Scaled Score
A conversion of raw scores to ensure consistency across exam administrations.
Getting Started: MPRE Exam Overview
Free knowledge base
Multistate Professional Responsibility Examination (MPRE) — key terms, tricks & tips
Everything from the course in one searchable place: 352 entries. Use it to review before a practice test or look up a word you forgot.
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Pretest Questions
Unscored questions used by NCBE for future exams, indistinguishable from scored ones.
Getting Started: MPRE Exam Overview
Jurisdiction
A state or territory that sets its own MPRE passing score and bar admission rules.
Getting Started: MPRE Exam Overview
ABA Model Rules
The primary source of ethical rules for lawyers, guiding MPRE content.
Getting Started: MPRE Exam Overview
Pearson VUE
The testing service that administers the MPRE at its centers.
Getting Started: MPRE Exam Overview
NCBE
National Conference of Bar Examiners, which develops and scores the MPRE.
Getting Started: MPRE Exam Overview
Raw Score
The number of questions answered correctly before scaling.
Getting Started: MPRE Exam Overview
Understanding the MPRE: Format, Scoring, & Logistics
MPRE: 'M'easure 'P'rofessional 'R'esponsibility 'E'thics. Remember the 'E' for Ethics is key!
Getting Started: MPRE Exam Overview
Understanding the MPRE: Format, Scoring, & Logistics
California requires an MPRE scaled score of 86. This is one of the higher scores required by any jurisdiction, so memorize this specific number if you plan to practice in California.
Getting Started: MPRE Exam Overview
Understanding the MPRE: Format, Scoring, & Logistics
Not checking your specific jurisdiction's passing score, assuming it's universal.
Getting Started: MPRE Exam Overview
Understanding the MPRE: Format, Scoring, & Logistics
Forgetting that 10 questions are unscored, leading to miscalculation of effort.
Getting Started: MPRE Exam Overview
Understanding the MPRE: Format, Scoring, & Logistics
Failing to review testing center policies on prohibited items, risking disqualification.
Getting Started: MPRE Exam Overview
ABA Model Rules of Professional Conduct
The primary source of ethical rules for lawyers tested on the MPRE.
Getting Started: MPRE Exam Overview
ABA Model Code of Judicial Conduct
Ethical rules for judges, also tested on the MPRE.
Getting Started: MPRE Exam Overview
Active Learning
Engaging with material through methods like flashcards, teaching, and practice.
Getting Started: MPRE Exam Overview
High-Yield Topics
Areas of law frequently tested and carrying significant weight on the exam.
Getting Started: MPRE Exam Overview
Practice Questions
Essential for applying rules and understanding MPRE question style.
Getting Started: MPRE Exam Overview
Study Plan
A structured schedule for MPRE preparation.
Getting Started: MPRE Exam Overview
Effective Study Strategies for MPRE Success
To remember key study strategies: 'PREP' - Practice Regularly, Review Every question, Engage actively, Plan your study.
Getting Started: MPRE Exam Overview
Effective Study Strategies for MPRE Success
The MPRE assesses your ability to apply the ABA Model Rules of Professional Conduct and the ABA Model Code of Judicial Conduct. California's specific rules of professional conduct are NOT tested on the MPRE; focus solely on the ABA Model Rules.
Getting Started: MPRE Exam Overview
Effective Study Strategies for MPRE Success
Relying solely on passive reading of outlines without active engagement or practice.
Getting Started: MPRE Exam Overview
Effective Study Strategies for MPRE Success
Neglecting to review incorrect answers thoroughly to understand the underlying principles.
Getting Started: MPRE Exam Overview
Effective Study Strategies for MPRE Success
Underestimating the importance of official NCBE practice questions and the specific nuances of MPRE questions.
Getting Started: MPRE Exam Overview
Character and Fitness
Assessment of an applicant's honesty and integrity for bar admission.
Regulating the Legal Profession
Duty of Candor
Obligation to be truthful and forthcoming, especially on bar applications.
Regulating the Legal Profession
Disciplinary Authority
State body responsible for regulating and sanctioning lawyers.
Regulating the Legal Profession
Reprimand
Formal, often public, rebuke for minor lawyer misconduct.
Regulating the Legal Profession
Suspension
Temporary removal of a lawyer's license to practice law.
Regulating the Legal Profession
Disbarment
Permanent revocation of a lawyer's license to practice law.
Regulating the Legal Profession
Clear and Convincing Evidence
Standard of proof for professional misconduct in disciplinary hearings.
Regulating the Legal Profession
Admission & Regulation After Admission
To remember the disciplinary actions, think 'R.S.D.' for Reprimand, Suspension, Disbarment – like a 'Really Serious Decision' for a lawyer's career.
Regulating the Legal Profession
Admission & Regulation After Admission
California requires applicants to pass the California Bar Examination, a state-specific ethics exam (the California Professional Responsibility Exam), and a thorough character and fitness investigation. Be aware that California's rules on disclosure can be very broad.
Regulating the Legal Profession
Admission & Regulation After Admission
Confusing the standard of proof for bar admission (preponderance of the evidence for some aspects, but character and fitness is a holistic assessment) with the standard for disciplinary actions (clear and convincing evidence).
Regulating the Legal Profession
Admission & Regulation After Admission
Underestimating the importance of full disclosure on bar applications; even minor past incidents must be revealed.
Regulating the Legal Profession
Admission & Regulation After Admission
Believing that simply repaying misappropriated client funds will prevent severe disciplinary action.
Regulating the Legal Profession
Unauthorized Practice of Law (UPL)
Performing legal services without proper license.
Regulating the Legal Profession
Multijurisdictional Practice (MJP)
Temporary practice in another state under specific exceptions.
Regulating the Legal Profession
Pro Hac Vice
Permission to appear in court for a specific case only.
Regulating the Legal Profession
Multidisciplinary Practice (MDP)
Partnership of lawyers and non-lawyers providing services.
Regulating the Legal Profession
Professional Independence
Lawyer's judgment free from non-lawyer influence.
Regulating the Legal Profession
Legal Services
Applying law to facts, advising, drafting, court representation.
Regulating the Legal Profession
Unauthorized Practice & Multidisciplinary Practice
UPL: Unlicensed People Lose (clients, and lawyers assisting them lose their license). MDP: My Decisions are Professional (not influenced by non-lawyers).
