SC BAR > MPRE (Barbri) > Flashcards

MPRE (Barbri) Flashcards

(125 cards)

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1
Q

3 general rules every lawyer has?

A

Competence, dilligence, & communcation.

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2
Q

__________: Acting with the legal knowledge, skill, thoroughness, and prep REASONABLY NECESSARY for the representation.

A

Competence

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3
Q

Can an attorney take a case they are not currently competent for?

A

Yes, if they can become competent.

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4
Q

___________: Acting w/ reasonable dilligence and promptiness in representing a client.

A

Dilligence

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5
Q

_________: Explain and keep a client reasonably informed throughout the process. Use language they understand and respond timely.

A

Communication

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6
Q

Scope of authority between client & laywer?

A

Client = Goals and objectives
Lawyer = Procedure & tactics

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7
Q

Client gets say on SUBSTANTIVE decisions. What are these?

A

Civil = Settlement
Criminal = Plea deals, testifying, waiving jury trial

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8
Q

When can’t the lawyer listen to his client?

A

Fraud or crime

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9
Q

Confidentiality: A lawyer must not reveal info about client UNLESS…

A

Client consents or exception applies

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10
Q

Every lawyer owes a duty of ________ to each and every client.

A

Loyalty

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11
Q

Two types of conflicts of interests?

A
  1. Direct Adversity
  2. Material limitation conflicts
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12
Q

____ ___ conflict: Interest of client 1 is directly adverse to client 2.

A

Direct Adversity

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13
Q

____ ____ conflict: Unless conflict can be resolved, can’t represent if significant risk that representation will be limited by:
1. Your own interest
2. Your responsibility to someone else

A

Material limitation conflict

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14
Q

Can material limitation conflicts be resolved? If yes, how?

A

Yes. Must have all four:
1. Despite conflict, lawyer can provide a) competent and b) dilligent representation to both clients.
2. Not prohibited by law
3. No C1 vs C2 in same tribunal.
4. Written informed consent

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15
Q

3 big rules regarding candor toward tribunal?

A
  1. No misrepresentation of material fact
  2. If you later find out statement you made is incorrect, must remedy.
  3. Must disclose binding legal authorities which are directly adverse to your client
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16
Q

Meritorious claims. General rule?

A

If unsupported in good faith by existing law, cannot make it. Or if you don’t have GF argument for why the law should be changed, cannot make it.

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17
Q

Can you talk to persons already rep by counsel?

A

Yes, but only about unrelated shit.

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18
Q

Rules about talking to someone who is not rep by counsel?

A
  1. Don’t imply or state your not interested
  2. If he is confused about your role, clear that up.
  3. You can’t give counsel if conflicts with current client interests
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19
Q

Rule for represented company engagement? Can you talk?

A

If high level employees, need consent. For former employees, no consent needed.

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20
Q

Who can discipline a lawyer?

A

Any state where a lawyer offers his services.

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21
Q

When must you report a lawyer?

A

If the violations raises SUBSTANTIAL QUESTION as to that lawyers fitness. MAY report if not SUBQ.

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22
Q

Can you report lawyer if it would violate your duty of confidentiality?

A

No

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23
Q

Can you report lawyer if connected to lawyer’s assistance program?

A

No

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24
Q

Pre-emptory jury strike on basis of race. Reprotable Misconduct?

A

No. This alone is not enough.

