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MULTISTATE PROFESSIONAL RESPONSIBILITY EXAM (MPRE) (City of Oakland)

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MULTISTATE PROFESSIONAL RESPONSIBILITY EXAM (MPRE)
PROFESSOR ZACHARY KRAMER
ARIZONA STATE UNIVERSITY - SANDRA DAY O’CONNOR COLLEGE OF LAW
CHAPTER 1: THE TEST, THE RULES, KEY TERMINOLOGY
A. The Test
1. Why must you? Because ______________________________
2. What is tested?
a. Sources of law
ABA Model Rules of Professional Conduct (MRPC)
• The MPRE only tests on law that is at least one year old.
ABA Model Code of Judicial Conduct (MCJC)
b. Other authorities
Rules of Evidence (such as attorney-client privilege)
Constitutional Law
Criminal Law
c. Breadth of exam—breakdown by subject:
6–12%:
Regulation of the Legal
Profession
2–8%:
Transactions with Non-Clients
10–16%:
Client-Lawyer Relationship
4–10%:
Differing Roles of a Lawyer
6–12%:
Client Confidentiality
2–8%:
Safekeeping Client Funds
12–18%:
Conflict of Interest
4–10%:
Communications about Legal
Services
6–12%:
Competence & Malpractice
2–4%:
Duty to the Public
10–16%:
Litigation
2–8%:
Judicial Conduct
3. How is it tested?
60 multiple-choice questions
10 “test” questions
a. Structure of questions
Answer format: Yes, Yes, No, No
2 | © 2020 Themis Bar Review, LLC | MPRE
No “none of the above” or “A and B only”
4. Exam day—three things to remember:
o Bring a ______________________________.
o Bring a ______________________________.
o Answer ______________________________ question.
B. The ABA Model Rules of Professional Conduct
1. Rules and Comments
o The Rules are ______________________________.
o The Comments are ______________________________.
2. Mandatory v. aspirational
o Mandatory rules (“______________________________ rules”)
Say what a lawyer must or must not do
Violation of these rules can lead to ______________________________.
o Aspirational rules (“______________________________ rules”)
Tell lawyers what they ______________________________ do
o “Must” rules vs. “should” rules: The MPRE tends to test
“______________________________” rules.
C. What’s What?
1. Two primary forms of discipline of an attorney—______________________________ or
______________________________
o Censure: Getting ______________________________
Privately—by the disciplinary authority
Publicly—by the Supreme Court
o Disbarment: ______________________________ of license to practice law
Long-term suspension (more common)
2. The word “may”—the lawyer has a ______________________________; it is
______________________________.
o In other words, the lawyer has ______________________________.
3. Non-disciplinary sanctions
o ______________________________: Thrown out of representing a particular client
o ______________________________: Usually, malpractice
o ______________________________
MPRE | © 2020 Themis Bar Review, LLC | 3
4. Tribunal—usually a court, but not always
o Key: Binding ______________________________
Example 1: Larry Lawyer is representing a client in a hearing before the EEOC.
Do the Model Rules apply? ______________________________. The Rules
apply to certain administrative agencies, too.
5. Law firm—all forms of legal groups
o Includes: ______________________________ law offices, insurance company law
offices, ______________________________ office, public defender office, etc.
o Facts and circumstances:
No factor is dispositive: Office sharing, sharing fees, etc.
Only authorized ______________________________ entities can practice law
6. Writings (also informed consent/confirmed in writing)
o Writing can be ______________________________.
o Informed consent; requires:
_______________________________________________
(i.e., communication), and
______________________________
Confirmed in writing
• Consent may sometimes be oral.
7. Mental states—knowledge/belief/reason to know
o “Knowingly” (or “known,” or “knows”): Actual subjective knowledge
o “Belief” (or “believes”): Actual subjective belief
o “Reasonable” (or “reasonably”): What a reasonably prudent and competent lawyer would
know/believe/do; an objective standard
Editor's Note 1: Professor Kramer slightly misstates the mental state of
“belief” by combining it with subjective reasonableness. The rules are correct
as provided here and in your outline.
CHAPTER 2: REGULATION OF THE LEGAL PROFESSION (PART 1)
A. Who Regulates Attorneys?
1. State supreme courts
2. Federal district courts
o ABA Model Rules are just a ______________________________.
o Very few states have adopted ABA Model Rules in their entirety.
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B. Regulation before Admission
1. Education—graduation from ABA-accredited law school
2. Character and fitness test
o Principally concerned with the ______________________________ history of the candidate
o But, not all crimes are disqualifying.
Example 2: Lorraine Law Student was an unruly young adult, earning two
disorderly conduct charges in college. She has since straightened her ways.
Will this disqualify her from admission? Probably not, so long as she
______________________________ what happened.
o Disqualifying crimes involve ______________________________.
Example 3: Before law school, Larry Lawyer worked at a bank, from which he
stole money. Disqualifying? ______________________________.
Increased concern with crimes associated with drug and alcohol addiction
o Keep in mind—the failure to disclose even non-disqualifying crimes can result in
disqualification. Err on the side of ______________________________.
o Bar examiners are increasingly concerned with debt.
The existence of debt is not disqualifying.
The main concern is making reasonable efforts to pay debts as they come due.
3. Residency—no residency requirement for admission (a constitutional issue)
4. Truthfulness—no lying on the application for bar admission or law school admission
5. Exam—requires a passing score
Editorial Note 1: Each state sets its own passing score. The number of
questions you correctly answer out of the 50 scored questions is your raw
score. The NCBE uses a statistical process to convert your raw score into a
scaled score between 50 and 150, with an average score that is typically
close to 100. The scaling factor used to convert a raw score into a scaled
score varies with each administration of the exam, so it is impossible to
predict exactly how many questions must be correctly answered to achieve
a given scaled score.
6. How do these issues come up?
o Admissions issues will present in one of two ways:
Permission to ______________________________; and
Permission to ______________________________.
o Permission to sit cases arise when an issue is discovered
______________________________ the exam.
o Permission to enter cases arise ______________________________ the exam.
MPRE | © 2020 Themis Bar Review, LLC | 5
Both are treated the same way.
o Penalty—usually ______________________________
C. Regulation after Admission
Various ways in which an admitted attorney can be subject to discipline:
1. Violation of the ______________________________
2. ______________________________ act that touches on attorney’s honesty or fitness to
______________________________
Example 4: Lorraine Lawyer has a lead foot, racking up speeding tickets
galore. Will this lead to discipline? ______________________________, as it
doesn’t speak to her honesty or fitness to practice.
Example 5: Larry Lawyer was caught lying on a mortgage application. Could
this lead to discipline? ______________________________, as it calls his
honesty into question.
3. ______________________________ or ______________________________, even if not
criminal
o Fraud upon the court (“procedural fraud”)—______________________________ to the
court
o Common law fraud (“conventional fraud”)—elements:
Making a ______________________________;
Knowing it is ______________________________;
______________________________ to deceive;
Causing reasonable reliance; and
Resulting in ______________________________.
o For disciplinary purposes under the MRPC, it is not necessary that anyone relied upon or
suffered damages from the misrepresentation.
D. Vicarious Liability of Attorneys
1. Partners within firms (or similar managers)
a. Firms
“Law firm” is broad—includes D.A.’s office, corporate staff, public defender’s office
Partners must make reasonable efforts to ensure that the
______________________________ and ______________________________
employees comply with the Rules.
b. Compliance
Must have a ______________________________ in place to ensure compliance
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Example 6: Lorraine Lawyer’s new firm has been up and running for a year.
The firm does not, however, have a conflict check system in place. Is the firm in
compliance with the Rules? ______________________________. It is a
violation for a firm not to have conflict-check procedures in place, even if there
is no conflict.
Example 7: The same is true if Lorraine’s firm does not have a system in place
to preserve confidentiality of client records.
c. Non-professional employees
Applies to any non-lawyer who works with the law firm (employee, independent
contractor, IT staff, etc.)
2. Supervisory attorneys
o Liable for Rules violations of supervised attorneys and non-professionals if they:
1) ______________________________;
2) ______________________________; or
3) After learning of a violation, fail to take _______________________________________.