Regulating the Legal Profession
Unauthorized Practice & Multidisciplinary Practice
California's Business and Professions Code § 6125 prohibits UPL. California also has specific rules for out-of-state attorneys practicing temporarily, similar to Model Rule 5.5(c), but with unique registration requirements for certain activities like in-house counsel and public interest work. Keywords to spot: 'not licensed in this jurisdiction,' 'assisting non-lawyer,' 'sharing fees with non-lawyer.'
Regulating the Legal Profession
Unauthorized Practice & Multidisciplinary Practice
Assuming general legal information is the same as specific legal advice.
Regulating the Legal Profession
Unauthorized Practice & Multidisciplinary Practice
Believing that supervising a non-lawyer absolves the attorney of responsibility for UPL.
Regulating the Legal Profession
Unauthorized Practice & Multidisciplinary Practice
Confusing permissible MJP exceptions with prohibited MDP structures.
Regulating the Legal Profession
Non-Lawyer Ownership
Prohibited interest of non-lawyers in a law firm's equity or control.
Regulating the Legal Profession
Fee-Sharing
Division of legal fees; generally prohibited with non-lawyers.
Regulating the Legal Profession
Third-Party Payment
When someone other than the client pays for legal services.
Regulating the Legal Profession
Informed Consent
Client's agreement after full disclosure of risks and alternatives.
Regulating the Legal Profession
Fiduciary Duty
Lawyer's duty to act in the client's best interest with loyalty.
Regulating the Legal Profession
Professional Independence of a Lawyer
Think 'I.N.D.E.P.E.N.D.E.N.T. Lawyer': **I**nterests of Client First, **N**o Non-Lawyer Owners, **D**on't Share Fees (generally), **E**xercise Independent Judgment, **P**ayments by Third-Parties (with consent/no interference), **E**thics Guide All Decisions, **N**o Outside Control, **D**uty to Client is Paramount, **E**xceptions are Narrow, **N**o Conflicts of Interest, **T**rust is Key.
Regulating the Legal Profession
Professional Independence of a Lawyer
California's Rule 5.4 is similar to the Model Rule, strictly prohibiting non-lawyer ownership or control of law firms and fee-sharing. Be aware of the specific exceptions for non-lawyer employees in retirement plans and payments to a deceased lawyer's estate, as these are common MPRE points.
Regulating the Legal Profession
Professional Independence of a Lawyer
Confusing permissible non-lawyer employee compensation (salary, retirement plan) with prohibited fee-sharing (direct share of a specific case's fee).
Regulating the Legal Profession
Professional Independence of a Lawyer
Forgetting the three conditions required for third-party payment: client consent, no interference, and confidentiality.
Regulating the Legal Profession
Professional Independence of a Lawyer
Assuming that because a non-lawyer is a close friend or family member, they can have an ownership stake or control in a law firm.
Regulating the Legal Profession
Advertising
Public communication about legal services, generally permissible if truthful.
Regulating the Legal Profession
Solicitation
Direct, uninvited contact with a prospective client for pecuniary gain.
Regulating the Legal Profession
Pecuniary Gain
Motive for financial profit or monetary advantage.
Regulating the Legal Profession
False or Misleading
Communication containing material misrepresentation or omission.
Regulating the Legal Profession
Unjustified Expectations
Statements implying results that cannot be guaranteed or are improbable.
Regulating the Legal Profession
Targeted Communication
Written/recorded communication sent to specific individuals known to need services.
Regulating the Legal Profession
Prior Professional Relationship
Previous lawyer-client relationship, allowing certain solicitations.
Regulating the Legal Profession
Lawyer Advertising and Solicitation Rules
To remember the prohibited solicitation types, think 'L.I.P.': Live, In-person, Pecuniary gain.
Regulating the Legal Profession
Lawyer Advertising and Solicitation Rules
California's rules, while largely similar, have specific nuances. For instance, California generally requires all advertisements to include the word 'Advertisement' or 'Newsletter' if it's not apparent from the context. Also, California has detailed rules regarding the content of communications, such as prohibiting guarantees of outcomes or comparisons that cannot be factually substantiated.
Regulating the Legal Profession
Lawyer Advertising and Solicitation Rules
Confusing general advertising with direct, live solicitation.
Regulating the Legal Profession
Lawyer Advertising and Solicitation Rules
Forgetting that even targeted mail/email must comply with general truthfulness rules and may require disclaimers.
Regulating the Legal Profession
Lawyer Advertising and Solicitation Rules
Ignoring specific waiting periods for accident victims in certain jurisdictions.
Regulating the Legal Profession
Competence
Legal knowledge, skill, thoroughness, and preparation.
The Client-Lawyer Relationship Deep Dive
Diligence
Acting with reasonable promptness and commitment.
The Client-Lawyer Relationship Deep Dive
Communication
Keeping client informed and explaining matters.
The Client-Lawyer Relationship Deep Dive
Scope of Representation
The agreed-upon boundaries of legal services.
The Client-Lawyer Relationship Deep Dive
Objectives of Representation
Client decides what they want to achieve.
The Client-Lawyer Relationship Deep Dive
Means of Representation
Lawyer decides how to achieve client's objectives.
The Client-Lawyer Relationship Deep Dive
Competence, Scope, Diligence, & Communication
To remember these duties, think of 'C-S-D-C': Competence (smart), Scope (boundaries), Diligence (active), Communication (talk).
The Client-Lawyer Relationship Deep Dive
Competence, Scope, Diligence, & Communication
California's Rule 1.1 (Competence) is similar to the ABA Model Rule, but it explicitly lists 'mental, emotional, and physical ability' as components of competence. Also, California's Rule 1.4 (Communication) emphasizes keeping the client 'reasonably informed about significant developments' and promptly responding to 'reasonable requests for information.'
The Client-Lawyer Relationship Deep Dive
Competence, Scope, Diligence, & Communication
Assuming competence in a new area of law without proper preparation or client disclosure.
The Client-Lawyer Relationship Deep Dive
Competence, Scope, Diligence, & Communication
Failing to document limitations on the scope of representation, leading to client misunderstandings.
The Client-Lawyer Relationship Deep Dive
Competence, Scope, Diligence, & Communication
Allowing a heavy workload to cause significant delays or neglect in client matters.
The Client-Lawyer Relationship Deep Dive
Competence, Scope, Diligence, & Communication
Not responding to client inquiries promptly, even if there's no new development in the case.
