Multistate Professional Responsibility Examination (MPRE) Foundations of the Regulation of the Legal Profession Flashcards

24 sample cards from the Foundations of the Regulation of the Legal Profession deck

Sampled from the end of the deck, so these are different cards from the ones shown on the syllabus page.

1. What level of knowledge triggers the Rule 8.3 duty to report, and what severity of violation?

   Actual knowledge (not mere suspicion), and only violations that raise a 'substantial question' about the other lawyer's honesty, trustworthiness, or fitness. Minor or trivial violations need not be reported.

2. Does Rule 8.3 require reporting judicial misconduct as well as lawyer misconduct?

   Yes. Rule 8.3(b) requires a lawyer who knows a judge has committed a violation of judicial conduct rules raising a substantial question about the judge's fitness for office to inform the appropriate authority.

3. What is the most important exception to the Rule 8.3 duty to report?

   The duty does not require disclosure of information protected by Rule 1.6 (client confidentiality), nor information gained while serving as a member of an approved lawyers' or judges' assistance (e.g., substance-abuse) program.

4. Lawyer learns of another lawyer's reportable misconduct from his own client's confidential information. Must he report?

   Not without the client's informed consent. The Rule 8.3 reporting duty yields to Rule 1.6 confidentiality; the lawyer should consult the client and may report only if the client consents or another 1.6 exception applies.

5. Why is the duty to report misconduct sometimes called the 'snitch' or self-policing rule, and what is its rationale?

   Because the legal profession is largely self-regulating; effective self-regulation depends on lawyers reporting serious misconduct so the disciplinary system can protect the public. Failing to report a reportable violation is itself misconduct.

6. What are the principal forms of disciplinary sanction a court may impose on a lawyer?

   Disbarment (revocation of license), suspension (license removed for a set or indefinite period), public or private reprimand/censure, probation, and (often) restitution or required additional education. Courts may also impose conditions on continued practice.

7. What is the difference between disbarment and suspension?

   Disbarment terminates the right to practice (in many states permitting later reinstatement only after a defined period and showing of rehabilitation), while suspension removes the right to practice for a specified or indefinite term after which the lawyer may resume practice, sometimes upon conditions.

8. What is reciprocal discipline?

   When a lawyer is disciplined in one jurisdiction, another jurisdiction in which the lawyer is admitted may impose the same or comparable discipline based on the first jurisdiction's adjudication, typically without relitigating the underlying facts.

9. What defenses can a lawyer raise to avoid imposition of reciprocal discipline?

   Generally limited to: the original proceeding lacked due process; the proof was so infirm that accepting the finding would be unjust; the misconduct warrants substantially different discipline in the second jurisdiction; or the conduct is not misconduct in the second jurisdiction.

10. What factors do courts weigh in choosing the appropriate sanction for misconduct?

    The duty violated, the lawyer's mental state (intentional, knowing, or negligent), the actual or potential injury caused, and the existence of aggravating or mitigating factors (e.g., prior discipline, dishonest motive, remorse, inexperience, restitution).

11. Under Rule 8.4(a), can a lawyer be disciplined for misconduct committed through another person?

    Yes. It is professional misconduct to violate the Rules 'through the acts of another'—for example, directing a paralegal, investigator, or another lawyer to do something the lawyer could not ethically do directly. The lawyer cannot escape responsibility by using an agent.

12. What is the rule on a lawyer's responsibility for the conduct of nonlawyer assistants (Rule 5.3)?

    A lawyer with managerial/supervisory authority must make reasonable efforts to ensure nonlawyer assistants act compatibly with the lawyer's professional obligations, and a lawyer is responsible for a nonlawyer's conduct that would violate the Rules if the lawyer orders/ratifies it or, being a manager/supervisor, knows of it in time to avoid or mitigate and fails to act.

13. When is a supervising lawyer responsible for a subordinate LAWYER's rule violation (Rule 5.1)?

    When the lawyer orders or, with knowledge, ratifies the conduct; or is a partner/manager or direct supervisor who knows of the conduct at a time when its consequences can be avoided or mitigated but fails to take reasonable remedial action.