Example 8: Larry Lawyer tells Junior Associate to file a frivolous complaint.
Example 9: Lorraine Lawyer congratulates Junior Associate after finding out
she filed a frivolous complaint.
Example 10: After learning that Junior Associate filed a frivolous complaint,
Larry Lawyer does nothing, moving on to the next case.
o Responsibility for the conduct of non-professional employees is exactly the same as it is for
lawyers.
3. No Nuremburg defense
o A subordinate lawyer or staff person ______________________________ defend by saying,
“I was only following orders.”
o Only a ______________________________ order by a supervisor is a defense.
Example 11: Lorraine Lawyer’s boss tells her to file a complaint. If the
complaint ends up being frivolous, Lorraine’s only defense will be if there was, in
fact, a good reason to file it.
MPRE | © 2020 Themis Bar Review, LLC | 7
CHAPTER 3: REGULATION OF THE LEGAL PROFESSION (PART 2)
A. Out-of-State Conduct
• Out-of-state conduct can expose you to discipline at home.
Example 12: Larry Lawyer is licensed in Arizona. He commits perjury in a
matter in Maine. The perjury can lead to discipline in
______________________________.
• Conflict of Laws—which law applies (other than the home state)?
o Lawyer’s belief—the conduct must conform to the rules of the jurisdiction in which the
lawyer reasonably believes his conduct will have a ______________________________
effect.
B. “Snitch” Rule
• A lawyer is required to ______________________________ violations to disciplinary
authorities.
o The reporting lawyer has
____________________________________________________________ of
____________________________________________________________.
o The violation goes to lawyer’s substantial ___________________________________,
___________________________________, and ___________________________________
to practice law.
Example 13: Lorraine Lawyer brings a successful suit against Larry Lawyer for
stealing funds from his client. Lorraine doesn’t notify the authorities about
Larry’s conduct. Is Lorraine subject to discipline?
______________________________. Lorraine has to snitch.
• Same obligation for bad ______________________________ conduct
C. Out-of-State Lawyers
An out-of-state lawyer may practice in a jurisdiction on a temporary basis.
1. Pro hac vice admission
o There must be a “______________________________” (dispute).
Note 1: Also applies to mediation and arbitration
2. Association with ______________________________ counsel
o Local counsel must ______________________________ participate; she can’t be a mere
silent partner
3. Working for a client from ________________________________________
o The attorney must have home-state qualification.
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D. Unauthorized Practice of Law
1. What is the practice of law?
o The Rules do not define the practice of law…
o Any activity which develops facts or law
Example 14: Jurisdictions differ. Real estate brokers, insurance agents, etc.
2. What is the result?
o Non-lawyers—______________________________ (e.g., “Stop doing that.”)
o Lawyers—______________________________ (e.g., the lawyer is not qualified or licensed)
3. Aiding and abetting
o A lawyer is prohibited from aiding and abetting the unauthorized practice of law by failing to
supervise non-professionals.
Example 15: Divorce mills, bankruptcy mills
Example 16: Larry Lawyer hires Peggy Paralegal. Peggy meets with clients,
fills out papers, sends the bill, and collects fees. Client never meets Larry. Is this
a violation? ______________________________. Even if Peggy represents
client soundly? ______________________________, it’s still a violation.
o To avoid this, the lawyer:
Must have ________________________________________; and
Must ________________________________________ and
_____________________________________________ for the work of the non-
professional
4. Pro se litigants
o Ghostwriting—a lawyer can give limited aid and assistance.
o Pro se litigants cannot be entities.
E. Fee-Division with Non-Lawyers
1. A lawyer CANNOT divide legal fees with non-lawyers
o Exceptions: Estates of decedent lawyer, retirement plans, etc.
o Legal fees are for ______________________________.
Example 17: Lorraine hires a private detective to work on a current divorce
case. Rather than pay him directly, she offers the detective a percentage of the
fees? Is this permitted under the Rules? ______________________________.
2. Real firms may split fees—the entity must be a professional corporation.
MPRE | © 2020 Themis Bar Review, LLC | 9
3. No non-lawyer can be ______________________________ of a lawyer’s judgment.
o No control by a ______________________________ payor
Example 18: Insurance company is generally not the client.
4. Lawyer-owned related services (e.g., document retention or delivery services)
o Clients must know they are ___________________________________ with a lawyer.
F. Sale of Practice
1. The sale of a practice to other lawyers is permitted.
o The Lawyer:
Must ______________________________ practice;
Give ______________________________ to the client; and
Sell the practice to a ______________________________.
o May sell the whole practice or only one area
o Cannot increase the ______________________________ associated with the sale
2. Can the lawyer return to practice? Yes, if:
o ______________________________ counsel;
o ______________________________
o ______________________________ area of law;
o _____________________________________________ (e.g., illness, financial difficulty).
G. Restrictions on Practice
• No covenants ______________________________ with other lawyers
• Exception—sale of practice
Note 2: Covenants are not allowed in settlements, either.
CHAPTER 4: THE CLIENT-LAWYER RELATIONSHIP
A. No Duty to Represent Clients
• Generally, a lawyer has no duty to represent a client.
o Exception—court appointments; however, they may be declined for cause.
o Sufficient causes—not being paid, violation of rule of professional responsibility,
commission of a crime
B. Duty to Reject a Client
• Duty is ______________________________ with the Rules for mandatory withdrawal.
10 | © 2020 Themis Bar Review, LLC | MPRE
C. Attorney-Client Relationship
Triggering event—the formation of an attorney-client relationship triggers civil and ethical
responsibilities.
Example 19: A victim of an accident consults with Lorraine Lawyer, who
determines that the victim does not have a case. This was a consult. There was
no agreement, and the victim did not pay any fees. Has an attorney-client
relationship been formed? Think about the elements…
1. Requirements—no need for fee or agreement to create the relationship
2. Type of test
o The test is not contractual.
o The test is like a ______________________________ test.
3. Formation test
o Would a _____________________________________________ determine that an
attorney-client relationship has been formed?
4. Prevention of attorney-client relationship
o Just say, “______________________________.”
o Make clear to the prospective client that you ______________________________ in an
attorney-client relationship.
D. Scope, Objective, and Means of Representation
1. Limitation on scope
o Lawyers and clients may limit the scope of representation.
Example 20: Larry Lawyer will only handle tax matters.
o The scope cannot be so limited as to create ineffective representation.
Example 21: An individual who caused an automobile accident while driving
drunk goes to Lorraine Lawyer. The client is charged with the drunk driving, but
also vehicular homicide. Lorraine Lawyer wants to limit representation. “I don’t
do homicide,” she says. Is this permissible? ____________________________.
2. Communication with client
o The lawyer must tell the client everything the client needs to know to make an
______________________________ decision about the case.
o Settlement offers must be communicated to the client.
o Exception—a prior agreement with client concerning a limitation
MPRE | © 2020 Themis Bar Review, LLC | 11
Example 22: Client will not accept less than $1,000,000. If an offer is less than
$1,000,000, does Lorraine Lawyer need not convey lower offer to client?
______________________________.
3. Criminal prosecution
Only the client can make the following decisions:
o Whether to ______________________________;
o Whether to exercise the right to trial by ______________________________; and
o ___________________________________ must be communicated to the client.
4. Client under a disability
a. Minority (underage)
b. ______________________________ (mental disability, drug addiction)
c. Lawyer Duties:
Maintain an ______________________________ relationship;
Seek appointment of a ______________________________, if necessary; and
Permitted to ______________________________ information as necessary to
______________________________ the client.
• You are allowed to take protective action.
5. Counseling on crime and fraud
o Yes, as to legal ________________________________________.
o No, as to ___________________________________ commit a crime.
E. Withdrawal and Termination of Representation
1. Mandatory withdrawal—coextensive with the attorney-client relationship
a. Violation of Rules of Professional Conduct
Example 23: Lorraine Lawyer’s new client wants to bring a claim against
another of Lorraine’s clients. Can Lorraine represent the new client?
