such contribution from a motion. Judges must not participate in activities that: (1) will interfere with the performance of their duties. including a confidential referral to a lawyer or judicial assistance program [Rule 2. or Outline TEST PREP AND ADMISSIONS 169 . and able to accept the position. Judges are encouraged to engage in extra-judicial activities that concern the law. unless: 1) the position is substantially uncompensated. or civic activities even when they don’t involve the law [Rule 3. competent. (11) responding to Judicial and Lawyer misconduct (a) A judge who knows that another judge or a lawyer has committed a violation (of the CJC for judges. or reporting the suspected violation [Comment ]. However. Canon 3: Extra-Judicial Activities a. or participating in scholarly research projects. trustworthiness. charitable. (2) about matters where the judge acquired knowledge or expertise in the course of the judge’s duties. (a) In some situations. such as by speaking.
integrity.mPrE rEvIEW OuTLInE interfere with duties lead to frequent disqualification appear to undermine independence. or impartiality engage in coercive conduct use court resources for activities not concerning the law appear at a public hearing testify as a character witness accept appointment to governmental committee not concerning the law use nonpublic information for a purpose unrelated to judicial duties belong to an organization practicing discrimination Impermissible Extrajudicial activities TEST PREP AND ADMISSIONS 170 .
3. as well as other factors. but only from the judge’s family or from judges the judge does not supervise or have appellate authority over. h. Judges may represent their country. national origin. gender. purely private organization whose membership limitations could not constitutionally be prohibited [Comment ]. speaking. a judge must not testify as a character witness in any adjudicatory proceeding or vouch for the character of a person in a legal proceeding. including: (a) assisting the organization’s fundraising planning. even though their dues may be used to support the organization’s objectives. (b) soliciting contributions. and whether it is an intimate. sex. but rather depends upon how the organization selects members.2]. (3) When a judge learns that an organization to which she belongs discriminates.1.4. a judge may participate in activities sponsored by organizations or governmental entities concerned with the law. religious. and participating in managing and investing its funds. A judge must not intentionally disclose or use non-public information acquired in a judicial capacity for any purpose unrelated to the judge’s judicial duties (except to protect the safety of the judge. religious. and activities on behalf of non-profit educational. g. ethnicity. j. and permitting her title to be used in connection with an event. or other governmental position. or civic organizations. or sexual orientation. her family. (d) appearing. Comments  & ]. charitable. but if the event serves a fundraising purpose. However. being featured on the program. i. she must resign immediately from it [Comment ]. (4) A judge’s membership in a religious organization or the military is not a violation [Comments  & ]. or cultural values of its members. educational. and should discourage anyone from summoning her unless justice so requires [Rule 3. Participation in Educational. or use its benefits or facilities if the judge knows or should know that the organization so discriminates [Rule 3.e. or cultural activities [Rule 3. state.6]. commission. ethnic. Unless subpoenaed. even as to those.5. religion. f. (c) soliciting members. Comment ]. or court personnel) [Rule 3. (2) Whether an organization discriminates cannot be determined from a mere examination of an organization’s membership rolls. and Outline TEST PREP AND ADMISSIONS 171 . other than one concerning the law and. but only if the organization is concerned with the law. fraternal. such as whether it is dedicated to the preservation of religious. judges must not refer to their judicial positions. or locality for ceremonial occasions and historical. or when the judge is acting in a fiduciary capacity [Rule 3. Comment ]. the judge may participate only if the event concerns the law. (1) However. (e) making recommendations to a fund-granting organization. or receiving an award or recognition at an event. fraternal. or Civic Organizations and Activities (1) Subject to Rule 3. A judge must not belong to any organization that practices discrimination based on race. an isolated attendance is not a violation if it could not be perceived as an endorsement of the organization’s practices [Comment ]. Charitable. and must otherwise exercise caution to avoid using the prestige of judicial office [Comment ]. but only if the organization is concerned with the law. judges must give first priority to their judicial duties. Judges must not accept appointment to a governmental committee. board. (3) when the judge is acting pro se (for oneself) in a matter involving the judge’s legal or economic interests.
or non-legal advisor acceptable Involvement in organizations TEST PREP AND ADMISSIONS 172 . managing. investing funds soliciting contributions from family or other judges soliciting members for law-related organizations appearing or speaking at events that are not fundraising or that concern the law making recommendations to a law related fund-granting organization serving as officer.mPrE rEvIEW OuTLInE raising. director.
