I. Regulation Of The Legal Profession
Quiz for Section I: Regulation of the Legal Profession
Questions and Answers
- 1.
Client, a new client of Attorney, has asked Attorney to write a letter recommending Client's nephew for admission to the bar. Client has told Attorney that he has no direct contact with the nephew, but that Client's sister (the nephew's mother) has assured Client that the nephew is industrious and honest. Which of the following would be proper for Attorney? I. Write the letter on the basis of Client's assurance. II. Write the letter on the basis of Client's assurance if Attorney has no unfavorable information about the nephew. III. Make an independent investigation and write the letter only if Attorney is thereafter satisfied that the nephew is qualified.
- A.
Yes, unless the state offers free continuing legal education courses.
- B.
Yes, if Gamma independently undertakes continuing study and education in the law.
- C.
No, because Gamma cannot maintain competence without attending continuing legal education courses.
- D.
No, unless Gamma obtains malpractice insurance.
Correct Answer
A. Yes, unless the state offers free continuing legal education courses.Explanation
A lawyer should always keep up-to-date about changes in the law through continuing education and self-education [MR 1.1, cmt. [6]]. The CLE requirement may be met either by attending approved courses or completing any other CLE approved for credit. Self-study, teaching, writing for CLE publications, participation in educational activities involving the use of computer-based resources, and in-office law firm CLE efforts may also be considered for credit.Rate this question:
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- 2.
State does not require lawyers to participate in continuing legal education courses. Attorneys Alpha, Beta, and Gamma, all lawyers recently admitted to practice, formed a law partnership in State. As they considered what expenses the partnership would pay on behalf of each lawyer, a majority decided that the firm would not pay for continuing legal education courses since they were not required by State. Gamma, who wanted reimbursement for continuing legal education courses, angrily said, \Fine. I won't attend any continuing legal education courses.\" Is it proper for Gamma to refuse to attend any continuing legal education courses?"
- A.
III only
- B.
I and II, but not III
- C.
I and III, but not II
- D.
I, II, and III
Correct Answer
B. I and II, but not IIIExplanation
Applicants for admission to the bar, and lawyers in connection with a bar admission application or a disciplinary matter, must not knowingly make a false statement of material fact, fail to disclose a fact necessary to correct a misapprehension, or knowingly fail to respond to a lawful demand for non-confidential information [MR 8.1]. A lawyer who writes a letter of recommendation for a bar candidate or who is asked by bar authorities for information about a bar candidate is subject to the same rule [MR 8.1, cmt. [1]]. III is proper. Only after an independent investigation into nephew?s background can Attorney provide a personal opinion so as to not knowingly make a false material fact regarding nephew's qualifications.Rate this question:
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- 3.
Alpha is a member of the bar in State First and is also licensed as a stockbroker in State Second. In his application for renewal of his stockbroker's license in State Second, Alpha knowingly filed a false financial statement. Is Alpha subject to discipline in State First for so doing?
- A.
Yes, because his actions involve dishonesty or misrepresentation.
- B.
Yes, but only if he is first convicted of a criminal offense in State Second.
- C.
No, because his action was not in his capacity as an attorney.
- D.
No, because his action was not in State First.
Correct Answer
A. Yes, because his actions involve dishonesty or misrepresentation.Explanation
Under MR 8.4(c), it is professional misconduct for a lawyer to engage in any conduct involving dishonesty, fraud, deceit, or misrepresentation. Fraud means conduct that (1) is fraudulent under the substantive or procedural law of the applicable jurisdiction and (2) has a purpose to deceive. Here, Alpha?s willful filing of a false financial statement violates MR 8.4(c).Rate this question:
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- 4.
Attorney is a member of the bar and a salaried employee of the trust department of Bank. As part of his duties, he prepares a monthly newsletter concerning wills, trusts, estates, and taxes which Bank sends to all of its customers. The newsletter contains a recommendation to the customer to review his or her will in light of the information contained and, if the customer has any questions, to bring the will to Bank's trust department where the trust officer will answer any questions without charge. The trust officer is not a lawyer. If the trust officer is unable to answer the customer's questions, the trust officer refers the customer to Attorney. Is Attorney subject to discipline for the foregoing?
- A.
Yes, because Attorney is giving legal advice to persons who are not his clients.