The Client-Lawyer Relationship Deep Dive
Reasonable Fee
A fee that is not excessive, considering factors like time, skill, and complexity.
The Client-Lawyer Relationship Deep Dive
Contingent Fee
Fee dependent on the successful outcome of a case, prohibited in some matters.
The Client-Lawyer Relationship Deep Dive
Confidentiality
Duty to protect all information relating to client representation, broader than privilege.
The Client-Lawyer Relationship Deep Dive
Conflict of Interest
When a lawyer's duties to one client, person, or self, materially limit duties to another.
The Client-Lawyer Relationship Deep Dive
Substantially Related
Test for former client conflicts; risk confidential info would advance new client's position.
The Client-Lawyer Relationship Deep Dive
Imputation
A conflict of one lawyer in a firm is generally applied to all other lawyers in the firm.
The Client-Lawyer Relationship Deep Dive
Screening
Measures taken to isolate a disqualified lawyer from a matter to prevent imputation.
The Client-Lawyer Relationship Deep Dive
Fees, Confidentiality, & Conflicts of Interest
For Conflicts, remember 'C-O-N-F-L-I-C-T': Consent (informed, written), Objective (reasonable belief), Not Prohibited (by law), Former Client (substantially related), Loyalty (no direct adversity), Imputation (firm-wide), Client's Best Interest (paramount), Transaction (fair & reasonable).
The Client-Lawyer Relationship Deep Dive
Fees, Confidentiality, & Conflicts of Interest
California requires fee agreements over $1,000 to be in writing, unless the client is a corporation, the client knowingly waives the right to a written fee agreement, or the services are for an emergency. Contingent fee agreements must always be in writing. California's confidentiality duty is broader than the ABA Model Rule, generally lacking a 'future harm' exception unless specified by statute.
The Client-Lawyer Relationship Deep Dive
Fees, Confidentiality, & Conflicts of Interest
Confusing the duty of confidentiality with the attorney-client privilege; confidentiality is much broader.
The Client-Lawyer Relationship Deep Dive
Fees, Confidentiality, & Conflicts of Interest
Failing to obtain informed consent, confirmed in writing, for conflicts or business transactions with clients.
The Client-Lawyer Relationship Deep Dive
Fees, Confidentiality, & Conflicts of Interest
Assuming that a conflict is 'minor' and can be ignored, rather than properly analyzed and potentially waived or declined.
The Client-Lawyer Relationship Deep Dive
Prospective Client
Person consulting lawyer about representation.
The Client-Lawyer Relationship Deep Dive
Former Client
Client whose representation has concluded.
The Client-Lawyer Relationship Deep Dive
Third-Party Neutral
Lawyer assisting non-clients to resolve disputes.
The Client-Lawyer Relationship Deep Dive
Substantially Related Matter
Same transaction/dispute, or risk of using confidences.
The Client-Lawyer Relationship Deep Dive
Imputed Disqualification
Conflict of one lawyer extends to entire firm.
The Client-Lawyer Relationship Deep Dive
Duties to Prospective, Former, & Third-Party Neutrals
P-F-N: Protect (Prospective), Forever (Former), No (Neutral) representation later.
The Client-Lawyer Relationship Deep Dive
Duties to Prospective, Former, & Third-Party Neutrals
California Rule 1.18 (Duties to Prospective Clients) is similar to ABA Model Rule 1.18, but it does not include the screening provision as a method to cure an imputed conflict. In California, if a lawyer receives disqualifying information from a prospective client, the entire firm is generally disqualified unless the prospective client gives informed written consent. Memorize that California generally does not allow screening to cure prospective client conflicts.
The Client-Lawyer Relationship Deep Dive
Duties to Prospective, Former, & Third-Party Neutrals
Forgetting that confidentiality duties to prospective and former clients are perpetual.
The Client-Lawyer Relationship Deep Dive
Duties to Prospective, Former, & Third-Party Neutrals
Failing to recognize that 'substantially related' matters trigger former client conflict rules.
The Client-Lawyer Relationship Deep Dive
Duties to Prospective, Former, & Third-Party Neutrals
Not understanding that a third-party neutral cannot represent any party in the same matter later without consent.
The Client-Lawyer Relationship Deep Dive
Diminished Capacity
Client's impaired ability to make considered decisions.
The Client-Lawyer Relationship Deep Dive
Protective Action
Steps taken to safeguard a client with diminished capacity.
The Client-Lawyer Relationship Deep Dive
IOLTA Account
Interest on Lawyers Trust Account for client funds.
The Client-Lawyer Relationship Deep Dive
Mandatory Withdrawal
Lawyer must cease representation due to rule violation, impairment, or discharge.
The Client-Lawyer Relationship Deep Dive
Permissive Withdrawal
Lawyer may cease representation if no adverse effect or specific conditions met.
The Client-Lawyer Relationship Deep Dive
Safekeeping Property
Duty to hold client/third-party property separate and secure.
The Client-Lawyer Relationship Deep Dive
Unearned Fees
Advance payments for services not yet rendered or incurred.
The Client-Lawyer Relationship Deep Dive
Diminished Capacity, Safekeeping, & Termination
DIMINISHED CAPACITY? PROTECT! SAFEKEEPING? SEPARATE! TERMINATION? PROTECT CLIENT!
The Client-Lawyer Relationship Deep Dive
Diminished Capacity, Safekeeping, & Termination
California's Rules of Professional Conduct generally align with the ABA Model Rules regarding diminished capacity, safekeeping, and termination. However, California Rule 1.15 specifies that client funds must be deposited in a bank account in California, unless the client consents in writing to a different location. Also, the record retention period for client funds and property in California is five years.
The Client-Lawyer Relationship Deep Dive
Diminished Capacity, Safekeeping, & Termination
Failing to take any action when a client with diminished capacity is clearly at risk of harm.
The Client-Lawyer Relationship Deep Dive
Diminished Capacity, Safekeeping, & Termination
Commingling client funds with the lawyer's personal or operating funds.
The Client-Lawyer Relationship Deep Dive
Diminished Capacity, Safekeeping, & Termination
Withdrawing from representation without proper notice or causing material adverse effect on the client.
The Client-Lawyer Relationship Deep Dive
Diminished Capacity, Safekeeping, & Termination
Failing to return client property or unearned fees promptly upon termination.
