Barbri MPRE Outline

Sources of Regulation and Admission to Practice Law

1. ABA Model Rule of Professional Conduct

2. Courts

3. Bar admission and disciplinary matters

U.S. Supreme Court has stated that the requirements for admission to the bar must be...

rationally related to the practice of law.

What are the rational requirements to be admitted to the bar?

1. graduation from ABA accredited law school.

2. take an oath to uphold state and federal constitution.

3. Good moral character.

What are NOT rational requirements to be admitted to the bar?

1. US citizenship

2. Residency in the State

3. Banning applicants because they belong to specific groups.

Regarding character investigations, an applicant or lawyer recommending an applicant must not:

1. Make a false statement of material fact.

2. Fail to respond to a lawful demand for information (duty to cooperate); OR

3. Fail to disclose any fact necessary to correct a misapprehension.

A lawyer who knows that another lawyer has committed a violation that raises a substantial question as to the lawyer's honesty, trustworthiness or ability to practice MUST...

Report the violation UNLESS:

- a duty of confidentiality applies.

OR

- The lawyer learned about the violation while participating in an approved lawyer assistance program.

Lawyers have the same duty to report judges who...

violate the code of Judicial Conduct.

A lawyer is subject to discipline for committing a crime if the crime is relevant to...

some aspect of practicing law.

Fraud, dishonesty, misrepresentation, or deceit are grounds for discipline even if ...

the lawyer is not active in the practice of law.

In conduct related to the practice of law, lawyers must not harass or discriminate on the basis of...

...race, sex, religion, national origin, ethnicity, age, sexual orientation, gender identity, marital status, or socioeconomic status.

BUT this does not affect the lawyer's ability to accept or decline a case.

Any state in which the lawyer is admitted to practice has power to discipline the lawyer...

regardless of where the misconduct occurred.

A lawyer not admitted in the sate is also subject to the jurisdiction of the state if the lawyer...

renders or offers to render any legal services in the state.

For conduct in connection with litigation pending before a court...

the rules of the jurisdiction in which the court sits govern the lawyer's conduct.

For any other conduct, the rules of the jurisdiction in which the lawyer's conduct occurred applies.

The following activities requires a license and constitute the practice of law:

1. Appearances in judicial proceedings and depositions

2. Drafting documents that have legal effect.

3. Negotiating settlements for clients.

The following activities do NOT require a license and do NOT constitute the practice of law:

1. Interviewing People

2. Filling our forms

3. writing legal memos

You cannot practice law where you are not...

licensed.

Permissible temporary multi-jurisdictional practice is allowed if:

- There is an association with an active local lawyer.

- Special permission through pro hac vice.

- Mediation or arbitration out of home-state practice, AND

- Anything reasonably related to lawyer's home state practice.

Permissible permanent multijurisdictional practice is allowed...

if a lawyer is employed by her only client (in-house counsel).

The lawyer-client relationship is a consensual relationship, meaning...

lawyers generally do not have a duty to accept clients.

Other than by express intent of the parties, a relationship may be formed if...

1. Client manifests intention that lawyer represents him;

2. Lawyer fails to clearly decline; AND

3. Lawyer knows that client is reasonably relying on her to provide the services.

(Requires all 3)

A lawyer must not seek to avoid appointment by a tribunal to represent a person except for good cause such as...

... reasonable financial burden or personal inability to effectively represent the client.

A lawyer may limit representation if the clients...

gives informed consent.

In a civil case, a lawyer must abide by a client's decision whether to...

...settle.

In a criminal case, the lawyer must abide by the client's decision, after consultation with the lawyer, as to:

1. plea;

2. waiver of a jury trial; &

3. whether the client will testify.

In a civil or criminal case, the lawyer must abide by the client's decision regarding...

whether to appeal.

The lawyer may make strategic decisions, such as...

which court to file in or which discovery methods to employ.

A lawyer must counsel a client to engage, or assist a client, in conduct that the lawyer knows is...

criminal or fraudulent.

If a client has diminished capacity, decisions should not shift to the lawyer; if necessary, the lawyer should...

take protective actions such as filing for a guardian ad litem.

