MPRE Themis Flashcards

Can a lawyer be subject to discipline under the Model Rules for the conduct of another attorney?

A lawyer is subject to discipline for another attorney's violation of the Model Rules if the lawyer:

1. Orders the misconduct; OR
2. Ratifies the misconduct with knowledge of the specific conduct.

Can a lawyer be subject to discipline under the Model Rules for the conduct of a non-lawyer?

A lawyer is subject to discipline for ordering or ratifying the conduct of a non-lawyer employed by, retained by, or associated with the lawyer that would be a violation of the Model Rules if engaged in by a lawyer.

When do lawyers have a duty to report the misconduct of other lawyers?

Lawyers have a duty to report another lawyer's misconduct to the appropriate professional authority (e.g., bar disciplinary agency) if:

1. The reporting lawyer has knowledge of the other lawyer's MRPC violation; AND
2. The violation raises a substantial question—i.e., a material matter of clear weight and importance—as to the other lawyer's honesty, trustworthiness, or fitness as a lawyer.

Under what four circumstances may a lawyer practice in a jurisdiction in which the lawyer is not licensed?

A lawyer may temporarily practice law in a jurisdiction where the lawyer is not admitted to practice when his practice:

1. Is conducted in association with a local lawyer;
2. Is reasonably related to a pending or potential proceeding in a jurisdiction where the lawyer is or reasonably expects to be authorized to practice
3. Concerns mediation or arbitration arising from his practice in an admitted jurisdiction; OR
4. Otherwise arises out of or reasonably relates to practice in the lawyer's admitted jurisdiction.

Under what four circumstances is a lawyer permitted to share her fees with a non-lawyer?

The Model Rules prohibit fee sharing by lawyers with non-lawyers except to pay:

1. A lawyer's estate or specified persons as a death benefit over a reasonable period pursuant to agreement;
2. An agreed-upon price to the estate or representative of a deceased, disabled, or disappeared lawyer for purchase of lawyer's law practice;
3. A non-lawyer employee as compensation or a retirement plan, even if based on a profit-sharing arrangement; OR
4. Court-awarded legal fees to a nonprofit organization that employed, retained or recommended employment of the lawyer in a matter.

Under what three circumstances is a lawyer forbidden to practice law with or in the form of a professional corporation or association authorized to practice law for a profit?

1. A non-lawyer owns any interest therein (except that a fiduciary representative of the estate of a lawyer may hold the stock or interest of the lawyer for a reasonable time during administration).
2. A non-lawyer is a corporate director or officer or occupies a similar position of responsibility in any non-corporation.
3. A non-lawyer has the right to direct or control the professional judgment of a lawyer.

Is a lawyer obligated to accept a court appointment?

A lawyer generally has no duty to accept representation of any client, but a lawyer has a duty to accept court-appointed clients unless there is good cause to decline the representation. Good cause exists when representing the client would be:

1. Likely to result in violation of the MRPC or other law;
2. Likely to result in an unreasonable financial burden on the lawyer; OR
3. So repugnant to the lawyer (or the client's cause is so repugnant) that it would likely impair the client-lawyer relationship or the lawyer's ability to represent the client.

When does a lawyer have a duty to reject representation of a client that requests the lawyer's services?

A lawyer must reject representation if:

1. The lawyer cannot perform competently, promptly, without improper conflict of interest, and to completion; OR
2. The client demands that the lawyer engage in conduct that is illegal or violates the MRPC.

What is the division of authority when a lawyer receives a settlement offer in her client's case?

The client decides whether to accept or reject a settlement offer. A lawyer is subject to discipline for agreeing to a settlement without first obtaining the client's consent.

A lawyer who receives a settlement offer must promptly inform the client of its substance unless the client has previously (i) indicated that the offer would be acceptable or unacceptable, or (ii) authorized the lawyer to accept or reject the offer.

Under what three circumstances MUST a lawyer withdraw from representing a client?

