Study your flashcards anywhere!

Download the official Cram app for free >

  • Shuffle
    Toggle On
    Toggle Off
  • Alphabetize
    Toggle On
    Toggle Off
  • Front First
    Toggle On
    Toggle Off
  • Both Sides
    Toggle On
    Toggle Off
  • Read
    Toggle On
    Toggle Off

How to study your flashcards.

Right/Left arrow keys: Navigate between flashcards.right arrow keyleft arrow key

Up/Down arrow keys: Flip the card between the front and back.down keyup key

H key: Show hint (3rd side).h key

A key: Read text to speech.a key


Play button


Play button




Click to flip

103 Cards in this Set

  • Front
  • Back
Categories of questions
Judicial Conduct (6 Qs)
Model Rules
Model Code
Rules v. Code
Code - 2 types of provisions
(1) Disciplinary Rules (DR)--> atty subject to discipline
(2) Ethical Considerations (EC) --> violation does not subject atty to discipline

Rules: (like Restatements)
(1)Commentary to rules are similar to ethical considerations of the Code

State law:
Sanctions (penalties for private, public repremand, punishment).

Both code and rule establish applicable standards for malpractice.
- use general rules of tort law to answer question
"Subject to litigation sanction"
Whether the described conduct would subject lawyer or law firm to sanction by tribunal (fine, contempt, etc. sanctions)
"Subject to discipline"
whether the described conduct violates the model rules of conduct
"may or proper"
Whether described conduct is proper. May the attorney engage in such conduct. Whether the conduct is not consistent . . . with rules, etc.

Indicates discretionary attorney conduct.
"Subject to disqualification"
Whether the described conduct would subject lawyer or law firm to disqualification in a civil or criminal matter.
"Subject to civil liability"
Whether described conduct would subject lawyer or law firm to civil liability (malpractice, breach of fiduciary duty)
"Subject to criminal liability"
Whether described conduct would subject lawyer to participation in criminal acts (destruction of evidence)
Malpractice liability v. Ethical Violations
L comingles trust funds from C, but pays back to C's account with interest.
- No harm. No liability.
- But fact that L comingles funds = ethical violation (1.15(a) comingling trust funds)
Malpractice liability v. Ethical Violations
Missing Statute of limitations once
- liability of malpractice.
- no EV. Not enough to constitute incompetence 1.1.
Style of Questions
Questions = single fact pattern, single answer choice.

One fact pattern with multiple Questions (happens when testing on conflict of interest).
Style of Answer choices
(read all 4 answer choices)
- distractor answer is in the "a" position.
- exam is not designed to test you on exact verbatim of the rules.
2 yes
2 no

"if" = broadest answer choice of 3, most likely to be correct. Yes if there is a specific reason to follow.
- just must be a true statement to be the correct choice.

"because" = second most likely to be correct. Conclusive answer choice. Reason doesn't have to be the most relevant, as long as it is a correct statement that follows the word because.

"unless" = narrowest of the 3, least likely to be correct. Correct only if the qualification following it is true. If you see the words
"no, unless" = "yes only if"
"yes, unless" = "no only if"
- unless choices are correct 25% of the time.
MPRE Subject Matter Outline
Substantive areas:
(1) Regulation of Legal Profession (5)
- admission to bar, regulation of lawyers, maintaining professional standards (peer responsibility, whistle blowing, fee splitting, unauthorized practice of law)
(2) Attorney-client relationship (6)
- scope of representation, atty fees, L-C contracts, withdraw
(3) Privilege and Confidentiality (4)
- Evidentiary and ethical privileges (confidences, secrets), Client authorized disclosure, special disclosure problems
(4) Exercise of independent professional judgment (7)
- Conflicts of interest (personal conflict, business, former client, current clients), vicarious disqualification, advocate witness rule
(5) Attorney competence (5)
- Malpractice, civil liability, maintaining incompetence
(6) Advocacy and Litigation issues (7)
- Courtroom behavior, atty-client decisions during litigation, fraud and perjury problems, extrajudicial communications
(7) Different roles of lawyer (2)
- advisor, negotiation, meddiator
(8) Safekeeping property (3)
- Client funds, disputed claims
(9) Legal Services (3-4)
- Atty referrals, solicitation, advertising
(10) Improving the legal system (1)
- Pro Bono, public service
(11) Judicial Ethics (6-7)
- Code of judicial conduct
Practice Question tips
Do Practice brochure:
30% (15 questions) are repeated on each exam from past exam.
State discipline of L
State can discipline attorneys admitted in its state (no matter where conduct occurs)
Any fraud is improper. Doesn't matter where you live or conduct occurred. Also, doesn't matter if you were practicing law when fraud occurs.
Raw score (total number of questions answered correctly)

