Barbri Mpre

Front 1

I. Regulation of the Legal Profession
A. Powers of Courts and Other Bodies to Regulate Lawyers

T or F: The ABA is a voluntary organization that lacks disciplinary power.

Back 1

T

Front 2

I. Regulation of the Legal Profession
A. Powers of Courts and Other Bodies to Regulate Lawyers

What are the 4 types of discipline for violating a mandatory rule?

Back 2

1. Private Reprimand/Censure
2. Public Reprimand/Censure
3. Suspension
4. Disbarment

Front 3

I. Regulation of the Legal Profession
B. Admission to the Profession

What are the 2 rational state requirements for admission to the bar?

Back 3

1. Graduation from an ABA accredited law school.

2. Oath must be taken to uphold the state and federal constitutions.

Front 4

I. Regulation of the Legal Profession
B. Admission to the Profession

What are the 2 irrational state requirements for admission to the bar?

Back 4

1. US citizenship

2. Residency in a state.

Front 5

I. Regulation of the Legal Profession
B. Admission to the Profession

What are the 2 requirements for applicants to the bar?

Back 5

1. Truth and full disclosure.

2. Duty to cooperate.

Front 6

I. Regulation of the Legal Profession
B. Admission to the Profession

What are the 2 requirements for lawyers regarding an applicants to the bar?

Back 6

1. Good applicants - input is aspirational/"should"

2. Bad applicants - duty to report when asked, or to correct something you believe is in error

Front 7

I. Regulation of the Legal Profession
D. Mandatory and Permissive Reporting of Professional Misconduct

What is the 2 prong duty a lawyer has when he knows of a violation?

Back 7

Law is a self-regulating profession, therefore a lawyer must:

1. Report the violation, unless protected by the attorney-client privilege; and
2. Be available for testimony (no anonymous reporting).

Front 8

I. Regulation of the Legal Profession
D. Mandatory and Permissive Reporting of Professional Misconduct

If the unethical conduct is a crime, what must it be relevant to?

Back 8

Some aspect of the practice of law.
Must reflect on the character of the individual. (ex. dishonesty)

However, for fraud in the conduct of business, a lawyer is still subject to discipline even if he is not active in the practice of law. (you are a lawyer 24/7 regardless of what you're doing)

Front 9

I. Regulation of the Legal Profession
D. Mandatory and Permissive Reporting of Professional Misconduct

T or F: The duty of confidentiality will trump the duty to report where a lawyer learns of the bad conduct either through representation of the other lawyer or through an approved lawyer assistance program.

Back 9

T

Front 10

I. Regulation of the Legal Profession
D. Mandatory and Permissive Reporting of Professional Misconduct

T or F: If you know of another attorney's bad conduct, but are excluded from the duty to report, you may still recommend that lawyer for admission to another state.

Back 10

F

Front 11

I. Regulation of the Legal Profession
E. Multi-jurisdictional Practice

What are the 4 permissible TEMPORARY forms of MJP?

Back 11

1. Associate w/ an active local lawyer
2. Special permission called pro hac vice
3. Mediation or arbitration out of home-state practice
4. Anything reasonably related to a lawyer's home-state practice

Front 12

I. Regulation of the Legal Profession
E. Multi-jurisdictional Practice

What are the 2 permissible PERMANENT forms of MJP?

Back 12

1. Employed by her only client which has several offices (ex. corporate or gov't counsel)
2. Legal services authorized by federal or local law (ex. nat'l license like patent license)

Front 13

I. Regulation of the Legal Profession
E. Multi-jurisdictional Practice

What is the primary consequence of MJP?

Back 13

You are subject to both state's rules.

Front 14

I. Regulation of the Legal Profession
E. Multi-jurisdictional Practice

T or F: Multi-jurisdictional firms must indicate where each of their att'ys is allowed to practice?

Back 14

T
Don't want to confuse public about where an att'y is licensed to practice just b/c the firm has several offices.

Front 15

I. Regulation of the Legal Profession
F. Responsibilities of Partners, Managers, Supervisory and Subordinate Lawyers

When is a supervisor responsible for the acts of a subordinate?

Back 15

1. Supervisor knew of misconduct at a time when consequences could be avoided or mitigated, and he failed to take reasonable remedial action; or
2. The violation raises a substantial question as to that lawyer's character & the supervisor ordered or ratified the conduct.

