Mpre Exam With Complete Solutions

Sources of Regulation - ANSWER-State Courts Bar Association Legislature Federal System Multiple States Admission to Practice Law Application: False Statements - ANSWER-Applicant must not knowingly make false statements of material fact Admission to Practice Law Application: Failure to disclose information - ANSWER-MUST NOT: 1) fail to disclose fact that is necessary to correct a misapprehension known by applicant OR 2) fail to respond to a lawful demand for information Exception: Rules do not apply to info protected by confidentiality duty (if applicant is a lawyer already) Admission to Practice Law: Character and Fitness - "good moral character" - ANSWER-1) Acts of Moral Turpitude are grounds for denial of admission. However evidence of rehabilitation will be considered. 2) Procedural Due Process rights in hearings Admission to Practice Law: Citizenship and Residency requirements - ANSWER-NOT valid requirements - unconstitutional Regulation after Admission: Types of Misconduct subject to discipline - ANSWER-Subject to discipline for: 1) Attempting to violate a disciplinary rule; 2) Assisting or inducing another person to violate a disciplinary rule; 3) Using the acts of another person to violate a disciplinary rule; 4) Engaging in criminal conduct that shows dishonesty, untrustworthiness, or unfitness to practice law; 5) Engaging in any conduct involving dishonesty, fraud, deceit, or misrepresentation; 6) Engaging in conduct that is prejudicial to the administration of justice; 7) Stating or implying an ability to improperly influence a government agency or official or to achieve results by means that violate the law or legal ethics rules; or 8) Knowingly assisting a judge in conduct that is illegal or that violates the Code of Judicial Conduct. Duty to report Professional Misconduct - ANSWER-1) Subject to discipline for failing to report a disciplinary violation committed by another lawyer or a judge. 2) ONLY violations that raise a substantial question as to the other lawyer's honesty, trustworthiness, or fitness as a lawyer or judge. 3) DOES NOT APPLY to info protected by confidentiality rule or to lawyers and judges in substance abuse programs. Disciplinary Process - ANSWER-1) complaint is filed with state bar 2) Hearing with procedural due process rights 3) Lawyer is Entitled to review at states highest court if discipline is imposed. Effect of Sanctions in Other Jurisdictions - ANSWER-1) Sister STATES accept disciplinary action as conclusive proof of misconduct 2) The other states are free to impose their own sanctions 3) Fed Courts make independent evaluation - using states disciplinary action as competent evidence Unauthorized Practice of Law in jurisdiction not licensed by lawyer - ANSWER-1) Subject to discipline for practicing in jurisdiction without being licensed. Permissible Types of Temporary Multi-Jurisdictional Practice - ANSWER-1) Association with local lawyer 2) Special permission to practice in local tribunal 3) Mediation or Arbitration arising out of practice in Home State 4) Other practice arising out of Practice in Home State (reasonably related) 5) Temp practice by foreign lawyers under circumstances similar to above OR international law issues Permissible Types of PERMANENT Multi-Jurisdictional Practice - ANSWER-Only in two limited situations: 1) Lawyers Employed by Their Only Client - must seek pro hac vice admission 2) Legal Services Authorized by Federal or Local Law for a restricted branch of law Consequences of Illegal Multi-Jurisdictional Practice - ANSWER-Lawyer will be subject to discipline in BOTH jurisdictions. Unauthorized practice by non-lawyers - ANSWER-1) A person not admitted to practice as a lawyer must not engage in the unauthorized practice of law. 2) A lawyer is subject to discipline for assisting a nonlawyer to engage in the unauthorized practice of law. Consequences of Unauthorized Practice - ANSWER-1) A nonlawyer engaged in the unauthorized practice of law may be subject to injunction, contempt, and criminal prosecution 2) A lawyer who assists a nonlawyer in the unauthorized practice of law is subject to discipline. Delegating Work to Nonlawyer Assistants - ANSWER-A lawyer must supervise delegated work carefully and must be ultimately responsible for the results Training Nonlawyers for Law-Related Work - ANSWER-A lawyer may advise and instruct nonlawyers whose employment requires a knowledge of the law. Helping Persons Appear Pro Se - ANSWER-A