Multistate Professional Responsibility Examination (MPRE) flashcards

While clients retain ultimate authority over the objectives of representation (e.g., settlement, plea), they can, with informed consent, permit the lawyer to make decisions regarding the 'means' by which those objectives are pursued (e.g., legal strategy, procedural tactics).

• Client controls objectives (Rule 1.2(a)).
• Lawyer controls means, but must consult with client.
• Client can delegate decision-making over means with informed consent.

Memory trick: Client sets the Compass, Lawyer steers the Ship (with client's nod).

As an advisor, a lawyer has a duty to provide clients with honest, straightforward counsel, including not only legal considerations but also practical, moral, ethical, and political aspects relevant to the client's situation.

• Advice should be unvarnished and realistic.
• May include non-legal factors.
• Essential for informed client decision-making.

Memory trick: Truthful counsel, clear and bold, a lawyer's duty, stories told.

A lawyer has an ethical obligation to assert the attorney-client privilege on behalf of the client when faced with a demand for privileged information.

• Privilege belongs to the client, not the lawyer.
• Lawyer must not voluntarily disclose privileged information.
• If compelled, lawyer must assert privilege and seek court ruling.

Memory trick: Privilege is Client's Shield, Lawyer Must Wield.

Even without forming a formal client-lawyer relationship, a lawyer owes duties of confidentiality and loyalty to a prospective client who consults with the lawyer about a potential representation. A lawyer cannot represent a materially adverse party in the same or substantially related matter if significantly harmful information was received from the prospective client.

• Confidentiality applies to prospective client information.
• Disqualification arises if 'significantly harmful' information is received.
• Screening and informed consent can sometimes cure the conflict (Rule 1.18(d)).

Memory trick: Even a 'Whisper' from a 'Prospect' can bind your tongue.

A lawyer acting as an evaluator must exercise independent professional judgment and decline to provide an evaluation if its terms would produce a report that is materially misleading or would violate the lawyer's ethical obligations.

• Evaluation must be compatible with other client relationships.
• Must not knowingly make a false statement of material fact or law.
• Cannot provide a materially misleading report, even if client requests it.

Memory trick: Truth's clear path, an honest view, no misleading report, that's what's true.

A lawyer may represent a new client whose interests are adverse to a former client in an unrelated matter, provided the matters are not substantially related and no confidential information from the former representation is relevant to the new matter.

• Must not represent against former client in 'same or substantially related matter'.
• Must not use confidential information to former client's disadvantage.
• Unrelated matters generally do not create a conflict.

Memory trick: Past Case, New Foe: Is the Bridge Burned or Just Different Roads?

A lawyer acting as an evaluator must ensure the evaluation is compatible with their other professional obligations and that their independence of judgment is not compromised, especially when the evaluation is for a third party.

• Avoids conflicts that impair objectivity.
• Ensures independent professional judgment.
• Relates to integrity of the evaluation process.

Memory trick: Independent thought, a truthful guide, no hidden bias, nowhere to hide.

Commingling occurs when a lawyer mixes client funds with their own personal or firm funds. This is a serious ethical violation, requiring client funds to be held separately in a client trust account.

• Client funds must be separate.
• Use a client trust account (IOLTA).
• No intent to misappropriate needed for violation.

Memory trick: Trust Account, Not My Account: Keep client cash safe and separate.

A lawyer acting as a third-party neutral must remain impartial and avoid giving legal advice to any unrepresented party, instead advising them to seek independent counsel if an imbalance of knowledge or power arises.

• No attorney-client relationship formed.
• Duty to explain role clearly.
• Cannot advocate for any party's interests.

Memory trick: Balance the scales, without a lean, a neutral's role, fair and keen.

A lawyer who lacks competence in a particular area of law may nevertheless undertake representation if they can acquire the necessary competence through reasonable preparation, or by associating with a lawyer who is competent in the field, provided the client gives informed consent.

• Competence can be acquired, not just pre-existing.
• Association with competent counsel is a valid method.
• Client informed consent is crucial for association.

