MPRE Set 1 (Regulation of the Legal Profession)

Sources of Regulation

Ethics Rules

Courts

Bar Associations

Legislature

Federal System

Any state requirements for admission must be:

rationally related to the practice of law.

Examples:

• graduation from accredited law school

• oath to uphold the constitution

• good moral character (like C+F application, criminal conduct, misconduct involving moral turpitude)

State requirements for bar admission deemed “not rational”:

• citizenship requirements

• residency in the state

• mere political association

8.1 applies to:

both lawyers in connection with application and those applying

8.1(a): False Statements

Cannot knowingly make a false statement of material fact in connection with application.

8.1(b): Failure to Disclose

In connection with an application to the bar or a bar disciplinary matter, an applicant or lawyer must not:

1) fail to respond to a lawful demand for information

2) fail to disclose information necessary to correct a misapprehension the applicant or lawyer knows has arisen

Under 8.1, is a lawyer required to disclose confidential information?

No. An attorney complies with the rule by saying: I have a duty of confidentiality and cannot divulge. However, still cannot make up stuff in response to a demand.

Is 8.1 subject to the provisions of the 5th Amendment?

Yes. However when relying must do so openly and not use right of nondisclosure as justification for failure to comply.

How can you violate the RPC under 8.4(a)?

• Violating it yourself

• Attempting to violate the RPC

• Helping someone else violate the RPC

• Using someone else to violate the RPC

Which 7 categories fall under 8.4?

• violating the RPC

• criminal acts

• committing certain acts

• anything prejudicial to the administration of justice

• improper influence

• assist a judge violating rules

• discrimination and harassment

Which acts don’t count under 8.4(b)?

• personal morality (adultery)

• marijuana possession (single incident)

• solicitation of prostitution (apparently)

Kinds of disqualifying acts under 8.4(b)

Crimes relevant to honesty, trustworthiness, or fitness as a lawyer in other respects (such as crimes involving violence or a long pattern of minor crimes).

Disqualifying acts under 8.4( c )

• dishonesty

• fraud

• deceit

• misrepresentation

Do disqualifying acts under 8.4( c ) have to be related to the practice of law?

No

What is considered improper influence under 8.4(e)?

stating or implying an ability to improperly influence gov’t agency, or achieve results by means that either violate the law or ethics rules.

Must a violation under 8.4(g) relate to the practice of law?

Yes.

Standard under 8.4(g)

Engage in conduct related to the practice of law that lawyer knows or reasonably should know involves harassment or discrimination based on race, s*x, religion, national origin, ethnicity, age, s*xual orientation, gender identity, marital status, socioeconomic status.

Does 8.4(g) affect a lawyer’s ability to accept, decline, or withdraw from a case?

No. For example, declining to represent a church doesn’t violate this rule. Also doesn’t preclude legitimate advice or advocacy consistent with the Rules.

Rule for mandatory reporting of RPC violation for lawyers:

8.3(a): if you know that violation raises substantial question as to a lawyer’s:

• honesty

• trustworthiness

• fitness

When is reporting not mandatory under 8.3(a)?

If behavior doesn’t rise to requisite level or if lawyer only suspects violation has occurred, e.g., minor violation of conflict-of-interest rules, advertising rules, etc.

Rule for reporting judicial conduct violations

8.3(b): same obligations for reporting lawyer misconduct

Exceptions to disclosure of attorney/judicial misconduct

• learned of violation lawyer’s assistance program

• violation of duty of confidentiality

What is the disciplinary process?

• complaint is filed w/ state authority

• if not dismissed, lawyer must respond to the charges

• a grievance committee will review and may hold a hearing

• at hearing, lawyer is entitled to due process.

• If discipline is imposed, lawyer is entitled to review by the state’s highest court.

Disciplinary authority for a state where a lawyer is admitted?

8.5(a): can discipline the lawyer regardless of where the misconduct occurs

Disciplinary authority of a state where a lawyer isn’t admitted if the lawyer provides services there?

8.5(a): as long as the lawyer’s misconduct is in the state, they can discipline

Can a lawyer be subject to the disciplinary authority of two different jurisdictions for the same conduct?

Yes. When this happens, conduct is subject to only one set of rules of professional conduct. If two admitting jurisdictions proceed against a lawyer for the same conduct, they should identify the same governing ethics rules and ensure the same rule is applied to the same conduct.

