MULTISTATE PROFESSIONAL RESPONSIBILITY EXAM (MPRE) PROFESSOR MARK D. YOCHUM DUQUESNE UNIVERSITY SCHOOL OF LAW INTRODUCTION A. Form and Content of MPRE 1. What is tested? a. Main source of rules 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 6-12%: Competence & Malpractice 2-4%: Duty to the Public 10-16%: Litigation 2-8%: Judicial Conduct 2. How is it tested? 60 multiple-choice questions 10 “test” questions a. Structure of questions Answer format: Yes, Yes, No, No No “none of the above” or “A and B only”
Transcript
MULTISTATE PROFESSIONAL RESPONSIBILITY EXAM (MPRE) PROFESSOR MARK D. YOCHUM
DUQUESNE UNIVERSITY SCHOOL OF LAW
INTRODUCTION
A. Form and Content of MPRE
1. What is tested?
a. Main source of rules
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
2) Bring a ___________________________________________________
3) ____________________________________________
B. Overview of ABA Model Rules of Professional Conduct
1. Rules and Comments
o The Rules are the law o The Comments are suggestions
2. Preamble and Scope
3. Mandatory v. Aspirational
o Mandatory rules (“Rule rules”)
Tell you what to do and what not to do Violation of these rules can produce ______________________________________.
o Aspirational rules
Tell lawyers what we ___________________________ to do
o “Must” rules vs. “should” rules
C. Key Definitions
• Two primary forms of discipline of an attorney: ________________________ or _____________________________________
o Censure: someone yells at you
Privately by the disciplinary authority Publicly by the Supreme Court
o Disbarment: _______________________ of license to practice law
Long-term suspension (more common)
• May: Means __________________; permissive
o The lawyer has options.
• Non-disciplinary sanctions
o _________________________________: thrown out of representation of a particular client o _________________________________: Usually, malpractice o ________________________________________
o Key: binding ____________________________________
Example 1: Certain administrative agencies
• Law Firm: all forms of legal groups
o Includes: _____________________________ law offices, insurance company law offices, _____________________________________ office, public defender office
o Facts and circumstances:
No factor is dispositive Office Sharing Sharing fees Only authorized legal entities can practice law
• Writings/Informed Consent/Confirmed in Writing
o Writing can be electronic o Informed Consent
Requires _________________________________________________ and ___________________________ • Confirmed in writing • Consent may sometimes be oral
Example 2: Disorderly conduct: ______________________
o Disqualifying crimes involve _________________________________ (crimen falsi)
Example 3: Perjury, bribery, fraud, etc.
Increased concern with crimes associated with drug and alcohol addiction
o Failure to disclose even non-disqualifying crimes can result in disqualification o Bar examiners are increasingly concerned with debt.
Existence of debt is not disqualifying Main concern is making reasonable efforts to pay debts as they come due
3. Residency: No residence requirement for admission—a Constitutional issue
4. Truthfulness: No lying on the application for bar admission or law school admission
5. Exam: Passing score
6. How do these come up?
o Admissions issues will present in one of two ways:
1) Permission to _____________________________; and
2) Permission to _______________________________ cases
o Permission to sit cases arises when an issue is discovered ____________________ the exam o Permission to enter cases arise ________________________ the exam
Both are treated the same way
o Penalty is usually ___________________________________
C. Regulation after Admission
• Various ways in which admitted attorney can be subject to discipline
1. Violation of the ____________________
2. _____________________________ acts that touch on attorney’s honesty or fitness to practice
Example 4: Speeding likely does not go to honesty or fitness to practice
Example 5: Bribery, perjury, theft from clients, etc. are likely to go to honesty or fitness to practice
3. ________________ or _______________________, even if not criminal
o Fraud Upon the Court: _______________________ to the court
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 and includes D.A.’s office, corporate staff, & public defender’s office.