(f) serving as an officer, director, trustee, or non-legal advisor of such an organization, unless it likely will: 1) ordinarily come before the judge; or 2) frequently be engaged in adversary proceedings in the court of which the judge is a member, or in any court subject to the appellate jurisdiction of the court of which the judge is a member. (2) Mere attendance at an event, even a fundraiser, is permitted, as is being an usher, food server or preparer, and the like. Because attending and helping are not soliciting funds, they do not present the elements of coercion or abuse of judicial prestige the Rule is designed to prohibit [Comment ]. (3) An organization may identify a judge’s title or judicial office on letterhead used for fundraising or membership solicitation if comparable designations are used for other persons [Comment ]. (4) A judge may encourage lawyers to provide pro bono publico legal services, but must not coerce or abuse judicial prestige in doing so [Comment ]. k. Appointments to fiduciary Positions (1) A judge must not: (a) accept appointment as a fiduciary, such as executor, administrator, trustee, guardian, attorney-in-fact, or other personal representative, except for the estate, trust, or person of the judge’s family, and then only if it will not interfere with her judicial duties; or (b) serve as a fiduciary if she will likely be engaged in proceedings that would ordinarily come before her, or if the estate, trust, or ward becomes involved in adversary proceedings in the court on which the judge serves or one under its appellate jurisdiction [Rule 3.8]. (2) A judge acting as a fiduciary is subject to the same restrictions on financial activities that apply to a judge personally. For example, serving as a fiduciary might require frequent disqualification under Rule 2.11 because a judge is deemed to have an economic interest in shares of stock held by a trust if the amount of stock held is more than de minimis. If restrictions in other Rules conflict with a judge’s obligations as a fiduciary, she should resign as fiduciary [Comment ]. (3) If a non-judge fiduciary becomes a judge, he must comply with this Rule as soon as practicable after becoming a judge, usually within a year. l. A judge must not act as an arbitrator or a mediator or perform other judicial functions apart from the judge’s official duties, whether or not for economic gain, unless expressly authorized by law or performed as part of assigned judicial duties (e.g., settlement conferences) [Rule 3.9, Comment ]. m. A judge must not practice law, but may act pro se (for oneself) and may, without compensation, give legal advice and draft or review documents for family members, but cannot serve as a family member’s lawyer in any forum, and must not use the prestige of office to advance the judge’s personal or family interests [Rule 3.10, Comment ]. n. A judge may hold and manage investments of the judge and family members [Rule 3.11]. (1) However, a judge must not serve as an officer, director, manager, general partner, advisor, or employee of any business, except one that is: (a) closely held by the judge or family members; or (b) primarily engaged in investing the judge’s or family members’ financial resources. (2) Judges must not engage in these permitted financial activities if the activity will: (a) interfere with their judicial duties; (b) lead to frequent disqualification;
TEST PREP AND ADMISSIONS
mPrE rEvIEW OuTLInE
little intrinsic value gifts from friends and relatives social hospitality commercial opportunities available to non-judges random prizes scholarships and fellowships available to non-judges media supplied for official use gifts to a household member with incidental benefit gifts incident to public testimonial
Gifts to Judges
invitations to law-related activities gifts from those who have, or are likely to, come before the judge
TEST PREP AND ADMISSIONS
involve them in frequent transactions or continuing business relationships with lawyers or others likely to come before the court on which they serve; or (d) result in violation of other Rules (for example, by using their official title or appearing in judicial robes in business advertising; see Rule 1.3—abusing prestige of office for personal gain) [Comment ]. (3) Judges must divest themselves of any financial interests that might require frequent disqualification or violate this Rule as soon as practicable without serious financial detriment [Comment ]. o. A judge may accept reasonable compensation for permitted extra-judicial activities unless it would appear to undermine the judge’s independence, integrity, or impartiality [Rule 3.12]. (1) Judges may accept honoraria, stipends, fees, wages, salaries, royalties, or other compensation for speaking, teaching, writing, and other extrajudicial activities, provided they are reasonable, but judicial duties take precedence over other activities, and such compensation may be subject to public reporting under Rule 3.15 below [Comments  & ]. p. A judge must not accept any gifts, loans, bequests, benefits, or other things of value, if acceptance would appear to undermine the