Scaled score (50 to 150) - 35 questions = 85 scaled store
(1) Admission to bar
(2) Letters of Recommendation
Admission to Bar
State bar may subject atty to discipline for making material false statement on the application.

Statement must be: (elements)
(1) False
(2) Material
(3) Knowingly made

Duty to affirmatively clarify anything on bar application after you sit for bar and before you are admitted. But you do not give up your 5th amendment protecting from self-incrimination.
Letters of Recommendation
L may not recommend someone he knows to be unqualified in regards to:
(1) Character
(2) Education
(3) Moral fitness

Atty need not be a self-apptd investigator. L should report all unfavorable information he possesses.
Attorney Misconduct
General catch-all:
Atty is "subject to discipline"
(a) if he violates Model rules of conduct
(b) Commits criminal act that reflects adversaley on the L's honesty
(c) If attorney is dishonest or engages in fraud or deciet
(d) Attorney interferes with adminstration of justice
Whistle blowing
If attorney possesses "unprivileged knowledge" of an ethical violation, he is required to report that knowledge.
- knowledge of clear violation required
- 8.3(a) substantial question of the lawyer's honesty, loyalty, trustworthy, fitness of lawyer
Whistle blowing
Duty to whistle-blow = If attorney possesses unprivileged knowledge of an ethical violation, he is required to report that knowledge.
- knowledge of clear violation required
- 8.3(a) substantial question of the lawyer's honesty, loyalty, trustworthy, fitness of judge
- 8.2(a) may not falsely accuse judge (false statement of facts)
Attorney-Client relationship
(1) advertising
(2) solicitation
(3) attorney fees
(4) withdraw
General media advertising

(1) cannot contain false statements nor
(2) can it create an unjustified expectation nor
(3) comparative allowed, but narrowly construed

Improper Misleading statement: renege on an advertised price (30 days must be left); call yourself a partner if you are not; claim specialization (licence + certification) if not (admiralty law, patent law - need special certifications)
Live in-person solicitation for profit (Lawyer initiated contact with a specific prospective client).

7.3 + Case (O'Rallick):
In person soliciation for profit is not protected by 1st amendment.

Applies to live communication (oral, written, electronic).

3 exceptions:
(1) nonprofit motivated solication permitted
(2) solication for close family members
(3) past regular clients

Written solicitation in the mail is protected by 1st amendment if not misleading.
Client Referrals
7.2 comment 5:
L is not permitted to pay another person for referring or channeling professional work.

7.2(b) L shall not compensate or give anything of value to a person who recommends employment.

L may pay:
(1)reasonable costs of advertisement
(2) reasonable costs to compensate marketing services, employees, vendors
(3) Usual charges of employment referall services (kansas legal services)
Attorney Fees
Atty fees shall not be unreasonable.

In other words, atty fees must be reasonable. (Excess of fees prohibited.)

Factors (Reasonable):
(1) Time required
(2) Difficulty of case
(3) Customary fee for this work
(4) Result (was it sucessful)
(5) nature and length of relationship with client
(6) skill, experience, rep of atty
(7) whether fee was contingent
(8) total value of claim
Fee Arrangement
Not required to be written, but preferred.
Contingency Fees
Must be in writing.
- Not allowed in:
(1) criminal cases
(2) domestic relations cases
Fee Splitting
Single billing to client, covering fee of 2 or more lawyers who are not in the same firm.