Partners must make reasonable efforts to ensure that the _________________________ and _______________________________ employees (e.g., secretaries and paralegals) comply with the Rules.
b. Compliance
Must have ____________________________ in place to ensure compliance
Example 6: It is a violation for a firm not to have conflict-check procedures in place, even if there is no conflict.
Example 7: Systems to preserve confidentiality of client records.
c. Non-Professional Employees
Any non-lawyer that works with the law firm (employee, independent contractor, 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 ____________________________________________________.
Example 8: Boss says file a frivolous complaint
Example 9: Boss finds out you filed a frivolous complaint and says “good job.”
Example 10: Boss finds out you filed a frivolous complaint and does nothing.
o Responsibility for conduct of non-professional employees is exactly the same
3. No Nuremburg Defense
o Subordinate lawyers cannot defend by saying, “I was only following orders.” o Only a ______________________________ order by a supervisor is a defense.
Example 11: Boss says file a frivolous complaint. This is no excuse for the filing attorney unless the boss had some good reason for filing.
E. Out-of-State Conduct
• Out-of-state conduct can expose you to discipline at home.
Example 12: Perjury in _______________________________ produces discipline in __________________________.
• Conflict of Law: Which law applies (other than the home state)?
o Lawyer’s belief: conduct must conform to the rules of the jurisdiction in which the lawyer reasonably believes his conduct will have a _______________________________________ effect
F. “Squeal” Rule
• Lawyer is required to report violations to disciplinary authorities
o Reporting lawyer has actual knowledge of substantial violation o Violation goes to a lawyer’s substantial ____________________________,
________________________________, and _______________________ to practice law.
Example 13: Lawyer who brings a successful suit against another attorney for stealing client’s funds has duty to report that attorney.
• Same obligation for bad judicial conduct
G. Out-of-State Lawyers
• May practice in a jurisdiction on a temporary basis
a. Pro hac vice admission
There must be a “_____________” (dispute).
Note 1: Also applies to mediation and arbitration
b. Association with ________________________________
Local counsel must actually participate Cannot be a mere silent partner
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
J. Sale of Practice
1. Sale of practice to other lawyers is permitted:
1) Must ___________________ practice,
2) Give _________________ to the client, and
3) Sell the practice to ____________________
Note 3: May sell whole practice or one area only
o Cannot be an increase in _____________________ associated with sale
2. Start back up methods
1) __________________________ counsel
2) ________________________
3) _________________________ area of law
4) __________________________ change in circumstances (illness, financial difficulty)
K. Restrictions on Practice
• No covenants ________________________________ with other lawyers.
o Exception: practice sale
Note 4: Not allowed in settlements, either.
THE CLIENT-LAWYER RELATIONSHIP
A. No Duty to Represent Clients
• No duty to represent a client
o Exception: Court appointments, however may be declined for cause o Sufficient cause: not being paid; violation of rule of professional responsibility, commission
of a crime
B. Duty to Reject a Client
• Duty to reject client is _______________________________ with mandatory withdrawal.
C. Attorney-Client Relationship
• Triggering Event: formation of an attorney-client relationship triggers civil and ethical responsibilities
Example 19: Tort victim consults an Attorney who tells victim he has no case. There was no written agreement and no fee was paid. Has an attorney-client relationship been formed?
1. Requirements
o No need for fee or agreement to create the relationship
2. Type of test
o Test is not contractual o Test is a tort or ________________________________ type test
3. Formation test
o Would a _______________________________________ determine that an attorney-client relationship has been formed?
Example 20: Could a jury conclude that the relationship had formed?
4. Prevention of attorney-client relationship
o _______________________________. o Make clear to the prospective client that you are not 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 21: Lawyer will only handle tax matters.
Example 22: An individual who caused an automobile accident while driving drunk goes to a lawyer. The client is charged with the drunk driving, but also vehicular homicide. The lawyer says, “I don’t do homicide.”
o Scope cannot be so limited as to create ineffective representation.
