Professional Responsibility Bar Exam Outline

I. Inherent power of the court to regulate lawyers

A. Model rules of professional conduct

1. must rules-

a. result of violation

1) reproval letter

2) suspension (for finite period)

a) during which you can’t make $ from law

b) but your name can stay on letterhead and firm

3) disbarment

a) permenant suspension (can ask to be readmitted)

2. should rules

a. no punishment possible

II. admittance

A. MN requires good character and moral turpitude

B. Top boss; United States SC, but states make rules

1. state rule is valid if “rationally related to the practice of law”.

a. Rational

1) Graduation from ABA credited law school

2) Bar exam

3) Etc

b. Irrational

1) Non communist requirement

2) Requiring residency in state

3) Requiring United States citizenship

C. Duties in admission process

1. yourself

a. truth and duty to cooperate

2. others

a. truth

b. attorney squeal rule

D. duties after admission

1. by SC of MN

a. must report and

b. must be available

III. Peer responsibility

A. Supervisor is responsible for acts of those under him/her if

1. knew (or should have known) AND

2. did not report

B. subordinante NOT responsible if

1. ordered to do it and

2. at least arguable

IV. unauthorized practice of law

A. crime and if lawyer helps can lose license

B. need license to

1. negotiate a settlement (if employee of law firm)

2. take a deposition

3. etc

C. don’t need license to interview witness

D. write a memo for a lawyer

V. Fee split with non-lawyer

A. NO unless

1. heirs of diseased attorneys

2. employees as part of a pension or bonus plan ( if qualified also deductible)

VI. Law firm

A. Rule of imputation: what you can’t do, your partners can’t do.

1. Includes

a. lawyers who consult, work jointly and have file access

b. Ok if officer sharers that frequently consult

B. Real firms

1. only lawyers can be partners

2. Unless

a. Only temporarily (i.e. inheritance)

3. malpractice

a. individual liable

VII. practice of law

A. covenants to compete

1. NO unless retire, or withdrawl/buyout

B. Client/lawyer relationship

1. freedom to reject client but

a. MUST TAKE

1) Appointments by judge

2) Unless good cause shown

a) unreasonable financial burden or

b) Duty to reject

(i) Inability to do case physical/mental

(ii) Conflicts of interest

(iii) Frivolous claims (not good faith)

(iv) Feeling so strong (personal feelings)

(v) Incompetence

c) Exceptions for duty to reject (ALE)

(i) Association with attorney who is competent

(ii) Learn it in time

(iii) Emergency

b. SHOULD TAKE

1) Defenseless and oppressed

2) Fair share of charity

C. Scope of representation

1. decisions

client	Lawyer
sue?	So, must tell of all offers
Settle?	Which court?
Testify?	Depositions?
Plea?	Discovery
Jury/bench?	Continuance/grant
Appeal?	Exceptions; monetary or Third party well being (then client)

a. client under a disability

1) need guardian/conservator/trustee etc.

D. withdrawal

1. requirements

a. Court permission and return clients property

b. Client wants to

2. MUST if (mandatory)

a. Duty to reject

b. Client fraud and refusal to rectify

c. Client insists on violation

d. Lawyer discharged by client

3. Ok if (permissive)

a. Any reason

b. Ok to threaten withdrawal if client doesn’t pay their bills

c. @ reasonable time

VIII. Attorney/client contracts

A. Ok to limit representation if reasonable (construe against drafter)

IX. Fees

A. Agreed upon before immediately after rep

1. no excessive fees / overreaching

2. factors

a. time

b. experience

c. difficulty of case

d. nature of fee

B. contingent fees

1. just way of computing fee

2. must

a. explain in writing 2x

1) before = letter of explanation

2) after = settlement letter

3. NOT OK for criminal case or family law

4. Ok past due alimony

5. NOT Ok to get % of publication rights or other incentive

6. Fired?

a. Quantum meruit but is limited by the contingency fee

C. Agreements to arbitrate client fees valid (can’t get out of it)

X. Fee splitting with other lawyers

A. NO except

1. work together AND

2. client consent AND

3. paid proportionately AND

4. one fee

XI. buy/sell practice

A. OK full or part

B. Have to sent letter to clients

C. Attorney sold to will get clients if clients have opportunity to reject.

XII. Privilege and confidentiality

A. Evidence …

B. Professional obligation of confidence

1. covers; secrets anything embarrassing or derogatory from any source

2. duty; to keep secrets

3. waiver: clients can authorize disclosure

a. expressly

b. implied for work/case

4. except

a. permissive disclosure

1) offensive= lawyer sues for fee

2) defensive= client sues for malpractice

5. special problems

a. client intends to comit crime involving serious bodily harm

1) MAY disclose

b. Past crime- still secret

c. Death of client- still secret

d. Former client- still secret

XIII. Conflict

A. Rule; lawyer can’t represent adverse interests

1. unless full disclosure and client consent.