______________________________.
b. Attorney impairment
Example 24: Larry Lawyer is struggling with a drug dependence, which is
interfering with his responsibilities. Can he continue to represent his client?
______________________________.
c. Discharge of attorney (i.e., you get fired)
A client has an ________________________________________ to fire an attorney.
12 | © 2020 Themis Bar Review, LLC | MPRE
• Cannot be modified by contract
• Cannot have a penalty provision such as liquidated damages or elevated fees
Client still owes ______________________________ to the discharged attorney (unless
discharged for cause).
d. Withdrawal after court processes begun
Must get ________________________________________ to withdraw, even when
withdrawal is ___________________________________
2. Permissive withdrawal (may)
a. Harmless withdrawal
May withdraw even if the client objects, so long as there is no harm to the client
Example 25: Shortly after being hired, before the case started in earnest, Larry
Lawyer fires his old client for a new and better client. This is permissible.
b. Harmful withdrawal (may)
“_____________________________________________” the client is pursuing crime or
fraud and the lawyer’s ______________________________ were used in the client’s
crime or fraud
Example 26: Lorraine Lawyer drafted a standard form lease for her client, a
landlord. The landlord is using the lease to rent apartments he doesn’t actually
own. Can Lorraine withdraw? ______________________________.
Client’s action is ______________________________ to the attorney
Example 27: Larry Lawyer learns that his client is a Neo-Nazi. Can he
withdraw? ______________________________.
___________________________________ financial burden
• Usually arises in the case of a court appointment
• Caution: A bad deal is not enough.
Client ______________________________ an obligation to the lawyer
• What Obligation? ______________________________.
______________________________ (e.g., illness or family emergency)
Exam Tip 1: REMEMBER: When in the court process, an attorney must always
obtain court permission to withdraw.
3. After withdrawal or termination
o Return the client’s ___________________________________ and
___________________________________
MPRE | © 2020 Themis Bar Review, LLC | 13
o If the client still owes a fee, the lawyer can have a __________________________________
on the client’s property.
Should not harm the client
Passive lien—cannot sell the property; operates like collateral
a. Disbursement of funds (third-party dispute)
Example 28: Larry Lawyer wins suit for Client, placing the proceeds of the
judgment in the client’s trust account. The client’s medical insurer asserts a
claim on those funds. What should Larry do with those funds?
______________________________.
An attorney must ______________________________ disputed funds until the third-
party’s dispute is ______________________________.
CHAPTER 5: FEES, FEES, FEES!
Note 3: You deserve to be paid.
A. Fees must be Reasonable
Example 29: Bank USA hires Lorraine Lawyer to seek recovery on a $100,000
note. Lorraine knows that this will require the same amount of work to recover
on a $1,000 note. Can she charge more? Let’s go to the test!
“Lodestar Test”—four factors to determine the reasonableness of rates
Note 4: The reasonableness trumps any contract.
Note 5: Fees applicable to FRCP 11 sanctions are subject to
____________________________________________________________.
Court review also applies to other fees.
Example 30: Larry Lawyer is administering the estate of a client. The estate
was rather large, containing loads of property and an extensive portfolio of
investments. Who will review the reasonableness of Larry’s fees? The probate
court, of course.
1. Factors
a. ______________________________—explain the fee up front, it cannot be changed
afterward.
Example 31: Lorraine agreed to an hourly rate of $250. The work ended up
being harder than she expected. Can she change the rate to $400?
______________________________. The rate is set. No premium afterward.
14 | © 2020 Themis Bar Review, LLC | MPRE
b. ______________________________—two types:
Is the issue new to you? If education is required, it may not be reasonable to charge as
much.
Is the issue new to everyone? It might be reasonable to charge a little more.
c. ____________________________________________________________
More ______________________________ = more ______________________________
d. Precluding ______________________________
E.g., paying a lawyer to conflict out a superstar lawyer
Example 32: Now you know the factors. Go back to Lorraine and the $100,000
note. Can she charge more? ______________________________.
2. Form
o A fee agreement ______________________________ have to be in writing.
Under ABA rules, fees just need to be ___________________________________.
o Exception—___________________________________ agreements must be in writing.
Often means a percentage of the amount of recovery
Cannot be used in ______________________________ or
______________________________ cases
Always must be signed by the ______________________________
Must have a ______________________________ methodology for fees and expenses
(i.e., explain how the fees will be determined.)
B. Retainers
• Main question—whose money is it?
• Basic rule—the lawyer must keep the client’s money separate.
o All unearned legal fees must be placed in an ______________________________ or
______________________________ account and unearned fees must be
______________________________.
Note 6: REMEMBER: It’s still the client’s money.
o All ______________________________ advanced to the lawyer must also be placed in
escrow.
o Accounts of the lawyer and clients must be kept ______________________________.
C. Interests in client as a fee
• The lawyer takes something from the client instead of a fee.
MPRE | © 2020 Themis Bar Review, LLC | 15
Example 33: Rather than taking a cash payment, Larry Lawyer takes stock
from his corporate client.
Example 34: To secure payment of a cash fee, Lorraine Lawyer takes a
mortgage on the client’s property.
• Interest in a client can create a ______________________________ of interest.
• Business transactions with clients AND acquisitions of an ownership or security interest in
client’s property trigger certain requirements:
o Terms must be in ______________________________
o Terms must be ______________________________ and
___________________________________
o Attorney must advise the client, ______________________________, of the prudence of
hiring independent counsel to review the agreement
o ______________________________, in writing, signed by the client
D. Fee Sharing
1. With other lawyers—the referring attorney may receive a portion of the fee, so long as:
o The overall fee is ______________________________ to the client;
o The fee-sharing arrangement is ______________________________ to the client; and
o The referring lawyer provides actual ______________________________ or joint
representation.
Example 35: Larry refers a super wealthy and very litigious client to Lorraine.
In appreciation, Lorraine kicks back a portion of her fee to Larry. Is this
allowed? ______________________________. Larry didn’t provide legal
services. Referral is not enough.
2. With non-lawyers—legal fees can be shared only among ______________________________.
o What about investigators? ______________________________.
o What about forensic accountants? ______________________________.
o What about Earl, the sandwich delivery guy? ______________________________.
CHAPTER 6: CONFIDENTIALITY & PRIVILEGE
A. Duty of Confidentiality
• Baseline rule—______________________________ information learned relating to the
representation must be kept in confidence.
o What if it’s public information? ______________________________.
o What about my client’s identity? ______________________________.
o Lawyer’s observations? ______________________________.
16 | © 2020 Themis Bar Review, LLC | MPRE
• Important! The duty of confidentiality is ______________________________ than the
attorney-client privilege.
o Why does this matter? You need to follow the contours of the attorney-client privilege.
o Certain things may not be privileged yet still protected by the duty of confidentiality.
B. Attorney-Client Privilege
1. Attorney-client privilege—more ______________________________ than the duty of
confidentially.
o The privilege ______________________________ information from the court.
o Limited application; applies to:
____________________________________________________________ (i.e., words);
Information _____________________________________________ to attorney; and
Information actually ______________________________ confidential.
o Presence of third party may destroy privilege
o Applies to speech, not objects
Example 36: Conrad Client comes to Lorraine Lawyer in a tizzy. He says, “I
hacked the government with this,” and he slams down a laptop on Lorraine’s
desk.
Is the statement “I hacked the government” privileged?
______________________________, the statement was given confidentially.
Is the laptop privileged? ______________________________, privilege is
about words, not things.
Does Lorraine have an obligation to turn the laptop over to the authorities?
______________________________.
Can Lorraine Lawyer publicly reveal information about the laptop?
______________________________, she has a duty to keep it confidential.
a. Inadvertent disclosure and waiver
Rule—no waiver of privilege if:
• Attorney took _________________________________________________________
to prevent disclosure; and
• Attorney took _________________________________________________________
after the disclosure.
What do these cases look like?
MPRE | © 2020 Themis Bar Review, LLC | 17
Example 37: Responding to a discovery request, Larry Lawyer discloses a
massive amount of documents. Included in the document dump is a privileged
document.
Example 38: Lorraine disclosed documents to Larry. Lorraine did not, however,
scrub the metadata hidden in one of the documents, which contained critical
information that should have been privileged.