- B.
Yes, because Attorney is aiding Bank in the unauthorized practice of law.
- C.
No, because no charge is made for Attorney's advice.
- D.
No, because Attorney is a member of the bar.
Correct Answer
B. Yes, because Attorney is aiding Bank in the unauthorized practice of law.Explanation
Law–related services are services that might reasonably be performed in conjunction with and, in substance, are related to the provision of legal services and not prohibited as the unauthorized practice of law when provided by a non–lawyer [MR 5.7(b)]. Law–related services include providing title insurance, financial planning, accounting, trust services, real estate counseling, legislative lobbying, economic analysis, social work, psychological counseling, tax preparation, and patent, medical, or environmental consulting [MR 5.7, cmt. [9]]. A lawyer may not assist another person in the unauthorized practice of law [MR 5.5, cmt. [1]]. A bank may not provide legal services to its customers through a salaried lawyer because Banks are not authorized to practice law.Here, the trust officer, a non–lawyer, may provide trust services, a law–related service, without Attorney being subject to discipline, but the newsletter Attorney prepares recommends customers to bring questions on wills to the trust officer. Answering questions on wills is not a law–related service but rather the practice of law. As such, Attorney is aiding Bank in the unauthorized practice of law.Rate this question:
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- 5.
Law Firm, a professional corporation with five lawyer shareholders, employs twenty-five additional lawyers. Which of the following is(are) proper? I. Employees who are members of the bar are not made shareholders until they have been with Law Firm ten years. II. Manager, who is the office manager but not a member of the bar, is executive vice president of Law Firm. III. Widow, whose husband was a lawyer shareholder in Law Firm until his death two years ago, continues to hold husband's shares in Law Firm, distributed in his estate, until their child completes a law school education.
- A.
I only
- B.
I and II, but not III
- C.
I and III, but not II
- D.
I, II, and III
Correct Answer
A. I onlyExplanation
There are no ethical standards that a law firm needs to follow when deciding when (if ever) a lawyer will become a shareholder of a corporate law firm.Rate this question:
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- 6.
Alpha & Beta, a general partnership, is a litigation firm practicing in State. It hires new law school graduates as associates. These new lawyers are largely left to their own resources to practice law. Alpha & Beta accepts many small litigation matters and assigns them to the associates for training purposes. No senior partners are assigned to supervise this work. It is assumed that if an associate needs help on a case, he or she will seek the guidance of a more senior attorney. Client retained Alpha & Beta to pursue a claim for breach of contract against City. Associate, a first year associate, was assigned Client's case. Associate failed to comply with the applicable 30-day notice requirement for filing a complaint against City, and Client lost the chance to recover $5,000 owed to Client by City. When the complaint was dismissed for failure to comply with the notice requirement, Associate instead told Client that the case was dismissed on the merits. Which of the following statements are correct? I. The law firm of Alpha & Beta is subject to discipline for failure to supervise Associate. II. The individual partners of Alpha & Beta are subject to discipline for failure to make reasonable efforts to establish a system providing reasonable assurance that all lawyers in the firm comply with the rules of professional conduct. III. Associate, an unsupervised subordinate lawyer, is subject to discipline for making misrepresentations to Client. IV. Both the law firm of Alpha & Beta and Associate are subject to civil liability for Client's loss.
- A.
II and IV, but not I or III
- B.
I, III, and IV, but not II
- C.
II, III, and IV, but not I
- D.
I, II, III, and IV
Correct Answer
C. II, III, and IV, but not IExplanation
"Partners and supervising attorneys must make reasonable efforts to establish internal policies and procedures to provide reasonable assurance that all attorneys in their employ comply with ethical rules [MR 5.1, cmt. [2]]. The precise measures required to fulfill these obligations depend on the structure and the work of the firm, but should include procedures designed to detect and resolve conflicts of interest, identify dates by which actions must be taken in pending matters so deadlines are not missed, account for client funds and property, and ensure inexperienced lawyers are properly supervised. Supervising attorneys are personally responsible for subordinates' ethical violations if they order or ratify the subordinates' work. A subordinate lawyer must follow the Rules even when acting under the directions of another person [MR 5.2]. An employer is vicariously liable for tortuous acts committed by its employee if the acts occur within the scope of employment. To be within the scope of employment, the conduct need not be actually authorized. A competent lawyer may act incompetently in a client representation, and be subject to civil liability for malpractice. I is incorrect because there are no Rules requiring a law firm to supervise a lawyer. The Rules require the managing lawyers, individual partners, or direct supervising lawyers to supervise Associate.II is correct because the Rules relating to a lawyer who directly supervises, or is a law firm partner or managing lawyer, requires the lawyer to make reasonable efforts to assure the subordinate lawyer adheres to the Rules [MR 5.1(b)]. III is correct because Associate's own ethical duties remain [MR 5.1, cmt. [8], MR 5.2].IV is correct because the law firm, as Associate's employer, is vicariously liable for Client's loss. Associate is personally liable for Client's loss because Associate incompetently failed to comply with a notice requirement.