2. Communication with client
o Must tell the client everything the client needs to know to make an informed decision o Settlement offers must be communicated to client o Exception: A prior agreement with client concerning a limitation
Example 23: Client will not accept less than $1,000,000. If an offer is less than $1,000,000, Lawyer need not convey lower offer to client.
Must get ________________________________ to withdraw, even if withdrawal is mandatory
2. Permissive Withdrawal (May)
a. Harmless withdrawal
May withdraw even if client objects so long as there is no harm to the client.
Example 26: Fire client for a better client
b. Harmful Withdrawal
1) “________________________________________” client is pursuing crime or fraud and the lawyer’s ____________________________ were used in the client’s crime or fraud.
Example 27: Client is using lawyer-drafted contract for fraudulent purposes
2) Client’s action is _________________________ to attorney
Example 29: Lawyer wins suit for Client and the proceeds of the judgment are placed in Client’s Escrow Account. Client’s medical insurer asserts a claim on those funds.
Third-party dispute as to distribution of funds: Attorney must _____________________ disputed funds until the third-party dispute is resolved
FEES & EXPENSES
A. Reasonable fees
Example 30: Creditor seeks recovery on a $100,000 note. Lawyer knows that the work is the same as seeking recovery on a $10,000 note. Can Lawyer charge more? This depends!
• Factor test to determine the reasonableness of rates
o The reasonableness trumps any contract o Fees applicable to FRCP 11 sanctions are subject to _______________________________
Court review also applies to other fees
Example 31: An estate lawyer might have fees reviewed by the trial court in charge of estate administration.
1. Factors:
1) __________________________
Example 32: Hourly rate. You cannot get more than what you originally contracted for.
• Expenses should also be explained and set forth at the outset.
2) Novelty/Newness
• New to you? Education required; may not be reasonable to charge as much • New to everyone? Might be reasonable to charge a little more
3) Amount in controversy
• More in controversy: More _____________ = more ____________
4) Precluding employment
Example 33: Paying a lawyer to conflict out the superstar lawyer
o Exception: Contingency fee agreements must be in writing.
Contingency fees often mean a percentage of the amount of recovery. Never allowed in ____________________________ or domestic and family law cases Always must be ____________________ by the client Must have _______________________________ methodology for fees and expenses
B. Retainers
1. Main question: Whose money is it?
2. All client money must be kept separate
1) All unearned legal fees must be placed in an ______________________ or ____________________ account and unearned fees must be returned.
2) All ____________________ advanced to the lawyer must also be placed in escrow.
3) Accounts of lawyer and clients must be kept separate.
4) Small accounts (IOLTA accounts) may be allowed by a particular state
C. Interests in client as a fee
Example 34: Lawyer takes stock in Client Corporation instead of a cash fee.
Example 35: Lawyer takes a mortgage on client’s property to secure payment of a cash fee.
• Interest in 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:
1) Terms must be in __________________________
2) Terms must be _____________________ and ______________________________
3) Attorney must advise client ____________________________ the prudence of hiring independent counsel to review the agreement
4) _________________________________________, in writing, signed by the client
D. Fee sharing
1. With other lawyers
Example 36: Lawyer 1 refers Client to Lawyer 2. Lawyer 2 “kicks-back” to Lawyer 1 a portion of his fee. Is this allowed?
o The referring attorney may receive a portion of the fee so long as:
1) Overall fee is __________________________ to the client;
2) Fee-sharing arrangement is _____________________________ to client; and
3) Referring lawyer provides actual ____________________________ or joint representation.
2. With non-lawyers
o Legal fees can be shared only among ________________________________.
E. Fee disputes
• Arbitration is suggested in many jurisdictions, but not required.
PRIVILEGE & CONFIDENTIALITY
A. Duty of Confidentially
• Rule: _________________________ information learned relating to the representation must be kept in confidence (even if the rest of the world knows it).