Memory trick: Competence isn't just knowing, it's also knowing how to learn or who to call.

A lawyer must abide by a client's decisions concerning the objectives of representation, even if the lawyer believes a different strategy would be more beneficial, provided the client's decision is not illegal or fraudulent.

• Client sets objectives.
• Lawyer advises, but client decides.
• Cannot disclose confidential info against client's wishes (unless exception).

Memory trick: Client's Compass: They steer the ship, even if you see a better route.

A lawyer has a duty of candor to third persons, prohibiting the lawyer from knowingly making false statements of material fact or law, or failing to disclose a material fact when necessary to avoid assisting a client's criminal or fraudulent act. However, this duty does not generally extend to correcting a misleading statement made by an opposing party or counsel.

• Lawyer cannot make false statements (Rule 4.1(a)).
• Lawyer cannot assist client's crime/fraud (Rule 4.1(b)).
• No affirmative duty to correct adversary's misleading statements.
• Confidentiality (Rule 1.6) limits disclosure under Rule 4.1(b).

Memory trick: Speak Truth, Don't Enable Lies, But You're Not the Adversary's Editor.

A lawyer must withdraw from representation if the client insists upon taking action that the lawyer knows is criminal or fraudulent.

• Client insists on criminal/fraudulent act.
• Lawyer must withdraw.
• Not merely permissive, but mandatory.

Memory trick: Fraud Flag: If the client insists on crime, the lawyer must quit.

The duty of diligence applies equally to all clients, whether paying or pro bono. A lawyer must act with reasonable promptness and zeal in pursuing the client's interests.

• Diligence duty is universal, regardless of fee.
• Lawyer must pursue client's objectives with zeal.
• Workload or financial considerations do not excuse lack of diligence.

Memory trick: Diligent Lawyer, Dedicated Pursuit, No Excuses.

A lawyer may withdraw from representation if the client renders the representation unreasonably difficult, such as by failing to cooperate or communicate effectively.

• Client makes representation difficult.
• Withdrawal is permissive, not mandatory.
• Court permission may be required.

Memory trick: Cooperation Crisis: When the client stops helping, the lawyer can stop too.

A lawyer can provide competent representation in a new area of law if they acquire the necessary knowledge and skill through reasonable preparation, study, or by associating with a lawyer competent in the field.

• Competence can be acquired through reasonable preparation.
• Association with competent counsel is a valid method.
• Client must not be prejudiced by the learning curve.

Memory trick: Learn, Link, Lead: You can gain competence.

When a lawyer receives a document that appears to be privileged and was inadvertently sent, the lawyer has specific ethical duties to the sender.

• Applies when the lawyer knows or reasonably should know the information is privileged.
• The lawyer must promptly notify the sender.
• The lawyer must return, sequester, or destroy the information and not use or disclose it.

Memory trick: Privilege Accident: Notify, Return, Don't Learn.

When a lawyer reasonably believes a client with diminished capacity is at risk of substantial physical, financial, or other harm, the lawyer may take reasonably necessary protective action, such as consulting with family or seeking appointment of a guardian.

• The lawyer's role is to maintain a normal client-lawyer relationship as much as possible.
• Protective action should be the least restrictive necessary.
• Confidentiality still applies, but disclosure may be permissible to the extent necessary for protective action.

Memory trick: When the client's mind wavers, the lawyer's duty is a protective embrace.

A lawyer shall not solicit a substantial gift from a client or prepare an instrument giving the lawyer (or a person related to the lawyer) a substantial gift from a client, unless the lawyer or other recipient of the gift is related to the client. If a client insists on such a gift, the lawyer must advise the client to seek independent legal advice.

• Applies to 'substantial' gifts.
• Exception for family relationships.
• Independent legal advice is the key safeguard if the client insists.

Memory trick: Don't accept the 'Gift' if it 'Gifts' you a conflict.

Under Model Rule 1.2(a), the client has the ultimate authority to decide whether to settle a matter. The lawyer must abide by this decision after consulting with the client and explaining the implications.

