LECTURE NOTES

MPRE REVIEW

MPRE REVIEW

Taking notes while watching the online lecture isn’t necessary. If you
prefer to take notes, this document provides a space to write notes next to
topics as they are covered in the lecture.

For exam review, be sure to use your Comprehensive Outline and Conviser
Mini Review.

Copyright © 2021 by BARBRI, Inc.

 MPRE REVIEW

NOTES
1 REGULATION OF THE
LEGAL PROFESSION

INTRODUCTION TO THE MPRE

Exam Format
• 60 multiple choice questions
• 50 graded questions
• 10 experimental questions (indistinguishable)
Answer every question!
• Two hours
• Tests ABA Model Rules

Study Process
Step 1: Watch this lecture and do the Learning Ques-
tion sets.
• The Learning Questions are there to teach you, not
to quiz you
Step 2: Read the Comprehensive Outline in your book
for finer points and more examples.
Step 3: Do the Practice Questions and read the ex-
planatory answers.

POWER TO REGULATE THE LEGAL PRO-

FESSION

State’s Highest Court

• Adopts ethical rules
• Enforces through disciplinary commission or bar
association

1
 MPRE REVIEW

NOTES
Congress and State Legislatures
Have enacted laws that govern certain aspects of law
practice (e.g., attorney-client privilege).

ADMISSION TO THE LEGAL PROFESSION

Admission Requirements
Must be rationally related to the practice of law, e.g.:
• Graduation from accredited law school
• Oath to uphold the constitution
• Good moral character

Effect of Criminal Acts and Other Misconduct

To result in rejection, misconduct must involve moral
turpitude:
• Crimes involving intentional dishonesty
• Crimes of violence
• Lying is always moral turpitude even if not crime

Requirements That Are NOT Rational

• Citizenship

• Residency

DUTY TO COOPERATE WITH

CHARACTER INVESTIGATIONS
• No knowingly false statements of material fact
• Respond to all requests for information
• Correct any misapprehensions
But NOT required to disclose confidential information.

2
 MPRE REVIEW

NOTES
WHAT CONSTITUTES PROFESSIONAL
MISCONDUCT?
Violating Rules of Professional Conduct
• Violating the RPC
• Attempting to violate the RPC
• Helping someone else violate the RPC
• Using someone else to violate the RPC

Committing Certain Crimes

Crimes relevant to honesty, trustworthiness, or fit-
ness.

Committing Certain Acts

Acts of dishonesty, fraud, deceit, or misrepresenta-
tion.

Conduct Prejudicial to Administration of Justice

Harassment or Discrimination in Connection

with Law Practice
• No harassment or discrimination based on race,
sex, religion, national origin, ethnicity, age, sexual
orientation, gender identity, marital status, or socio-
economic status
• Does not affect ability to accept, decline, or with-
draw from a case
• Trying to promote diversity is not a violation

3
 MPRE REVIEW

NOTES
DUTY TO REPORT MISCONDUCT OF
OTHERS
Mandatory Reporting of Violation
Violation raises substantial question as to lawyer’s
honesty, trustworthiness, or fitness to practice.

When Reporting Is Not Mandatory

• Question raised was not substantial
• Suspect violation, but don’t know

Exceptions to Mandatory Reporting

• Violation of duty of confidentiality to a client
• Learned of violation in lawyer’s assistance pro-
gram

DISCIPLINARY AUTHORITY
• Any state where lawyer is admitted
• Any state where lawyer provided or offered ser-
vices

4
 MPRE REVIEW

NOTES
1 REGULATION OF THE
LEGAL PROFESSION
(CONTINUED)
UNAUTHORIZED PRACTICE OF LAW
Unauthorized practice = practicing without a license.
Subject to discipline for engaging in unauthorized
practice or assisting someone else in unauthorized
practice.

Practice of Law
• Appearing at judicial proceeding
• Drafting documents
• Negotiating settlements
• Giving legal advice

NOT the Practice of Law

• Interviewing people
• Filling in forms
• Preparing tax returns
Appearing pro se is NOT unauthorized practice! A
lawyer can help someone do that.

MULTI-JURISDICTIONAL PRACTICE
Methods of Temporary Out-of-State Practice
• Associate with locally licensed attorney
• Admission pro hac vice
• Mediation or arbitration
• Matter reasonably related to home state practice

5
 MPRE REVIEW

NOTES
Permanent Out-of-State Practice
• In-house counsel and government lawyer can en-
gage in non-litigation practice across state lines
• Lawyers in certain restricted fields are specifically
authorized by law to practice in other states

RESPONSIBILITY OF PARTNERS,
MANAGERS, AND SUPERVISORY
LAWYERS
Duty to Prevent Ethical Violations
• Partners and managers must take reasonable
measures to ensure compliance with RPC
• Supervisory lawyers have same duty with respect
to subordinates

Vicarious Responsibility
• Ordered or ratified misconduct
• Failed to avoid or mitigate consequences of viola-
tion
Partners, managers, and supervisors have the same
duties as above with respect to nonlawyers working
on client matters (both inside and outside the firm).

