Mass Bar Essay: Professional Responsibility And 93A

Front 1

Governing rules for regulation, admission and conduct of Mass Attorneys is in

Back 1

Mass Rules of Professional Conduct

Front 2

Power regarding professional conduct is in

Back 2

SJC plus statutes enacted by Mass legislature

Front 3

Association with Mass Bar is

Back 3

Voluntary

Front 4

Who investigates complaints?

Back 4

Board of overseers (appointed by SJC) and it appoints chief bar counsel to make preliminary determinations

Front 5

4 things the Bar Counsel can recommend

Back 5

1. Dismissal of Complaint
2. Admonishment of Layers
3. Institute Formal Proceeding
4. Formal Discipline by agrmt

Front 6

4 Types of discipline that can be imposed

Back 6

1. Admonishment
2. Public reprimand
3. suspension
4. Disbarment

Front 7

Lawyers are also subject to malpractice claims by their clients. If L commits malpractice

Back 7

L may or may not be appropriate for disciplinary action. Absent evidence of unethical conduct, matter will likely close

Front 8

Requirements for admission to the bar must be rationally related to practice of law. This includes

Back 8

graduation from ABA approved law school (MA: also schools allowed to grant JDs by state statute)
Oath to uphold state and fed constitutions

Front 9

not rationally related to the practice of law (and therefore cannot be a requirement for admission to Bar)

Back 9

US citizenship
residency in the state

Front 10

Good moral character requirement

Back 10

truth and full disclosure, including correcting misunderstandings or errors known by L
duty to cooperate
pass MPRE

Front 11

L1 knows of violation by L2 that raises substantial Q as to Ls's character and fitness as lawyer. what duties does L1 have?

Back 11

1. inform Bar counsel's office or Commission on judicial conduct (if L2=judge)
2. be available to testify before the board

Front 12

exception to L1's duty to report on L2's violation raising Qs re: character and fitness to be a lawyer?

Back 12

L1 learns of it through representation of L2 as a client: duty of confidentiality trumps.
BUT. L1 can't recommend L2 for admission to another bar

Front 13

multi-jurisdictional practice: what if L is disciplined in state 1?

Back 13

most states give some effect to sister state's determination (FFC) but do not necessarily discipline L as well

Front 14

L unauthorized practice =

Back 14

practicing where not admitted

Front 15

How to practice temporarily in another jurisdiction?

Back 15

1. Associate w/ local L
2. pro hac vice request from ct
3. mediation or arbitration is OK
4. anything reasonably related to L's home-state practice is OK

Front 16

Activities that require a license and which = "practice of law"

Back 16

1. appearances in judicial proceedings and depos
2. drafting legal doc that impact substantial client rights
3. Negotiating settlements

Front 17

Activities that do not require license

Back 17

-interview (not depose)
-fil-in legal forms
-write legal memos

Front 18

Client decisions

Back 18

those that impact clients rights.
L may decide procedure, tactic, strategy, but client may veto due to cost.

Front 19

offers for settlements

Back 19

client decides whether to take them or not. L abides by them

Front 20

in questions about client autonomy, watch out for other issues related to

Back 20

duty to report.

Front 21

client autonomy: minor or mentally impaired clients

Back 21

1. maintain normal A-C rel,
2. but if risk of substantial physical financial or other harm, consul with family members of adult protective agencies.
3. where necessary, seek appointment of guardian.
4. confidential information may be disclosed only to reasonably necessary extent to protect C's interests

Front 22

can third person pay for client's L's bills

Back 22

yes, but Client still makes all decisions.

Front 23

L takes only cases L is competent to handle. "Competent" is:

Back 23

physical and mental ability
legal knowledge time

Front 24

what if L not competent to take a case?

Back 24

1. tell client to hire other Lawyer
2. ask Client to let L hire co-counsel
3. ask for time to learn the area

Front 25

Lawyers May NOT help non-lawyers engage in unauthorized practice of law. Why?

Back 25

only lawyers may engage in the practice of law.

Front 26

Can L give pro-se litigant some advice on how to win a trial?

