MPRE Maximizer

Now that you’ve

completed
your MPRE review,
it’s time to maximize!
Use this quick-study tool to:
✓ Quickly review the most tested rules and exceptions so you
don’t miss any softball questions
✓ Discover tips and strategies to avoid common pitfalls and
identify when and where to use specific buzzwords
✓ Increase your confidence on exam day

2 [Link] | MPRE Maximizer | 2020-1 | 05/17/21

 This (But…)
In ex parte proceedings, you must inform the court
You have no duty to volunteer facts that might help
of all material facts that will enable it to make an
the other side.
informed decision.

You must not charge a contingent fee You can in a domestic relations case if collecting
(1) when representing a defendant in a criminal a post-judgment balance due under an existing
case or (2) in a domestic relations case. order for child support, alimony, etc.

You may pay the reasonable fees of an expert Such fees must never be contingent on the content
witness. of the testimony or the outcome of the case.

You can if a consensual sexual relationship

You generally must not have sexual relations
already existed when the representation started
with a client.
(but still check for a “material limitation” conflict).

If you withdraw or are fired, you must refund all You generally don’t need to refund a “true
unearned fees and expenses that were paid by the retainer” fee (money that was paid by the client
client in advance. solely to ensure your availability).

You generally must not limit your malpractice You can if the client is independently represented
liability in advance. in making the agreement.

You don’t need to repeat yourself if you have

You must communicate the basis or rate of the fee
regularly represented the client in the same type of
to the client before or within a reasonable time
matter and will be charging the client on the same
after the representation begins.
basis or rate.

A judge generally must not testify as a character The judge can do so if duly summoned to testify
witness. (e.g., by subpoena).

You may refer a client to a lawyer or a non-lawyer The reciprocal referral agreement must not be
professional pursuant to a reciprocal referral exclusive, and the referred client must be informed
agreement. of the existence and nature of the agreement.

When representing a criminal defendant (or any

You must not bring/defend a frivolous proceeding
client who may be incarcerated), you can require
or take a frivolous position.
that the prosecutor prove every element.

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 Informed Informed
consent/agreement consent/agreement in
Informed
consent confirmed writing signed
in writing by client

• Limiting the scope of • Most waivable • Business transaction

the representation conflicts of interest* with/pecuniary interest
− Direct adversity/material adverse to client
• Third person paying limitation
client’s legal fees − Former clients & • Aggregate settlement
employment between clients
• Providing a materially − Prospective clients
harmful evaluation of − Government work • Contingent fee
client’s affairs for use by − Prior involvement agreement
a third person in matter as judge,
arbitrator, etc.
• Revealing client’s
* But certain imputed
confidential
conflicts can be cured with
information or using it
just screening/written
to their disadvantage
notice
(unless exception
applies or otherwise
• Client’s agreement
permitted by RPC)
to fee-splitting
arrangement
with attorney at
different firm

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 Common exam fact patterns
A lawyer wants to share a legal fee with an attorney at a different law firm. Although lawyers may refer clients
to each other, keep in mind that true referral fees (in which one of the lawyers is not involved with or responsible for
the case) are not allowed. Make sure that the split is proportional to the work done by each lawyer, OR each lawyer
assumes joint responsibility for the representation. Additionally, the total fee must be reasonable and the client must
consent to the arrangement and its terms.

A client asks a lawyer to testify on the client’s behalf or otherwise act as the client’s advocate at a legislative
or administrative proceeding. This is allowed, but the lawyer must disclose that they are acting in a representative
capacity. The lawyer does NOT need to identify the client.

A client, lawyer, and/or some third party are in dispute over funds held by the lawyer. The lawyer must keep the
disputed portion separate in the client trust account until the dispute is resolved. The other side of this rule is that the
lawyer must promptly distribute the undisputed portion.

