MPRE & Exam Preparation : Lightening Round Slides

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MPRE & Exam Preparation : Lightening Round Slides. Professors Russ Pearce and Laurel Terry ( Lterry@psu.edu ) Spring 2014. UPL Lightning Round 2 – IIA (1). Is the law prohibiting unauthorized practice found in the Rules? Yes and No. [UPL rules prohibit it but Rule 5.5(a) also applies]
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MPRE & Exam Preparation: Lightening Round SlidesProfessors Russ Pearce andLaurel Terry (Lterry@psu.edu)Spring 2014UPL Lightning Round 2 – IIA (1)
  • Is the law prohibiting unauthorized practice found in the Rules?
  • Yes and No. [UPL rules prohibit it but Rule 5.5(a) also applies]
  • Rule 5.5 (governs unauthorized practice by lawyers) (but see Comment “[2] The definition of the practice of law is established by law and varies from one jurisdiction to another.” )
  • Criminal and Civil Liability
  • How can lawyers engage in unauthorized practice of law?
  • Rule 5.5 (a &b)
  • What case provides the general rule for permissible nonlawyer practice?
  • Brumbaugh
  • What Rule explains the lawyer’s obligations in supervising nonlawyers?
  • Rule 5.3
  • What Rule governs sharing fees with nonlawyers?
  • Rule 5.4
  • UPL Lightning Round – 2-IIA (2)
  • What Rules govern ancillary businesses?
  • Rule 5.7 & Rule 1.8
  • What Rule determines whether a lawyer not admitted to practice in a particular jurisdiction is engaged in unauthorized practice?
  • Rule 5.5 . [See also pro hac vice rules for litigation]
  • What Rule provides choice of law rules for multijurisdictional practice?
  • Rule 8.5(b)
  • UPL Lightning Round 2-IIB (1)
  • What is the general rule for determining whether nonlawyer practice is permissible?
  • Nonlawyers can help people fill in forms but cannot offer advice.
  • The software exception?
  • Software is an exception but is permitted.
  • Common-sense rule for determining when lawyers can work with nonlawyers?
  • It’s acceptable so long as lawyers are the bosses of the nonlawyers and do not share fees.
  • Exceptions to Rule 5.4?
  • lawyer’s estate (temporary fees, ownership interest)/purchase of practice of deceased, disabled, disappeared lawyer
  • compensation or retirement plan
  • court-awarded fees with nonprofit organization
  • not-for profit organizations; e.g., public interest groups
  • .UPL Lighting Round 2-IIB (2)
  • What is an ancillary business?
  • Rule 5.7 (b) (“services that might reasonably be performed in conjunction with and in substance are related to the provision of legal services and that are not prohibited as unauthorized practice”) Comment 9 (“include . . . Title insurance, financial planning, accounting, trust services, real estate counseling, legislative lobbying, economic analysis, social work, psychological counseling, tax preparation, and patent, medical, or environmental consulting”)
  • When can a lawyer engage in ancillary business?
  • Always. Rule 5.7 only governs when to apply the Rules to the activity.
  • UPL Lighting Round 2-IIB (3)
  • Explain Rule 5.5 in one sentence.
  • Lawyers can work in jurisdictions where they are not admitted so long as their work is temporary or they are working in-house for an organization or the government.
  • Where does pro hac vice fit in?
  • Falls within temporary exemption but creates exception to permanent exception for in-house. In litigation, you have to apply for pro hac vice admission once the case is filed.
  • Explain Rule 8.5 in three sentences
  • A lawyer is simultaneously subject to the disciplinary authority of the jurisdiction where admitted and where she offers legal services. The governing rules are those of tribunal where matter is pending or the jurisdiction where conduct occurred unless predominant effect of conduct is different jurisdiction, in which case that jurisdiction’s rules govern. Safe harbor: no discipline if lawyer “conforms to the rules of jurisdiction” where “lawyer reasonably believes . . . predominant effect . . . will occur.”
  • Creating Lawyer-Client RelationshipLightning Round I
  • Where do we find the general rule for determining whether a lawyer-client relationship has been created?
  • Restatement §14
  • What Rule says whether a lawyer can seek to decline a court appointment?
  • Rule 6.2
  • What Rule defines the client of a lawyer for an organization?
  • Rule 1.13(a)
  • What case discusses the application of civil rights laws to the creation of a lawyer-client relationship?
  • Nathanson
  • Creating Lawyer-Client RelationshipLightning Round II
  • What is the general rule for determining whether a lawyer client relationship has been created?