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25
In addition to misconduct, lawyers can get in trouble for conduct ________ to justice.
Prejudicial (getting in way)
26
T/F) Lawyer subject to discipline for conduct involving dishonesty, fraud, deceit, or misrepresentation.... even if unrelated to law practice.
True
27
Admission requirements, according to SC, must be ____ _____ to practice of law.
Rationally related
28
T/F) Must be US citizen to practice law.
False
29
T/F) Must be state resident to practice law in that state.
False
30
Which of the following is a valid requirement for admission to a state's bar? Responses A The applicant is willing to take an oath to uphold the state and federal constitutionsThe applicant is willing to take an oath to uphold the state and federal constitutions - correct B The applicant is a citizen of the United StatesThe applicant is a citizen of the United States - no response given C The applicant is a resident of the state in which she is seeking admission
A
31
Bar applicant Tom hires his old law professor Aisha in connection with his bar application. Tom tells Aisha that there were charges of plagiarism filed against him during college, but these charges were eventually dropped when the accusing professor died. Aisha does not believe Tom would have committed plagiarism. The state bar contacts Aisha as a character reference and asks, “Do you know of any past or current allegations of dishonesty against the applicant?” Aisha responds, “No, I do not.” Is Aisha subject to discipline? If yes, why?
Yes. An applicant for admission to the bar, or a lawyer in connection with a bar admission application, must not knowingly make a false statement of material fact.
32
Attorney Selin suspects that Phil, her supervisor, is stealing from clients because he suddenly purchased several luxury items and seems “off.” Selin does not report this to a disciplinary authority. Is Selin subject to discipline?
No. She must know / have actual knowledge. Mere suspicion is not enough.
33
Miguel and Brendan are brothers-in-law and are both lawyers. One day, Brendan pulls Miguel aside at a holiday gathering and tells Miguel he needs legal advice. Miguel agrees to help, and Brendan tells Miguel that he has been stealing small amounts of money from many clients to support his gambling addiction. Miguel tells Brendan to hire another lawyer. What should Miguel do next?
Do not report. He was acting in capacity as lawyer when he learned this information. You cannot report if it would disclose confidentiality.
34
Calvin is admitted to practice in State A but received “pro hac vice” permission from State B to represent a client in State B court. During the State B litigation, Calvin commits misconduct. Which state can discipline Calvin for his misconduct?
Both states
35
T/F) A lawyer is subject to regulation by each state in which the lawyer is admitted to practice, regardless of where the lawyer actually practices law or where the lawyer’s conduct occurred. A lawyer is also subject to discipline in any other state where the lawyer provides or offers to provide legal services.
True!
36
A lawyer’s friend (who is not a lawyer) approaches him and says, “I need some extra money and I read a book on how to write wills. I already have my first client. Can you look over my draft and make sure I’m on the right track?” Can the lawyer ethically do this?
No. The friend is engaging in the unauthorized practice of law by drafting wills for people, and the lawyer would be subject to discipline for assisting the friend.
37
A partner or supervisor is subject to discipline for misconduct by a firm employee if... 1) 2)
1) They ordered or ratified the misconduct 2) They failed to take reasonable remedial measures
38
Abby is licensed to practice in State A but received “pro hac vice” permission from State B to represent a client in a lawsuit in State B court. During the State B litigation, Abby does something that violates the rules of professional conduct of State B. However, the action is permitted under State A’s rules. State B’s choice of law rule follows the ABA model rule. Which state’s rule will apply to Abby’s conduct?
State B
39
A lawyer would be subject to discipline for having their nonlawyer employee do which of the following? Select all that apply. response - correct Responses (A) Negotiate a settlement for a client (B) Interview a client without the lawyer present (C) Research and draft a motion for the lawyer’s review (D) Appear in court on a client’s behalf (E) Advise a client on the legal consequences of what they intend to do
A D E
40
Beth, an entertainment lawyer, forms a partnership with Jeff, a nonlawyer talent agent. The partnership’s purpose is to provide clients with a “one stop shop” for their needs. Beth provided legal services on one side of the office, and Jeff worked as a talent agent on the other side of the office. Jeff never did any legal work, and Beth made sure to warn all clients that the protections of the attorney-client relationship did not apply to their dealings with Jeff. Is Beth subject to discipline?
