The Multistate Professional Responsibility Exam Outline

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MPRE Basics
What's up with the MPRE? Here are the basic facts you need to know.
1. What
  The MPRE is a two-hour, 60-question multiple-choice exam that tests the ABA Model Rules of Professional Conduct (MRPC), the ABA Model Code of Judicial Conduct (MCJC), and certain other ethics-related concepts, like attorney-client privilege, the work product doctrine, malpractice liability, and Rule 11 sanctions. It's administered by the National Conference of Bar Examiners (NCBE).
  1. Scored v. pretest questions
    Fifty questions are scored and 10 are experimental, “pretest” questions that are not scored. (The bar examiners are trying out the pretest questions for future versions of the exam.) You won’t be able to tell the pretest questions from the scored questions, so you should treat all of them as if they are real.
  2. Four answer choices
    Each question will have four answer choices.
  3. Scoring
    Scores on the MPRE can range from 50 to 150.
    1. Passing scores
      Each jurisdiction sets its own score required to pass. Currently, passing scores range from 75 to 86, with the majority of jurisdictions setting the bar between 80 and 85. The best resource for your jurisdiction’s requirements is going to be the state bar admissions agency. The NCBE’s website (https://www.ncbex.org/exams/mpre/) offers recent information for each jurisdiction, but it’s not always up to date.
    2. Equated scoring
      Just like scores on the Multistate Bar Exam (MBE), MPRE scores are “equated” or scaled to account for differences in difficulty between test administrations. That means if you take the MPRE in August and it’s harder than the one that was given in March, your score will be adjusted so that you’re on an equal playing field with the March examinees. It also means that the number of right answers you need to get a particular score changes from exam to exam.
    3. If in doubt, guess
      Your score is based on the number of questions you get right. The MPRE doesn’t penalize wrong answers, so you should make sure you select an answer choice for every question, even if you have to guess.
2. Why
  As of 2022, every state and territory except Wisconsin and Puerto Rico requires the MPRE for bar admission. Connecticut and New Jersey also accept evidence that an applicant completed a professional responsibility course in law school as a substitute for the MPRE.
3. When
  The MPRE is generally offered in March, August, and November. You’ll have two days in each month to choose from. The 2022 dates are March 23 and 24, August 10 and 11, and November 14 and 15.
4. Where
  The MPRE is administered on computers provided at Pearson VUE testing centers. See https://home.pearsonvue.com/mpre for more details about test locations and procedures.
5. How
  How do you succeed on the MPRE?
  1. Learning the rules
    Understand the substance of the rules. There's no need to learn rule numbers or to memorize the exact wording, but you'll want to be familiar enough to recognize key words and phrases when you see them in the answer choices. This outline generally includes rule numbers for ease of reference while you are studying.
  2. Applying the rules
    The official comments to the rules often include examples of what does or does not constitute a violation. Those examples often turn up in fact patterns on the MPRE. The rule discussions in this outline incorporate the highest-yield comments.
  3. High-yield topics
    Certain rules and issues show up again and again on the MPRE.
    1. Navigating the client-lawyer relationship
      You are certain to see questions on your MPRE about client-lawyer communications, fee arrangements, who makes what decisions, and when the lawyer must or may withdraw from a representation.
      1. Importance of informed, written consent
        A key facet of the client-lawyer relationship on the MPRE is the need to secure informed consent for potential conflicts and other issues. Not all rules require a client's consent to be in writing, but that's always the best practice (and therefore the best answer on the exam).
        When consent doesn't count
        Pay attention to situations in which a client's or other party's consent doesn’t get the lawyer off the hook. Here are some key examples.
        Non-consentable conflicts
        A client can't consent to waive conflicts that would prevent the lawyer from fulfilling certain fundamental duties, like loyalty, diligence, or competence.
        Consent to a sexual relationship
        If a lawyer starts a sexual relationship with a client during a representation, it's a professional violation, regardless of the client's consent.
        Represented party's consent to direct communications
        Consent by a represented party to talk directly to a lawyer other than her counsel isn’t sufficient. Talking with a represented party is still a violation of the rules.
    2. Conflicts
      The MPRE loves to test conflicts-related issues, including imputed conflicts and screening, duties to former clients, personal interests of a lawyer, and interference by third parties in the lawyer-client relationship.
    3. Advocacy
      The MPRE loves to test the responsibilities of a lawyer as an officer of the court when she's acting as an advocate for a client. Topics like candor toward the tribunal, trial publicity, and fairness to opposing parties are perennial favorites.
    4. Reasonableness standard
      You will see “reasonable” and “reasonably” all over the MRPC and MCJC as the standard that determines when a lawyer or judge has crossed a line. Depending on the rule, you may be asked to decide what's reasonable from the perspective of a lawyer or judge or from the perspective of a client or member of the public.
    5. Appearance of judicial impropriety
      One key concept to remember about judicial conduct is that activities that would create an appearance of impropriety are prohibited, even if there's no actual unfairness or self-dealing involved. That's because it's part of a judge's responsibility to maintain the reputation of the justice system. If you see a judge doing something that would look improper to a reasonable person, it's probably an MCJC violation.
  4. Approaching MPRE questions
    MPRE questions follow a predictable pattern.
    1. Call of the question
      The most common calls you will see on the MPRE will ask (1) whether someone in the fact pattern should be subject to discipline or (2) whether the person's conduct was proper.
    2. Answer choices
      Most questions will then have two answer choices that begin with “Yes, because” and two that begin with “No, because.” This format is pretty convenient because once you reason through the yes-or-no part, you've eliminated two wrong answers. Then, you can move on to selecting the right “because” phrase to back up your conclusion.
    3. Details matter
      The MPRE tests lots of exceptions and minutiae. Many of the basic rules will seem like common sense, but the devil is really in the details on this exam.
    4. Practice questions
      It’s important to do some practice questions to get used to thinking of ethics issues in a multiple-choice format. Some bar prep companies and printed publications offer MPRE-style questions. In addition, the NCBE sells access to two simulated exams (with answer explanations) and offers 15 free sample questions (https://www.ncbex.org/study-aids/).
Key definitions (MRPC 1.0)
Some concepts appear over and over again throughout the MRPC. Here’s how the rules define the key terms you need to know.
1. Informed consent
  “Informed consent” means a person’s agreement to a proposed course of conduct after the lawyer adequately explains the material risks and reasonably available alternatives.
  1. Confirmed in writing
    Informed consent is “confirmed in writing” if (1) the consenting person puts it in writing or (2) a lawyer promptly transmits a writing to the person to confirm an oral consent.
    1. Writing or written
      “Writing” or “written” means a tangible or electronic record of a communication. In addition to handwritten or typed/printed documents, it can include photographs, audio or video recordings, and electronic communications.
    2. Within a reasonable time
      If it is not feasible to obtain or transmit the writing at the time the person gives informed consent, the lawyer must do so within a reasonable time.
2. Reasonable or reasonably
  A lawyer’s conduct is “reasonable” if it’s something a reasonably prudent and competent lawyer would do.
3. Substantial
  Something is “substantial” under the MRPC if it is a material matter of clear and weighty importance.
4. Law firm
  MRPC 1.0 defines a “law firm” as a lawyer or lawyers in a partnership, professional corporation, sole proprietorship, or other association authorized to practice law. It also includes lawyers who work for a legal services organization or the legal department of a corporation or other organization.
5. Screened
  “Screened” means that a firm has isolated a lawyer from participation in a matter to protect information that the lawyer is obligated to protect under the MRPC or other law. The firm’s procedures have to be reasonably adequate to safeguard the information.
6. Tribunal
  A “tribunal” means a court, an arbitrator in a binding arbitration, or a legislative body, administrative agency, or other body that is acting in an adjudicative capacity. It does not include mediation.
  1. Adjudicative capacity
    A legislative body, administrative agency, or other body is acting in an adjudicative capacity when a neutral official will hear the presentation of evidence or legal argument and then render a binding legal judgment that affects a party’s interests in a matter.
Regulation of the legal profession
Questions in this category usually comprise 6-12% of the MPRE.
1. Candor in bar admissions and disciplinary matters (MRPC 8.1)
  An applicant for admission to the bar must not (1) knowingly make a false statement of material fact; (2) fail to disclose a fact that’s necessary to correct a misunderstanding the applicant knows about; or (3) fail to respond to a lawful demand for information. The same rule applies to a lawyer who is acting in connection with a disciplinary matter or with someone else’s bar application.
  1. Confidentiality exception
    This rule does not require an applicant or lawyer to disclose information that’s confidential under MRPC Rule 1.6.
2. Reporting professional misconduct (MRPC 8.3)
  Members of the legal profession have a duty to report MRPC or judicial code violations that are sufficiently serious to raise a “substantial question” about professionalism. Lawyers are not required to report every minor deviation from the rules.
  1. Lawyer’s violation
    A lawyer has a duty to report when she knows another lawyer has violated the MRPC if the violation raises a substantial question about the lawyer's honesty, trustworthiness, or fitness as a lawyer.
  2. Judge’s violation
    A lawyer has a duty to report when she knows that a judge has violated the rules of judicial conduct if the violation raises a substantial question about the judge's fitness for office.
  3. No confidential information
    Disclosure is not required if the information is confidential under MRPC 1.6. If the disclosure wouldn’t prejudice the client, though, the lawyer should encourage the client to give consent.
  4. Policy-based exceptions
    The ABA wants to encourage lawyers to get legal advice about their professional conduct and to get help for substance abuse or mental health challenges. That's why the duty to report does not apply to a lawyer (1) who is representing the lawyer whose professional conduct is at issue; or (2) who learns of the misconduct while advising a lawyer or a judge through a professional assistance program.
3. Misconduct defined (MRPC 8.4)
  It is professional misconduct for a lawyer to do any of the following. Remember HI, MARCH.
  1. Honesty-related crimes
    Committing a crime that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer
  2. Interfering with administration of justice
    Engaging in conduct that is prejudicial to the administration of justice
  3. Misrepresentations
    Engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation
  4. Assisting judicial misconduct
    Knowingly assisting a judge or judicial officer in violating the law or the Code of Judicial Conduct
  5. Rule violations or attempts
    Violating or attempting to violate the Rules of Professional Conduct or knowingly assisting another person in doing so
  6. Claims about improper influence
    Stating or implying an ability to influence a government agency or official improperly or to achieve results by violating the law or Rules of Professional Conduct
  7. Harassment or discrimination
    Harassing or discriminating against someone in relation to the practice of law on the basis of race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status, or socioeconomic status
    1. Actual or constructive knowledge
      This rule prohibits conduct that the lawyer knows or reasonably should know is harassment or discrimination.
4. Disciplinary authority (MRPC 8.5)
  Here's how to tell what jurisdictions can discipline a lawyer for breaking the rules.
  1. Based on admission
    A lawyer who is admitted to practice in a jurisdiction is subject to the disciplinary authority of that jurisdiction, even if the lawyer's conduct occurred somewhere else.
  2. Based on practice
    A lawyer who is not admitted to practice in a jurisdiction is subject to the disciplinary authority of that jurisdiction if the lawyer provides or offers any legal services there.
  3. Multiple jurisdictions
    A lawyer may be subject to the disciplinary authority of multiple jurisdictions for the same conduct (i.e., both the state where she’s admitted to practice and any other state where she provides legal services).
5. Choice of law (MRPC 8.5)
  In disciplinary proceedings, which state’s professional conduct rules apply will depend on the context of the lawyer’s conduct.
  1. Where the tribunal sits
    If the conduct occurred in the context of a court case or other proceeding before a tribunal, the rules of the jurisdiction where the tribunal sits apply (unless the tribunal’s rules say otherwise).
  2. When no tribunal
    If the conduct occurs outside the context of a tribunal proceeding, you apply the rules of the jurisdiction where the conduct occurred unless the conduct had its “predominant effect” somewhere else. In that situation, you apply the rules of the jurisdiction where the predominant effect took place.
    1. Lawyer’s reasonable belief about predominant effect
      If the lawyer reasonably believed that the predominant effect of her conduct would occur in State A, and the lawyer’s conduct actually conformed to the rules of State A, the lawyer will not be subject to discipline.
6. Obligations of a partner (MRPC 5.1)
  A “partner” is a member of a partnership, a shareholder in a law firm that's organized as a professional corporation, or a member of an association authorized to practice law. See MRPC 1.0.
  1. All lawyers’ compliance
    Partners and lawyers with managerial authority in a law firm have a firm-wide duty. They have to make reasonable efforts to enact policies and practices that reasonably ensure all of the firm’s lawyers conform to the MRPC. That's a lot of reasonableness.
7. Obligations of a supervising lawyer (MRPC 5.1)
  A lawyer who directly supervises another lawyer (i.e., an associate) has to make reasonable efforts to ensure the associate conforms to the MRPC.
8. When partner or supervisor responsible
  A lawyer is responsible for another lawyer's MRPC violation in two circumstances.
  1. Orders or ratifies
    A lawyer is responsible if he orders the conduct involved or knowingly ratifies it.
  2. Failure to take remedial action
    A partner, a lawyer with managerial authority, or a direct supervisor of the lawyer who commits the violation is responsible if she (1) learns of the conduct while its consequences can be avoided or mitigated; and (2) fails to take reasonable remedial action.
9. Obligations of associates (MRPC 5.2)
  Associates have to comply with the MRPC, even if they are acting at a supervisor’s direction.
  1. Knowledge required
    If an associate acted at a supervisor’s direction and didn’t know the conduct violated the MRPC, it may not count as a violation. For example, if a partner tells an associate to file a frivolous pleading and the associate doesn’t know the pleading is frivolous, the associate doesn’t violate the MRPC when she files it.
  2. Professional judgment about ethical duty
    Supervising lawyers often take responsibility for resolving ethical questions on behalf of their whole team. If a question doesn’t have a clear answer, an associate can rely on the supervisor’s reasonable judgment without violating the MRPC.
10. Responsibilities regarding non-lawyer assistance (MRPC 5.3)
  A lawyer's responsibilities for the conduct of non-lawyer employees are the same as those of a partner or supervisor for the conduct of other lawyers. In addition, the lawyer must supervise the non-lawyer to ensure she does not engage in activities that could constitute the practice of law.
11. Professional independence (MRPC 5.4)
  The provisions of this rule are designed to prevent third parties from having too much influence over a lawyer's professional judgment.
  1. No fee-sharing with non-lawyers
    A lawyer or firm can't share legal fees with a non-lawyer, unless one of these exceptions applies.
    1. Lawyer's estate or beneficiaries
      A lawyer can agree that when she dies, her firm or law partners will pay money to her estate or to specific people for a reasonable period of time.
    2. Purchase of law practice
      It's okay for a lawyer to purchase the practice of a deceased or disabled lawyer and pay for it using money earned from legal fees.
    3. Employee compensation or retirement plans
      A lawyer or firm may include non-lawyer employees in a compensation or retirement plan, even if the plan is based on a profit-sharing arrangement.
    4. Nonprofits
      A lawyer may share court-awarded legal fees with a nonprofit organization that employed or recommended the lawyer in the matter.
  2. No legal partnership with non-lawyers
    A lawyer must not form a partnership with a non-lawyer if the partnership is engaged at all in the practice of law.
  3. No direction by third parties
    A lawyer can't allow a third party who recommends, employs, or pays the lawyer to provide legal services to a client to direct the lawyer's professional judgment.
  4. No non-lawyer owners or directors
    Lawyers can't practice law as a professional corporation or for-profit association if a non-lawyer (1) owns an interest in the firm; (2) serves as an officer, director, or manager; or (3) has the right to direct a lawyer's professional judgment.
12. Unauthorized practice of law; multijurisdictional practice (MRPC 5.5)
  A lawyer must not practice law in a jurisdiction in violation of its rules regulating the legal profession or assist another person in doing so.
  1. Prohibited activities for lawyer not admitted
    A lawyer who is not admitted to practice in a jurisdiction shall not (1) establish an office or a systematic and continuous presence there for the practice of law or (2) hold out to the public that she is admitted to practice there.
  2. Temporary practice when admitted in another jurisdiction
    A lawyer admitted in one United States jurisdiction and not disbarred or suspended may provide certain legal services in another jurisdiction on a temporary basis.
    1. Association with local counsel
      It's okay to handle a matter outside your jurisdiction if you associate with a lawyer who is admitted to practice in that jurisdiction and who actively participates in the matter.