  • RS 14: “when a person manifests . . . intent that the lawyer provide legal services for the person” AND EITHER “the lawyer manifests . . . consent” OR “the lawyer fails to manifest lack of consent [where] the lawyer knows or reasonably should know that the person reasonably relies on the lawyer to provide the services.”
  • Who is the client of a lawyer for a organization?
  • Rule 1.13(a) “the organization acting through its duly authorized constituents”
  • What complications can arise in representing an organization?
  • Restatement §14
  • Rule 1.13 (g) “A lawyer representing an organization may also represent any of its directors, officers, employees, members, shareholders or other constituents, subject the” conflicts rules. If consent required, appropriate official other than that individual or shareholders must decide whether to provide.
  • Terminating Lighting Round - I
  • What Rule section requires termination of l-c relationship?
  • Rule 1.16 (a)
  • What Rule section permits termination?
  • Rule 1.16 (b)
  • What Rule section describes the court’s role?
  • Rule 1.16 (c)
  • Terminating Lightning Round II
  • What are the three situations where a lawyer must withdraw?
  • Rule 1.16 (a) – client discharge
  • Violation of rules or law
  • Lawyer disability
  • When can a lawyer withdraw for no reason?
  • “without material adverse effects on the interests of the client”
  • Why is a good reason under Rule 1.16 never sufficient when a matter is in court?
  • Rule 1.16 (c): Need court permission.
  • Terminating Lightning Round II-2
  • Complete the following: to explain the difference between Rule 1.16 a and b with regard to a client’s criminal or fraudulent action: the difference between must and may is the difference between _____ and _______
  • knowledge and reasonable belief
  • To withdraw, must a lawyer know that “a client persists in a [criminal or fraudulent] course of action involving the lawyer’s services?
  • No. Reasonable belief. Rule 1.16 (b)(2)
  • Must a lawyer withdraw where “the client has used the lawyer’s services to perpetrate a crime or fraud.”
  • No. May. Rule 1.16 (b)(3)
  • Terminating Lighting Round II-3
  • On what grounds can a lawyer withdraw if she find herself in disagreement with her client?
  • Some Rule 1.16(b) examples: (4) “repugnant” or “fundamental disagreement”; (6) “rendered unreasonably difficult ;(7) “other good cause”
  • When may a lawyer withdraw when a client does not pay?
  • May. Rule 1.16 (5) client fails substantial obligation and receives reasonable warning; or (6) “unreasonable financial burden”
  • Competence Lightning Round I
  • What Rule states the ethical duty of competence?
  • Rule 1.1
  • What Rules state the lawyer’s obligation to ensure the competence of colleagues and coworkers?
  • Rule 5.1, 5.3
  • What determines the legal duty of competence?
  • Common law of malpractice
  • What Rule governs whether a lawyer may limit (before) or settle (after) malpractice liability?
  • Rule 1.8 (h)
  • What is the leading case that states the test for ineffective assistance of counsel?
  • Strickland, interpreting the constitutional right to counsel
  • Competence Lighting Round II
  • What is the lawyer’s ethical duty of competence?
  • Rule 1.1: “legal knowledge, skill, thoroughness and preparation reasonably necessary”
  • Is it objective or subjective?
  • objective
  • What is the emergency exception?
  • Rule 1.1., comment 3: can assist even where “lawyer does not have the skill ordinarily required where referral to or consultation or association with another lawyer would be impractical” but “assistance should be limited to that reasonably necessary in the circumstances”
  • Can a lawyer limit representation?
  • Rule 1.2(c): informed consent and reasonable limitation
  • What is the malpractice standard?
  • reasonable lawyer under the circumstances
  • Is it objective or subjective?
  • Objective
  • Competence Lighting Round II-2
  • Can a lawyer commit malpractice in meeting with a prospective client?
  • Yes: Malpractice = reasonable care under circumstances
  • How do the standards for limiting and settling malpractice claims differ?
  • Rule 1.8 (h) (1) prospective limitation requires independent representation
  • Rule 1.8 (h) (2) settlement: advise in writing desirable seek independent representation and provide reasonable opportunity to do so
  • What is the ethical duty to ensure the competence of colleagues and co-workers?
  • Rule 5.1 (lawyers) and Rule 5.3 (nonlawyers): managers “reasonable efforts” measures “reasonable assurance” all lawyers in compliance; supervisors “reasonable efforts” ensure compliance; responsible for rule violation if order or ratifies conduct OR knows and fails to take reasonable remedial action if possible to do so.
  • Rule permit suing a lawyer for malpractice in settling a case?