Handling communications, a lawyer must:

1. Reasonably consult with the client about the means by which the client's objectives are to be accomplished.

2. Keep the client reasonably informed about the state of matters.

3. Promptly comply with reasonable requests for information; AND

4. Explain matter to the client to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.

The fee arrangement must be communicated to clients...

before or within a reasonable time after representation starts.

As a general rule, a WRITTEN fee arrangement is...

preferred but is not required UNLESS it is a contingent fee.

Minimum fees...

are prohibited. Meaning, a lawyer cannot tell a client "no matter what I will charge you this fee."

All fees must be...

reasonable.

Factors in determining reasonableness of fees include:

- Time and labor;

- Novelty and difficulty;

- Turning away of other cases;

- What other attorneys charge;

- Amount at stake and results for client;

- Time limitations by client;

- Nature and Length of attorney-client relationship;

- The experience, reputation, and ability of the lawyer.

- fixed or contingent?

Contingent fees are generally permissible, but the agreement must be...

in writing and signed by the client.

Contingent fees must clearly...

notify the client of any expenses for which the client will be liable, whether or not the client is the prevailing party.

Contingent fees are prohibited...

in representing a client in a criminal or domestic relation case.

- Past Due support payments are debt and therefore okay for contingent fees.

Required disclosures for contingent fees are...

1. How the fee is to be calculated;

2. What expenses are being deducted from recovery;

3. Whether deduction are to be made before or after the fee is calculated.

If a lawyer is terminated before a contingent fee is awarded with or without cause...

1- without cause- lawyer is entitled to a reasonable amount for services.

2- With Cause- lawyer is not entitled to payment.

Lawyers in the same firm may split fees...

in any manner.

Lawyer in different firms may split fees from a matter only if:

1. The division is in proportion to the services performed.

2. The client agrees to the arrangement in WRTITING

3. The total fee for ALL lawyers is reasonable.

Three ways the client-lawyer relationship is terminated:

1. Client fires lawyer

2. Mandatory Withdrawal (MUST)

3. Permissive Withdrawal

(MAY)

Three Mandatory Withdrawal Reasonings:

(MUST)

1. Lawyer's physical or mental disability

2. Results in violation of RPC or law.

3. Discharge by client for any reason or no reason.

Permissive Withdrawal Reasonings:

(MAY)

1. Withdrawal can be accomplished without material adverse effect on clients;

2. Client persists in action that is/was criminal or fraudulent;

3. Lawyer has a fundamental disagreement with client.

4. Client breaks warning and does not rectify.

5. Unreasonable Financial Hardship on Attorney

6. Representation is made unreasonably difficult by client.

7. Other good causes.

A court's permission is needed if withdrawing is for a matter...

that is not in litigation.

Upon withdrawal of representation, a lawyer must take steps to protect a client's interests, such as...

giving reasonable notice to the client and allowing time for employment of other counsel.

Upon withdrawal, a lawyer must surrender...

papers, property of the client, and any unearned retainer.

A lawyer must provide competent representation to a client. Competent representation requires...

the legal knowledge, skill, thoroughness and preparation reasonably necessary the representation.

Three ways to avoid an incompetence problem (ALE):

1. associate self with a competent attorney.

2. learn the law in time.

3. Emergency- do what needs to be done but only for the duration of the emergency.

A lawyer must act with reasonable diligence. Meaning...

a lawyer must control his workload.

Is a violation of the Rules of Professional Conduct malpractice?

No necessarily. However, violation of a model rule may be evidence of malpractice.

Malpractice requires...

(1) Money loss and (2) causation ("but for the lawyers actions")

4 Theories of Malpractice Liability:

1. Intentional Torts

2. Breach of fiduciary duties

3. Breach of contract

4. Negligence

Settlement of existing malpractice claim

A lawyer must not settle a claim or potential claim for legal malpractice UNLESS she advises the client in writing to seek the advice of independent counsel, and gives the client an opportunity to do so.

A lawyer must not make an agreement limiting the lawyer's liability to a client UNLESS...

the client seeks independent legal representation to make the agreement.

Attorney-Client Privilege (Evidence)

- Only covers confidential communications.

- Protects a court tribunal from compelling the revelation.

- Is held by the client, not the attorney

- Exception to privilege.

Duty of Confidentiality

- Protects all information related to representation.

- Applies to any type of disclosure to the lawyer.

- Held by the lawyer.