    2. Pro hac vice admission
      It's okay to handle a matter outside your jurisdiction if it is in or reasonably related to a proceeding before a tribunal and you are authorized (e.g., court order) to appear in the proceeding. It's also okay if you reasonably expect to be authorized to appear—for instance, if you've filled a motion for pro hac vice admission and are waiting for the court to rule on it. Note that in many jurisdictions, you have to associate with local counsel in order to obtain pro hac vice admission.
    3. Reasonably related to alternative dispute resolution
      It's okay to handle a matter outside your jurisdiction if it is in or reasonably related to an arbitration, a mediation, or another alternative resolution proceeding. There are two requirements: (1) your services have to arise out of or reasonably relate to your practice in a jurisdiction where you're admitted; and (2) the forum state doesn't require pro hac vice admission to provide that kind of service.
    4. Reasonably related to lawyer's practice
      Finally, it's okay to handle a matter outside your jurisdiction if it arises out of or reasonably relates to your practice in a jurisdiction where you're admitted.
  3. Systematic and continuous practice when admitted in another jurisdiction
    Under certain circumstances, a lawyer who's admitted in a U.S. jurisdiction or a foreign jurisdiction or who is practicing as in-house counsel under the laws of a foreign jurisdiction may provide legal services in another jurisdiction on a systematic and continuous basis.
    1. Provided to the employer
      It's okay to provide legal services to your employer or its affiliates, as long as pro hac vice admission is not required for those services in the forum.
      1. Advice of an admitted lawyer
        If a foreign lawyer is providing services that require advice about U.S. law, the foreign lawyer has to consult with someone who is licensed to practice in the relevant jurisdiction.
    2. Authorized by law or rule
      It's also okay to practice on a systematic or continuous basis if a law or rule authorizes the lawyer to provide a certain kind of service.
13. Restrictions on right to practice (MRPC 5.6)
  Agreements that restrict a lawyer's right to practice limit their professional independence and also limit the freedom of clients to choose the lawyer they want to represent them.
  1. Non-competes
    A lawyer can't enter into a partnership or employment agreement that restricts her right to practice after she leaves the firm.
    1. Retirement benefits okay
      It's okay to enter into an agreement about what benefits a lawyer will receive when she retires.
  2. Client settlements
    A lawyer can't agree to restrict her right to practice when settling a matter for a client. For instance, a settlement agreement can't provide that the lawyer won't represent other clients who want to sue the opposing party.
14. Responsibilities regarding law-related services (MRPC 5.7)
  When a lawyer performs law-related services or controls an organization that does so, there's a risk that the person who receives those services will think she is protected like a legal client (i.e., by confidentiality, conflict rules, privilege, etc.).
  1. What's a law-related service
    Law-related services include title insurance, financial planning, accounting, lobbying, economic analysis, social work, psychological counseling, tax preparation, or patent or environmental consulting.
  2. When MRPC apply
    A lawyer is subject to the MRPC if the law-related services are provided in a situation that might confuse the client.
    1. By the lawyer
      The MRPC apply if a lawyer provides law-related services in circumstances that aren't distinguishable from her legal practice.
    2. By an entity the lawyer controls
      The MRPC also apply if the law-related services are provided by an entity the lawyer controls if the lawyer fails to take reasonable measures to inform customers that there's no client-lawyer relationship.
Client-lawyer relationship
This topic is an area of emphasis on the MPRE. Questions in this category should account for 10-16% of the MPRE.
1. Prospective clients (MRPC 1.18)
  A prospective client is someone who consults with a lawyer about the possibility of forming a client-lawyer relationship for a particular matter.
  1. What counts as a “consultation”
    A consultation can be written, oral, or electronic. Whether a particular communication counts as a consultation depends on the circumstances. If there’s a back-and-forth exchange between a lawyer and a person seeking legal advice, it’s likely to be a consultation. It's a closer call when a person sends a message to a lawyer outside the context of a meeting, a phone call, or some other two-way communication.
    1. Response to a lawyer’s specific solicitation
      You probably have a consultation if (1) a lawyer, either in person or through an ad, specifically invites people to submit information about a potential representation and (2) a person responds by providing that information. A solicitation of this type would make a reasonable person think that the lawyer is willing to discuss taking that person on as a client.
      1. Cautionary statements
        A lawyer can avoid creating a consultation if she or her ad includes a clear warning that the lawyer doesn’t have any obligation to the person submitting the information.
        Reasonable person standard
        The warning has to be clear enough to prevent a reasonable person from thinking the lawyer is willing to discuss taking that person on as a client in a particular matter.
    2. Not a response to a general ad or general legal information
      It’s not a consultation if a person who needs legal advice responds to (1) an ad that just describes the lawyer’s education, experience, practice, and contact information or (2) something like a blog post that provides general legal information. That’s considered a unilateral communication from the person to the lawyer. The lawyer hasn’t done anything to create a reasonable expectation of a possible client-lawyer relationship, so the person is not a prospective client.
    3. Not a communication with intent to disqualify
      It’s also not a consultation if a person communicates with a lawyer for the purpose of disqualifying that lawyer from representing another party in the matter. If the person’s motive in communicating isn’t to explore a client-lawyer relationship, then the person is not a prospective client.
  2. Togstad definition of “prospective client”
    Another definition of “prospective client” that you should be familiar with for the MPRE comes from a federal case called Togstad v. Vesely. It has three elements: (1) a person seeks legal advice; 2) the person reasonably relies on the lawyer's response as legal advice; and 3) the lawyer doesn't try to dissuade the person from relying on the advice.
  3. Prospective client conflicts
    See the Conflicts of interest, Prospective client conflicts section, below, for the rules about when communications with a prospective client disqualify a lawyer from representing another party to a matter.
  4. Information confidential
    A lawyer who has learned information from a prospective client must keep that information confidential and must not use it against the prospective client.
    1. Unless widely known
      A lawyer may use information she received from a prospective client in representing an adverse party if the information has become widely known.
2. Formation of the client-lawyer relationship
  The MRPC do not describe the moment when a client-lawyer relationship forms. The definition you need to know comes from Section 14 of the Restatement (Third) of the Law Governing Lawyers. Under that section, a relationship of client and lawyer arises in two situations.
  1. Actions of prospective client and lawyer
    A person manifests an intent that the lawyer provide legal services for her and either (a) the lawyer manifests consent to do so; or (b) the lawyer fails to manifest a lack of consent and knows or reasonably should know that the person reasonably relies on the lawyer to provide the services.
  2. Appointment by tribunal
    A client-lawyer relationship also forms when a tribunal appoints a lawyer to provide legal services.
  3. No formalities required
    There’s no requirement that the client and lawyer sign an engagement agreement or shake hands on the relationship.
    1. Reasonable from the client's perspective
      A lawyer may inadvertently form a lawyer-client relationship if a prospective client asks for help and the lawyer isn’t clear about declining the representation. It all depends on what seems reasonable from the client’s point of view.
3. Scope of representation and decision-making authority (MRPC 1.2)
  This rule describes how a lawyer and client can define the goals of their relationship and the roles each of them will play in achieving those goals.
  1. Objectives
    The client sets the objectives for a representation, and the lawyer must abide by them.
    1. Within the bounds of law
      A lawyer’s duty to abide by her client’s objectives is conditioned on those objectives being legal. A lawyer can’t knowingly counsel a client to commit a crime or fraud or assist a client in doing so. That includes advice about how to conceal a crime and avoid prosecution.
      1. Mandatory withdrawal
        A lawyer is required to withdraw from a representation if she discovers that the client is currently using her services to commit a crime or fraud. From that point, continued representation would assist the client in committing the crime or fraud, which would violate the MRPC. Withdrawal is mandatory if the crime or fraud is ongoing. See MRPC 1.16.
      2. Honest opinion about a course of conduct
        A lawyer is permitted, however, to analyze and discuss with the client any legal consequences of a course of conduct the client proposes. This kind of advice is exactly what lawyers are there for: to explain the risks to the client and encourage her to take the path that best serves her interest (i.e., the legal one).
    2. No endorsement
      Representing a client does not constitute an endorsement of the client's political, economic, social, or moral views or activities.
  2. Means
    The lawyer is primarily responsible for determining the means by which to carry out the client’s objectives. Clients will typically defer to a lawyer’s knowledge of technical, legal, and tactical issues that arise in a matter.
    1. Consulting with the client
      A lawyer is required to consult with the client about the means she intends to pursue. See more about this rule (MRPC 1.4) in the Communications with clients section, below.
    2. Actual authority
      A lawyer can direct the means of a representation if the client gives her actual authority to do so. For example, at the beginning of a representation, the client might authorize the lawyer to take specific kinds of actions without further consultation.
      1. Reliance
        Unless there’s a material change in circumstances or there’s an obligation to communicate with the client (under MRPC 1.4), the lawyer can rely on the advance authorization.
      2. Revocation by client
        But the client may revoke any actual authority given to the lawyer at any time.
    3. Apparent authority
      In general, a lawyer may take whatever actions are impliedly authorized to carry out the representation. For example, in litigation, a lawyer will usually have implied authority to send discovery requests to the opposing party.
      1. When client’s decision is final
        There are four areas in which the client has sole decision-making power, and the lawyer has to abide by the client’s choices. You can remember them by the acronym STEW. The lawyer should still consult with the client about each of these matters so that the client has all the necessary information to make an informed decision.
        Settle
        In all criminal and civil matters, a lawyer must abide by a client's decision about whether to agree to a settlement.
        Testify
        A criminal defendant gets to decide whether to testify at trial.
        Enter a plea
        A criminal defendant has the final say about whether to plead guilty or not guilty.
        Waive a jury trial
        A criminal defendant has the sole right to determine whether to waive the right to a jury trial.
    4. Lawyer-client disagreement about means
      If the lawyer and client disagree about the means to use in carrying out the representation, the lawyer should consult with the client and attempt to reach agreement. If no agreement is possible, and the lawyer fundamentally disagrees with the client, the lawyer may withdraw from the representation. The client also has the right to discharge the lawyer at any time.
  3. Limiting the scope
    A lawyer may agree with the client to limit the scope of the representation.
    1. Reasonableness
      The limitations the lawyer proposes must be reasonable given the client’s circumstances.
    2. Informed consent
      The client must give informed consent to the limitation. The best practice here is to get an express, written agreement describing the scope of the representation.
    3. Objectives or means
      The lawyer and client can agree to limit either the objectives or the representation or the means used to accomplish them. Limiting the objectives is one way for a lawyer to fulfill the duty of competence: by limiting the representation to areas in which she has the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation. See the discussion of MRPC 1.1, below, for more on the duty of competence. Limiting the means may help the lawyer avoid having to take actions on the client’s behalf that are repugnant or unwise.
    4. Client-lawyer agreements in general
      All agreements between a lawyer and client about a representation must comply with the MRPC and any other applicable law.
4. Declining or terminating representation (MRPC 1.16)
  Under normal circumstances, a representation terminates when the lawyer has performed whatever services she and the client agreed upon. In some situations, however, a lawyer is required to withdraw, has the option to withdraw, or must decline to represent a client in the first place.
  1. Declining or withdrawal mandatory
    A lawyer must decline representation or withdraw in three situations.
    1. Violation of rules or law
      Representing the client will violate the MRPC or other law. If a lawyer learns, for example, that the client is committing an ongoing crime or fraud, she’s obligated to withdraw rather than assist in the client’s conduct.
    2. Lawyer's impairment
      The lawyer's physical or mental condition materially impairs her ability to represent the client.
    3. Discharge by client
      The client discharges the lawyer. In general, a client can fire a lawyer at any time for no reason (though the client will still have to pay the lawyer any fees already incurred). There may be an exception if you see a court-appointed lawyer or a client who is severely impaired. In both instances, the client may lack legal capacity to discharge counsel without a tribunal’s permission.
  2. Withdrawal optional
    A lawyer is permitted to withdraw in the middle of a representation under the following circumstances. You can remember them using the mnemonic IF CRUMB.
    1. Intent to commit crime or fraud
      The client intends to engage in conduct that involves the lawyer's services and that the lawyer reasonably believes will be criminal or fraudulent.
    2. Failure by the client to meet obligations
      The client fails to fulfill a serious obligation to the lawyer regarding the lawyer's services (e.g., failure to pay fees, to abide by an agreement between the lawyer and client, or to comply with a court order).
    3. (good) Cause
      There’s a catchall provision that allows a lawyer to withdraw if good cause exists but doesn't fit within the other categories.
    4. Repugnance
      The client insists upon a course of action, and the lawyer either finds it repugnant or fundamentally disagrees with it.
    5. Used lawyer’s services for crime or fraud
      The lawyer learns that the client has used the lawyer’s services in the past to commit a crime or fraud.
    6. (no) Material adverse effect
      The lawyer can withdraw without causing a material adverse effect on the client’s interests.
    7. Burden or difficulty
      The representation will place an unreasonable financial burden on the lawyer, or the client has made the representation unreasonably difficult.
  3. Court order to continue
    If the law requires a lawyer to give notice or get permission from a tribunal before withdrawing, the lawyer must comply with the law. If a tribunal orders a lawyer to continue the representation, she must do so, even if she has good cause for withdrawing.
    1. When this issue arises
      You are most likely to see this issue when a fact pattern involves pending litigation or a court-appointed lawyer.
  4. Reasonable protection when withdrawing
    A lawyer has to take reasonable steps to protect a client’s interest when the representation ends.
    1. What steps are reasonable
      Examples of reasonable steps include (1) giving the client reasonable notice; (2) giving the client time to find other counsel; (3) turning over the client’s papers and property; and (4) refunding any advance payments the client has made for fees and expenses not yet earned or incurred.
5. Communications with the client (MRPC 1.4)
  A lawyer has a duty to make reasonable communications with the client so that the client can effectively participate in the representation. Failure to do so is a frequent bone of contention between lawyers and clients, so the bar examiners like to ask about these rules on the MPRE.
  1. When informed consent required
    A lawyer must promptly inform the client of any decision or circumstance that requires the client's informed consent.
    1. Example
      The classic example here is an offer to settle or plea bargain. The client has the ultimate authority to accept or reject such an offer, so the lawyer is required to communicate the offer to the client.
    2. Unless previously discussed
      If the lawyer and client have already discussed a matter, and the client has given the lawyer permission to act on her behalf, the lawyer doesn’t have to communicate with the client a second time. For instance, if the client has given the lawyer authority to reach a settlement for anything over $100, and the lawyer receives an offer to settle for $150, the lawyer may accept the settlement without consulting the client. (Though it would still be the best practice to discuss with the client before accepting.)
  2. Means of representation
    A lawyer must reasonably consult with the client about the means to use to accomplish the client's objectives.
    1. Exigent circumstances
      If an issue arises that requires an immediate decision, it may not be feasible to get the client’s input. In that case, the lawyer may proceed without consulting the client, but she should update the client promptly about any actions she takes.
    2. Minor or technical matters
      Most small or technical decisions don’t require client input. Details about trial presentation or negotiation techniques are usually left up to the lawyer to determine, unless the lawyer and client have agreed otherwise. Clients should be involved in shaping objectives, overall strategy, and other important or big-picture items.
    3. Expensive items
      If the proposed means of representation are going to include something costly, like taking 80 depositions in a case, the lawyer should definitely consult with the client first. It’s reasonable to think the client would want to weigh in before spending a large sum of money.
  3. Status updates
    A lawyer has to keep the client reasonably informed about the status of a matter.
    1. Important developments
      There’s no duty to update a client on every minor development, unless the client and lawyer have agreed otherwise. A lawyer does have to convey important developments that affect the timing or substance of the matter.
    2. Client's reasonable expectations
      A lawyer should fulfill a client's reasonable expectations for information in light of the nature of the representation and the duty to act in the client's best interests.
  4. Response to client requests
    Ideally, you communicate often enough with a client that she doesn’t feel the need to ask for information. But if she does, you must reply promptly.
    1. If you can't . . .
      If you can’t reply promptly, you need to get someone in your office to contact the client, acknowledge the request, and tell the client when she can expect a response from you.
  5. Limitations on lawyer's conduct
    If the lawyer knows that the client expects the lawyer to do something that isn’t permitted under the MRPC or other law, she has to explain to the client how the MRPC/law limits her conduct.
  6. Extent of communications required
    When a lawyer has a duty to communicate, she must explain a matter to the extent reasonably necessary for the client to make an informed decision.
  7. Exceptions to duty to communicate
    The Comment to MRPC 1.4 states a couple of exceptions to the lawyer’s duty to communicate.
    1. Risk of imprudent reaction or harm to client
      A lawyer can delay sharing information with a client when it’s likely that the client would react imprudently to the news or would be harmed by it.