Jurisdictional choice of law for conduct in a matter pending before a tribunal?

that tribunal’s jurisdiction’s law governs

Jurisdictional choice of law for conduct in a matter not pending before a tribunal?

rules of the jurisdiction where the conduct occurred OR where the predominant effect occurs if the jurisdictions are different. HOWEVER: lawyer is not subject to discipline if the conduct complies with the rules of the jurisdiction the lawyer reasonably believes the predominant effect of the conduct will be in

8.5 Comment 5: advance agreements for predominant effect jurisdictions

For conflicts of interest only, lawyer and client can enter in an advance written agreement specifying the predominant effect jurisdiction should any conflicts arise. Agreement may be considered by the court in determining whether the lawyer reasonably believed jurisdictional rules would apply.

Does suspension or disbarment in one jurisdiction automatically affect ability to practice in another jurisdiction?

No. Preferred view is that sister states acept disciplinary action by one state as conclusive proof of the misconduct, but not of the sanctions imposed. Thus, states are free to impose their own sanctions. Similar with federal courts—they must independently evaluate conduct, but state discipline is competent evidence in a federal proceeding and may be sufficient for a federal court to impose a similar sanction.

Definition of practice of law

Activities (1) involving legal knowledge and skill that is either (2) traditionally performed by lawyers, or (3) involves giving legal advice.

What isn’t considered the practice of law?

-        Interviewing people

-        Filling in forms

-        Preparing tax returns

-        Delegated legal work that is supervised by lawyer and that the lawyer is ultimately responsible for (comment 2)

-        Publishing books/pamphlets of general advice, including most do-it-yourself books and kits

-        For accountants, representing people before state or federal agencies

Examples of “practice of law”

-        Appearing in court or taking a deposition

-        Drafting documents that affect substantial legal rights

-        Negotiating settlements

-        Giving legal advice

What does 5.5(a) say?

Lawyer cannot practice in a jurisdiction without a license or cannot assist someone else in the unauthorized practice of law. (Including a suspended or disbarred lawyer.)

May a lawyer advise and instruct nonlawyers whose employment requires a knowledge of the law?

Yes. For example, claims adjusters, bank trust officers, social workers, accountants.

What is the pro se rule for the unauthorized practice of law?

Everyone has a right to appear pro se, and therefore it is not unauthorized, nor is it wrong for a lawyer to help someone appear pro se. HOWEVER REMEMBER: cannot assist someone in the unauthorized practice of law.

5.5(b): general rule for practice w/o a license in a state

If you aren’t licensed in a state, you generally cannot:

o    Practice law there

o    Establish an office or other systematic and continuous presence there for the practice of law

o    Hold out to the public or otherwise represent that you can practice there

5.5©: rule for temporary practice

You can practice on a temporary basis in a state as long as you

o    Are admitted in another US jurisdiction 

o    Aren’t disbarred/suspended in any jurisdiction

5.5(c): Methods of out-of-state, temporary practice

o    Pro hac vice admission in or reasonably related to pending or potential proceeding (either authorized already or reasonably expect to be authorized)

·       Admission just for one case

·       Either the lawyer or a person the lawyer is assisting is covered by rule

o    Mediation, arbitration, or other ADR proceeding (either pending or potential) if services arise out of or reasonably related to lawyer’s practice in their admitted jurisdiction and don’t require pro hac vice admission

o    Catchall: Anything else that arises out of or is reasonably related to practice in admitted jurisdiction

·       E.g., client who buys a bunch of land in home state buys land in a neighboring state.

5.5(d): Temporary Practice by Foreign Lawyers

o    Lawyer admitted and in good standing in a foreign jurisdiction may practice temporarily in the US

·       In circumstances similar to those above for US lawyers.

·       Subject to greater scrutiny for pro hac vice admission; judge had discretion to limit foreign lawyer’s participation

·       For services governed primarily by international law or the law of a foreign jurisdiction

5.5(d): Methods of out-of-state, permanent practice (“through an office or other systematic and continuous presence in this jurisdiction”)

o    Lawyers employed by their only client (e.g., In-house counsel or government lawyer) in non-litigation practice

·       Litigation requires pro hac vice

·       Foreign lawyer under this rule cannot directly advise their client on a US jurisdiction’s law. Must consult with lawyer licensed in that jurisdiction and base any advice on that local lawyer’s advice

o    Legal Services Authorized by Federal or Local Law

·       Certain laws authorize permanent, multijurisdictional practice for specific branches of law (e.g., patent prosecution)

o    Federal Practice

·       For purely federal matters, you only really need to be admitted in any state and the specific federal court

·       If case has state law implications, authorization to practice in the state would be necessary

Is a lawyer who violates rules governing multi-jurisdictional practice subject to the disciplinary rules of both jurisdictions?