• Includes even who you represent: client’s identity
B. Distinguish Attorney-Client Privilege
1. Attorney-client privilege is more limited than duty of confidentially.
o Attorney-client privilege applies to information which a court will not force you to reveal o Applies only to:
2) Information actually ____________________ confidentially to attorney; and
• Presence of third party may destroy privilege
3) Information actually ____________________ confidential.
o Applies to speech, but not to objects
Example 37: Client, heated and angry, comes to attorney. Tells attorney, “I shot my wife” and lays a smoking gun on attorney’s desk. Client’s statement to attorney, “I shot my wife,” is privileged, but the smoking gun used to shoot wife is not privileged.
o Inadvertent Disclosure and Waiver
Example 38: Meta data may include hidden information concerning the history of the document.
b) Lawyer must believe it is necessary to prevent substantial ___________________________________;
c) For which ___________________________________________ are used
Example 44: Client is embezzling from company using lawyer’s services
o Or, to prevent, mitigate, or rectify:
a) Substantial financial harm;
d) Caused by a client's completed criminal act or fraud;
e) In which the lawyer’s services were used
o Distinction: Lawyer can represent criminals post-crime.
Exam Tip 2: If you are disclosing a client’s acts to prevent bodily harm, lawyer services are not required. To prevent financial harm, lawyer’s services must be involved. Required to disclose if failure to disclose would assist the client in criminal activity.
5. Controversies with lawyers or disciplinary proceedings; and
Example 45: Fee dispute with client; disciplinary matter
6. ________________ ordered disclosure;
7. Necessary to discover conflicts
F. Duration
• The duty lasts _______________________, survives death of the client and of the lawyer • An estate might be able to consent to disclosure, but not clear
G. Education
• The use of information for educational purposes is allowed, as long as the client’s identity is not revealed, and the listener cannot determine who the client is.
H. Prospective Clients
• Entity representation (corporation)
o The entity is the client, but must communicate with a representative o Representatives are the control group (managers, board of directors, etc.)
• Communications from prospective clients
o Information must be held in confidence if lawyer invited communication o Screening is available.
2) Lawyer must have a ____________________________________ representation will not be adversely affected by representation of other client; and
3) ________________________________ clients must waive.
Example 48: Passenger and driver: Normally, this would be fine. But, if facts develop indicating the driver is at fault, the passenger may want to sue his own driver. All clients would have to waive this conflict.
• Applies to conflicts between current clients and conflicts between a client and former client
D. Former Clients
1. General rule
o An attorney cannot currently represent a client in the same or ___________________________________________ matter that the attorney has represented a former client.
2. Objective test for “substantially related” matter
Example 49: Gulf Oil case: Mr. Bigsby worked for the Gulf Oil Corporation in uranium leases. He then leaves Gulf Oil and joins a large law firm. That law firm is suing Gulf Oil for uranium price-fixing. Gulf Oil sought to have Mr. Bigsby’s firm removed from the case.
o Gulf Oil objective test
1) What was the _________________________ of the prior representation?
2) Could lawyer have learned information?
3) Would that information be _________________________ in the current litigation?
Exam Tip 3: This is objective. No testimony about what lawyer really knew because such disclosure would breach duty of confidentiality.
o If true, there is an irrefutable presumption that a conflict exists.
E. Personal Interest of Lawyer
1. Business dealings or acquisition of an interest in client or client’s property (from above);
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: Husband is the prosecutor; wife is the defense attorney.
4. No acquisition of __________________________________ until the representation of client concludes;
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.
I. Prospective Clients
• Information learned from a prospective client can create conflict.
Example 56: Husband (“evil client”) talks with Lawyers about obtaining divorce from Wife. After laying out all the facts, Husband informs lawyers that he will not be retaining Lawyers’ services. The disclosures conflict those lawyers out of representing Wife.
• Avoid conflict with the entire firm if:
o Immediate screening of lawyer who dealt with prospective client from rest of firm
• Conflict exists if the attorney solicits information from prospective client
o An unsolicited communication from a prospective client does not trigger this conflict
J. Third-Party Interference
• The client is the client, not the third-party payor
Example 57: Insurance company that pays attorney’s fee.