  • Yes
  • Competence Lighting Round II-2.5
  • When is a lawyer liable for the malpractice of colleagues or co-workers?
  • respondeat superior; partnership
  • Does ineffective assistance occur when a lawyer commits malpractice?
  • No. This doctrine uses the Strickland test:
  • 1. fails to meet reasonable lawyer standard; and
  • 2. prejudice
  • Does the modern rule permit suing a lawyer for malpractice in settling a case?
  • Yes
  • Decision-Making Lightning Round I
  • What Rule provides the general standard for allocating decision-making?
  • Rule 1.2 (a)
  • What Rule governs limiting a representation?
  • Rule 1.2 (c)
  • What Rule prohibits lawyer assistance to client conduct that is criminal or fraudulent?
  • Rule 1.2 (d)
  • What Rule governs representation of a client with diminished capacity?
  • Rule 1.14
  • What case provides the standard for determining when failure to follow client instructions is ineffective assistance?
  • Jones v. Barnes
  • Decision-Making Lightning Round II
  • Does the ineffective assistance standard require a lawyer to follow the client’s directions?
  • It depends. See Jones v. Barnes. Lawyer controls strategy.
  • Can a lawyer offer moral counseling under the Rules?
  • Yes. Rule 2.1
  • How do the Rules generally allocate decision-making?
  • Rule 1.2(a): client: objectives; lawyer: means, w/consultation
  • What are the only civil and criminal decisions that are expressly those of the client?
  • Civil: whether to settle (Rule 1.2)
  • Criminal: plea, waive jury trial, testify (and appeal)
  • Decision-Making Lightning Round II
  • What’s the problem in distinguishing between objectives and means?
  • This distinction is not always clear
  • Will a lawyer face malpractice liability for following client instructions that are not the best strategy?
  • No if the lawyer explained the benefits of alternatives.
  • If client is a child, must you follow his instructions?
  • It depends. Rule 1.14. “(a)as far as reasonably possible, maintain a normal client-lawyer relationship” but (b) When the lawyer reasonably believes that the client has diminished capacity, is at risk of substantial physical, financial or other harm unless action is taken and cannot adequately act in the client's own interest,the lawyer may take reasonably necessary protective action, including consulting with individuals or entities that have the ability to take action to protect the client and, in appropriate cases, seeking the appointment of a guardian ad litem, conservator or guardian.
  • Decision-Making Lightning Round II
  • Can a lawyer agree to a limited representation that violates Rule 1.1?
  • Rule 1.2 (c) A lawyer may limit the scope of the representation if the limitation is reasonable under the circumstances and the client gives informed consent.
  • [7] an agreement for a limited representation does not exempt a lawyer from the duty to provide competent representation [but] the limitation is a factor to be considered when determining the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation. See Rule 1.1.
  • Finding Clients Lighting Round I
  • What Chief Justice provided a testimonial to a lawyer advertisement? (Ok not to know)
  • John Marshall
  • What President advertised as a lawyer?
  • Abraham Lincoln
  • What Rule (s) govern solicitation?
  • Rule 7.3, if permissible Rule 7.1
  • What Rule(s) govern advertising?
  • Rules 7.1-7.5
  • Finding Lightning Round II-1
  • What is the distinction between advertising and solicitation?
  • Solicitation is “in‑person, live telephone or real-time electronic contact solicit professional employment.” Rule 7.3. Advertising is marketing that does not fall within this definition.
  • Can a lawyer solicit business from:
  • In-house counsel?
  • A close friend?
  • A former client?
  • From anyone if the motive is not pecuniary gain?
  • Finding Clients Lightning Round II-2
  • Can truthful advertising ever violate the Rules?
  • Yes if it is misleading. Rule 7.1.
  • True or false: A lawyer can never make a reciprocal referral agreement.
  • False. Permitted if client informed, if not exclusive, and if with a lawyer or nonlawyer professional. Rule 7.2 (b) (4).
  • Can a lawyer ever indicate her specialty in an advertisement?
  • She cannot claim to be a “specialist” unless certified by state “approved” or ABA “accredited” organization. She can claim that she has expertise in a particular area of law. Rule 7.4.
  • True or false: A lawyer or law firm can never use a trade name
  • False. Rule 7.5 (a) (“if it does not imply a connection with a government agency or with a public or charitable legal services organization and is not otherwise in violation of Rule 7.1”).
  • Billing Clients Lightning Round I
  • What Rule generally governs fees?
  • Rule 1.5
  • What Rules have special application to attorney’s contingent fees?
