MPRE Outline Regulation of the Legal Profession The State regulates all aspects of the practice of law.

. o However, each State can only regulate its own lawyers licensed in that State. E.g. Every State has it own bar, criteria for admission to the bar, and its own disciplinary committee. There is no national regulation of lawyers. Attorneys have an ethical obligation to aid in the regulation of lawyers. o Therefore, lawyers must report SERIOUS violations committed by other lawyers. UNLESS it is protected information. o E.g. Lawyer hiring another lawyer to represent them in the disciplinary procedure.

Note: Membership into the American Bar Association is voluntary. Lawyers are not forced to join. Note: The ABA has NO POWER to disbar someone. Multi-Jurisdictional Practice A state may restrict the practice of law to the only the members of the bar to that State. o Therefore, if a lawyer is not admitted into a given States bar, they CANNOT practice in that state. However lawyers can practice temporarily if they: o Associate with an active local lawyer; o Request PRO HAC VICE Status This is called PRO HAC VICE status o This status is completely discretionary with the court. Therefore, if the State does NOT want to award the lawyer this status, the lawyer is SOL. o Be involved in mediation or arbitration that arose out of their home-state practice; o Anything reasonably related to lawyers home-state practice. Furthermore, lawyers can permanently get multi-jurisdictional practice if: o Employed by only client and their client has several offices. E.g. General counsel for GM that has several offices all over the U.S.

o Legal services authorized by federal or local law. E.g. Patent Law, which is the same in all 50 states. Note: A negative to being able to practice in Multi-jurisdictions is that the lawyer is subject to multi-jurisdictional rules. Admission to the Profession The U.S. Supreme Court says state requirements for admission to the bar need to be RATIONALLY RELATED to the practice of law. o What is rationally related: Any type of education requirement. o E.g. Graduation from an ABA accredited law school. o E.g. Passing the MPRE. Limiting admission to those with good moral character. Truth and Full Disclosure Duty to cooperate. Concealing information and refusing to answer legitimate questions. o What is NOT rationally related: U.S. Citizenship Residency Any other constitutionally protected interest. Alliance to political ideas o UNLESS you refuse to take oath to uphold state and federal constitution. o OR actively affiliating with an organization, which you know, is legal and with specific intent to further their illegal objectives. E.g. Being a member of Alkeda. What does the Bar Do? The bar has a duty to prevent the unauthorized practice of law. o The unauthorized practice of law is a non-lawyer doing what a normal lawyer would be normally paid to do. The following activities REQUIRE a license: (1) Appearing in Court and take depositions; o UNLESS: A student is appearing in court under state practice statutes. (PRO SAY) An individual can represent himself or herself. Note: A lawyer must ALWAYS represent a corporation.

Drafting documents that impact substantial legal rights;

o UNLESS (PRO SAY) An individual drafting documents for himself or herself. (2) Give legal advice; o UNLESS It is the non-lawyer giving advice has been traditionally allowed. o E.g. Police officer giving legal advice. o E.g. Tax accounting giving advice on tax law. (3) Negotiate settlements;

Note: A lawyer CANNOT aid a non-lawyer in activities, which constitutes an unauthorized practice of law. o For instance, a lawyer can help a non-lawyer represent himself or herself in court. However, a lawyer CANNOT help a non-lawyer represent someone else in court because that would be assisting someone in the unauthorized practice of law. The following are activities that do NOT require a license to practice law (1) Interview individuals (2) Fill out forms (3) Writing legal/research memos Note: An attorney CANNOT enter into a partnership, if any part of the partnership is the practice of law, with a non-lawyer. Violations that require disciplinary action Violation of a rule of professional responsibility; A criminal act that adversely reflects on a lawyers honesty or trustworthiness; o Therefore, not all crimes committed by lawyers will be subject to disciplinary action. ONLY those that relevant to some aspect of the practice of law. Acts that involve fraud or deceit; o These acts will be subject to disciplinary action even if they are NOT illegal. AND EVEN IF the lawyer is NOT active in the practice of law. Conduct prejudicial to the administration of justice; o E.g. Stating or implying an ability to improperly influence a tribunal. If a lawyer assists a judge to act unethically; If a lawyer is in a supervisory role, they must do all that is reasonable to assure those he or she is supervising do not engage in unethical behavior; o This applies to lawyers and non-lawyers. If a lawyer blindly follows orders from a supervisor; o In other words, a lawyer must exercise reasonable judgment. They cannot hide behind that fact that a supervisor told them to engage in the conduct.

