MPRE Notes

Unauthorized Practice (Rule 5.5)

exceptions generally for temporary (and incidental) work in other jx exception for doing transactional work for employer (e.g. in house counsel) finally exception when authorized by federal or other law

Duty to Report Misconduct of fellow attorneys (Rule 8.3)

1) requires actual knowledge (may be inferred from circumstantial evidence) 2) misconduct must raise substantial question as to lawyers honesty/trustworthiness exception for attorney-client privilege

Attorney Misconduct/Discipline (Rule 8.4)

violations of any mandatory Rule acts which reflect adversely on lawyers honesty/trustworthiness/fitness as a lawyer criminal acts reflects adversely on lawyers h/t/f as lawyer -includes counseling client in conduct known to be criminal or fraudulent acts of dishonesty, fraud and deceit (considered reflecting on h/t/f) conduct prejudicial to administration of justice *lawyer prohibited from limiting malpractice liability in representation agreement

Lawyer-Client Relationship
Accepting Clients
duty to accept court appointed clients (absent good cause not to) Good Cause: 1) violation of ethical duty (must decline) -e.g. conflict of interest 2) client/cause so repugnant to lawyer as to impair judgment (must decline) 3) unreasonable financial burden (may decline) -e.g. client lives on other end of state duty to reject client: 1) would violate ethics rules (e.g. COI, frivolous claims, rep would be harassment, or not competent) 2) would violate other law 3) lawyers physical/mental health prevents competent service

Fees (Rule 1.5)

fee must be reasonable (factor time, novelty, skill, normal rate ...) Contingent Fee: 40% is considered reasonable, must be written terms -prohibited for Domestic Relations and Criminal Matters Fee Splitting (inter-firms): must be proportional to services rendered client must agree to arrangement

-may not share with non-lawyer (except lawyers estate or part of firm retirement plan)

Fiduciary Duty (Rule 1.15)

no intent req, simply commingling funds is a violation -disputed funds must also be kept separate from lawyer advanced fees paid by client must be placed in separate bank account and withdrawn as service is rendered

Competence and Diligence (Rule 1.1 and 1.3)

must exercise legal knowledge/skill/preparation reasonably necessary for representation -no req for possession of required skills at initiation of representation diligence requires persistent pursuit of clients matter -illness by lawyer is no excuse (must be remedied) -blaming underlings is no excuse -blaming overwork or other responsibilities is no excuse

Communications and Shared Decision Making (Rule 1.2 and 1.4)

Client must be kept reasonably informed and respond to client inquiries must explain matters to client sufficiently to allow client to make informed decisions Client sets the goals (ends), Lawyer acts to achieve them (means) -Client has ultimate authority to settle, Lawyer must communicate good faith offers -Client has exclusive authority to enter plea in criminal case -Client has right to waive jury or other fundamental right -Client decides whether to testify in criminal case -Lawyer has authority to make procedural tactics in litigation e.g. whether to cross-examine witness (may do so against clients wishes) Lawyer prohibited from counseling/assisting client in commission of crime/fraud -may research legality of action and counsel client against taking illegal actions for disabled clients, Lawyer should seek to have guardian appointed to represent best interest of client -may reveal confidential info to extent reasonably necessary to protect clients interests

Terminating Representation (Rule 1.16)

general duty of continuing representation unless ... Mandatory Withdrawal: 1) continued representation violates ethical rules (lawyer knows violation will occur) e.g. realizes a COI exists 2) continued representation violates law (Lawyer knows violation will occur) e.g. if lawyers services being used to further illegal/fraudulent actions by Client 3) Lawyers mental/physical health becomes too impaired 4) Lawyer is discharged by Client Permissive Withdrawal: 1) no harm to client 2) Lawyer reasonably believes Client is acting criminally/fraudulently -something less than actual knowledge 3) Lawyer learns past use of services by Client perpetuated fraud/crime 4) Lawyer finds Clients actions repugnant/imprudent e.g. immoral behavior like insurance company shafting insured on a technicality 5) Client fails to meet an obligation (e.g. pay lawyers reasonable fee)

