Six Tricky MPRE Rules You Need To Know
The Multistate Profession Responsibility Exam (or “MPRE”) tests the Model Rules of Professional Conduct. Some of those rules are tricky! In this post, we identify 6 tricky rules that you need to know for the MPRE!
Six Tricky MPRE Rules You Need To Know
1. Know when a lawyer has to report the misconduct of another lawyer.
Model Rule 8.3(a) states, “A lawyer who knows that another lawyer has committed a violation of the Rules of Professional Conduct that raises a substantial question as to that lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects, shall inform the appropriate professional authority.”
It is important to be familiar with the exact language of this rule! There are two key takeaways: First, the lawyer must know that the other lawyer has committed a violation. Pursuant to the Rules, “‘knows’ denotes actual knowledge of the fact in question.” This means that a lawyer who has a mere belief that another lawyer has committed a violation of the rules is not mandated to report that believed violation.
The second takeaway is that the lawyer need only report the violation if the violation “raises a substantial question as to the [other] lawyer’s honesty, trustworthiness or fitness as a lawyer . . .” In other words, minor or trivial violations of the Model Rules do not invoke the mandatory reporting requirement, even if another lawyer knows of those minor or trivial violations. In order to understand what a “substantial” violation is, it is helpful to review practice questions and examples! For instance, improper solicitation of a potential client immediately after a car accident is probably not a “substantial” violation of the Rules. On the other hand, double-billing a client is certainly a substantial violation!
2. Understand when a subordinate lawyer does not violate the MRPC.
Model Rule 5.2(b) states, “A subordinate lawyer does not violate the Rules of Professional Conduct if that lawyer acts in accordance with a supervisory lawyer’s reasonable resolution of an arguable question of professional duty.”
That does NOT mean that a subordinate lawyer is off the hook for simply following the direction of a supervising attorney! The supervising attorney’s guidance must be a reasonable resolution of an arguable question of professional duty. If a supervising attorney tells a subordinate attorney to do something that is a blatant violation of the Model Rules (e.g., destroy evidence), the subordinate attorney has still violated the rules himself! However, if there is a “close call” scenario and a supervising attorney provides reasonable guidance as to what the subordinate attorney should do, if it turns out that the suggested course of action constitutes a violation of the rules, the subordinate attorney will not be deemed to have violated the rules.
3. Know the nuances of contingency fees.
There are multiple nuanced rules regarding contingency fees that are commonly tested on the MPRE! First, know what steps must be taken in order to have a contingency fee agreement. A contingency fee must be in writing, and the writing must include exactly how the fee will be calculated.
Additionally, there are certain types of cases where contingency fees are not allowed. This includes criminal cases and certain domestic relations cases. One common mistake that students make is assuming that contingency fees are not allowed in any domestic relations cases. That is simply not true! Contingency fees are only disallowed for domestic relations cases, “the payment or amount of which is contingent upon the securing of a divorce or upon the amount of alimony or support, or property settlement in lieu thereof . . .” In other words, no contingency fees for the initial divorce matter, child custody matter, or spousal support/property distribution matters. However, if a lawyer is hired to help a client collect an already determined amount of alimony or child support, a contingent fee would be permitted under the model rules!
4. Know what a plaintiff must prove to establish a legal malpractice claim.
Legal Malpractice is essentially a claim for negligence. In order to prevail, the client/plaintiff will need to show duty, breach, causation, and damages.
Watch out for scenarios where one (or more) of these elements is missing! For instance, if the lawyer violated the rules, but the client does not have any damages, the client likely will not prevail in a legal malpractice lawsuit.
The element of causation is also commonly tested. In order to prove causation, the client/plaintiff must prove that the injury would not have happened but for the defendant’s negligence and that such an injury was foreseeable. This often means that the plaintiff has to prove that he or she would have won the underlying case had it not been for the attorney’s negligence! So if an attorney neglects to file a complaint on time, but the client likely would not have won the case anyway, the client will not succeed in a legal malpractice claim. (However, the attorney may be subject to discpline!)
5. Understand the consequences of the lawyer having to serve as a witness.
Model Rule 3.7(a) states, “A lawyer shall not act as advocate at a trial in which the lawyer is likely to be a necessary witness unless: (1) the testimony relates to an uncontested issue; (2) the testimony relates to the nature and value of legal services rendered in the case; or (3) disqualification of the lawyer would work substantial hardship on the client.”
Students often erroneously read this rule to mean that a lawyer who has personal knowledge regarding a case for which he is acting as an advocate may not testify. However, that is not the proper remedy! If the lawyer has knowledge of the facts of a case in which he is acting as an advocate, he must testify if he is subpoenaed to do so! The remedy in such a situation is that the lawyer must be disqualified from continuing to act as an advocate in that matter unless “the disqualification would work substantial hardship on the client.”
6. Be familiar with what makes an advertisement “false or misleading.”
Model Rule 1.7 prohibits a lawyer from making “a false or misleading communication about the lawyer or the lawyer’s services.” The comments to this rule provide some helpful examples of what would constitute “false or misleading” information. For instance:
- A statement about success for past clients is misleading if it would lead potential clients to believe they should expect the same results.
- An unsubstantiated comparison of the lawyer’s services or fees to other firms may be misleading if it is so specific as to lead a reasonable person to conclude that it can be substantiated (for instance, “we have the lowest fees in the city!” would be misleading).
- Even true statements can be misleading if there is a substantial likelihood that a reasonable person would interpret it to reach an untrue factual conclusion.
- The name of a law firm is misleading if it states or implies a connection with a government agency, with a deceased lawyer who was not a former member of the firm, with a lawyer not associated with the firm or a predecessor firm, with a nonlawyer or with a public or charitable legal services organization.
Review practice questions to gain exposure to specific examples of the type of language that is false or misleading. As you practice, it is important to use real, released MPRE questions! Check out our post for more information on Where to Find Real MPRE Questions!
We hope this post on tricky MPRE rules helps you pass the exam!
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