Exceptions to Duty of Confidentiality

These are permissive not mandantory:

1) to prevent reasonably certian death or sub bodily harm

2) consent of client

3) implied authorization to represent client

4) lawyer self-defense

5) to prevent cleint form committing a crime of fraud that is reas certian to result in injury to financial interest and it si something that the client was using your services for

6) to prevent, mitigate ro rectify sub injury to financial interest or property of another

7) comply with court order

8) prevent or rectify fraud on a court---not discretionary!!!

9) to get legal advice about the lawyers compliance with these rules

The Duty of Confidentiality continues...

after the representation ends, and also applies to information learned during discussion with a prospective client, even if no relationship is ultimately formed.

Trust Accounts and Comingling

A lawyer must keep all clients' money in a separate trust account and MUST NOT mix client funds with lawyer funds, except the lawyer may deposit his own funds into the trust account for the sole purpose of paying bank service charges.

For small sums to be held for a short period of time...

a lawyer may use a pooled trust account, and any remaining interest goes to the state bar or legal foundation.

Two Types of Retainers

Advance in Fees: belongs to the client (goes into trust account) and is transferred to lawyer's account as it is earned, and any unearned portion must be returned if lawyer is fired or withdraws.

Availability: belongs to the attorney and goes into the lawyer's account immediately.

Receipt of Money and Property from Settlement

A lawyer must promptly notify client of receipt of property and money, and promptly forward any money or property to which the client is entitled.

Funds for Disputed Claims between Lawyer and Client.

The lawyer must hold the disputed portion of the funds in the trust account until the dispute is resolved.

Funds for Disputed Claims between Third Party and Client.

If third party has a lien on funds held by the lawyer, lawyer must hold the disputed portion in the trust account until the dispute is resolved (if no lien, then the lawyer must give the funds to the client if requested).

Imputed Disqualification

Generally, if one lawyer in a firm has a conflict, then it is imputed to all lawyers in the firm UNLESS the conflict is based on a personal interest.

Direct Adversity

In general, a lawyer may not represent Client 1 if Client 1's interests are directly adverse to Client 2, even if the lawyer represents Client 2 in completely unrelated matters.

Lawyer's Personal Interests and Duties to Others

A lawyer must not represent a client if there is a significant risk that they representation of that client will be materially limited by the lawyer's responsibilities to another client, former client, or a third person, or the lawyer's own personal interests.

Multiple Representation

A lawyer may represent multiple clients in the same matter in certain circumstances (generally civil cases only). However, if the clients may potentially become adverse or have different interests, the lawyer must obtain the clients' informed consent at the outset. If the potential conflict ripens into an actual conflict, the lawyer may need to withdraw if the conflict cannot be effectively waived.

Personal interests

A lawyer may not refer clients to an enterprise in which the lawyer has an undisclosed financial interest.

All the conflicts of interests can be cured if:

a. Lawyer reasonably believes that he can represent the affected client competently and diligently despite the conflict, AND

b. Lawyer fully explains risks and alternatives (informed consent) and client's consent is "confirmed in writing" (can be electronic, and a confirmatory memo from the lawyer following the client's oral waiver will suffice).

A conflict if unconsentable if the representation involves...

asserting a claim by one client against another client represented by the lawyer in the same litigation (i.e., lawyer cannot be in both sides of the same litigation).

A lawyer may not represent a client with adverse interests to a former in...

the same or subsequent matters without the former client's consent.

Matters may be considered substantially related if...

...they involve the same transaction, or if confidential information learned in the former representation would materially advance the new client's position in the current matter.

Prospective Client

A prospective client is a person who consults with a lawyer about the possibility of forming a client-lawyer relationship with respect to a matter

A lawyer who has obtained information from a prospective client must not represent a client adverse to the prospective client if...

...the lawyer received information from the prospective client that could be significantly harmful to the prospective client in the matter. This conflict can be waived with the informed consent of the client and prospective client.

A lawyer who previously worked for the government must not later represent a client in connection with a matter in which the lawyer...

participated personally and substantially as a public officer or employee, unless the government agency consents.

Conflicts for Former Government Employees are NOT imputed to other attorneys at the disqualified lawyer's firm if the disqualified lawyer is...

screened from the matter, does not share in fees from the matter, and the government is notified in writing.