Multiple clients ask a lawyer to represent them in the same civil matter. If the clients’ interests are already
antagonistic, the lawyer should decline. If their interests are harmonious but potentially adverse, the lawyer must
address the “significant risk of material limitation” conflict (must reasonably believe that competent and diligent
representation is possible and must obtain the clients’ informed consent, confirmed in writing). If during the course
of the matter the clients’ interests actually become adverse, the lawyer must re-address the conflict and may be
forced to withdraw.

A subordinate lawyer violates a disciplinary rule. Is a partner in the firm responsible? For purposes of civil liability
(if the client is injured), each partner is liable for the firm’s obligations. But the partner will only be subject to discipline
if the firm did not have adequate training or supervision measures in place for its members, or if the partner ordered,
ratified, or knew about and failed to mitigate the particular misconduct. A partner has the same responsibility with
respect to a non-lawyer’s actions.

A client wants to compensate a lawyer with non-monetary property or by giving the lawyer an interest in a
business. Although generally permitted, such arrangements are subject to the rule governing business transactions
with clients (must be fair to the client, etc.). Also, make sure that the arrangement does not involve a prohibited
proprietary interest in the cause of action or subject of litigation.

A lawyer representing a client adverse to an organization wants to interview an employee of the organization.
The rule that prohibits a lawyer from communicating with a represented person without their counsel’s consent also
limits communications with constituents of represented organizations. However, the lawyer is only prohibited from
communicating with certain categories of constituents. If the employee is not high-ranking, does not regularly consult
with the organization’s counsel about the case, and did not commit the conduct at issue, they are likely fair game for
an interview.

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 Was it permissible
You dropped the because the client
ball & disclosed gave informed
confidential information! consent or it
Now what? Implied was impliedly
Yes Authority
authorized?

Informed
Consent

Does an exception
apply?
No

Is confidentiality
The 2 big ones
superseded • Candor to the
by a different tribunal
ethics rule (rare)? • Outside reporting
of corporate
No violations

Yes
!
Yes aved
S

• Prevent death or substantial bodily harm

• Prevent/rectify financial injury to another No
if services used in furtherance
• Defend self in dispute concerning
lawyer’s conduct
• Obtain legal ethics advice
• Detect and resolve conflicts of interest
due to change
• Comply with court order or law Subject to discipline

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 You must not You can’t make
commingle your own a false statement You generally
funds with client funds of material fact to can’t knowingly disobey
or any other funds held a third person in a court rule or order.
in connection with a connection with a
representation. representation.

You can
You can put “puff” on issues
your own funds into like estimates of price You can openly refuse
a client trust account or value, or a party’s to obey for the purpose
for the sole purpose intentions as of making a good faith
of paying bank to settlement. These challenge to its validity.
service charges aren’t considered
on that account. material facts.

Stop & go
You are
You can
generally
participate in a
permitted to report
group or prepaid legal
You are generally another lawyer’s
services plan that uses
free to reject misconduct, and may
personal contacts to
any case. be required to do so if it
enroll members or sell
raises a “substantial
subscriptions.
question” about
the lawyer.

You can’t In a civil case,

participate in a you shouldn’t
You can’t seek to
plan that uses personal threaten disciplinary
avoid a court
contacts if you own or charges for the
appointment except
direct the organization purpose of obtaining
for good cause.
that operates an advantage for
the plan. your client.

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 Is there
a conflict?

Word Private work using

confidential
Opposing client government
associations of lawyer information
who left firm against a person

Same or substantially Actually received

related matter “confidential government

&
information” about a
person while in
government service
Representing At least one lawyer
current client
(general rule)
remaining in the firm
has material confidential
information about it
&
The information could
Directly adverse to materially disadvantage
another current client the person

or
Significant risk of Opposing
material limitation based prospective client
on own interests or duties
Government
to another
work following
Same or substantially
private work
related matter

Opposing
& Same matter
Gained information during

&
former client
the consultation that Was personally
could significantly harm and substantially
Same or substantially the prospective client involved
related matter