judge’s independence, integrity, or impartiality [Rule 3.13]. (1) A judge may accept without publicly reporting the following: (a) items with little intrinsic value, such as plaques, certificates, trophies, and greeting cards; (b) gifts, loans, bequests, benefits, or other things of value from friends, relatives, or other persons or lawyers whose appearance or interest in a proceeding pending or impending before the judge would require disqualification of the judge under Rule 2.11; (c) ordinary social hospitality; (d) commercial or financial opportunities and benefits, including special pricing and discounts, and loans from lending institutions in the regular course of business, if the same opportunities and benefits or loans are provided on the same terms to similarly situated non-judges; (e) rewards and prizes given in random drawings, contests, or other events open to non-judges; (f) scholarships, fellowships, and similar benefits or awards, if they are available to similarly situated non-judges, on the same terms and criteria; (g) books, magazines, journals, audiovisual materials, and other resource materials supplied by publishers on a complimentary basis for official use; or (h) gifts, awards, or benefits associated with the business, profession, or other separate activity of a spouse, domestic partner, or other family member residing in the judge’s household that incidentally benefit the judge. (2) A judge may accept the following items but must report them as required by Rule 3.15: (a) gifts incident to a public testimonial; (b) invitations to the judge and the judge’s spouse, domestic partner, or guest to attend without charge a bar-related function or other activity relating to the law, or an event associated with the judge’s educational, religious, charitable, fraternal, or civic activities, if the same invitation is offered to non-judges similarly engaged in the activity; and (c) gifts, loans, bequests, benefits, or other things of value, if the source is a party or other person or lawyer who has or is likely to come before the judge, or whose interests have or are likely to do so.
TEST PREP AND ADMISSIONS
recreational availability of information sponsor’s interests likely to appear before the judge differing view points range of judicial and non-judicial participants TEST PREP AND ADMISSIONS 176 . single sponsors content related to a subject likely to come before judge Factors in accepting Reimbursements or Fee waivers educational vs.mPrE rEvIEW OuTLInE educational or bar vs. trade or for-profit numerous contributors vs.
if a large number of participants are invited. and (3) expense reimbursements and waiver of charges permitted by Rule 3. integrity. or impartiality [Rule 3. domestic partner. (1) When deciding whether to accept reimbursements or fee waivers. bequest. and if the program is designed specifically for judges [Comment ]. and nature of the activity. a political organization. and 4. or other valuable thing accepted. Canon 4: Political and Campaign Activities a. b.4. or other incidental expenses incurred by the judge and the judge’s spouse. (1) The public report must be made at least annually. Except as permitted by Rules 4. lodging. (b) the funding comes largely from numerous contributors rather than from a single entity and is earmarked for programs with specific content. is less than an amount set by state law. or guest. when feasible. benefit. any of the following: (1) act as a leader of. and whether the event’s costs are comparable to those of similar events sponsored by the judiciary. alone or together with others received from the same source in the same calendar year. and do not appear to undermine the judge’s independence. (g) differing viewpoints are presented. and must take reasonable measures to ensure that other persons on their behalf do not do. A judge or candidate for judicial office must not engage in political or campaign activity inconsistent with the independence. integrity.13. a judge should consider whether: (a) the sponsor is an accredited educational institution or bar association rather than a trade association or a for-profit entity. or similar groups.15. or hold an office in. but for expense reimbursements and waiver of charges. r. bar associations. posted on the court’s website [Rule 3. impending. (2) Reports must be filed as public documents in the court clerk’s office where the judge serves and.15]. is less than an amount set by state law.14]. and similar items from sources other than the judge’s employer if they are associated with the judge’s participation in permitted extra-judicial activities. s. it must be made within 30 days after the end of the event. (f) the sponsor or funding source is generally associated with particular parties or interests currently appearing or likely to appear in the judge’s court. Outline 177 . loan. A judge must publicly report the amount or value of: (1) compensation received for permitted extra-judicial activities. or impartiality of the judiciary [Rule 4. or a waiver of charges for the judge’s registration. TEST PREP AND ADMISSIONS q. or likely to come before the judge.2. (c) the content