2. Exceptions to attorney-client privilege
o ______________________________—an attorney cannot participate in ongoing crime.
o ______________________________ with the attorney
Example 39: Conrad is suing Larry for malpractice. Conrad
______________________________ prevent the disclosure of privileged
information that is relevant to the malpractice issue.
Example 40: Cassandra has brought a claim against Lorraine for violating their
fee agreement. Information that would normally be privilege
______________________________ be disclosed.
C. Work-Product Doctrine
• Protects documents prepared for use in connection with a client’s case, (e.g., strategy memo,
observations about client, reports on witnesses, etc.)
• Basic Rule—work product ______________________________ subject to discovery.
• Exceptions—an attorney compelled to reveal work product when:
o There is a ________________________________________ for the information; and
o No other means to gather the information without undue hardship.
Example 41: Larry interviewed a witness in Conrad’s criminal case. Shortly
after the interview, the witness died of a heart attack. Lorraine did not get a
chance to interview the witness before he died. Might Larry’s notes from the
interview be disclosed later? ______________________________.
Editorial Note 2: To clarify the parties in the above example, Lorraine may ask
that Larry’s interview notes be disclosed because Lorraine did not have a
chance to interview the witness before he died.
D. Court Compulsion
• A court cannot order a lawyer to reveal information protected by
____________________________________________________________
.
• A court may order revelation of material protected under the ethical duty of
____________________________________________________________.
o You must assert every non-frivolous claim you have to prevent disclosure.
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E. Permissive Disclosures of Confidential Information (May)
1. Client ______________________________
Example 42: Conrad says to Larry Lawyer, “Advocate for me publicly. Talk to
the media.”
2. Implied by the ______________________________
Example 43: Conrad says to Lorraine, “Take them to court.” This will require
revealing the client’s identity, as well as other confidential material within
Lorraine’s firm.
3. To prevent ______________________________ or
____________________________________________________________
Example 44: Cassandra has been in a drawn-out dispute with her now ex-
partner, Bruce. She says of Bruce, “I can’t take it anymore. He’s gonna bleed.”
4. Financial injury (the “Enron” case)
o To prevent:
The client’s ______________________________ criminal act or fraud;
The lawyer must believe it is necessary to prevent substantial
_____________________________________________;
For which the lawyer’s ______________________________ are used.
o Or, to prevent, mitigate, or rectify:
Substantial financial harm;
Caused by a client’s completed criminal act or fraud;
In which the lawyer’s ______________________________ were used.
Example 45: Larry helped Conrad develop a system to pay his company’s
creditors. Later, Larry learns that Conrad used this system to skim a tiny
amount from each transaction and dump them into an off-shore account in his
own name.
5. Review: Physical and financial harm
o Disclosing to prevent:
Physical harm—the lawyer’s services ______________________________ required.
Financial harm—the lawyer’s services ______________________________ required.
o Must disclose if failure to do so would assist the client’s crime
6. Controversies with lawyers or disciplinary proceedings
Example 46: Fee dispute with client; disciplinary matter
MPRE | © 2020 Themis Bar Review, LLC | 19
7. ______________________________ ordered disclosure
8. Necessary to discover conflicts
F. Duration
• The duty lasts ______________________________; it survives the death of the client and of the
lawyer.
G. Education (“The Law Professor Exception”)
• May disclose for educational purposes, so long as the client’s identity is not revealed, and the
listener cannot determine who the client is
H. Prospective Clients
• Entity representation (e.g., corporation)
o The entity is the client, but must communicate with a representative
Editorial Note 3: A lawyer representing an entity represents the entity acting
through its duly authorized constituents. The lawyer owes the duties of
loyalty and confidentiality to the entity.
o Control group—representatives (managers, board of directors, etc.)
• Communications from prospective clients
o Information must be held in confidence if the lawyer ______________________________
communication.
o Screening is available.
I. Electronically Stored Information (“The Cloud”)
• A lawyer is obligated to secure information to comply with the Rules.
• Factors:
o Sensitivity;
o Cost; and
o Client consent.
CHAPTER 7: CONFLICTS OF INTEREST
A. Purposes of the Conflicts Rules
• Maintain duty of loyalty and independent professional judgment; and
• Preserve confidentiality.
B. Enforcement of Conflict Rules
• Conflicts of interest may result in both:
o Litigation sanctions (e.g., disqualification from representation); and
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o ______________________________ sanctions.
• Who enforces? The ___________________________________.
C. Basic Types of Conflicts
1. ______________________________ adversity with concurrent client
Example 47: Lorraine is representing the landlord and tenant in an eviction
dispute.
Example 48: Larry represents two clients who are in litigation unrelated to
your case.
Note 7: Usually not waivable.
2. ________________________________________ on lawyer’s ability to represent client
o Can be a limitation caused by another client, former client, third party, or the lawyer’s own
interests
Editorial Note 4: To clarify the above rule, a lawyer’s ability to represent a
client may be materially limited by the interests of another client, former,
client, third party, or the lawyer’s own interests.
D. Waivable Conflicts
• Requirements for waiver:
o Client’s informed consent, in ______________________________;
o The lawyer must have a _____________________________________________ that the
representation will not adversely affect representation of another client; and
o ______________________________ clients must waive.
Example 49: Larry is representing the driver and passenger, who were injured
when their car was struck by another car. In most cases, this
______________________________ a conflict.
Say that facts emerge indicating that the driver may have actually been at fault,
and the passenger may want to sue the driver herself. Can Larry still represent
the passenger and client? ______________________________, if all clients
properly waive.
E. Former Clients
1. Basic idea
If a lawyer previously represented a client in a matter, the lawyer cannot represent another
person in the ________________ matter or a _________________________________________
matter in which that person’s interests are materially adverse to the interests of the former
client, unless the former client gives informed consent, confirmed in writing.
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Editorial Note 5: The lecture focuses on the “substantially related” portion of
this rule, but note that the clients’ interests also must be “materially
adverse” to create a conflict of interest.
2. What does “substantially related” mean?
o It is an ______________________________ test:
What was the ______________________________ of the prior representation?
Could the lawyer have learned information?
Would that information be ______________________________ in the current
litigation?
Note 8: This is objective. No testimony about what the lawyer really knew
because such disclosure would breach duty of confidentiality.
F. Personal Interest of Lawyer
1. Business dealings or acquisition of an interest in client or client’s property
2. Draft a ______________________________ or gift in which lawyer is the heir or donee (unless
for a family member)
3. No ______________________________ lawyers on the other side
Example 50: Lorraine and Larry are happily married. Lorraine is prosecuting
Conrad for manslaughter and Larry intends to defend him. This is a conflict.
4. No acquisition of ________________________________________ until the representation of
client concludes
Example 51: Lorraine represents Cassandra, who has been charged with
murder in a case that is receiving substantial media attention. Cassandra asks
Lorraine to negotiate with FlixNet to produce a miniseries about her life.
Lorraine ______________________________ do this until the criminal matter
is over.
Editorial Note 6: The above arrangement would be permissible as long as
Lorraine did not make or negotiate an agreement that gave her (Lorraine)
literary or media rights to a portrayal or account based in substantial part
on information relating to the representation of Cassandra in the murder
case. See ch. 12, Question 2.
5. Proprietary interest in litigation (champerty)
o Do not ______________________________ to clients.
o No advances to clients except for ______________________________.
Client still ultimately responsible
Lawyer can pay court costs of ______________________________ client
Lawyer can advance court costs to any client; repayment can be contingent on outcome.
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Example 52: Lorraine represents Conrad in a domestic relations matter.
Conrad is very sick and needs treatment immediately, but he can’t afford the
care. Can Lorraine pay for Conrad’s treatment?
______________________________.
Example 53: Larry represents Cassandra in a property dispute with her
neighbor. Larry hires a surveyor to be an expert at trial about the neighbor’s
trespass. Can Larry pay for the expert in advance of the trial?
______________________________. The expert witness is a court cost, and
court costs can be advanced by the lawyer.