Lawyers not in the same firm cannot divide fees unless:
(1) Client consent and in writing
(2) fee division proportionate
(3) total fee must be reasonable

Attorneys cannot give each other finder fees or trade off cases unless client consent.

5.4 Attorneys cannot split fees with nonlawyers except in the following 2 circumstances:
(1) money going to estate of deceased partners
(2) fees being paid to pension plan of office worker

Fee disputes should be settled by arbitration, mediation...not by litigation.
Trust Fund Accounts
(ultra conservative)
As a fiduciary, L must not comingle client's funds.
- Required to keep separate identifiable accounts.

Trust Fund Account includes:
(1) all unearned funds paid by client to attorney
(2) all funds which are in dispute.

Atty only needs to keep one trust fund account for all clients.

Disputed amounts may not be withdrawn until dispute is resolved.

Atty must give notice of receipt to client and provide paperwork (label and record).

Any interest earned on the trust fund account belongs to client.
Safekeeping property
(1.15 Comment 1)
Property = other than funds

Other property shall be appropriately safeguarded.

Securities = safe deposit box.

Issue = C retains L and a gives documents (securities), "please hold documents for me." L leaves documents on desk and finds that the documents are gone.
- The attorney is subject to discipline.
- L should have put it in a safe deposit box, not it on his desk.
- Requires court approval to not prejudice client's interest.

4 safeguards:
(1) C must be given reasonable notice;
(2) C must be given adequate time to employ other counsel;
(3) C must be furnished all paper and property back;
(4) All unearned fees must be returned.

Two types of withdrawal
Mandatory withdrawal
L should withdraw:
(1) If continuted representation would result in violation disciplinary rule;
(2) if L mental or physical condition renders continuance unreasonably difficult; or
(3) if C discharges L
Permissive withdrawal
Without good cause:
(1) L may withdraw even without good cause if no material adverse affect on C's interest

With good cause (perjury):
(1) C persists in a criminal or fraudulent action
(2) C use attorney service to perpetrate crime or fraud
(3) C insists on an objective the L considers repugnant
(4) C fails substantially to pay attorney
(5) If represenation will result in unreasonable financial burden to L
(6) L may withdraw where other good cause exists.
Preventing the unauthorized practice of law
L shall not aid a nonlawyer in the unauthorized practice law OR practice in a jurisdiction where not licensed.

General legal advice (C represents himself)= ok
Can't engage in drafting or appearing (L is working for bank and should not have bank solicit clients for him)= subject to discipline

Compensation is never the right answer.
Delegate work to nonlicensed law clerks or secretary
Fine as long as
(1) work is adequately supervised +
(2) appropriately instructs (on secrecy) +
(2) L is liable for work.

Staff members are not subject to discpline b/c not subject to model rules.
L not admitted to practice
Must not establish an office or systematic and continuous practice in that jurisdiction.

L may associate with a L in that jurisdiction and perform services that are reasonably related in this or other jurisdiction.
Multi-state partnerships
Are permitted as long as one L is licensed in that jurisdiction.
Partnerships with nonlawyer
L may not form partnerships with nonlawyer if business is for the purpose of practicing law (no matter how little law will be practiced)
Evidentiary privilege
Ethical privilege

Presence of nonessential 3rd parties destroy privilege (destroys confidentiality).

Privilege survives after relationship terminated.

No fee need be paid for privilege to attach.

L doesn't need to be hired for privilege to attach.

Preliminary facts are not privilege.
Evidentiary privilege
Protects permanently CONFIDENCES (any confidential communication) made by C to L or vice versa.

(1) C waives privilege
(2) Lawsuit between L and C

Attorney (agent of C) subject to discipline.
Ethical privilege
(1.6 comment 2)
Protects SECRETS- all other information that does:
(1) that relates to representation and must not be revealed in absence of C's informed consent; or
(2) information, the disclosure would be embarrassing; or
(3) information who's subject matter would be detrimental or legally damaging to C.