• Settlement is an 'objective' of representation.
• Lawyer advises, client decides.
• Applies even if the lawyer disagrees with the client's decision.

Memory trick: The client holds the 'Target' for the case, the lawyer aims.

A lawyer's fee must be reasonable. A fee that is significantly lower than the market rate or the lawyer's usual rate is ethically permissible, as it benefits the client and is not considered 'excessive'.

• Fees must be reasonable, not excessive.
• Lower fees are generally permissible.
• Client agreement is important for fixed fees.

Memory trick: Fair Fee Formula: Not too high, but any low is fine.

A lawyer may withdraw from representation if the client's conduct makes the representation unreasonably difficult for the lawyer to carry out effectively.

• This is a permissive, not mandatory, ground for withdrawal.
• The difficulty must be 'unreasonable' and materially impair representation.
• It typically involves client non-cooperation or persistent unreasonable demands.

Memory trick: When the client's path becomes a thorny maze, the lawyer can leave.

When a client's capacity to make adequately reasoned decisions is diminished, a lawyer must, as far as reasonably possible, maintain a normal client-lawyer relationship and take reasonable protective action if the lawyer reasonably believes the client is at risk of substantial harm.

• Maintain normal relationship as much as possible.
• Seek guidance from family or others only if necessary to protect interests.
• Protective action should be the least restrictive intervention appropriate.

Memory trick: Support Autonomy, Protect When Necessary, Don't Assume Control.

A lawyer may permissibly withdraw from representation if the client fails to pay agreed-upon fees, provided certain conditions are met, such as giving reasonable warning.

• Withdrawal is permissive, not mandatory.
• Client must have failed substantially to fulfill an obligation (e.g., pay fees).
• Lawyer must give reasonable warning.
• Lawyer must take steps to protect the client's interests upon withdrawal.

Memory trick: Unpaid Fees? Warn, Prepare, Then Leave.

When a lawyer provides an evaluation for the benefit of a third party, the lawyer owes a duty of candor and accuracy to that third party, and generally must disclose material adverse facts unless the client has explicitly limited the scope or disclosure is prohibited.

• Evaluation is for a third party's benefit.
• Duty of candor to the third party.
• Disclosure of material facts is generally required.

Memory trick: Evaluators Explicitly Expose Essential Evidence.

If a lawyer acting as an intermediary discovers a significant divergence of interests among the co-represented clients that cannot be resolved amicably, the lawyer must withdraw from representation of all clients.

• Requires withdrawal from all clients.
• Clients must be advised to seek independent counsel.
• Occurs when common representation is no longer possible or ethical.

Memory trick: Conflicts Cause Complete Cessation of Common Counsel.

A lawyer acts as an evaluator when providing an assessment of a client's affairs for the use of a third party, such as auditors or prospective purchasers.

• Requires client's informed consent.
• Must be compatible with other client relationships.
• Disclosure of information is impliedly authorized for the evaluation's purpose.

Memory trick: Evaluate the facts, for others to see, a lawyer's report, for clarity.

A fee structure that combines elements of different fee types (e.g., hourly, flat, contingency) into a single agreement. Such arrangements are permissible if reasonable and agreed to by the client in writing.

• Must satisfy all requirements for fees, primarily reasonableness.
• Client's informed consent, confirmed in writing, is crucial.
• Not inherently prohibited, but complexity requires clear communication.

Memory trick: Fees must be FAIR: Fully Agreed, Informed, and Reasonable.

A lawyer acting as an evaluator must provide an objective, candid, and accurate assessment of a client's affairs for a third party, and must not permit client pressure to compromise the integrity of the report.

• Independent professional judgment is paramount.
• Report must not be materially misleading.
• Duty to third parties who will rely on the report.

Memory trick: Truth's clear mirror, strong and bright, no client pressure, dimming light.

A lawyer acting as a third-party neutral must disclose any prior relationships with any of the parties involved, and obtain their informed consent, to ensure continued impartiality and to avoid the appearance of impropriety.