"Rate this question:
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- 7.
Trustco, a trust company, entered into the following arrangement with Attorney, a lawyer newly admitted to the bar. Trustco would provide Attorney with free office space in the building in which Trustco had its offices. If a customer of Trustco contacted Trustco about a will, an officer of Trustco, who is not a lawyer, would advise the customer and help the customer work out the details of the will. The customer would be informed that the necessary documents would be prepared by Trustco's staff. The completed documents would be submitted by an officer of Trustco to the customer for execution. Attorney, in accordance with a memorandum from Trustco's trust officer detailing the plan, would prepare the necessary documents. Attorney would never meet with the customer and would not charge the customer for these services. Attorney would be free to engage in private practice, subject only to the limitation that Attorney could not accept employment adverse to Trustco. Is Attorney subject to discipline for entering into the arrangement with Trustco?
- A.
Yes, because Attorney is restricting his right to practice.
- B.
Yes, because Attorney is aiding Trustco in the practice of law.
- C.
No, because Attorney is not charging the customer for his services.
- D.
No, because Attorney is not giving advice to Trustco's customers.
Correct Answer
B. Yes, because Attorney is aiding Trustco in the practice of law.Explanation
"Law–related services are services that might reasonably be performed in conjunction with and, in substance, are related to the provision of legal services and not prohibited as the unauthorized practice of law when provided by a non–lawyer [MR 5.7(b)]. Law–related services include providing title insurance, financial planning, accounting, trust services, real estate counseling, legislative lobbying, economic analysis, social work, psychological counseling, tax preparation, and patent, medical, or environmental consulting [MR 5.7, cmt. [9]]. A lawyer may not assist another person in the unauthorized practice of law [MR 5.5, cmt. [1]]. Trustco may not provide legal services to its customers through a trust officer. Trustco is not authorized to practice law. The trust officer, a non–lawyer, may provide trust services, a law–related service, without Attorney being subject to discipline, but the services here relate to wills. Answering questions on wills is not a law–related service. By preparing the necessary documents for Trustco, Attorney facilitates Trustco in the unauthorized practice of law, though Attorney has no direct contact with customers.
"Rate this question:
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- 8.
Alpha and Beta are members of the bar in the same community but have never practiced together. Beta is a candidate in a contested election for judicial office. Beta is opposed by Delta, another lawyer in the community. Alpha believes Beta is better qualified than Delta for the judiciary and is supporting Beta's candidacy. Which of the following would be proper for Alpha? I. Solicit public endorsements for Beta's candidacy by other attorneys in the community who know Beta, including those who are likely to appear before Beta if Beta becomes a judge. II. Solicit contributions to Beta's campaign committee from other attorneys in the community, including those who are likely to appear before Beta if Beta becomes a judge. III. Publicly oppose the candidacy of Delta.
- A.
I only
- B.
I and II, but not III
- C.
I and III, but not II
- D.
