bar exam outline: multistate professional responsibility exam (mpre)

Multistate Professional Responsibility Exam (1999)
In my opinion, the MPRE is a relatively easy examination which does a poor job of screening out unethical bar applicants.  In August 1999, the raw score is from 0 to 50, and the scaled score range is from 50 to 150.  California requires a scaled score of 79 or better to pass.  The 50th percentile is at a scaled score of 100, which I do not think is difficult to achieve.  Practically speaking, I recommend reviewing the BarBri prep book outline, doing the practice exams in the back, and relaxing, because the exam isn't that difficult.

The Practicing Law Institute (PLI) provides a free on-line MPRE preparation course.
  1. 2.5min/question
  2. OK to guess
  3. FRE & FRCP apply
Roles of the Lawyer

  1. Advisor
  2. Intermediary
  3. Evaluator
  4. Negotiator
  5. Public service
  6. Appearing before legislative bodies
Legal system

  1. Improving the system
  2. Impropriety incident to public service

  1. Inherent powers of the courts is supreme; legislature can pass regulatory laws.
  2. Admission

  1. State bar in which you practice

  1. Education
  2. Exam
  3. Moral character
  4. or pro hac vice (for one case � on motion by an existing member of state bar)

  1. Each federal court has independent bar

  1. Admission in local state + motion by existing member of federal bar.

  1. Post-admission

  1. Discipline

  1. Rule violation
  2. Crime showing unfitness to practice law
  3. Act of dishonesty, fraud
  4. Act that prejudices administration of justice

  1. CLE, dues, etc.

  1. Maintaining standards � peer responsibility because of self-regulation

  1. Duty to report misconduct by lawyers and judges
  2. Exceptions: Privilege and knowledge through mentoring substance abuse programs

  1. Unauthorized practice

  1. Practicing where not admitted to practice (crime)

  1. Practice: That which requires legal training or legal skill, such as appearing in court, giving legal advice, drafting legal document.

  1. Assisting a non-lawyer to engage in unauthorized practice
  2. Duties re non-lawyer employees

  1. Non-lawyer�s work has to be carefully supervised by lawyer
  2. Lawyer has to be personally responsible for work done by non-lawyer.

  1. Fee division with non-lawyer

  1. General rule � Never split a fee with a non-lawyer
  2. Exceptions

  1. Reasonable death benefit to survivors of dead member of firm
  2. Buying practice of dead, disabled or disappeared lawyer from lawyer�s survivors
  3. Paying non-lawyer employees of firm: Flat salary, pension plan, compensation plan.

  1. Law firm

  1. Partners (shareholders), associates, and "of counsel"

  1. Must not mischaracterize relationship between lawyers (i.e. "partners" if no partnership exists)

  1. Non-lawyer must not be partner, shareholder, director, or officer of law firm.
  2. Lawyer may not allow non-lawyer to interfere with lawyer�s judgment.
  3. Lawyer whose law firm offers ancillary services (tax lawyer filling out tax forms) is subject to legal ethics rules for ancillary services when:

  1. Services are provided in conjunction with legal services; or
  2. Wervices are provided separately from legal ethics, but doesn�t explain to client that privilege doesn�t apply to ancillary services.

  1. Duties of supervising lawyers: Respondiat superior applies, and supervising lawyers and the firm are civilly liable for juniors, and can be subject to discipline for junior�s ethics violations if knowledge.
  2. Duties of junior lawyers: Discipline for doing something you are ordered to do which is a clear ethics violation. If unclear violation, then senior lawyer is liable, not junior.
  3. Restrictions on right to practice law: Lawyer may not enter into agreement restricting his right to practice law, i.e. "after this, I won�t practice this type of law any more." Unless as condition of receiving retirement benefits.
  4. Selling law practice (goodwill) is OK if:

  1. Sold as a complete entity
  2. Seller must exit private law practice in geographic area
  3. Notify clients of right to pick up files and move to other lawyer
  4. No fee increase to existing clients because of sale. Buyer can decline to represent existing clients who won�t pay buyer�s existing fees.
Lawyer-Client relationship

  1. Accepting and rejecting clients

  1. Duty to accept

  1. General rule: Lawyer can turn down any client.
  2. Can�t turn down:

  1. Court appointed unless compelling reason (violation of law or rule, unreasonable financial burden, or personally repugnance interfereing with effective representation)
  2. Cause of defenseless and oppressed for selfish reasons.
  3. Pro bono work

  1. Duty to reject

  1. Causing violation of law or rule
  2. Mentally or physically unable

  1. Scope, objective and means of representation

  1. Client: Objectives of representation
  2. Attorney: Limit scope of employment by agreement with client; decide what means shall be used to achieve client�s objectives with consultation with client.