RESPONSIBILITIES OF A SUBORDINATE
LAWYER
Acting on orders of another lawyer does not excuse
misconduct unless it was a reasonable resolution of
an arguable question of professional duty.

6
 MPRE REVIEW

NOTES
PROFESSIONAL INDEPENDENCE
• No partnerships with nonlawyers if any partnership
activities involve practice of law
• No nonlawyer control or ownership interest in firm
• No fee splitting with nonlawyers (with limited ex-
ceptions below)

When Fee Splitting with Nonlawyer Permitted

• Death benefits to lawyer’s estate
• Funds to purchase practice from deceased, dis-
abled, or disappeared lawyer
• Bonus plans and regular salaries
• Court-awarded legal fees to nonprofit that retained
or recommended lawyer

RESTRICTIONS ON RIGHT TO PRACTICE

LAW
• Law firm-related agreements can’t restrict right to
practice when relationship ends, except for retire-
ment benefit agreements
• Settlement agreements for clients can’t restrict
right to practice

SELLING AND PURCHASING A LAW

PRACTICE
Seller’s Duties
• Sell entire practice or practice area

7
 MPRE REVIEW

NOTES
• Written notice to clients that includes notice of
sale, right to obtain other counsel or take pos-
session of their files, and the fact that consent to
transfer is presumed after 90 days
• Generally cannot continue private practice in local
area

Buyer’s Duties
Must honor existing fee arrangements.

RESPONSIBILITIES FOR LAW-RELATED

SERVICES
Lawyers can provide law-related services alongside
legal services.

When RPC Apply to Law-Related Services

• When services are not distinct from legal services
• When lawyer owns or controls entity providing
services and does not take reasonable steps to
ensure recipients understand that protections of
attorney-client relationship don’t apply

8
 MPRE REVIEW

NOTES
2 THE CLIENT-LAWYER
RELATIONSHIP

FORMATION OF RELATIONSHIP
• Lawyer and client agreement
• Implied assent and reasonable reliance
• Court appointment

FEES IN GENERAL
Types of Fees
• Hourly fee
• Flat fee
• Contingency fee
• Can be in the form of non-monetary property

Formalities
• Written fee agreement required for contingent
fees
• Written fee agreement preferred for all other fees

All Fees Must Be Reasonable

Many factors considered, including:
• Time and labor
• Complexity
• Nature of relationship
• Fixed or contingent fee

9
 MPRE REVIEW

NOTES
CONTINGENT FEES
When Contingent Fees Not Allowed
• Criminal cases
• Domestic relations cases (but allowed in collec-
tions cases)

Formalities for Contingent Fee Agreements

Must be in writing and signed by the client, and must
disclose:
• Who is paying expenses
• How fee will be calculated
• Which expenses will be deducted and when
Must also provide written statement at case conclu-
sion.

DIVIDING FEES WITH OTHER LAWYERS

Fee Splitting with Lawyers Within Firm—Allowed
Lawyer can share fees with current lawyers in their
firm, retired members of their firm, and former firm
members with pending cases.

Fee Splitting with Lawyer from Different Firm—

Requirements
• Both lawyers must be involved or responsible
Option 1: Split proportionate to services performed
by each
Option 2: Each assumes joint responsibility and
split the fee any way they like

10
 MPRE REVIEW

NOTES
• Client consent to arrangement and shares, con-
firmed in writing
• Total fee must be reasonable

SCOPE OF REPRESENTATION AND

DECISION-MAKING AUTHORITY
Representation
• Client generally decides scope, but lawyer can limit
• Can’t advise or help to do something illegal or
fraudulent

Client’s Decision-Making
• Civil Cases: Whether to settle
• Criminal Cases: What plea to enter, whether to
waive a jury trial, whether client will testify
• All Cases: Whether to appeal

Lawyer’s Decisions
Lawyer generally makes strategic decisions, but must
consult with client about how the work is done.

LAWYER’S AUTHORITY TO BIND CLIENT

Lawyer’s actions will bind client when lawyer has actu-
al or apparent authority.
Actual authority: Communicated by client to lawyer
expressly or impliedly.
Apparent authority: Third party believes lawyer has
authority based on client’s actions.

11
 MPRE REVIEW

NOTES
VULNERABLE CLIENTS
• Maintain normal relationship to the extent possible
• If client at risk of substantial harm, can take protec-
tive action
• When taking protective action, lawyer impliedly
authorized to disclose client’s confidential infor-
mation to the extent necessary to protect client’s
interests

COMMUNICATING WITH THE CLIENT

Required Communication with Client
• Case status updates
• Game plan
• Response to reasonable requests for info
• Anything that requires informed consent

Settlement and Plea Offers

Must promptly inform client of settlement and plea
bargain offers unless client has expressly authorized
acceptance or rejection of certain offers.