Yes! A lawyer must not form a partnership with a nonlawyer if ANY part of the partnership activities will constitute the practice of law.
41
Generally, a lawyer must not share fees with a nonlawyer. Which of the following is NOT an exception to this rule? Responses A Paying a paralegal a portion of a fee based on how much work they did on that matterPaying a paralegal a portion of a fee based on how much work they did on that matter - correct B Paying death benefits to a deceased lawyer’s estatePaying death benefits to a deceased lawyer’s estate - no response given C Sharing a court-awarded legal fee with the nonprofit organization that hired or recommended the lawyer in the matterSharing a court-awarded legal fee with the nonprofit organization that hired or recommended the lawyer in the matter - no response given D Purchasing the law practice of a deceased, disabled, or disappeared lawyerPurchasing the law practice of a deceased, disabled, or disappeared lawyer - no response given E Paying the firm’s administrative assistants a salary or bonus
A
42
T/F) A subordinate lawyer doesn’t violate the rules of professional conduct by acting in accordance with a supervisor’s reasonable resolution of an arguable question of professional duty.
True
43
T/F) Orders from a supervisory lawyer are no excuse for clearly unethical conduct—a lawyer has to follow the ethics rules even when acting under the direction of another person.
True
44
T/F) If a lawyer provides nonlegal services in circumstances that aren’t distinct from the provision of legal services, then the rules of professional conduct apply to both the legal and nonlegal services.
True, the key is that the service is NOT DISTINCT from legal services.
45
Does a subordinate lawyer acting on orders of another lawyer excuse misconduct? Exceptions?
No, unless action was the "reasonable resolution" of an arguable Q of professional duty.
46
When are partnerships permitted with non-lawyers?
When there is no practice of law involved.
47
Can a non-lawyer control ownership interest in firm?
Nope.
48
Is fee splitting permitted w/ non-lawyers? Exceptions if no?
No. Exceptions: 1. Death benefits from lawyer estate 2. $$ to purchase practice from dead / missing lawyer 3. Bonus / salaries to firm employees 4. Lawyer sharing fees w/ non-profit who hired / recommended
49
When may a law firm restrict the right to practice of a lawyer? (Generally not permitted)
Only for retirement benefit agreements
50
T/F) Settlement agreements for clients CAN restrict that lawyers subsequent right to practice.
False
51
Seller duties of law firm?
1. Sell WHOLE practice or WHOLE area of practice 2. Written notification to all clients (who can get other counsel or their files) Note: Client consent to transfer file presumed after 90 days
52
T/F) Once you sell your law firm, you can't then cont. private practice in that local area.
True. You may do gov. work though.
53
Buyer duties of law firm?
Honor existing fee agreements
54
RPC applies to ancillary services when?
When ancillary services are not distinct from legal services
55
T/F) For a lawyer-client relationship to be formed, there must be an oral or written promise by the lawyer to provide legal services to the client.
False
56
Attorney-client relationship. How many ways formed?
1. Express 2. Implied 3. Reasonable reliance 4. Court appointed
57
A client asks a lawyer to represent her in a contract dispute. The lawyer estimates that the total fee for the representation will be around $5,000 (50 hours of work at a rate of $100 per hour) and asks the client to pay this $5,000 “retainer” up front. Is this arrangement proper?
Yes. $$ belongs to client though until lawyer earns it. Why not a retainer? B/C this is payment for "legal services" not "future availability." Trick question!
58
After winning a big case at trial, a partner shares the substantial legal fee with his associate. The associate was not involved in the case and did not assume responsibility for the case. The partner did not inform the client of the fee-splitting arrangement and the share that the associate would receive. Is the partner subject to discipline?
No. Lawyers in the same firm can share fees however they like.
59
A lawyer who is representing a criminal defendant receives a plea bargain offer from the prosecution. The lawyer strongly and reasonably believes that his client will be acquitted at trial. He also believes that if he tells the client about the plea offer, the client will accept it to avoid the possibility of a longer jail sentence. The lawyer rejects the offer on the client’s behalf. Is the lawyer subject to discipline?
Yes, the lawyer must always inform client of settlement or plea offers. UNLESS, client expressly authorized b4 hand.
60
A lawyer is representing a client who is selling an autographed baseball. The day before the sale is to be finalized, the client admits to the lawyer that the autograph is fake. The lawyer:
Must withdraw due to violation of RPC and law.
61
Emily previously represented building owner Sunil in various landlord-tenant disputes. Sunil e-mails Emily and says he wants her to represent him in a new dispute with a tenant. Emily and Sunil meet and spend a few hours discussing strategy. Emily never expressly accepts or declines the case during the meeting. Is there an attorney-client relationship between Emily and Sunil?
Yes. Implied acceptance based on meeting to discuss strategy and prior relationship.
62
What type of fee agreements are required to be in writing? Responses A Hourly fees onlyHourly fees only - no response given B Contingent fees onlyContingent fees only - not selected, this is the correct answer C Flat fees onlyFlat fees only - no response given D All fees
Contingent fees only
63
T/F) A lawyer must, before or within a reasonable time after commencing a representation, communicate the basis or rate of the fee and the expenses for which the client will be responsible. However, if the lawyer regularly represents the client and will be charging the same basis or rate as in other matters, the lawyer need not communicate the fee arrangement each time.
True
64
Contingent fee is only prohibited in:
(i) criminal cases, and (ii) domestic relations cases.
65
All contingent fees must be:
1) in writing; 2) contain various disclosures; 3) and be signed by the client.
66
A client comes to a lawyer for advice regarding a zoning statute that is probably unconstitutional, but the client doesn’t have legal standing to challenge it. The lawyer advises the client that one way to obtain standing is to disobey the statute. Subject to discipline?
No. Weird!!
67
T/F) When the client has diminished capacity and faces a risk of substantial physical, financial, or other harm, the lawyer may take reasonable actions to protect the client.
True!
68
T/F) Withdrawal is mandatory when continued representation would require the lawyer to violate the law or rules of professional conduct. Let's say that continuing to represent your client in a frivolous claim would violate the rules of professional conduct. However, when when you seek to withdraw from a case and the court denies the necessary permission, you have to continue the representation.
True. Court denial overrides even this situation.
69
T/F) When a client hires a lawyer on a contingent fee basis and then fires the lawyer before the case is over, the lawyer is still entitled to quantum meruit recovery.
True, can get reasonable value of services once the client prevails in the case.
70
Mandatory withdraw reasons?
1) Your physical / mental health 2) Frivolous claims 3) Representation requires vio of RPC or the law
71
Permissive withdraw reasons?
1) Repugnant client 2) Client non payment 3) Client makes representation difficult 4) Prior fraud / crime in services or current crime / fraud All permissive so long as no material adverse effect on the client.
72
Lawyers must promptly notify client of settlement offers or plea bargains, except when?
When client previously authorized what the lawyer could accept or not accept.
73
Diminished capacity... When can you take "protective action?" What info may you reveal?
When client at risk of "substantial harm." May only reveal info as necessary to protect the client.
74
Lawyer discusses the consequences of plan to commit fraud / crime with client. Subject to discipline?
No.
75
2 lawyers (diff firms) fee splitting. 2 main options? Client consent?
1) Split proportionate to services performed 2) Fee split however you like...each assumes joint responsibility. Must have client written consent for both?
76
Fee splitting w/ other lawyers: 1) In your firm 2) Retired mbrs of your firm 3) Former firm lawyers with pending cases 4) Diff firms
1-3 is okay. 4 = Okay when both lawyers involved and client consents in writing. NO REFERRAL FEES!
77
Contingent fees prohibited in what cases? Exceptions?
Criminal and domestic. Exception = Past due amounts in domestic matters.
78
Contingent fee requirements?
In writing, signed by client. Must explain fees, how calculated, expenses, who pays expenses, how deducted, etc. Must also have written statement at conclusion explaining all fees.
79
Retainer fees?
You keep money when paid. This is for your future availability, not legal fees.
80
ADV legal fees. When do you keep that money?
Only when you earn it. Diff from up front retainer fee which you keep immediatly.
81
Client pays 1K upfront for legal fees. You do $100 worth of work and quit. What do you return?
$900
82
Factors involved for determining "reasonableness" of fees?
1. Time and labor 2. Complexity 3. Nature of relationship 4. Fixed or contingent
83
T/F) Written fee agreements are required always.
False. They are preferred but only required for contingent fees.
84
Changes to fees must always be communicated. Except when?
Routine representation. of a regular client.
85
Client-lawyer relationship. Ways formed?
1. Express 2. Implied assent / reasonable reliance 3. Court appointed
86