6. No ______________________________ with clients
o Exception—pre-existing relationship
o This is a ______________________________ disqualification; it is not contagious to the
firm.
G. Lawyer as Witness
• A lawyer cannot take representation where the lawyer may be a witness.
• Exceptions:
o ________________________________________ issues
o ________________________________________ in this case
Example 54: Say the matter is a fee-shifting case under FRCP Rule 11, Lorraine
can testify as to the value of her services in her case.
H. Imputed Disqualification
1. Contagious conflicts
o If a lawyer is in conflict with representation of a client, ______________________________
lawyer in the firm may represent the client. The lawyer is contagious.
2. Exceptions
o Client ______________________________, informed, and confirmed in writing
o The conflict is based upon the lawyer’s ______________________________ interest. (e.g.,
sex with clients).
Note 9: There is no appearance of impropriety standard for lawyers. It does
not matter if it looks bad, it must actually be bad.
3. Incoming Lawyer—(ripe for testing!)
Arises when a new lawyer is contagious with a conflict
a. Application
This rule only applies to the ______________________________ lawyer.
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The incoming lawyer will not give the law firm a conflict as long as there is
________________________________________ and the incoming lawyer receives no
part of the ______________________________.
b. Screening
No information is passed between the incoming lawyer and the firm;
The lawyer is apportioned ______________________________ part of the fee; and
The affected client must be afforded ______________________________, but consent
is not required.
4. Non-lawyers
o Nonprofessional employees (paralegals, secretaries, etc.) can also create conflicts.
o The same rules apply.
I. Government Lawyers
1. Conflict of interest
o A former government lawyer who becomes associated with a firm
______________________________ create a conflict.
2. Requirements to deal with conflict:
o The lawyer is screened on the matter.
o The affected client must be notified.
Gives the client opportunity to monitor the screening
3. Job search
o Government lawyers, agency lawyers, arbitrators, mediators, and third-party neutrals
cannot negotiate for ______________________________ with a party if that party is
involved in a matter in which the lawyer participates.
o Exception—______________________________ can seek employment with parties before
the court, provided they tell the judge.
J. Prospective Clients
• Information learned from a prospective client can create a conflict.
Example 55: Husband approaches Larry to discuss getting a divorce from Wife.
Husband reveals lots of information about the marriage. Husband then informs
Larry that he will not retain his services. Can Larry represent Wife in the
divorce? ______________________________.
• Is it contagious? Can be avoided immediate screening of the lawyer who dealt with the
prospective client
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• Conflict exists if the attorney ______________________________ information from a
prospective client
o An unsolicited communication from a prospective client does not trigger this conflict.
K. Third-Party Interference
• The client is the client the third-party payor (e.g., insurance agency) is not the client.
• Three forms of impermissible interference with the attorney’s independent representation of a
client:
o ______________________________ control (e.g., task approval system);
o Information control (e.g., demand to see all case-related information);
o ______________________________ control (e.g., regulation of the nature and amount of
settlement).
• A client can consent to these forms of improper influence.
• An agreement to eliminate or limit malpractice ______________________________ valid.
L. Organization as a Client
“Organization” includes corporations and other entities.
1. Who is the client?
o The lawyer represents _______________________________________, not its constituents.
o Joint representation of organization and its constituents _____________________________
permissible.
2. Control group
o The principal managers of organization
o May have joint representation of this group
3. Bad behavior of organization
o If a lawyer ______________________________ (actual knowledge) of a violation of law that
may be imputed to the organization and likely to result in
____________________________________________________________ to the
organization, the lawyer should take measures including referring the matter to the highest
organizational authority.
Board control—the lawyer may have to go to the board.
o If the organization does not correct the matter, the lawyer may
______________________________.
“______________________________ withdrawal” is allowed.
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CHAPTER 8: COMPETENCE, LEGAL MALPRACTICE, & OTHER CIVIL LIABILITY
A. Professional Competence
1. Basic rule—lawyers must be ______________________________.
2. Malpractice v. ethics violation
o Malpractice requires ______________________________.
o Discipline ______________________________ require damage.
Example 56: The law firm of Larry and Lorraine does not have a conflict-check
system in place. This is a violation under the Model Rules. It will not, by itself,
subject the firm to malpractice liability.
a. Malpractice = legal liability
Conventional malpractice is coextensive with ______________________________.
• Basic tort test—duty, breach, causation, damage
• The duty arises out of the attorney-client relationship.
Breach of fiduciary relationship (e.g., a conflict)
Breach of contract for failure of performance
• Damages are usually limited to recovering ______________________________.
b. Burden of proof
Malpractice, fiduciary, and contracts—
____________________________________________________________ evidence
Ethics violation—
____________________________________________________________ evidence
c. Violations of the MRPC do not set up a cause of action for malpractice
Violation of the MRPC may be ______________________________ of a breach of duty.
3. Duty to decline or withdraw
o Arises if the lawyer is not ______________________________ or cannot become
competent without unreasonable delay
4. Limits on Recovery
o A lawyer cannot contractually limit recovery.
o Can enter an agreement limiting the lawyer‘s malpractice liability
______________________________ the client is represented by
______________________________ counsel
5. Settlement with unrepresented clients
o A lawyer __________________________ tell the client when the lawyer has made an error.
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B. Duties to Non-Clients
1. Third-party beneficiaries
Example 57: Larry wrote a will for Daryl, the dead guy. The will accidentally
cut out Daryl’s nephew Michael, who was very close to Daryl. Can Michael
bring a claim against Larry? ______________________________, even though
he didn’t have a lawyer-client relationship.
2. Unauthorized acts
Example 58: Lorraine represents Cassandra. Without permission, Lorraine
enters into a contract to sell Cassandra’s prized stamp collection to an antique
stamp dealer. Cassandra is not happy. Is Lorraine on the hook with the stamp
dealer? ______________________________.
C. Referrals/Outsourcing to Other Lawyers Outside Your Firm
• Must _______________________________________________ the other lawyer will contribute
D. Other Tort Defenses for Attorneys
• Defamation defense—privilege when the publication is related to a proceeding in which the
lawyer is counsel
• Malicious prosecution defense—________________________________________ for the action
brought by the attorney
E. Crimes
• Advice about crime is not criminal if the lawyer attempts to ______________________________
the client.
CHAPTER 9: FAIRNESS & LITIGATION
A. Diligence
• Basic rule—lawyers must be diligent.
• If you cannot be diligent, you must ______________________________.
Example 59: Lorraine is suffocating under her existing caseload, with barely
enough time to eat, let alone do more work. Conrad comes to her with a
potentially interesting case that would help her extend into a brand-new
practice area. If she takes the case, her other work will suffer. Should she take
it? ______________________________. Lorraine is too busy.
Example 60: Larry’s drinking is getting in the way of his defense of Cassandra,
who faces a long prison sentence if she is found guilty. What should Larry do?
______________________________.
• Cannot delay for the sake of delay.
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B. “Zealous” Advocacy
1. Frivolous claims
o A lawyer may not ______________________________ or
______________________________ a claim that is frivolous absent a good-faith argument
to extend the law.
Example 61: Civil rights cases are great examples. Take Brown v. Board or the
recent marriage equality litigation.
o Important—“frivolous” is subject to interpretation.
o Reliance on a client’s factual assertion may be permissible under ethical rules.
FRCP 11 and its state cognates require “___________________________________
investigation” into the client’s facts.
o ______________________________________________ may make an action frivolous later.
Example 62: Conrad told Lorraine that he was injured in a high-profile train
accident. Lorraine later determines that Conrad wasn’t even in the same state
as the train accident. Is this a frivolous claim?
______________________________.
What should Lorraine do? ______________________________.
2. Don’t delay!
o Can ask for/consent to a ______________________________ extension
C. Candor to the Tribunal
• “Tribunal” includes ________________________________________________ as well as courts.
• A lawyer may not “knowingly” (actual knowledge):
o Make ______________________________ statements as to
______________________________ or ______________________________;
o Fail to disclose _____________________________________________ on the other side; or
o Offer evidence the lawyer “______________________________” to be false.
• A lawyer ______________________________ refuse to offer evidence the lawyer
“____________________________________________________________” is false.