I, II, and III
Correct Answer
D. I, II, and IIIExplanation
To protect the integrity of the judiciary, a lawyer is specifically prohibited from making a statement s/he knows to be false, or with reckless disregard as to its truth or falsity, concerning the qualifications or integrity of a judge, adjudicative officer, public legal officer, or candidate for appointment to judicial or legal office [MR 8.2(a)]. A lawyer may not make a statement the lawyer knows to be false or with reckless disregard as to its truth or falsity concerning the qualifications or integrity of a judge, adjudicatory officer or public legal officer, or of a candidate for election or appointment to judicial office [MR 8.2]. A lawyer's assessment of judges and judicial candidates is relied on in evaluating such persons' professional or personal fitness for judicial or legal office. A false statement or opinion that is not candid can unfairly undermine public confidence in the administration of justice [MR 8.2, cmt. [1]]. Under MR 8.4, it is professional misconduct for a lawyer to engage in conduct prejudicial to the administration of justice. A judge or judicial candidate may not personally solicit or accept campaign contributions other than through a campaign committee as authorized under CJC 4.4. I is proper because the activities are not prejudicial to the administration of justice. II is proper because soliciting funds for Beta?s campaign is not prejudicial to the administration of justice. Beta may accept contributions through a campaign committee. III is proper because Alpha may publicly oppose Delta's candidacy as long as Alpha does not make any statement Alpha knows to be false or with reckless disregard as to its truth or falsity concerning the qualifications or integrity of Delta.Rate this question:
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- 9.
Acton, a certified public accountant, has proposed to Attorney, a recognized specialist in the field of tax law, that Acton and Attorney form a partnership for the purpose of providing clients with tax-related legal and accounting services. Both Acton and Attorney have deserved reputations of being competent, honest, and trustworthy. Acton further proposes that the announcement of the proposed partnership, the firm stationery, and all public directory listings clearly state that Acton is a certified public accountant and that Attorney is a lawyer. Is Attorney subject to discipline if he enters into the proposed partnership with Acton?
- A.
Yes, because one of the activities of the partnership would be providing legal services to clients.
- B.
Yes, because Attorney would be receiving fees paid for other than legal services.
- C.
No, because the partnership will assure to the public high-quality services in the fields of tax law and accounting.
- D.
No, if Attorney is the only person in the partnership who gives advice on legal matters.
Correct Answer
A. Yes, because one of the activities of the partnership would be providing legal services to clients.Explanation
"A lawyer may not form a partnership or other business entity with a non-lawyer if any of the business' activities consist of the practice of law [MR 5.4(b)], or practice with, or in the form of a professional corporation or association authorized to practice law for a profit, if a non–lawyer owns an interest therein [MR 5.4(d)], or a non–lawyer has the right to direct or control the professional judgment of a lawyer. Here, the proposed partnership would deliver legal services, so Attorney would be subject to discipline if he enters into this partnership with Acton, a non–lawyer.
"Rate this question:
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- 10.
Attorney Alpha is recognized as an expert in securities regulation law. Corp, a corporation, retained Alpha's law firm to qualify Corp's stock for public sale. After accepting the matter, Alpha decided that he preferred to spend his time on cases with larger fee potential, so he assigned responsibility for the Corp matter to Attorney Beta, an associate in Alpha's office who had recently been admitted to the bar. Beta protested to Alpha that he, Beta, knew nothing about securities regulation law and that he had too little time to prepare himself to handle the Corp matter competently without substantial help from Alpha. Alpha responded, "I don't have time to help you. Everyone has to start somewhere." Alpha directed Beta to proceed. Was Alpha's conduct proper in this matter?
- A.
Yes, because as a member of the bar, Beta is licensed to handle any legal matter.
- B.
Yes, because Alpha may withdraw from a case if work on it would cause him unreasonable financial hardship.
- C.
No, because Alpha knew Beta was not competent to handle the matter, and Alpha failed to provide supervision adequate to protect the client's interest.
- D.
No, because Corp had not given Alpha permission to assign Beta to work on the matter.
Correct Answer
C. No, because AlpHa knew Beta was not competent to handle the matter, and AlpHa failed to provide supervision adequate to protect the client's interest.Explanation
"Fundamental skills necessary for competence that even newly admitted attorneys should have include the ability to analyze precedent, evaluate evidence, draft legal documents, and identify legal issues and problems [MR 1.1, cmt. 2]]. Partners and supervising attorneys must make reasonable efforts to ensure inexperienced lawyers are properly supervised [MR 5.1, cmt. [2]. Here, Alpha left Beta to proceed with the securities matter alone, without supervision. As a newly admitted attorney, Beta may have fundamental skills necessary for competence, but Beta had no training or prior experience in securities law. Therefore, Alpha's conduct was not proper in this matter.
"Rate this question:
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- 11.