TERMINATION OF REPRESENTATION
Must Decline or Withdraw
• Physical or mental condition materially impairs abil-
ity to represent client
• Representation requires violation of RPC
• Fired by client

12
 MPRE REVIEW

NOTES
Permissive Withdrawal
• Any reason if no material adverse effect
• Reasonable belief client doing something criminal
or fraudulent involving lawyer’s services
• Client used lawyer’s services in past crime or fraud
• Client’s actions repugnant
• Client makes representation unreasonably difficult
• Client hasn’t paid and has been warned
• Unreasonable financial burden
• Other good cause

POST-TERMINATION ISSUES
• Reasonable notice to client
• Refund advance payments if not earned
• Return client’s file unless permitted by law to retain

13
 MPRE REVIEW

NOTES
3 CLIENT CONFIDENTIALITY

ATTORNEY-CLIENT PRIVILEGE VS. DUTY

OF CONFIDENTIALITY
Attorney-Client Privilege
• Communications only
• Applies only to disclosures in proceedings

Duty of Confidentiality
• All information relating to representation
• Applies to disclosures in any setting

SUMMARY OF ATTORNEY-CLIENT
PRIVILEGE
Attorney: Any person the client consults to obtain
legal assistance.
Client: Anyone seeking lawyer’s legal services.
Agents: Includes support staff, someone else brought
in to assist with the matter, and someone who’s there
to help client communicate.
Communication: Information passed between lawyer
and client for the purpose of obtaining legal assis-
tance for the client.
• Does NOT cover communications not made for
legal assistance
• Does NOT cover pre-existing documents or re-
cords
Confidential: Reasonable belief that outsiders will not
learn the contents of the communication.

14
 MPRE REVIEW

NOTES
• Eavesdropper—communication generally remains
privileged
Who Holds Privilege: Client holds the privilege and
decides to claim or waive it, but lawyer must claim on
client’s behalf in client’s absence.
Waiver of Privilege: Attorney, agent, or client can
waive privilege by failing to object, or disclosing to
third party.
Major Exceptions to Privilege:
• Aid in future crime or fraud
• Self-protection
• Litigation between former joint clients
• Competency or intent of deceased client

SUMMARY OF WORK-PRODUCT
DOCTRINE
Anything made in anticipation of litigation generally
isn’t discoverable UNLESS opponent shows substan-
tial need and undue hardship (but even in that case,
mental impressions or opinions don’t need to be dis-
closed).

DUTY OF CONFIDENTIALITY
• Broader than privilege
• Third party’s knowledge does not affect duty
• Information need not come from client
• Cannot disclose to anyone

Informed Consent and Implied Authority

• Can disclose with client consent

15
 MPRE REVIEW

NOTES
• Authority to disclose may be implied if disclosure is
in client’s interests

EXCEPTIONS TO DUTY OF
CONFIDENTIALITY
• Prevent death or substantial bodily harm
• Prevent/rectify substantial financial injury to anoth-
er if services used in furtherance
• Defend self in dispute concerning lawyer’s conduct
• Obtain legal ethics advice
• Detect and resolve conflicts of interest due to
change of employment, merger, or sale of practice
• Comply with court order or law
Note: Duty of candor to tribunal > duty of confidential-
ity.

ACTING COMPETENTLY TO PRESERVE

CONFIDENTIALITY
Must safeguard confidential information by making
reasonable efforts to prevent disclosure or access.

16
 MPRE REVIEW

NOTES
4 CONFLICTS OF INTEREST
Conflicts can result in discipline, disqualification from
the case, and even malpractice liability.

RULE OF IMPUTATION
Conflicts are imputed to everyone at firm, except:
• Conflict uniquely personal to lawyer
• Certain conflicts based on past work of lawyer
screened from case

GENERAL CONFLICTS WITH CURRENT

CLIENTS
Rule
Can’t represent client if:
• Representation will be directly adverse to another
client, or
• Significant risk that representation will be materi-
ally limited by another interest

Requirements for Waiving General Conflicts

• Reasonable belief can represent each competent-
ly and diligently
• Informed consent, confirmed in writing from each
affected client
Note: Being on opposite sides of the same litigation →
unwaivable.

Direct Adversity Examples

• Clients on opposite sides of same matter

17
 MPRE REVIEW

NOTES
• Representing client’s opponent in another matter
• Cross-examining current client in another matter

Material Limitation
When representation will be materially limited by:
• Lawyer’s responsibilities to different client, former
client, or third person
• Lawyer’s personal interests

Representing Co-Parties in a Case

In criminal cases, the risk of conflict is high and joint
representation isn’t advisable.
In civil cases, the conflict can usually be addressed:
• Must reasonably believe can represent all par-
ties well
• Must explain consequences
• Must get informed consent
• Must re-address conflict if potential conflict
becomes real
• Must withdraw if reasonable lawyer would ad-
vise any client against consent
• Must get consent of dropped clients if continu-
ing to represent any co-parties

Lawyer’s Personal Interests

• Representation may continue with client con-
sent
• Uniquely personal conflict (e.g., family member
is opposing counsel) is not imputed to firm

18
 MPRE REVIEW

NOTES
Lawyer’s Duties to Former Clients and Third Parties
Representation may be limited:
• Where lawyer owes a duty of confidentiality to
a former client
• Where lawyer is corporate director
• When lawyer acts as fiduciary

SPECIFIC CONFLICTS WITH CURRENT

CLIENTS
Misuse of Client’s Confidential Information
Must not use client’s information against them without
informed consent.