  • Rule 1.5 9(a),(c), and Rule 1.8 (i)
  • What Rule provides guidelines for safekeeping and disbursement of fees and property?
  • Rule 1.15
  • What Rule governs gifts, financial assistance to clients, payment with equity, media rights, and financial ?
  • Rule 1.8 (c), (e), (a), and (d).
  • Fees Lightning Round II
  • Must all fee agreements be communicated in writing?
  • No. Rule 1.5 (b).
  • When may a lawyer take a proprietary interest in a litigation?
  • Contingent fee. Rule 1.8 (i)
  • Under what circumstances is a contingent fee permitted?
  • Must be reasonable (Rule 1.5(a)); signed writing that provides clear explanation of calculation and client’s responsibilities (Rule 1.5 (c)); prohibited representing defendant in criminal case or obtaining divorce or alimony (Rule 1.5 (d))
  • Can a lawyer accept an equity interest as payment for services?
  • Yes. Rule 1.5, Comment 4; Rule 1.8(a).
  • Fees Lightning Round II-2
  • Can a lawyer share fees with a lawyer outside her firm?
  • Maybe. See Rule 1.5 (e)
  • Can a lawyer advance financial assistance to a client?
  • Sometimes. See Rule 1.8 (e)
  • Can a lawyer accept payment from a third party?
  • Sometimes. See Rule 1.8 (f)
  • Can a lawyer always transfer money she has earned from a clients’ trust account to the lawyer’s account?
  • No. Rule 1.15
  • Confidentiality Lightning Round I
  • Where in the law do you find the attorney-client privilege?
  • Restatement 68 et. seq./Common Law/Draft FRE 501
  • What are the general elements of a-c privilege?
  • Communication
  • Made in Confidence
  • Between Lawyer and Client
  • For purpose of obtaining or providing legal assistance
  • Where do you find the duty of confidentiality?
  • Rule 1.6
  • What does it cover?
  • All “information relating to the representation of a client unlessthe client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation or the disclosure is permitted by paragraph (b).”
  • Corporate A/C Privilege
  • A/C Privilege
  • Communication
  • Made in Confidence
  • Between Lawyer and Client
  • For purpose of obtaining or providing legal assistance
  • Applied to Corporation?
  • Upjohn
  • Control Group (senior management)?
  • Corporate Employees
  • Upstream (possess info)
  • Downstream (advice)
  • Confidentiality Lightning Round II
  • Review: What are the elements of the a-c privilege?
  • Restatement 68/Common Law/Draft FRE 501
  • Communication
  • Made in Confidence
  • Between Lawyer and Client
  • For purpose of obtaining or providing legal assistance
  • Can it be waived selectively?
  • No
  • Can a court order protect disclosure of privileged material?
  • Yes. FRE 502(d).
  • What information does the duty of confidentiality cover?
  • Rule 1.6 has a VERY BROAD definition; covers all sources if related
  • Must you disclose your client’s plan to kill his spouse?
  • No. Rule 1.6 (b) is permissive.
  • What must you disclose?
  • Rule 3.3 and court order
  • Confidentiality Lightning Round II-2
  • What may you disclose?
  • (b) A lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary:(1) to prevent reasonably certain death or substantial bodily harm;(2) to prevent the client from committing a crime or fraud that is reasonably certain to result in substantial injury to the financial interests or property of another and in furtherance of which the client has used or is using the lawyer's services;(3) to prevent, mitigate or rectify substantial injury to the financial interests or property of another that is reasonably certain to result or has resulted from the client's commission of a crime or fraud in furtherance of which the client has used the lawyer's services;(4) to secure legal advice about the lawyer's compliance with these Rules;(5) to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client, to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved, or to respond to allegations in any proceeding concerning the lawyer's representation of the client; (6) to comply with other law or a court order; or(7) to detect and resolve conflicts of interest arising from the lawyer’s change of employment or from changes in the composition or ownership of a firm, but only if the revealed information would not compromise the attorney-client privilege or otherwise prejudice the client. Conflicts Lightning Round I
  • What rule governs concurrent conflicts of interest?
  • Rule 1.7
  • Successive [former client]conflicts?
  • Rule 1.9
  • Special conflicts?
  • Rule 1.8
  • Imputation?
  • Rule 1.10
  • Imputation for working as government lawyer?
  • Rule 1.11 [and Rule 1.12 for judge-types]
  • Conflicts Lightning Round II
  • How do you work through a concurrent conflicts issue?
  • Rule 1.7 (a) Threshold: Is there direct adversity or material limitation? If not, no worries under Rule 1.7. If so, go to Rule 1.7 (b)’s
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