Attorney and Broker, a licensed real estate broker, entered into an agreement whereby Broker was to recommend Attorney to any customer of Broker who needed legal services, and Attorney was to recommend Broker to any client of Attorney who wished to buy or sell real estate. Attorney's practice is limited almost entirely to real estate law. Is Attorney subject to discipline for entering into the agreement with Broker?
- A.
Yes, because Attorney is compensating Broker for recommending Attorney's legal services.
- B.
Yes, because the arrangement constitutes the practice of law in association with a nonlawyer.
- C.
No, if neither Attorney nor Broker shares in the other's fees.
- D.
No, if the fees of Attorney and Broker do not clearly exceed reasonable fees for the services rendered by each.
Correct Answer
A. Yes, because Attorney is compensating Broker for recommending Attorney's legal services.Explanation
"Under MR 7.2(b), a lawyer shall not give anything of value to a person for recommending the lawyer's services except that a lawyer may (1) pay the reasonable costs of advertisements or communications permitted by MR 7.2, (2) pay the usual charges of a legal service plan or a not–for–profit or qualified lawyer referral service. A qualified lawyer referral service is a lawyer referral service that has been approved by an appropriate regulatory authority (3) pay for a law practice in accordance with Rule 1.17; and (4) refer clients to another lawyer or a non–lawyer professional pursuant to an agreement not otherwise prohibited under the Rules that provides for the other person to refer clients or customers to the lawyer, if (a) the reciprocal referral agreement is not exclusive, and (b) the client is informed of the existence and nature of the agreement.In this case, Attorney enters into a referral agreement with Broker, a non–lawyer. The facts are not clear on Attorney compensating Broker, but under MR 7.2(b) Attorney may not give anything of value for the recommendations from Broker. However, recommending to Broker any client of Attorney who wishes to buy or sell real estate is something of value so Attorney would be subject to discipline for entering into this agreement with Broker.
"Rate this question:
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- 12.
Delta, a lawyer, has just joined the Law Offices of Alpha and Beta, a professional corporation engaged solely in the practice of law. Delta is a salaried associate and is not a member or shareholder of the professional corporation. Alpha's spouse, Veep, who is not a lawyer, is vice-president of the corporation and office manager. All of the other officers are lawyers in the firm. All of the corporate shares are held by lawyers in the corporation, except for ten shares held by the executor under the will of a lawyer-member who died one month previously and whose will is now being probated. Delta knows that Veep is an officer and not a lawyer. Is Delta subject to discipline?
- A.
Yes, because Veep is an officer of the corporation.
- B.
Yes, if a nonlawyer holds the stock as the executor of the will of the deceased member.
- C.
No, because Delta is a salaried employee and not a member or shareholder of the corporation.
- D.
No, if Veep does not participate in any decision regarding a client or a client's case.
Correct Answer
A. Yes, because Veep is an officer of the corporation.Explanation
"Under MR 5.4(d), a lawyer may not practice with or in the form of a professional corporation or association authorized to practice law for profit if a non–lawyer is a corporate officer or occupies a position of similar responsibility in any form of association other than a corporation. Here, Delta is subject to discipline because Veep, a non–lawyer, is an officer of a professional corporation engaged in the practice of law.
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- 13.
Plaintiff, who is not a lawyer, is representing himself in small claims court in an action to recover his security deposit from his former landlord. Plaintiff told Attorney, a close friend who lived near him, about this case, but did not ask Attorney for any advice. Attorney said, "I'll give you some free advice. It would help your case if the new tenants would testify that the apartment was in good shape when they moved in, and, contrary to the allegation of your former landlord, it was not, in fact, repainted for them." Plaintiff followed Attorney's advice and won his case. Is Attorney subject to discipline for assisting Plaintiff in preparing for his court appearance?
- A.
Yes, because Attorney assisted Plaintiff in the practice of law.
- B.
Yes, because Attorney offered unsolicited, in-person legal advice.
- C.
No, because Plaintiff was representing himself in the proceedings.
- D.
No, because Attorney was not compensated for his advice.
Correct Answer
C. No, because Plaintiff was representing himself in the proceedings.Explanation
A lawyer may counsel non-lawyers who wish to proceed pro se [MR 5.5, cmt. [3]]. Attorney is not subject to discipline for giving legal advice to Plaintiff because Plaintiff is representing himself.Rate this question:
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- 14.