lawyer may advise persons who wish to appear on their own behalf in a legal matter. Assisting a Suspended or Disbarred Lawyer to practice law - ANSWER-A lawyer who assists (e.g., hires) a suspended or disbarred lawyer to do work that constitutes the practice of law is subject to discipline. How to create a Lawyer-Client Relationship - ANSWER-A lawyer-client relationship arises when a person indicates an intent that the lawyer provide legal services and (1) the lawyer agrees or (2) fails to clearly inform the person that he does not wish to represent her, resulting in implied assent, or when a tribunal appoints a lawyer to represent a client. Permissive Withdrawal Situations - ANSWER-Lawyer must have good cause to reject court appointment or other representation: (i) to represent the client would require the lawyer to violate a law or disciplinary rule, (ii) representing the client would impose an unreasonable financial burden on the lawyer, or (iii) the lawyer's personal feelings would prevent her from representing the client effectively (REPUGNANCE) Duty to Reject Certain Cases - ANSWER-A lawyer must refuse employment when: a. The client's motive is to embarrass, delay, or burden a third person; b. The case presents a factually or legally frivolous position (but a good faith argument that the facts are as claimed or that the law should be changed is permissible); c. The lawyer is incompetent (or too busy) to handle the matter; d. The lawyer's strong personal feelings may impair his ability of effective representation; or e. The lawyer's mental or physical condition would materially impair the representation. Duties owed to prospective client - ANSWER-If no lawyer-client relationship ensues from a consultation with a prospective client, the lawyer must: (i) protect the person's confidential information, including declining representation of others in the same or a related matter; (ii) protect the prospective client's property; and (iii) use reasonable care in giving the person any legal advice, e.g., whether the claim has merit. Ethical Obligation to Accept Unpopular Cases - ANSWER-A lawyer can fulfill his obligation to assist in the provision of legal services to those in need by accepting a fair share of unpopular matters or indigent or unpopular clients ATTORNEYS' FEES: When to to agree to fee - ANSWER-The ABA Model Rules require a lawyer to reach a clear fee agreement with the client, preferably in writing, EARLY in the relationship. Discipline for Unreasonable Fee - ANSWER-A court will not enforce a contract for an unreasonably high fee or an unreasonably high amount for expenses, and the lawyer is subject to discipline for trying to exact such a fee or expenses. Factors for determining reasonableness of fees - ANSWER-1) the time and labor required; 2) the novelty and difficulty of the questions involved; the skill required; 3) whether the lawyer is precluded from other work; 4)what other lawyers in the community charge; 5) the amount at stake and the results obtained; 6)time limitations; 7) the experience, reputation, and ability of the lawyer; 8) whether the fee is fixed or contingent. Items that May and May Not Be Billed - ANSWER-Ordinary overhead Collecting and Financing Attorneys' Fees: Payment in Advance - ANSWER-1) A lawyer may require her fee to be paid in advance, but she must refund any unearned part of the advance if she is fired or withdraws. 2) A lawyer need not return a true retainer fee Property for services - ANSWER-1) A lawyer may accept property in return for services, provided that this does not involve a proprietary interest in the cause of action or subject of litigation, 2) but such an arrangement is subject to scrutiny to make sure the lawyer does not take advantage of the client. Fees Cutting Off Services - ANSWER-A lawyer must not make a fee agreement that could cut off services in the middle of the relationship and thus put the client at a disadvantage. Credit Arrangements and Security as a Fee - ANSWER-1) An attorney may permit the client to pay a fee by credit card, to finance fees through bank loans, or to pay by an interest-bearing promissory note. 2) If local law permits, an attorney may use an attorney's lien to secure payment of a fee. Contingent Fees General Rules - ANSWER-1) Generally Prohibited in Criminal and Domestic Relations Cases 2) Contingent Fee Must Be Reasonable 3) Written Fee Agreement Required Written Contingency fee requirements - ANSWER-1) A contingent fee agreement is required to be in a writing signed by the client. 