1. Failure to do so would violate ethics rules or law
2. The lawyer's physical or mental condition would impair the representation
3. When discharged by the client, except that (i) a client with severely diminished capacity may lack the legal capacity to discharge the lawyer, and (ii) statutes may restrict a client's ability to discharge a court-appointed lawyer

Name at least three of the seven circumstances when a lawyer may withdraw from representing a client, regardless of whether the client's interests are adversely affected.

Even when there is material adverse effect on the client’s interests as a result, a lawyer may withdraw when the lawyer:

1. Reasonably believes the client's course of action involving the lawyer’s services is criminal or fraudulent;
2. Learns the client previously used the lawyer's service to perpetrate a crime or fraud;
3. Finds repugnant or fundamentally disagrees with the client's persistent course of action;
4. Reasonably warned of withdrawal unless the client fulfills an obligation to the lawyer regarding the lawyer’s services, and the client has substantially failed to do so;
5. Would incur an unreasonable financial burden as a result of the representation;
6. Finds the representation unreasonably difficult due to the client's behavior; OR
7. Can show other good cause exists.

When may lawyers who are not in the same firm share a fee?

Only when three requirements are met:

1. The fee is in proportion to the services rendered by each lawyer, or they assumed joint responsibility for the representation.
2. The client agrees in writing to the fee-splitting arrangement.
3. The total fee charged is reasonable.

When does the attorney-client privilege apply?

The attorney-client privilege protects communications made between an attorney and the client that were (i) made for the purpose of obtaining or providing legal assistance, and (ii) intended to be confidential.

What types of confidential communications between the lawyer and the client are not protected by the attorney-client privilege?

The attorney-client privilege does not protect confidential communications:

1. Made to enable/aid the commission of what the client knew/should have known was a crime/fraud;
2. Relevant to a dispute between a lawyer and client or former client (e.g., malpractice claim);
3. Relevant to a dispute between parties who claim through the same deceased client; OR
4. Between former co-clients who are now adverse to each other.

What is the general rule established by the MRPC with respect to a lawyer's duty of confidentiality to the client?

Unless an exception applies, a lawyer may not disclose any information relating to the representation of a client unless (i) the client gives informed consent, or (ii) the disclosure is impliedly authorized.

Under what circumstances does a lawyer have implied authority to disclose information relating to the representation of a client?

The lawyer has implied authority to disclose information relating to the representation of a client when disclosure:

1. Disclosure is necessary to carry out the representation and is not limited by the client's instructions or special circumstances; OR
2. Disclosure occurs within a firm in the course of its practice, and the client has not limited it to specific lawyers in the firm.

What are the exceptions to a lawyer's duty of confidentiality to the client when they MAY disclose client information?

1. Prevent reasonably certain death or substantial bodily harm
2. Prevent the client from committing a crime or fraud reasonably certain to result in substantial injury to another's financial interests or property for which the client has used the lawyer’s services
3. Obtain confidential legal advice about the lawyer’s responsibility to comply with the Model Rules
4. Establish a claim or defense on the lawyer's behalf (i) in a controversy between the lawyer and the client, or (ii) to a criminal charge or civil claim against the lawyer involving the client
5. Respond to allegations in any proceeding concerning the lawyer’s representation of the client
6. Comply with other law or a court order
7. Detect and resolve conflicts of interest arising from a lawyer's change in employment or in a firm's makeup or ownership BUT only if it would not compromise the attorney-client privilege or prejudice the client

What are the exceptions to a lawyer's duty of confidentiality to the client when they MUST disclose client information?

1. Applicable substantive law requires the lawyer to disclose the information to avoid being deemed to have assisted the client's crime or fraud; AND
2. The lawyer can avoid assisting the client’s crime or fraud only by disclosing information that is within the lawyer’s discretion to disclose.

A lawyer must not represent a client if the representation of the client may be materially limited by the lawyer’s own interests, unless three requirements are met. What are those requirements?

1. The lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to the affected client;
2. The representation is not prohibited by law; AND
3. The affected client gives informed consent, confirmed in writing.

When may a lawyer serve as an advocate and a witness in the same trial?

A lawyer is prohibited from serving as the client's advocate & witness in the same trial unless:

1. The lawyer's testimony relates to an uncontested issue;
2. The lawyer's testimony relates to the nature and value of legal services rendered in the case; OR
3. Disqualifying the lawyer from testifying would cause substantial hardship for the client.