Business Transactions with Clients

• Transaction must be fair and reasonable to client
• Lawyer must disclose all terms to client in writing,
in a way the client understands
• Lawyer must advise client in writing to get inde-
pendent counsel
• Client must give informed consent in a signed
writing

Acquiring an Interest in the Subject Matter of

Litigation
No proprietary interest in cause of action or subject
matter of litigation, except:
• Contingent fees
• Lien on client’s recovery (if authorized by law)

19
 MPRE REVIEW

NOTES
Gifts from Clients
A lawyer cannot:
• Solicit substantial gift from client unless relative
• Prepare instrument giving lawyer or relative sub-
stantial gift unless donee related to client

Literary or Media Rights

• Cannot have interest in book, movie, or other por-
trayal during representation
• Lawyer can have interest in media rights when
case is completely over

Financial Assistance to Client in Litigation

• No financial help to client in connection with pend-
ing or contemplated litigation
• Cannot guarantee loan from someone else to
client

Exceptions
• May advance court costs and expenses
• May pay court costs and expenses for indigent
client
• When representing indigent client pro bono,
may give client modest gifts for basic living
expenses

Aggregate Settlement Agreements

• Fully explain the claims and what everyone’s get-
ting
• Get informed consent from each client in a signed
writing

20
 MPRE REVIEW

NOTES
Third Party Paying for Representation
• Client must give informed consent
• Third party cannot interfere with relationship
• Cannot reveal client’s confidential information

Sexual Relations with Clients

• Preexisting sexual relationship generally OK
• Subject to discipline if sexual relationship follows
attorney-client relationship
• Conflict not imputed to the firm

21
 MPRE REVIEW

NOTES
4 CONFLICTS OF INTEREST
(CONTINUED)

FORMER CLIENT CONFLICTS

Ongoing Duty of Confidentiality
Can’t reveal confidential information or use it to former
client’s disadvantage without consent, unless informa-
tion has become generally known.

Opposing Former Clients

Cannot represent new client against former client if
matter is same or substantially related to former cli-
ent’s matter, unless former client consents.

Meaning of “Substantially Related”

• Same transaction/legal dispute, OR
• Substantial risk confidential information would
materially advance new client’s position

Former Firm’s Client

Cannot work on opposite side if actually acquired con-
fidential information about the matter while at former
firm.

Former Client Conflicts—Disqualification of

Lawyer’s New Firm
If incoming lawyer has conflict, firm can screen the
disqualified lawyer:
• No sharing of fees
• No access to case files

22
 MPRE REVIEW

NOTES
• Notice to former client with disclosures about pro-
cedures
• Updates to former client

Former Client Conflicts—Disqualification of

Lawyer’s Old Firm
When client leaves, firm disqualified from represent-
ing other side in same or substantially related matter
if even one lawyer remaining at firm has confidential
information about the case, unless former client con-
sents.

PROSPECTIVE CLIENT CONFLICTS

• No adverse representation in same or substantial-
ly related matter if confidential information would
be significantly harmful to prospective client
• Conflict imputed to firm but can be cured with
screening

GOVERNMENT CONFLICTS
Government → Private Practice
Cannot represent private client without government
agency’s consent if:
• Same “matter” (must involve specific facts and
parties)
• Lawyer worked personally and substantially on
matter while in government
• Conflict imputed to firm but cured with screening

23
 MPRE REVIEW

NOTES
Confidential Government Information
If lawyer acquired confidential government information
about a person during government employment, can’t
represent private client against them later.

Private Practice → Government

Normal conflict rules, plus:
• Cannot take part in any matter personally and
substantially involved in while in private practice,
unless government agency consents

FORMER JUDGE OR THIRD-PARTY

NEUTRAL
• Cannot represent client in matter lawyer was per-
sonally and substantially involved in as a judicial
actor or third-party neutral, or as a law clerk, unless
all parties to the proceeding consent
• Conflict imputed to firm but cured by screening,
notice to all parties, and notice to the affected
tribunal

GOVERNMENT EMPLOYEE, JUDGE, OR

THIRD-PARTY NEUTRAL NEGOTIATING
FOR EMPLOYMENT
• Government employee, judge, or third-party neu-
tral cannot negotiate for private employment with
any party in a matter they are personally or sub-
stantially involved with
• Exception for law clerks who give advance notice
to judge

24
 MPRE REVIEW

NOTES
5 COMPETENCE, LEGAL
MALPRACTICE, AND
OTHER CIVIL LIABILITY

DUTY OF COMPETENCE
Must act with the knowledge, skill, thoroughness, and
preparation necessary to do the work.

Avoiding a Competence Problem

• Associate
• Learn it in time
• Emergency

DUTY OF DILIGENCE
Must act with reasonable diligence and promptness.

CIVIL LIABILITY TO CLIENT

Negligence
• Duty of care
• Breach of duty
• Causation
• Damages

Duty of Care
• Competence and diligence exercised by attor-
neys in similar circumstances
• Specialist held to higher standard

25
 MPRE REVIEW

NOTES
Examples of Breach
• Missing deadlines
• Failure to send to specialist
• Bad advice
Note: No breach if judgment was well-informed and
reasonable.

