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August 1 - August 2, 2017
teach yourself what to look for.
“trigger facts,” the underlying facts that trigger the legal issues.
the facts and rules must point to one and only one correct or best answer.
the MPRE rarely tests obscure issues.
Pay Attention to Statements About the Lawyer’s or the Client’s State of Mind
depends upon whether the lawyer knows or believes something.
For many ethical issues, the attorney’s belief about a fact or an event is more important than the fact or event itself.
As long as the lawyer didn’t know the true facts at the time he or she made the recommendation, he or she will not be subject to discipline.
Pay Attention to the Lawyer’s Motivation When He or She Acts or Fails to Act
unethical behavior with the “window dressings” of proper behavior. This technique tests whether you can identify unethical conduct even when it’s surrounded by allegedly “good” behavior.
One of the most common ways the examiners try to trick you is by distracting you from the right answer by seeming to “fix” the rule violation with a good outcome or through client consent.
Don’t Fall for a Question That Suggests That the Lawyer’s Conduct, Though Questionable, Has Not Prejudiced the Client
even if things work out fine for
the client, the lawyer may still be subject to discipline for violating the rules in the first place.
A Client’s Insistence on a Course of Conduct Doesn’t Relieve the Lawyer of the Responsibility to Follow the Rules
“Moral turpitude” can include any crime committed anywhere that relates to an immoral or bad act.
misconduct relates to something in the lawyer’s personal life. Moral turpitude can include adultery, possession of child pornography, sexual assault, and comparable offenses, even 21 though these offenses have no specific connection to the fitness to practice law. Offenses involving violence, dishonesty, breach of trust, or serious interference with the administration of justice also fall into the category of moral turpitude.
pick out trigger facts that point to crimes involving dishonesty, breach of a fiduciary duty, violence, or improper sexual behavior.
a substantial question as to the person’s ability to act as an attorney (or judge) shall inform the appropriate authority, unless the information is privileged.
lawyer must know that another lawyer has committed a violation. Having only a suspicion does not rise to the level of requiring the lawyer to report the violation. Second, the conduct must raise a substantial question as to the lawyer’s fitness to practice law, so there must be a nexus between the conduct and the practice of law. Finally, if another attorney’s conduct meets these two criteria, then the lawyer shall report the conduct.
A reciprocal referral arrangement is where two attorneys agree to mutually refer clients back and forth, for no payment. But the agreement cannot be exclusive. An attorney may enter into a reciprocal referral arrangement with another attorney or a non-attorney professional so long as the arrangement does not violate any other rules, including interference with the an attorney’s professional independence.
Rule 5.4 generally prohibits sharing fees with non-lawyers. This extends to agreements with non-attorneys to solicit clients in return for a share of the fees (i.e., the use of “runners” or “cappers”).
a lawyer must never retain the interest on a lawyer trust account. A lawyer’s fiduciary duty prohibits such retention.
a lawyer has an obligation to refund unearned legal fees to a client when the lawyer’s assignment is completed or when the lawyer withdraws or is discharged from employment.
when a client disputes your attorney’s fee, what do you with the monies you may have in your account that the client already paid?
lawyer must retain the disputed 38 funds in the client trust account and move any undisputed portion to the lawyer’s operating and/or business account.
cannot leave undisputed fees in your client trust account—you’ve earned those fees and they need to be in your account and not the client’s account. ...
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In summary, if the client disputes any amount of the fees, that disputed amount must be left in the client trust account but the undisputed amount should be placed in the lawyer’s business account.
you should start with the presumption that direct solicitation of clients is not generally permitted and then look for any exceptions.
required disclaimer: “Advertising Material.”
watch out for questions about an advertisement in which an attorney is listed as a specialist.
A lawyer cannot use a firm name, letterhead, or other professional designation that is in any way misleading, or one that suggests a connection to a government agency or charitable legal services organization.
your website and emails should contain a disclaimer that you are providing legal information, not advice.
use of your website does not create an attorney-client relationship,
lawyer can only discuss the results of a past case with client consent.
analysis for any advertising issue should include not only whether the statement is false or deceptive, but also whether the statement—even if true—could be misleading to a potential client.
disclaimer to the effect that each case is different and that prior results are no guarantee of future success.
an attorney should always document the fee arrangement with a client in an attorney-client agreement.
lawyer must set forth the scope of the representation (i.e., what the lawyer will do for the client), the basis or rate of the attorney’s fee, and the expenses for which the client will be responsible.
all advanced fees are subject to the requirements of fee agreements. In the fee agreement, the lawyer should identify whether any portion of the fee is an advanced or retainer fee, and if so, what portion of the fee is a retainer.
Contingent fee agreements, however, must be signed by the client.
First, a lawyer has a concurrent conflict of interest, under Rule 1.7(a), if the lawyer represents a client and that representation is directly adverse to another client.
Second, a lawyer has a concurrent conflict of interest, as provided by Rule 1.7(a)(2), if the lawyer’s representation of a client may be materially limited by the lawyer’s own interest, or by the lawyer’s responsibilities to another client, a former client, or another person.
even when the matter in which the lawyer is advocating against the client concerns an entirely different subject from the one in which the lawyer represents the client.
significant risk exists that a lawyer’s personal interest or a lawyer’s responsibilities to another current client, a former client, or any other person will materially limit the lawyer’s representation of a client.
The situation of a third party paying the legal fees for a client often presents a setting in which there is a conflict of interest. This is often called a third-party payor.
If a representation presents a concurrent conflict under Rule 1.7, the lawyer cannot represent the client in the matter if the representation is prohibited by law, if it involves two or more adverse clients in the same litigation, or if the lawyer reasonably believes that he or she cannot render competent representation of the client.
Rule 1.7(b) states that a lawyer cannot handle a 72 representation if the lawyer does not reasonably believe that the lawyer can provide competent and diligent representation to the client whose representation presents the concurrent conflict of interest.
Rule 1.7(b) requires that the consent be informed and confirmed in writing.
The lawyer must explain to the new client that this presents a conflict of interest because the firm cannot take on a new client where the firm already represents another client on a matter adverse to the new client. It does not matter for conflicts purposes whether the matters are completely unrelated to each other.