L subject to discpline unless C gives informed consent.
Duty to inform
No duty to inform or disclose on past criminal or fraudulent act.
Exceptions to privilege (may disclose)
L may reveal confidential information to the extent reasonably believed necessary after C gives consent:
(1) Prevent C to commit criminal act that results in substantial bodily harm;
(2) To establish claim or defense in a controversy between L and C
Perjury and fraud problems as relate to confidentiality
Constitutes professional misconduct for a L to engage in conduct involving dishonesty, fraud, deceit or misrepresentation.

Cannot knowingly use:
(1) perjured testimony
(2) false evidence
What if L discovers she has admitted false evidence?
Shall not knowingly make a false fact or law.

Shall not offer evidence known to be false.

L must take reasonably REMEDIAL MEASURES (3.3(b)):
(1) Seek to persuade C to correct falsehood and L must not make active use of such information.
(2) If C refuses to not perjury himself, L shall advise C of duty of candor and seek to withdraw
(3) If can't withdraw, L must make disclosure to court.
Constitutional requirement to Present accused as a witness knowing testimony will be perjured
Constitutional requirement (due process or right to counsel) supercedes L's duty to disclose to court.
- But L who abides by C's decision to testify, L has ethical duty to ask general questions and not profer evidence that she knows to be false.
Possession of Material evidence (smoking gun)
L shall not dispose or conceal material evidence. L must furnish it to the appropriate authorities and explain how received.
L witnesses C engaging in criminal conduct unrelated to the criminal proceedings
Duty not to disclose.
C shows L material evidence
(1) L must counsel C to furnish evidence to appropriate authorities;
(2) L seek to withdraw.
L witnesses C engaging in criminal conduct related to the criminal proceedings
Duty to take remedial measures.
L disclosure to 3rd parties
Cannot disclose fraud. But can give notice to withdraw to 3rd parties and disaffirm any opinion document previously made.
Avoiding Conflicts of Interest
Derived from:
(1) Confidentiality - Need to protect client confidentiality and secrets
(2) Loyalty - Duty of loyalty, zealous representation
Multiple representation
Must not represent C if concurrent conflict exists:
(1)representation of 1 client will be directly adverse to another C (direct exam of C against other C); or
(2)significant risk that representation of 1 or more C be will materially limit L's independent judgment

Exception (prior to accepting employment):
Prohibitions may be waived if each C gives informed consent confirmed in writing.
Litigation v. Negotiation
Litigation = adverse interests

Negotiation = counsel and giving advice (concurrent represenation allowed)
3rd party paying for services of lawyer
(Attorney for insurer and for insured)
Multiple representation:
Only the C (the insured) is who you owe the duty of representation. Insurer merely pay the L.
Aggregate settlements
(class action)
L shall not make an aggregate settlement unless
(1) each C agrees how to divide total amount of settlement; and
(2) each C gives informed consent in writing.
Successive representation
(Dealing with duties to former clients)
L who has formerly represented C in a matter cannot represent a new C ina matter that is adverse to former C if:
(1) results in breach of loyalty (to previous represented C); and
(2) results in breach of confidentiality* (more dangerous)

Former C can give informed written consent = gets rid of duty of loyalty b/c employment is terminated.

BUT L cannot switch sides in a matter that is substantially related (directly adverse or materially related).
Personal conflict of interests
(1.2(b); 1.7)
Mere fact that L does not believe in justness of C's cause is not disqualifying unless L's feeling cannot provide zealous representation or feelings have an adverse affect (financial interest).
Business Dealings with Client
Prevent overreaching as to the C.

Permitted if all 4 factors are satisfied:
(1) transaction fair and reasonable;
(2) terms given to C in writing;
(3) C given opportunity to consult another L; and
(4) C must give informed consent in writing.
C's gifts to L
(1) Gifts require instrument;
(2) Gifts don't require instrument
Gifts that don't require instrument
Atty may accept gift if it meets general standards of fairness under appropriate circumstances.
Gifts require instrument
L shall not prepare instrument giving L or L's family any substantial gift from C.
- Will, etc.