      1. Not for personal or third-party interest
        Only the client’s well-being counts for this exception. A lawyer may not withhold information to serve her own interest or convenience or those of a third party.
    2. Rules or court order prohibiting disclosure
      Procedural rules or court orders that govern litigation may require a lawyer not to share certain information with a client. The lawyer has to comply with such a rule/order under MRPC 3.4.
6. Fees and expenses (MRPC 1.5)
  A lawyer must not make an agreement for, charge, or collect an unreasonable fee or unreasonable expenses.
  1. Reasonable expenses
    A lawyer may seek reimbursement for the cost of services performed in-house (e.g., copying) or for expenses incurred in-house (e.g., telephone charges). The lawyer and client can agree to a reasonable amount in advance, or the lawyer can charge an amount that reasonably reflects the expenses the lawyer actually incurred.
  2. Reasonable fees
    Here are the key factors that determine if a fee is reasonable. You can remember them with the mnemonic Never Charge TALLER Fees.
    1. Novelty, difficulty, and required skill
      The novelty and difficulty of the questions involved, and the skill the lawyer will need to address them
    2. Customary fees
      The fee customarily charged in the locality for similar legal services
    3. Time and labor
      The time and labor required to carry out the representation
    4. Amount at issue and results
      The amount in controversy in the matter and the results the lawyer obtained
    5. Limited time
      Whether the client imposed any time limitations on the lawyer (e.g., was the matter handled on an emergency basis?)
    6. Lost opportunities
      Whether the representation will prevent the lawyer from accepting work from other clients, resulting in lost opportunities
    7. Experience, reputation, and ability
      The experience, reputation, and ability of the lawyer or lawyers conducting the representation
    8. Relationship between lawyer and client
      The nature and length of the lawyer’s professional relationship with the client
    9. Fixed or contingent
      Whether the fee is fixed or contingent
  3. Communication, preferably in writing
    A lawyer must communicate to the client (1) the scope of the representation and (2) the basis or rate of the fee and expenses the client must pay, preferably in writing, before the representation starts or within a reasonable time afterwards.
    1. Exception for regular client
      No communication about fees is required if the lawyer will charge a regularly represented client on the same basis or rate that the client usually pays.
    2. Changes in fees or expenses
      If the basis or rate of the fee or expenses changes, the lawyer must communicate the change to the client.
  4. Contingent fees, writing required
    In most kinds of matters, a fee may be contingent on the outcome.
    1. Contingent fee agreement
      A contingent fee agreement must be in a writing signed by the client.
      1. Method of determination
        The agreement must state the method that will be used to determine the fee, including the percentage the lawyer will receive if there’s a settlement, trial, or appeal. It also has to include whether expenses will be deducted before or after the contingent fee is calculated and whether the client will be liable for expenses if the client doesn’t prevail.
    2. Written statement when matter ends
      When a contingent-fee matter ends, the lawyer must give the client a writing that (1) states the outcome of the matter and (2) if there is a recovery, shows how much the client will receive (less the lawyer’s fee and any expenses) and how the amount was determined.
    3. Prohibited contingency fee arrangements
      The MRPC specifically prohibit contingency fees in two situations.
      1. Domestic relations matters
        You can’t have a fee in a domestic relations matter that depends on securing a divorce or a certain amount of alimony, support, or property.
      2. Criminal cases
        You can’t charge a contingent fee for representing a defendant in a criminal case.
  5. Division of fees, different firms
    If lawyers who practice in separate firms want to divide a fee, there are three requirements.
    1. Basis for division
      The fee can be divided (1) in proportion to the services each lawyer performed or (2) if each lawyer assumes joint responsibility for the whole representation.
    2. Informed consent, confirmed in writing
      The client must agree to the arrangement in writing, including the share each lawyer will receive.
    3. Total fee reasonable
      The total fee charged to the client must be reasonable.
  6. Advances okay
    A lawyer can require or accept an advance on legal fees and expenses.
    1. Held in trust
      The advanced funds have to be kept in a client trust account (i.e., separate from the lawyer's funds) until earned.
    2. Balance returned
      Any unearned funds have to be returned to the client at the end of the representation.
  7. No agreements that curtail legal services
    A lawyer must not enter into a fee agreement that would improperly curtail the services she performs for the client or cause her to perform them in a way that’s against the client’s interest.
    1. No strict dollar limits
      For example, a lawyer shouldn’t set a dollar limit on services she’ll provide if it’s foreseeable that the representation will require additional services. It’s not fair to make a client bargain for additional services in the middle of a matter, and it would likely breach the lawyer’s duties of diligence and loyalty. In theory, a client can consent to a dollar limit if the lawyer adequately explains the situation, but that’s not likely to be the right answer on the MPRE. When in doubt, pick the answer that protects the client’s interest.
    2. Okay to condition on ability to pay
      A lawyer is entitled to limit the extent of her services based on the client's ability to pay for them. There’s no duty to continue providing legal advice if the client can’t afford reasonable fees.
  8. No exploitation of hourly billing
    A lawyer should not exploit a fee arrangement that’s based on an hourly fee by wasting time or taking longer than necessary to perform services.
  9. Payment in property
    In theory, a lawyer may accept property in payment for services. But on the MPRE, watch out for violations of MRPC 1.8 in this scenario. Payment in property may constitute (1) an acquisition of a proprietary interest in the subject matter of the litigation or (2) a business transaction with the client. See the Conflicts of interest section, below, for more on MRPC 1.8.
Client confidentiality
Questions from this category should account for 6-12% of the MPRE.
1. Attorney-client privilege
  Attorney-client privilege protects confidential communications between an attorney and her client from legal demands for their disclosure (e.g., a subpoena to an attorney to testify or a discovery request).
  1. Three elements
    The privilege attaches if these three elements are satisfied.
    1. Confidential communication
      “Confidential” requires both physical privacy and the client's intent that the communication be confidential. If the client knows someone else is listening to the conversation, there is no physical privacy and therefore no privilege. If the client asks the attorney to disclose the communication to a third party, there is no intent to keep the communication confidential and therefore no privilege.
      1. Joint client exception
        When two or more clients with common interests consult an attorney, the privilege applies between them. In other words, a joint client doesn't count as a third party whose presence destroys the privilege.
        Against third parties
        Any of the joint clients can assert attorney-client privilege against third parties.
        Waiver
        A client in a joint representation can only waive the privilege as to its own communications with counsel. If any other joint clients were involved in a communication, the privilege can't be waived unless all participants consent.
        But not against each other
        The “adverse-litigation exception” to the privilege says that if joint clients sue each other or sue their joint counsel, all communications made during the representation are discoverable.
    2. Between attorney and client
      Both “attorney” and “client” are broadly defined for purposes of the privilege.
      1. “Attorney”
        This term is not limited to members of the bar. It includes people the client reasonably believes are members of the bar. It also extends to other members of the legal team who are reasonably necessary to facilitate the representation, like assistants, paralegals, translators, investigators, and accountants.
      2. “Client”
        This term includes prospective clients and client representatives who are reasonably necessary to facilitate the provision of legal services.
    3. For purposes of legal advice
      The point of the communication has to be to request or to provide legal advice. If the communication involves personal or business advice or is purely social in nature, it doesn't fall within the privilege.
    4. Not documents or physical evidence
      The privilege only applies to communications for the purpose of giving or receiving legal advice. A document or other physical evidence doesn't become privileged when a client provides it to her attorney.
  2. Who holds it
    The attorney-client privilege belongs to the client.
    1. Waiver
      Because the privilege belongs only to the client, only the client can waive it. She can do so intentionally or inadvertently.
      1. Subject-matter waiver
        At common law, if you disclosed one privileged piece of information, you waived the privilege as to all other information about the same subject matter. Federal Rule of Evidence 502 was adopted to address concerns about whether federal courts would apply this sweeping, unforgiving doctrine—especially in the age of electronically stored information, where discovery means combing through masses of documents to avoid producing a privileged communication.
        Intentional disclosure, if required by fairness
        A party might intentionally disclose a document that's subject to the attorney-client privilege in a judicial or administrative proceeding. Doing so waives the privilege as to that document. It also waives the privilege as to undisclosed communications about the same subject matter if "they ought in fairness to be considered together" with whatever was intentionally disclosed. So if a party intentionally waives the privilege as to one document, it will result in a subject-matter waiver only if fairness requires. See FRE 502(a).
        Preventing selective disclosure
        The reason for this rule is to discourage litigants from revealing only the privileged documents that are helpful to them. You shouldn't be able to make "a selective, misleading presentation" of privileged information "that is unfair to [your] adversary." See Notes to FRE 502.
        Inadvertent disclosure
        A party may inadvertently disclose a privileged communication in a federal proceeding or before a federal agency.
        Reasonable steps, no waiver
        If that happens, the party doesn't waive the privilege as long as she (1) took reasonable steps to prevent disclosure and (2) promptly takes reasonable steps to rectify the error.
        Claw back
        An example of a reasonable step to rectify would be sending the other side a "claw-back" letter, informing them of the inadvertent disclosure and asking that the privileged document be returned. See Fed. R. Civ. P. 26(b).
  3. Survives client's death
    The client's estate has the right to waive the privilege.
  4. Exceptions
    The attorney-client privilege does not apply to communications involving a client's intent to commit a crime or fraud or disputes in which the communications are directly at issue.
    1. Future crime or fraud
      Attorney-client communications are not privileged if the client is seeking legal advice to further a crime or fraud. See U.S. v. Zolin (1989).
      1. Committing or planning to commit
        The client must be in the process of planning or committing the crime or fraud that is the subject of the communication.
        Not potential crimes
        The privilege may still attach if the client does not have a fully formed intent to commit the crime or fraud. If the conversation is exploratory and the client is merely asking about her options, this exception may not apply.
      2. Awareness of illegality
        When the communication occurs, the client has to know that the conduct she's considering is illegal or fraudulent.
      3. Common examples
        This exception often arises when the client intends to obstruct an investigation or an ongoing prosecution by tampering with witnesses or destroying evidence.
      4. Past crimes
        Communications about past crimes remain privileged as long as they are confidential and made for the purpose of obtaining legal advice.
    2. Communication at issue
      If the client puts the attorney-client communication at issue, like in a legal malpractice case, the privilege does not apply.
2. Work product doctrine
  The work product doctrine protects certain information from discovery. See Hickman v. Taylor (1947) and Fed. R. Civ. P. 26(b)(3).
  1. What it protects
    The doctrine shields “documents and tangible things that are prepared in anticipation of litigation or for trial” by a party or its representative.
    1. Impressions, preparation, and strategy
      The doctrine is primarily intended to protect an attorney's impressions, legal theories, and strategic planning. It makes sense that it would shield materials the attorney (or her paralegal, investigator, or expert) creates in the process of analyzing and preparing a case. In one way or another, attorney-generated materials are likely to reflect that analysis and preparation.
      1. Not primary information
        What the doctrine does not shield is "primary" information—the documents on which a contract claim is based or the defective widget in a products liability case. Documents and objects that have an historical connection to the case and aren't attorney-generated will be discoverable.
  2. Who holds it
    Attorneys often assert the work product doctrine on their own behalf, though courts have also allowed clients to invoke it.
    1. Waiver
      The same rule that governs waivers of attorney-client privilege in federal court also governs work product waivers. See FRE 502.
      1. Intentional
        An intentional disclosure may open you up to subject-matter waiver, requiring you to turn over any undisclosed materials on the same topic. Subject-matter waiver is only appropriate where “fairness” to your adversary requires that all materials on that topic be viewed together.
      2. Inadvertent
        An inadvertent disclosure isn't a waiver as long as you took reasonable steps to protect the materials and reasonable steps to get them back once you discovered your mistake.
  3. How to counter it
    In some situations, an opposing party may be able to compel discovery of certain materials that meet the definition of work product.
    1. Conditional
      The doctrine usually applies conditionally, which means the other party can get access to work product after a sufficient showing. See Fed. R. Civ. P. 26(b)(3). Specifically, the opposing party must show two elements.
      1. Substantial need
        The party has substantial need for the materials to prepare its case.
      2. No substantial equivalent
        And the party can't obtain the substantial equivalent of the materials without undue hardship.
    2. Absolute
      Even if an opposing party succeeds in getting access to some materials under the “substantial need” test, there's an absolute protection for “mental impressions, conclusions, opinions, or legal theories of a party's attorney or other representative.” Fed. R. Civ. P. 26(b). Portions of documents containing these kinds of statements may be redacted.
3. Duty of confidentiality (MRPC 1.6)
  The professional duty of confidentiality is broader than the attorney-client privilege. It applies not only to confidential communications with the client but also to all other information that relates to the representation, regardless of its source.
  1. No disclosure or access
    A lawyer has to take reasonable steps to prevent (1) inadvertent or unauthorized disclosure of client information by the lawyer and other people she supervises and (2) unauthorized access to client information by third parties.
  2. Reasonably leading to discovery
    The rule also prohibits disclosures that don’t directly reveal protected information but that could reasonably lead a third person to discover it.
  3. Disclosures within a firm okay
    The rule does not prohibit lawyers within a firm from disclosing information about a client representation to each other, unless the client has said otherwise.
  4. Exceptions
    There are three exceptions to the rule that a lawyer must not reveal information relating to a client representation.
    1. Express informed consent
      The client has given her informed consent to the disclosure.
    2. Implied authorization
      The lawyer has implied authorization to make the disclosure because it furthers the client’s interests or is appropriate in the context of the client’s matter.
      1. Examples
        In a pleading, a lawyer may need to admit a fact if there’s no good-faith basis to dispute it. Or, in settlement negotiations, a lawyer may need to make a disclosure so that the parties can reach a deal that’s satisfactory to the client.
    3. Reasonably necessary
      The disclosure is reasonably necessary to prevent certain bad outcomes.
      1. Substantial bodily harm
        A lawyer can reveal information to the extent it’s necessary to prevent reasonably certain death or substantial bodily harm.
      2. Preventing client’s crime or fraud
        A lawyer can reveal information if it’s necessary to prevent the client from committing a crime or fraud that is reasonably certain to cause substantial injury to another party’s financial interests or property.
        But only if . . .
        This exception only applies when the client has been using the lawyer’s services to further the crime or fraud.
      3. Mitigating injury from client's crime or fraud
        Similarly, a lawyer can reveal information to mitigate or fix the substantial injury that the client’s crime or fraud has already caused or is reasonably certain to cause.
        But only if . . .
        This exception only applies when the client has been using the lawyer’s services to further the crime or fraud.
        And not when . . .
        If you’re representing a criminal defendant, you can’t reveal information about the crime your client has been charged with for purposes of mitigating injury.
      4. Compliance with MRPC
        A lawyer can reveal information if it’s necessary to secure legal advice about how to comply with the MRPC. The usual fact pattern involves a lawyer who calls the state bar's ethics hotline or consults with another attorney about an ethical question raised by the client representation.
      5. Claims involving the client
        A lawyer can reveal information if it’s necessary (1) to establish a claim or defense in a controversy between the lawyer and the client; (2) to establish a defense to a criminal charge or civil claim against the lawyer based on conduct in which the client was involved; or (3) to respond to allegations in any proceeding that concerns the lawyer's representation of the client.
      6. Order from court or legal requirement
        A lawyer can reveal information if it’s necessary to comply with a court order or another legal requirement.
        But only after . . .
        If a tribunal orders a lawyer to reveal client information, the lawyer has to raise any nonfrivolous objections to doing so, unless the client consents to the disclosure. If the tribunal rules against the objections, the lawyer should discuss with the client whether to appeal. If the client doesn’t want to appeal or if the appeal is rejected, the lawyer can comply with the order.
      7. Identifying conflicts
        Finally, a lawyer can reveal information if it’s necessary to detect and resolve conflicts of interest that arise when the lawyer goes to a new firm or when there’s a change in the membership of the lawyer’s firm.
        But only if . . .
        This exception only applies if the revealed information would not compromise attorney-client privilege or otherwise prejudice the client.
    4. Survives termination (MRPC 1.9(c)(2))
      Even after the attorney-client relationship ends, a lawyer has a duty to keep information relating to the representation confidential.
    5. Prospective clients (MRPC 1.18(b))
      The rules define a prospective client as someone who consults with a lawyer about the possibility of forming a client-lawyer relationship regarding a matter. Information learned from a prospective client should generally be protected from disclosure just as it is for an existing or former client. Duties to prospective clients are covered in more detail in the Client-lawyer relationship section, above, and the Conflicts of interest section, below.