  1. Within the bounds of the law
  2. Termination

  1. Fired for any reason, subject to payment of fees
  2. Mandatory withdrawal

  1. Violate a law or rule
  2. Mental or physical condition

  1. Permissive withdrawal

  1. Client used lawyer�s service to commit crime/fraud
  2. Repugnance to lawyer
  3. Client doesn�t pay fees
  4. Client makes it unreasonably hard to do the work
  5. Other good cause

  1. Lawyer�s duty of mitigation

  1. Advance notice
  2. Refund fee or expense advance not earned
  3. Turn over client�s papers and property, including pleadings, correspondence, depositions, experts, memos of fact and law. Even if not paid. Does not include work product.

  1. Lawyer-client contracts

  1. Clearly state what you�re going to do and how much you�re going to charge.
  2. Required to be in writing if contingentcy fee, and must include scope of work, how fee will be computed, and how expenses will be paid (is fee based on net or gross recovery?).

  1. Fees

  1. Reasonable fees
  2. Double billing is not permitted, and charging office overhead (secretary�s salary) is not allowed, but actual cost of copies, long distance calls, or overtime is ok.
  3. Fee disputes may require arbitration (CA does if client elects).
  4. Contingent fees allowed in any case except family law and criminal law. Should offer client choice of contingency or flat fee.
  5. Fee split with another external lawyer ok when

  1. Client informed and no objection
  2. Split proportionate to work done or client consent or joint responsibility
  3. Total fee reasonable
Privilege and Confidentiality

  1. Privilege (evidence law � applies before government tribunal which is trying to compel evidence)

  1. Client: Someone or entity seeking legal service
  2. Attorney: Someone who client reasonably thinks is licensed to practice law in jurisdiction
  3. Confidential communication: Communication related to representation which client believes is secret (no TP)

  1. Ethical duty of confidentiality

  1. More expansive than privilege
  2. Applies where privilege doesn�t
  3. Bars both disclosure and harmful use

  1. Permissible disclosure

  1. Physical items (evidence) is required to be turned over, and is not protected.
  2. Client consent, either express or implied
  3. Litigation between former joint-clients
  4. Property transfer by will or deed regarding competence or intent of client.
  5. Attorney accused of misconduct
  6. Fee dispute
  7. Client�s intent to commit a future crime or fraud

  1. Exception to privilege: Any future crime or fraud.
  2. Exception to ethical duty: Death or serious body harm (majority of states includes all types of physical or financial harm).
Conflicts of Interest

  1. General principles

  1. Conflicts usually imputed to everyone in firm
  2. Client can waive most conflicts with informed consent, unless reasonable lawyer would not so advise.

  1. Conflict between lawyer�s interest and client�s interest

  1. Sex with client (other than preexisting sexual relationship)
  2. Lending money to client in litigation matter except advancing litigation expenses.
  3. Opposing lawyer in immediate family (i.e. wife-husband, brother-sister, etc.), but this conflict is not imputed to other firm members.
  4. Drafting instrument that creates substantial gift from client to lawyer or immediate family of lawyer.
  5. Contracting away malpractice liability, or settling unless client has opportunity for independent representation.

  1. Trial lawyer testifying as necessary witness in that case because duty of zealous representation may conflict with duty to tell the truth (!). Exceptions: Uncontested matter; nature and value of lawyer�s services; or substantial hardship.
  2. Acquisition of interest in subject of litigation, except:

  1. Attorney�s lien in judgement in a case
  2. Contingent fee agreement.

  1. Entering into business transaction with client, unless:

  1. Terms fair to client
  2. Full disclosure in clear writing
  3. Client has chance to consult outside counsel
  4. Client consents in writing

  1. Conflicts between two clients, either present or former

  1. Representing two co-defendants in a criminal case
  2. Representing two co-parties in a civil case or business matter, unless:

  1. Able to represent both effectively
  2. Full disclosure
  3. Consent
  4. Withdraw upon actual conflict (completely, unless consent of dumpee)

  1. Using former client�s confidential information against former client matter regarding new client, where information is relevent, without A�s consent.
  2. Opposing a former client in a substantially related matter (imputed to firm)
  3. Former government attorney, judge, judge�s clerk or non-partisan arbitrator who goes into private practice can�t work on matter which they had personal substantial responsibility for in government occupation. Imputed to firm unless:

  1. Firm screens off affected attorney
  2. Doesn�t share in fee from that case
  3. Government agency is notified of arrangement so they can protect their interests.