HOWEVER, a lawyer may follow instructions from a supervisor, on debatable ethics questions, so long as the conduct is reasonable.

Note:

A supervisor is responsible for acts of a subordinate if: o The lawyer orders or ratifies the unethical act; OR o They knew of misconduct at a time when the consequences could have been avoided or mitigated and failed to take reasonable remedial action;

Fees

Contingent fee arrangements must be reasonable and signed by the client. o The contingent fee arrangement must be clear and in writing so the client can understand the fee arrangement. Contingency fees CANNOT be used in criminal cases. Contingency fees CANNOT be used in domestic relations cases. Prior to the completion of litigation, a lawyer cannot acquire literary or media rights to the clients story. o This is because if a lawyer has acquired the rights before the litigation has ended, it may alter the lawyers representation in a way that makes the case more appealing for media. ONLY when the case is over (including appeals) can the lawyer acquire media rights. Lawyers cannot share legal fees with non-lawyers. o UNLESS the legal fee is shared with: Paralegals and/or assistants Estate of dead lawyers A lawyer can share court award legal fees with a court awarded attorney fees with a non-profit that employed the attorney or recommended the attorney. Attorneys can be paid by a third person, but it requires: o (1) Written and Informed consent by the client; o (2) Confidences must be kept.

Buying a Law Practice Lawyers can sell and buy a law practice (including good will) o However, when this is done, the entire practice must be bought and sold. When a practice is bought and sold, written notice must be given to the sellers clients regarding: o The sale o Clients right to get their files returned o Clients right to get new counsel o Consent will be presumed if the client takes no action within 90 days of the receipt of notice.

When a practice is sold, the seller must cease to engage in private practice of law (or at least in the sold field).

Dual Professions Dual professions are allowed. o E.g. Lawyer can also be a real estate agent. However. When soliciting legal business, the lawyer cannot use dual professions to solicit business. o Furthermore, the attorney-client privilege does not apply in dual professions. Formation and Ending of Attorney Client Relationship In general, lawyers are free to choose who their clients are. o However, if a lawyer is court appointed, they MUST accept the client. UNLESS: o Representing the client is likely to result in a violation of the law or a disciplinary rule. o Representing the client would impose an unreasonable financial burden. OR o The cause is so repugnant that they lawyer could not provide acceptable representation. A lawyer can reject a client if: o The representation would likely to violate a law or disciplinary rule. o The representation would result in filing a frivolous claim or defense. o If the lawyer is NOT competent in the legal issue. UNLESS the lawyer can become competent by either: o Associating themselves with another lawyer in the expertise you are not competent in; o Learning and studying the area where you are not competent in; OR o By emergency situations.

Note: Once a matter is in litigation, withdrawal requires court permission. o Even if there is a situation where the rule says a lawyer MUST withdraw from representation, once the matter is in litigation, the lawyer must seek court permission in order to withdraw. Lawyer MUST withdraw Representation requires or is reasonably likely to have the lawyer to do something that breaks the law or is unethical. The lawyers mental or physical health makes it unreasonably difficult to represent the client.

The client fires the lawyer (client can fire lawyer but lawyer CANNOT fire client). o However, once the case is in litigation, even if the client fires the lawyer, the lawyer MUST ask the court to withdraw.