Back 26

yes. pro-se litigant OK. non-lawyer giving others legal advice is not OK

Front 27

Non-Compete Agreements?

Back 27

not OK unless
1. retirement
2. settlement of dispute between lawyers

Front 28

Firm name must be

Back 28

1. not misleading
2. May include names of dead people who were associated with firm, but not names of people who have left permanently for other reasons (disbarred, ambassadorships)

Front 29

Holding oneself out as a specialist is

Back 29

1. making a statement that L concentrates/specializes in specific area of law
2. appearing as such in directory listing
3. any other way in which L associates with other specialists

Front 30

Specialist v. "certified"

Back 30

specializing can happen through years of practice. to be certified you must be certified by
1. private org that must be named and that is not regulated by Mass
2. by a government body which must be named

Front 31

Test for false or misleading advertising is

Back 31

whether a layperson would find statement or ad misleading

Front 32

In Advertising, you cannot have

Back 32

1. misleading/false information
2. unverifiable comparison (e.g. "better lawyer than X and at half the price".
3. no direct references to L's clout and connections
4. nothing that suggests guaranteed results.

Front 33

Advertising and contingent fees

Back 33

terms and basis of agreement must be stated clearly, including whether client is responsible for costs, etc.
"We don't collect unless you win" is not sufficient.

Front 34

Targeted Mail

Back 34

1. truthful, nondeceptive direct mail to any person known to face SPECIFIC legal problems or groups of people likely to need specific legal services.
2. Mass requires disclaimer
3. 45 day fed prohibition on contacting people after disasters

Front 35

Advertising requires

Back 35

1. name of at least one L responsible
2. Ad must be kept for 2 years after dissemination w/ info of where and when used
3. if client names in Ad, requires client consent

Front 36

Soliciting Clients

Back 36

1. no soliciting clients.
2. Exceptions: other bar members, grandparents of lawyer or spouse or descendants of grandparents; former clients; communication with orgs or persons in trade or commerce.

Front 37

if you give in-person, unsolicited advice, then

Back 37

you can't accept employment resulting from that advice

Front 38

Sale and Purchase of Law Practice OK if

Back 38

1. written notice to clients, including changes in fee arrangements (can't raise fees)
2. inform clients they have a right to get different lawyer (inaction by client for 90 days = consent)
3. must sell whole practice or entire area of practice.

Front 39

Exceptions to A-C confidentiality obligation

Back 39

1. required by law or court order
2. with cleint consent after consultation
3. to the extent that L reasoanbly believes is necessary to prevent death or substantial bodily harm or substantial injury to financial or property interests of another, wrongful execution or incarceration of another, and to rectify client fraud.

Front 40

Obligation to safeguard client's property

Back 40

if client gives you property, must keep it in a bonded warehouse

Front 41

Conflict of interest. L may accept a case with conflict only if

Back 41

client agrees after lawyer explians material risks and reasonable alternatives and client agrees in writing
(WRITTEN INFORMED CONSENT)

Front 42

Conflict of Interests:
interest in the litigation

Back 42

especially in a criminal case, you cannot acquire an interest in the litigation (say, an interest in a book deal about the trial)

Front 43

will drafting:

Back 43

1. L cannot write a will if L is beneficiary except for de minimis or nominal gifts or wills for family members.

Front 44

lending money to clients

Back 44

not permitted. you may advance cost of litigation and repayment can be contingent upon outcome of the case.

Front 45

Fee payment by third party: effect on who makes decisions

Back 45

always the client, regardless of who pays the bills.

Front 46

limiting malpractice exposure by agreement

Back 46

not allowed unless you take a case in which you are not competent and client insists on you taking it anyway. But client needs independent representation to sign the agreement.

Front 47

you cannot do business with client unless

Back 47

1. unless it's fair to the client
2. has nothing to do with legal services.