  1. Conflict caused by TP interference

  1. Dad in the son�s criminal case or mom in daughter�s divorce case: Son is the client, not father, regardless of who hired you and who pays your fee.

  1. Lawyer must tell client who is paying the fee.

  1. CEO and corporate in-house counsel: Day-to-day boss is CEO, but lawyer can�t do anything harmful to corporation (the client) even at CEO�s request. Must request CEO to reconsider, seek second opinion, higher authority (board), and finally, resign.
Safekeeping property and funds

  1. Custodian of property

  1. Label it
  2. Put it in a safe place

  1. Trustee of funds

  1. Trust account
  2. Commingling
  3. Individual client trust account: Use when client�s money is so large that client should be able to keep the interest, and that justifies expense of setting up individual trust account.
  4. Pooled client trust account: Interest goes to state bar (IOLTA).
  5. Expense and fee advances: Go into trust account until earned, then switched to lawyer�s account.
  6. "Borrowing" from client trust account is prohibited
  7. Funds that belong partly to lawyer and partly to client
  8. Dispute about who owns what: Keep in trust account.
  9. Duty to keep good records, pay over promptly, render accountings.
Competence, Malpractice, Civil liability

  1. Civil liability for breach of K, criminal action, fiduciary duties, slander, etc.
  2. Duty of competence

  1. Getting competent and keeping competent

  1. Continuing education
  2. Associating competent attorney

  1. Failure to act as a reasonably competent lawyer
  2. Accepting a case you know you are not competent to handle

  1. Malpractice

  1. Breach of contract, fiduciary duties, intentional torts
  2. Malpractice as a negligent tort

  1. Duty of care to plaintiff (client, non-client who was invited to rely, or non-client who was intended to benefit)
  2. Conduct below standard of care (general practitioner standard vs. specialist standard)
  3. Legal causation (actual but-for and proximate cause)
  4. Injury to plaintiff

  1. Limit liability for malpractice through insurance (not required, but necessary).
Litigation and other forms of advocacy

  1. Exercise of professional judgment

  1. Frivolous legal position is prohibited: Can�t support it under the present law and can�t make a good faith argument for changing the present law. Does not apply to criminal defense lawyer � entitled to insist that prosecutor prove every element of charge beyond reasonable doubt.

  1. Civility, courtesy and decorum

  1. Fairness to judges

  1. Public criticism must be fair because judges don�t have much opportunity to publicly respond to criticism.
  2. Candor about the facts: No duty to reveal harmful facts in adversarial proceding, but if ex parte (i.e. TRO), such a duty does exist.
  3. Candor about the law: Can�t cite a case or statute that has been overruled or materially amended. Adverse authority from controlling jurisdiction and directly on point must be disclosed.
  4. Ex parte communications with judge about merits of case are prohibited unless permitted by local rules.
Fairness to adversary

  1. Be civil
  2. Keep promises
Conduct in course of litigation

  1. Abusing discovery rules
  2. Violating court rules and orders
  3. Making improper arguments

  1. Personal opinions
  2. Credibility of witness
  3. Guilt of defendant

  1. Trying to influence judge or juror improperly
  2. Disrupting the tribunal
  3. Influencing witnesses improperly

  1. Paying expert witness reasonable fee for time spent and reimbursing lay witnesses for time and expenses, but never on contingency.
  2. Interview before testimony and suggestions re: how to be more effective witness is fine, but no substantive teaching.

  1. Hiding or destroying evidence
  2. Don�t offer false evidence, and take reasonable remedial measures to remedy false evidence that has been offered (last resort = go to judge even if it requires disclosure of confidential information before case ends).
Fraud or perjury

  1. General rule: Lawyer must not participate in fraud or perjury.
  2. Criminal defendant: If client insists on perjury, lawyer should talk client out of it, but final resort is to go to judge and withdrawal.
Communications in course of representation

  1. With unrepresented person: Must not purport to be impartial or offer legal advice.
  2. With represented person in the matter: Must get attorney�s permission to talk to client directly; otherwise communicate with attorney.

  1. Applies to all attorneys � including prosecutors.
  2. If OP is a corporation, you must go through corporate lawyer to talk with managing agent, employee whose conduct is being attributed to corporation via respondent superior, employee who can make admissions for corporation. No permission needed for former employee, unless has a lot of confidential information.

  1. With member of jury

  1. Before and during case, lawyer connected with case must not talk at all about anything with member of jury or panel.
  2. No lawyer can talk with member of an active jury.
  3. After trial is over, communications with former jury member are ok if local law permits it and isn�t harassing.