Example 63: Larry represents Cassandra in a case against her insurance
company. After the insurance company filed its reply brief, the state Supreme
Court issued an opinion that weakens Cassandra’s case. Does Larry have to
disclose it to the court? ______________________________.
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D. Remedial Measures
• When a lawyer “knows” evidence submitted was false or, typically, when perjury has been
committed or is about to be committed:
o Lawyer must ______________________________ with the witness (i.e., attempt to
dissuade) to correct the falsity;
o Lawyer may take the matter to the court and seek to ______________________________;
o When withdrawal is denied (and it usually will be), the lawyer can present “trial by
narrative”
Trial by narrative—the witness testifies without lawyer’s participation (i.e., no questions
or objections).
Example 64: Prepping Conrad to take the stand in his assault case, Lorraine
gets the feeling that Conrad is going to lie about where he was when the
incident occurred. Is she required to tell the court?
______________________________. She does not have actual knowledge.
What should Lorraine do? ______________________________, in the hope of
dissuading him from committing perjury.
• A lawyer has a duty to correct errors (false testimony, etc.).
o Does it last forever? It ends when the ________________________________________.
E. Tampering
• A lawyer cannot tamper with ______________________________ or
______________________________.
Example 65: Cassandra hands Larry a laptop and says, “I used this to steal
thousands for my company.” Can Larry destroy the laptop?
______________________________.
Can Larry wipe the hard drive? ______________________________, that’s not
any better.
Can Larry store the laptop in his office indefinitely?
______________________________, still bad.
What should Larry do? ________________________________________.
Can the police say they got it from Larry? ______________________________.
• No destruction of evidence (including moving)
• No payment of witness except for the cost of coming to the proceedings
o Exception—________________________________________ can be paid.
o But—no contingency fees for experts.
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F. “Ex Parte” Communications
• Generally, no “ex parte” communications by the lawyer
o Applies to pending and impending litigation
• Persons with whom lawyer cannot communicate ex parte: Judges, jurors, the prospective venire
(potential jurors)
o Might be permitted to speak to jurors after the trial (survey)
Regulated by local court rules
Typically requires judicial permission
Cannot talk to the juror about inadmissible evidence
G. Communications with Represented Persons
1. General rule
o A lawyer (or the lawyer’s agent) may not communicate with represented people.
o A lawyer must have ______________________________ of representation.
o Once a lawyer knows a person is represented, the lawyer must deal with the
______________________________.
2. Entities
o Presume that members of the control group of an entity are represented by the lawyer for
the entity.
3. Admissions
o A lawyer ______________________________ talk to a person who could make a statement
that would be used as an admission.
o Former employees are no longer represented by the entity’s attorney.
H. Communications with Unrepresented Persons
1. Generally
o A lawyer cannot ______________________________ the unrepresented person.
Example 66: Suggesting you are not interested in the case.
Example 67: Concealing the fact that you are a lawyer in the case.
o Special rule—undercover attorneys
Use of an undercover agent is permitted, particularly in criminal cases and in civil
litigation, where information cannot be obtained by other means.
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2. Inadvertent communication
Example 68: Larry receives an email concerning his client. After a quick
glance, it’s clear that the email was sent in error.
o Larry must ____________________________________________________________.
o Can he read it? ______________________________. There’s no prohibition on the
recipient reading or using the inadvertent communication.
I. Media Contact Rule
• Prejudice—lawyers cannot make statements to media that have a substantial likelihood of
______________________________ the proceeding.
• Exceptions:
o To protect from other publicity
o General facts of the case and procedure (e.g., how litigation will proceed, scheduling, or
warning to public)
• Specific prohibited circumstance—bad comments about ______________________________
• A lawyer may respond in the media to protect client from publicity
________________________________________ by the client or lawyer (“He started it.”)
Example 69: Lorraine is defending Conrad in a high-profile murder case.
McCoy Jack, the District Attorney, gave a long press conference condemning
Conrad. Can Lorraine speak to the media in response?
______________________________, because McCoy Jack started it.
CHAPTER 10: DIFFERENT ROLES OF THE LAWYER
A. Candid Advisor/Third-Party Evaluation
1. Overview
o Client asks an attorney to evaluate something;
o The attorney’s evaluation will be given to the third party.
Example 70: Cassandra is trying to sell a piece of property. The potential
buyer wants a report on the title, which Cassandra asks Lorraine to prepare.
The sale is in Cassandra’s best interests.
2. Basic rule
o An attorney must give ________________________________________ to a third party.
Example 71: Say that Lorraine learns that a neighbor has a significant right-of-
way easement on Cassandra’s property, which may render title unmarketable.
o An attorney must tell the client before communicating unfavorable information.
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B. Neutrals (Mediator, Arbitrator, etc.)
• Neutral as to third parties, not ______________________________.
Example 72: In addition to his practice, Larry also serves as a mediator in
water disputes. In this capacity, Larry must remain neutral.
C. Prosecutors
• Prosecutors are subject to a set of constitutionally mandated rules:
o Must have ________________________________________ to bring a criminal action;
o Cannot take advantage of ________________________________________ persons;
o Must disclose ________________________________________ information;
o No subpoena of a lawyer in order to destroy
____________________________________________________________;
o Like other lawyers, restrictions against talking to ______________________________; and
o Required to seek a ______________________________ if new evidence is clear and
convincing.
D. Safekeeping Property
• General rule—a lawyer must keep her own property ______________________________ from
the client’s property.
E. Advertising
• ___________ forms of communications are considered advertising.
Example 73: Shameless about getting his name out there, Larry always has
business cards at the ready to hand out to prospective clients. The business
cards are advertising—as is a website, a mailing, letterhead, etc.
1. Restrictions on advertising
a. May not be ______________ or __________________________________.
Example 74: Lorraine advertises on Headbook, a social media site. Her
advertisement says, “I’m not capable of losing.” Could this lead to discipline?
______.
b. Unverifiable self-promotion
Example 75: Larry’s current commercial says, “There can be no doubt. When it
comes to trusts and estates, I am the greatest lawyer ever.” Is this a problem?
______.
c. Expertise and fields of practice
A lawyer __________ state her fields of practice.
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Example 76: Lorraine’s billboard says, “I want to be your tax lawyer.” Is this
permissible? ______. It states her field of practice.
A lawyer can call herself a specialist.
Example 77: Larry’s website says he “specializes in DUI defense.” Is this
permissible? ______.
A lawyer cannot call herself a “certified specialist” unless:
• She has been certified as a specialist by an organization approved by 1) an
appropriate statue authority or 2) that has been accredited by the ABA, and
• The name of the certifying organization is clearly identified.
Example 78: Lorraine’s leaflet says “I’m a certified child custody expert,” but
the leaflet doesn’t identify the certifying organization. Is this permissible?
______.
Patent: If a lawyer is admitted to practice before the US Patent and Trademark Office,
the lawyer can call herself a “Patent Attorney.”
Admiralty: If a lawyer is engaged in admiralty practice, the lawyer can call herself
“Proctor in Admiralty,” or designate her practice “Admiralty”
d. Disclosure of location of offices
e. Names of Client
o Advertisement can include the name of regularly represented client, provided lawyer
has the client’s _________________.
f. Identification of Advertiser
o Any communication about a lawyer or firm must include the name and contact
information of at least one attorney or law firm responsible for its content.
g. No implication of a ________________________ unless one really exists
Example 79: Lorraine and Larry share office space and an assistant, but
they practice independently. The door on their office says “Smith and
Johnson.” Is this permissible? _____, it implies a partnership.
2. Firm Names and Letterhead
a. Firm names and letterhead, as well as website and social media, are all subject to rule, i.e.
they can’t be false or misleading
o Firm may be designated by names of all or some of its members, including
_____________________ members.
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o If a firm uses a trade name that includes a geographic name—“The Phoenix Legal
Group” (“We’ll rise from the ashes defending you!”)—the communication must include
a statement that it is not a public legal aid organization.
b. Firm name cannot imply a connection with:
o Government agency
o A deceased lawyer who was not a former member of the firm
o A lawyer not associated with the firm
o A nonlawyer, or
o A Public or charitable legal services organization.
c. Firm cannot use the name of a lawyer holding public office
d. Firms with offices in more than one jurisdiction may use the same name in each.