Lawyer MAY withdraw Client pursues a course of action that the lawyer believes is criminal or fraudulent. If client uses the lawyers services to commit a crime or fraud. If the client insists on pursuing an objective that the lawyer regards as repugnant. If the client does not pay the lawyers fees. o However, the lawyer must give advance warning to the client first that this will happen. Representation results in an unreasonable financial burden on the lawyer. Client refuses to cooperate. Client agrees to the lawyers withdrawal. Requirements to an attorney withdrawal The lawyer must give timely notice and the opportunity for the client to get another lawyer. The attorney must return all funds not used or expended. The attorney must return all of the clients documents that are necessary for the clients future representation. Note: Lawyer cannot abandon client. Lawyer must take the proper steps to avoid material adverse effect on client.

Attorneys Duties to Client Lawyers owe a duty to avoid a conflict of interest.

Representing Organizations When a lawyer is representing an entity, the client is the entity and NOT the directors, shareholder, or CEO. If an attorneys fee is paid for by someone other than the client, the client must consent and the representation must not be interfered with. o E.g. Insurance company pays a lawyer to represent an individual who was insured by the insurance company. When this happens, the client must consent to be represented by the lawyer AND the insurance company cannot interfere with the representation.

In dealing with an organizations directors, officers, or employees, the lawyer must explain to the individual that the organizations interest (clients interest) may conflict with the individuals interest. o In other words, the lawyer must explain to the director, officer, or employee that the lawyer is here as the organizations lawyer and NOT the individuals lawyer. If an lawyer for an organization believes that the entity is violating the law, the attorney will act as is reasonably necessary to protect the entity. o These include: Ask for reconsideration of the matter; Refer the matter to a higher authority within the organization If the highest authority fails to take appropriate and timely action, the lawyer may report the action/information to appropriate persons OUTSIDE the organization to prevent harm to the organization. Reveal confidential information, only to the extent necessary to protect the corporation.

Conflicts with Past Clients A lawyer who previously represented someone cannot represent someone whose issue/interest is substantially related to the previous client. o UNLESS the previous client gives informed consent AND in writing. Competance A lawyer has a duty to provide competent representation to a client. o A lawyer that fails to provide competent representation is in violation of a rule of professional responsibility and a basis for malpractice. In order for a lawyer to be competent, they must exercise reasonable diligence in representing a client. Malpractice The purpose of civil malpractice claim is compensation. o Unlike the disciplinary process where the purpose is to punish. Recovery from malpractice comes from causes of action based in contract, tort, or fiduciary relationship. A lawyer is subject to discipline for contractually trying to limit malpractice to a client. o E.g. My usually fee is $500 / Hour. However, if you promise to never sue me for malpractice ill lower my fee to $200. However, a client can enter into this type of contract, so long as the client is represented by another lawyer when doing so.

A lawyer cannot settle malpractice claims without advising the client in writing to see another lawyer first.

Duty to Follow Clients Instructions The client controls the ends; the lawyer controls the means. o In other words, the client gets to decide the objective; the lawyer can decide the way to get there. The following are things that the lawyer MUST follow the clients instructions: o Whether to sue in civil cases; o Whether to settle a suit in civil cases; o Whether to plead guilty in criminal cases; o Whether to wave a jury trial in criminal cases; o Whether to testify in criminal cases; In civil cases, the lawyer can decide whether or not to testify o Whether to appeal. The attorney is required to keep the client informed so that the client can make informed decisions.

Decisions which can be determined by lawyer: Client with Disabilities When representing a client with disabilities, a client will, as much as possible, maintain a normal client relationship. o When a client is under diminished mental capacity or is a minor, client decisions do NOT shift to the lawyer. Instead a guardian must be appointed over the client to make decisions for himself or herself.

Confidentiality Any information that the lawyer learns that is related to representation is protected as CONFIDENTIAL information. o This includes information received from a client, prospective client, or from others. Under this privilege, a lawyer cannot disclose any information unless it is appropriate to the representation of the client. Confidentiality is NOT destroyed by a presence of a third party. o IF the third party was present to help further the attorney-client relationship.

