I. Overarching Exam Methods
a. (1) Question 1, who has an attorney/client relationship in the scenario? First thing you should always do is find who has a client/attorney relationship with whom. If you can only find one, you’ve failed the exam.
1. “A person manifests to a lawyer the person’s intent that the lawyer provide legal services for the person; and either (a) the lawyer manifests to the person consent to do so; or (b) the lawyer fails to manifest lack of consent to do so, and the lawyer knows or reasonably should know that the person reasonably relies on the lawyer to provide the services.” (From the Restatement).
b. (2) Differentiate for when you talk about (1) privilege, and (2) when you talk about confidentiality.
c. (3) Evaluating conflicts checklist:
i. (1) Clearly identify conflicts
ii. (2) Determine whether each client is a present or former client
iii. (3) Determine whether a conflict of interest exists for each client (If so, is the conflict a Rule 1.8 conflict?)
iv. (4) Decide whether the lawyer may represent the client despite the conflict (is the conflict consentable?)
v. (5) Consult with each affected client, obtain informed consent and send written confirmation.
d. (4) Conflicts problem steps for analysis:
i. (1) Figure out who your clients are (good exams exhaust who the potential clients are).
ii. (2) Determine whether they are present or former clients?
1. Present à 1.7 ((a)(1)? (a)(2)? Is it waiveable?)
2. Former à 1.18
a. If A is former client, unrelated (direct) adversity never requires A’s consent.
b. For former clients, unrelated matters ends the analysis. This is the reason why lawyers send file closure letters b/c you can sue former clients upon them being terminated as clients.
iii. (3) Determine whether a conflict exists for each client. With the relevant analysis.
1. Are the lawyers in a law firm? Can they be considered in a law firm? (And relevant analysis)
2. If they are, who can the conflict be impute to?
II. What is a lawyer’s role; Sources of lawyer regulation; and formation of the attorney-client privilege.
a. What are legal ethics?
i. Fiduciary duties to clients: (1) loyalty, (2) confidentiality, (3) safekeeping property, (4) independent judgment, (5) communication, and (6) candor.
b. Who regulates lawyers?
c. Sources of lawyer regulation:
i. ABA Model Rules of Professional Conduct (1983)
1. (1) Rules with comments
2. (2) Rules are “authoritative,” while comments are “intended as a guide to interpretation.”
3. (3) Adopted by every state but California.
d. Reasons for Ethics 20/20 Commission
i. “Technological advances and globalization have changed our profession in ways not yet reflected in our ethics codes and regulatory structure. Technologies such as e-mail, the Internet and smart phones are transforming the way we practice law and our relationships with clients, just as they have compressed our world and expanded international business opportunities for clients,” said [then ABA President] Carolyn Lamm.
e. Structure of the Rules
i. Section 1 – Client-Lawyer Relationship
1. 1.0 Terminology
2. 1.1 Competence
3. 1.2 Scope of Representation
4. 1.3 Diligence
5. 1.4 Communication
6. 1.5 Fees
7. 1.6 Confidentiality
8. 1.7 Conflict of Interest: Current Clients
9. 1.8 Conflict of Interest: Prohibited Transactions
10. 1.9 Duties to Former Clients
11. 1.10 Imputed Disqualification: General Rule
12. 1.11 Special Conflicts of Interest for Former and Current Government Officers and Employees
13. 1.12 Former Judge, Arbitrator, Mediator or Other Third-Party Neutral
14. 1.13 Organization as Client
15. 1.14 Client with Diminished Capacity
16. 1.15 Safekeeping Property
17. 1.16 Declining or Terminating Revenue
18. 1.17 Sale of Law Practice
19. 1.18 Duties to Prospective Client
ii. Section 2 – Counselor
1. 2.1 Counselor
2. 2.2 Reserved
3. 2.3 Evaluation for Use by Third Persons