Yes.

What are the two ways to be on the hook for a partner, manager, or supervisory lawyer?

1)     General duty to prevent ethical violations (5.1(a)-(b))

1)     Vicarious responsibility (5.1(c))

What is a partner or manager’s general duty to prevent ethical violations? (5.1(a)-(b))

o    Partner or manager (lawyer with “comparable managerial authority”): must reasonably ensure firm has measures giving reasonable assurance that everyone conforms to the Rules

·       E.g., system to manage conflicts, docketing system to avoid missing filing deadlines, proper training for young lawyers, etc.

·       Violated even if no lawyer actually violates a rule of ethics!

·       Managerial employee has to have responsible policies in place for ethics

What is a supervisory lawyer’s general duty to prevent ethical violations? (5.1(a)-(b))

Must reasonably ensure the other lawyer conforms to Rules. ·       E.g., senior associates supervising junior associates. Must intervene to prevent avoidable consequences of misconduct.

How do duty requirements depend on the size of the firm/group and the kind of work being done? (5.1 cmt. 3)

·       Smaller law firm = informal supervision and occasional admonition may be sufficient.

·       Larger law firm = more may be necessary, such as ethics CLEs or partners/committees for ethics issues.

What is the rule for vicarious responsibility under 5.1©?

1.      Ordered or ratified misconduct

·       Example: go bribe the judge or I’m glad you did that

 

2.      Failure to avoid or mitigate consequences of violation

 

Partner/manager/direct supervisor knows of misconduct when avoidable/mitigatable and fails to take reasonable remedial action.

 

·       Example: admitting hiding evidence other side asked for. And the boss says: I hope they don’t figure that out. Boss will be subject to discipline along with you.

 

Makes a lawyer responsible for things that already happened if they learn about it at a time for things that mitigate / fix the action (pretty much always possible to do re David)

What is the rule for Non-Lawyer assistance?

5.3: Exact same obligations above apply to partners/managers/direct supervisors with respect to nonlawyers employed, retained by, or associated w/ the lawyer.

-        Comment 1: Duty to educate and guide: all lawyers should instruct and guide. Ultimately responsible for the nonlawyers’ work. Must make reasonable efforts to ensure they act ethically.

Definition of nonlawyer

-        Nonlawyers: paralegals, legal assistants, people outside the firm, etc.

Are subordinate lawyers bound by the rules even if they act at another’s discretion? Are there any exceptions?

Under 5.2, they are bound by the rules.

-        EXCEPTION: If action was a reasonable resolution of an arguable question of professional duty (needs to be borderline)

o    E.g., determining whether there was an actual true conflict, and lawyer tells you to work on the case. Can escape discipline by saying you were told to there wasn’t a conflict and it seemed reasonable. (NO WHISTLEBLOWER PROTECTION!!)

Rule for fee splitting with nonlawyers

(5.4)(a): No fee splitting with nonlaywers (paying nonlawyer salaries w/ fee money is okay, but splitting a fee based on proportionate work on case is not)

-        Can’t pay portion of legal fee to the accountant who helped with the case. That accountant needs to be paid separately.

Exceptions to 5.4(a)

1)     Agreement between lawyer and firm/partner/associate to pay death benefits to lawyer’s estate/specified persons over reasonable period

2)     Funds to purchase practice from deceased, disabled, or disappeared lawyer (can make payment to lawyer’s representatives even though they’re not lawyers.)

o    Pursuant to Rule 1.17, sale of law practice rule

3)     Compensation or retirement plans (including bonus plans and regular salaries) even in a profit-sharing arrangement.

4)     Court-awarded legal fees to nonprofit org that retained or recommended lawyer

o    Feels distasteful to keep fees to pro bono work.

Can you partner with a nonlawyer if any activities or partnership are the practice of law?

5.4(b) forbids it. No partnerships w/ nonlawyers if any activities or partnership are the practice of law

-        E.g., partnering with an accountant and handling the legal work. Can’t create a one-stop shop.

o    HOWEVER: you can open up a McDonald’s with a nonlawyer, for example, as long as none of what you are doing constitutes the practice of law.

