BarMax MPRE Study Guide

I. Regulation of the Legal Profession (6% to 12%) A. Powers of Courts & Other Bodies to Regulate Lawyers 1. State Regulation every state has its own bar and its own rules for professional conduct. State courts, not state legislatures, have the ultimate authority to regulate the legal profession within any given state. The ABA Model Rules are just a model that a state may use when drafting its own professional rules. As such, each lawyer is subject to regulation by any state in which she has been admitted to practice. 2. Federal Courts every federal court has its own bar and a lawyer must be admitted before being permitted to practice before it. 3. Self-Policing By Attorneys under the ABA Model Rules, a lawyer has an ethical duty to aid in professional regulation. ! Mandatory Reporting of Professional Misconduct a lawyer who knows that another lawyer has committed a violation of the Rules of Professional Conduct that raises a substantial question as to that lawyer's honesty, trustworthiness or fitness as a lawyer in other respects, shall inform the appropriate professional authority. Similarly, a lawyer who knows that a judge has committed a violation of applicable rules of judicial conduct that raises a substantial question as to the judge's fitness for office shall inform the appropriate authority. o Knowledge? knowledge is defined under the ABA Model Rules as actual knowledge but this knowledge can be inferred from circumstance. o Exceptions ! Confidential Communications this rule does not require disclosure of information otherwise protected by the ethical duty of confidentiality (e.g. lawyer representing another lawyer). ! Approved Lawyers Assistance Program this rule does not require disclosure of information gained by a lawyer or judge while participating in an approved lawyers assistance program (e.g., substance abuse programs).

B. Admission to the Profession under the ABA Model Rules, a person must be psychologically and morally fit to practice law. Every state may restrict the practice of law to the members of the state bar because each state has an interest in maintaining the integrity of legal profession in order to protect the public. 1. Burden of Proof the burden of proof is on the applicant to demonstrate the necessary fitness. 2. Permissible Standards each state sets its own requirements for bar admission. However, to be permissible, these standards must have a rational relationship to the applicants fitness or capacity to practice law. ! Good Moral Character acts of moral turpitude demonstrate a lack of good moral character. o Acts of Moral Turpitude? ! Lying e.g. extortion, bribery, forgery, perjury, etc. ! Violence e.g. murder, etc. ! Theft ! Extreme Recklessness ! Sexual Misconduct

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BarMax MPRE Study Guide

False Statements or Concealing Material Information in Bar Application making false statements to or concealing material information from the admissions committee is considered sufficient lack of moral character to deny admission. Not Acts of Moral Turpitude? ! Negligent Crimes ! Unintentional Acts Bar Application Procedural Requirements a candidate may be denied admission to the Bar for making false statements, concealing material information or refusing to answer legitimate questions. ! False Statements an applicant must not make a false statement of material fact on the bar application. ! Concealing Material Information the applicant must not fail to disclose any material fact requested in connection with the application or required to correct a misinterpretation. Exception = Confidential Communications this obligation does not override the ethical duty of confidentiality. ! Refusal to Answer Legitimate Questions an applicant, however, may use the Fifth Amendment privilege against self-incrimination but must do so openly (e.g. I refuse to answer under my Fifth Amendment right) rather than using the right of nondisclosure as justification for failing to disclose or leaving out the incriminating info later on. !

Educational Requirements o J.D. from Accredited Law School o Mandatory Continuing Legal Education Bar Examination most jurisdictions require applicants to pass a bar examination.