3. Real-time Direct Contact
a. Real-time, direct contact to solicit business is prohibited.
This includes in-person, on the telephone, and synchronous electronic communication.
• But: Does not include chat rooms, text messages, other communications that
recipients may easily disregard.
Exceptions:
i) Another lawyer
ii) Family, close personal, or prior business relationship
iii) Person who routinely uses the lawyer’s type of legal services
The prohibition is on the lawyer seeking pecuniary gain.
b. Mail and non real-time electronic communications
These are okay.
But: communication cannot involve coercion, duress, or harassment and cannot be
to someone who has said they don’t want to be solicited
Example 80: A USA Air flight crashed, killing 75 people. After researching
their stories, Larry sent a mailing to the relatives of the victims. Is
this gross? _______. Is it permissible? ________.
c. Constitutional issues
General mail should not be restricted
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Editorial Note 7: Advertising is no longer required to be explicitly labeled as
advertising under the MRPC, and many states are beginning to adopt this
change as well.
Florida Bar v. Went For It
• Florida enacted a 30-day restriction on contact with accident victims.
• The restriction was upheld as a reasonable restriction on advertising rights.
New York courts ruled that an outright ban on pop-up ads was unconstitutional.
F. Referrals/Endorsement
• Referral services are permitted.
o Watch for Internet-based client generators: E.g., “divorce.com”
• No payments for percentage of fees, but, ad rates are okay
G. Pro Bono
• Aspirational rule (i.e., not mandatory)—______________________________ hours of service
per year
• Conflicts may arise between your pro bono and legal services work and your regular work.
o Special conflicts rules apply:
Conflicts rules do not apply unless the lawyer is ______________________________ of
the conflict.
“Special Material Benefit Disclosure” rule—this is the situation where a decision in the
pro bono matter will benefit one of lawyer’s other clients.
• A lawyer must disclose the existence of a conflict, but…
• The duty of confidentiality prevents disclosure of the client’s identity.
Example 81: Lorraine successfully represented a client in a pro bono
immigration matter. She must disclose that she has a client with an interest in
this pro bono activity, but she need not say who the client is.
H. Limited Legal Services
• Potential tension between providing public with legal services and the lawyer’s possible liability
for such services
• These services are nevertheless allowed.
Example 82: Larry volunteers for a criminal defense legal hotline. This is
permissible behavior.
I. Politics
1. Campaign contributions
o Solicitation of campaign contributions and participation in political work is permitted.
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o No ______________________________, because of course not
o Cannot make contributions in exchange for an appointment or for favor in a lawsuit
o Applies to all political offices, not just judicial offices
2. Comments on candidate’s qualifications
o Not permitted to ______________________________ about candidate’s fitness for office
o
NY Times v. Sullivan—the First Amendment protects speech against public figures.
Not defamation unless the speaker made the comment with
__________________________________________________
“Actual Malice”—knowing falsity or reckless disregard for truth
3. Running for judge
o Permitted, subject to legal ethics as well as judicial ethics
CHAPTER 11: JUDICIAL ETHICS
A. Number of Questions
• About 6% (3 or 4 questions), on average, of the MPRE is devoted to judicial ethics.
B. Interplay with Lawyer’s Ethics
• A lawyer may not induce a judge in the violation of judicial ethics.
Example 83: In the hope of currying favor, Larry offered Judge Williams tickets
to the hit Broadway musical Burr, in exchange for a few conversations about his
upcoming trial before the judge. Is this permissible?
______________________________, it’s ex parte communication.
C. Model Code of Judicial Conduct (CJC)
• Structure
o Canons = ________________________________________
o Rules = ________________________________________
o Comments = ________________________________________
D. Judicial Integrity
1. Judges must comply with the law.
o Unlike a lawyer, a judge must avoid the
____________________________________________________________.
2. No abuse of office for gain
Example 84: Judge Williams is a self-described foodie. When he couldn’t get a
reservation at Crouton, the city’s hottest new restaurant, he called the owner
and said, “I’m a federal judge. I get a table tomorrow night.”
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Example 85: Judge Williams calls Lorraine to recommend one of his clerks for
an open associate position at Lorraine’s firm. Is this permissible?
______________________________.
E. Impartiality and Diligence
• Judges must be diligent and impartial (i.e., no ______________________________).
• Justice must be ______________________________.
F. Ex Parte Communications
1. Generally prohibited
o The prohibition applies to judges as well as lawyers.
o Staff control—the judge is responsible for controlling her
______________________________, particularly in the area of ex parte communications
2. Permitted ex parte contacts—scheduling, consultation with experts, communication with staff,
settlement discussions (only with parties’ consent), etc.
3. Judge as detective—a judge may not conduct an independent factual
______________________________ of any matter before the court
G. Public Comment
• Judges should not make public comments on ______________________________ or
______________________________ cases.
• Applies to cases before any court if it might affect the outcome or fairness
Example 86: After the Court’s term is over, Justice Bornstein gives a speech at a
law school outlining his view of the decisions handed down that term. Is this a
violation? ______________________________.
H. Recusal
1. Judge: “I will not hear this case.”
o Arises when the judge’s ________________________________________ is questioned
o Look for:
Money—some interest in the outcome
Relatives
Anger
Bias
o Exception—rule of ______________________________
If no judge can hear the case, someone has to do it.
2. Mandatory recusal
o Personal ______________________________ toward a party or lawyer;
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o Personal knowledge of ______________________________ in the case;
o Judge and spouse’s relationship;
o ________________________________________ for the judge or the judge’s family;
o Political contributions by one party generally ______________________________ grounds
for recusal;
Exception—contribution in ______________________________ of what is legal
o Judicial conflict—judge has previously served as a:
A lawyer in the matter;
___________________________________; or
Prior judge in the matter before the court.
3. Disclosure
o Must disclose to the litigants all ______________________________ that is useful to judge
whether recusal is appropriate
4. Waiver
o Recusal may be ______________________________ by the parties, even in cases of
mandatory recusal.
o Exceptions—recusal based on personal bias and personal knowledge may not be waived.
I. Squealing by Judges
• Judges are obligated to report ______________________________ violations of the rules by
another lawyer that implicates the lawyer’s honesty, trustworthiness, or fitness as a lawyer.
• Impairment—if the judge has a _____________________________________________ that a
lawyer is impaired, the judge must take appropriate action.
Note 10: The Rules treat knowledge and reasonable belief the same. A judge
must disclose.
J. Extra-Judicial Activities
1. Overall theme
o Judges cannot engage in activities that
____________________________________________________ of the judge or of the court.
Example 87: The local paper reveals that Judge Williams has been hosting an
illegal gambling ring in the basement of his townhouse.
2. Character witness
o A judge cannot be a ______________________________ character witness.
o A judge can be a character witness if ______________________________ to testify.
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3. Fiduciary
o No ______________________________ appointments (e.g., trustee, executor)
o Exception—______________________________ matters
4. Practice of law
o A judge may not ______________________________ law.
o Exception—______________________________ practice
5. Outside business
o No ______________________________ business
o Exception—______________________________ business, so long as it does not interfere
with judicial work.
Example 88: Judge Williams’ family has long owned a lucrative soda bottling
business, from which Judge Williams earns a hefty profit. Is this permissible?
______________________________.
Can he hear a case in which an ex-employee is suing his family’s company?
______________________________, that would be easy grounds for recusal.
K. Gifts to Judges
1. Non-reportable gifts
o Gifts to judges are permitted ________________________________________, if in the
ordinary course.
Example 89: East legal publisher sends Judge Williams—as well as every judge
on the court—a complimentary copy of its updated Professional Responsibility
desk book, for use in official matters.
2. Reportable gifts
o Large gifts are subject to reporting rules.
o Conventions—reimbursement for judge’s attendance at a convention
Recreation—the judge must ______________________________.
Education—the judge need not ______________________________.