    6. Disclosures when the client is an organization (MRPC 1.13(c))
      This rule permits a lawyer representing an organization to reveal information in limited circumstances.
      1. Best interest of the organization
        When someone associated with the organization is doing something illegal that is likely to cause the client substantial harm, the lawyer has to take steps that are reasonably necessary to serve the client’s best interests.
        What actions trigger this rule
        This rule kicks in when the organization’s lawyer knows that an officer, employee, or other associate (1) is violating a legal obligation to the client or intends to do so or (2) is committing a violation of law that could be imputed to the organization.
        Reporting up
        Unless the lawyer reasonably believes that it is not necessary in the best interest of the organization, the lawyer must refer the matter to a higher authority in the organization, including the highest authority that can act on behalf of the organization (e.g., the board of directors).
        Reporting out
        If (1) the organization’s highest authority refuses to act on a clear legal violation in a timely and appropriate way and (2) the lawyer reasonably believes that the organization will suffer substantial harm, the lawyer may reveal information relating to the representation to the extent necessary to prevent the harm.
        Even if confidential
        This rule applies even if MRPC 1.6 (Confidentiality) would prohibit disclosure.
        Unless investigating or defending against violation of law
        But, the lawyer cannot disclose any information if she’s been retained to (1) investigate an alleged violation of law or (2) defend the organization or an officer, employee, or other agent of the organization against a claim that they violated the law. That makes sense: in these situations, the organization is actually using the lawyer's services to address the alleged violation, so maintaining confidentiality is essential to protect the organization’s interests.
        Upon discharge or withdrawal
        If a lawyer is discharged or decides to withdraw because she reported a legal violation, she should take reasonably necessary steps to inform the organization’s highest authority of her discharge or withdrawal.
Conflicts of interest
This is usually the most heavily tested topic on the MPRE. Expect 12-18% of the questions to involve the rules about conflicts.
1. Avoiding current client conflicts (MRPC 1.7 and 1.8)
  A lawyer must not represent a client if it would create a “concurrent” conflict of interest.
  1. Directly adverse
    There’s concurrent conflict if two of the lawyer’s clients would be directly adverse to one another.
    1. Unrelated matters
      You can’t act as an advocate in one matter against a client you’re representing in another matter, even if the matters are completely unrelated.
    2. Representing competitors
      You can represent two clients who compete with each other in the same industry if (1) the matters are unrelated and (2) the clients are only “economically adverse” (i.e., not legally adverse in either matter). If those two criteria are met, you probably don’t need consent from either client because there’s no conflict.
  2. Significant risk of material limitation
    Even if two clients aren't directly adverse, there's a concurrent conflict if there’s a significant risk that the lawyer’s representation of a client will be materially limited (1) by her responsibilities to another client, a former client, or a third person or (2) by the lawyer’s own personal interest.
    1. Material limitation = foreclosing alternatives
      A conflict materially limits a representation if it forecloses alternative courses of action that would otherwise be available to the client.
      1. Joint venture example
        The Comment to this rule gives the example of several individuals forming a joint venture. If a lawyer tries to represent all of them, she may not be able to recommend all possible positions that every one of them might want to take. She would have a duty of loyalty to each client, so she couldn’t advocate for a position that would give one of them an advantage over the others.
      2. Not a mere possibility of harm
        You don’t have to get a client’s consent because there’s a mere possibility of future harm. If you have to look into a crystal ball to find a potential conflict between clients, there’s no conflict.
      3. Likely interference
        The test is whether it’s likely that a difference in clients’ interests will interfere with the lawyer's independent, professional judgment in advising one client about reasonable alternatives.
      4. Responsibilities to third parties
        Third-party interests might create a conflict if a lawyer has fiduciary duties as a trustee, an executor of an estate, or a corporate director. If a client's interests clash with those of the trust beneficiaries, the decedent’s heirs, or the corporate shareholders, the lawyer may be materially limited in representing the client.
      5. Lawyer's personal interests
        Examples of personal interests that might create a conflict for a lawyer would include (1) business interests; (2) considering employment with a party or a firm that is adverse to a client; or (3) a family relationship with the opposing party’s lawyer (i.e., Jack represents the plaintiff, and his sister Jill represents the defendant). Any of those situations would require a client’s informed consent. See also Lawyer’s personal interest section, below.
  3. Consent/waiver by client
    If there’s a conflict, the lawyer may only represent the client if the client waives the conflict.
    1. When waiver not permitted
      Whether a conflict can be waived depends on whether the interests of the clients will be adequately protected if they give informed consent to the representation. A conflict that can't be waived is also called a “non consentable” conflict.
      1. Competence and diligence
        The lawyer must reasonably believe that she can provide competent and diligent representation to every affected client. A client can’t waive the lawyer’s duties of competence and diligence, so a conflict that prevents a lawyer from fulfilling those duties is non-consentable.
      2. Opposing parties in litigation
        The representation can't involve one client asserting a claim against another client in the same litigation or other proceeding before a tribunal. Parties with claims against each other need to have separate counsel, period.
      3. Prohibited by law
        If there's a law prohibiting representation when a particular conflict of interest is present, it doesn't matter if a client consents to the representation.
    2. Conflict arises before representation
      Sometimes, there's a conflict between an existing or former client and a prospective client.
      1. Duty to identify conflicts
        A lawyer must follow reasonable procedures to identify potential conflicts before they happen. If you’ve worked at a firm, you've probably gotten notifications of “conflict checks” when a lawyer was considering bringing in a new matter. That’s what we’re talking about here: a system that determines whether any other member of the firm has a conflict with one of the parties or issues involved in the possible representation. If you don’t do a proper conflict check and you wind up with conflicting matters, that’s a professional violation.
    3. Conflict arises during representation
      Sometimes, a conflict appears only after a representation has started.
      1. Informed consent or withdrawal
        If a conflict arises after the representation begins, the lawyer usually has to withdraw, unless the client has given informed consent, confirmed in writing.
        Ongoing duties after withdrawal
        If a lawyer needs to withdraw, she must seek court approval when necessary, take steps to minimize harm to the client, and continue to protect the client's confidential information.
  4. Multiple clients/joint representation
    When a lawyer represents two or more clients in the same matter, she owes certain duties to each client.
    1. Loyalty and diligence
      Each client in a joint representation has the right to loyal and diligent representation.
    2. Impartiality
      A lawyer is required to be impartial between commonly represented clients. If it's unlikely that the lawyer can remain impartial, she can't represent multiple clients in the matter.
    3. Information
      Each client has the right to be informed of anything that might be relevant to the client's interests in the matter and the right to expect the lawyer to use that information to the client's benefit.
      1. Lawyer's obligations
        The obligation to share relevant information with each client comes from the lawyer's duty of loyalty to each client. If one client wants to withhold information from another client, that's a conflict, and the lawyer may need to withdraw.
      2. Agreeing to confidentiality
        Joint clients can contract around this requirement to the extent that keeping information confidential will not adversely affect the representation. For instance, joint clients may agree that the lawyer can keep each client's trade secrets confidential from the others.
    4. Advising clients about the risks
      At the start of a matter, the lawyer should discuss the risks of joint representation with each client to obtain informed consent.
      1. Antagonism between clients
        If the clients are already antagonistic toward each other, joint representation is a bad idea. A lawyer can't undertake joint representation if it's likely there will be contentious litigation or negotiations between the clients.
        Attorney-client privilege
        Attorney-client privilege does not apply as between clients in a joint representation. That means that if one client sues another, both clients can reveal attorney-client communications and use them against each other. Attorney-client privilege does apply as to third parties in a joint representation. So, if a lawyer sits down with two clients and provides advice, a third party can't compel the clients or the lawyer to reveal those communications.
        Representing co-parties
        Various conflicts may arise between co-parties to litigation. Maybe their witnesses give conflicting testimony or they have very different views on whether to settle the case. In criminal cases, it's usually not appropriate for one lawyer to represent more than one co-defendant because the likelihood of a conflict is so high.
        Advocating inconsistent legal positions
        In general, a lawyer can argue inconsistent legal positions before different tribunals for different clients without creating a conflict.
        Possibility of adverse precedent
        There's no conflict when there's a mere possibility that taking a position for one client might create bad precedent for another client in a different matter.
        Significant risk, material limitation
        There is a conflict when there's a significant risk that action on one client's behalf will materially limit the lawyer's ability to represent another client in a different matter. If it's likely that creating adverse precedent would seriously weaken another client's case, the lawyer needs to get a conflict waiver from both clients or decline/withdraw from one or both matters.
      2. Failure of a joint representation
        If a joint representation fails because the clients' interests can't be reconciled, the lawyer will have to withdraw from representing all of the clients.
    5. Class counsel
      A lawyer who is representing the class in a class action does not have to get consent from an unnamed class member before representing a client who is adverse to that class member in an unrelated matter. Unnamed class members generally aren't considered clients for purposes of the conflicts rules.
    6. Consent to joint settlements and pleas
      Before a lawyer representing two or more clients in a matter (1) makes a joint settlement of all clients' civil claims or (2) agrees to a joint plea of guilty or no contest in a criminal case, she has to get the informed consent from each client, confirmed in a writing that's signed by the client.
  5. Conflicts involving organizational clients (MRPC 1.13)
    When the client is an organization rather than an individual, there are some additional conflict-related issues to consider.
    1. Stakeholders
      A lawyer who represents an organization does not automatically represent any of its individual stakeholders (e.g., directors, officers, employees, members, or shareholders).
      1. Interests adverse to the organization
        When a lawyer represents a corporation, she has to be clear with all individual stakeholders that the organization is her client. A lawyer should explain that the organization is the client whenever she knows or reasonably should know that the organization's interests are adverse to the interests of a stakeholder she's dealing with.
      2. Representing stakeholders
        A lawyer who represents an organization may also represent any of its directors, officers, employees, members, or shareholders if it doesn't create a conflict.
        Conflict waiver by the organization
        If the lawyer needs the organization's consent to waive a conflict, consent can be given by the shareholders or by an appropriate official other than the stakeholder the lawyer is representing.
    2. Affiliates
      A lawyer who represents an organization does not necessarily represent any affiliated organization, like a parent company or subsidiary.
      1. Interests adverse to an affiliate
        That means that a lawyer may ordinarily accept a representation that is adverse to an affiliate and unrelated to the matter she's handling for the organization.
        Exceptions
        The organization's lawyer can't represent someone who's adverse to an affiliate if (1) the lawyer and organization have an agreement to that effect; or (2) the representation would materially limit the lawyer's ability to advocate for either the organization or the new client.
    3. Organization’s lawyer as board member
      A lawyer for an organization who is also a member of its board of directors should determine whether the responsibilities of the two roles may conflict. For example, the lawyer may be asked to advise the corporation about actions the board has taken.
      1. Maintaining independent professional judgment
        If there is material risk that the lawyer's independent professional judgment will be compromised, she should not serve as a director or should cease to act as the corporation's lawyer when conflicts arise.
      2. Attorney-client privilege
        The lawyer should advise the board that when she's acting as a director, attorney-client privilege won't apply to their communications.
      3. Recusal
        The lawyer should also advise the board that she might need to recuse herself from certain votes and that her firm might have to decline to represent the corporation in a matter involving board actions.
  6. Lawyer's personal interests (MRPC 1.8)
    Lawyers have a duty to prevent their personal interests from getting in the way of a client representation.
    1. No gifts from client
      A lawyer shall not (1) solicit any substantial gift from a client or (2) prepare an instrument (e.g., a will) for a client that gives a substantial gift to the lawyer or her relative.
      1. Unless related
        Gifts from a client are okay if the person receiving the gift (the lawyer or her relative) is related to the client. “Related” includes a spouse, child, grandchild, parent, grandparent, or other relative with whom the lawyer or client maintains a close, familial relationship.
    2. Literary or media rights
      A lawyer shall not make or negotiate an agreement giving the lawyer literary or media rights to any book, movie, or other account based on information about a client representation until after that representation has ended.
    3. No sexual relationships
      It’s a professional violation to have sex with a client, unless the sexual relationship began before the client-lawyer relationship. Consent by the client does not get the lawyer off the hook.
    4. Business transactions with clients
      A lawyer can’t enter into a business transaction with a client or knowingly acquire an ownership, possessory, security, or other financial interest that is adverse to a client unless these four conditions are met. Note that both the disclosure and consent requirements involve a writing.
      1. Fair and reasonable
        The terms of the transaction must be fair and reasonable to the client.
      2. Disclosed in writing
        The terms must be fully disclosed to the client and provided in a writing that the client can reasonably understand.
      3. Advised to seek counsel
        The lawyer must advise the client in writing that she should seek independent counsel and give the client a reasonable opportunity to do so.
      4. Informed, written consent
        The client must give informed consent, confirmed in a signed writing.
        To terms and lawyer's role
        The client must consent to both (1) the essential terms of the deal and (2) the lawyer's role in the transaction, including whether the lawyer is representing the client in the deal.
    5. No proprietary interest in litigation
      A lawyer must not acquire a proprietary interest in any litigation she’s conducting for a client. There are a couple of exceptions related to legal fees.
      1. Fee liens permissible
        The MRPC do allow a lawyer to acquire a lien on a client’s property to secure payment of fees, if the law of the jurisdiction permits it.
      2. Contract for contingent fees
        A lawyer may also contract with a client to receive a reasonable contingent fee in a civil case.
    6. No financial assistance to clients in litigation
      In general, a lawyer shall not provide financial assistance to a client for current or contemplated litigation. There are a few, narrow exceptions.
      1. Advancing costs and expenses
        A lawyer may advance court costs and expenses of litigation. A lawyer and client can also agree that the client's obligation to repay the lawyer will depend on the outcome of the matter.
      2. Paying costs and expenses for indigents
        A lawyer representing an indigent client may pay court costs and expenses of litigation on behalf of the client.
      3. Basic necessities for indigent pro bono clients
        A lawyer representing an indigent client pro bono may provide modest gifts for food, rent, transportation, medicine, and other basic living expenses.
        Not as an inducement
        The lawyer may not promise or imply that a gift is available to induce a client to retain a lawyer or continue the client-lawyer relationship.
        No reimbursement
        The lawyer may not seek or accept reimbursement from the client or from anyone affiliated with the client.
      4. Fee-shifting statutes irrelevant
        A lawyer can provide financial assistance under this rule even if the representation is eligible for fees under a fee-shifting statute.
  7. Former client conflicts (MRPC 1.9)
    A lawyer owes certain duties to clients even after a representation has ended.
    1. Lawyer’s former client
      A lawyer who formerly represented a client in a matter must not represent another person in the same or a substantially related matter if the person's interests are materially adverse to the former client's interests. In other words, you can't switch sides.
      1. Substantially related
        Matters are “substantially related” if (1) they involve the same transaction or legal dispute; or (2) there's a substantial risk that confidential information a lawyer would usually obtain in the first matter would help the client in the second matter.
      2. Consent
        The lawyer can represent the other person if the former client gives informed consent, confirmed in writing.
    2. Client of previous firm
      If a lawyer changes firms, she can't knowingly represent a person in a substantially related matter who is adverse to a client of her previous firm.
      1. Actual knowledge required
        This prohibition only applies if the lawyer learned confidential information about the previous firm's client that is material to the matter. A lawyer who knew nothing about the matter or the client while practicing at the prior firm isn't conflicted out of representing an adverse party at her new firm.
      2. Consent
        Even if the lawyer has actual knowledge of the former representation, she can represent the adverse party if the former client gives informed consent, confirmed in writing.
    3. Use and disclosure of former client’s information
      This rule protects both a lawyer's former clients and the former clients of her current or previous firm. It forbids a lawyer from (1) using information relating to a representation to the disadvantage of a former client; or (2) disclosing information relating to the representation.
      1. Generally known
        If the information the lawyer has about the former client is generally known to the public, the lawyer may use it.
  8. Prospective client conflicts (MRPC 1.18)
    When a lawyer consults with a prospective client and identifies a potential conflict, she must inform the prospective client or decline representation.
    1. Consent
      If the prospective client still wants to retain the lawyer, and if the conflict is consentable under MRPC 1.7, then the lawyer has to get consent from all affected clients or former clients before accepting the representation.
    2. Disqualification
      If a lawyer receives information from a prospective client that might be harmful in a matter, the lawyer can't represent another person whose interests are materially adverse to the prospective client.