Front 48

representing a client against a former client

Back 48

OK except (1) when it involves a matter in which you represented the former client or (2) if you learned confidential information during representation of former client that is now relevant to the current client's case

Front 49

Representing a corporation: duties

Back 49

report up and, where appropriate, report out
(Sarbanes-Oxley governs securities lawyers)

Front 50

Conflicted lawyers in a firm and Screening them out

Back 50

in the bar exam, there will probably be a problem with any screening attempt: access to files, shared office space, etc. impute Conflict to law firm

Front 51

Contingent Fees not allowed

Back 51

1. criminal cases
2. domestic relations case

Front 52

unpaid alimony/child support in Massachusetts
and Contingent Fees

Back 52

not family relations case. It's just a bad debt case.
Therefore, contingent fees OK.

Front 53

Splitting fees with non-lawyers

Back 53

1. not allowed. L must pay accountants and other consultants separately.
2. splitting real estate fees with broker is OK b/c not legal fees.

Front 54

Exceptions to rule of no splitting fees

Back 54

1. salaries, retirement plans, bonuses, profit sharing
2. spouses of deceased partners to pay fees earned by deceased partner
3. giving $ to non-profit orgs that you represented pro-bono

Front 55

Splitting fees with Ls from other firms

Back 55

1. client must consent to arrangement
2. total fee is reasonable
3. lawyer to whom referral is made must confirm compliance with 1 and 2 before representing.

Front 56

Dividing fees among Ls in case

Back 56

fees don't have to be proportional unless, with clients written consent, each lawyer assumes joint responsibility for the representation

Front 57

Retainer: 2 types

Back 57

1. Advance on Fees
2. Availability Retainer ($ for the business L loses by agreeing to be on retainer for C. L keeps $ even if there never is a a lawsuit)

Front 58

Keep operating accounts separate from trust accounts. Rules on Trust account

Back 58

1. account must in in Mass unless client gives permission for other account
2. must notify client when $ comes in
3. keep records for 6 years

Front 59

exceptions to requirement to have a trust account

Back 59

Dead lawyers, law profs, retired lawyers, judges, inactive lawyers

Front 60

using money from trust account for operating costs is

Back 60

conversion

Front 61

Fees may be deducted from Trust account. If they are not deducted regularly, then you have

Back 61

comingling of funds

Front 62

fee disputes

Back 62

keep disputed amount in trust account until it gets resolved

Front 63

IOLTA

Back 63

interest on Lawyer's Trust Account: all interests goes to Mass Legal Assistance Corp and other charities designated by SJC

Front 64

subordinate lawyer defenses

Back 64

1. doing what you were told
2. it's arguable that what you did, you thought was OK to do

Front 65

supervising lawyer is responsible for the actions of

Back 65

everyone who reports to her.
1. She is responsible if she tells subordinates to break a rule or if she ratifies the conduct. If she did not, then
2. She must take steps to mitigate when they first find out.

Front 66

when can L talk to jury?

Back 66

1. neer during trial
2. after trial, but not if court prohibits it, not if it's just to harass, and not if jury does not want to talk

Front 67

when can L talk to adverse party

Back 67

never. always talk to adverse party's lawyer.

Front 68

when can L talk to Witness (even adverse party witness)?

Back 68

anytime.

(careful with corporate Ws; they may be the adverse party if they hold certain positions in corporation)

Front 69

Disclosing adverse authority

Back 69

1. obligation to disclose adverse authority from the CONTROLLING JURISDICTION

Front 70

Duties of opposing counsel

Back 70

1. no unlawful obstruction of access to evidence; no false evidence.
2. no knowing disregard of obligations under the rules
3. no frivolous discovery requrest
4. cannot allude at trial to matters L reasonably believes cannot be supported by evidence.
5. cannot request a non-party to not provide information voluntarily
6. cannot offer to cover W's fees contingent on the content of their testimony
7. cannot present or threaten criminal or disciplianry charges to gain advantage in civil matter
8. no biased or prejudicial conduct while appearing in a professional capacity

Front 71

what if L finds out info that is privileged, which brings L into conflict with her duties to the tribunal?