The Client-Lawyer Relationship Deep Dive
Attorney-Client Privilege
Evidentiary rule protecting confidential communications for legal advice from compelled disclosure.
Client Confidentiality Essentials
Impliedly Authorized
Disclosure necessary to carry out representation, reasonably advancing client's interests.
Client Confidentiality Essentials
Relating to the Representation
Broad scope covering virtually all information learned in connection with client matter.
Client Confidentiality Essentials
Confidentiality: The General Rule
CONFIDE: **C**lient information, **O**utside court, **N**ever ends, **F**or all info, **I**mplied authorization, **D**oesn't need privilege, **E**thical rule.
Client Confidentiality Essentials
Confidentiality: The General Rule
California's Business and Professions Code § 6068(e)(1) states a lawyer's duty 'To maintain inviolate the confidence, and at every peril to himself or herself to preserve the secrets, of his or her client.' This is often considered even broader than the ABA Model Rule 1.6, covering 'secrets' which include any information gained in the professional relationship that the client has requested be inviolate or the disclosure of which would be embarrassing or detrimental to the client. This includes information not covered by attorney-client privilege.
Client Confidentiality Essentials
Confidentiality: The General Rule
Confusing the broad ethical duty of confidentiality with the narrower evidentiary attorney-client privilege.
Client Confidentiality Essentials
Confidentiality: The General Rule
Believing that publicly available information is automatically exempt from confidentiality.
Client Confidentiality Essentials
Confidentiality: The General Rule
Assuming the duty ends when the representation ends or the client dies.
Client Confidentiality Essentials
Work Product Doctrine
Protects materials prepared by attorney in anticipation of litigation.
Client Confidentiality Essentials
Confidentiality (Rule 1.6)
Broad ethical duty to protect all information relating to representation.
Client Confidentiality Essentials
Waiver
Intentional or inadvertent relinquishment of a privilege or right.
Client Confidentiality Essentials
Ordinary Work Product
Factual materials; discoverable with substantial need/hardship.
Client Confidentiality Essentials
Opinion Work Product
Attorney's mental impressions; highly protected, rarely discoverable.
Client Confidentiality Essentials
Attorney-Client Privilege & Work Product Doctrine
P-W-C: Privilege is for Private Words, Work Product is for Prepared Work, Confidentiality is Comprehensive.
Client Confidentiality Essentials
Attorney-Client Privilege & Work Product Doctrine
On the California Bar Exam, remember that California's attorney-client privilege (Evidence Code § 950 et seq.) is generally similar to federal law but has specific nuances regarding corporate privilege and joint clients. The work product doctrine is codified in California Code of Civil Procedure § 2018.010 et seq., often providing absolute protection for attorney's impressions and qualified protection for other work product.
Client Confidentiality Essentials
Attorney-Client Privilege & Work Product Doctrine
Confusing the broad ethical duty of confidentiality with the narrower evidentiary attorney-client privilege.
Client Confidentiality Essentials
Attorney-Client Privilege & Work Product Doctrine
Assuming all client-related information is privileged, rather than just confidential communications for legal advice.
Client Confidentiality Essentials
Attorney-Client Privilege & Work Product Doctrine
Forgetting that work product protection can be overcome for ordinary work product with a showing of substantial need.
Client Confidentiality Essentials
Permissive Disclosure
Lawyer *may* reveal confidential info without client consent.
Client Confidentiality Essentials
Reasonably Certain
High probability of harm, not absolute certainty or mere possibility.
Client Confidentiality Essentials
Substantial Bodily Harm
Serious physical injury, not minor scrapes or bruises.
Client Confidentiality Essentials
Substantial Financial Injury
Significant monetary loss to another's interests or property.
Client Confidentiality Essentials
Least Disclosure Necessary
Reveal only info essential to achieve the permitted purpose.
Client Confidentiality Essentials
Self-Defense Exception
Lawyer may disclose to defend against client allegations/claims.
Client Confidentiality Essentials
Compliance with Law
Disclosure permitted when required by statute or court order.
Client Confidentiality Essentials
Exceptions to Confidentiality: Permissive Disclosures
Think of 'P.D. S.H.A.R.P.' for Permissive Disclosures: Prevent Death/Harm, Self-defense, Help (get legal advice), Avert Financial Harm, Respond (to allegations), or Pursuant to Law.
Client Confidentiality Essentials
Exceptions to Confidentiality: Permissive Disclosures
California's rule regarding preventing death or substantial bodily harm (CRPC 1.6(b)(1)) requires a lawyer to, if reasonable, make a good faith effort to persuade the client not to commit the act and inform the client of the lawyer's ability to disclose. The lawyer must also inform the client of the decision to disclose, unless impracticable or if the disclosure would be to protect the lawyer, the lawyer's employees, or an agent.
Client Confidentiality Essentials
Exceptions to Confidentiality: Permissive Disclosures
Confusing permissive disclosures with mandatory disclosures; permissive means 'may,' not 'must.'
Client Confidentiality Essentials
Exceptions to Confidentiality: Permissive Disclosures
Disclosing more information than is 'reasonably necessary' to achieve the permitted purpose.
Client Confidentiality Essentials
Exceptions to Confidentiality: Permissive Disclosures
Applying the 'prevent financial harm' exception without the client having used the lawyer's services to further the crime or fraud.
Client Confidentiality Essentials
Mandatory Disclosure
Obligation to reveal confidential information.
Client Confidentiality Essentials
Perjury
Knowingly making a false statement under oath.
Client Confidentiality Essentials
Fraud on the Tribunal
Client's deceitful conduct affecting a court.
Client Confidentiality Essentials
Remedial Measures
Steps taken to correct a wrong, including disclosure.
Client Confidentiality Essentials
Candor to the Tribunal
Duty to be truthful to the court.
Client Confidentiality Essentials
In Camera Hearing
Private hearing with judge, records sealed.
Client Confidentiality Essentials
Compelled Disclosure
Disclosure required by law or court order.
Client Confidentiality Essentials
Mandatory Disclosures of Confidential Information
P.F.C. = Perjury, Fraud, Court Order. Remember these three situations to recall when disclosure is MANDATORY.