Have someone else and not your firm draft instrument (and detach yourself).

C related to donee.
Publication rights
Prohibits L from requiring interest in literary or media rights PRIOR to conclusion of all aspects of matter giving right of employment in matter (trial, appeal, etc.)

NOT WAIVABLE except in CA.

After trial is over, attorney may seek publication rights b/c he is in no better bargaining position than any other publication company.
Financial advances
L may not provide financial assistance, but may advance expenses of litigation.
Financial assistance
Financial assistance = May not advance general living expenses.

Expenses of litigation:
(1) medical exam 1.8 comment 10
(2) filing fees
(3) court costs
Client reimbursement
Not required, and does not remain liable when L pays in indigent case
Malpractice liability
No. Improper to limit liability prospectively in retainer agreement.

C is independently represented in making agreement.
Advocate witness rule
L may not be a witness and advocate in the same case. (prevent confusion of factfinder - speaking as a lawyer or speaking as a witness)

Protecting interest in legal system

Not waivable.

Not an immunity to testifying. Limitation in advocacy itself. Should withdraw as advocate, but doesn't impute other members in the firm.
Vicarious disqualification
(imputation of conflicts of interest)
Attorney disqualified (conflict of interest), other L's in firm are disqualified.
Personal interest exception
(vicarious diqualification)
Prohibition based on personal interest: personal interest must be such that it doesn't prevent a significant risk of materially limiting representation of other L's in the firm. (religious beliefs).
Former gov't attorneys
Former gov't lawyer shall not represent a C in which he personally participated and substantially, absent gov't agency's written informed consent.

No imputation if L is screened from any participation.

Where the L leaves the gov't for private practice, he may represent party against gov't except:
(1) present private representation involves same matter; and
(2) L substantially participated in that matter.
C Waiver of Vicarious Disqualification
C may waive protection in writing, informed consent.
How far do the limits of imputation go?
(1) L's in same "firm" cannot represent both sides.
(2) L's leaving "firm" to go to new firm can represent opposite side if L had not worked on that case.
(3) If L worked on that case in any matter, L is personally disqualified (but under the Rules, not Code, diqualification is not imputed to the new firm).
Duty of Competency
(client decisions)
C = principle

C determines major decisions that affect merits of case (substantial prejudice):
(1) whether or not to testify
(2) whether or not to accept/reject a settlement
(3) whether or not to waive a defense.
Duty of Competency
(Lawyer's decisions)
L = agent

L entitled to make decisions in matters NOT affecting the merits:
(1) tactics
(2) trial preparation

Ex) granting extension of case if not substantially prejudice C's rights = L's decision

Ex) S.O.L. expires by extension = C's decision
Rule: Legal knowledge, skill, and preparation reasonably necessary for representation.

Can't bill for the time you spend researching and studying to become competent.

CLE is required to continue competency.

Incompetence is not waivable by C.
Diclosure of adverse legal authority
L must disclose adverse legal authority in a controlling jurisdiction which she knows is directly adverse to C's position.
Controlling Jurisdiction
(1) U.S. Supreme Court
(2) Cases within that court's jurisdiction
Judicial whistleblowing
(canon 1)
Judge has duty to report violations of other judges.
Judicial impropriety
(canon 2)
Judge should avoid impropriety and appearance of impropriety on or off the bench.
Judge testifying as witness
(canon 2)
Judges as witness = J should not volutarily testify as a witness, unless subpoenaed.

If testifies, J must withdraw from case.

