Conflicts of Interest
12-18%of exam
Concurrent ConflictsSpecific Conflict RulesFormer Client ConflictsImputation & Screening
Client-Lawyer Relationship
10-16%of exam
Competence & DiligenceCommunication DutiesFees & BillingWithdrawal Rules
Litigation & Advocacy
10-16%of exam
Candor to TribunalFairness to OpponentsTrial PublicityProsecutor Duties
Regulation of Legal Profession
6-12%of exam
Bar DisciplineSupervisory DutiesUnauthorized PracticeChoice of Law
Client Confidentiality
6-12%of exam
Competence & Malpractice
6-12%of exam
Competence StandardMalpractice LiabilityCivil LiabilityDuty of Care
Different Roles of Lawyer
4-10%of exam
Advisor RoleThird-Party NeutralOrganizational ClientGovernment Lawyer
Communications About Legal Services
4-10%of exam
Advertising RulesSolicitation LimitsFirm NamesSpecialization Claims
Transactions With Non-Clients
2-8%of exam
Truthfulness to OthersNo-Contact RuleUnrepresented PersonsThird-Person Rights
Safekeeping Funds & Property
2-8%of exam
IOLTA AccountsNo ComminglingPrompt NoticeRecordkeeping
Judicial Conduct
2-8%of exam
Judicial CanonsDisqualificationEx Parte LimitsPolitical Activity
Duties to Public & System
2-4%of exam
Pro Bono ServiceCourt AppointmentsFrivolous ClaimsRespect for Officials
Quick Facts
- Exam
- MPRE
- Body
- NCBE
- Questions
- 60 (50 scored)
- Time
- 2 hours
- Scale
- 50-150
- Pass
- 75-86 (varies)
- Format
- Multiple-choice
- Level
- Law school/bar
- Outline
- NCBE 12 topics
Conflict Waiver Test
Reasonable, Legal, Not Same Case, Consent
Reasonable: competent and diligentLegal: not prohibited by lawSame case: never waivableConsent: informed and written
Current vs Former Client Conflict
Rule 1.7 (current)
- Direct adversity test
- Waivable with consent
Rule 1.9 (former)
- Substantially related test
- Confidential info misuse
Timing changes the test
Conflict Waiver Picker
- Direct adversity between clients→Assess under Rule 1.7(May be waivable)
- Same litigation opposing sides→Non-waivable conflict(Decline representation)
- Personal interest limits lawyer→Evaluate materiality of limit(Consent may cure)
- Former client same matter→Rule 1.9 analysis(Substantially related test)
- Government lawyer switching sides→Screening permitted(With proper notice)
- One lawyer's conflict at firm→Rule 1.10 imputation(Screen or decline)
Concurrent Conflicts (Rule 1.7)
- Direct adversity
- Rep against current client
- Material limitation
- Duty to another limits rep
- Reasonable belief
- Competent despite the conflict
- Same litigation
- Never waivable, opposing sides
- Informed consent
- Confirmed in writing required
Specific Conflict Rules (1.8)
- Business deal
- Fair terms, written disclosure
- Media rights
- Barred before matter ends
- Financial assistance
- Barred, except costs or pro bono
- Aggregate settlement
- Needs each client's consent
- Malpractice waiver
- Prospective limits are barred
Former Client & Imputation
- Rule 1.9
- Former client, substantially related
- Rule 1.10
- Imputes conflicts firm-wide
- Screening
- Avoids imputation for laterals
- Personal conflict
- Not imputed to the firm
Model Rules Roadmap
1s Client, 3s Advocate, 7s Marketing, 8s Integrity
1.1-1.18: client relationship rules3.1-3.9: advocate duty rules7.1-7.6: legal marketing rules8.1-8.5: professional integrity rules
Mandatory vs Permissive Withdrawal
Mandatory (1.16(a))
- Illegal act ordered
- Lawyer incapacitated
- Client discharges lawyer
Permissive (1.16(b))
- Nonpayment of fees
- Frivolous position
- Irreconcilable disagreement
Must vs may withdraw
Withdrawal Picker
- Client demands illegal act→Mandatory withdrawal(Rule 1.16(a))
- Client discharges the lawyer→Mandatory withdrawal(Must comply)
- Lawyer becomes incapacitated→Mandatory withdrawal(Cannot continue rep)
- Client stops paying fees→Permissive withdrawal(With reasonable notice)