A lawyer must not use information relating to the representation of a client to disadvantage to the client unless

they have the client's informed consent.

A lawyer may not acquire a proprietary interest in the cause of action or the subject matter of litigation that the lawyer is conducting for a client, except:

1. A lawyer may acquire a lien authorized by law to secure the lawyer's fee or expenses

2. A lawyer may contract with a client for a reasonable contingent fee in a civil case.

A lawyer must not enter into a business transaction with a client or knowingly acquire an ownership, possessory, security, or other pecuniary interest adverse to a client unless:

1. The transaction is reasonable and fair to the client.

2. Terms are fully disclosed to client in writing that client can reasonably understand;

3. Client is advised in writing of the desirability of seeking and is given a reasonable opportunity to seek the advice of independent legal counsel on the transaction; and

4. Client consents, in writing and signed, to the essential terms of the transaction and the lawyer's role in the transaction. (Although most waivers need only be "confirmed in writing," here the client's signature is required; also see aggregate settlement agreements below.)

When settling on behalf of multiple clients for a lump sum, the lawyer must:

1. Assure that all clients agree as to how the sum will be shared;

2. Make extensive disclosures to the clients regarding the terms of the agreement; and

3. Get each client's informed consent in writing.

A lawyer must not provide financial assistance to a client, except:

1. A lawyer may advance court fees and expenses the repayment of which may be contingent on the outcome of the matter

2. A lawyer representing an indigent client may pay court costs and expenses of litigation outright

A lawyer must not solicit...

any substantial gifts from a client, including a testamentary gift.

A lawyer must not. prepare and instrument...

on the client's behalf giving the lawyer or a person related to the lawyer a substantial gift UNLESS the lawyer or recipient is related to the client.

Literary or Media Rights Based on Representation

While representing a client, a lawyer must not make or negotiate an agreement giving the lawyer literary or media rights to a portrayal or account based in substantial part on information relating to the representation. However, the lawyer may do so once the representation is complete, including appeal.

A lawyer must not accept compensation for representing a client from someone other than the client unless all of the following conditions are met:

1. informed consent

2. payment does not interfere with client relationship, AND

3. confidentiality is not breached.

A lawyer employed or retained by an organization represents...

the organization. NOT individual officers or directors

If organization's lawyer learns that an act has been or is about to be committed in a way that violates a duty to the organization, or violates a law in a way that might be imputed to the organization, AND if the violation is likely to cause substantial injury to the organization...

the lawyer must proceed as is reasonably necessary to protect the interests of the organization.

In organizational representation, a lawyer ordinarily MUST report violations to...

some higher authority (e.g, president) within the organization.

If higher authority fails to act, the lawyer MAY report relevant information to appropriate persons outside the organization only if, and to the extent that, the lawyer reasonably believes such reporting is necessary to prevent substantial harm.

Lawyers related to each other ordinarily may not represent...

....adverse parties unless each client gives informed consent. This type of conflict is persona and therefore not imputed.

A lawyer must not have sexual relations with a client...

unless it existed before representation. This type of conflict is personal and therefore not imputed.

In rendering advice, a lawyer may refer not only to law but to...

other considerations such as moral, economic, social, and political factors that may be relevant to the client's situation.

A lawyer must not make a false statement of material fact when dealing with others on a client's behalf...

but generally has no affirmative duty to volunteer harmful facts.

Under generally accepted conventions in negotiation, a lawyer may exaggerate the following because they are not considered statements of material fact:

1. Estimate of prices/values

2. what the client will accept for the settlement.

A lawyer serving as a third-party neutral (arbitrator, mediator, etc.) must inform...

unrepresented parties that they are not representing them.

If litigation arises, the lawyer must not represent any of the parties unless neutral.

No frivolous claims

A lawyer must not file frivolous claims, but in criminal cases a lawyer must argue all elements of the crime for their defendant-- even if they know the defendant is guilty.

False Statements to Tribunal

A lawyer must not knowingly make a false statement to a tribunal, or fail to correct a previous false statement.

Legal Authority to Tribunal

A lawyer must reveal an adverse decision or statute of adverse authority.

False Evidence & Tribunal

A lawyer MUST NOT offer evidence (testimony or other evidence) that the lawyer knows to be false.