BarBri - MPRE Exam 2023 with complete solutions

Regulation of the Legal Profession: American Bar Association - Answer- No disciplinary authority Membership is Voluntary Regulation of the Legal Profession: "Must" Rules - Answer- ABA Model Rules of Professional Conduct (1983) Mandatory Rules Violations are subject to Discipline Displine for Violation of "Must" Rules - Answer- 1. Reproval 2. Suspension 3. Disbarment Reproval - Answer- Censure or reprimand Mild Discipline Public or Private censure/reprimand Suspension - Answer- Prohibited from practicing law for a finite period Name remains on the firm stationary and the door Disbarment - Answer- Permenant punishment Name removed from firm name, door, and stationary Types of MPRE "Must" Questions (The "Call" of the Question) - Answer- The lawyer MUST.... The lawyer MUST NOT... Is the lawyer subject to DISCIPLINE... Regulation of the Legal Profession: "Should" Rules - Answer- Advisory, Aspirational, Ethical Considerations No repurcussions for failure to follow or adhere Merely ethical considerations "Should be involved in..." Types of MPRE "Should" Questions (The "Call" of the Question) - Answer- It would not be PROPER... Which of the following is PROPER... Which MAY the lawyer do... Which SHOULD the lawyer do... Regulation of the Legal Profession is a ________ Excercise - Answer- "Judicial" --- Therefore the State Supreme Court is the ultimate authority (within the context of the Federal System) with the power to regulate attorneys, admit them to the practice, and discipline them. Moral Turpitude - Answer- Bad thing We do not want Good Moral Character - Answer- Good Thing State Law and Professional Responsibility - Answer- State laws supplement the ABA Model Rules of professional conduct Moral Terpitude - Answer- Bad thing We do not want it Good Moral Character - Answer- Good thing State Requirments for admission to the Bar - Answer- Supreme Court says they must be RATIONALLY RELATED to the practice of law Admission to the Bar: Rationally Related - Answer- a) graduate from ABA accredited law school, and b) take an oath to upohold the constitution (US citizenship and resident of the state are NOT rationally related) Requirements on Person Applying to the Bar - Answer- 1. Truth and fair disclosure - provide in regard to Bar exam application 2. Duty to Cooperate - must cooperate, respond, etc. during the application process Requirement od Lawyers who are already admitted regarding Bar applicants - Answer- 1. Good applicant - you SHOULD write a letter 2. Bad applicant - you MUST write a letter informing about the unfitness of the applicant Lawyer Discipline After Admission - Answer- Regulated by the highest court in the state, and agency thereof Obligations to Report and Testify about Violations - Answer- 1. You MUST rat on your lawyer friends to the State Disciplinary Board 2. The rules are NOT jurisdiction specific 3. You must be available to testify (no anonymous tips) 4. Your are always a lawyer 24-7-365 If you KNOW a violation has occured you MUST... - Answer- ...send a letter to the state disciplinary Board with your name on it If you SUSPECT a violation has occured you... - Answer- MAY report it. Unaithorized Practice of Law: Activity requiring a law license - Answer- This constitutes the practice of law: 1. Court Appearences and Depositions (except clinicals, per se) 2. Drafting Legal Documents 3. Conducting Settlements (except insurance companies) Unauthorized Practice of Law: Acitivity which does NOT require a license - Answer- This does NOT constitute the practice of law: 1. File papers with the court 2. Interviewing Witnesses (unless under oath, then it is a deposition) 3. Filling out of forms Ways to Practice in another jurisdiction - Answer- 1. Associate with an in-state lawyer 2. Get admitted Pro Hac Vice ("for this matter only") 3. If you are employed by only one client (as in-house counsel) 4. Mediation or Arbitration arising out of home state practice 5. Anything reasonably related to your home state practice Fee Division with a Non-Lawyer - Answer- NO splitting fees with non-lawyers; except... 1. Payment to heirs (your dead partner's kids) 2. Payment as part of a pension or bonus plan 3. Court awarded fees with a non-profit organization you represent (more or less a donation) Generally, defining a "firm" - Answer- As a general rule, sharing space is NOT a firm but sharing information usualy is Formal, defining a "firm" - Answer- Lawyers who frequently consult, work together, and have access to each other's files Who is "in charge" of a law firm? - Answer- Only lawyers can be in charge of the law firm (as shareholders, partners, etc.) - exception would be temporary shareholder in the event of deat of a partner (until the remaining shareholders buy-out the dead partner's share) Rule of Imputation - Answer- What you cannot do, your partner cannot do...what your partner cannot do, you cannot do. Solo Practioner: duty to plan - Answer- A solo practiotioner has a special duty to plan for death or disability by designating another competent lawyer to: 1. Review files; 2. Notify clients; and 3. Take protective action Supervising Attorneys are responsoble for the acts of subordinates if... - Answer- 1. Supervisor knew and did nothing; OR 2. Supervisor told the person to do it Subordinate (of supervising attorney) is NOT responsible if... - Answer- it is arguable that the subordinate should not, or could not have... 1. objected 2. acted contrarily, or 3. known the act was a violation Restrictions on the Right to Practice (Employment agreements, non-competes, etc.) - Answer- As a general rule, no such