Private work Prior involvement

following in matter as judge,
Opposing former government work judicial officer,
firm’s client law clerk, or
third-party neutral
Same “matter” (specific
Same or substantially facts and parties)

&
related matter

&
Same matter

&
Was personally and
Was personally
Acquired material substantially involved
and substantially
confidential information involved
while at former firm

8 [Link] | MPRE Maximizer

 • You can advance any client’s court costs
and expenses (and can agree to forgive
repayment if the client loses).
• You must not provide any other financial
• If a client is indigent, you can pay their
assistance to a client in connection with
court costs and expenses outright.
pending or contemplated litigation.
• If you are representing an indigent client
pro bono, you can provide the client with
modest gifts for basic living expenses.

• You must not state or imply that you are

disinterested.
• You can talk with an unrepresented person • If the unrepresented person’s interests
about your client’s matter. conflict with your client’s interests, you must
not give them any legal advice (other than
to obtain counsel).

• You can advertise that you do or do not • You must not state or imply that you are
practice in particular areas of law, or that certified as a specialist in a particular area
you “concentrate” in or “specialize” in that of law, unless you are in fact certified as a
area as long as such communications are specialist by an approved organization that
not false or misleading. is clearly identified in the communication.

• You may refuse to offer evidence that you • You must not refuse to offer the testimony of
reasonably believe (but do not know) is a criminal defendant in
false. this situation.

• A full-time judge may:

− Act pro se. • A full-time judge must not otherwise
− Provide legal advice to, and draft and review practice law. This includes acting as a family
documents for, a member of her family member’s lawyer in any forum.
without compensation.

9 [Link] | MPRE Maximizer

 Hints and reminders
If you speak to a represented person about your client’s
You may be subject to discipline for engaging in
matter without knowledge that they have counsel, the
dishonesty, fraud, deceit, or misrepresentation even if
rule for communicating with unrepresented persons
such conduct was unrelated to your law practice.
applies—you must not appear to be disinterested, etc.

If your client has diminished capacity, you still owe them

A conflict based on a lawyer’s personal interest (e.g.,
a duty of confidentiality. However, you are “impliedly
family relationship) is not imputed to other lawyers in the
authorized” under the duty of confidentiality to reveal
firm—unless there is a significant risk it would materially
information to the extent necessary to protect the client
limit their representation of the client.
from substantial harm.

The duty of candor to the tribunal (correcting false

statements; remedying false evidence) expires at the
Avoiding “impropriety” or the appearance of impropriety end of the proceeding—when a final judgment has been
is a standard for judges, not lawyers. affirmed on appeal or the time for appeal has expired. If
after this point you find out that a witness lied, you are
generally under no obligation to disclose it.

Imputed conflicts based on the disqualified lawyer’s

If you can’t disclose the extent of a conflict to a client
prior dealings (consultations, employment, involvement
because of your duty of confidentiality to someone else,
in matter) are often curable by screening the lawyer,
the conflict is not waivable because you are unable to
making sure the lawyer does not share in the fees, and
meet the “informed consent” requirement.
notifying the affected parties.

Discipline and civil liability are separate. In a malpractice

case, your ethics violation is relevant evidence that your
It’s fine for represented opposing parties to talk directly conduct was below the standard of care, but it does
to each other, and you can advise your client regarding not create a presumption of malpractice. On the other
such communications. side of the coin, if you breached a duty to the client, you
cannot escape discipline by reimbursing the client for
their loss.

When it looks like there is a conflict based on your prior

government work on the same matter, make sure that
the “matter” involved specific facts and parties. For You are not assisting in the unauthorized practice of law
example, the drafting of regulations that do not involve if you advise a person on how to appear pro se.
specific facts or parties is generally not a “matter” for
purposes of this rule.

You cannot escape discipline by violating the rules

through the acts of another person. This usually comes
You can’t be on opposite sides of the same litigation.
up when you send a non-lawyer agent to contact
someone who you’re not allowed to contact yourself.

10 [Link] | MPRE Maximizer

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