Causation
• But for malpractice, client would have won
• But for malpractice, client would not have had
to pay a large judgment

CIVIL LIABILITY TO NON-CLIENTS

Duty of care owed to:
• Prospective clients given legal advice
• Those intended to benefit from legal services
• Those invited to rely on opinion or legal services

LAW FIRM’S VICARIOUS LIABILITY

Firm is vicariously liable for damages caused by some-
one at firm if:
• Action was in ordinary course of business, or
• Person was authorized to act
In a general partnership, all partners are jointly and
severally liable for firm obligations.

SETTLING MALPRACTICE CLAIMS

Before settling claim or potential claim with current or
unrepresented former client, lawyer must:

26
 MPRE REVIEW

NOTES
• Advise them in writing to obtain independent
counsel
• Give them reasonable opportunity to do so

PROSPECTIVELY LIMITING
MALPRACTICE LIABILITY
Cannot make agreement with client saying:
• They can’t sue the lawyer
• Lawyer has no responsibility for work
• Lawyer is liable only to certain amount
UNLESS client is independently represented.

27
 MPRE REVIEW

NOTES
6 LITIGATION AND OTHER
FORMS OF ADVOCACY

MERITORIOUS CLAIMS AND

CONTENTIONS
Lawyer cannot:
• Bring frivolous claim
• Assert frivolous defense
• Take frivolous position

Meaning of Frivolous
• No good faith argument under current law, AND
• No good faith argument for changing law

Exception
When representing criminal defendant or one who
could be jailed, can make prosecutor prove every
element.

EXPEDITING LITIGATION
• Must make reasonable efforts to expedite litigation
consistent with client’s legitimate interests
• Financial benefit is not legitimate interest

CANDOR TO THE TRIBUNAL

Honesty when advocating before an official or body
that issues binding legal judgment.

Candor Regarding Law

• Cannot knowingly make false statements of law

28
 MPRE REVIEW

NOTES
• Must correct unintentional, material false state-
ments
• Must disclose adverse controlling law if opponent
fails to

Candor Regarding Facts

• Cannot knowingly make false statements of fact
• Must correct unintentional, material false state-
ments
• No duty to volunteer facts (except in ex parte pro-
ceedings)

False Evidence
• Cannot offer evidence lawyer knows to be false
• May refuse to offer evidence lawyer reasonably
believes is false (except testimony of a criminal
defendant)
• If false evidence offered, must take reasonable
remedial measures (supersedes confidentiality)
• Duty to rectify continues until proceeding is com-
pletely over, appeals and all

False Testimony by Criminal Defendant Client

• Try to persuade otherwise
• Consider withdrawal
• If all else fails, disclose situation to judge
Note: Some jurisdictions allow narrative testimony, but
that is not the ABA approach.

29
 MPRE REVIEW

NOTES
FAIRNESS TO OPPOSING PARTY AND
COUNSEL
Cannot:
• Hide, tamper with, or falsify evidence
• Make frivolous discovery requests
• Advise a person not to talk to the other side, UN-
LESS the person is the client, the client’s relative,
or the client’s agent
• Make unlawful payments to witnesses
• Violate a court rule or order (but can openly refuse
to obey on the basis that it is not valid)

Fairness in Trials
• Cannot allude to anything inadmissible
• Cannot assert personal knowledge
• Cannot state personal opinion about justness of
cause, credibility of witness, or guilt or innocence
of party

IMPARTIALITY AND DECORUM OF THE

TRIBUNAL
• Cannot attempt to influence court or jurors in way
prohibited by RPC
• Cannot disrupt proceedings
• Cannot speak to judge or court officials without
other side present
• Cannot talk to jurors about ANY subject during
case

30
 MPRE REVIEW

NOTES
• Post-discharge interviews of jurors allowed unless
juror does not want to talk, or it involves misrepre-
sentation, coercion, or harassment

TRIAL PUBLICITY
No public statement if lawyer should know it is likely to
cause material prejudice, including:
• Character or credibility
• Results of examinations
• Whether defendant will plead guilty
• Whether defendant confessed
• Anything inadmissible at trial

Permitted Statements
• Dry facts of case
• “They started it”—can make statement to protect
client from prejudice caused by another

ADVOCATE AS WITNESS
Lawyer can’t act as advocate in case where lawyer is
likely to be a necessary witness.

Exceptions to Disqualification
• Testimony concerns uncontested matters or for-
mality
• Testimony concerns the nature and value of legal
services in the case
• Withdrawal would cause substantial hardship to
client

31
 MPRE REVIEW

NOTES
If disqualified under this rule, disqualification not
imputed to firm but generally need client consent,
confirmed in writing, if another lawyer at the firm takes
over.