L. Politics for Judges
1. Easy rule
o A judge must ______________________________ of politics—including endorsement of
political candidates, even family members
2. Impartiality—no pledges, promises, or commitments
o No commitments
MPRE | © 2020 Themis Bar Review, LLC | 39
o Candidate for judicial office (issues v. parties)
General comments about issues—______________________________
Example 90: In a speech to high school students, Judge Williams says “I am a
firm believer in strict campaign finance regulations.”
Specific comments about parties—not allowed
Example 91: Asked by a reporter about the campaign finance case before the
Supreme Court, Judge Williams says “The defendants have no chance in that
one.”
o Keep in mind! Judge comments might be the basis for recusal.
3. Judge running for judicial post in an election
o A judge can have a campaign committee.
o A judge can endorse candidates for the same office.
4. Judge running for elective office other than judgeship (e.g., legislature)
o A judge must ______________________________ the judgeship.
5. Judge seeking appointment to non-elective office (e.g., federal court judge)
o A judge ______________________________ have to quit job.
40 | © 2020 Themis Bar Review, LLC | MPRE
CHAPTER 12: MPRE PRACTICE PROBLEMS
Question 1
An attorney was retained to represent a client charged with assault. The attorney interviewed several of
the client’s friends and colleagues in a search of character witnesses. In one such interview, the client’s
secretary revealed that the client, who was a banker, often skirted legal and ethical lines. After the
client was acquitted, the attorney’s friend called to congratulate him. The attorney mentioned that it
might not be long before the client found himself in legal trouble again, and he told his friend about the
conversation with the client’s secretary.
Was the attorney’s action in revealing what he learned from the client’s secretary proper?
A. No, because the attorney was bound by the duty of confidentiality.
B. No, because the conversation with the secretary was protected by attorney-client privilege.
C. Yes, because the attorney’s representation of the client had concluded.
D. Yes, because the conversation was not protected by the attorney-client privilege.
NOTES:
_____________________________________________________________________________________
_____________________________________________________________________________________
_____________________________________________________________________________________
_____________________________________________________________________________________
_____________________________________________________________________________________
_____________________________________________________________________________________
_____________________________________________________________________________________
_____________________________________________________________________________________
_____________________________________________________________________________________
_____________________________________________________________________________________
MPRE | © 2020 Themis Bar Review, LLC | 41
Question 2
A well-known defense attorney met with a criminal defendant regarding representation of the
defendant in a highly publicized case. During the meeting, the attorney told the defendant, who was
indigent, that she would represent him if he agreed to grant her movie rights regarding the
representation. The client agreed to these terms, and the attorney provided him with a written consent
form setting forth the terms of the representation and advising him to seek independent counsel. The
attorney met with the defendant several days later, at which time he returned a signed copy of the
written consent form. He told her that he had not consulted with another attorney. The attorney
succeeded in obtaining an acquittal at trial and began shopping a movie based on the case to television
studios shortly thereafter.
Were the attorney’s actions in securing the movie rights based on the case proper?
A. No, because the attorney negotiated for movie rights prior to the conclusion of the
representation.
B. No, because the defendant did not obtain independent legal counsel before signing the consent
form.
C. Yes, because the defendant signed a written consent form after being advised of his right to
seek independent counsel.
D. Yes, because the attorney negotiated for movie rights as a replacement for fees.
NOTES:
_____________________________________________________________________________________
_____________________________________________________________________________________
_____________________________________________________________________________________
_____________________________________________________________________________________
_____________________________________________________________________________________
_____________________________________________________________________________________
_____________________________________________________________________________________
_____________________________________________________________________________________
_____________________________________________________________________________________
_____________________________________________________________________________________
42 | © 2020 Themis Bar Review, LLC | MPRE
Question 3
An attorney represented a criminal defendant in a murder case. The attorney’s client told the attorney
that he wanted to testify in his own defense. The attorney tried to dissuade his client from testifying, in
part because although he had no evidence to support it, he suspected that the client’s version of the
events was fabricated. The attorney also believed that the jury would not believe his client. The client
insisted, however, that he testify. The attorney told his client that he would call the client to the stand
but reminded him that he was under oath and that it was imperative that he answer all questions
truthfully. At trial, the client testified in his own defense, and the prosecution subsequently impeached
the defendant’s testimony.
Was the attorney’s action in allowing his client to testify proper?
A. No, because the attorney reasonably believed that his client’s testimony would be false.
B. No, because the attorney was required to take remedial measures.
C. Yes, because the attorney did not know that the client’s testimony would be false.
D. Yes, because an attorney is required to respect a criminal defendant’s decision to testify.
NOTES:
_____________________________________________________________________________________
_____________________________________________________________________________________
_____________________________________________________________________________________
_____________________________________________________________________________________
_____________________________________________________________________________________
_____________________________________________________________________________________
_____________________________________________________________________________________
_____________________________________________________________________________________
_____________________________________________________________________________________
_____________________________________________________________________________________
MPRE | © 2020 Themis Bar Review, LLC | 43
Question 4
An attorney filed a motion for summary judgment on behalf of his client despite knowledge of directly
adverse case law from the highest court in the state. Since the issuance of that decision, however,
courts in other states had reached the opposite conclusion. In the motion, the attorney cited the
decisions from other states but did not mention the decision from the state’s highest court. The
opposing attorney filed a brief in opposition to the motion for summary judgment that did not cite the
decision from the state’s highest court. The court did not hold oral argument but granted summary
judgment based on the briefs.
Were the attorney’s actions in not disclosing the decision of the state’s highest court proper?
A. No, because the attorney was required to disclose the decision in his initial brief supporting the
motion for summary judgment.
B. No, because the attorney was required to disclose the decision after the opposing counsel failed
to disclose it.
C. Yes, because an attorney does not have a duty to disclose cases that are adverse to his client’s
position.
D. Yes, because disclosure of the case would violate the attorney’s duty to zealously advocate his
client’s position.
NOTES:
_____________________________________________________________________________________
_____________________________________________________________________________________
_____________________________________________________________________________________
_____________________________________________________________________________________
_____________________________________________________________________________________
_____________________________________________________________________________________
_____________________________________________________________________________________
_____________________________________________________________________________________
_____________________________________________________________________________________
_____________________________________________________________________________________
44 | © 2020 Themis Bar Review, LLC | MPRE
Question 5
An attorney opened a trust account at a local bank into which she deposited a check from a client that
constituted an advance payment for future services to be rendered by the attorney. Subsequently, the
attorney received an engagement fee from another client, which the attorney also deposited into the
account. The engagement fee represented payment to the attorney for accepting the case, being
available to handle the case, and agreeing not to represent another party in the case. The fee did not
require the attorney to perform specific legal services. The attorney maintained records related to all
account transactions in accordance with the state rules of professional conduct, which were identical to
the ABA Model Rules of Professional Conduct, but she did not pay bank service charges on the account
from her own funds.
Is the attorney subject to discipline with regard to her actions concerning the trust fund account?
A. No, because the attorney properly maintained the records related to the account.
B. No, because the attorney maintained a trust fund account to keep her property separate from
her client‘s property.
C. Yes, because the attorney failed to pay the bank service charges on the account from her own
funds.
D. Yes, because the attorney did not keep her client‘s property separate from her own property.
NOTES:
_____________________________________________________________________________________
_____________________________________________________________________________________
_____________________________________________________________________________________
_____________________________________________________________________________________
_____________________________________________________________________________________
_____________________________________________________________________________________
_____________________________________________________________________________________
_____________________________________________________________________________________
_____________________________________________________________________________________
_____________________________________________________________________________________
MPRE | © 2020 Themis Bar Review, LLC | 45
A. Summary
1. Start with the call of the question.
2. Make notes while reading the facts.
3. Try to come up with an answer on your own.
4. Check your work by reading all the answer choices.
5. Always choose an answer!
B. Final Advice
1. Study! Put in the time.
2. Study your way. What has worked for you in the past should work for you on the MPRE.
3. Be nice to the people around you. They will still be there after the exam!
GOOD LUCK ON THE MPRE!
[END OF HANDOUT]
46 | © 2020 Themis Bar Review, LLC | MPRE
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