ACP vs Duty of confidentiality. Which one applies to ALL comms, regardless of where came from.
Duty of confidentiality
87
During a consultation between a lawyer and a prospective client, the prospective client admits to having murdered his neighbor. After their consultation, the prospective client decides to hire a different attorney. At the prospective client’s murder trial, the prosecution subpoenas the lawyer to testify about his consultation with the prospective client. Is the prospective client’s admission to the lawyer privileged?
Yes, we cannot disclose past crimes. Future crimes only!
88
A client hires a lawyer to represent her in “various financial matters.” The client then tells her new lawyer that she recently embezzled funds from her employer. The client asks the lawyer to help her devise a money laundering operation for the embezzled funds. The lawyer refuses and withdraws from representing the client. May the lawyer inform the client’s employer of the embezzlement scheme?
No. Can only disclose when client used or is using lawyer services in "furtherance" of that financial crime.
89
T/F) Under ACP, if it does not relate to client comms (for legal services) it is not confidential.
True!
90
Does ACP cover comms with "agents" of the client? EX: Doctor, Guardian, interpreter.
Yes
91
Does ACP cover pre-existing docs or records?
Nope.
92
Are public conversations private under ACP?
No. Need some kind of REOP.
93
Who decides to claim/waive ACP?
The client!
94
ACP: If you disclose private info to 3rd party?
Waived ACP.
95
ACP Exceptions?
1. Future crime / fraud (past is privilege) 2. Attorney self protection ( you being sued) 3 Civil litigation between former clients 4. Mental capacity / intent of former / dead client
96
What must other side show to get WPC?
Substantial need; and Cannot get w/o undue hardship
97
When can you disclose duty of confidentiality?
1. Death or sub bod harm (someone dying or future event) 2. Prevent financial injury (if your services used) 3. Defend self 4. Seek ethical advice 5. Resolve conflicts of interest
98
The attorney-client privilege applies to: Responses A Confidential communications between the attorney and anyone involved in the caseConfidential communications between the attorney and anyone involved in the case - no response given B Confidential communications between the attorney and client and their respective agentsConfidential communications between the attorney and client and their respective agents - correct C All information relating to the representationAll information relating to the representation - no response given D All information relating to the representation that would harm the client
99
What is the most accurate definition of “confidential information” under the ethical duty of confidentiality? Responses A Any communication between the lawyer and the clientAny communication between the lawyer and the client - no response given B All information relating to the representationAll information relating to the representation - correct C All information relating to the representation that the attorney receives from the clientAll information relating to the representation that the attorney receives from the client - no response given D All information relating to the representation that the client asked to keep privateAll information relating to the representation that the client asked to keep private - no response given
B
100
Which of the following apply to discussions with someone who comes in to talk about hiring the lawyer but decides not to do so? Responses A The attorney-client privilege onlyThe attorney-client privilege only - no response given B The duty of confidentiality onlyThe duty of confidentiality only - no response given C Both the attorney-client privilege and the duty of confidentialityBoth the attorney-client privilege and the duty of confidentiality D Neither the attorney-client privilege nor the duty of confidentiality
C
101
Which of the following survive the client’s death? Responses A The attorney-client privilege onlyThe attorney-client privilege only - no response given B The duty of confidentiality onlyThe duty of confidentiality only - no response given C Both the attorney-client privilege and the duty of confidentialityBoth the attorney-client privilege and the duty of confidentiality D Neither the attorney-client privilege nor the duty of confidentiality
C
102
Lawyer Winnie receives an e-mail from a witness in a case. The e-mail contains details of the witness’s private conversation with Winnie’s client. The e-mail is protected by: Responses A The attorney-client privilege onlyThe attorney-client privilege only - no response given B Winnie’s duty of confidentiality onlyWinnie’s duty of confidentiality only - C Neither the attorney-client privilege nor Winnie’s duty of confidentialityNeither the attorney-client privilege nor Winnie’s duty of confidentiality - no response given D Both the attorney-client privilege and Winnie’s duty of confidentiality