32
 MPRE REVIEW

NOTES
7 TRANSACTIONS AND
COMMUNICATIONS WITH
PERSONS OTHER THAN
CLIENTS

TRUTHFULNESS IN STATEMENTS TO
OTHERS
• Must not knowingly make false statement of mate-
rial fact or law to third person
• Must disclose material fact necessary to avoid
helping client commit crime or fraud (BUT must
stay within confidentiality rules)

COMMUNICATIONS WITH REPRESENTED

PERSONS
• When representing a client in a matter, must get
counsel’s consent before talking to represented
person about the matter
• Parties can communicate directly with each other

Organizations
Need permission from organization’s counsel to talk
to:
• Anyone with authority to obligate organization
• Anyone whose conduct can be imputed to organi-
zation
• Anyone who supervises or regularly consults with
organization’s lawyer

33
 MPRE REVIEW

NOTES
COMMUNICATIONS WITH
UNREPRESENTED PERSONS
• Can communicate with unrepresented person, but
must not act disinterested
• Must not give unrepresented person legal advice if
reasonably possible their interests will conflict with
client’s

HEAVY-HANDED TACTICS
Cannot do something with no substantial purpose
other than to embarrass, delay, or burden someone.

RECEIVING DOCUMENTS SENT

INADVERTENTLY
Must promptly notify sender so sender can take pro-
tective measures.

34
 MPRE REVIEW

NOTES
8 DIFFERENT ROLES OF THE
LAWYER

LAWYER AS ADVISOR
Must be candid, and can give client moral, economic,
social, or political advice in addition to legal advice.

EVALUATING CLIENT’S AFFAIRS FOR

THIRD PARTY
Can evaluate client’s affairs if doing so is compatible
with other responsibilities to client.
• No significant risk to client → impliedly authorized
to disclose to third party
• Materially harmful to client → client’s informed
consent required before disclosure

LAWYER AS NEGOTIATOR
No false statements of material fact in negotiations,
but can “puff” (e.g., on estimates of price or value, or
acceptable settlement limits).

LAWYER AS THIRD-PARTY NEUTRAL

When lawyer acts as mediator, arbitrator, etc., must
make sure unrepresented parties understand that law-
yer is not representing them.

LAWYER AS PROSECUTOR
Prosecutors must:
• Have probable cause

35
 MPRE REVIEW

NOTES
• Ensure accused advised of right to counsel, how to
get counsel
• Ensure accused given opportunity to get counsel
• Not attempt to get accused to waive important
pretrial rights
• Disclose evidence favorable to defendant
• Promptly disclose any new, credible, and material
evidence of wrongful conviction
• Try to remedy conviction if clear and convincing
evidence of innocence, and conviction in own juris-
diction
• Not subpoena other lawyers to give evidence
about clients unless evidence is essential, not privi-
leged, and cannot be obtained in another way

LAWYER APPEARING IN NON-

ADJUDICATIVE PROCEEDING
Must disclose if appearing on behalf of client (but
need not identify client).

LAWYER REPRESENTING ORGANIZATION

Relationship with Constituents
• Duty of loyalty to organization, not people
• Representing both organization and person in
organization requires both to waive with informed
consent
• If interests conflict, lawyer must tell person work-
ing for organization they don’t represent them and
communications aren’t covered by privilege

36
 MPRE REVIEW

NOTES
Violations
If counsel learns that someone in organization violated
duty or law that may cause substantial harm to organi-
zation:
• Counsel normally has duty to report inside organi-
zation
• If no action taken, counsel MAY report to outside
authority even if confidentiality applies

37
 MPRE REVIEW

NOTES
9 SAFEKEEPING FUNDS AND
OTHER PROPERTY

COMMINGLING AND TRUST ACCOUNTS

Safeguarding Property of Others
• No commingling with own property
• Held to standard of fiduciary

Trust Accounts
• Firm’s money in office account
• Client money in trust account, including advance
payments (firm can put own money in client trust
account for bank services charges only)

RECORDKEEPING, NOTIFICATION, AND

DELIVERY
Lawyer must:
• Keep complete records of all money and property
• Preserve records for five years after representation
• Comply if client requests accounting
• Promptly notify client or third party upon receipt of
property in which they have interest
• Promptly deliver property

DISPUTED PROPERTY
Dispute Between Lawyer and Client
Must keep disputed portion in client trust account until
dispute resolved.

38
 MPRE REVIEW

NOTES
Dispute Between Client and Third Party
If third party has a valid claim (e.g., creditor with lien),
must keep disputed portion of recovery in client trust
account until dispute resolved.

39
 MPRE REVIEW

NOTES
10 COMMUNICATIONS
ABOUT LEGAL SERVICES

COMMUNICATIONS MUST NOT BE FALSE

OR MISLEADING
Must not make false or misleading statements.
Omitted facts: Misleading if leaves out fact necessary
to make communication as a whole not materially
misleading.
Unfounded conclusions: Misleading if substantial
likelihood reasonable person will formulate specific
conclusion without reasonable factual foundation.
Unjustified expectation based on past results: Mis-
leading if reasonable person could think that lawyer
could do as well in a similar case, without regard to
facts and law in that case.
Unsubstantiated comparisons: Misleading if reason-
able person would think comparison can be substanti-
ated.