Nonpresiding judge may testify as a witness.
J's ex parte communication
(canon 3)
Ex parte communication:
J should not engage in ex parte communication (without presence of opposing counsel)

(1) may talk to court personnel to aid him;
(2) may speak ex parte with a "disinterested expert ON the law" if J gives notice (= name of person consulting, substance of evidence given, and reasonable opportunity to respond)
J's administrative responsibility
(canon 3)
J has duty to take disciplinary action against another judge or L for unprofessional conduct that J is aware.
J's Impartiality
(canon 3)
A J should disqualify himself in which his impartiality might reasonably be questioned:
(1) Discretionary rulings (granting JNOV, continuance, damage verdict excessive)
(2) But Adverse rulings alone do not create appearance of impartiality.
J's Recusal is warranted
(canon 3)
(1) J is biased against a party (not issue) derivied from an extrajudicial source;
(2) J has personal knowledge of disputed facts (served as former L or material witness or former firm member).

Recusal is not required if J knows party casually.
J's Financial interest
(canon 3)
J should be disqualified if:
(1) J has financial interest in subject matter of controversy or
(2) J has finanical interest in party to proceeding or
(3) J has any other interests that could be substantially affected by outcome of proceeding.

Also applies to J's spouse and minor children residing in household.

*Parties may waive disqualification.
Financial interest
Legal or equitable ownership however small.

Owning even 1 share = equitable interest.
Other interests
Treasury notes, gov't is a party - J can hear the case (unless issue is about when notes become due).

Membership in state bar (raising bar dues), state bar is a party - J can hear case.

If J owns shares in mutual fund, and that mutual fund owns IBM stock, IBM is a party, J can hear the case.

If J owns mutual fund, mutual fund is a party, J cannot hear the cases.
J's Familial interests
(canon 3)
J must disqualify himself if family within 3rd degree relative (everyone closer than cousins) is a:
(1) party to proceeding; or
(2) officer or director of the party; or
(3) L trying case (but if it's the firm, J does not have to disqualify unless the relative has an interest that would be substantially affected by outcome).

*Parties may waive J's disqualification.
J's membership in Canon 4 organizations
(canon 4)
Quasi-judicial activities in improving law: J can appear at public meetings and testify in legal matters.

J can serve as a member, officer, or director of a canon 4 non-profit organization that has at least as one of its goal law reform (ACLU, NCAAP, Sierra Club).
J's fundraising in Canon 4 organizations
(canon 4)
A J may assist canon 4 organizations in fundraising by attending fundraising meetings, but may not personally solicit funds by speaking at meeting or being guest of honor.
Extrajudicial activities
(canon 5)
All other activities not law reform:
(1) charitable
(2) civic
(3) educational

Similar rules as Canon 4, except J may not engage in canon 5 organizations where the organization my appear before J in hearings.
For-profit entities
(canon 5)
Judge cannot be a member, officer of any for-profit entity.

Exception: J can manage real estate investments.
J's receiving gifts
No gifts for J or J's family members.
Exceptions to J's gifts
(1) Public testimonials (statute or painting of himself);
(2) Books;
(3) Gifts of ordinary social hospitality (bringing bottle of wine for party);
(4) Loans, scholarships, fellowships are proper as long as given on the same terms as given to non-judges.
J's duty to report/duty to disclose (compensation)
(canon 6)
A J may be reimbursed for quasi-judicial activities provided COMPENSATION IS REASONABLE (cost of food, cost of travel, cost of lodging).

J's spouse may be included WHERE appropriate.

Any amount over reasonably reimbursed = income AND MUST BE REPORTED ANNUALLY.

Gifts over $150 = compensation AND MUST BE REPORTED ANNUALLY.
Political activities as Judicial candidate
(canon 7)
J acting as judicial candidate should not:
(1) personally solicit or accept campaign funds (instead J should set up committees to do it for them)
(2) should not attend political gatherings nor purchase tickets for political dinners
(3) should not make speeches for any political party
(4) should not become a leader or hold office in a partisan political organization
Elected offices filled by competed candidates (J holding office)
(canon 7 exception)
J who holds the office may do all "forbidded" activities
J running for nonjudicial office
(canon 7)
J must resign from bench.
J's campaign conduct
J should not make pledges or promises in office OTHER than "faithful performance of duties."