What are the three roles nonlawyers cannot have in a firm? (5.4(d))

-        Nonlawyer owns any interest (except when lawyer dies and estate holds interest during administration of estate)

-        Nonlawyer is a corporate director/officer or has a similar position, except in a corporation

-        Nonlawyer can direct/control lawyer’s professional judgment

What are the two scenarios in which lawyers cannot be restricted in the right to practice and any exceptions?

5.6:

1)     Law-firm related agreements (partnership, shareholders, operating, employment, or similar) that restrict lawyer’s right to practice after relationship ends.

o    No non-competes!!!

o    Exceptions:

·       Retirement benefit agreements

·       Sale of your law practice

·       Seller must cease to engage in private practice of law/area of practice in that geographic area/jurisdiction

·       You’re supposed to be the agent for your client

 

2)     Settlement agreements for clients can’t restrict right to practice

o    Example: personal injury lawyer filing claims against companies for making ppl sick. Company can’t settle by saying: we’re going to settle in one swoop, but you have to stop filing lawsuits against us.

Can lawyers agree to not use something they learn in future cases?

No. It puts the client and lawyer at odds with one another

Can you even make restricted offers under 5.6?

No.

When you sell your law practice, must you exercise reasonable competence in finding a qualified buyer?

Yes (1.17)

How much of a law practice can you sell when you sell?

1.17(b): Must sell entire practice or entire area

-        However, no rule violation if the buyer can’t take on a matter due to a conflict

-        Doesn’t mean you cannot sell the assets (like the building if they are going out of business) to others.

What kinds of law can you practice or not practice under 1.17 scenarios?

Must cease to engage in private practice of law (or in area of practice) in same geographic area/jurisdiction (jurisdiction can choose version)

-        Comment 3: You can still be a government lawyer, legal aid lawyer, in-house counsel, but no private practice of law (can you work for a different firm but not be a partner?)

-        Comment 1: If circumstances change unexpectedly, prompting a return to private practice, that doesn’t necessarily violate the rules.

o    E.g., become a judge and lose next election, you can go back to private practice.

When you sell a law practice, what kind of notice must you provide to clients?

1.17©: Have to give clients written notice that includes:

-        Proposed sale (which means must give notice in advance)

-        Right to obtain other counsel or take possession of files

-        Client’s consent to transfer their files will be presumed if client does nothing/doesn’t object within 90 days of receipt of notice

§  If client can’t be given notice, must obtain a court order authorizing transfer to purchaser

§  Seller may disclose to court, in camera, information relating to representation only to extent necessary to obtain the order

Do buyers of a law practice have to honor existing fee agreements?

Yes. They cannot change fees by reason of sale. However, future matters can have increased fees. Indefinite fee arrangements can be subject to change after a period of time.

What does 1.17 comment 6 say about buyer’s duties?

Undertake all client matters in the practice (not just lucrative ones), subject to client consent and conflicts of interest.

What is a law-related service?

5.7(b): Law-related services = non-legal services that might reasonably be done alongside legal services and are substantively related to them, AND are not unauthorized practice of law when provided by a nonlawyer

         

Example: accounting, title insurance, financial planning, counseling, tax returns, etc.

When do rules apply to law-related services?

5.7(a):

(1)   Provided in circumstances not distinct from lawyer’s legal services to clients (don’t forget complying with conflict-of-interest rules)

 

E.g.: providing both sets of services together

 

(2)   Lawyer owns or controls an entity that provides law-related services

-        Lawyer must take reasonable steps to ensure recipients understand:

§  These are not legal services

§  Protections of lawyer-client relationship do not apply

 

Without these measures, the Rules will apply to the law-related services

What is the rule governing lawyers entering into business transactions with clients?

1.8(a).

What are the four main rules governing business transactions with clients?

1) terms must be fair and reasonable

2) transaction and terms are fully disclosed and in writing in a reasonably understandable manner to client.

3) Client is advised in writing to seek independent counsel and given reasonable opportunity to do so. (for waiving conflicts client counsel is required.)

4) Client gives informed consent signed in writing to transaction’s essential terms and lawyer’s role (including whether they are representing client in the transaction)

Do open market commercial transactions present the same dangers as lawyer-client business transactions?

No. If the lawyer wants to buy a car from a client who is in the business of selling cars, this can be fine.