Client Confidentiality Essentials
Mandatory Disclosures of Confidential Information
California's Business and Professions Code § 6068(e)(1) generally prohibits disclosure of client secrets. However, California Rule of Professional Conduct 3.3 (Candor Toward the Tribunal) requires a lawyer to take 'reasonable remedial measures' upon learning of client perjury or fraud on the tribunal. While it doesn't explicitly mandate disclosure to the tribunal as the ABA Model Rule does, California courts have interpreted this to mean disclosure is required if other measures fail. The MPRE often tests the ABA Model Rules, but be aware of this distinction.
Client Confidentiality Essentials
Mandatory Disclosures of Confidential Information
Confusing permissive disclosure (may disclose) with mandatory disclosure (must disclose).
Client Confidentiality Essentials
Mandatory Disclosures of Confidential Information
Failing to attempt to persuade the client to rectify perjury/fraud before disclosing to the tribunal.
Client Confidentiality Essentials
Mandatory Disclosures of Confidential Information
Disclosing more information than necessary when a mandatory disclosure is required.
Client Confidentiality Essentials
Direct Adversity
Representation of one client directly harms another's interests.
Navigating Conflicts of Interest
Material Limitation
Lawyer's judgment for a client is restricted by other duties/interests.
Navigating Conflicts of Interest
Confirmed in Writing
Client's consent documented by signed writing or lawyer's record.
Navigating Conflicts of Interest
Non-Consentable Conflict
Conflict too severe to be waived by client consent.
Navigating Conflicts of Interest
Conflicts of Interest: Current Clients
To remember the four conditions for permissible conflicts, think: 'R.N.D.I.': Reasonable belief, Not prohibited, No direct claim, Informed consent.
Navigating Conflicts of Interest
Conflicts of Interest: Current Clients
California's Rule 1.7 on conflicts of interest is similar but emphasizes 'actual conflict' or 'potential conflict' and requires written disclosure for potential conflicts and written consent for actual conflicts. Pay attention to the specific terminology and the 'written disclosure' vs. 'written consent' distinction.
Navigating Conflicts of Interest
Conflicts of Interest: Current Clients
Assuming client consent cures all conflicts, especially non-consentable ones like direct adversity in litigation.
Navigating Conflicts of Interest
Conflicts of Interest: Current Clients
Failing to obtain 'informed' consent, meaning not fully explaining the risks and alternatives to the client.
Navigating Conflicts of Interest
Conflicts of Interest: Current Clients
Not getting the consent 'confirmed in writing' as required by the rules.
Navigating Conflicts of Interest
Business Transaction with Client
Lawyer-client dealings requiring fairness, written advice for independent counsel, and informed consent.
Navigating Conflicts of Interest
Substantial Gift
A gift of significant value from a client to a lawyer, generally prohibited unless family or independent counsel.
Navigating Conflicts of Interest
Informed Consent in Writing
Client's agreement to a course of action after full disclosure, documented in writing.
Navigating Conflicts of Interest
Non-Lawyer Staff Conflict
Conflict of a paralegal or other staff member, imputed to the firm, requiring screening.
Navigating Conflicts of Interest
Specific Rules & Imputation of Conflicts
Think of 'S.C.R.E.E.N.' for avoiding imputation: **S**creened, **C**onfidentiality protected, **R**evenue isolated, **E**xcluded from matter, **E**ffective notice, **N**o participation.
Navigating Conflicts of Interest
Specific Rules & Imputation of Conflicts
California's rules on business transactions with clients (Rule 1.8.1) are similar to the ABA Model Rules but often require even more stringent disclosure and consent, emphasizing that the client must be advised in writing to seek independent legal advice and given a reasonable opportunity to do so. For imputation, California Rules of Professional Conduct generally follow the ABA Model Rules regarding screening for former government lawyers and lateral hires.
Navigating Conflicts of Interest
Specific Rules & Imputation of Conflicts
Assuming a conflict is 'personal' and therefore not imputed without checking specific rules.
Navigating Conflicts of Interest
Specific Rules & Imputation of Conflicts
Failing to get *written* informed consent for business transactions or substantial gifts.
Navigating Conflicts of Interest
Specific Rules & Imputation of Conflicts
Implementing a screen without ensuring the disqualified lawyer receives no part of the fee from the conflicted matter.
Navigating Conflicts of Interest
Specific Rules & Imputation of Conflicts
Forgetting to provide prompt written notice to the affected former client when a screen is used.
Navigating Conflicts of Interest
Materially Adverse
Interests that are directly contrary or create a significant risk of harm.
Navigating Conflicts of Interest
Perpetual Duty
A duty (like confidentiality) that continues indefinitely after representation ends.
Navigating Conflicts of Interest
Duties to Former & Prospective Clients
F-P-C: Former, Prospective, Confidentiality. Remember the 'F' and 'P' clients always get 'C'onfidentiality, but the scope of other duties differs.
Navigating Conflicts of Interest
Duties to Former & Prospective Clients
California's Rule 1.9 is similar to the ABA Model Rule regarding former clients, using the 'substantially related' test. For prospective clients, California Rule 1.18 also mirrors the ABA, prohibiting representation if 'significantly harmful' information was received, unless there's informed written consent or the lawyer took reasonable measures to limit exposure to such information.
Navigating Conflicts of Interest
Duties to Former & Prospective Clients
Assuming that if no formal retainer agreement was signed, no duties are owed to a prospective client.
Navigating Conflicts of Interest
Duties to Former & Prospective Clients
Misinterpreting 'substantially related' to mean any general similarity, rather than a direct connection or risk of using confidences.
Navigating Conflicts of Interest
Duties to Former & Prospective Clients
Forgetting that the duty of confidentiality to a former client is perpetual and does not end with the representation.
Navigating Conflicts of Interest
Adjudicative Officer
A person who makes binding decisions in a legal matter, such as a judge or arbitrator.
Navigating Conflicts of Interest
Personally and Substantially
Significant direct involvement in a specific matter, not trivial or administrative.
Navigating Conflicts of Interest
Written Notice
Formal communication to the tribunal, required for the screening exception to apply.
Navigating Conflicts of Interest
Duties to Former Judges & Third-Party Neutrals
JUDGE's NEW JOB: Just Understand Duties, Get Ethics, Judge's New Job is Off-limits, Unless Barred (screened) and Briefed (notice).
Navigating Conflicts of Interest
Duties to Former Judges & Third-Party Neutrals
California Rule of Professional Conduct 1.12 largely mirrors ABA Model Rule 1.12 regarding former judges, arbitrators, mediators, and other third-party neutrals, including the 'personally and substantially' standard and the screening exception with notice. Memorize the specific requirements for screening: timely, no fee, and written notice to the tribunal.