Front 16

I. Regulation of the Legal Profession
F. Responsibilities of Partners, Managers, Supervisory and Subordinate Lawyers

When is a subordinate NOT responsible for his own acts?

Back 16

When the subordinate was told to do it AND its arguable that he thought it was permissible.

Front 17

I. Regulation of the Legal Profession
G. Unauthorized Practice of Law

What 3 activities require a license and constitute the "practice of law"?

Back 17

1. Appearances in judicial proceedings & depos
2. Drafting docs that impact substantial legal rights (Ks, wills, etc.)
3. Negotiating settlements

Front 18

I. Regulation of the Legal Profession
G. Unauthorized Practice of Law

What 3 activities DO NOT require a license and DO NOT constitute the "practice of law"?

Back 18

1. Interviewing
2. Filling in forms
3. Writing memos

Front 19

I. Regulation of the Legal Profession
H. Fee Division w/ a Non-Lawyer

What is the general rule in this regard and what are the 3 exceptions?

Back 19

General rule: Can't share fees.

Exceptions:
1. Heirs of a deceased att'y
2. Employees in the form of salary and as part of a pension or bonus plan
3. Court-awarded legal fees w/ a non-profit org that employed, retained or recommended employment of the lawyer

Front 20

I. Regulation of the Legal Profession
I. The Law Firm and Other Forms of Practice

What are 3 distinguishing characteristics of law firms as opposed to shared office space?

Back 20

In law firms lawyers:
1. Frequently consult;
2. Work jointly; and
3. Have access to each other's files

Front 21

I. Regulation of the Legal Profession
I. The Law Firm and Other Forms of Practice

T or F: Lawyers must not imply that they are partners or otherwise associated if they are not.

Back 21

T

Front 22

I. Regulation of the Legal Profession
I. The Law Firm and Other Forms of Practice

T or F: Only lawyers may be partners or officers if any part of the partnership business is the practice of law.

Back 22

T

Exception: Shareholders if temporary by operation of law (ex. dead lawyer's family member)

Front 23

I. Regulation of the Legal Profession
I. The Law Firm and Other Forms of Practice

What must dual profession lawyers bear in mind regarding advertising, solicitation, ACP, and ancillary services?

Back 23

Advertising: may list both professions

Solicitation: can't use dual profession to solicit where solicitation would not be allowed in the first instance

ACP: doesn't apply to the second profession (ex. No ACP when doing CPA work)

Ancillary Services: While you may provide services reasonably performed in conjunction with related legal services (ex. lobbyist):
1. if the services are a combination legal and non-legal, the ethics rules apply to both careers; and
2. if the services are purely non-legal, the client must know of the lawyer's interest and that it is not a legal service (ex. divorce lawyer who also owns counseling service). Failure to provide notice results in the rules applying universally.

Front 24

I. Regulation of the Legal Profession
J. Restrictions on Right to Practice

What is the general rule and what are the 2 exceptions?

Back 24

General rule: You may not restrict a lawyers right to practice through non-competes.

Exceptions:
1. Retirement
2. Settling a claim

Front 25

I. Regulation of the Legal Profession
K. Solo Practitioner

What must a solo practitioner do to protect his clients in the event of his sudden death? (Hint: 3 actions)

Back 25

Solo must designate another competent lawyer to review files, notify clients and take protective actions.

Front 26

II. The Client-Lawyer Relationship
A. Formation of Client-Lawyer Relationship

What is the general rule and the 3 exceptions to the freedom to reject cases?

Back 26

General rule: Lawyers have the general freedom to reject cases.

Exceptions:
1. Lawyer SHOULD take cases involving "defenseless or oppressed" client
2. Lawyer SHOULD perform his fair share of pro bono work
3. Lawyer MUST take court appointed cases.

Front 27

II. The Client-Lawyer Relationship
A. Formation of Client-Lawyer Relationship

What are the 2 exceptions to the requirement to take court appointed cases? (Hint: one exception has multiple exceptions of its own)

Back 27

1. Unreasonable financial burden
2. Duty to reject for
a. physical or mental inability
b. conflict of interest
c. frivolous claim or defense
d. strong feelings or bias
e. incompetence/lacking the legal expertise

Front 28

II. The Client-Lawyer Relationship
A. Formation of Client-Lawyer Relationship

What are the 3 ways to cure incompetence or a lack of legal expertise?