• Disclosure required for prior relationships.
• Informed consent from all parties is essential.
• Maintain independence and impartiality.

Memory trick: Neutrals Need Not Neglect Notice, Needing Notarized Nods.

A lawyer acts as an advisor when guiding a client through complex legal or administrative systems, providing explanations, strategic counsel, and ensuring compliance.

• Involves interpretation of rules and procedures.
• Focus on empowering client decision-making.
• Not necessarily an adversarial role.

Memory trick: When paths are tangled, hard to see, a lawyer's counsel sets you free.

A lawyer acting as an intermediary must withdraw from representing all clients if a conflict of interest arises that cannot be resolved, or if the lawyer can no longer reasonably believe that common interests can be served.

• Triggered by irreconcilable conflicts.
• Requires withdrawal from all jointly represented clients in the matter.
• Cannot then represent one client against the other in the same matter.

Memory trick: When common ground is lost and gone, the intermediary must move on.

A lawyer's advisory role encompasses providing candid counsel on legal, practical, moral, ethical, and political considerations relevant to a client's situation, enabling comprehensive decision-making.

• Advice should be holistic and client-centered.
• Goes beyond mere technical legal analysis.
• Aids in fully informed client decisions.

Memory trick: Beyond the law, a wider view, a lawyer's counsel, honest and true.

A lawyer, when acting as an advisor, has a duty to provide honest, candid, and objective advice, explaining the legal implications of a client's proposed course of action.

• Advice must be truthful, even if unpalatable.
• Must explain potential consequences and risks.
• Includes legal, moral, economic, social, and political factors.

Memory trick: Advisors Always Offer Objective Outcomes.

A lawyer must promptly deliver to the client any funds or other property that the client is entitled to receive. A lawyer cannot assist a client in a fraudulent scheme by holding funds indefinitely.

• Prompt delivery is mandatory.
• Cannot assist in client fraud/evasion.
• Ethical duty overrides client's unlawful instructions.

Memory trick: Fast Funds, No Fraud: Deliver client money quickly, don't aid evasion.

A lawyer acting as an evaluator for a third party must provide an objective, accurate, and candid assessment of the client's situation as it pertains to the scope of the evaluation, even if adverse to the client.

• Primary duty is to the integrity of the evaluation.
• Information must be accurate and complete.
• Candor to the third party is paramount within the scope of evaluation.

Memory trick: Evaluators Ensure Exactness and Expedite Evidence.

A lawyer acts as a third-party neutral when assisting two or more unrepresented parties who are not clients in resolving a dispute or reaching an agreement.

• Does not represent any party.
• Must explain their role and ensure parties understand they are not clients.
• Examples include mediators, arbitrators, or facilitators.

Memory trick: Neutral ground, a helping hand, where parties meet and understand.

A lawyer acting as an advisor must provide competent and candid advice on the legal implications of a client's proposed course of action, including potential risks, unenforceability, and consequences.

• Advice covers legal, moral, ethical, and practical aspects.
• Must inform client of limitations or unenforceability of actions.
• Goal is to help client make informed decisions.

Memory trick: Advisors Always Articulate Accurate Assessments.

A lawyer's duty of confidentiality (Rule 1.6) generally prohibits disclosure of client information. However, a lawyer cannot assist a client in criminal or fraudulent conduct (Rule 1.2(d)). If a client insists on using the lawyer's services for an ongoing or prospective fraud, and no exception to confidentiality allows disclosure, the lawyer's primary obligation is to withdraw from representation (Rule 1.16(a)(1)) to avoid complicity.

• Confidentiality is strong, but not absolute.
• Lawyer cannot assist client crime/fraud.
• Withdrawal is mandated if representation would constitute assisting fraud.
• Disclosure is only allowed if a specific Rule 1.6 exception applies.

Memory trick: Confidentiality is a vault, but you can't guard a fire with it.

A lawyer acts as an advisor when providing a client with candid, informed legal advice regarding their legal obligations, rights, and strategic options.