Navigating Conflicts of Interest
Duties to Former Judges & Third-Party Neutrals
Forgetting that the 'personally and substantially' standard is key to triggering the conflict.
Navigating Conflicts of Interest
Duties to Former Judges & Third-Party Neutrals
Failing to recognize the imputation rule and its screening exception for firms.
Navigating Conflicts of Interest
Duties to Former Judges & Third-Party Neutrals
Not understanding the specific exception for law clerks negotiating for employment.
Navigating Conflicts of Interest
Frivolous Claim
A claim without a good faith basis in law or fact.
Litigation and Advocacy Skills
Expedite Litigation
A lawyer's duty to make reasonable efforts to speed up a case.
Litigation and Advocacy Skills
Candor to Tribunal
Duty to be truthful to the court; no false statements.
Litigation and Advocacy Skills
False Evidence
Evidence a lawyer knows to be untrue; must not be offered.
Litigation and Advocacy Skills
Adverse Authority
Controlling legal precedent unfavorable to client's position.
Litigation and Advocacy Skills
Ex Parte Proceeding
Proceeding with only one party present; heightened candor duty.
Litigation and Advocacy Skills
Meritorious Claims, Expediting, & Candor to Tribunal
CANDOR: **C**orrect **A**ll **N**otorious **D**eceits **O**r **R**eveal truth. This reminds you of the duty to correct false statements and disclose adverse authority.
Litigation and Advocacy Skills
Meritorious Claims, Expediting, & Candor to Tribunal
California's Rule 3.1 (Meritorious Claims and Contentions) is similar but explicitly states that a lawyer 'shall not present, participate in presenting, or threaten to present' a claim without probable cause and for the purpose of harassing or maliciously injuring any person. This adds an additional layer of intent and scope to the rule.
Litigation and Advocacy Skills
Meritorious Claims, Expediting, & Candor to Tribunal
Confusing a 'lack of merit' with a 'difficult case'; a difficult case is not necessarily frivolous if there's a good faith argument.
Litigation and Advocacy Skills
Meritorious Claims, Expediting, & Candor to Tribunal
Believing the duty of candor only applies to direct lies, not omissions of material facts or adverse legal authority.
Litigation and Advocacy Skills
Meritorious Claims, Expediting, & Candor to Tribunal
Thinking that client confidentiality overrides the duty to disclose client perjury to the tribunal.
Litigation and Advocacy Skills
Spoliation
Intentional destruction or alteration of evidence.
Litigation and Advocacy Skills
Ex Parte Communication
Communication with a judge without the opposing party present.
Litigation and Advocacy Skills
Litigation Hold
Notice to preserve relevant documents and data for litigation.
Litigation and Advocacy Skills
Discovery Abuse
Improper conduct during discovery, like obstructing access to evidence.
Litigation and Advocacy Skills
Tribunal
A court or other adjudicatory body.
Litigation and Advocacy Skills
Impartiality
Freedom from bias or prejudice.
Litigation and Advocacy Skills
Decorum
Propriety and good taste in behavior.
Litigation and Advocacy Skills
Fairness to Opposing Party & Impartiality of Tribunal
F.A.I.R.: Fairness (to opposing party), Access (to evidence, don't obstruct), Impartiality (of tribunal, protect it), Respect (for process, no improper influence).
Litigation and Advocacy Skills
Fairness to Opposing Party & Impartiality of Tribunal
California Rule of Professional Conduct 3.4 (Fairness to Opposing Party and Counsel) closely mirrors the ABA Model Rule, emphasizing the prohibition against unlawfully obstructing access to evidence, altering/destroying evidence, and making frivolous discovery requests. Be alert for scenarios involving spoliation or improper communications with judicial officers or jurors.
Litigation and Advocacy Skills
Fairness to Opposing Party & Impartiality of Tribunal
Assuming zealous advocacy justifies any action, including aggressive or uncivil behavior towards opposing counsel.
Litigation and Advocacy Skills
Fairness to Opposing Party & Impartiality of Tribunal
Failing to advise a client about their duty to preserve evidence once litigation is anticipated.
Litigation and Advocacy Skills
Fairness to Opposing Party & Impartiality of Tribunal
Engaging in or permitting ex parte communications, even if seemingly innocent or informal.
Litigation and Advocacy Skills
Extrajudicial statement
A statement made outside of court proceedings.
Litigation and Advocacy Skills
Material prejudice
Significant likelihood of affecting the fairness or outcome of a trial.
Litigation and Advocacy Skills
Safe harbor
Categories of extrajudicial statements generally permitted.
Litigation and Advocacy Skills
Necessary witness
A lawyer whose testimony is essential and unobtainable elsewhere.
Litigation and Advocacy Skills
Substantial hardship
A high burden to meet for an exception to lawyer-witness rule.
Litigation and Advocacy Skills
Advocate-witness rule
Prohibits a lawyer from acting as both counsel and witness.
Litigation and Advocacy Skills
Trial Publicity & Lawyer as Witness
To remember the 'Safe Harbor' exceptions for trial publicity, think: 'BASIC FACTS and RESPONSE.' Basic facts about the case are okay, and you can respond to adverse publicity.
Litigation and Advocacy Skills
Trial Publicity & Lawyer as Witness
California Rule of Professional Conduct 3.6 is very similar to the Model Rule regarding trial publicity. For the lawyer-witness rule, California Rule 3.7 also generally prohibits a lawyer from acting as an advocate in a trial where they are likely to be a witness, with similar exceptions. The key difference is that California's 'substantial hardship' exception (Rule 3.7(a)(3)) explicitly includes consideration of the client's interests, which is also implied in the ABA Model Rule.
Litigation and Advocacy Skills
Trial Publicity & Lawyer as Witness
Confusing the 'substantial likelihood of material prejudice' standard with a lower standard.
Litigation and Advocacy Skills
Trial Publicity & Lawyer as Witness
Forgetting the 'safe harbor' exceptions for permissible extrajudicial statements.
Litigation and Advocacy Skills
Trial Publicity & Lawyer as Witness
Failing to recognize that another lawyer in the firm can often serve as advocate even if one lawyer is a necessary witness, unless there's a conflict of interest.