- Client pursues frivolous position→Permissive withdrawal(Reasonable warning first)
- Fundamental disagreement on tactics→Permissive withdrawal(If not prejudicial)
Formation & Duties (1.1-1.4)
- Rule 1.1
- Competence duty
- Rule 1.2
- Scope of representation
- Rule 1.3
- Diligence, no neglect
- Rule 1.4
- Reasonable communication duty
- Client decides
- Settlement, plea, jury waiver
Fees & Withdrawal (1.5, 1.16)
- Rule 1.5
- Reasonable fee factors
- Contingent fee
- Must be in writing
- Barred contingent fee
- Criminal and domestic cases
- Fee splitting
- Proportional or joint responsibility
- Mandatory withdrawal
- Illegal act, incapacity, discharge
- Permissive withdrawal
- Nonpayment, frivolous, disagreement
Candor vs Confidentiality Priority
Candor (3.3)
- Duty to tribunal
- Can require disclosure
Confidentiality (1.6)
- Duty to client
- Yields to candor duty
Tribunal duty wins
Candor & Fairness (3.3-3.4)
- Rule 3.3
- Candor toward the tribunal
- False evidence
- Must remedy, even disclose
- Adverse authority
- Must disclose if undisclosed
- Rule 3.4
- Fairness to opposing party
- No tampering
- Can't obstruct or falsify evidence
Publicity & Prosecutors (3.6, 3.8)
- Rule 3.6
- Trial publicity limits
- Safe harbor
- Public record statements allowed
- Rule 3.8
- Prosecutor's special duties
- Brady duty
- Disclose exculpatory evidence
Bar Admission & Discipline
- Rule 8.3
- Mandatory reporting of misconduct
- Rule 8.4
- Professional misconduct defined
- Rule 5.5
- Unauthorized practice barred
- Rule 5.1
- Partner supervisory responsibility
- Rule 5.3
- Nonlawyer assistant supervision
- Rule 8.5
- Choice of law, discipline
1.6(b) Exceptions Mnemonic
Death, Crime, Rectify, Advice, Defend, Comply, Screen
Death: bodily harmCrime: financial fraudRectify: past fraudAdvice: legal complianceDefend: fee disputeComply: court orderScreen: lateral conflicts
Confidentiality vs Privilege
Confidentiality (1.6)
- All info related to rep
- Ethical duty
- Never expires
Privilege
- Communications only
- Evidentiary rule
- Crime-fraud defeats it
Ethics broad, privilege narrow
Confidentiality Exception Picker
- Prevent death or injury→1.6(b)(1)(Reveal only if needed)
- Client financial fraud ongoing→1.6(b)(2)(Lawyer's services involved)
- Rectify past client fraud→1.6(b)(3)(Services used in fraud)
- Need ethics compliance advice→1.6(b)(4)(Consult ethics counsel)
- Defend fee or malpractice claim→1.6(b)(5)(Self-defense exception)
- Court order compels disclosure→1.6(b)(6)(Comply with law)
- Screening conflicts on lateral move→1.6(b)(7)(Limited disclosure allowed)
Duty of Confidentiality (1.6)
- Rule 1.6(a)
- No disclosure without consent
- Scope
- All info relating to rep
- Impliedly authorized
- Disclosure to carry out rep
- Duration
- Survives death and representation
1.6(b) Exceptions
- (b)(1)
- Prevent death or bodily harm
- (b)(2)
- Prevent client financial fraud
- (b)(3)
- Rectify client's past fraud
- (b)(4)
- Secure legal ethics advice
- (b)(5)
- Defend fee or malpractice claim
- (b)(6)
- Comply with law or order
- (b)(7)
- Detect conflicts on lateral move
Privilege vs Confidentiality
- Privilege
- Evidentiary, communications only
- Confidentiality
- Ethical duty, all related info
- Work product
- Protects attorney mental impressions
- Crime-fraud exception
- Defeats privilege, not automatic
Competence & Malpractice
- Rule 1.1
- Requires knowledge and skill
- Malpractice
- Breach of duty causing harm
- Civil liability
- Distinct from rule violation
- Duty of care
- Ordinary skill of profession
Special Roles of Lawyer
- Rule 2.1
- Advisor, candid advice
- Rule 2.4
- Third-party neutral role
- Rule 1.13
- Organization is the client
- Rule 1.11
- Former government officer conflicts
- Government lawyer
- Represents the public interest
Advertising vs Solicitation
Advertising (7.2)
- Reaches general public