REQUIRED INFORMATION
All communications about lawyer or legal services
must include:
• Name of at least one lawyer or firm responsible
for content
• Contact information (can be phone number, physi-
cal office location, email address, or website ad-
dress)

40
 MPRE REVIEW

NOTES
FIRM NAMES, LETTERHEADS, OR OTHER
DESIGNATIONS
• Generally can include names of deceased or re-
tired partners
• If named partner is in public office, cannot use
name during any substantial period when lawyer is
not regularly and actively practicing with firm
• Trade name misleading if it implies that lawyers
are practicing in a firm when they are not (e.g.,
solo practitioner includes “and Associates” in firm
name)
• Trade name misleading if it implies a connection
with a government agency or charity; geographi-
cal names may require a disclaimer

FIELDS OF PRACTICE AND

SPECIALIZATION
Lawyer can state that they practice in certain fields, or
“specialize in” or “concentrate in” or are a “specialist”
in certain fields if statement is based on their expe-
rience, specialized training, or education, and is not
false or misleading.

Certified Specialist
If lawyer states or implies that they are a certified
specialist:
• Must be certified by organization accredited by
ABA or approved by state authority
• Must clearly identify certifying organization

41
 MPRE REVIEW

NOTES
RECOMMENDATIONS
Generally cannot give or promise anything of value in
return for recommendation.

Nominal Gifts
Permitted if token of appreciation, but not if lawyer
already promised it in exchange for the recommen-
dation or if there is an expectation of more gifts in the
future.

Paying for Advertising and Other Services

Lawyer can pay:
• Reasonable costs of advertising
• Usual charges of legal service plan
• Cost of participating in nonprofit referral service

Reciprocal Referral Agreements

Lawyer may agree with lawyer or nonlawyer profes-
sional to send clients to each other, but:
• Must not be exclusive
• Shouldn’t be of indefinite duration
• Referred client must be told of agreement

SOLICITATION
Definition: Communication initiated by or on behalf
of lawyer and directed to a specific person known to
need legal services in a particular matter.

Ban on Live Person-to-Person Contacts

Must not solicit employment by live person-to-person
contact when significant motive is money:

42
 MPRE REVIEW

NOTES
• No in-person contact
• No live telephone contact
• No real-time audio or video
Ban applies ONLY when solicitation is motivated by
pecuniary gain.
Texts, emails, letters, and recorded messages are
all generally permitted because there is no live per-
son-to-person contact.

Potential Clients Not Covered by Ban

Can use live person-to-person contacts when solicit-
ing:
• Relatives
• Close friends
• Persons with prior business relationships
• Persons with prior professional relationships
• Other lawyers
• Routine business users of services

When All Solicitation Prohibited

Regardless of method or identity of potential client, all
solicitation is banned in the following circumstances:
• Person has made known to lawyer that they do not
want the solicitation
• Solicitation amounts to coercion, duress, or harass-
ment
• Specific legal restrictions (civil or criminal penalties)

43
 MPRE REVIEW

NOTES
GROUP AND PREPAID SERVICE PLANS
• Lawyer can reach out to organizations about
adopting plan
• Lawyer cannot reach out to potential members
• Plan can reach out to potential members if not
known to need particular legal services
• Lawyer who owns or directs plan cannot provide
legal services through the plan

44
 MPRE REVIEW

NOTES
11 LAWYERS’ DUTIES TO THE
PUBLIC AND THE LEGAL
SYSTEM

PRO BONO SERVICES

ABA suggests 50 hours per year, but non-complying
lawyer will not be subject to discipline.

ACCEPTING APPOINTMENTS
Must accept unless good cause not to, such as:
• Appointment would cause violation of law or RPC
• Appointment would be unreasonable financial
burden
• Personally unable to represent client effectively

QUICK-ADVICE PROGRAMS
RPC apply to limited legal service programs (e.g.,
quick advice hotline), except the conflicts rules are
relaxed because there is no time to run a conflicts
check. Lawyer only subject to discipline if there was a
known conflict problem.

MEMBERSHIP IN LEGAL SERVICES

ORGANIZATIONS
When serving as a member, director, or officer, lawyer
does not have attorney-client relationship with per-
sons served by organization, but must not participate
in actions that would harm lawyer’s regular clients or
persons served by the organization.

45
 MPRE REVIEW

NOTES
LAW REFORM ACTIVITIES
• Permitted even if reform will harm interests of cli-
ent
• Must disclose to organization if client may benefit
from reform

STATEMENTS ABOUT JUDGES AND

PUBLIC LEGAL OFFICIALS
Cannot make statements about the qualifications or
integrity of judges or public legal officials, or candi-
dates for these positions, if such statements are false
or made with reckless disregard as to truth or falsity.

ABILITY TO INFLUENCE GOVERNMENT

OFFICIALS
Cannot state or imply ability to influence government
agency or official, or to achieve results in an illegal or
unethical way.

POLITICAL CONTRIBUTIONS
Cannot make a “pay to play” contribution to obtain a
government position (rule does not apply to unpaid
positions). Whether there is a violation depends on the
purpose of the contribution.