Attorney placed Associate, recently admitted to the bar, in complete charge of the work of the paralegals in Attorney's office. That work consisted of searching titles to real property, an area in which Associate had no familiarity. Attorney instructed Associate to review the searches prepared by the paralegals, and thereafter to sign Attorney's name to the required certifications of title if Associate was satisfied that the search accurately reflected the condition of the title. This arrangement enabled Attorney to lower office operating expenses. Attorney told Associate that Associate should resolve any legal questions that might arise and not to bother Attorney because Attorney was too busy handling major litigation. Is it proper for Attorney to assign Associate this responsibility?
- A.
Yes, if the paralegals are experienced in searching titles.
- B.
Yes, because Attorney is ultimately liable for the accuracy of the title searches.
- C.
No, unless it enables Attorney to charge lower fees for title certification.
- D.
No, because Attorney is not adequately supervising the work of Associate.
Correct Answer
D. No, because Attorney is not adequately supervising the work of Associate.Explanation
Partners and supervising attorneys must make reasonable efforts to establish internal policies and procedures to provide reasonable assurance all attorneys in their employ comply with ethical rules [MR 5.1, cmt. [2]]. The precise measures required to fulfill the obligations depend on the structure and work of the firm, but should include procedures designed to detect and resolve conflicts of interest, identify dates by which actions must be taken in pending matters so deadlines are not missed, account for client funds and property, and ensure inexperienced lawyers are properly supervised. MR 5.1 requires Attorney to supervise Associate, an inexperienced lawyer. It is improper for Attorney to assign Associate responsibility to review the work of paralegals when Associate is not competent in the area of law.Rate this question:
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- 15.
Although licensed to practice law in State, Attorney Alpha does not practice law but works as an investment broker. Alpha could have elected inactive status as a member of the bar, but chose not to do so. Recently, in connection with a sale of worthless securities, Alpha made materially false representations to Victim, an investment customer. Victim sued Alpha for civil fraud, and a jury returned a verdict in Victim's favor. Alpha did not appeal. Is Alpha subject to discipline?
- A.
Yes, because Alpha was pursuing a non-legal occupation while an active member of the bar.
- B.
Yes, because Alpha's conduct was fraudulent.
- C.
No, because Alpha was not convicted of a crime.
- D.
No, unless the standard of proof in State is the same in lawyer disciplinary cases and civil cases.
Correct Answer
B. Yes, because AlpHa's conduct was fraudulent.Explanation
Under MR 8.4(c), it is professional misconduct for a lawyer to engage in conduct involving dishonesty, fraud, deceit, or misrepresentation. Misconduct need not rise to the level of a crime. Here, in connection with a sale of worthless securities, Alpha engaged in dishonesty, fraud, deceit, or misrepresentation when Alpha made materially false representations to Victim, an investment customer.Rate this question:
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- 16.
Law Firm has 300 lawyers in 10 states. It has placed the supervision of all routine administrative and financial matters in the hands of Admin, a nonlawyer. Admin is paid a regular monthly salary and a year-end bonus of 1% of Law Firm's net income from fees. Organizationally, Admin reports to Attorney, who is the managing partner of Law Firm. Attorney deals with all issues related to Law Firm's supervision of the practice of law. Is it proper for Attorney to participate in Law Firm's use of Admin's services in this fashion?
- A.
Yes, unless Admin has access to client files.
- B.
Yes, if Admin does not control the professional judgment of the lawyers in the firm.
- C.
No, because Law Firm is sharing legal fees with a nonlawyer.
- D.
No, because Law Firm is assisting a nonlawyer in the unauthorized practice of law.