• Three forms of impermissible interference with attorney’s independent representation of client:
1) _______________________ control (e.g., task approval system);
2) __________________________ control (e.g., demand to see all case related information);
3) ______________________________ control (e.g., regulation of nature and amount of settlement).
• Client can consent to these forms of improper influence • Agreements to eliminate or limit malpractice are not valid.
K. Organization as a Client
1. What?
o “Organization” includes corporations and other entities
2. Who is the client?
o Lawyer represents __________________________________ not its constituents.
o Joint representation of organization and its constituents is permissible.
3. Control group
o The principal managers of organization o May have joint representation of this group.
4. 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.
____________________________________: lawyer may have to go to the board.
o If the organization does not correct the matter, the lawyer may _____________________.
“__________________________ withdrawal” allowed
COMPETENCE, LEGAL MALPRACTICE, & OTHER CIVIL LIABILITY
A. Professional Competence
1. Basic rule: Lawyers must be competent.
2. Malpractice v. Ethics Violation
o Malpractice ≠ discipline; discipline ≠ malpractice o Key distinction: Unlike malpractice, discipline does not require _______________________.
Example 58: The failure to have a conflict-check system is a violation under the code, but would not necessarily subject you to malpractice.
a. Malpractice = legal liability
1) Conventional malpractice is coextensive with negligence
• Basic Tort test: duty, breach, causation, damage • Duty arises out of attorney-client relationship
2) Breach of fiduciary relationship (such as conflict)
Example 59: Attorney represents both a landlord and tenant in a dispute.
3) Breach of Contract for failure of performance
• Damages are usually limited to recovering fees
b. Burden of proof
Malpractice, fiduciary, and contracts: __________________________________ of the evidence
c. Violations of the RPC do not set up a cause of action.
Violation of the RPC may be _____________________________ of a breach of duty.
3. Duty to decline or withdraw
Lawyer must decline if not competent or cannot become competent without unreasonable delay.
4. Limits on Recovery
o Lawyers cannot contractually limit recovery. o Can enter an agreement limiting the lawyer's malpractice liability ONLY if the client is
represented by independent counsel
5. Settlement with unrepresented clients
o Must tell client when you have made an error.
B. Duties to non-clients
1. ________________________________ beneficiaries
Example 60: The heir that gets mistakenly cut out of the will. Heir has an action even though he did not have an attorney-client relationship with the attorney.
2. Unauthorized acts
Example 61: A lawyer who enters into an unauthorized contract on behalf of the client may be liable to the third party on that contract.
C. Referrals/Outsourcing to Other Lawyers outside your firm
Must __________________________________________________ other lawyer will contribute
D. Other torts (Defamation and Malicious Prosecution)
• Defamation defense: Privilege when publication is related to proceeding in which lawyer is counsel
• Malicious defense: _________________________________ for the action brought by the attorney
E. Crimes: You will do the time
Advice about crime is not criminal if _______________________________________________
• When a lawyer “knows” evidence submitted was false or, typically, when perjury has been committed or is about to be committed
Example 66: Criminal defendant says to his lawyer, “I am going to testify that I was in Guatemala when the murder took place, but in fact, I did it.” What is the lawyer required to do?
1) Lawyer must ____________________________ with the witness (attempt to dissuade) to correct the falsity
2) Lawyer may take the matter to the court and seek to _______________________;
• Withdrawal requires _______________________ permission.
3) When withdrawal is denied (and it usually will be), lawyer can present “trial by narrative”
• Defendant’s testimony without participating (no questions or objections)
• A lawyer has a duty to correct errors (false testimony, etc.).
o Duty to correct ends when the _____________________________________.
E. Tampering
• Cannot tamper with ____________________________ or ______________________________
Example 67: “Smoking gun” must be turned over to police. Police may not say that the gun was obtained from the lawyer.