is related to the subject matter of litigation pending. are publicly reported as required by Rule 3.4. When public reporting is required. food. and the source of reimbursement of expenses or waiver of charges. (e) information concerning the activity and its funding sources is available. and (h) a broad range of judicial and non-judicial participants are invited. the description of any gift. unless their value. tuition.3. judges or judicial candidates must not do. (2) gifts and other valuable things permitted by Rule 3. a judge must report the date. 4. unless the amount. thus possibly requiring disqualification of the judge under Rule 2. place. (d) the activity is primarily educational rather than recreational.11. A judge may accept reimbursement of expenses for travel.1].14. alone or together with others received from the same source in the same calendar year.
4 use contributions for private benefit use court resources to campaign make a false or misleading statement make a statement affecting a matter in court comment on cases likely to come before the court TEST PREP AND ADMISSIONS 178 .mPrE rEvIEW OuTLInE lead political organization make speeches for political organization publicly endorse or oppose candidate for office solicit for or contribute to a political organization or candidate attend or purchase tickets to events for a political organization or candidate Judges and Judicial candidates May Not identify themselves as a candidate of a political organization use endorsements from a political organization accept campaign contributions unless authorized by 4.
(12) make any statement that would be expected to affect the outcome or impair the fairness of a matter pending or impending in any court. statements or announcements of personal views on legal. or other court resources in a campaign for judicial office. (3) publicly endorse or oppose a candidate for any public office. she must not publicly endorse her. (7) seek. the candidate. c. f. She tells a reporter that she is against the death penalty and pledges that. or (13) in connection with cases. a candidate for school board. d. Candidates who do not respond may state their reasons for not responding. and may pledge to take action outside the courtroom. the statement would be prohibited. (6) publicly identify themselves as a candidate of a political organization. facilities. pay an assessment to. Similarly.4. Such candidate may make a factually accurate public response.EXAmPLE: Judge James is a member of the state Democratic Party. (5) attend or purchase tickets for dinners or other events sponsored by a political organization or a candidate for public office. Sara is subject to discipline for making this statement. such as working toward an improved jury selection system. or issues that are likely to come before the court. (10) use court staff. make any false or misleading statement. asks Lori. During a campaign for judicial office. or other issues are protected free speech [Comments  & ]. such as the danger that answering might be perceived as undermining a successful candidate’s independence or impartiality. (4) solicit funds for. or advocating for more funds to improve the physical plant and amenities of the courthouse [Comment ]. her friend who is a judge. to endorse her candidacy. Outline TEST PREP AND ADMISSIONS 179 . candidates are sometimes the subject of false or unfair allegations made by opposing candidates. or with reckless disregard for the truth. e. when an independent third party has made unwarranted attacks on a candidate’s opponent. the candidate may disavow the attacks and ask the third party to stop [Comment ]. If a reasonable person would believe that the candidate for judicial office has specifically undertaken to reach a particular result. Candidates who respond to media and other inquiries should assure that they will keep an open mind and will carry out their adjudicative duties faithfully and impartially if elected. or use endorsements from a political organization. or the media. While Lori may vote for Alice. In contrast. or that it might lead to frequent disqualification [Comment ]. If the party wants to name him Parliamentarian. (8) personally solicit or accept campaign contributions other than through a campaign committee authorized by Rule 4. if elected. third parties. or avoid favoritism in appointments and hiring. (2) make speeches on behalf of a political organization. make pledges. however. controversies. promises. he must decline. EXAmPLE: Sara is a candidate for a position as judge on the Utopia District Court. accept. or others. start court sessions on time. or commitments that are inconsistent with the impartial performance of the adjudicative duties of judicial office. Campaigns for judicial office must be conducted differently from campaigns for other offices. or make a contribution to a political organization or a candidate for public office. (11) knowingly. Candidates may promise to dispose of a backlog of cases. (9) use or permit the use of campaign contributions for the private benefit of the judge. EXAmPLE: Alice. political. she would not instruct a jury to consider it.