6) Unreasonable financial burden If working on contingent/future fees, burden is not met if unlikely to get paid 7) Client unreasonably difficult to work with e.g. Client failing to show for meetings, instance on pursuing inconsistent course of action

Barbri MPRE 90% of questions come form must/shall rules Regulation of Legal Profession 10% ABA write the rules, but have no actual authority or punishment power (State Bars do that). -ABA is strictly voluntary States highest trial court determines states rules

Types of Discipline: A. Private or public reprimand/censure B. Suspension for a finite period C. Disbarment Admission to Bar: requirements must be rationally related to practice of law -e.g. graduation from ABA accredited law school, or take the State oath -not U.S. citizenship, residency in the state Duties on Candidates: duty to fully cooperate truth and full disclosure Fees no fees with no attorney except: 1) heirs of a diseased attorney 2) employees in the form of salaries and pension/bonus plan 3) nonprofit organization that employed/recommended lawyer Firm: may not hold out as a partner with others unless actual firm together only lawyers can be partners or officers for a corporation -nonlawyers can be shareholders, temporarily Noncompete Clauses: generally prohibited except 1) reasonable upon retirement OR 2) reasonable upon leaving firm Acceptance of Clients: generally not duty to accept a client, except: 1) should take client if defenseless or oppressed 2) should take fair share of pro bono (50 hours) -donate money to bar organizations -reduce fees to certain clients -CLE teaching -provide legal services for civil rights matters 3) must take court appointments

-should reject if would create unreasonable financial burden -must reject physical/mental inability to represent -must reject if COI exists (representing conflicting party) -must reject if have strong feeling or bias (not impartial) -must reject frivolous claims or frivolous defense/motion -incompetence (lacking legal expertise to represent) *fixed by ALE (Associate with others, Learn it in time, Emergency situation) *generally attorney is new, case is very complex Attorney/Client Responsibilities: important decisions respond to client -whether to sue, whether to settle, whether to testify, whether to accept plea deal, whether jury, whether to appeal -attorney must share settlement offers w/ client unless client has already specified acception/rejection range procedural tactics go to attorney -which court to file in -discovery, what to seek and what to produce -depositions to take and whose depositions to take -continuances, whether to agree or request one Clients procedural decisions -case expenses (e.g. client may veto tactics which cost money) -3rd parties well being (client may veto depositions to protect 3rd parties) must be honest and must be trustworthy -liable for knowingly making false statement of fact or law to the court -liable for failing to correct previously made false statement of material law guardian must be appointed for incompetent (e.g. minor) client -but lawyer must respect and involve incompetent Termination: when matter is in litigation, need ct permission to withdraw -must return case file and remaining retainer -judge decides based on particular stage of the matter Client has power to fire lawyer (lawyer has right to gain money for services rendered) must withdrawal when: -when a duty to reject existed (physical inability) -Client has begun a new illegal court of action -Client fraud and refusal by client to rectify the fraud -Client insists on violation of the law or ethical provision permissive withdrawal when: -no material harm, -Client stops and rectifies fraud -Clients request in repugnant -Client does not cooperate -Pretty much anything is acceptable reason for permissive withdrawal When client is going to do something bad: 1) must try to dissuade client 2) must request permission to withdrawal

3) must do as instructed by judge (continue the case) 4) finally put Client on stand, and dont ask questions, instead let Client say what he says 5) If going to withdrawal, must give Client reasonable notice to get new lawyer Client/Lawyer Contracts: Lawyer can limit scope of representation (e.g. through discovery) Agreement considered a contract Quick advice (phone call) -ACP exists only during duration of phone call -COI rules are relaxed (no time to lookup Conflicts check) -actual knowledge of COI can be inferred from circumstances or normal COI if Client hires Lawyer for full time work after Fee Scheduling: Client needs to be informed of how fees will be calculated, scope of representation Excessive fees and minimum fees are prohibited factors to consider a reasonable fee: -almost anything -time and labor -difficulty and novelty of question -experience/ability/reputation of lawyer -longer the relationship with client, larger the fee -contingent fees can be higher -customary fee charge for that service -look out for lawyer making a promise for fee and then changing later on contingent fee: -1/3 or less is reasonable -no incentive/contingent fee for criminal cases (convicted is X%, acquittal is Y%) -no percentage of publication/literary rights may be based on representation *Client can pay with royalties from some other book (just not about the litigation/representation) *Client may pay after representation is over with book money -Domestic relations *allowed to use contingent fees for collecting a bad debt (e.g. collection of alimony) -must be clear about arrangement (before expenses?) No fee splitting with members outside the firm, referral fees are unethical -unless work together, Clients informed written consent, paid proportionally to work done, total fee is reasonable in total -may enter reciprocal referral arrangement if: *not exclusive *referred Client must be informed (and recv written informed consent if COI occurs) *referral agreement must not interfere with Lawyers decisional ability *Arrangement must not be indefinite Selling Practice: must sell entire practice, not just a portion must identify a purchaser who is qualified to take the practice written notice must be provided to Clients -re sale