Note: The above-described privilege is different from the attorney-client privilege.

o This is because the attorney-client privilege, is a testimonial privilege that protects the client from having the lawyer disclose anything in court from clients or prospective clients. The above-described privilege is broader than this privilege because it is an ethical duty of confidentiality. Exceptions to the Confidentially Rule (1) Waived by client (2) Required by law or court order. (3) Informed consent (4) Implied authority to disclose to further the representation (5) If the lawyer has knowledge that the client WILL commit perjury or fraud. o When this occurs there is a 3 step process: (1) The lawyer must ask the client to rectify the perjury or fraud. (2) However, if the client refuses, then the lawyer must seek to withdraw from the representation. (3) If the lawyer cannot withdraw OR if withdrawing does not rectify the perjury or fraud, then the lawyer must take steps to rectify the perjury or fraud, such as telling the judge. o The lawyer has a duty to rectify perjury or fraud until the end of the proceedings, appeals and all. Therefore, the lawyer always has a duty to rectify perjury or fraud. (6) To obtain legal or ethical advice for lawyer. o E.g. Use of hypothetical with colleague is ok if discrete to protect identity of client. (7) To prevent reasonably certain death or substantial bodily harm (assumes in the future): permitted to reveal information to the extent necessary to prevent the harm, which does NOT NEED to be the product of a crime. (8) To prevent substantial financial harm or fraud if the client is or has used the lawyers services in the matter. Also true if the client has already acted and disclosure can prevent or mitigate the consequent financial harm. (9) Lawyers can disclose relevant information in order to protect themselves. o E.g. Client tries to sue lawyer for malpractice, the lawyer can disclose information as it is relevant to protect himself or herself. Note: Past Crimes are considered secrets and cannot be disclosed. o Death of client does not obligations. Note: Lawyer cannot keep, hide, or alter the fruits or instrumentality of a crime. o If this is given to the lawyer, the lawyer must turn it over to the authorities OR give it back to the client. Work Product Rule Material prepared by a lawyer for or in the anticipation of litigation is immune from discovery unless the other side shows a substantial need for the material and an inability to gather the material without undue hardship.

o A lawyers mental impressions or opinions are always immune from discovery regardless of need, unless immunity is wavied. Conflict of Interest In general, an attorney may not represent a client if representation of the client will materially interfere the representation. o These can occur by: Responsibilities to another client; A third party; OR By the lawyers own personal interest. However, if the lawyer: o (1) Reasonably believes that the representation wont be affected; o (2) Fully explains the risks and alternatives with the client regarding the conflict (informed consent); AND o (3) Client agrees in writing (can be electronic). Then the lawyer may represent the client despite the apparent conflict of interest.

Conflicts that result from the Lawyers Personal Interest Regardless of the amount, a lawyer cannot make any loans to a client in connection with pending or contemplate litigation. o UNLESS the loan is to advance the cost of litigation. E.g. Court fees, cost of expert witness. A lawyer cannot acquire an interest in litigation. o UNLESS it is for Contingency fees Security lien to secure the lawyers fees and expenses. A lawyer cannot enter into a business deal with a client. o UNLESS The terms of the transaction are fair and reasonable; The terms are disclosed in writing in a manner that the client can reasonably understand; The client is advised, in writing, to seek the opinion of another lawyer and given the opportunity to do so; AND The client consents in writing.

Imputed Disqualification If one lawyer is disqualified from representing a client due to a conflict of interest, then the entire law firm is disqualified from representing the client. o However, if disqualification is a result of the lawyers personal interest AND representation would not interfere with other lawyers in the firm, then there is NOT imputed disqualification. A law office can avoid disqualification by screening the disqualified lawyer.