14. Is a subordinate lawyer excused from a rule violation because a supervisor ordered it (Rule 5.2)?

    A subordinate lawyer is still bound by the Rules even when acting at a supervisor's direction; however, the subordinate does not violate the Rules if acting in accordance with a supervisor's reasonable resolution of an arguable question of professional duty.

15. What does Model Rule 5.5(a) prohibit regarding unauthorized practice?

    A lawyer must not practice law in a jurisdiction in violation of that jurisdiction's regulation of the legal profession, and must not assist another person (lawyer or nonlawyer) in doing so.

16. Generally, may a lawyer admitted only in State A establish a continuous, systematic law office in State B where she is not admitted?

    No. Under Rule 5.5(b), a lawyer not admitted in a jurisdiction must not establish an office or other systematic and continuous presence for the practice of law there, nor hold out to the public as admitted to practice there.

17. Under Rule 5.5(c), what are the four circumstances permitting TEMPORARY multijurisdictional practice by an out-of-state lawyer?

    Services on a temporary basis that: (1) are undertaken in association with a locally admitted lawyer who actively participates; (2) relate to a pending or potential proceeding before a tribunal where the lawyer is or expects to be authorized (e.g., pro hac vice); (3) relate to a pending/potential ADR proceeding (arbitration/mediation) arising out of or reasonably related to the lawyer's home-state practice; or (4) arise out of or are reasonably related to the lawyer's home-state practice.

18. What basic conditions must an out-of-state lawyer meet to use the Rule 5.5(c) temporary-practice safe harbors?

    The lawyer must be admitted and in good standing in another U.S. jurisdiction, must not be disbarred or suspended there, and the services must be provided on a temporary basis.

19. Under Rule 5.5(d), when may a lawyer admitted only in another U.S. jurisdiction provide services on a CONTINUOUS basis in a jurisdiction?

    When the services (1) are provided to the lawyer's employer or its organizational affiliates (in-house counsel) and are not services for which pro hac vice admission is required; or (2) are services the lawyer is authorized to provide by federal law or other law/rule of that jurisdiction.

20. For in-house counsel practicing under Rule 5.5(d)(1), what is the key limitation?

    They may provide legal services to their employer and its affiliates, but may not provide services to others and may not appear before a tribunal where pro hac vice admission would be required—unless separately authorized.

21. What is the core principle of Rule 5.4 regarding professional independence?

    To protect a lawyer's professional independence of judgment from nonlawyer influence, Rule 5.4 generally forbids sharing legal fees with nonlawyers and forbids nonlawyer ownership of, or control over, an entity that practices law.

22. State the general rule and the recognized exceptions to fee-sharing with nonlawyers under Rule 5.4(a).

    General rule: a lawyer or firm must not share legal fees with a nonlawyer. Exceptions: (1) paying a deceased lawyer's estate over a reasonable period; (2) including nonlawyer firm employees in a compensation or retirement plan based on a profit-sharing arrangement; (3) paying a court-awarded fee to a nonprofit that employed/recommended the lawyer; and (4) sharing court-awarded legal fees with a qualifying nonprofit.

23. What does Rule 5.4(b)-(d) prohibit about the structure and control of a law practice?

    (b) No partnership with a nonlawyer if any activity consists of the practice of law; (c) a lawyer must not let a third party who recommends, employs, or pays the lawyer direct or regulate the lawyer's professional judgment; (d) a lawyer must not practice in a for-profit entity where a nonlawyer owns an interest, is a director/officer with comparable authority, or has the right to control the lawyer's professional judgment.

24. What does Rule 5.7 govern, and what is its key consequence for 'law-related services'?

    Rule 5.7 governs ancillary or 'law-related' services (e.g., title insurance, financial planning, tax preparation, lobbying). A lawyer is subject to the Rules of Professional Conduct for such services when they are not distinct from legal services, or when provided through an entity the lawyer controls and the lawyer fails to take reasonable measures to ensure the recipient knows the services are not legal services and the protections of the client-lawyer relationship do not apply.

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Foundations of the Regulation of the Legal Profession flashcards FAQ