B. Personal interest of attorney

1. imputed firm wide

2. NO loans to client

a. Exception cost of litigation

b. No de minimus exception

C. Attorney as witness

1. NO

2. exceptions

a. ministerial (

b. legal fees

c. substantial hardship

D. acquiring an interest in litigation

1. NO

2. exceptions

a. contingent fees

b. % of business if incorporated (but not if business will get better by wining/losing case)

c. NO retaining lein

E. Entering business transactions with client

1. NO

2. except OK if

a. ordinary transactions or

b. fair

F. clients and former clients

1. no interests adverse to clients

2. no multiple clients where “potential conflict” unless

a. reasonable belief of no adverse effect

b. client consents, after explanation

c. entity representation (company)

d. municipal attorneys (local govt) no criminal case in own city

G. influence by persons other then client

1. OK paid by 3^rd person but doesn’t change who is client

2. need client consent and secrets kept.

H. Law firm, associates, related

1. can’t go up against (adverse party as)

a. parent, child, sibling, spouse,

2. Unless

a. Consent and full disclosure

3. No rule of imputation (ok to go against firm, just not person)

I. Litigation

1. exercise professional judgement

2. civility, courtesy and decorum

3. conduct in course of litigation

a. good faith basis and

b. no statements likely to prejudice trial

4. fraud or perjury

a. present

1) civil- rectify or withdraw

2) criminal tell judge

b. past

1) civil/criminal – can’t tell

XIV. communications

A. unrepresented people

1. no legal advice and

2. can’t appear disinterested

3. Ok to say get a lawyer

B. About legal services

1. general ban on soliciting

a. 1 on 1

b. In person

c. Live ( telephone)

2. advertising OK

a. but NO false or misleading

1) unjustified expectations

2) unverifiable comparisons

3) implying results by improper means

3. firm names/letterhead

a. Dead partner OK

b. NOT law student, or employees

c. Artificial name OK if not misleading (name of city etc.)

d. Temporary leave OK to have

e. Permanent leave Not OK

f. Debt collection

1) Unless full time for agency NOT on stationary

XV. Different roles

A. Advocate

B. Advisor (client all information, moral, economic and ethical advice)

C. Lawyer as intermediary

1. NOT in domestic relations

2. not contingent fee

3. if in litigation, must withdraw

D. lawyer as evaluator

1. with client consent

E. negotiator

F. mediator

G. public service

1. Ok to solicite cases because not paid per case

H. Appearances before legislative bodies (lobbying)

1. if disagree identify client

2. if agree, No need identify, but must say “have client who benefits”

I. prosecutor

1. only probable cause

2. no advantage of unrepresented people

3. protect d’s right to counsel

4. limit extra judicial statements of others under your control

5. can’t represent D in other county

J. safeguarding funds and $

1. client’s money must go into trust account (no co-mingling)

2. property –must safeguard

3. dispute- give client undisputed $

a. then keep other in trust account

4. retainer

a. advance on fees (belongs to client)

b. true/availability (belongs to attorney)

K. lawyer may accept reasonable gift form client, but NOT

1. draft deed of gift or will unless related.

XVI. Other

A. Referrals OK, but not paid

B. Group legal services OK

1. Not criminal law- might encourage crime

C. Limited practice areas

1. patent

2. admirality

3. look to see if (certified specialist) if true ok

XVII. lawyers and the legal system

A. debt of candor

1. reveal controlling law

a. can’t bury it

b. don’t have to explain it

c. good faith argument to change law ok

B. witness

1. no contingent fees for experts

2. Ok reasonable expenses (lost wages etc)

3. NOT need permission from other side to talk to witnesses

a. Exception corporation employee whose acts could be imputed to them

4. ok say to witness “don’t have to voluntarily show up” IF person related to or agent of party and person will not be harmed.

C. Jury

1. can’t talk at all during trial

a. ok after but not harass

D. Ok to take % of business= pure fee, but not if business will increase by case

XVIII. Judicial ethics

A. Not tested in 30 years.

B.