Ma Bar Essay - Professional Responsibility

Front 1

What is the name of the professional responsibility rules for MA attorneys?

Back 1

The Massachusetts Rules of Professional Conduct

Front 2

Is membership in the Mass Bar Association required for practicing attorneys?

Back 2

No; purely voluntary in MA

Front 3

Who investigates complaints re: attorneys' conduct?

Back 3

the Board of Overseers (appointed by the SJC) and the Board's appointed "Chief Bar Counsel" who conducts preliminary investigations

Front 4

What procedures can be recommended by bar counsel after preliminary investigation?

Back 4

- dismissal of the complaint
- admonishment
- formal proceeding
- formal discipline by agreement

Front 5

What types of discipline may be imposed on a MA attorney

Back 5

- admonishment
- public reprimand
- suspension
- disbarment

Front 6

What are the "rational" requirements for admission to the bar (per SCOTUS) that MA applies

Back 6

-graduation from an ABA accredited law school (or school authorized by state statute)
- oath to uphold MA & US constitution

Front 7

What are NOT rational requirements for admission to the bar? (per SCOTUS)

Back 7

-US citizenhsip
-State residency

Front 8

What are the "good moral character" components for bar admission?

Back 8

-truth and full disclosure (cannot knowingly make a false statement of material fact or fail to disclose facts necessary to correct a misapprehension)
-Duty to cooperate (i.e. release records)
-Pass the MPRE

Front 9

What must a lawyer do when he/she knows of a violation that raises a "substantial question" as to someone's character and fitness as a lawyer?

Back 9

1. inform the bar counsel's office (or commission on judicial conduct if a judge)
2. be available to testify

Front 10

Which wins out duty to report other attorneys or client confidentiality (i.e. the lawyer is your client)?

Back 10

Confidentiality wins

Front 11

what happens if a lawyer admitted in two states is disciplined in one of them?

Back 11

other state must make an independent determination but most states will give some effect to the other state's determination based on full faith & credit. They will also let the primary state handle the disciplinary matter first.

Front 12

How may an attorney permissibly practice in a state where he/she isn't admitted?

Back 12

Any or a combination of the following:
1. associate with an active local lawyer
2. get special "pro hac vice" permission
3. mediation or arbitration is OK
4. Anything "reasonably related" to home state practice is okay (i.e. you could negotiate a deal)

Front 13

What activities are considered the "practice of law" (i.e. require a license)

Back 13

- appearances in judicial proceedings & depositions
- drafting docs that impact client rights
- negotiating settlements

Front 14

What activities are NOT considered the "practice of law" (don't require a license) which lawyers may do or may delegate to non-lawyers?

Back 14

- interviews
- filling in forms
- writing legal memos

Front 15

What decisions do the clients make?

Back 15

decisions to settle, to appeal, decisions to control cost and, where a criminal defendant, the decision to testify

Front 16

What decisions to attorneys make?

Back 16

procedural, tactical and strategical decisions

Front 17

What must a lawyer do where the client loses the ability to make a clear decision or suffers from diminished capacity (e.g. too young)?

Back 17

to extent possible, must maintain a normal client-lawyer relationship

but if lawyer "reasonably believes" client at risk of "substantial" PHYSICAL, FINANCIAL or OTHER harm may:
-consult with family members or adult protective agencies or other individuals with ability to protect the client

-if "reasonably necessary" seek appointment of a guardian or conservator

-disclose confidential information ONLY to the extent "reasonably necessary" to protect the client's interests

Front 18

What does it mean that an attorney must only take those cases he/she is "competent to handle"?

Back 18

1. that he/she is physically and mentally able
2. that he/she has the legal expertise; and
3. that he/she has the time

Front 19

If an attorney is not competent to take a case, what may he tell his client?

Back 19

1. get another lawyer
2. let me hire co-counsel
3. give me some time to learn it

Front 20

Can a lawyer help a non-lawyer "practice law"

Back 20

generally no; this is unauthorized practice of law

BUT, an attorney may give advice to someone appearing pro se

Front 21

Can lawyers enter into non-compete agreements?

Back 21

Generally no, but can only where reasonable as a condition of retirement or part of a settlement

Front 22

What are the rules regarding a firm's name/directory listing?

Back 22

1. must be appropriate (can't be misleading, can't have anyone's name on the door when they are gone permanently)
2. Can hold oneself out as a specialist & appear that way in the directory (but must name any certifications & indicate that standards aren't regulated by Mass.)

Front 23

What can and cannot be said in advertising

Back 23

1. can hold oneself out as an expert but any certifications have to say certifying org name & that not regulated by Mass.
2. can't say anything in advertising that would be misleading to a "layperson" (assuming that the layperson is a moron)
3. can't reference clout or connections
4. must state terms/basis of any contingent fees
5. must contain name of at least one lawyer responsible for content of ad
6. any client names in ad require client consent
7. where direct mail, must say "this is an advertisement" and must include a disclaimer that anything misleading should be reported

Front 24

How long does a firm have to keep its ads? What other records do they need?