Litigation and Advocacy Skills
Minister of Justice
Prosecutor's primary duty to seek justice, not just convictions.
Litigation and Advocacy Skills
Exculpatory Evidence
Evidence tending to negate guilt or mitigate the offense.
Litigation and Advocacy Skills
Brady Material
Constitutionally required disclosure of exculpatory evidence.
Litigation and Advocacy Skills
Probable Cause
Reasonable grounds for believing a crime was committed.
Litigation and Advocacy Skills
Nonadjudicative Proceeding
Before legislative bodies or administrative agencies, not courts.
Litigation and Advocacy Skills
Representative Capacity
Acting on behalf of a client, not as an individual.
Litigation and Advocacy Skills
Prosecutor & Nonadjudicative Lawyer Duties
P-R-O-S-E-C-U-T-O-R: **P**robable Cause, **R**elease Exculpatory, **O**utside Contact (careful), **S**tatements (limited), **E**nsure Fairness, **C**ounsel (advise unrepresented), **U**nderstand Role, **T**ruthful, **O**bjectivity, **R**esponsible.
Litigation and Advocacy Skills
Prosecutor & Nonadjudicative Lawyer Duties
California prosecutors have a similar duty to disclose exculpatory evidence, often referred to as 'Brady' and 'Pitchess' material. Memorize that the duty to disclose exculpatory evidence is very broad for prosecutors on the MPRE.
Litigation and Advocacy Skills
Prosecutor & Nonadjudicative Lawyer Duties
Believing a prosecutor only needs to disclose evidence that is 'credible' or 'admissible' in court.
Litigation and Advocacy Skills
Prosecutor & Nonadjudicative Lawyer Duties
Forgetting that the prosecutor's duty to seek justice extends beyond trial to charging and plea bargaining.
Litigation and Advocacy Skills
Prosecutor & Nonadjudicative Lawyer Duties
Failing to recognize the duty to disclose representative capacity in nonadjudicative settings.
Litigation and Advocacy Skills
Material Fact
A fact that is significant or essential to a matter.
Interactions Beyond the Client
Puffery
Exaggerated or extravagant claims, not meant as factual assertions.
Interactions Beyond the Client
No-Contact Rule
Prohibits communication with a represented person without their lawyer's consent.
Interactions Beyond the Client
Represented Person
An individual or entity who has retained legal counsel in a matter.
Interactions Beyond the Client
Constituent (Organization)
An employee or agent of an organization.
Interactions Beyond the Client
Authorized by Law
Permitted by statute, regulation, or judicial precedent.
Interactions Beyond the Client
Subject of the Representation
The specific legal matter for which a person is represented.
Interactions Beyond the Client
Truthfulness & Communication with Represented Persons
For the 'No-Contact' Rule, think 'R.O.C.K.' – Represented, Opponent, Consent, Know. If a person is Represented and is your Opponent, you need their lawyer's Consent if you Know they are represented.
Interactions Beyond the Client
Truthfulness & Communication with Represented Persons
California's Rule of Professional Conduct 4.2 is substantially similar to the ABA Model Rule, prohibiting communication about the subject of the representation with a represented person unless consent or legal authorization exists. Key difference: California explicitly allows communications with a public official or body, even if represented, regarding matters within the official's or body's public duties.
Interactions Beyond the Client
Truthfulness & Communication with Represented Persons
Assuming the 'no-contact' rule only applies to parties, not witnesses or organizational constituents.
Interactions Beyond the Client
Truthfulness & Communication with Represented Persons
Believing that if a represented person initiates contact, the lawyer can engage in substantive discussion.
Interactions Beyond the Client
Truthfulness & Communication with Represented Persons
Confusing permissible 'puffery' in negotiations with outright false statements of material fact.
Interactions Beyond the Client
Unrepresented Person
An individual not represented by counsel in a matter.
Interactions Beyond the Client
Disinterested
Not biased or partial; a lawyer cannot appear this way to an unrepresented person.
Interactions Beyond the Client
Legal Advice
Guidance on legal rights/obligations; generally prohibited to unrepresented persons.
Interactions Beyond the Client
Third Person
Any individual or entity who is not the lawyer's client.
Interactions Beyond the Client
Embarrass, Delay, Burden
Prohibited purposes for lawyer's actions towards third persons.
Interactions Beyond the Client
Dealing with Unrepresented & Respecting Third Persons
UNREP: Understand, Not advise, Explain role, Recommend counsel, Embarrassment avoided, Protect rights.
Interactions Beyond the Client
Dealing with Unrepresented & Respecting Third Persons
California Rule 4.3 mirrors the ABA Model Rule regarding communicating with unrepresented persons, emphasizing the duty not to state or imply disinterestedness and to correct misunderstandings. California also prohibits using means to embarrass, delay, or burden third persons.
Interactions Beyond the Client
Dealing with Unrepresented & Respecting Third Persons
Assuming an unrepresented person understands your role without explicitly clarifying it.
Interactions Beyond the Client
Dealing with Unrepresented & Respecting Third Persons
Giving legal advice to an unrepresented person that conflicts with your client's interests, rather than advising them to seek their own counsel.
Interactions Beyond the Client
Dealing with Unrepresented & Respecting Third Persons
Using aggressive tactics against third parties solely to harass or intimidate, without a legitimate legal purpose.
Interactions Beyond the Client
Nonlawyer Assistant
Any person employed by a lawyer or firm who is not a licensed attorney.
Interactions Beyond the Client
Supervisory Duty
Lawyer's obligation to ensure nonlawyer conduct complies with ethical rules.
Interactions Beyond the Client
Direct Liability
Lawyer is responsible for nonlawyer's conduct if ordered or ratified it.
Interactions Beyond the Client
Vicarious Liability
Lawyer responsible for nonlawyer's misconduct due to supervisory failure.
Interactions Beyond the Client
Reasonable Efforts
Measures taken by lawyer to ensure nonlawyer's ethical conduct.
Interactions Beyond the Client
Remedial Action
Steps taken by lawyer to correct or mitigate nonlawyer's misconduct.
Interactions Beyond the Client
Responsibilities of Nonlawyer Assistants & Supervisors
Imagine a 'SUPER-visor' wearing a cape, making sure their 'NON-lawyer' sidekick (who's not allowed to fly solo!) doesn't accidentally practice law (UPL) or cause a legal 'CRASH.' The SUPER-visor is responsible if they 'KNOW' the sidekick is about to crash and don't act!