      1. Imputed within a firm
        Other lawyers within the firm are also disqualified under this rule, unless they get informed consent and screen the lawyer who received the harmful information. Here's what's required:
        Informed consent or reasonable measures
        Both the affected client and the prospective client must give informed consent, confirmed in writing, or the lawyer who received the information must have taken reasonable measures to avoid learning more than was reasonably necessary to decide whether to represent the prospective client.
        Screening
        In addition, the disqualified lawyer has to be screened from participation in the matter and can't receive any part of the fee the firm receives.
        Notice to prospective client
        Written notice must also be given to the prospective client.
    3. Limiting the scope of consultation
      A lawyer should limit the initial consultation to information that is reasonably necessary to determine whether to represent the prospective client. Limiting the scope will help the lawyer avoid acquiring information that would disqualify her.
    4. Conditions of initial consultation
      As a condition of consultation, a lawyer may require a prospective client to give informed consent to the lawyer representing a different client in the matter, regardless of what information the prospective client discloses. The agreement can also expressly provide that the prospective client consents to the lawyer's subsequent use of the information.
    5. No harmful information
      Even if the prospective client doesn't expressly consent, a lawyer can still represent a person adverse to the prospective client unless the lawyer has received information from the prospective client that could be significantly harmful.
    6. Use and disclosure of prospective client’s information
      The same rule regarding former clients' information also applies to prospective clients. It forbids a lawyer from (1) using information relating to a representation to the disadvantage of a prospective client; or (2) disclosing information relating to the representation, unless the information is generally known.
  9. Imputed conflicts (MRPC 1.10)
    These conflict-of-interest rules are not limited to the individual lawyer who is representing a client. Conflicts of interest are imputed to all lawyers practicing within that lawyer’s firm. No lawyer associated with a firm may knowingly represent a client when any one of the firm's lawyers would be conflicted out.
    1. Personal interest, no significant risk
      The conflict isn't imputed to the whole firm if the lawyer is disqualified based on a personal interest and there's no significant risk it will materially limit representation by the other lawyers in the firm.
    2. Former client; screening and notice
      A lawyer joins a new firm, and that creates a conflict with one of her old firm's clients. Other lawyers in the new firm can represent a party that's adverse to the old firm's client if (1) the lawyer is screened and receives no fee; and (2) the former client gets written notice of the screening procedures.
    3. Former lawyer
      When a lawyer leaves a firm, the remaining lawyers can represent people adverse to the lawyer's former clients if they are not currently clients of the firm.
      1. Unless same matter + material information
        The matter can't be the same or substantially related to the one the former lawyer handled, and no lawyer remaining in the firm may have confidential information from the former client that's material to the matter.
      2. Waiver permitted
        A client can waive any conflict under this rule if it's consistent with MRPC 1.7, discussed above.
  10. Government lawyers (MRPC 1.11)
    Both former and current public-sector lawyers have two additional rules to worry about.
    1. Former public officer or government employee
      Former public officers or government employees may not reveal information they received from a client or use that information to the client's disadvantage.
      1. Personal and substantial participation
        In addition, they can't represent a client in connection with a matter in which they participated personally and substantially as a public officer or employee, unless the government agency gives informed consent, confirmed in writing.
        Screening and notice
        If a lawyer is disqualified under this rule, no lawyer in her firm may knowingly undertake or continue representation in the matter unless (1) the disqualified lawyer is screened from participation and receives no part of the fee; and (2) the parties and tribunal get prompt written notice.
      2. Confidential government information
        A lawyer who's working in public service learns certain confidential government information about a person. That lawyer can't subsequently represent a private client whose interests are adverse to the person if the information could materially harm the person.
        What information counts
        “Confidential government information” means information obtained under government authority that (1) the government is legally prohibited from disclosing to the public; (2) is legally privileged; or (3) is not otherwise available to the public.
    2. Current public officer or government employee
      A lawyer currently serving as a public officer or employee has to comply with these limitations.
      1. Conflicts
        She is subject to the rules about current and former client conflicts.
      2. Participation in a matter
        She can't participate in a matter in which she participated personally and substantially while in private practice or nongovernmental employment.
      3. Negotiation for employment
        She can't negotiate for private employment with any party or lawyer for a party in a matter in which she's participating personally and substantially.
        Law clerk exception
        A law clerk may negotiate for employment with a party or lawyer involved in a matter in which she is participating, but only she notifies the judge.
  11. Former judges and other third-party neutrals (MRPC 1.12)
    Two additional rules apply to former judges, arbitrators, mediators, and other third-party neutrals.
    1. No subsequent representation
      If a lawyer participates in a matter as a judge, law clerk, arbitrator, mediator, or other third-party neutral, she cannot later represent any party in that matter.
      1. Unless parties consent
        A lawyer may represent a party if all parties give informed consent, confirmed in writing.
      2. Screening and notice
        If a lawyer is disqualified under this rule, no lawyer in her firm may knowingly undertake or continue representation in the matter unless (1) the disqualified lawyer is screened from participation and receives no part of the fee; and (2) the parties and tribunal are given prompt, written notice.
      3. Exception for party-selected arbitrator
        Sometimes an arbitration panel has multiple members. Each side will often choose one or more arbitrators to serve as their partisans, and then together, they will choose another person to serve as the neutral arbitrator. MRPC 1.12 does not bar an arbitrator who is selected as a partisan (rather than as a neutral) member of the panel from subsequently representing the party who chose her.
    2. Negotiation for employment
      If a lawyer is participating in a matter as a judge, law clerk, arbitrator, mediator, or other third-party neutral, she cannot negotiate for employment with anyone who is a party or lawyer in the matter.
      1. Law clerk exception
        A law clerk may negotiate for employment with a party or lawyer involved in a matter in which she is participating, but only she notifies the judge.
Competence, diligence, and civil liability
Expect questions in this category to comprise 6-12% of the MPRE.
1. Competence (MRPC 1.1)
  A lawyer has a duty to provide competent representation to a client. That means having the legal knowledge, skill, thoroughness, and preparation that’s reasonably necessary for the matter.
  1. Unfamiliar matters
    A lawyer doesn’t necessarily have to have special training or prior experience to handle legal problems that are unfamiliar to her. She can satisfy the duty of competence by studying the governing law or by associating with a lawyer who has established competence in the field.
  2. Emergency assistance
    In an emergency, a lawyer can assist a client in a matter even if she doesn’t have the skill ordinarily required if it’s not practical to refer the client or to consult/associate with a more expert lawyer.
    1. Reasonably necessary
      In that situation, the lawyer’s assistance should be limited to whatever is reasonably necessary under the circumstances.
  3. Study and preparation
    A lawyer has a duty to investigate and analyze the facts and the law and to use methods and procedures that meet professional standards.
    1. What's at stake for the client
      How much you have to do in a particular case depends, in part, on how high the stakes are for your client. If a matter is really complex or a lot of money is involved, you’re going to need to study and prepare more.
  4. Limiting the scope
    One way to ensure you comply with the duty of competence is to limit the scope of your representation through an agreement with the client. See the Client-lawyer relationship section, above, for more on limiting the scope under MRPC 1.2.
  5. Retaining or contracting with other lawyers
    You can also comply with the duty of competence by tapping into the expertise of other lawyers, either within your firm or outside of it. Bringing in outside lawyers must be reasonable under the circumstances.
    1. When reasonable
      To decide if it’s reasonable to bring in a lawyer from outside your firm, consider (1) the other lawyer’s education, experience, and reputation; (2) the kind of services the lawyer would perform; and (3) any local laws and rules that will help protect your client’s interests, especially when it comes to confidential information.
    2. Informed consent required
      Before you bring in a lawyer from outside your firm, you should get your client’s informed consent, and you must reasonably believe that the other lawyer’s services will contribute to the representation.
    3. Coordinating the representation
      If lawyers from multiple firms are working for the same client in a matter, they must consult with one another and allocate responsibilities among themselves. The idea is to avoid duplicating work or causing unnecessary delays.
  6. Maintaining competence
    Competence is an ongoing obligation. Lawyers have to keep up with changes in the law and its practice, including technological developments, and they have to fulfill their jurisdiction’s continuing legal education (CLE) requirements.
2. Diligence (MRPC 1.3)
  A lawyer must act with reasonable diligence and promptness in representing a client.
  1. Zeal within limits
    A lawyer must be a zealous advocate for her client but the duty of diligence doesn’t require that you press for every advantage in a matter or use questionable tactics to achieve your client’s goals. In fact, see the Litigation and other forms of advocacy section, below, for examples of adversarial tactics that specifically violate the MRPC.
  2. Managing your work load
    A lawyer has a duty to manage her work load so that she has enough time to handle each matter competently.
  3. Reasonable promptness
    Missing deadlines—like the statute of limitations—is probably the most common violation of the MRPC in real-world practice.
    1. Not just deadlines
      More generally, a lawyer has to be aware of the passage of time and its consequences for each client's interests. Even when there’s not a black-and-white deadline to observe, it’s a lawyer’s duty to act reasonably promptly to resolve the client’s matter.
    2. Postponements without prejudice
      Despite this duty, it’s fine for a lawyer to agree to an extension or postponement if the request is reasonable and the delay will not prejudice the client.
  4. Completing all matters
    Unless the attorney-client relationship is terminated (see MRPC 1.16), a lawyer should see all matters undertaken for a client through to completion.
    1. Sole practitioner's death or disability
      Diligence may require a sole practitioner to plan for another lawyer to review client files and contact clients in the event of her death or disability.
  5. Malpractice liability; civil liability to clients
    Legal malpractice is generally a creature of state law, not ethics rules, but certain theories of malpractice liability correspond to duties set out in the MRPC.
    1. Tort
      A client may sue an attorney under several tort theories. Here are the major ones.
      1. Negligence
        When we think of legal malpractice, we usually think about a negligence claim, which might mean a violation of the duty of competence, the duty of diligence, or the duty of care.
      2. Breach of fiduciary duty
        Since lawyers hold their clients’ funds and property as fiduciaries, any mishandling or misappropriation on the lawyer’s part gives rise to a claim for breach of fiduciary duty. For instance, commingling client funds with the lawyer’s funds would create both an ethics violation (MRPC 1.15) and grounds for a civil suit. (Note: the same is true for the funds and property of third parties who are not clients).
      3. Misrepresentation
        A client could also sue a lawyer in tort for fraud or misrepresentation if the client suffers damages as a result.
    2. Contract
      A client might have a malpractice claim based on either express or implied contract.
      1. Express
        An express contract claim would arise from a breach of the engagement agreement between the lawyer and client. For instance, if the agreement specified that the attorney would file a lawsuit on the client’s behalf before the statute of limitations expired and the attorney failed to do so, the client would have a cause of action.
      2. Implied
        In some states, a client will also have an implied contract claim based on the idea that every client representation implies a promise to exercise reasonable care.
  6. Limiting malpractice liability (MRPC 1.8(h))
    The ABA rules frown on agreements between lawyers and clients that limit the lawyers’ malpractice liability prospectively (i.e., at the beginning of the representation before a malpractice claim has arisen).
    1. Independent representation required
      An agreement that prospectively limits malpractice liability is only permitted if the client has independent representation in negotiating the agreement. See MRPC 1.8(h)(1).
    2. Agreements to arbitrate
      The client does not need independent representation if all the agreement does is specify that the parties will arbitrate any malpractice dispute, as long as the lawyer explains what that means.
  7. Settling malpractice claims
    A lawyer is allowed to reach an agreement with a client to settle a malpractice claim or a potential claim, with one caveat. See MRPC 1.8(h)(2).
    1. Advice and opportunity to seek counsel
      The lawyer has to advise an unrepresented or former client in writing to seek independent counsel and then give the client time to consult with counsel before the parties sign the agreement.
  8. Civil liability to third parties
    A lawyer may be liable to third parties on a variety of legal theories, primarily based in tort law. Examples include (1) fraudulent conduct; (2) negligence or misrepresentation in providing a third-party opinion letter; and (3) negligence or misrepresentation in communicating with an unrepresented party when the lawyer knows the party is going to rely on what she says. On the MPRE, if a lawyer’s conduct meets all the elements of a tort, the right answer will probably be that a third party has a claim against her.
Litigation and other forms of advocacy
This topic is an area of emphasis on the MPRE. You should expect 10-16% of the MPRE questions to involve the lawyer’s role as an advocate.
1. Meritorious claims and contentions (MRPC 3.1)
  A lawyer must not bring a claim or defense or take a legal position without a basis in law and fact that is “not frivolous.”
  1. Inquiry into the facts and law
    A lawyer has a duty to inform herself about the facts of each case and the applicable law and to decide if she can support each client's position with good-faith arguments.
    1. Need for discovery okay
      You don’t have to have all the facts to prove your case when you file it. A claim or defense isn’t frivolous just because you need to develop evidence through discovery.
    2. Small chance to prevail okay
      A claim or defense isn’t frivolous just because you don’t think it’s going to be a winner in the courtroom.
    3. Argument to change law okay
      It’s fine to base your claim or defense on a good-faith argument that the existing law should be changed.
  2. Criminal cases
    There’s a constitutional exception to this rule where a defendant is facing possible jail time. It reflects that the burden of proving the elements of a crime is always on the prosecution. If the defendant’s lawyer needs to assert an otherwise frivolous defense to make sure the prosecution has to prove all the elements, by all means, bring it on.
2. Expediting litigation (MRPC 3.2)
  A lawyer must make reasonable efforts to expedite litigation consistent with the interests of the client.
  1. What's reasonable
    When something a lawyer does causes a delay, ask yourself if a competent lawyer who is acting in good faith would believe the action had some substantial purpose besides delay.
  2. What's unreasonable
    The comment to the rule cites three examples of unreasonable delay.
    1. Convenience of counsel
      Routine delays for the personal convenience of the lawyers are unreasonable.
    2. Frustrating an opponent’s recovery
      So is a failure to expedite that’s meant to frustrate an opposing party's attempt to obtain relief.
    3. Client's improper benefit
      It’s unreasonable to delay litigation to help a client gain a financial or other benefit. The client might have an interest in such a delay, but it’s not a legitimate interest that justifies abusing the legal system.
3. Candor toward the tribunal (MRPC 3.3)
  The lawyer’s duty of candor before a tribunal lasts throughout the proceeding, and it applies even if it means disclosing confidential client information. You can remember what candor requires with the mnemonic SAFFE.
  1. Statements by the lawyer
    A lawyer must not knowingly make a false statement of fact or law to a tribunal. If a lawyer discovers she’s made a false statement of material fact or law, she has a duty to correct the error.
  2. Adverse legal authority
    There’s also a duty to disclose any controlling legal authority that’s directly adverse to your client’s interests if you know about it and opposing counsel doesn’t mention it. Failure to do so makes your own legal arguments misleading.
  3. False evidence
    A lawyer cannot offer evidence to the tribunal that she knows to be false.
    1. Remedial measures
      If a lawyer, her client, or her witness offers material evidence and the lawyer finds out it’s false, she has to take reasonable remedial measures, including, if necessary, disclosure to the tribunal.
    2. Refusal to offer
      A lawyer must refuse to offer evidence that she knows to be false and may refuse to offer evidence that she reasonably believes to be false.
      1. Testimony of a criminal defendant
        The decision about whether to testify is generally up to a criminal defendant. Some jurisdictions require counsel to offer the accused as a witness or allow the accused to testify in a narrative statement, even if counsel knows that the testimony or statement will be false. While the lawyer may not be able to keep the defendant off the stand in these jurisdictions, she still has an obligation not to ask questions intended to elicit false testimony.
  4. Fraud or crime on the court
    A lawyer representing a client in an adjudicative proceeding who knows any person intends to commit or has committed a fraud or crime related to the proceeding must take reasonable remedial measures, including, if necessary, disclosure to the tribunal.
  5. Ex parte proceeding
    In an ex parte proceeding, like a TRO hearing, a lawyer has to inform the tribunal of all material facts she knows that will help the tribunal make an informed decision, whether the facts are adverse to her client or not.
4. Fairness to opposing party and counsel (MRPC 3.4)
  This rule recognizes that when parties in an adversary proceeding have to gather and present their own evidence, the lawyers have incentives to obstruct, falsify, and otherwise act badly on their clients’ behalf. Remember a lawyer's obligations to opposing parties with the mnemonic FIIDDO (He's a good boy.).
  1. Falsifying evidence
    A lawyer must not (1) falsify evidence; (2) counsel or assist a witness to give false testimony; or (3) offer an incentive to a witness that is prohibited by law.
    1. Lay witness incentives
      For a lay witness, it’s fine to pay their expenses, but most jurisdictions prohibit payment of any fee for testifying.