Back 24

must keep for 2 years along with a record of where and when it was used

Front 25

What can a lawyer do to solicit clients and what can't he do?

Back 25

1. Can send "truthful, nondeceptive" direct mail letters to any person or groups of people known to face a specific legal problem or likely to need legal services;
2. cannot solicit clients for FEE-PAYING WORK (even "desired solicitation") by means of direct personal contact (includes phone, text messages..anything real time) UNLESS that person is a bar member, relative (spouse, grandparents or descendants of grandparents), previous attorney-client relationship with the person, or organization or person in trade or commerce
3. can't have anyone else do what you aren't allowed to do

Front 26

What must you do with clients where sale & purchase of law practice?

Back 26

- written notice to clients
- no change in fee arrangements
- clients told they have right to get a new lawyer
-consent presumed if they take no action in 90 days
-have to sell ALL cases, not just the bad ones

Front 27

What are the exceptions to the rule that a lawyer cannot reveal confidential information that can hurt a client regardless of source?

Back 27

- where required by law or court order
- where client consents after consultation
- may reveal to the extent "reasonably necessary to prevent conduct likely to result in death or substantial bodily harm or substantial injury to the financial or property interests of another, the wrongful execution or incarceration of another, and to rectify client fraud, collect a fee, or protect reputation"

Front 28

Does confidentiality die with the client?

Back 28

NO survives client death

Front 29

How must lawyers safeguard client property?

Back 29

In a bonded warehouse and protected

Front 30

Can a lawyer represent a current client against another current client?

Back 30

NO never.

Front 31

Where the lawyer has a conflict of interest, what should he do?

Back 31

in most cases, refuse to accept or continue the representation.

However, attorney MAY (so long as not current client vs. current client) accept a case with a client if:
1. all clients have given informed consent (consent in writing after lawyer explains material risks & reasonable alternatives); and
2. a reasonably prudent lawyers would have taken the case

Front 32

When can an attorney acquire an interest in a case (e.g. pecuniary interest)

Back 32

only after entire case is over, appeals and all

Front 33

when can an attorney who is getting something in a will draft that will?

Back 33

ALMOST NEVER
only exceptions:
1. family members;
2. de minimis or nominal gifts

Front 34

when can an attorney make a loan to a client?

Back 34

NO LOANS TO CLIENTS, except in MA you may advance the cost of the litigation (filing fees, etc.)

Front 35

When CAN'T you take a case where it is present client versus former client?

Back 35

-where matter/transaction is something in which you represented former client; or
-where, during representation of former client, you learned confidential info that is no relevant to the action by the current client

Front 36

Can an attorney do business with clients?

Back 36

only where it is FAIR & fully disclosed to client, where client has reasonable opportunity to seek advice of indep. counsel and where client consents in writing

Front 37

Can an attorney get a client to disclaim right to sue you for malpractice?

Back 37

NO

Front 38

Where an attorney is representing a business org and comes across illegal activity, what must she do?

Back 38

1. Report up the chain of command to CEO
2. if not appropriate response then MUST report to the board of directors and MAY report to an outside authority
(same for securities lawyers under Sarbanes Oxley)

Front 39

What must you do if other attorneys in the firm conflict you out?

Back 39

In real world, screen out the lawyers with the conflict

In bar world, conflict out the whole firm

Front 40

What can be considered in determining whether an attorney's fee is reasonable?

Back 40

Just about anything...including time & labor, novelty & difficulty of questions involved, skill required, customary fee in the locality for this work, experience & reputation of the attorney, time limits, interference with attorney's other work

Front 41

When can't you charge a contingent fee?

Back 41

criminal cases and domestic relations cases (but note that past due alimony & child support is actually breach of contract, so it is okay there)

Front 42

What are the rules re: dividing fees?

Back 42

1. cannot divide a legal fee with a non-lawyer (except staff salaries, etc., family of deceased lawyer, former partners/associates)
2. can divide fees with a lawyer in another firm where client consents in writing, total fee is reasonable, and lawyer who gets referral confirms compliance with the rule
3. fees don't have to be proportion to services performed (unless agmt otherwise)
4. do not have to disclose amount of fee each lawyer receives unless client asks
5. fired lawyers get value of services (quantum meruit)

Front 43

What are the types of retainers and how are they earned?

Back 43

1. Advance on fees; goes into client account and attorney takes out $ as earned
2. availability retainer; earned instantly but gets worked off if the person actually needs you

Front 44

What are the two types of accounts a lawyer must maintain

Back 44

Operating account (lawyer's money)
Trust account (client's money -- but lawyer pays bank fees)

Front 45

What are the rules regarding trusts accounts?

Back 45

1. must be in Mass; elsewhere is okay with client permission
2. must notify client when funds come in
3. must keep records for 6 years after termination of representation

Front 46

What is IOLTA

Back 46

interest on lawyer's trust account; interest is paid to the Mass. legal assistance corp or other charities designated by SJC

Front 47

How are the rules of subordinate lawyers and supervising lawyers different?