Interactions Beyond the Client
Responsibilities of Nonlawyer Assistants & Supervisors
California's Rules of Professional Conduct (Rule 5.3) are substantially similar to the ABA Model Rules regarding supervisory duties over nonlawyer assistants. Pay attention to scenarios where a lawyer 'knows' of misconduct and fails to take 'reasonable remedial action.' Keywords to spot include 'paralegal,' 'legal assistant,' 'secretary,' and actions like 'giving advice' or 'appearing in court.'
Interactions Beyond the Client
Responsibilities of Nonlawyer Assistants & Supervisors
Assuming nonlawyers inherently understand ethical boundaries without specific training.
Interactions Beyond the Client
Responsibilities of Nonlawyer Assistants & Supervisors
Delegating tasks that constitute the unauthorized practice of law (e.g., giving legal advice).
Interactions Beyond the Client
Responsibilities of Nonlawyer Assistants & Supervisors
Failing to review a nonlawyer's work, especially communications with clients or third parties.
Interactions Beyond the Client
Subordinate Lawyer
A lawyer who acts at the direction of another lawyer.
Interactions Beyond the Client
Supervisory Lawyer
A lawyer who directs the work of other lawyers or nonlawyer assistants.
Interactions Beyond the Client
Arguable Question
An ethical issue where the professional duty is genuinely ambiguous.
Interactions Beyond the Client
Reasonable Resolution
A supervisor's interpretation of an arguable ethical duty that is justifiable.
Interactions Beyond the Client
Law-Related Services
Non-legal services performed in conjunction with legal services, not unauthorized practice.
Interactions Beyond the Client
Client-Lawyer Protections
Benefits like privilege and confidentiality that apply to legal services.
Interactions Beyond the Client
Subordinate Lawyers & Law-Related Services
S.U.P.E.R. (Subordinate Under Pressure, Ethical Responsibility). Remember that even under pressure from a supervisor, you still have your own ethical responsibility, unless it's an 'arguable' issue with a 'reasonable' resolution.
Interactions Beyond the Client
Subordinate Lawyers & Law-Related Services
California Rule 5.2 (Responsibilities of a Subordinate Lawyer) is substantially similar to ABA Model Rule 5.2. For law-related services, California Rule 5.7 is also substantially similar to ABA Model Rule 5.7, requiring clear disclosure when providing non-legal services.
Interactions Beyond the Client
Subordinate Lawyers & Law-Related Services
Assuming that 'just following orders' is always a defense for a subordinate lawyer's ethical violation.
Interactions Beyond the Client
Subordinate Lawyers & Law-Related Services
Failing to recognize that law-related services can trigger the application of the Rules of Professional Conduct if not properly distinguished.
Interactions Beyond the Client
Subordinate Lawyers & Law-Related Services
Not understanding the difference between a clear ethical violation and an 'arguable question' of professional duty.
Interactions Beyond the Client
Advisor
Lawyer providing candid, independent professional judgment to a client.
Understanding Different Lawyer Roles
Candid Advice
Honest and straightforward counsel, including non-legal factors.
Understanding Different Lawyer Roles
Intermediary
Historical term for lawyer representing multiple clients in common matter.
Understanding Different Lawyer Roles
Common Representation
Representing multiple clients in a single matter under Model Rule 1.7.
Understanding Different Lawyer Roles
Withdrawal
Lawyer ceasing representation, especially if conflicts arise.
Understanding Different Lawyer Roles
Model Rule 2.1
Governs the lawyer's role as an advisor to clients.
Understanding Different Lawyer Roles
Model Rule 1.7
Governs conflicts of interest, including common representation.
Understanding Different Lawyer Roles
Lawyer as Advisor & Lawyer as Intermediary
ADVISE: Always Disclose Various Important Situations to Everyone. This reminds you that as an Advisor, you must disclose all relevant information and options.
Understanding Different Lawyer Roles
Lawyer as Advisor & Lawyer as Intermediary
California Rule of Professional Conduct 1.7.6 (Conflict of Interest – Current Clients) addresses common representation similarly to ABA Model Rule 1.7. Be aware of the specific written disclosure and consent requirements for representing multiple clients in a non-litigation matter where there are potential conflicts.
Understanding Different Lawyer Roles
Lawyer as Advisor & Lawyer as Intermediary
Failing to provide candid advice because it might upset the client.
Understanding Different Lawyer Roles
Lawyer as Advisor & Lawyer as Intermediary
Attempting common representation without obtaining informed consent, confirmed in writing, from all clients.
Understanding Different Lawyer Roles
Lawyer as Advisor & Lawyer as Intermediary
Continuing common representation when an irreconcilable conflict of interest arises between the clients.
Understanding Different Lawyer Roles
Evaluator
Lawyer providing opinion on client's affairs for third party.
Understanding Different Lawyer Roles
Non-Representation
Clarifying that no attorney-client relationship exists.
Understanding Different Lawyer Roles
Lawyer as Evaluator & Third-Party Neutral
E for Evaluator = 'External' opinion for a third party, always with 'Explicit' client consent if adverse. N for Neutral = 'No' client, 'No' bias, 'Notify' parties of non-representation.
Understanding Different Lawyer Roles
Lawyer as Evaluator & Third-Party Neutral
California Rule of Professional Conduct 2.4 (Lawyer as Third-Party Neutral) mirrors ABA Model Rule 2.4, emphasizing the duty to inform unrepresented parties that the lawyer is not representing them and to advise them to seek independent counsel. For evaluators, California Rule 1.6 on confidentiality and Rule 1.7 on conflicts apply similarly to the ABA Model Rules.
Understanding Different Lawyer Roles
Lawyer as Evaluator & Third-Party Neutral
Failing to obtain informed client consent when an evaluation might be materially adverse to the client's interests.
Understanding Different Lawyer Roles
Lawyer as Evaluator & Third-Party Neutral
Not clearly explaining to unrepresented parties in a third-party neutral role that the lawyer is not their attorney.
Understanding Different Lawyer Roles
Lawyer as Evaluator & Third-Party Neutral
Attempting to represent a party in a matter after serving as a third-party neutral in the same or a substantially related matter.
Understanding Different Lawyer Roles
Prosecutor's Duty
To seek justice, not merely to convict.
Understanding Different Lawyer Roles