mPrE rEvIEW OuTLInE TEST PREP AND ADMISSIONS 180 .
to ask her advice. she must disclose the referral and let the other lawyer and party decide. and proposes to send you potential clients. Suzanne employs several recent immigrants at low wages to do the menial sewing and other factory work. “Don’t worry. and I can tell you that the runoff claim and illegal worker indictment against you depend upon whether you ‘knowingly’ allowed the runoff.BaR aPPlIcatIoN QuEstIoNs Question 5 Suzanne. everyone needs a boost now and again. Richard believes that her competitors. Outline 181 . When Suzanne enters Antonia’s office for an initial meeting. I recommend that you tell the truth about this. Your reason is that such clients usually do not need complex litigation and starting with simple cases within your competence level will allow you to develop expertise over time. She says that she comes across many low-income people who desperately need such services. If you did so unknowingly. before you begin. Now. because Antonia’s duty of loyalty to the client outweighs her duty to truth when a client faces a criminal indictment. what do you think?” Judge Powell’s proposal to send you potential clients is: A) Improper. but before you do. the present ones would fail. Is Antonia subject to discipline? A) Yes. a new area for you. while other less serious claims could be brought. tell me what happened. but if you represent her referrals in her court. you want to say something to that effect. including whether or not you ‘knowingly’ allowed the runoff and ‘knowingly’ hired illegal aliens.” Suzanne calms down and then relates that the runoff was accidental. B) Improper. Suzanne runs a wholesale clothing design and manufacturing business. and helping low-income people in need find competent counsel is among such responsibilities. C) No. and supplies them to retailers throughout the city. for impermissibly asking her client leading questions that suggest untruthful answers. and that she didn’t know the workers were illegal until the indictment. She creates designs. she says. The design process involves “acid washing” and dying of fabrics to create unusual looks. one of Antonia’s clients. was referred to Antonia Attorney by Richard. D) No. B) Yes. You contact Patricia Powell. because Antonia merely discussed the legal consequences of a course of conduct. started false rumors that resulted in a civil suit by the city alleging that she knowingly allowed illegal chemical runoff into the sewers from the acid wash and dye operation. because Antonia has assisted Suzanne in testifying fraudulently. and a criminal indictment alleging that she knowingly hired illegal aliens. she is visibly upset and angry. Realizing that in your new practice you will likely appear before Judge Powell quite often. TEST PREP AND ADMISSIONS Question 6 You decide to branch out into family law. C) Proper. or loan from anyone— particularly a lawyer likely to come before her in court. because a judge shall not accept a gift. D) Proper. she must disqualify herself if her impartiality might reasonably be questioned. Richard gave Antonia some background on Suzanne’s problem. Who knows? You might be able to help me with my golf swing someday. because it will involve her in frequent financial and business dealings with a lawyer likely to come before her in the court. because a judge is required to discharge the judge’s administrative responsibilities. Antonia tells her the following: “Suzanne. makes the garments. Before she begins to speak. Well. bequest. let me explain some things to you. Richard gave me some background on your problems. favor. The judge thinks your plan is wise and offers to assist. and ‘knowingly’ hired illegal aliens. Perjury is a crime with consequences that might be worse than the claims against you. If she wishes to continue on the case. You tell her you plan to start out representing lowincome individuals at reduced rates. Also. jealous of her success. a family law judge you know from the country club where you both play golf on occasion. a very successful businesswoman.