    2. Expert witness incentives
      Expert witnesses are generally entitled to both expenses and a professional fee for testifying, but you can’t pay them on a contingency basis.
  2. Influencing people who possess information
    It violates this rule to ask a person other than a client to refrain from turning over relevant information voluntarily to the opposing side.
    1. Client's relative, employee, or agent
      It’s okay to give that advice if the person is a relative, an employee, or an agent of a client and the lawyer reasonably believes refraining from turning over the information will not adversely affect that person's interests. A corporate employee’s interests, for instance, may align with her employer’s interests in the outcome of the case.
  3. Interference with evidence at trial
    At trial, a party's lawyer must avoid the following statements.
    1. Reference to irrelevant or unsupported matters
      A lawyer can't refer to any matter that she does not reasonably believe is relevant or that won’t be supported by admissible evidence.
    2. Personal knowledge
      A lawyer must not assert personal knowledge of facts in issue (except when testifying as a witness; see the Lawyer as witness section below).
    3. Opinion of credibility, liability, or guilt
      A lawyer shouldn't state a personal opinion as to whether a cause is just, whether a witness is credible, or whether a defendant is liable or guilty.
  4. Disobeying tribunal rules
    A lawyer can’t knowingly disobey an obligation under the rules of a tribunal.
    1. No valid obligation
      It’s not a professional violation if a lawyer openly refuses to comply because she believes there’s no valid obligation under the rule.
  5. Discovery misconduct
    A lawyer can’t make a frivolous discovery request or fail to exercise reasonable diligence to comply with a proper discovery request from an opposing party.
  6. Obstructing access to evidence
    A lawyer must not unlawfully (1) obstruct another party' s access to evidence or (2) alter, destroy, or conceal a document or other material that may have evidentiary value. That includes advising or helping another person to commit such an act.
    1. Spoliation
      Destroying evidence is known as “spoliation,” a term you might see on the MPRE. In addition to violating this rule, it can subject both a lawyer and her client to severe sanctions—including an “adverse inference” instruction to the jury to presume the evidence was destroyed because it was harmful. It’s also a tort in some jurisdictions.
5. Decorum of the tribunal (MRPC 3.5)
  This rule contains four prohibitions designed to keep tribunal proceedings fair and dignified. Remember DICE.
  1. Disruptive conduct
    A lawyer must not engage in conduct that’s intended to disrupt a tribunal (e.g., abusive language or belligerence toward a witness).
    1. Includes depositions
      The no-disruption rule applies to depositions as well as other tribunal proceedings.
  2. Improper influence
    A lawyer must not seek to influence a judge, juror, prospective juror, or other official in a way that’s prohibited by law.
  3. Communications with jurors after trial
    After the jury is discharged, a lawyer can’t communicate with a juror or prospective juror if (1) it’s prohibited by law or court order; (2) the juror has told the lawyer she doesn’t want to communicate; or (3) the communication involves misrepresentation, coercion, duress, or harassment.
  4. Ex parte communications
    During the proceeding, a lawyer must not communicate ex parte with a judge, juror, prospective juror, or other official, unless specifically authorized to do so by law or court order.
6. Trial publicity (MRPC 3.6)
  A lawyer who is participating in an investigation or litigation of a matter must refrain from making certain extrajudicial statements (i.e., statements outside the courtroom).
  1. Substantial likelihood of material prejudice
    An extrajudicial statement violates this rule if the lawyer knows or reasonably should know that it (1) will be disseminated publicly (e.g., through the media) and (2) will create a substantial likelihood of material prejudice to an adjudicative proceeding.
  2. Key examples
    The Comment to MRPC 3.6 identifies six types of extrajudicial statements that are more likely than not to materially prejudice a proceeding, especially if it’s a criminal matter or a civil jury trial. Participating lawyers must avoid these topics. Remember OPTICS: these are the statements that would interfere with the optics of a trial more than any others.
    1. Opinion about guilt
      You can’t offer an opinion about the guilt or innocence of a defendant or suspect in a criminal case or any other proceeding that could result in jail time.
    2. Physical evidence
      You can’t make statements about (1) whether an examination or test was performed; (2) what the results were; (3) whether a person refused to submit to an exam or test; or (4) the nature of the physical evidence you expect to be presented in the proceeding.
    3. Testimony or character of a party or witness
      You can’t make statements about (1) the character, credibility, reputation, or criminal record of a party, a suspect in a criminal investigation, or a witness; (2) the identity of a witness; or (3) the expected testimony of a party or a witness.
    4. Inadmissible evidence
      You can’t disclose information that you know or reasonably should know will be inadmissible at trial.
    5. Charged with a crime
      You can’t disclose that a defendant has been charged with a crime, unless you also state that she’s innocent unless and until proven guilty.
    6. Statement by a criminal defendant
      In a criminal case, you can’t talk about (1) the possibility of a plea of guilty; (2) the existence or substance of any confession, admission, or statement by a defendant; or (3) the defendant’s refusal to make a statement.
  3. Members of the lawyer’s firm
    The prohibition on prejudicial statements outside the courtroom also applies to statements made by members of the participating lawyer’s firm.
  4. But not legal commentators
    Lawyers who are not involved in a particular matter are exempt from this rule and are free to comment publicly on the proceedings.
  5. Which statements permitted
    The rule lists certain kinds of statements that a lawyer may make outside the courtroom. Note that they are limited to basic or readily available facts, procedural issues, or public-safety concerns. Remember Daily PRICES.
    1. Danger warning
      When a lawyer has reason to believe that there’s a likelihood of substantial harm to an individual or to the public, she can warn that a person is dangerous.
    2. Public information
      Information that’s available in a public record is fair game for an extrajudicial statement.
    3. Response to adverse publicity
      A lawyer may respond to adverse publicity if it’s necessary to protect a client from substantial, undue, prejudicial effects. The belief that the statement is necessary must be reasonable, and the publicity must not have been initiated by the lawyer or client.
    4. Investigation ongoing
      A lawyer may state the fact that there’s an ongoing investigation into a matter.
    5. Claims and defenses
      A lawyer may state the claim, charge, or defense involved in a matter and identify the parties involved, unless prohibited by law. One instance in which identifying a party may be prohibited is a case involving a victim or criminal defendant who’s a minor.
    6. Evidence request
      A lawyer may make a request for assistance in obtaining evidence and provide information that’s necessary to do so.
    7. Scheduling and outcomes
      Statements about the scheduling or outcome of any step in litigation are permitted (e.g., when a sentencing statement will take place or whether a client prevailed on a motion for summary judgment).
  6. Additional statements permitted in a criminal matter
    In a criminal matter, lawyers can make a few additional types of extrajudicial statements.
    1. About the accused
      A lawyer can disclose the identity, residence, occupation, and family status of the accused.
    2. About arrest or apprehension
      If the accused has been arrested, a lawyer can disclose the fact of the arrest and the time and place it occurred. If the accused has not been arrested, a lawyer can provide information necessary to aid in apprehension.
    3. About the investigation
      It’s okay to disclose the identities of investigating and arresting officers or agencies and the length of the investigation.
7. Lawyer as witness (MRPC 3.7)
  A jury can be confused when a lawyer in a case also testifies as a witness—both explaining evidence given by others and offering evidence of her own. To avoid this ambiguity between advocate and witness, MRPC 1.7 strictly limits the ability of a lawyer to play both roles.
  1. Limit on witness’s ability to advocate
    In general, a lawyer can’t represent a client at a trial if she’s likely to be a necessary witness.
    1. Exceptions
      There are three instances in which a lawyer may act as both advocate and witness.
      1. Uncontested issue
        The lawyer’s testimony relates to an uncontested issue. In this case, there’s unlikely to be any jury confusion or prejudice to the other party.
      2. About the lawyer’s services
        The lawyer’s testimony is about the nature and value of the services she provided in the case.
      3. Substantial hardship for the client
        Disqualifying the lawyer would cause the client substantial hardship. Even if there’s a risk of jury confusion, the court should consider the effect of disqualification on the client.
  2. Lawyer from same firm as witness
    A lawyer may represent a client at a trial even if another lawyer in her firm is likely to be called as a witness, unless it would violate MRPC 1.7 (conflicts with current clients) or MRPC 1.9 (conflicts with former clients). See the Conflicts of interest section for more on those rules.
Transactions and communications with third persons
Questions from this category should account for 2-8% of the MPRE.
1. Truthfulness in statements to others (MRPC 4.1)
  When representing a client, a lawyer owes certain duties to third parties.
  1. Misrepresentations
    A lawyer may not knowingly misrepresent a material fact or a rule of law to a third party.
    1. False or misleading
      Misrepresentations include blatant falsehoods and statements that are partially true but misleading.
    2. Affirming another’s statement
      A lawyer can also make a misrepresentation by affirming another person’s statement that she knows to be false.
    3. Material facts
      Some statements don’t count as material facts in certain circumstances. For instance, in settlement negotiations, you may make statements about the value of a claim or what your client is willing to pay. It’s common sense that both sides are trying to get the best deal for their respective clients. Those statements are negotiation postures, not statements of fact.
  2. No affirmative duty to disclose
    While a lawyer has to be truthful with third persons, there’s generally no affirmative duty to inform an opposing party of relevant facts.
    1. Crime-fraud exception
      But a lawyer does have a duty to disclose information to a third party when it’s necessary to avoid assisting the client in a crime or fraud.
      1. Last resort
        Ordinarily, a lawyer can avoid assisting a client’s crime or fraud by withdrawing from the representation. If disclosure is the only option, however, the lawyer is required to disclose, unless the duty of confidentiality prohibits it. See MRPC 1.6.
2. Communication with a person represented by counsel (MRPC 4.2)
  If you know a person is represented by counsel in a matter, you can’t communicate directly with that person about the matter. If you have something to say, you have to say it to the person's counsel.
  1. Consent of represented person not enough
    It doesn't matter if the represented person agrees to talk with you—or even if the person reached out to you directly. It's still a professional violation to communicate directly with the person, regardless of whether she's consented.
  2. Consent of counsel or court order
    The only times when it's okay to communicate with a represented person are when you have the consent of the person's counsel or a court order that authorizes you to do so.
3. Communications with unrepresented persons (MRPC 4.3)
  When a lawyer is dealing with an unrepresented person on behalf of her client, there’s a concern that the unrepresented person will view the lawyer as a disinterested authority on the law—someone who is neutral in the dispute. MRPC 4.3 clarifies what you have to do to avoid that misimpression.
  1. No misleading statement or implication
    You must not state or imply that you are disinterested in the matter.
  2. Correcting misunderstandings
    If you know or reasonably should know that the unrepresented person misunderstands your role in the matter, you have to make reasonable efforts to correct the mistake.
  3. No advice if adverse
    You must not give legal advice to an unrepresented person if you know or reasonably should know the person may be adverse to your client in the matter. The one exception is to advise the person to obtain counsel.
  4. Negotiation and settlement permitted
    As long as a lawyer explains whom she represents and whom she doesn’t, she can negotiate a transaction or settle a dispute with an unrepresented person. That includes preparing a contract or a settlement agreement for the person to sign and explaining what she thinks the document means.
4. Respect for the rights of third persons (MRPC 4.4)
  This is the general “don’t be a jerk” rule for third parties. Lawyers are supposed to advocate for their clients but should not show total disregard for everyone else.
  1. Embarrass, delay, or burden
    A lawyer can’t use means to represent a client that have no real purpose besides embarrassing, delaying, or burdening a third person.
  2. Obtaining evidence
    A lawyer can’t obtain evidence using methods that violate a third person’s legal rights.
  3. Inadvertent receipt of documents
    If a lawyer receives a document or electronically stored information relating to a client matter and she knows or reasonably should know that it was sent inadvertently, she has to notify the sender promptly of the mistake.
    1. Notification, not return or destruction
      The MRPC do not address whether a lawyer has to return or destroy a document or ESI sent to her inadvertently. That’s a matter for court rules and state law or for the lawyer’s judgment in the absence of any governing authority.
Roles of the lawyer
The MPRE tests the various roles lawyers play outside of advocacy. Questions on this topic usually comprise 4-10% of the exam.
1. Advisor (MRPC 2.1)
  A lawyer must exercise independent professional judgment and render candid advice when representing a client.
  1. Straightforward and honest
    A lawyer should give every client a straightforward assessment of the facts and the law. Even if you think the advice will make your client unhappy, you have to be honest about your analysis.
  2. Considerations beyond law
    In deciding how to advise a client, a lawyer can include non-legal considerations, like moral, economic, social, and political factors that are relevant to the client's situation. Those factors may affect how the law will apply to the client’s matter, and you may need to take them into account if you’re going to provide advice that genuinely informs and guides the client.
  3. When advice required
    In general, a lawyer does not have to give a client advice until the client asks her to do so.
  4. No duty to investigate
    There’s no duty to investigate a client’s activities to find out if the client needs advice, though a lawyer is free to do so if she thinks it’s in the client’s interest.
  5. Avoiding adverse consequences
    If a client proposes a course of action that you know is likely to cause substantial, adverse legal consequences, you may have a duty under MRPC 1.4 to tell your client, even when the client hasn’t asked for your opinion.
  6. Alternatives to litigation
    Another situation in which there might be a duty to advise under MRPC 1.4 is where a matter is likely to result in litigation. In that case, you should discuss whether any alternative forms of dispute resolution would be to the client’s advantage.
2. Evaluation for use by third parties (MRPC 2.3)
  Sometimes, a lawyer may provide an evaluation of a matter affecting a client for the use of someone other than the client.
  1. The “when” of third-party opinion letters
    Third-party opinion letters pop up in a variety of circumstances. Here are a few common examples of fact patterns you might see on the MPRE. If your client is selling a business, the buyer’s attorney may ask you for a letter evaluating certain aspects of the company. If your client is trying to get a mortgage or title insurance, the lender or insurer may ask you for an opinion about whether the client has good title to the property. If your client is making a public stock offering, you may have to provide a letter to the SEC about whether the shares comply with federal and state securities laws.
  2. The “what” of third-party opinion letters
    Preparing an opinion letter requires a lawyer to investigate the subject matter (e.g., to do a title search) and give the third party an honest assessment. If that sounds potentially problematic for your client, it is. That’s why we have MRPC 2.3 to tell us when providing an opinion letter is appropriate.
    1. Compatibility with lawyer-client relationship
      The lawyer must reasonably believe, in her professional judgment, that making the evaluation is compatible with other aspects of the lawyer's relationship with the client.
    2. Informed consent
      When the lawyer knows or reasonably should know that the evaluation is likely to have a material, adverse effect on the client's interests, she has to get informed consent before providing the evaluation.
    3. Defining scope of inquiry
      It's important when preparing an opinion letter to describe any material limitations on the scope of the lawyer's investigation or conclusions. A lawyer should mention any issues or sources that were excluded and be very clear about what her opinions do and don't cover.
  3. No false statements (MRPC 4.1)
    A lawyer must not knowingly make a false statement of material fact or law in providing an evaluation.
    1. Liability to third parties
      A lawyer who makes a false statement in an opinion letter may be liable to a third party who relies on it. Claims could be based on a negligence theory or an intentional tort theory.
3. Lawyer serving as third-party neutral (MRPC 2.4)
  A lawyer must follow this rule when she serves as a mediator or an arbitrator to help parties that are not her clients resolve a dispute.
4. Informing unrepresented parties
  A lawyer serving as a third-party neutral must inform unrepresented parties that she’s not representing them.
5. Correct misunderstandings
  If the lawyer knows or reasonably should know that a party does not understand her role, the lawyer must explain the difference between advocating for a client and serving as a third-party neutral.
  1. No attorney-client privilege
    That may include explaining that there’s no attorney-client privilege between herself and the parties.
6. Special responsibilities of a prosecutor (MRPC 3.8)
  Prosecutors in criminal cases are considered both advocates and ministers of justice. There are several special rules that apply to them.
  1. Probable cause
    A prosecutor must refrain from prosecuting a charge that she knows is not supported by probable cause.
  2. Right to counsel
    A prosecutor must make reasonable efforts to ensure that the accused has been (1) advised of the right to counsel and the procedure for obtaining counsel; and (2) given reasonable opportunity to exercise that right.
  3. Unrepresented parties’ rights
    If a party is unrepresented, a prosecutor must not seek to obtain a waiver of important pretrial rights, like the right to a preliminary hearing to challenge probable cause.
    1. Okay if pro se
      This rule does not apply if the tribunal has approved the defendant’s request to appear pro se.