• Involves analyzing facts and applying legal principles.
• Advice should include practical and moral implications.
• Must exercise independent professional judgment.

Memory trick: Counsel's wisdom, clear and bright, guides the client, day and night.

A lawyer acts as an intermediary when representing two or more clients with common interests to help them reach a mutually agreeable understanding or resolution of a matter.

• Requires informed consent from all clients.
• Must reasonably believe common interests can be served.
• Withdrawal required if conflict arises that cannot be resolved.

Memory trick: Many roles a lawyer plays, from fight to peace, in legal ways.

Before acting as an intermediary for multiple clients, a lawyer must ensure that common representation is permissible, which involves obtaining informed consent from each client and confirming that no conflicts of interest preclude such representation.

• Requires informed consent from all parties.
• Must reasonably believe common representation is possible.
• No adverse effect on attorney-client privilege between clients.

Memory trick: Intermediaries Initiate Informed Inclusion.

If a criminal client intends to commit perjury, the lawyer must first attempt to dissuade them. If unsuccessful, the lawyer must seek to withdraw. If withdrawal is denied, the lawyer must take remedial measures, potentially including disclosure to the court, as the lawyer cannot offer false evidence.

• Persuade client not to perjure.
• If unsuccessful, seek to withdraw.
• If withdrawal denied, remedial measures (e.g., disclosure).
• Lawyer cannot offer false evidence.

Memory trick: Perjury Protocol: Persuade, Pull Out, or Punctuate (Disclose).

A lawyer's fees and expenses must be reasonable. Expenses charged to clients should reflect the actual cost incurred by the lawyer or a reasonable amount for the service rendered.

• Fees must be reasonable based on factors like time, novelty, skill, preclusion of other employment.
• Expenses should be actual costs or reasonable value.
• General office overhead typically cannot be separately charged.

Memory trick: Fair Value for Services, True Costs for Expenses, No Hidden Overhead.

The duty of confidentiality generally extends to a client's admission of past, completed crimes, particularly if they are unrelated to the current representation and pose no threat of future harm.

• Information relating to representation is confidential.
• Past crimes are typically covered by confidentiality.
• Exceptions usually relate to preventing *future* harm or ongoing fraud.

Memory trick: Past Sins Stay Secret, Unless Future Danger.

Information shared by a non-client third party in the presence of an attorney, especially if under a mistaken belief of privilege or relating to the attorney's actual client's representation, may fall under the attorney's ethical duty of confidentiality (Model Rule 1.6) even if not strictly protected by attorney-client privilege.

• Attorney-client privilege requires client relationship.
• Ethical duty of confidentiality is broader than privilege.
• Information 'relating to the representation' is confidential.
• Attorney's failure to correct mistaken belief can create duty.

Memory trick: Confidentiality's net is wide, Privilege's door is inside.

A lawyer may reveal confidential client information to the extent the lawyer reasonably believes necessary to prevent reasonably certain death or substantial bodily harm.

• This is a permissive, not mandatory, exception.
• The harm must be 'reasonably certain' and 'substantial'.
• It overrides the general duty of confidentiality.

Memory trick: Harm is Certain? Break Silence, Save Lives.

The portion of the work product doctrine that provides heightened protection for materials containing the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative concerning the litigation.

• Prepared in anticipation of litigation.
• Has near-absolute protection from discovery.
• Distinguished from 'fact work product'.

Memory trick: Strategy docs? Work Product wins.

An accidental revelation of confidential client information, often due to negligence or error, which still triggers a lawyer's ethical duties.

• Lawyers must take reasonable precautions to prevent it.
• Client notification is often required.
• Even if no actual harm, the breach can have ethical implications.

Memory trick: Accidental slips still mean Client must Know.

A lawyer is prohibited from counseling or assisting a client in conduct the lawyer knows to be criminal or fraudulent, even if the information about the client's intent is confidential.

• This is a limitation on the duty of confidentiality.
• Requires the lawyer's knowledge of the client's intent.
• Withdrawal is often the appropriate action if the client persists.