2) The writing must spell out how the fee is to be calculated, what litigation and other expenses are to be deducted from the recovery, whether deductions for expenses will be made before or after the fee is calculated, and what expenses the client must pay. Allowable Fee sharing with other lawyers in SAME firm - ANSWER-1) Other lawyer is partner or associate in SAME firm OR 2) Other lawyer is a FORMER partner or associate in SAME firm and sharing is pursuant to a separation or retirement agreement Allowable Fee sharing with NON-lawyers - ANSWER-1) If money is a death benefit payable under agreement between dead lawyer and his firm or the purchase price for the sale of a deceased, disabled, or disappeared lawyers practice 2) Money is being paid into a retirement or compensation plan or firm employees 3) Money is being paid to a nonprofit organization that hired or recommended the lawyer Fee Disputes - disallowed collection methods - ANSWER-In seeking compensation from a client, a lawyer may not employ collection methods 1) forbidden by law, 2) improperly use confidential information, 3) or harass a client. Lawyers Remedies for Fee Disputes - when client does not want to pay - ANSWER-1) Liens 2) Retention of disputed amount of funds in a Trust Account until dispute is resolved 3) ADR by the state Bar Association Allowable Fee Sharing with other Lawyers from DIFFERENT firms - ANSWER-The lawyers can submit a single bill to the client if: 1) The total fee is reasonable AND 2) The split is in proportion to the services performed by each lawyer, OR different proportions if each lawyer assumes joint responsibility for the matter AND 3) The client agrees to the split in a writing that discloses the share each lawyer will receive. Referral Fees Prohibitions - ANSWER-Lawyers are prohibited from paying anyone - including another lawyer - for recommending him or referring a matter to him. Fee splitting with a referring lawyer who does not assume responsibility for a matter nor does work on the matter is also prohibited. Acceptable Referral Arrangements -Reciprocal Referral - ANSWER-EXCEPTION TO RULE: A lawyer may, however, set up a "reciprocal referral" arrangement with another lawyer or with a non-lawyer in which each person agrees to refer clients or customers to the other. The arrangement must not be exclusive, and the lawyer's client must be informed of the existence and nature of the arrangement. Scope of Representation Generally - ANSWER-1) Lawyer and client can contract the scope and objectives of representation 2) If no agreement, lawyer must pursue client's objectives reasonably. 3) A lawyer may help the client determine the validity, scope, and meaning of a law. 4) A lawyer also may take actions that are impliedly authorized to carry out the representation. Scope of Representation: Decisions to be made by client - ANSWER-1) Whether to accept settlement offers 2) What plea to enter in a criminal case 3) Whether to waive a jury trial in a criminal case 4) Whether the client will testify in a criminal case 5) Whether to appeal Limiting Scope of Representation - ANSWER-A lawyer may limit the scope of the representation if: 1) the limitation is reasonable under the circumstances, AND 2) if the client gives informed consent. Disagreements between lawyer and client - when to defer to client or lawyer - ANSWER-1) Clients defer to lawyers about issues of law, tactics, and strategy. 2) Lawyers defer to clients about questions of expense and concern for third persons affected by a legal tactic 3) Lawyer may withdraw or the client may fire the lawyer if disagreements are not resolved. Client expecting assistance that violates law or legal ethics rule - Mandatory Withdrawal Steps - ANSWER-1) Lawyer must explain WHY he cannot do what the client expects, 2) If the client insists on the lawyer's assistance in violating law or ethics rule, the lawyer MUST Withdraw Discovering a Client's Illegal Conduct - Mandatory Withdrawal Steps - ANSWER-1) Lawyer must not assist the wrong doing 2) Lawyer MUST withdraw 3) NOISY WITHDRAWAL - lawyer gives outsiders notice of her withdrawal and disaffirms any of her prior opinions, documents, affirmations, or the like that the client is using to carry out the wrongdoing. Client with Diminished Capacity: Lawyer's Duties - ANSWER-1) The lawyer has a duty, so far as reasonably possible, to maintain a normal lawyer-client relationship with the client. 