Professional Responsibility OUTLINE 2008
MPRE Review Classes: MONDAYS: Oct. 20th / Oct. 27th / Nov. 3rd (9:00-12:00)
ALWAYS DISCUSS8.4: It is against the Rules to Violate a Rule / ALSO DISCUSS: How it would have a negative impact on the Lawyer’s reputation.
Week 1: TAKE THE MPRE ON NOVEMBER 8th
USE THE BOOK’S INDEX TO YOUR ADVANTAGE “For finding the Rules.”
I. THE MPRE:
a. This Tests:
1. The ABA Model Rules of Professional Conduct
2. ABA Code of Judicial conduct
3. Controlling constitutional decisions and generally accepted principles established in leading federal and state cases
4. Procedural and evidentiary rules
5. MPRE Subject Matter Outline:
1. Check the MPRE website, it has all the info. www.act.org/mpre
2. Take the Test Saturday November 8th, 2008.
II. The Regulation of the State Bar:
a. State Bars Regulate Lawyers. The Federal Government is not concerned, unless there is a Constitutional Violation.
b. You must bass the bar exam in your state and demonstrate good moral character.
c. There are no residency requirements; you don’t even have to be a US citizen.
1. You need a J.D. from an accredited university.
2. You must pass your state bar exam
3. You must pass character and fitness
1. THIS MEANS: You must demonstrate Current good moral character.
2. Note: Nothing automatically disqualifies you to be a lawyer.
4. Take the Attorney Oath
III. Admission to the Federal Bars:
a. For the U.S. District Court
1. You must be admitted into the State bar in which you are trying to practice
2. You must be sponsored by a lawyer in good standing in the district.
1. This is a very simple admission process, as long as someone sponsors you.
b. For the U.S. Court of Appeals
1. You must be admitted to that state bar.
2. You must be in good standing
3. If you have been accepted into the District Court then you only need to file a motion
c. For the US Supreme Court
1. You need to practice for a minimum of 3 years in your home state and be in good standing.
IV. Character and Fitness Requirements:
a. All states require that an applicant for admission to the bar possess “good moral character,” although enforcement is uneven and sporadic.
1. There is a general agreement that they include:
– Respect for the Law,
– Respect for the Rights of Others
b. Applicants Burden of Proof: “Clear and Convincing Evidence”
1. You CANNOT make false statements of material fact.
2. The Measure of Personal Character is
1. Past Behavior and Conduct
2. Personal Reputation
c. CATGEORIES OF INTEREST FOR CHARACTER AND FITNESS:
– RESIDENCE HISTORY:
· Every Residence (for at least 2 Weeks) Since age 16
· Listing your childhood address only, is insufficient – In re Bartolo (1986)
· Use family, friends
– EMPLOYMENT HISTORY:
· All sources of income since high school
· Accurate dates of employment
· Accurate addresses for each employer
· Any terminations or situations in which you quit under questionable circumstances
– CRIMINAL HISTORY:
· Must disclose all offenses, even if they are expunged.
· Must disclose all ARRESTS
· Must provide court records
· Finger Prints: The bar will obtain your federal and state criminal histories and your driving record.
– CIVIL LITIGATION:
· Must disclose all lawsuits to which you were a party
· Must provide Court records
– FINANCIAL RESPONSIBILITY:
· Must disclose delinquent debts (More than 90 days)
· Must disclose bounced checks
· Must disclosed bankruptcies
· You credit report will be scrutinized
– Psychological History/ Substance Abuse:
· Ever been addicted to drugs, alcohol?
· Permanent addictions that permanently, presently or chronically impairs
– Mental Health Information:
· Anything that permanently, presently or chronically impairs?
pline: This refers to the penalties imposed by a disciplining agency on an attorney who has breached a rule or statute for which discipline can be imposed.
-Important to Note: Not every criminal act is grounds for discipline.
Three Common Types Are:
1) Disbarment: This typically means permanent removal from the practice of law.
2) Suspension: The Attorney is prohibited from practicing law for the period of the suspension. The attorney may later be required to take and pass a legal ethics examination before being readmitted.
3) Reprimand (Public or Private):
a. This Does not limit the Attorney’s ability to practice law.
b. Private: This is an unpublished, private communication in writing from the agency to the attorney.
c. Public: A public reprimand is published- usually in publications aimed only at attorneys, but sometimes in the public press as well. It names the attorney and describes the improper conduct, thus serving as an educational tool and a warning.
RULE 8.3 Reporting Professional Misconduct:
a. (General Rule) Attorneys who hear about professional misconduct of another attorney from a (Non-Privileged) source are required in most jurisdictions to report the misconduct to the disciplinary agency if the conduct raises a substantial question about the other attorney’s honesty, trustworthiness, or fitness to practice.
i. Exception: If the lawyer first learns about the misconduct through a privileged communication “such as attorney-client privilege (RULE 1.6),” then there is no duty to reveal the information, and if it is revealed, he himself would be subject to discipline.