Under what circumstances may a lawyer enter into a business transaction with a client?

A lawyer must not enter into a business transaction with a client or knowingly acquire any interest adverse to a client, unless:

1. The terms are fair and reasonable to the client;
2. The transaction and its terms are fully disclosed in writing in a manner that can be reasonably understood by the client;
3. The client is advised in writing of the desirability of seeking independent counsel and is given an opportunity to do so; and
4. The client consents in writing to the transaction, its terms, and the lawyer’s role in the transaction.

This rule does not apply to standard commercial transactions between the lawyer and the client for products or services that the client generally markets to others.

A lawyer represents two clients in different matters. When does a concurrent conflict of interest arise?

A concurrent conflict of interest arises when:

1. The representation of one client would be directly adverse to another client; OR
2. There is a significant risk that the representation of either client would be materially limited by the lawyer's personal interests or responsibilities.

Can a lawyer simultaneously represent clients in separate matters when the clients are economically adverse?

The simultaneous representation of clients in unrelated matters when those clients' interests are merely economically adverse does not ordinarily constitute a conflict of interest.

What duty of loyalty does a lawyer owe former clients?

A lawyer who has previously represented a client in a matter must not subsequently represent another person in the same or a substantially related matter in which that person’s interests are materially adverse to the interests of the former client unless the former client gives informed consent, confirmed in writing.

When can a lawyer accept payment for services rendered to the client from someone other than the client?

A lawyer is prohibited from accepting payment from a third party unless:

1. The client gives informed consent;
2. The third party does not interfere with the lawyer's independent professional judgment or the client-lawyer relationship; AND
3. The lawyer protects confidential information relating to the representation of the client.

What is required to prevent a lawyer's conflict of interest based on her work at a previous firm from being imputed to the lawyers in her current firm?

Disqualification is NOT imputed to the current firm if the firm:

1. Timely screens the disqualified lawyer from participating in the matter and does not give the disqualified lawyer part of the fee;
2. Promptly gives written notice of the conflict to the affected former client; AND
3. Provides certification of compliance with the MRPC to the affected former client (i) at reasonable intervals, (ii) upon request of the former client, and (iii) when the screening procedure is terminated.

Can a lawyer represent a client in a matter in which the lawyer previously served as a third-party neutral?

Absent the informed, written consent of all parties, a lawyer is disqualified from representing anyone in connection with a matter in which the lawyer participated personally and substantially as a third-party neutral.

When may a lawyer represent a client in a matter in which the lawyer lacks competence?

A lawyer who lacks competence may undertake representation of a client if:

1. She can achieve competence by reasonable preparation;
2. She can achieve competence by association with a lawyer established as competent in the field; OR
3. An emergency makes finding another lawyer impractical, and representation is limited to what is reasonably necessary under the circumstances.

What must a lawyer do to fulfill her duty to act with reasonable diligence and promptness in representing the client?

A lawyer's duty to act with reasonable diligence and promptness in representing a client requires the lawyer to:

1. Be dedicated and committed to a client's interests despite obstruction or inconvenience to the lawyer;
2. Control the lawyer's workload to ensure that all matters are handled competently;
3. Act with reasonable promptness; AND
4. Follow through on all matters until completion as outlined by the agreement between the lawyer and the client.

When can an injured client or third party bring a malpractice action against a lawyer?

An injured client or third party can bring a malpractice action in a civil court for:

1. Breach of contract for not fulfilling a duty;
2. Breach of the fiduciary relationship between the lawyer and the client;
3. Intentional tort (e.g., fraud, intentional infliction of emotional distress, malicious prosecution, and abuse of process); OR
4. Negligence.

Is a lawyer who enters into a contract with a third party on the client's behalf also liable to that third party under the contract?

When a lawyer enters a contract with a third party on the client's behalf, the client is generally solely liable under the contract. The lawyer may be liable as well when:

1. The client's existence or identity was not disclosed to the third party; OR
2. The third party is someone who provides goods or services used by lawyers and who, as the lawyer knows or reasonably should know, is relying on the lawyer's credit.