2) The lawyer must treat the client with attention and respect. Even if the client has a guardian or other representative, the lawyer should, so far as possible, treat the client as a client, particularly in communicating with the client about significant developments. Client with Diminished Capacity: Protective Action and Appointment of Guardian - ANSWER-When the client has diminished capacity and faces a risk of substantial physical, financial, or other harm: 1) the lawyer may take reasonable actions to protect the client. These actions include consulting with people or entities that can protect the client, and, when appropriate, seeking the appointment of a guardian or similar surrogate. 2) When taking protective action, the lawyer has implied authority to reveal the client's confidential information, but only to the extent necessary to protect the client. Emergency Legal Assistance to NON - CLIENT with Seriously Diminished Capacity - ANSWER-When a person with seriously diminished capacity faces imminent and irreparable harm to her health, safety, or financial interest: 1) a lawyer may take legal action on her behalf, despite her inability to establish a lawyer-client relationship or to make or express considered judgments about the matter. 2) However, the lawyer cannot act until the person (or someone acting on her behalf) has consulted the lawyer, and the lawyer should not act unless he reasonably believes the person has no other representative available. 3) Any action undertaken should be limited to that which is reasonably necessary to maintain the status quo or otherwise avoid imminent and irreparable harm. 4) No compensation for emergency actions taken on behalf of a non-client Communication: Informed consent - ANSWER-Informed consent means that the client agrees to a proposed course of conduct after the lawyer has sufficiently explained the material risks and reasonable alternatives. Communication: about Status of the Matter - ANSWER-The lawyer must keep the client reasonably informed about 1) the status of the matter AND 2) about the means by which the lawyer plans to accomplish the client's objectives 3) If lawyer must make an immediate decision - no need to consult with C before acting. Communication: Requests for Information by the Client - ANSWER-1) When a client does make a reasonable request for information, the lawyer must respond promptly. 2) If this is impossible, the lawyer or a member of her staff should acknowledge the client's request and tell the client when the information will be available. Communication: Consultation about illegal or unethical conduct - ANSWER-If the client expects the lawyer to do something that is either illegal or unethical, the lawyer must consult with the client and explain why he cannot do what the client wants. Communication: Withholding information from client - ANSWER-1) A lawyer may delay the transmission of information to a client if the client would be likely to react imprudently to an immediate communication 2)The lawyer must not, however, withhold information to serve the lawyer's or a third person's interest or convenience. Communication: Court rule or order - ANSWER-A court rule or order may forbid a lawyer from sharing certain info with a client. The lawyer must comply with such a rule or order by the court. Terminating A-C Relationship: Three ways - ANSWER-1) C fires lawyer 2) Mandatory Withdrawal 3) Permissive Withdrawal Clients liability for fees when C fires lawyer - ANSWER-1) The client is liable to the attorney in quantum merit - equitable amount to avoid Unjust Enrichment 2) Attorney cannot recover for more than provided by express contract Client liability for fees when C fires lawyer: Contingency Fee Cases - ANSWER-The lawyer is still entitled to quantum meruit recovery for the reasonable value of the work done before the firing. However, the lawyer's claim does not arise until the contingency comes to pass (E.g. lawyer prepares for trial, C fires, C settles - lawyer gets fee after settlement.) Court permission to substitute Lawyers (Client firing current lawyer or Lawyer withdrawal) - ANSWER-1) When a party wants to fire her attorney, courts usually grant the necessary permission, but permission may be denied if a substitution of attorneys would cause undue delay or disruption. 2) When an attorney seeks to withdraw from a case, the court may deny the necessary permission; in that event, the attorney must continue the representation, even if there is good cause for withdrawal.