Back 71

seek to withdraw

Front 72

L must withdraw if

Back 72

1. representation will lead to violation of the rules
2. L becomes impaired
3. client fires L

Front 73

what if client has commited perjury at trial

Back 73

1. convince her to fix it.
2. seek to withdraw
3. ultimately, do what the judge says

Front 74

when you terminate a client relationship you must do so in a manner that

Back 74

1. does not prejudice the client
2. must return file and unused portion of retainer

Front 75

Trial Publicity: L may not make public statement outside courtroom that

Back 75

1. L reasonably should know would have a substantial likelihood of materially prejudicing the case
2. but L has right to respond to public statements made by opposing counsel
3. Prosecutor: can't make out-of-court statements that tend to heightening public condemnation of the accused

Front 76

what may a lawyer state to the public about the trial

Back 76

only the dry facts about the case

Front 77

special duties of prosecutor

Back 77

- proceed only on probable cause
- protect ∆'s rt to counsel
- do not seek advantage from unrepresented
- disclose exculpatory evidence
-limit extrajudicial statements of others under prosecutor's control

Front 78

L must not try to avoid appointment by court except for good cause such as

Back 78

1. if rep would lead you to violate rules.
2. if rep would put an unreasonable financial burden
3. cause is so repugnant that you can't provide adequate representation.

Front 79

Pro Bono requirements?

Back 79

not required, recommended
-25 hours per year or $250-1% of annual taxable income to organizations who do this work

Front 80

Chapter 93A is the

Back 80

Massachusetts Consumer Protection Act

Front 81

Chapter 93A provides public and private remedy for

Back 81

unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce

Front 82

Chapter 93A relief is available through what kind of legal action?

Back 82

tort or contract action

Front 83

Ch. 93A claim requires that transactions in issue occur where?

Back 83

primarily or substantially in Mass

Front 84

for purposes of 93A, what factors are relevant to question of where the transaction occurred?

Back 84

-where ∆ committed the deceptive practice or act.
-where π received and acted upon deceptive statement or acts
-where π's losses occurred as a result of hte act

Front 85

3 typical 93A scenarios

Back 85

landlord-tenan, contractor sued by homeowner; car seller sued by buyer

Front 86

What types of transactions are not covered by 93A?

Back 86

completely private transactions, not undertaken in the normal course of business.

Front 87

Business sues a Business under 93A, what section

Back 87

section 11

Front 88

Individual sues a business under 93A. What section

Back 88

section 9

Front 89

Section 9 of Ch. 93A (individual sues business) requires what?

Back 89

30-day demand letter before filing lawsuit. Otherwise, claim dismissed.

Front 90

93A section 9 demand letter must include...

Back 90

(1) identity of claimant, (2) reference to 93A, (3) reasonable description of unfair or deceptive practice and injuries suffered, (4) relief requested, (5) expectation of settlement WITHIN 30 DAYS, (6) assertion that multiple damages and attorneys' fees will be pursued if relief is denied.

Front 91

what's an unfair and deceptive practice?

Back 91

conduct that could reasonably be found to have caused a person to act differently than if she had received correct information

Front 92

what is a "person" under 93A?

Back 92

-natural person
-corporation
-trust
-partnership
-incorporated and unincorporated associations

Front 93

is there a right to jury trial for a 93A claim?

Back 93

no, but the court, in its discretion, can grant a request for jury trial

Front 94

what do you recover under 93A

Back 94

statutory damages: value of the item.
-section 9 does not require proof of financial loss (but lost income has to be proven, and if proven, can also be recovered)
-section 11 requires proof of financial loss

Front 95

93A double or treble damages if

Back 95

-unlawful practice was willful or knowing violation of Ch. 93A, or
-refusal to grant relief requested in demand letter was in bad faith (knew or should have known that act or practice violated 93A

Front 96

what if Ch. 93A ∆ makes reasonable settlement offer as determined by the Court?

Back 96

recovery is limited to the relief tendered and not multiple damages

Front 97

π may recover attorney fees and costs unless

Back 97

offer of settlement was timely and reasonable.

Front 98

Statute of Limitations for Ch. 93A claims

Back 98

4 years in general, but
3 years for tenant's claim against landlord