-Clients right to have files return -Clients right to get new counsel Consent will be presumed, if Client does not take action w/in 90 days of receipt of notice **Seller must stop practicing the type of practice sold (no starting over again) purchaser must take all Client matters, not just the good ones Privilege and Confidentiality: ~about 4 questions Confidentiality is much broader than ACP 2) privilege protects confidential communications Confidentiality protects that and more regardless of the source, including embarrassing/derogatory secrets e.g. anon letter comes with embarrassing pic of client (Confidential, but not Privileged) Client holds the Privilege (may share the info, lawyer may not) 3) Privilege prohibits cts from compelling attorney/client comms, Confidentiality applies in broader concept 4) 3rd party disclosure doesnt destroy Privilege if working with party on attorney/client relationship e.g. accountant 5) Prospective clients, ACP protects comms btw prospective clients Work Product Doctrine: work made for representation is protected unless other side can show: 1) substantial need and no way to obtain info w/o undue hardship opinions are always immune unless privilege is waived Client authorizes disclosure (express and implied) -express requires WIC -implied authorization to do your job, (e.g. sharing info w/ paralegals) Exceptions to Privilege: 1) waived by client 2) client seeks lawyers assistance to commit FUTURE crime/fraud 3) breach of attorney/client duty (when client sues attorney) 4) when civil cases btw parties who formerly lawyer represented both Exceptions to Confidentiality 1) waived by client 2) requird by court order (Client is brought up on charges for supporting terrorists and police need to find him) 3) informed consent 4) implied authority to disclose (sharing info w/ paralegals) 5) to obtain ethical advice (must anonymize data) 6) to prevent reasonably certain death or substantially bodily harm 7) to prevent substantial financial harm or a fraud *Past crimes cannot be disclosed -Client admits to killing people and where bodies are buried (cannot disclose where they are) *Death of a party does not end obligations to that party WIC (written informed consent): client agrees to the proposed course of conduct after the lawyer sufficiently explains material risks and reasonable alternatives (in writing)

Conflicts of Interest: generally cannot serve adverse interests of a Client or prospective Client Exception by: 1) WIC (clear ups pretty much any conflict) Personal Interests of Attorney: imputed COI (when one partner of firm has COI, entire firm has it) prexisting sex w/ Client is ok, but may not start having sex with a Client. -not imputed, but tainted attorney must be screened from case no loans or any money given to client -except to advance the cost of litigation (filing fees, doctor fees) Lawyer as Witness: lawyer cannot be necessary witness for a Client -exception for ministerial or uncontested -exception for legal fee matter (fees awarded to lawyer pursuant to a case) -exception if substantial hardship to client otherwise disqualification not imputed, must be screened Acquiring Interest in Case: generally not allowed -except contingent fees -security liens (lawyers have some property interest in work product) Screening Lawyer in Firm: Lawyers COI is not imputed to firm if based on duties owed to former Client, arises out of association w/ former Firm, and timely screened -screening a COI lawyer who used to represent a COI Client is ok for a firm -screened means getting no part of fee Lawyer cannot enter business deal w/ a client, except: -ordinary transaction (buying a car, getting a mortgage) -as long as terms are fair *full disclosure of terms in writing *advise Client to get independent legal counsel *informed consent *signed by client Conflicting Interests of Clients: when prospective, current, (sometimes not against former client) -cant represent Client in one matter and against in another -represent current client against former when acquire relevant info unable to represent more than one client in same suit, unless: -reasonable belief no adverse effect, -WIC *may not aggregate claims (1 settlement figure for all Clients) unless: -clients have come to an agreement -disclose to each client, 1) total amount paid or recvd, 2) existence/nature of all claims, defenses and pleas involved in settlement, 3) details of every other clients results in settlement 4) how lawyers fees/costs will be paid and by whom -if need to disclose Confidential info, then must get WIC before hand Corporate Representation:

Lawyer represents corporation, no human entity Lawyer can be Directory, but no ACP at meetings If lawyer learns act has been or about to be committed which violates law and violation likely to cause substantial injury to Corp, then MUST take reasonable steps to protect interests of Corp, including: 1) MUST report violation to higher authority (President and/or outside Directors) 2) MAY report to authority outside Corp, but only to extent necessary to reasonable avoid harm * narrow range, need not report if lawyer reasonable believes not in best interest Duty of Security Lawyers: MUST report to security violations up the chain (President and/or Board) MAY report to SEC *SEC will protect lawyer if report to them Reveal info only to best interest of Corp Influences by Persons other than Client Attorney may be paid by 3rd party, but requires 1) WIC from Client and 2) Client Confidences MUST be kept *do what client wants, not the payer Imputed Disqualifications: Lawyers related as parent, child, sibling or spouse SHALL not represent adverse parties, unless informed consent, but no rule of imputation Lawyer as Mediator, Arbitrator, or Judge: Judge/govt employee going to private sector cannot take on matters where had previous substantial responsibility w/o Informed Consent (but no rule of imputation if lawyer is screened) -Matter is specific facts with specific parties * Matter/work can take was 1) drafting laws 2) compiling statistics 3) drafting legal opinions *Matter cannot take: 1) finding of guilt as a judge (cannot challenge what you did on the bench) 2) drafting a contract for the government that is in issue 3) representing the govt in the same or related litigation Screen: 1) written disclosure to the govt 2) no fee to the screened off attorney 3) no working on, discussing case or access to the file by the screened off attorney Competence, Legal Malpractice and other Civil Liability ~5 questions Competence is two pronged: 1) Professional responsibility 2) malpractice *violating one does not necessarily mean violating the other Civil Liability (malpractice): 1) recovery comes from Torts, Contracts, or Fiduciary Relationships 2) requires money loss and causation (tough standard to prove) 3) purpose is compensation 4) Standard of Care:

-ordinary standard of reasonable care -Specialist are held to higher standard if hold selves out at specialists Maintaining Competence (PR): purpose is punishment (not compensation), want to punish lawyer for being evil doesnt require money loss or causation if violated rules, then in trouble even if helped clients Acceptance of Employment: lawyers are presumed to be generalists (write wills and try murder cases right off the bat) Exercise Diligence: Lawyer MUST: 1) reasonably consult Client re means to achieve clients objectives 2) keep Client reasonably informed 3) promptly comply with reasonable requests for info by Client 4) explain matters to Client so Client can make informed decisions 5) Communicate all settlement offers Limiting Liability: cannot do this prospectively, unless Client has independent representation in making agreement -Exception for incompetence case, where Lawyer is incompetent on matter -> allows making limiting liability agreement Litigation and Other Forms of Advocacy: Conduct: lawyer MUST have good faith basis for actions MUST be truthful SHOULD be courteous Client Fraud 1) client IS committing fraud or perjury, then lawyer MUST seek to withdrawal -if failed to withdrawal then lawyer MAY disclose fraud to judge 2) client HAS committed fraud or perjury, then MUST NOT disclose fraud -exception, lawyer has duty to rectify false TESTIMONY Comm in Course of Representation: to unrepresented, cannot give legal advice (when opponent is pro se) cannot appear disinterested when in fact are not CAN negotiate or settle Clients dispute against unrepresented person -once opponent has a lawyer, then MUST negotiate with lawyer only advice MAY give them is get a lawyer