When is an action considered "frivolous" under the Model Rules?

An action will be considered frivolous if the lawyer is unable either to make a good faith argument on the merits of the action taken or to support the action taken by a good faith argument for an extension, modification, or reversal of existing law.

An action is not frivolous merely because (i) the facts have not first been fully substantiated, (ii) the lawyer expects to develop critical evidence only through discovery, or (iii) the lawyer believes that the client’s position ultimately will not prevail.

What duties are included in the duty of fairness owed to the opposing party and counsel? List at least three examples of conduct that would violate this duty of fairness.

A lawyer owes duty of fairness to the opposing party and counsel that prohibits the lawyer from using tactics intended to unfairly disadvantage the opposing party, such as:

1. Obstructing another party's access to evidence;
2. Offering an inducement to a witness that is prohibited by law;
3. Knowingly violating the tribunal's rules;
4. Making a frivolous discovery request;
5. Undermining evidentiary rules at trial by alluding to an irrelevant matter, unsupported claim, or personal opinion; OR
6. Requesting a person (other than the client) to refrain from volunteering pertinent information.

Can a lawyer offer evidence that the lawyer believes is false, but does not know is false?

Yes. A lawyer's duty of candor prohibits the lawyer from misleading the tribunal by knowingly:

1. Making (or failing to correct) a false statement of law or fact;
2. Failing to disclose controlling legal authority directly adverse to the client's position and undisclosed by opposing counsel; OR
3. Offering evidence that the lawyer knows is false.

But a lawyer's mere belief that evidence is false does not preclude the lawyer from presenting it to the trier of fact.

Can a lawyer meet with or communicate with a person that the lawyer knows is represented by counsel?

No. A lawyer is not permitted to communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter unless the lawyer:

1. Has the consent of the other lawyer; OR
2. Is authorized to do so by law or a court order.

Under what circumstances may a lawyer provide an evaluation of a matter affecting a client for the use of someone other than the client?

Only if:

1. The lawyer reasonably believes that making the evaluation is compatible with other aspects of the lawyer’s relationship with the client; AND
2. The client gives informed consent if the lawyer knows or reasonably should know that the evaluation is likely to affect the client’s interests materially and adversely.

What duties does a lawyer who is serving as a third-party neutral have with respect to unrepresented parties?

1. Inform unrepresented parties that the lawyer is not representing them; AND
2. If the lawyer knows or reasonably should know that a party does not understand the lawyer’s role in the matter as a third-party neutral, the lawyer must explain the difference between his role as a third-party neutral and the role of a lawyer who represents a client, including that the attorney-client privilege does not apply in this context.

What is a prosecutor's duty after encountering new evidence that proves the innocence of a criminal defendant who has previously been found guilty?

1. Disclose any new, credible evidence to the appropriate authority; AND
2. Seek to remedy a conviction in the prosecutor’s jurisdiction when the prosecutor knows of clear and convincing evidence that a defendant was wrongfully convicted.

May a prosecutor choose to not disclose mitigating evidence to the court during sentencing, even if the evidence was not considered exculpatory during trial?

No. Pretrial and during trial, prosecutors have a constitutional duty to disclose to the defense all known, material exculpatory evidence.

But the MRPC imposes a broader ethical duty to disclose all exculpatory or mitigating evidence during sentencing. A prosecutor must disclose to the defense and to the tribunal all unprivileged mitigating evidence known to the prosecutor whether or not it is material.

What is a lawyer's responsibility with respect to client property in the lawyer's possession?

A lawyer has a duty to reasonably safeguard property belonging to a client or third party that is in the lawyer's possession in connection with a representation. The lawyer generally satisfies this duty by:

1. Holding the property separately from the lawyer's own property;
2. Keeping a complete accounting of the property; AND
3. Promptly delivering the property to the client or third party when delivery is due under the circumstances.

Can a lawyer withdraw the full amount of her fee from a client's trust account when a portion of that fee is disputed by the client?