Correct Answer
B. Yes, if Admin does not control the professional judgment of the lawyers in the firm.Explanation
"Under MR 5.4(a), a lawyer or law firm shall not share legal fees with a non-lawyer, except that: (1) an agreement by a lawyer with the lawyer's firm, partner, or associate may provide for the payment of money, over a reasonable period of time after the lawyer's death, to the lawyer's estate or to one or more specified persons, (2) a lawyer who purchases the practice of a deceased, disabled, or disappeared lawyer may, pursuant to the provisions of MR 1.17, pay to the estate or other representative of that lawyer the agreed-upon purchase price, (3) a lawyer or law firm may include non-lawyer employees in a compensation or retirement plan, even though the plan is based in whole or in part on a profit-sharing arrangement, and (4) a lawyer may share court-awarded legal fees with a nonprofit organization that employed, retained or recommended employment of the lawyer in the matter. Under MR 5.4(d), a lawyer shall not practice with or in the form of a professional corporation or association authorized to practice law for a profit, if: (1) a non-lawyer owns any interest therein, except that a fiduciary representative of the estate of a lawyer may hold the stock or interest of the lawyer for a reasonable time during administration, (2) a non-lawyer is a corporate director or officer thereof or occupies the position of similar responsibility in any form of association other than a corporation, or (3) a non-lawyer has the right to direct or control the professional judgment of a lawyer. Here, as long as Admin does not control the professional judgment of lawyers in the firm, use of Admin?s services is proper. Though Admin's compensation comes from the law firm's earned legal fees, it is not regarded as sharing fees.
"Rate this question:
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- 17.
Attorney has a highly efficient staff of paraprofessional legal assistants, all of whom are graduates of recognized legal assistant educational programs. Recently, the statute of limitations ran against a claim of a client of Attorney's when a legal assistant negligently misplaced Client's file and suit was not filed within the time permitted by law. Which of the following correctly states Attorney's professional responsibility?
- A.
Attorney is subject to civil liability and is also subject to discipline on the theory of respondent superior.
- B.
Attorney is subject to civil liability or is subject to discipline at Client's election.
- C.
Attorney is subject to civil liability but is NOT subject to discipline unless Attorney failed to supervise the legal assistant adequately.
- D.
Attorney is NOT subject to civil liability and is NOT subject to discipline if Attorney personally was not negligent.
Correct Answer
C. Attorney is subject to civil liability but is NOT subject to discipline unless Attorney failed to supervise the legal assistant adequately.Explanation
Professional discipline and civil liability for legal malpractice are two possible consequences of incompetent or neglected legal work. A malpractice action differs from discipline as follows: (1) the forum is a civil court, not a disciplinary tribunal, (2) the lawyer's adversary is an injured plaintiff, not the state bar, and (3) the purpose is to compensate the injured plaintiff, not to punish the lawyer or protect the public against future wrongs relating to the same or similar misconduct. A lawyer is responsible for overseeing the work of non-lawyer assistants and is subject to discipline under MR 5.3(c)(2) if: (1) the lawyer orders or, with the knowledge of the specific conduct, ratifies the conduct involved, or (2) the lawyer is a partner or has comparable managerial authority in the law firm in which the person is employed, or has direct supervisory authority over the person, and knows of the conduct at a time when its consequences can be avoided or mitigated but fails to take reasonable remedial action. Here, the statute of limitations ran against a claim of a client of Attorney's when a legal assistant, a non-lawyer, negligently misplaced Client's file. The missing of the statute of limitations may result in injury to Client so Attorney may be subject to civil liability. If Attorney failed to supervise the legal assistant, Attorney may be subject to discipline under MR 5.3(c)(2).Rate this question:
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- 18.
Attorney, who is corporate counsel for Company, is investigating a possible theft ring in the parts department of Company. Attorney knows that Employee has worked in the parts department for a long time and believes that Employee is a suspect in the thefts. Attorney believes that if Employee were questioned, Employee would not answer truthfully if she knew the real purpose of the questions. Attorney plans to question Employee and falsely tell her that she is not a suspect and that her answers to the questions will be held in confidence. Is Attorney subject to discipline if she so questions Employee?
- A.
Yes, because Attorney's conduct involves misrepresentation.
- B.
Yes, unless Attorney first advises Employee to obtain counsel to represent Employee.
- C.
No, because no legal proceedings are now pending.
- D.
No, because Attorney did not give legal advice to Employee.
Correct Answer
A. Yes, because Attorney's conduct involves misrepresentation.Explanation
"Under MR 8.4, it is impermissible for a lawyer to engage in conduct involving dishonesty, fraud, deceit, or misrepresentation. In this case, Attorney plans to falsely tell Employee she is not a suspect in theft, and that her answers to questions will be held in confidence. As such, Attorney would be subject to discipline if she so questions Employee.
"Rate this question:
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