• No destruction of evidence (including moving). • No payment of witness except for the cost of coming to proceedings.
o Exception: __________________________ witnesses can be paid. o No contingency fees for experts
F. “Ex parte” communications
1. Generally
o No “ex parte” communications by lawyer. o There must be a “_________________” (must have both parties) o Applies to pending and impending litigation
2. Persons with whom lawyer cannot communicate ex parte:
o Judges, jurors, the prospective venire (potential jurors). o Watch post-trial contact with jurors (survey)
o Regulated by local court rules o Typically requires judicial permission o Cannot talk to the juror about inadmissible evidence
4. Out-of-court communications (talking to the media)
o Media communications are prohibited if it would have the effect of materially ________________________________________ the proceedings.
o Exception: A lawyer may respond in the media to protect client from publicity ____________________________________ by the client or lawyer.
Example 68: The defense may respond after D.A. speaks to media.
G. Communications with Represented Persons
1. General rule
o Lawyer (or lawyer’s agent) may not communicate with represented people. o Lawyer must have ________________________________ of representation. o Once lawyer knows a person is represented, lawyer must deal with attorney.
2. Entities
o Presume that members of the control group of an entity are represented by the lawyer for the entity.
3. Admissions
o Lawyer cannot 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 attorney
H. Communications with Unrepresented Persons
1. Generally
o You cannot ____________________________________ the unrepresented person.
Example 69: Suggesting you are not interested in the case.
Example 70: Concealing the fact that you are a lawyer in the case.
o Special rule: Undercover attorneys
Use of undercover agent is permitted, particularly in criminal case and in civil litigation, where information cannot be obtained by other means.
o Recipient must ___________________________________________ o No prohibition on recipient reading email or using it. o MetaData: inadvertent communication if recipient knows or reasonably should know it has
been received
I. Media Contact Rule
• “The practice of law is a privilege burdened.”
1. Prejudice
Prohibition on statements to media that have a substantial likelihood of prejudicing the proceeding
2. Exceptions:
1) Protect from other publicity
2) General facts of the case and procedure (how litigation will proceed), scheduling, or warning to public
• Specific prohibited circumstance: Bad comments about _____________________________
Example 72: Lawyer states in the media that Witness X is a liar.
DIFFERENT ROLES OF THE LAWYER
A. Candid Advisor/Third-Party Evaluation
1. Overview:
o Client asks attorney to evaluate matter. o Attorney’s evaluation will be given to the third party.
Example 73: CPA request asking attorney to discuss litigation or review documents
2. Basic rule:
o Attorney must __________________________________________ to third party. o If information is bad, attorney must tell client before communicating unfavorable
information
B. Neutrals
• Neutral must be ________________________________
Example 74: Arbitrator, mediator, etc.
C. Prosecutors
• Prosecutors are subject to the following special rules that are constitutionally mandated:
1) Must have ___________________________________ to bring a criminal action;
2) No advantage of ___________________________________ persons;
3) Must disclose ____________________________________ information;
4) No subpoena of a lawyer in order to destroy _______________________________________;
5) Watch advocacy in the media; and
6) Required to seek a _______________________ if new evidence is clear and convincing.
D. Safekeeping Property
• General rule: Lawyer must keep his own property ______________________________ from client’s property.
E. Advertising
• ___________________ forms of communications are considered advertising.
Example 75: Not only TV or print ads but also mailings, business cards, letterhead, signs on the door, web sites, etc.
1. Restrictions on advertising
a. May not be ______________________ or ______________________________
Example 76: Lawyer: “I win ‘em all!”
b. Unverifiable self-promotion
Example 77: “I am the greatest lawyer on Earth.”
c. Fields of practice can be communicated, but cannot call yourself a certified specialist, unless you are a certified specialist.