3. Impermissible Standards ! Citizenship Qualifications standards requiring an attorney to be either a US citizen or a citizen of the state are unconstitutional. Political Beliefs generally, political beliefs may not be used as a reason to prevent admission to the bar. o Exceptions ! Refusal to Swear Allegiance to the State or US Constitution OR ! Actively Affiliating with Organization with Illegal Objectives with the Specific Intent to Further Those Objectives

C. Regulation after Admission (Lawyer Discipline) a lawyer is subject to discipline by the state bar for professional misconduct. A lawyer admitted to practice in a jurisdiction is subject to the disciplinary authority of that jurisdiction, regardless of where the lawyers conduct occurs. 1. Grounds for Discipline a lawyer does not need to be practicing law to violate these rules and be subject to discipline. ! Professional Misconduct by Attorney it is professional misconduct for a lawyer to:

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BarMax MPRE Study Guide

o Violate or Attempt to Violate a Disciplinary Rule violation (by the lawyer or by another at the lawyers direction), attempted violation, knowingly assisting or inducing a violation or using another person to commit a violation of a MRPC disciplinary rule. Engage in Criminal Conduct a criminal act that reflects adversely on the attorneys honesty, trustworthiness or fitness as a lawyer in other respects. Engage in Dishonesty, Fraud, Deceit or Misrepresentation engaging in conduct involving dishonesty, fraud, deceit or misrepresentation. Note: this conduct does not have to be illegal (e.g. cheating on the bar exam). Engage in Conduct Prejudicial to the Administration of Justice engage in conduct that is prejudicial to the administration of justice. State or Imply an Ability to Improperly Influence Government Agency or Official state or imply an ability to influence improperly a government agency or official or to achieve results by means that violate the Rules of Professional Conduct or other law.

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OR o Assist a Judge in Violating Judicial Code knowingly assisting a judge or judicial officer in conduct that is a violation of the ABA Model Code of Judicial Conduct. ! Responsibilities of Partners, Managers & Supervisory Lawyers a partner in a law firm, and a lawyer who individually or together with other lawyers possesses comparable managerial authority in a law firm, shall make reasonable efforts to ensure that the firm has in effect measures giving reasonable assurance that all lawyers in the firm conform to the Rules of Professional Conduct. o Duty to Supervise Subordinates each lawyer, having direct supervisory authority over another lawyer, shall make efforts to supervise her subordinates (e.g. associates) to ensure that these subordinates comply with the rules of professional responsibility. o Ethical Violations of Subordinates a lawyer shall be responsible for another lawyer's violation of the Rules of Professional Conduct if: ! Orders or Ratifies the Conduct Involved the lawyer orders or, with knowledge of the specific conduct, ratifies the conduct involved; OR ! Supervising Attorney Responsible If the lawyer is a partner or has comparable managerial authority in the law firm in which the other lawyer practices, or has direct supervisory authority over the other lawyer, and knows of the conduct at a time when its consequences can be avoided or mitigated, but fails to take reasonable remedial action. Knew of Unethical Conduct at Time When Consequences Could Be Avoided or Mitigated AND Fails to Take Reasonable Remedial Action Duty to Make Independent Judgments each lawyer is responsible for her own behavior. o Exception: Debatable Ethics Questions lawyers may follow instructions from superiors on debatable ethics questions as long as the conduct instructed is reasonable. Ethical Violations of Other Attorneys an attorney is not responsible for ethical violations of another attorney unless: o Supervisory Authority that Fails to Take Remedial Action discussed above. OR

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BarMax MPRE Study Guide

o Orders or Ratifies Unethical Conduct if the lawyer orders or, with knowledge of the specific conduct, ratifies the conduct involved, the lawyer can be disciplined for doing so.

2. Forms of Discipline the Model Rules do not set forth sanctions or discipline for misconduct. Sanctions are determined by the individual states (or federal courts). ! Disbarment permanent revocation of a lawyers license to practice within the jurisdiction. Suspension temporary revocation for a definite period of time. The right to practice law within the jurisdiction is automatically reinstated at the end of the suspension. Public or Private Censure by the court or state bar association.