restrictions are typically allowed; EXCEPT 1. As part of a retirement plan (a law firm can restrict the activitees of retirees) 2. Withdrawal from a firm but will collect a salary for some time after (a firm can restrict people they are still paying) 3. Sale of a Practice (when you sell your firm, there can be a covenant that restricts your ability to compete with the firm that you just sold) Lawyers and Buses - Answer- We are not buses. We are not required to take each and every case that walks in the door. Exceptions to the general freedom of lawyers to reject cases: - Answer- 1. Defensless or oppressed - a lawyer "should" take these cases 2. Fair share of pro bono work - a lawyer "should" take his fair share 3. Court Appointments - you "must" take court appointments, with 2 exceptions Exceptions to the requirment that you take all court appointments - Answer- Generally, "good cause" to reject must be shown under two possible scenarios: 1. Taking the case would create, for you, an unreasonable financial burden (and not just a modest financial burden) 2. If there is a DUTY TO REJECT (five possibilities) Duty to Reject - Answer- 1. INABILITY - physical or mental disability prohibits representation 2. CONFLICTS - conflict of interest (and the rule of imputation means that everyone in the firm is conflicted out) 3. FRIVILIOUS - Cases where there is "no meritorious defense" must be rejected (except, criminal cases always have the right to a defense) 4. FEELING SO STRONG - you have a duty to protect your client from representation that may be unfairly influenced by your own strong feelings 5. INCOMPETENCE - If you are incompetent in a specific area of the law because it is too complex or difficult Examples of Frivilious Cases (where you have a duty to reject) - Answer- 1. Client's motive is harassment 2. No supportable legal position It is NOT a firvilious lawsuit.... - Answer- ...to assert a position without full substantiation, or even believing, that the position will not ultimately prevail Incompetence - EXCEPTIONS - Answer- Ways to get around (or deal with) the fact that you are incompetent in a specific area of the law (A-L-E) 1. Associate with another lawyer, but you musthave the client's permission in advance 2. Learn the Law 3. Emergency (but this only gets you around the ethical violation - you still may be liable for malpractice) Scope, Objectives, and Means of Representation - Answer- A lawyer may take action implyably authorized by client (it is implied that you will do "this" as the client's attorney) Decision Making Authority (Actual and Apparent) - Answer- CLIENT - makes the important decision ATTORNEY - makes the procedural and tactial decisions Examples of Important Decisions (reserved for the Client) - Answer- Sue, Settle (therefore all offers for settlement MUST be communicated to the Client), Testify, Plea Entered, Jury or Bench (choice of type of trial), Appel Example of Procedural and Tactical Decisions (reserved for the Attorney) - Answer- Where to file / which court, Depositions (how many, who), Discovery (interrogatories, who to file against, what documents to request), Continuances (requests) Exceptions to the General Rule of Decisions (General Rule being Important=Cient, Procedural and Tactical = Attorney) - Answer- 1. Monetary Issues - for example, deposition and discovery costs may be beyond what the client can afford 2. Third Person "Well Being" - If client is concerned of attorney's actions and impact on a 3rd Person Decision Making and Clients with Diminished Capacity - Answer- In this situation, you need to get a guardian appointed to make decisions for the client (you will carry out the guardian's decisions) Counsel and Assistance Within the Bounds of the Law - Answer- The lawyer must be honest. You have no duty to supplement under the ethical rules. Termination of Client-Lawyer Relationship (Attorney Withdrawal) - Answer- If you are in litigation, you need the court's permission to discontinue representation and you must return the client's property Termination of Client-Lawyer Relationship (Client Termination) - Answer- Client always has a right to fire his counsel. And in the case of firing counsel for incompetence, you may not be required to pay Termination of Client-Lawyer Relationship (Mandatory Withdrawal) - Answer- 1. Duty to Reject (same 5 circumstances as above) 2. Client fraud and client's refusal to rectify 3. Clients insists on violation 4. Client has begun an illegal course of action 5. Lawyer discharged (fired by client) Termination of Client-Lawyer Relationship (Permissive Withdrawal) - Answer- 1. For any good reason (including non-payment), but there can be no abandonment. You can withdraw but you must still protect the rights of the client, typically done by withdrawal in stages 2. Where one of these specific conditions are met... a. Client persists in criminal or fraudulent conduct that involves lawyer services and the lawyer reasonably believes it is criminal (if you know for sure your client is a criminal then you must withdraw, but if you merely suspect then you may withdraw) b. Client used attorney services to commit past crime or fraud c. Client will not cooperate Client-Lawyer Contracts - Answer- You may limit representation by contract, but a fiduciary relationship is formed and the duty can not be violated. For example, if you agree to represent a client through trial but not on appeal, and you know the client wants to appeal, you must help them even if your contract said you would not Communication with Clients - Answer- You must communicate promptly anf keep the client informed at all times