o This occurs when: The lawyer is screened from the office. o In other words, the other lawyers cannot talk to this lawyer about the case. The lawyer does not get a part of the fee. The client is notified of this; AND The client agrees. o In the past, this screening was only given to governmental lawyers. However, it is now offered to all lawyers. Conflicts among Current and Former Clients Lawyers cannot represent client in one matter and oppose that client in another matter. Lawyers cannot represent client whose interests are directly adverse to another client. Lawyers cannot represent client against former client when you acquired confidences in former representation. Lawyers CANNOT sue a current client. Even if it is in an unrelated matter. A judge or government employee who later goes into private practice may NOT represent a party on a matter she or he worked on personally. o A matter is defined as specific facts with specific parties. However, a lawyer in private practice CAN take a case, even though they worked on it as a governmental lawyer or judge if the work that was performed involved: o Drafting laws o Because no specific party o Complied Statistics o Because no specific facts or parties.

Conflicts with Joint Representation or Multiple Clients A lawyer may represent multiple members in the lawsuit, so long as the lawyer can represent all of them effectively. o And all of them agree. An attorney representing multiple parties cannot participate in an aggregate settlement or guilty plea. o UNLESS each party is informed of all the agreements and each party consents. Disclosure to each client include: o The total amount to be paid or received. o Disclosure of the details of every clients settlements o How the lawyers fees and costs are getting paid. AND o The existence and nature of all claims, defenses, and pleas involved in the settlement.

Note: Joint Representation may require the lawyer to share one clients confidential information with others. o Therefore, the lawyer should get each clients informed consent. Conflicts with Perspective Clients If a client believes there is an attorney client relationship, then the lawyer owes a duty to that client. Elements of Screening Written disclosure to the other side; No working on or discussing case or access to file by screened-off attorney; No fee to screen-off attorney.

Note: In some circumstances a conflict of interest will be relaxed if it occurs under a quick-advice program. o The court sponsors these programs and often there is not enough time to conduct a full conflict check. However, once the lawyer knows there is a conflict of interest, then it must be corrected. o Actual knowledge of the conflict can be inferred from the circumstances. o Furthermore when a client hires lawyer after the quick advice (for continued and regular representation), the conflict rules will apply.

Repretining

A lawyer cannot draft a will for a client, if the lawyer or a relative of the lawyer is going to be a beneficiary of that client. o UNLESS the lawyer is related to the client.

Attorney-Client Privilege

A lawyer can NEVER advise a client to break the law.

o You can advise the client in terms of the consequences of the law but you can NEVER advise the client to break the law. E.g. No one in the history of the United States has been prosecuted when breaking this law. o Non. Therefore, you should break this law.

Witnesses A non-expert witness cannot be paid a fee to testify. o A non-expert witness can only be paid for the costs incurred in testifying. An expert witness may be paid a reasonable fee in addition to expenses. No witness may be paid on a contingency fee basis. o E.g. A witness being paid only if the side that hired the witness wins. A lawyer cant be a necessary witness for a client. o UNLESS: It is a contested matter; The lawyer is testifying in respect to his legal fees; OR If the lawyer does not testify, there will be substantial hardship to the client.

Jurors Before trial, there can be no communication with a panel from which the jury is to be selected. During trial, there can be no communication with a jury. o UNLESS during official court proceedings. In some cases, a simple hi while on the way to the courthouse is NOT allowed. After trial, a lawyer may contact a jury UNLESS: o Court says no; o Juror says they dont want to talk to you; OR o If the purpose to talk to the juror is to harass. Except in emergencies, Ex-Parte communications is NOT allowed. o If there is an emergency, the other side must be notified of the communication as soon as possible. No gifts to court personnel are allowed. Lawyers cannot make statements, which they know to be false or with reckless disregard to the truth, about judges or adjudicative officers.

A lawyer cannot make a statement to the press that is reasonably likely to publicly disseminated AND if there is a substantial likelihood of materially prejudicing a judicial procedure. Lawyers must not make false or misleading statements. o A lawyer may communicate that they practice or not practice in a specific area of law. BUT a lawyer CANNOT say they are a specialist UNLESS they are certified by an acredied body and the body is named. Attorney in-person solicitation is NOT allowed if they are going to PROFIT. o