B ) ACP only applies to comms with client & agents. Accordingly, only duty of confidentiality applies here.
103
T/F) The attorney-client privilege applies to consultations with prospective clients, but the attorney-client privilege doesn’t apply if the client is seeking the attorney’s services to engage in or assist a future crime or fraud.
True
104
Jason is charged with bank robbery. Jason meets with his attorney, Ben, and says, “I’m going to be straight with you. I did it.” Is the communication privileged?
Yes!
105
Holly is representing Deena in a murder case. Deena brings her journal to Holly’s office and tells her it contains entries from the days before the murder. She asks Holly to keep it safe during the trial. Is the journal privileged?
NO. Privilege does not apply to pre-existing DOCS.
106
Alison e-mails her lawyer, Bill, about a sensitive matter. Alison then forwards the e-mail to a friend. The e-mail is protected by: Responses A The attorney-client privilege onlyThe attorney-client privilege only - no response given B Bill’s duty of confidentiality onlyBill’s duty of confidentiality only - C Neither the attorney-client privilege nor Bill’s duty of confidentialityNeither the attorney-client privilege nor Bill’s duty of confidentiality - incorrect D Both the attorney-client privilege and Bill’s duty of confidentiality
B. ACP is waived by sharing w/ 3rd party, but not ACP.
107
T/F) ACP is waived by sharing w/ 3rd party, but not ACP.
True
108
Justin calls his lawyer, Vanessa, and tells her that he killed his friend the previous night and he buried the body in his backyard. Vanessa calls the authorities and passes on the information. Is Vanessa subject to discipline?
Yes. This was past crime and person already dead.
109
T/F) A lawyer may reveal the client’s confidential information to the extent necessary to prevent the client from committing a crime or fraud that is reasonably certain to result in substantial financial harm to someone, if the client is using or has used the lawyer’s services in the matter.
True!
110
Firm A and Firm B have been in merger discussions for some time, but they are concerned about possible conflicts of interest. Firm A asks Firm B to send a list summarizing each of its matters, including the name of the client involved, a brief summary of the general issues, and the estimated value of the claim. Firm B complies. Is Firm B subject to discipline? Responses A Yes, but only for disclosing the estimated value of each matterYes, but only for disclosing the estimated value of each matter - not selected, this is the correct answer B Yes, for disclosing any of the informationYes, for disclosing any of the information - no response given C Yes, but only for disclosing the client’s namesYes, but only for disclosing the client’s names - no response given D No, because the disclosure falls within an exception to the duty of confidentiality
A
111
Informed client consent -- to waive conflict -- can be oral or in writing. (T/F)
True
112
T/F) Being on diff sides of same conflict is waivable.
False
113
T/F) Lawyer personal conflicts not imputted to firm.
True
114
A lawyer’s best friend tells him, “I want you to draft my will, and I want to leave my yacht to you in the will.” The lawyer and the friend have no family relationship. Can the lawyer draft the friend’s will?
No. Lawyer cannot offload this to his firm either.
115
A lawyer represents an indigent client in litigation on a contingency fee basis. The client tells the lawyer that he is unable to pay for food, and the lawyer gives him enough money to buy groceries for the week. Is the lawyer subject to discipline?
Yes, the rule allowing gifts (modest) applies to indingent clients whom you rep. pro bono only.
116
T/F) Conflict b/c of sexual relationship not imputed to firm.
True because it is "uniquely personal" to that lawyer.
117
William wants Lena to represent him in the sale of his home to Peter. Lena represents Peter in an unrelated matter. Lena reasonably believes that she can competently and diligently represent them both in their respective matters. What must Lena do before undertaking the representation of William?
Get written, informed consent from both!
118
A lawyer must never be on opposite sides of the same litigation. However, this rule does not apply to transactional matters. (T/F)
True!
119
T/F) Lawyers within a firm are treated as a single unit for conflicts purposes.
True
120
You are not allowed to have interest in media / book rights related to your case. Exceptions?
When the case is over
121
Generally, you cannot provide financial assistance to clients. Exceptions?
1. Court costs / expenses ADV 2. Indengent client assistance w/ court costs / exps 3. Indengent client (pro bono) modest gifts
122
Lawyer cannot solicit gifts except when?
Related to client
123
Lawyer cannot write will where he gets gift except when.
Related
124
Business transactions?
1. Fair & reasonable to client 2. Explain terms 3. Tell get indp. counsel Then written, signed, informed consent.
125
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