Memory trick: Don't Help Bad Deals, You Must Withdraw.

Information shared by a prospective client with an attorney in a good faith effort to obtain legal services is confidential, even if no attorney-client relationship is formed.

• Duty applies even without formal representation.
• Information must be shared in contemplation of legal services.
• Protects against use or revelation of information.

Memory trick: Even a 'maybe' client gets a 'must' shield.

A court order that limits the use or dissemination of sensitive information obtained during discovery, creating a specific boundary for confidentiality within litigation.

• Information remains confidential under the order.
• Attorney can still use the information within the scope of the litigation.
• Violation of a protective order can lead to sanctions.

Memory trick: Order protects, but you can still use in court.

A lawyer's duty of confidentiality generally extends to a client's stated intent to commit a future crime, unless that crime falls under specific exceptions, such as preventing death, substantial bodily harm, or certain financial crimes.

• Not all future crimes trigger disclosure exceptions.
• Fleeing jurisdiction is often not a recognized exception.
• The 'reasonably certain death/harm' exception is narrow.

Memory trick: Future crime? Check exceptions, then stay silent.

The attorney-client privilege protects confidential communications between a client and their attorney for the purpose of seeking or rendering legal advice.

• Applies to communications, not underlying facts.
• Must be for the purpose of obtaining or providing legal advice.
• Confidentiality is key; presence of third parties can waive it.

Memory trick: Only talk to your lawyer for legal advice, and it's private.

When a lawyer receives a document that was inadvertently sent and knows or reasonably should know it contains privileged information, the lawyer must promptly notify the sender.

• Rule 4.4(b) governs this situation.
• Prompt notification to the sender is key.
• Jurisdictions vary on whether review is prohibited, but generally, it is discouraged or prohibited.

Memory trick: Mistake mail? Notify, don't read.

An attorney cannot assist a client in future criminal or fraudulent conduct, but generally cannot disclose confidential information about such intent unless a specific exception (e.g., imminent death/bodily harm) applies.

• Duty not to assist client in crime/fraud.
• Confidentiality still applies to client's intentions.
• Attorney must advise against unlawful acts.
• Disclosure is rare, limited to specific exceptions like preventing death/substantial bodily harm.

Memory trick: No help for future crimes, but keep the secret unless it's deadly.

The duty of confidentiality does not generally extend to information that is already widely known or part of the public record. However, lawyers must still exercise caution to ensure that discussing public information does not inadvertently reveal other confidential information.

• Confidentiality protects 'information relating to the representation.'
• Publicly available information is generally not confidential.
• Lawyer must avoid 'puzzling together' public and private facts.
• Best practice often involves client consent for any public statements.

Memory trick: Public facts don't need a secret pact.

Lawyers must use reasonable care when transmitting or storing client information electronically, ensuring adequate security measures to protect confidentiality.

• Reasonable efforts are required to prevent unauthorized access.
• Unsecured communication channels can be an ethical risk.
• Lawyers must be competent in technology use.

Memory trick: Secure Your Client Data, Always.

An attorney MAY reveal confidential information to prevent a client from committing a crime or fraud reasonably certain to result in substantial injury to the financial interests or property of another, where the client has used or is using the lawyer's services in furtherance of the crime/fraud.

• It is permissive, not mandatory.
• Requires 'substantial injury' to financial interests/property.
• Client must be using (or have used) attorney's services in furtherance.
• Applies to future crimes/fraud.

Memory trick: Harm or Help: when secrets can't keep.

Lawyers using cloud-based services for client data must take reasonable steps to ensure confidentiality, including assessing the provider's security and obtaining informed consent from the client, especially for sensitive information or if the provider has any access to the data.

• Reasonable efforts to protect client data required.
• Assess security of third-party providers.
• Informed consent often required for sensitive data or third-party access.
• Duty applies even if data is anonymized/aggregated by provider.

Memory trick: Cloudy storage needs client's knowledge.