No. When a lawyer receives funds on a client's behalf from which the lawyer's fees are to be paid and the client disputes the fee amount, the lawyer must:

1. Keep the disputed funds separate in a client trust account until the dispute is resolved; AND
2. Promptly distribute the undisputed funds to the client and/or the lawyer.

What are a lawyer's duties concerning property in the lawyer's possession that is subject to a third party's lawful claim?

A lawyer may have a duty to protect a third party's lawful claim to property in a lawyer’s possession from the client’s wrongful interference. In such a case, the lawyer:

1. Must not turn over the property to the client even if the client demands it; AND
2. Should not attempt to arbitrate the dispute between the client and the third party.

The lawyer may also file an interpleader action in order to have a court resolve the dispute.

Under what circumstances might a truthful communication about a lawyer or her services be considered misleading?

A communication is false if it contains a material misrepresentation of fact or law, but even a truthful communication can be misleading if it:

1. Omits a fact needed to make the lawyer's communication considered as a whole not materially misleading;
2. Is substantially likely to lead a reasonable person to believe that he/she must take further action when, in fact, no action is required; OR
3. Is substantially likely to lead a reasonable person to form a specific conclusion for which there is no reasonable factual foundation.

When may a lawyer state that he is certified as a specialist in a particular field of law?

A lawyer cannot state or imply that he is certified as a specialist in a particular field of law unless:

1. The lawyer was certified as a specialist by an organization approved by an appropriate state authority or accredited by the American Bar Association; AND
2. The name of the certifying organization is clearly identified in the communication.

When may a lawyer give something of value to a person for recommending the lawyer’s services?

A lawyer is generally not permitted to give anything of value to a person for recommending the lawyer’s services, except for:

1. Payment for usual charges for a legal services plan, not-for-profit referral service, or qualified lawyer referral service
2. Non-exclusive reciprocal referral agreements; OR
3. Payment for reasonable advertising costs.

Can a lawyer participate in a prepaid or group services legal plan that uses live person-to-person contact to enroll members or sell plan subscriptions?

Yes, so long as:

1. The lawyer does not own, direct, or solicit on behalf of the plan; AND
2. The plan does not solicit persons known to need legal services in a particular matter.

When is a lawyer permitted to solicit professional employment by live person-to-person contact?

Solicitation of professional employment by live person-to-person contact is prohibited when a significant motive for the lawyer’s doing so is the lawyer’s or law firm’s pecuniary gain, unless the person contacted is:

1. A lawyer;
2. A person who has a family, close personal, or prior business or professional relationship with the soliciting lawyer or law firm; OR
3. A person who routinely uses for business purposes the type of legal services offered by the lawyer.

Does a judge have a duty to report lawyer misconduct that the judge becomes aware of?

Yes. A judge has a duty to respond to a lawyer's misconduct (e.g., committing a criminal act). The judge must inform the appropriate authority when:

1. The judge has actual knowledge of a lawyer's ethical violation; AND
2. The violation raises substantial question about that person's honesty, trustworthiness, or fitness to practice law.

Is a judge permitted to personally solicit contributions on behalf of non-profit educational, religious, charitable, fraternal, or civic organizations?

A judge may participate in such organizations, but is generally prohibited from personally soliciting contributions on behalf of such organizations. However, a judge may solicit contributions from (i) members of the judge's family, or (ii) judges over whom the judge does not exercise supervisory or appellate authority.

Can a judge personally solicit or accept campaign contributions?

No. Because a judicial candidate must not engage in political activity that is inconsistent with the independence, integrity, or impartiality of the judiciary, any campaign contributions must be solicited and accepted by the candidate's campaign committee, not the judge personally.

Is a lawyer subject to discipline for the short-term representation of a pro bono client through a legal clinic when, unbeknown to the lawyer, a conflict of interest exists with one of the lawyer's other clients?

No. A lawyer who provides short-term limited legal services as part of a program sponsored by a court or nonprofit organization need not check for client conflicts and is not subject to discipline if such a conflict exists unless:

1. The lawyer or the client expects that the lawyer will continue representation in the matter; OR
2. The lawyer knows at the time of the limited representation that a conflict exists for the lawyer or another lawyer associated with the lawyer in a law firm.