  4. Disclosure of exculpatory and mitigating evidence
    The prosecutor must timely disclose to the defense all evidence or information she knows of that tends to exculpate the defendant or mitigate the offense.
    1. Including at sentencing
      At the sentencing phase, the prosecutor has to disclose all unprivileged mitigating information she knows about to both the defense and the tribunal, unless there’s a protective order that relieves her of that duty.
  5. Subpoenas to lawyers
    A prosecutor can only subpoena a lawyer in a grand jury or other criminal proceeding to present evidence about a former or current client if she reasonably believes all of the following.
    1. No privilege
      There’s no privilege that protects the evidence sought from disclosure.
    2. Essential
      The evidence sought is essential to complete an ongoing investigation or prosecution.
    3. No alternative
      There is no feasible alternative to obtain the information.
  6. Extrajudicial statements
    A prosecutor has two duties when it comes to statements made outside the courtroom.
    1. Refrain from certain statements
      A prosecutor must refrain from making extrajudicial statements that are substantially likely to increase the public condemnation of the defendant.
    2. Prevent others from commenting
      In addition, a prosecutor must exercise reasonable care to prevent investigators, law enforcement personnel, employees, and other people associated with her from making those kinds of extrajudicial statements.
    3. Which statements permitted
      A prosecutor can make extrajudicial statements that (1) are necessary to inform the public of the nature and extent of her actions and (2) serve a legitimate law enforcement purpose.
  7. Post-conviction evidence
    A prosecutor has certain obligations when she learns of new evidence that is credible and material and that creates a reasonable likelihood that a convicted defendant did not commit the offense.
    1. Disclosure to the court
      She must promptly disclose the evidence to an appropriate court or authority.
    2. Disclosure to the defendant
      If the conviction was obtained in her jurisdiction, she must promptly disclose the evidence to the defendant (unless the court approves a delay).
    3. Further investigation
      If the conviction was obtained in her jurisdiction, the prosecutor must investigate or make reasonable efforts to get someone else to investigate to determine if the defendant was wrongfully convicted.
  8. Wrongful conviction
    If a prosecutor knows of clear and convincing evidence that a defendant in her jurisdiction was convicted of an offense he did not commit, the prosecutor must seek to overturn the conviction.
7. Advocate in non-adjudicative proceedings (MRPC 3.9)
  This rule applies when a lawyer represents a client at an official hearing/meeting of a government agency or legislative body where the lawyer or client is presenting evidence or argument.
  1. Like a court
    A lawyer in this situation has to treat the agency or body like she would a court. She has to disclose that she’s appearing in a representative capacity, and she has to comply with the rules about candor before the tribunal (MRPC 3.3), fairness toward opposing parties and counsel (MRPC 3.4), and impartiality and decorum (MRPC 3.5).
  2. When it does not apply
    Lawyers interact with government agencies on their clients’ behalf in a variety of other contexts, like negotiating to secure a license, helping a client fulfill reporting requirements, and representing a client in an agency investigation. Those kinds of matters are governed by the rules discussed in the section on Transactions with third parties. See MRPC 4.1-4.4.
Safekeeping of funds and other property (MRPC 1.15)
A lawyer has a fiduciary duty to safeguard the property of both clients and third parties that are in her possession. Questions on this topic usually account for 2-8% of the MPRE.
1. Separation from lawyer's property
  Lawyers have to hold the property of clients or third persons separate from their own property.
  1. Money
    For money, that means a separate account in the state where the lawyer's office is situated (unless the client or third person consents to a different state).
    1. Narrow exception for service charges
      A lawyer may deposit her own money in a client trust account to the extent necessary to pay any banking service charges.
    2. IOLTA accounts
      The trust funds that lawyers set up to hold their clients’ funds can be interest-bearing or non-interest-bearing. The interest-bearing ones are called IOLTA accounts, a term you may see on the MPRE. (IOLTA stands for Interest on Lawyers' Trust Accounts.) The interest that accrues on an IOLTA account does not go to the client or to the attorney. It’s used for charitable purposes, often at the direction of the state bar or legislature.
  2. Other property
    For other property, the appropriate method of safeguarding will depend on what the item is.
2. Recordkeeping
  The lawyer has to keep complete records of accounts and other property for five years after the representation ends.
3. Prepaid legal fees
  If a client pays the lawyer in advance for legal fees and expenses, that money has to go into a client trust account, and the lawyer may withdraw money only as it’s earned or spent.
4. Notice and transfer
  When a lawyer receives money or other property, she has to promptly notify any client or third party who has an interest in it and promptly deliver to them whatever portion they are entitled to receive.
5. Accounting upon request
  If a client or third person requests it, the lawyer has to make a full, prompt accounting of the money or other property.
6. Disputed property (including fee disputes)
  When a lawyer possesses property in which two or more people claim an interest, the disputed property has to be kept separate until the claimants resolve the dispute. Any portion of the property that’s not in dispute can be distributed. This provision applies to fee disputes between lawyers and their clients where the clients have prepaid.
Communications about legal services (MRPC 7.1)
A lawyer should not make a false or misleading communication about herself or her services. Questions about lawyer advertising, client solicitation, referrals, and specialization usually account for 4-10% of the MPRE.
1. Misleading true statements
  A true statement is misleading if it creates a substantial likelihood that a reasonable person will reach a conclusion about the lawyer that isn’t grounded in fact.
  1. Omissions included
    That includes a true statement that omits a fact necessary to make the lawyer’s communication considered as a whole not materially misleading.
2. Past results
  A lawyer’s ads can't suggest that past results guarantee future ones. If an ad talks about matters the lawyer has handled for other clients, it can’t create an unjustified expectation in a reasonable person that she will get the same outcome.
3. Claims about services and fees
  A lawyer's ads can't make unsubstantiated claims about her services or fees that may mislead a reasonable person.
  1. Use of disclaimers
    Including an appropriate disclaimer or qualifying language may prevent a statement from creating unjustified expectations or otherwise misleading the public.
4. Firm names, letterhead, and professional designations
  All of these things count as communications about a lawyer’s services, and they must not be false or misleading.
  1. Permitted names and designations
    Your firm’s name can include current members, deceased members, or a trade name.
  2. What’s misleading
    A law firm name is misleading if it implies a connection with (1) a government agency; (2) a deceased lawyer who was not a member of the firm while she was alive; (3) a lawyer who is not associated with the firm or its predecessor firm; (4) a non-lawyer; or (5) a public or charitable legal services organization.
    1. Names including a geographic location
      If a firm’s trade name includes the name of a place (like “Smallville Legal Services”), you may need to include an express statement that the firm is not a public legal aid organization.
  3. Must be a firm
    If lawyers are holding themselves out as practicing in one firm, they have to meet the MRPC definition of a firm. See Key definitions section, above. Otherwise, the name is false and misleading.
  4. Lawyer in public office
    If a named member of a firm accepts a public office (i.e., she gets elected to Congress) and she isn’t actively practicing law with the firm, you have to remove her name from the firm’s name and letterhead, and you can’t use it in any communications on the firm’s behalf.
5. Specific rules about communications regarding legal services (MRPC 7.2)
  This rule explains what forms of advertising are allowed and when a lawyer can pay someone to tell potential clients about her services.
  1. Any medium
    There are no limits on the kinds of media a lawyer can use to communicate information about her services.
  2. No compensation for recommendations
    A lawyer can’t pay someone to recommend her services to potential clients. That includes giving gifts or promising anything of value. There are some common-sense exceptions.
    1. Reasonable costs
      It’s okay to pay the reasonable costs of advertisements.
    2. Employees and agents
      It’s okay to pay employees and agents for marketing or business-development services.
    3. Group legal services plans and qualified referral services
      It’s okay to pay the usual charges of a group legal services plan or a non-profit or qualified lawyer referral service.
      1. What’s a group legal services plan?
        A group legal services plan is basically an insurance policy for future legal charges. Unions and large employers sometimes offer them, and members/employees pay monthly premiums to insure against routine legal problems. The plan maintains a network of attorneys who represent the insureds. It’s okay for a lawyer to pay a fee to be part of that network.
      2. Qualified lawyer referral services
        Qualified referral services connect prospective clients with lawyers who have appropriate experience in a certain field of law. They are consumer-oriented, their referrals are unbiased, and they generally offer client protections (e.g., requiring lawyers to carry malpractice insurance). To be “qualified,” they have to be accredited by an organization approved by the state or the ABA. It’s okay to pay a fee to a qualified referral service to be on their list of lawyers.
    4. Lawyer directories
      Directories and group advertisements that simply list lawyers by practice area do not count as recommendations, so you can pay a fee to be listed.
    5. Law firm purchase
      It’s okay to buy a law practice if you comply with MRPC 1.17.
      1. Seller ceases practice
        The seller must stop privately practicing law in the jurisdiction or geographical region where the practice is located. If all that’s sold is one practice area (i.e., a big firm sells its trusts and estates practice), the seller can continue to practice in other areas of law.
      2. Entire practice or practice area
        The entire practice, or the entire area of practice, must be sold to one or more lawyers or law firms. You can’t just sell or buy interests in certain matters or client relationships.
      3. Notice to clients
        The seller has to give written notice to each client that explains (1) the proposed sale; (2) the client's right to choose other counsel or take possession of her file; and (3) the fact that if the client doesn’t take any action for 90 days after receiving the notice, the parties will presume that the client consents to have her file transferred to the buyer.
        Court order
        If a client can’t be given notice, the seller may only transfer the file if it gets a court order. The seller may disclose information about the representation to the court only to the extent necessary to obtain an order.
      4. No fee increase
        The fees the firm charges to clients can’t be increased because of the sale.
    6. Reciprocal referrals
      A lawyer can make a reciprocal deal with another lawyer or another professional (e.g., an accountant) to refer clients to each other if the deal meets these criteria.
      1. Non-exclusive
        The referral agreement can’t be exclusive. Both parties have to be free to refer clients to other people when appropriate.
      2. Client informed
        The lawyer must inform a client who’s referred about the existence and nature of the agreement.
      3. No compensation
        The lawyer can’t pay for the referrals she receives. It’s okay for the lawyer to receive nominal gifts that are not intended to compensate the other party for recommending her.
6. Solicitation of Clients (MRPC 7.3)
  This is your “ambulance-chaser” rule. A lawyer or firm “solicits” a client when they contact a specific person they know or should know needs legal services in a particular matter and offers to provide those services.
  1. No person-to-person contact
    In general, a lawyer can’t solicit a client in person when a significant motive for doing so is to get paid. There are three exceptions to this rule.
    1. Other lawyers
      It’s okay to solicit a potential client who is a lawyer. The idea is that other lawyers will be savvy enough about the legal system to make an independent decision about whether to hire the soliciting lawyer.
    2. Existing relationship
      It’s okay to solicit a person who has a family relationship, close personal relationship, or prior business or professional relationship with the lawyer. People who are existing or former clients of a law firm are also fair game.
    3. Business client, routine use
      It’s also okay to solicit a person who routinely uses the type of legal services the lawyer is offering for business purposes.
  2. No unwanted contact or harassment
    Even if solicitation would be allowed under one of the exceptions, it’s forbidden if the potential client has told the lawyer she doesn’t want to be solicited or if the solicitation involves coercion, duress or harassment.
  3. Court-ordered communications okay
    The rule does not prohibit communications that are ordered by a court or authorized by law.
  4. Group legal services plans
    The rule does not prevent a lawyer from participating in a prepaid or group legal service plan that uses live person-to-person contact to enroll members, as long as the lawyer doesn’t own the organization that operates the plan.
  5. Specialization
    A lawyer should not state or imply that she is a specialist in or “concentrates in” a particular field of law unless two things are true.
    1. Certification
      The lawyer has been certified as a specialist by an organization approved by the state bar or the ABA.
    2. Organization identified
      The certifying organization is clearly identified in the communication so that clients have an opportunity to learn more about their standards for specialists.
  6. Contact info required
    Any communication made under this rule must include the name and contact information of at least one lawyer or law firm responsible for its content.
Duties to the public and legal system
There are usually only a couple of questions in this category on the MPRE, but since the rules are pretty straightforward, they can translate into easy points.
1. Voluntary pro bono services (MRPC 6.1)
  Providing pro bono legal services is part of a lawyer’s professional responsibility. MRPC 6.1 encourages (but does not require) every lawyer to perform at least 50 hours of pro bono work per year for people of limited means or for organizations that serve them. This rule also encourages lawyers (1) to provide free or reduced-fee legal services to groups that promote public rights, (2) to participate in activities that improve the legal system, and (3) to donate money to legal aid organizations.
2. Accepting appointments (MRPC 6.2)
  If a court appoints you to represent someone, you should do it unless there’s good cause to refuse. MRPC 6.2 gives three examples of good cause. Notice the overlap with reasons a lawyer may withdraw from a representation. See Client-lawyer relationship section, above.
  1. Violation of the rules
    You can refuse an appointment if it is likely to result in a violation of the MRPC or some other law.
  2. Unreasonable financial burden
    You can refuse if the representation is likely to put an unreasonable financial burden on you.
  3. Repugnant
    You can refuse if you find the client or cause so repugnant that it is likely to impair your relationship with the client or your ability to represent her.
3. Membership in legal services organization (MRPC 6.3)
  A lawyer can serve as a director, an officer, or a member of a legal services organization, even if it serves people whose interests are adverse to her clients.
  1. Recusal
    A lawyer who is serving in one of those capacities should recuse herself from any decisions of the organization that would (1) create a conflict of interest with her client or (2) negatively affect the organization’s representation of a person adverse to her client. In other words, if the decision would harm the lawyer’s client or help her client at the expense of the organization’s client, the lawyer should not participate.
4. Law reform activities affecting client interests (MRPC 6.4)
  A lawyer can serve as a director, officer, or member of an organization that advocates for legal reforms even if the reform may affect a client’s interests.
  1. Decision that benefits client
    If the lawyer knows she’s participating in a decision that may materially benefit her client, she must disclose that fact to the organization. She does not need to identify the client who might benefit.
5. Statements about judicial or legal officials (MRPC 8.2)
  Members of the public often look to lawyers for opinions and information about judges and public legal officials, like the attorney general or district attorney. MRPC 8.2 forbids a lawyer from making a statement about the qualifications or integrity of a judge, legal official, or candidate for those positions if she knows it is false or has reckless disregard for its truth. Defaming someone who’s involved in the legal system is not just a tort; if the speaker is a lawyer, it’s also an ethical violation.
6. Political contributions (MRPC 7.6)
  “Political contribution” means anything of value given directly or indirectly to a candidate, political party, or campaign committee to provide financial support for an election. It does not include services a lawyer provides for free.
  1. Generally permitted
    Lawyers are permitted to make and solicit political contributions, including for judicial candidates.
  2. No government engagement or appointment
    But it’s not okay for a lawyer or law firm to make or solicit political contributions for the purpose of obtaining legal work from a government agency or appointment by a judge (e.g., as a special master or a guardian).
    1. Disqualification
      If that’s the but-for reason for a contribution, the lawyer/firm is disqualified from accepting any government engagement or appointment of the type sought.
      1. Exceptions
        The donor lawyer/firm may accept (1) uncompensated work; (2) work that’s awarded based on merit after a request-for-proposal process; or (3) work that’s awarded on a rotating basis without regard to the political process.
7. Improper influence (MRPC 8.4)
  It is misconduct for a lawyer to 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.
8. Assisting judicial misconduct (MRPC 8.4)
  It is misconduct for a lawyer to knowingly assist a judge or judicial officer in conduct that violates the code of judicial conduct or other law.
Code of judicial conduct
The MPRE tests certain aspects of the ABA Model Code of Judicial Conduct (MCJC), which consists of four general “canons” and a bunch of more detailed rules. You can expect judicial conduct to account for 2-8% of the exam.
1. The four I’s of judicial conduct (MCJC Canon 1)
  A judge must uphold and promote the judiciary’s independence, integrity, and impartiality and must avoid both impropriety and the appearance of impropriety.
  1. Compliance (MCJC 1.1)
    The first step toward satisfying Canon 1 is the judge’s compliance with the law and the MCJC.
  2. Active outreach (MCJC 1.2)
    Judges should participate in activities that promote ethical conduct among judges and lawyers, support professionalism within the judiciary and the legal profession, and promote access to justice for all. A judge should initiate and participate in community outreach activities for the purpose of promoting public understanding of and confidence in the administration of justice.
  3. Appearance of impropriety
    The test for appearance of impropriety is whether the conduct (1) would cause a reasonable person to think the judge had violated the MCJC or (2) would cast doubt on the judge’s honesty, impartiality, temperament, or fitness to serve as a judge.