46
 MPRE REVIEW

NOTES
12 JUDICIAL CONDUCT
WHAT GOVERNS JUDICIAL CONDUCT
CJC applies to all who perform judicial functions at
state level.

MAINTAINING INDEPENDENCE AND

IMPARTIALITY
Must uphold and promote judiciary’s independence,
integrity, and impartiality.
• Must avoid impropriety or even the appearance
of impropriety: conduct that creates reasonable
perception that judge has violated CJC, or conduct
that reflects poorly on judge’s honesty, impartiality,
temperament, or fitness
• Letters of recommendation may be on official let-
terhead if reference is personal, and not perceived
as attempting to exert pressure; otherwise, must
not use judicial letterhead for personal business
• Must not abuse prestige of office to advance per-
sonal interests, or permit others to abuse it

PERFORMING DUTIES IMPARTIALLY,

COMPETENTLY, AND DILIGENTLY
• Must hear and decide all matters assigned, unless
disqualification is required
• Must not let outside interests influence conduct or
judgment
• Must not allow impression that judge can be influ-
enced
• No bias, prejudice, or harassment
• May encourage settlement, but must not coerce

47
 MPRE REVIEW

NOTES
EX PARTE COMMUNICATIONS
Definition: Communication between judge and repre-
sentative from one side when no representative from
other side is present. Usually prohibited.

When Allowed
• Expressly authorized by law or court order
• In mediation or settlement, with consent of parties
• Emergencies (when non-substantive and won’t
give one side an advantage)

Inadvertent Receipt of Ex Parte Communication

Judge must promptly notify parties and give opportu-
nity to respond.

COMMUNICATIONS ABOUT PENDING

CASES
Court Personnel and Other Judges
Can discuss cases with court personnel and other
judges, but must not discuss facts not on the record.

Legal Experts
• Advice must be in writing
• Expert must be disinterested
• Must notify parties in advance

Interfering with Case

Judge must not make comments about any case, in
any court, that might affect case’s outcome or inter-
fere with fair trial.

48
 MPRE REVIEW

NOTES
Jurors
No commending or admonishing jurors for the sub-
stance of their verdict.

INDEPENDENT INVESTIGATION
• Must not independently investigate the facts in a
case
• Must consider only the evidence presented

DISQUALIFICATION
Judge must disqualify self when impartiality might rea-
sonably be questioned.

Grounds for Disqualification

• Bias or personal knowledge
• Prior involvement in the case
• Judge or family member has economic interest
• Family member is involved in proceeding
• Excessive contributions to judge’s election cam-
paign
• Judge publicly committed to a position or result

Remitting Disqualification
Parties can remit (waive) disqualification for all
grounds, EXCEPT:
• Personal bias concerning a party or lawyer, OR
• Personal knowledge of relevant facts

49
 MPRE REVIEW

NOTES
EXTRAJUDICIAL ACTIVITIES
Teaching, Speaking, Writing, Etc.
Judge may be reasonably compensated unless it
would reasonably appear to undermine indepen-
dence, integrity, or impartiality.

Reporting Requirements
Judge must publicly report amount or value of:
• Extrajudicial compensation
• Reimbursement
• Certain gifts, loans, bequests, and other things of
value

Participating in Organizations
Judge may take part in activities sponsored by:
• Organizations concerned with law or administra-
tion of justice
• Educational, religious, charitable, fraternal, or civic
nonprofits

Prohibited Activities
• Cannot participate in activities that would lead to
frequent disqualification
• Cannot accept appointment to governmental po-
sition or voluntarily testify at a government hear-
ing unless it relates to law or the administration of
justice
• Cannot serve as officer, director, manager, general
partner, advisor, or employee of a business (excep-
tion for personal/family investments and business-
es)

50
 MPRE REVIEW

NOTES
• Cannot testify as character witness, except when
duly summoned
• Cannot be affiliated with organization that practic-
es invidious discrimination
• Cannot serve as executor, administrator, guardian,
or other fiduciary (except for family members)

Practicing Law
Full-time judge must not practice law, unless:
• Appearing pro se
• Giving legal advice to family
• Drafting legal documents for family

Third-Party Neutral
Full-time judge must not act as arbitrator, mediator, or
private judge unless expressly authorized by law.

POLITICAL AND CAMPAIGN ACTIVITIES

• Can speak on behalf of own candidacy, but must
keep independent from political organizations
• Cannot make pledges or promises inconsistent
with impartial performance of duties
• Cannot personally solicit campaign contributions
• Cannot publicly endorse or oppose other candi-
dates
• Can make factually accurate public response to
false or misleading statements
• Judge who becomes candidate for nonjudicial
elective office must resign from judicial office

51
 MPRE REVIEW

NOTES
DISCIPLINARY ISSUES
Misconduct by Lawyers or Other Judges
• Judge knows -> Must report
• Judge receives information but isn’t certain ->
Must take appropriate action

Disability or Impairment of Lawyers or Other

Judges
Must take appropriate action if judge reasonably
believes that lawyer’s or other judge’s performance is
impaired by drugs, alcohol, or their mental, physical, or
emotional condition.

52