Back 28

1. A association
2. L learn
3. E emergency

Front 29

II. The Client-Lawyer Relationship
B. Scope, Objective, and Means of the Representation

To whom do the important decisions such as whether to sue, settle, testify, plea, jury/bench and appeal belong?

Back 29

Client

Exception: Att'y must inform client of all settlement offers, unless client has specifically, and w/ informed consent, authorized an acceptance or rejection range.

Front 30

II. The Client-Lawyer Relationship
B. Scope, Objective, and Means of the Representation

To whom do the tactical decisions such as which court to file in, depositions, discovery and continuances belong?

Back 30

Att'y

Exceptions:
1. Case expenses
2. Third person's well being

Front 31

II. The Client-Lawyer Relationship
B. Scope, Objective, and Means of the Representation

T or F: When a client is under diminished mental capacity, or is a minor, client decisions DO NOT shift to the lawyer.

Back 31

T

Lawyer must get a guardian appointed, but also must respect and involve the client as much as possible for input on legal decisions.

Front 32

II. The Client-Lawyer Relationship
C. Counsel and Assistance w/i the Bounds of the Law

T or F: Att'y must be honest and truthful and is subject to discipline for knowingly making a false statement of fact or law to the court or failing to correct a previously made false statement of material law or fact.

Back 32

T

Front 33

II. The Client-Lawyer Relationship
D. Termination of the Client-Lawyer Relationship

What must att'y do when he wants to quit a case or client?

Back 33

1. Get permission from court. (often depends on what stage the case is in)
2. Return client's property.
3. Return client's case file and unused portion of retainer.

Front 34

II. The Client-Lawyer Relationship
D. Termination of the Client-Lawyer Relationship

When MUST an att'y withdraw? (Hint: 4 circumstances)

Back 34

1. Duty to reject
2. Client fraud and refusal to rectify
3. Client insists on violation of law or ethical rule
4. Client has begun an illegal course of action

Front 35

II. The Client-Lawyer Relationship
D. Termination of the Client-Lawyer Relationship

When MAY an att'y withdraw? (Hint: 7 circumstances)

Back 35

1. Anytime there's no material harm to client
2. Client consents
3. Mandatory withdrawal
4. Client's objective is repugnant or imprudent
5. Client breaks promise to pay fee
6. Unreasonable financial burden
7. Client won't cooperate

Front 36

II. The Client-Lawyer Relationship
D. Termination of the Client-Lawyer Relationship

Client tells lawyer he is going to lie under oath on the stand. What must lawyer do?

Back 36

1. Attempt to dissuade client
2. Request permission to withdraw
3. Do as court instructs
4. Give client reasonable notice to get a new lawyer

Front 37

II. The Client-Lawyer Relationship
F. Fees

When must att'y discuss fee arrangement and what is the exception?

Back 37

Before or w/i reasonable time after representation starts, unless lawyer is charging a regularly represented client on the same basis or rate in subsequent matters.

Front 38

II. The Client-Lawyer Relationship
F. Fees

T or F: Excessive and minimum fees are prohibited.

Back 38

T

Front 39

II. The Client-Lawyer Relationship
F. Fees

What can be used to determine a reasonable fee?

Back 39

Anything the attorney can think of! Fees are only excessive when the att'y makes and reneges on a promise.

Front 40

II. The Client-Lawyer Relationship
F. Fees

Contingency fees must be reasonable and signed by the client. What are the 3 restrictions on contingency fees?

Back 40

1. Can't be used in criminal case
a. no incentive fee
b. no percentage of publication rights based on representation until after case and appeals
2. Can't be used in a domestic relations case
a. "past due" support payments are OK b/c they are debt
3. Must be explained in writing and must notify client of any expenses fro which they are liable, regardless of the outcome.
a. before att'y takes case; and
b. after case is concluded

Front 41

II. The Client-Lawyer Relationship
F. Fees

While an att'y may sell his practice (including good will), what are the 5 things he must do in the process?

Back 41

1. Sell the entire practice or field of practice
2. Must sell to a qualified purchaser
3. Must provide written notice to current clients of the sale, client's right to retrieve their files, and client's right to new counsel
4. Seller must cease ot practice in the field
5. Purchaser must take all cases, not just the good ones

Front 42

III. Client Confidentiality
A. Attorney-Client Privilege and Confidentiality

What is the difference btw ACP and Confidentiality?

Back 42

ACP covers confidential communication.

confidentiality covers the same plus any other info obtained by the att'y relating to the representation.