Editor's Note 1: The lecturer slightly misstates this rule. A lawyer is generally permitted to state that the lawyer is a “specialist,” practices a “specialty,” or “specializes in” particular fields. Such communications are subject to the “false and misleading” standard applied in Rule 7.1 to communications concerning a lawyer’s services, but are not uniformly prohibited. However, a lawyer cannot claim to be a “certified specialist” unless they are actually certified.
Example 78: “I am a tax lawyer.”
Example 79: Not permitted to say, “I am a certified tax specialist,” unless certified. Usually requires a special course of some kind, approved by a qualified agency.
• Aspirational rule (not mandatory): ___________________ hours of service per year
Editor's Note 3: The aspirational goal is 50 hours per year.
Example 83: Legal Services Organization, Participation in bar association, legal aid, reform groups
• Conflicts may arise between your pro bono and legal services work and your regular work.
o Special conflicts rules apply:
1) Conflicts rules do not apply unless the lawyer is ____________________ of them.
2) “Special Material Benefit Disclosure” Rule:
• Lawyer permitted to disclose the existence of a conflict • Duty of confidentiality prevents disclosure of client’s identity.
Example 84: I have a client with an interest in this pro bono activity but I cannot tell you who the client is.
H. Limited Legal Services
• Tension between providing public with legal services and lawyer’s potential liability for such services.
• These services are nevertheless allowed
Example 85: Legal hotline
I. Politics
• Campaign contributions
o Solicitation of campaign contributions and participation in political work is allowed. o No ______________________ o Cannot make contributions in exchange for an appointment or for favor in a lawsuit. o Applies to all offices, not just judicial offices.
1. Comments on candidate’s qualifications
o Not permitted to __________________ about candidate’s fitness for office. o NY Times v. Sullivan: The 1st Amendment protects speech against public figures.
• The third degree—Judge is within the third degree of relationship
4) ______________________ for the judge or the judge’s family
5) Political contributions by one party generally are _______________ grounds for recusal
• Exception: Contribution in _________________________ of what is legal
6) Judicial conflict:
a) Judge has previously served as a prior lawyer,
b) ___________________________, or
c) 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
• As with lawyers, judges are obligated to report known violations of the rules by another lawyer that implicates the lawyer’s honesty, trustworthiness, or fitness as a lawyer
• With regard to impairment, a judge with merely a reasonable belief that a lawyer is impaired may make some disclosures to facilitate treatment.
Editor's Note 4: When a judge has a reasonable belief that a lawyer is impaired by drugs or alcohol, the judge must take appropriate action, which might include referral to a lawyer assistance program.
J. Extra-Judicial Activities
1. Overall theme
o Extra judicial activities cannot ___________________________________________________ of the judge.
2. Character witness
o Judge cannot be a voluntary ____________________________ witness. o Judge can be a character witness if ___________________________.
3. Fiduciary
o No _____________________________ appointments (e.g., trustee) o Exception: _______________________ matters
May act as a fiduciary with respect to a family matter
4. Practice of law
o No _____________________________ of law o Exception: ___________________ practice
5. Outside business
o No ________________________ business o Exception: _________________________ business
K. Gifts to Judges
1. Non-reportable gifts
o Gifts to judges are permitted __________________________________________ if in the ordinary course.
Example 90: Book from publisher which is supplied on a complimentary basis for official use.
2. Reportable gifts
o Large gifts are subject to reporting rules. o Reimbursement for attendance at judge’s convention (Education vs. Recreation)
Reportable gift if purpose of convention is _______________________________. Not reportable gift if purpose of convention is ________________________________.
L. Politics for Judges
1. Easy rule:
o _____________________ of politics—including endorsement of political candidate, even family members
2. Impartiality—pledges, promises, and commitments
o No commitments o Candidate for judicial office: __________________ vs. ____________________
General comments about issues — permitted
Example 91: “I believe in gun control.”
Specific comments about parties — prohibited
Example 92: In the case of Plaintiff v. Gun Manufacturer, “The Plaintiff should win.”