Back 47

- Subordinate lawyers must follow the rules but if they are accused of a violation, they MIGHT have an excuse if they were told to do it and they reasonably thought it wasn't a violation)
- Supervising lawyers are responsible for themselves and others in the firm if they ordered or otherwise ratified the behavior. If a subordinate does something wrong/inethical, must mitigate the damages

Front 48

When is ex parte communication with jury okay?

Back 48

- where permitted by the court
- NOTHING during trial
- After trial okay unless court prohibits, juror refuses, or where purpose is to harass

Front 49

When can you have ex parte communication with adverse party? With witnesses?

Back 49

Adverse party: NEVER except through counsel
Witness: okay to talk to anyone

Note that if one party is a corporation, anyone with "managerial authority" in the corp is treated as the client for these purposes.

Front 50

Must an attorney disclose contrary/adverse authority?

Back 50

Yes if it is from the controlling jurisdiction only

Front 51

What are the duties of opposing counsel?

Back 51

must be fair and must not:
1. unlawfully obstruct access to evidence
2. falsify evidence
3. knowingly disobey an obligation under the rules
4. make frivolous discovery requests
5. not allude in trial to a matter the lawyer reasonably believes cannot be supported by the evidence
6. request a non-party to refrain from voluntarily providing info
7. pay or offer to compensate a witness contingent on testimony
8. present or threaten criminal/disciplinary charges to gain an advantage in a civil matter
9. engage in bias or prejudicial conduct while appearing in a professional capacity

Front 52

What does an attorney do when info learned through atty-client privilege comes into conflict with a duty to the tribunal?

Back 52

seek to withdraw from the case

Front 53

When must an attorney withdraw from representation?

Back 53

1. where continued representation would cause him to violate rules;
2. when he's become impaired;
3. when he's fired.

Front 54

When may an attorney withdraw from representation?

Back 54

1. client pursues an objective so repugnant to you that you cant continue
2. client not cooperating
3. any reason, at judge's discretion

Front 55

Lawyer connected with a case may not make public statement outside courtroom that the lawyer reasonably should know would have a ___________________.

Back 55

substantial likelihood of materially prejudicing the case

Front 56

When can an attorney make public statements about a case outside of court?

Back 56

1. where reasonable lawyer would think necessary to protect client from substantial undue prejudicial effect of recent publicity not initiated by the lawyer or client;
2. "dry facts" of the case are ok

Front 57

What are the special duties of a prosecutor?

Back 57

1. proceed only on probable cause
2. protect defendant's right to counsel
3. no seeking advantage from unrepresented
4. must disclose evidence tending to negate guilt
5. must not make out of court statements that have a substantial likelihood of heightening public condemnation of the accused
6. must limit extrajudicial statements of others under prosecutor's control

Front 58

Are lawyer's required to do pro bono work?

Back 58

NO

Front 59

Can a lawyer bargain re: duty to report?

Back 59

No

Front 60

When can a lawyer avoid an appointment by the court?

Back 60

only for good cause such as
1. representation would cause you to violate rules;
2. would be unreasonable financial burden
3. cause is so repugnant to you that you can't represent

Front 61

What is the general list of things a lawyer must not do in MA?

Back 61

1. violate or attempt to violate the RPC or knowingly assist another to do so;
2. commit a criminal act that reflects adversely on the lawyer's honesty or fitness as a lawyer in other respects;
3. state or imply an ability to improperly influence a govt agency or official;
4. knowingly assist a judge in conduct that violate applicable rules of judicial conduct or other law;
5. fail without good cause to cooperate with Bar Counsel or Board of Bar Overseers;
6. Engage in conduct involving dishonesty, fraud, or misrepresentation;
7. engage in conduct prejudicial to the administration of justice; or
8. engage in any other conduct that adversely reflects on her fitness to practice law

Front 62

Can a lawyer partner with a non-lawyer?

Back 62

Not if any of the partnership activities consist in the practice of law

Front 63

What is the difference between attorney-client privilege and duty of confidentiality?

Back 63

Atty-client privilege applies only to communications made during the course of the relationship and covers only formal testimony. The duty of confidentiality protects from ANY disclosure of ALL information related to the representation whenever and wherever derived

Front 64

What should a lawyer do if he believes one of his witnesses will testify falsely? Has testified falsely?

Back 64

Will testify falsely - can't put them on the stand

Has testified falsely -- lawyer must reveal it

Front 65

What should a lawyer do if the CLIENT wants to testify falsely (criminal defendant)?

Back 65

must try to persuade client not to, and if that isn't successful:
-if attorney hasn't accepted representation, must not accept
-if accepted but before trial, must seek to withdraw
-if during trial, lawyer may seek to withdraw but does not have to if he reasonably believes it would prejudice the client
-if client has already testified falsely, lawyer must try to persuade client to rectify the testimony, but lawyer is prohibited from revealing.

Front 66

What should a lawyer do if the client wants to testify falsely in a civil trial?

Back 66

MUST NOT call client as a witness. If client reveals after the fact, should attempt to persuade client to recant and if that doesn't work, seek to withdraw. If withdrawal will not remedy or is impossible, must disclose the matter to the court.