D. Unauthorized Practice of Law only admitted attorneys are subject to the ABA Model Rules. 1. Practice of Law? activities involving legal knowledge and skill, advice in regard to binding legal rights or other activities traditionally performed by lawyers. ! ! ! Legal Knowledge & Skill Advice on Binding Legal Rights only an attorney can give legal advice. Other Activities Traditionally Performed by Lawyers o Drafting Legal Documents the general rule is that only a lawyer may draft legal documents. ! Exceptions Pro Se Legal Documents a nonlawyer may draft her own legal documents (e.g. a will or a contract). Fill in the Blank Documents a nonlawyer is permitted to fill in the blanks of a legal document drafted by an attorney (e.g. real estate agent and escrow contracts). o Appearing in Court to Represent or Assist the general rule is that only a lawyer may appear in court to represent or assist others. ! Exceptions Pro Se Representation a nonlawyer has the right to represent herself in court. o Corporations Always Require an Attorney a corporation, however, must always be represented by an attorney. Students in most jurisdictions, law students are allowed to appear in court to represent or assist others (i.e. clinical programs).

2. Unauthorized Practice of Law by Lawyers ! Not Admitted for Practice in Jurisdiction generally, a lawyer is prohibited from practicing law in a jurisdiction where her license has been suspended or revoked, or where she has not been admitted to practice. o Exceptions ! Pro Hac Vice Status a lawyer who has not been admitted to practice in a certain state may ask a court for permission to participate in a

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BarMax MPRE Study Guide

! particular case in that state. Pro Hac Vice status, however, is entirely up to the discretion of the court. Temporary Practice Arising Out of Authorized Practice a lawyer may practice in a jurisdiction where she has not been admitted to practice, if it is reasonably related to practice in a jurisdiction where the lawyer has been admitted to practice (e.g. taking a deposition in another state) or reasonably related to a pending or potential arbitration, mediation or other alternative dispute resolution.

Assisting Nonlawyer in Unauthorized Practice of Law a lawyer is prohibited from assisting a nonlawyer, including a suspended or disbarred lawyer, in the unauthorized practice of law. o Exception: Pro Se Representation a lawyer may assist a nonlawyer in pro se representation. This makes sense because pro se representation is not the unauthorized practice of law. It is expressly authorized. Fee Splitting with a Nonlawyer generally, lawyers are prohibited from sharing fees with nonlawyers. This is considered a duty to both uphold the dignity of the profession and a duty to protect the public. o Exceptions ! Employee Compensation or Retirement Plans a lawyer may split fees with her employees through compensation or pension benefits. ! Estate of Deceased Lawyer a lawyer may transfer a deceased lawyers partnership share to the estate of the deceased lawyer. ! Non-Profit Organization a lawyer may share court awarded legal fees with a non-profit organization that employed or recommended the lawyer. Duty Not to Enter Partnership to Practice Law with a Nonlawyer a lawyer has a duty not to enter into a partnership with a nonlawyer when she plans to practice law. Lawyers are allowed to form partnerships with each other, but they cannot form partnerships with another type of professional or nonlawyer, such as a CPA, if any part of the business is to practice law. o Separate & Apart Businesses a lawyer may own and operate a business with non-lawyers that is separate and apart from the practice of law.

E. Law Firms 1. Incorporation if permitted by state law, a law firm may incorporate so long as all officers, directors and shareholders are attorneys. 2. Buying & Selling of Law Firms a lawyer or a law firm may sell or purchase a law practice, or an area of law practice, including good will, if the following conditions are satisfied: ! Seller Ceases to Engage in the Private Practice of Law the seller ceases to engage in the private practice of law (or in the area of practice that has been sold), or within the geographic area or jurisdiction in which the practice has been conducted; Entire Practice or Area of Practice Sold the entire practice, or the entire area of practice, is sold to one or more lawyers or law firms; Written Notice to Clients the seller gives written notice to each of the seller's clients regarding:

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BarMax MPRE Study Guide

o The Proposed Sale AND o Right to Retain Other Counsel or Take Possession of the File the client's right to retain other counsel or to take possession of the file. ! 90 Days Presumption of Consent the client's consent to the transfer of the client's files will be presumed if the client does not take any action or does not otherwise object within ninety (90) days of receipt of the notice. AND ! No Immediate Increase in Fees the fees charged clients shall not be increased by reason of the sale.

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