  4. Abuse of office (MCJC 1.3)
    A judge must not abuse the prestige of judicial office for personal gain or allow others to do so.
2. Performing judicial duties (MCJC Canon 2)
  A judge must perform the duties of judicial office impartially, competently, and diligently.
  1. Impartiality and fairness (MCJC 2.2)
    A judge must be objective and open-minded. She must interpret and apply the law, regardless of whether she approves or disapproves of the law in question.
    1. Good-faith errors
      Good-faith errors of fact or law do not violate this Rule.
    2. Pro se litigants
      A judge can make reasonable accommodations to pro se litigants so their matters can be heard fairly without violating the duty of impartiality.
  2. Bias, prejudice, and harassment (MCJC 2.3)
    A judge must perform all duties of judicial office without bias, prejudice, or harassment in her words or conduct.
    1. Broadly defined
      This duty is very broad and includes bias, prejudice, or harassment based on race, sex, gender, religion, national origin, ethnicity, disability, age, sexual orientation, marital status, socioeconomic status, and political affiliation.
    2. Supervisory duty
      The judge also has a responsibility to police the conduct of court staff, court officials, lawyers appearing before her, and anyone else subject to her direction and control. The judge must not allow any of those people to show bias, prejudice, or harassment in judicial proceedings.
  3. External influences (MCJC 2.4)
    Canon 2 also requires that a judge avoid being swayed by external influences or giving the impression that she is.
    1. Actual influence
      A judge must not be influenced by fear of public criticism or by other interests or relationships (e.g., family, social, political, or financial).
    2. Impression of influence
      A judge also must not convey that any person or organization has influence over her or allow another person to convey that impression.
  4. Competence (MCJC 2.5)
    Competence means the legal knowledge, skill, thoroughness, and preparation reasonably necessary to perform a judge’s responsibilities.
  5. Diligence (MCJC 2.5)
    A judge should supervise cases in ways that reduce or eliminate avoidable delays and unnecessary costs.
    1. Ensuring the right to be heard (MCJC 2.6)
      A judge must give everyone with a legal interest in a proceeding the right to be heard.
      1. Encouraging settlement
        The right to be heard doesn’t mean that a judge can’t encourage parties to settle a lawsuit. But it does raise some issues the judge needs to think about when deciding whether to participate in settlement discussions.
        No coercion
        A judge cannot coerce a party into settling a matter.
        Effect on the judge
        Participating in settlement discussions may affect how the judge thinks about the case and how the lawyers and parties think about the judge. If the discussions fail, the case goes forward, and the judge continues to preside, those perceptions might matter. There are a few factors to consider.
        Parties’ request or consent
        Have the parties asked the judge to participate or consented to her involvement?
        Sophistication of parties and counsel
        Are the parties and their counsel relatively sophisticated in legal proceedings, and is any of the parties unrepresented?
        Bench or jury trial
        Will the judge ultimately be finding facts in the case, or will that role be left to a jury?
        Civil or criminal
        A judge’s involvement may seem more coercive in a criminal case (e.g., where a prison sentence might be at stake) than in a civil matter.
  6. Ex parte communications (MCJC 2.9)
    A judge shall not initiate, permit, or consider ex parte communications (i.e., by a party or her lawyer). In addition, the judge must not consider other communications (i.e., by third parties) made to the judge outside the presence of the parties or their lawyers.
    1. Exceptions
      There are several exceptions to this general rule.
      1. Scheduling, administrative, or emergency purposes
        Ex parte communications are permitted for scheduling, administrative, or emergency purposes, as long as these three requirements are met.
      2. No substantive matters
        The communication does not address any substantive matters.
      3. No advantage
        The judge reasonably believes that the communication will not give any party a procedural, substantive, or tactical advantage.
      4. Notification and response
        The judge promptly notifies all other parties of the content of the communication and gives them a chance to respond.
      5. Disinterested legal expert
        A judge may seek written advice from a disinterested expert about the law applicable to a proceeding.
        Notice required
        The judge has to give the parties advance notice of who the expert is and what kind of advice the judge is seeking.
        Opportunity to object
        The judge has to give the parties a reasonable opportunity to object and respond both to the notice and to the advice the judge ultimately receives.
      6. Court staff and officials
        A judge may consult with court staff and officials who help carry out her duties or with other judges.
        No facts outside the record
        The judge must make reasonable efforts to avoid learning any facts that are not part of the record in the case.
        No delegation
        The judge can’t delegate the responsibility to decide the matter personally (e.g., to rule on the motion) to the person she consults.
      7. Settlement
        If all parties consent, the judge may confer separately with the parties and their lawyers to conduct settlement discussions.
      8. Authorization by law
        If a law expressly authorizes a judge to initiate, permit, or consider ex parte communications, doing so doesn’t violate the MCJC.
    2. Inadvertent communications
      A judge who inadvertently receives an unauthorized ex parte communication about the substance of a matter must promptly notify the parties of the content of the communication and give them a chance to respond.
    3. No investigation
      A judge must not investigate the facts independently. She can only consider the evidence presented by the parties and any facts she may judicially notice.
    4. Supervisory duty
      In addition to refraining from ex parte communications, a judge has to make reasonable efforts to ensure that court staff, officials, and others under her direction and control follow this rule.
  7. Avoiding certain statements (MCJC 2.10)
    The MCJC puts some limits on judicial speech to preserve impartiality (and the appearance of it).
    1. Cases in any court
      A judge must not make public or non-public statements that might reasonably be expected to affect the outcome or impair the fairness of a matter pending or impending in any court.
    2. Cases before the judge
      In connection with cases or issues that are likely to come before her, the judge must not make promises or commitments that are inconsistent with the duty of impartiality.
    3. Supervisory duty
      A judge must also ensure that court staff, officials, and others under her direction and control follow this rule.
    4. Exceptions
      There are three narrow exceptions to these limits on judicial speech.
      1. Court procedures
        A judge may publicly explain court procedures.
      2. Judge as litigant
        A judge may make public statements about any case in which she is a litigant in her personal capacity.
      3. Allegations about judicial conduct
        A judge may respond to allegations about her conduct in a matter, or ask a third party to respond for her, but only if the statement would not affect the outcome or impair the fairness of the proceeding. This rule includes responses to media coverage.
  8. Disqualification (MCJC 2.11)
    A judge must disqualify (a.k.a. recuse) herself from any proceeding in which her impartiality could reasonably be questioned.
    1. Grounds for disqualification
      The rule provides a bunch of examples of disqualifying circumstances that you should know for the exam. Remember the mnemonic P BRICKS.
      1. Past participation in the matter
        A judge is disqualified if she was previously involved in the matter.
        As a lawyer
        Recusal is required if the judge or a lawyer in her firm served as a lawyer in the matter.
        As a judge
        Recusal is required if the judge previously presided over the matter in another court.
        As a government employee
        Recusal is required if the judge personally and substantially participated in the matter as a government lawyer or public official or if she expressed an opinion on the merits in that capacity.
        As a witness
        Recusal is required if the judge was a material witness concerning the matter.
      2. Bias
        The judge has a personal bias or prejudice concerning a party or a party’s lawyer.
      3. Relationship with key figure
        The judge knows that someone related to the judge or the judge’s spouse or domestic partner is going to play a key role in the proceedings.
        Third-degree relatives
        Involvement of anyone within the third degree of relationship to the judge or the judge’s spouse/partner is grounds for recusal. That means not only children, grandchildren, parents, and siblings but also first cousins and great-grandchildren. Involvement by the relative’s spouse or domestic partner is also grounds for recusal.
        When in doubt, recuse
        Because the definition of “related” is so broad in this rule, the best answer on the MPRE is going to be that the judge should recuse, unless the question says the relative is the judge’s third cousin five times removed.
        What roles
        Recusal is appropriate if the relative (or her spouse/partner) is (1) a party to the proceeding; (2) an officer, director, general partner, managing member, or trustee of a party; (3) acting as a lawyer; (4) someone with more than a de minimis interest in the outcome; or (5) likely to be a material witness.
      4. Interest in the outcome
        The judge knows that she or her spouse/partner or her family member has an economic interest in the proceeding.
        Whose interests matter
        The judge must recuse if she has an interest in the matter in her individual capacity or as a fiduciary. The rule also covers the judge’s parent, child, or any other family member who resides in the judge’s household.
      5. Contributions to judge's campaign
        The judge has received significant campaign contributions from a party, a party’s lawyer, or the firm of a party’s lawyer. The Model Rule leaves it up to each jurisdiction to decide how big a contribution is required to trigger disqualification and whether to count aggregate contributions over time (e.g., all donations during the last 10 years). In most jurisdictions, a judge may receive reasonable contributions from parties and lawyers without needing to recuse herself.
      6. Knowledge
        The judge has personal knowledge of facts that are in dispute in the proceeding.
      7. Statements made in public
        The judge has made a public statement that commits or appears to commit the judge to making a particular ruling in the case. The statement must have been made (1) while serving as a judge or as a judicial candidate and (2) outside of a court proceeding, judicial decision, or opinion.
    2. Duty to keep informed
      A judge has to keep informed about her personal and fiduciary economic interests. She also has to make a reasonable effort to keep informed about the economic interests of her spouse or domestic partner and any minor children residing in her household.
    3. Disclosure
      If a judge would be subject to disqualification under this rule, she may disclose on the record the basis for disqualification and ask the parties and their lawyers to consider whether they want to waive the disqualification.
    4. Parties’ consent
      The parties and lawyers then consult outside the presence of the judge and court personnel. If they agree that the judge should not be disqualified, the judge may continue to preside, and the agreement becomes part of the record.
      1. Not bias
        This disclosure-and-consent procedure is not available if the judge’s bias is the basis for disqualification. The parties can’t consent to let a biased judge preside.
    5. Exception for necessity
      Sometimes, a matter requires immediate action by a judge (think: probable cause hearing or TRO). If that’s the case, the judge should (1) disclose any possible basis for disqualification on the record; (2) take whatever action is necessary; and (3) make reasonable efforts to transfer the matter to another judge as soon as practicable.
3. Extrajudicial activities
  A judge must prioritize the duties of judicial office over all personal and extrajudicial activities. See MCJC 2.11.
  1. Minimizing conflicts (MCJC Canon 3)
    A judge must conduct personal and extrajudicial activities to minimize the risk of conflict with judicial duties.
  2. Limits on government appointments (MCJC 3.4)
    A judge shall not accept appointment to a government committee, board, commission, or other government position, unless it concerns the law, the legal system, or the administration of justice.
  3. No arbitration, mediation, other judicial functions (MCJC 3.9)
    A judge shall not act as an arbitrator or a mediator or perform other judicial functions apart from her official duties, unless expressly authorized by law.
  4. No practice of law (MCJC 3.10)
    A judge shall not practice law.
    1. Pro se permitted
      A judge can appear pro se in a proceeding.
    2. Legal advice to family members
      A judge may give free legal advice to family members and draft or review documents for them, but the judge can't appear as a family member's lawyer in any forum.
  5. Financial, business, or remunerative activities (MCJC 3.11)
    A judge may participate in limited financial or business activities if they are consistent with her judicial duties.
    1. Permitted investments
      A judge may hold and manage her own investments and those of her family members.
    2. Permitted business activities
      A judge can only serve as an officer, director, manager, general partner, advisor, or employee for a business entity if (1) it is closely held by the judge or her family; or (2) it is primarily engaged in investing the financial resources of the judge or her family.
    3. When prohibited
      A judge shall not engage in these investment or business activities if they will: (1) interfere with proper performance of judicial duties; (2) lead to frequent disqualification; (3) involve frequent transactions or continuing business relationships with lawyers or other people likely to come before the court; or (4) violate other MCJC provisions.
  6. Compensation for extrajudicial activities (MCJC 3.12)
    A judge may accept reasonable compensation for extrajudicial activities unless it would appear to a reasonable person to undermine the judge’s independence, integrity, or impartiality.
  7. Gifts or other benefits (MCJC 3.13)
    A judge shall not accept any gifts, loans, or other things of value, if it would appear to a reasonable person to undermine the judge’s independence, integrity, or impartiality.
    1. De minimis gifts
      There's an exception for de minimis gifts.
    2. Same terms as non-judges
      A judge can take advantage of loans or commercial opportunities if they are offered on the same terms that are available to non-judges.
    3. Gifts that disqualify the judge
      A judge can accept gifts from friends or family whose appearance before the judge would require him to disqualify himself anyway. (If someone can’t appear before a judge, then there’s no danger of bias as the result of a gift.)
  8. Expenses (MCJC 3.14)
    In general, judges can be reimbursed for expenses or can accept waivers of fees that are associated with extrajudicial activities.
    1. Reimbursement
      A judge may accept reimbursement of necessary and reasonable expenses for travel, food, lodging, or other incidental expenses if the expenses are associated with extrajudicial activities permitted by the MCJC. The reimbursement does not have to come from the judge's employer (i.e., from the court system).
      1. Actual costs
        Reimbursement must be limited to actual costs reasonably incurred by the judge and, when appropriate, by the judge's spouse, domestic partner, or guest.
    2. Waiver
      A judge may also accept a full or partial waiver of fees or charges for registration, tuition, and similar items.
  9. Reporting required (MCJC 3.15)
    Judges have to meet certain reporting obligations with respect to extrajudicial activities.
    1. Compensation and gifts
      Judges have to file an annual report detailing any compensation for extrajudicial activities and any gifts they have received.
    2. Reimbursements and waivers
      A judge who receives an expense reimbursement or a fee waiver must report it within 30 days after the event.
  10. Political or campaign activities (MCJC Canon 4)
    A judge or candidate for judicial office shall not engage in political or campaign activity that is inconsistent with the independence, integrity, or impartiality of the judiciary. Remember PILES oF SPICES.
    1. Private benefit
      Use or permit the use of campaign contributions for the private benefit of the judge, the candidate, or others
    2. Identification or endorsement
      Publicly identify herself as a candidate of a political organization or seek or accept endorsements from a political organization
      1. Exceptions for partisan elections
        This prohibition does not apply if the judge/candidate is participating in a partisan election. Some states permit judges to identify as Democrats, Republicans, or members of another party as an integral part of the election process.
    3. Leadership
      Acting as a leader or officer in a political organization
    4. Endorsement or opposition
      Publicly endorsing or opposing a candidate for public office, including a member of the judge's family
    5. Solicit or make contributions for others
      Soliciting or making contributions to a political organization or a candidate for public office
    6. False statements
      Knowingly, or with reckless disregard for the truth, make any false or misleading statement
    7. Solicit or accept contributions for self
      Soliciting or accepting contributions for herself, except through a campaign committee that meets certain standards
      1. Campaign committees for judicial candidates (MCJC 4.4)
        A judicial candidate subject to public election may establish a committee to manage her campaign. The candidate must instruct her committee to do the following things.
        Reasonable amounts
        The campaign committee may only solicit and accept campaign contributions that are reasonable. Excessive contributions would create the impression that the judge might be biased in favor of the donor.
        Timing
        The committee must not solicit or accept contributions too far before or after an election takes place. The idea here is that contributions that aren't made close to an election look more like bribes than permitted political speech. The model rule leaves it up to individual jurisdictions to decide what timeframe is appropriate.
        Disclosure and divestiture
        The committee must comply with all statutory requirements for disclosure and divestiture of campaign contributions. That includes filing a report that identifies all donors whose contributions exceed a certain amount (tbd by each jurisdiction).
    8. Pledges or promises
      Make pledges or promises about cases, controversies, or issues that are likely to come before the court that are inconsistent with impartial judging
      1. Pledges about judicial administration
        A judicial candidate may make campaign promises related to judicial administration or court management (e.g., a promise to dispose of a backlog of cases).
      2. Pledges about action outside the courtroom
        A candidate may pledge to take action outside the courtroom, like improving the jury selection system or renovating the courthouse.
    9. Impending and current cases
      Make any statement that could reasonably affect the outcome or impair the fairness of a current or impending court case
    10. Court resources
      Use court staff, facilities, or other resources in a campaign for judicial office
    11. Events
      Attend or purchase tickets for events sponsored by a political organization or a candidate for public office
    12. Speeches
      Making speeches on behalf of a political organization
  11. Supervisory duty
    A judge or judicial candidate must take reasonable measures to ensure that other people do not engage in any of these activities on her behalf.

The Multistate Professional Responsibility Exam Outline

The Multistate Professional Responsibility Exam Outline

Lesson Note

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