  1. With news media

  1. Lawyer and agents connected with case must not make public statement that would create substantial liklihood of prejudicing case.
  2. Despite this, lawyer can combat adverse prejudicial publicity with publicity.
  3. Dry facts of the case are permitted (public record, scheduling, warning, help with investigation, etc.)
Communications about legal services

  1. Public communications about services (strict scrutiny test applies to regulation)

  1. Advertising must not be false or misleading

  1. Outright falsehood
  2. Failure to include material information
  3. Unjusitified expectations

  1. "My last client recovered a million dollars"

  1. Comparisons that cannot be substantiated

  1. "Most effective lawyer in San Jose"

  1. Advertising which causes offense and disrespect of lawyers can be restricted.

  1. Referrals

  1. Paying for referrals: Must not pay nor receive fee that is purely for a referral of a case (CA is contra).
  2. Lawyer referral service fee is fine.

  1. Group legal service plans are fine, even if plan does direct solicitation, so long as lawyer isn�t controlling the plan.
  2. Solicitation

  1. Runners or cappers (nurse at hospital who hands out your card) are prohibited and are crimes.
  2. Initiating personal or live phone contact with potential (not former or present) clients for the purpose of attracting their legal business for financial gain. Direct mail or recorded phone call is fine, so long as prominently identified as advertising material.

  1. Fields of practice

  1. Stating fields of practice
  2. Claiming to be a specialist, only allowed if:

  1. Patent attorney
  2. Admiralty attorney
  3. Certified specialists by local jurisdiction or private association, but must name certifying agency.
Judicial ethics

  1. Who is covered by Code of Judicial Conduct

  1. Everyone who works for a court performing judge-like duties.

  1. Judge must behave with integrity, independence and propriety
  2. Discriminatory organizations

  1. Membership and regular use prohibited if discriminates based on race, sex, religion, national origin, or any other prohibited basis.
  2. Judge must not express public approval of discriminatory policy of the organization
  3. Remedies: Judge must resign or try to change policy (up to 1 year).

  1. Duties of impartility and diligence

  1. Impartility: Actual and in appearance.
  2. Ex parte communications with a party are prohibited
  3. Outside legal experts

  1. With an outside expert are permitted only if judge discloses name and content to parties, along with chance to respond

  1. Comments on any pending case are prohibited (even if not in the judge�s court).
  2. Dignified courtroom
  3. Disqualification if:

  1. Reasonable doubt about impartiality
  2. Judge was or may be be a witness or has personal knowledge
  3. Judge or partner served as counsel
  4. Interest in party or controversy (imputed to family and firm; more than deminimus).
  5. Relative involved in the case

  1. Involved: Party, witness, lawyer, substantial interest.
  2. Relative: Closer than a cousin. Includes spouses.

  1. Parties can waive disqualification after meeting with their lawyers.

  1. Outside activities ok if

  1. No cast doubt on impartiality
  2. Won�t demean judicial office
  3. Won�t interfere with judicial duties
  4. Stipend and paid expenses ok, so long as reasonable.

  1. Officer, director, or advisor to law-related or non-profit education, religion, charity or civic organizations is ok.

  1. Unless it would be likely to create conflict of interest for judge (i.e. organization appears in judge�s court, such as ACLU).
  2. Judge can�t actively raise money for an organization.
  3. Judge can�t be involved in a business (board of directors for a company).

  1. Gifts and favors

  1. General rule: Judge and family can�t accept gift from anyone.
  2. Exceptions: Public tribute, books for official use, social hospitality, appropriate present from appropriate person, relative or close friend, loan or scholarship, harmless donor (won�t appear before judge).

  1. Miscellaneous prohibitions:

  1. Personal use of non-public information
  2. Service as a fiduciary, unless for member of own family which won�t create conflict.
  3. Service as an arbitrator or mediator (ok for part time judge).
  4. Practice of law

  1. Politics

  1. General rule: No involvement in politics (involvement in party, endorsement, attendance at gatherings, donations to parties or candidates).
  2. Candidate for a judicial position can do a limited amount of politicking. Must behave with judicial dignity, but can respond to attacks. Must not make promises except for promising to do a good job, or state positions on issues.
  3. Candidate for appointed judgeship can do a little bit of politicking, but not much. Can make interests known to the appropriate people, but can�t raise campaign funds.
  4. Candidate for publicly elected judgeship can identify as a member of a party, contribute to a party, speak at a gathering, make public endorsements, campaign, advertise, have a campaign committee to raise funds.

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