4. 2.4 Lawyer Serving as Third Party Neutral
iii. Section 3 – Advocate
1. 3.1 Meritorious Claims and Contentions
2. 3.2 Expediting Litigation
3. 3.3 Candor Toward the Tribunal
4. 3.4 Fairness to Opposing Party and Counsel
5. 3.5 Impartiality and Decorum of the Tribunal
6. 3.6 Trial Publicity
7. 3.7 Lawyer as Witness
8. 3.8 Special Responsibilities of a Prosecutor
9. 3.9 Advocate in Nonadjudicative Proceedings
iv. Section 4 – Transactions with Persons Other than Clients
1. 4.1 Truthfulness in Statements to Others
2. 4.2 Communication with Person Represented by Counsel
3. 4.3 Dealing with Unrepresented Person
4. 4.4 Respect for Rights of Third Persons
v. Section 5 – Law Firms and Associations
1. 5.1 Responsibilities of Partners, Managers, and Supervisory Lawyers
2. 5.2 Responsibilities of a Subordinate Lawyer
3. 5.3 Responsibilities Regarding Nonlawyer Assistants
4. 5.4 Professional Independence of a Lawyer
5. 5.5 Unauthorized Practice of Law; Multijurisdictional Practice of Law
6. 5.6 Restrictions on Right to Practice
7. 5.7 Responsibilities Regarding Law-Related Services
vi. Section 6 – Public Service
1. 6.1 Pro Bono Public Service
2. 6.2 Accepting Appointments
3. 6.3 Membership in Legal Services Organization
4. 6.4 Law Reform Activities Affecting Client Interests
5. 6.5 Nonprofit and Court-Annexed Limited Legal Services Programs
6. 6.6 Provision of Legal Services Following Determination of Major Disaster
2) having the ability to communicate clearly with clients, attorneys, courts and others
3. (3) conducting oneself with a high degree of honesty, integrity and trustworthiness
4. (4) conducting oneself in accordance with and with respect for the law and the Code of Professional Responsibility
5. (5) conducting oneself diligently and reliably in fulfilling obligations to clients, attorneys, courts, and others
6. (6) complying with deadlines and time constraints
7. (7) avoiding acts that exhibit disregard for the rights or welfare of others
8. (8) exercising good judgment in conducting one’s professional affairs
9. (9) demonstrating honesty and good judgment in financial dealings on behalf of oneself, clients, and others
10. (10) conducting oneself professionally and in a manner that engenders respect for the law and the legal profession.
ii. Temporary Admissions
1. One year while applying for other admission (MO); must have MO supervising lawyer
2. Corporate Counsel: while working for company; must re-apply when changing jobs; cannot provide other legal services (except pro bono).
a. (1) corporate counsel moves around a lot, (2) encourages commerce/hiring, etc., (3) use of outside counsel, (4) corporation is perfectly competent on whether or not the person is providing adequate legal services, if not, they’re fired.
3. Pro hac vice (“for this occasion”): permission to appear in one case (usually litigation); often must submit application, pay fee, and possibly have local counsel.
i. Missouri Supreme Court Rule 8.13: “The practice of law in this state is a privilege. The burden of demonstrating that the requirements of this Rule 8 have been met shall be upon the applicant.”
c. Multijurisdictional Practice (MJP) and Unauthorized Practice of Law (UPL)
i. *If you practice law in Missouri without a license (but licensed in IL): (1) can be disciplined in Illinois, (2) Missouri recognizes a civil claim for UPL; (3) Missouri is also a crime for UPL which brings us to the Birbrauer case (CA court said that a NY firm is not entitled to fees because they were not licensed to practice in CA). Damages are three times lawyer fees in civil case.
ii. Which Jurisdiction Law to Apply Analysis
1. (1) Where is the predominant effect of the issue going to be? (2) Where’s the other party to the transaction? If they are based in Pennsylvania, PA law would likely apply. If it’s a multinational conglomerate, you wouldn’t know what law would apply.