- Broadly permitted
Solicitation (7.3)
- Targets known individual
- In-person mostly barred
Public vs targeted contact
Advertising vs Solicitation Picker
- Mass mailing to public→Permitted advertising(Rule 7.2)
- In-person pitch to stranger→Prohibited solicitation(Pecuniary motive)
- Targeted written solicitation→Permitted written solicitation(No 'Advertising Material' label)
- Live phone call for fee→Prohibited solicitation(Unless prior relationship)
- Contact with existing client→Always permitted(No restriction)
- Referral to another lawyer→Permitted communication(Reciprocal agreements allowed)
Advertising & Solicitation (7.1-7.3)
- Rule 7.1
- No false or misleading ads
- Rule 7.2
- Advertising permitted, pay costs
- Rule 7.3
- In-person solicitation barred
- Written solicitation
- No label required (post-2018)
- Exception
- Family, lawyers, prior clients ok
Dealing With Non-Clients (4.1-4.4)
- Rule 4.1
- Truthfulness to third persons
- Rule 4.2
- No contact with represented party
- Rule 4.3
- Clarify role to unrepresented
- Rule 4.4
- Respect rights of third persons
Trust Accounts (Rule 1.15)
- IOLTA
- Interest on trust accounts
- Commingling
- Strictly prohibited
- Prompt notice
- Notify client upon receipt
- Disputed funds
- Keep separate until resolved
Judicial Conduct Canons
Independence, Impartial Duties, Extrajudicial Limits, Political Restraint
Canon 1: independenceCanon 2: impartial dutiesCanon 3: extrajudicial limitsCanon 4: political restraint
Disqualification vs Remittal
Disqualification (2.11)
- Impartiality questioned
- Personal bias non-waivable
Remittal
- Full disclosure on record
- Parties agree to proceed
Bias never waivable
Judicial Disqualification Picker
- Judge has financial interest→Must disqualify(Rule 2.11)
- Judge's relative is a party→Must disqualify(Family conflict)
- Personal bias against a party→Must disqualify(Never waivable)
- Judge was prior counsel→Must disqualify(Prior representation)
- General political viewpoint only→No disqualification(Not a bias)
- Parties want judge to stay→Remittal possible(Full disclosure required)
Judicial Conduct Code
- Canon 1
- Independence and integrity
- Canon 2
- Impartial, competent performance
- Rule 2.11
- Disqualification standards
- Rule 2.9
- Ex parte communication limits
- Remittal
- Waiver after full disclosure
Duties to Public & System
- Rule 6.1
- Voluntary pro bono service
- Rule 6.2
- Accepting court appointments
- Rule 8.2
- Respect for judicial officials
- Rule 3.1
- No frivolous claims
Common Traps
Confidentiality ≠ Privilege
Duty covers all related info ≠ Privilege covers communications only
Imputed ≠ Personal Conflict
Firm conflicts spread automatically ≠ Personal conflicts stay individual
Advertising ≠ Solicitation
Advertising reaches the general public ≠ Solicitation targets a known individual
Mandatory ≠ Permissive Withdrawal
Mandatory means lawyer must withdraw ≠ Permissive means lawyer may withdraw
Candor ≠ Confidentiality Priority
Rule 3.3 duty trumps 1.6 ≠ Disclose fraud upon the tribunal
Disqualification ≠ Remittal
Bias disqualification is never waivable ≠ Other grounds allow party remittal
IOLTA ≠ Operating Account
Client funds always stay separate ≠ Commingling funds violates Rule 1.15
Last Minute
- 1.Conflicts of interest carry heaviest weight
- 2.1.6(b) has seven exceptions
- 3.Privilege is narrower than confidentiality
- 4.Candor to tribunal beats confidentiality
- 5.Imputation spreads conflicts firm-wide
- 6.Screening avoids imputation for laterals
- 7.Advertising targets public, not individuals
- 8.IOLTA never commingles client funds
- 9.Judicial bias disqualification is non-waivable
- 10.Contingent fees barred in criminal cases
- 11.Prosecutors must disclose exculpatory evidence
- 12.MPRE tests application, not memorization
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