BarMax MPRE Study Guide

VIII. Different Roles of the Lawyer (4% to 10%) A. Lawyer as Advisor 1. Duty to Render Candid Legal Advice in representing a client, a lawyer shall exercise independent professional judgment and render candid advice. 2. Advice Beyond the Law in rendering advice, a lawyer may refer not only to law but to other considerations such as moral, economic, social and political factors that may be relevant to the client's situation. 3. Criminal Conduct = NO a lawyer shall not advise a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent. ! Legal Consequences of Any Proposed Course of Conduct = YES a lawyer, however, may discuss the legal consequences of any proposed course of conduct with a client and may counsel or assist a client to make a good faith effort to determine the validity, scope, meaning or application of the law (e.g. no one has ever been prosecuted for this.).

4. Volunteering Advice in general, a lawyer is not expected to give advice until asked by the client. However, when a lawyer knows that a client proposes a course of action that is likely to result in substantial adverse legal consequences to the client, the lawyer's Duty to Communicate to the client may require that the lawyer offer advice if the client's course of action is related to the representation. B. Lawyer as Evaluator a lawyer may provide an evaluation of a matter affecting a client for the use of someone other than the client if the lawyer reasonably believes that making the evaluation is compatible with other aspects of the lawyer's relationship with the client. 1. Evaluation Materially Adverse to Clients Interests when the lawyer knows or reasonably should know that the evaluation is likely to affect the client's interests materially and adversely, the lawyer shall not provide the evaluation unless the client gives informed consent. C. Lawyer as Negotiator 1. Truthfulness in Statements to Others in the course of representing a client, a lawyer shall not knowingly make a false statement of material fact or law to a third person. ! No Duty to Disclose a lawyer is required to be truthful when dealing with others on a clients behalf, but generally has no affirmative duty to inform an opposing party of relevant facts. o Exception: Criminal or Fraudulent Act By Client a lawyer shall not knowingly fail to disclose a material fact to a third person when disclosure is necessary to avoid assisting a criminal or fraudulent act by a client, unless disclosure is prohibited by the duty of confidentiality.

2. Subjective Statements this rule only refers to statements of fact not subjective statements. Whether a particular statement should be regarded as one of fact can depend on the circumstances. Under generally accepted conventions in negotiation, certain types of statements ordinarily are not taken as statements of material fact. Estimates of price or value placed on the subject of a transaction and a partys intentions as to an acceptable settlement of a claim are ordinarily in this category, and so is the existence of an undisclosed principal except where nondisclosure of the principal would constitute fraud. Lawyers should be mindful of their ! "!

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BarMax MPRE Study Guide

obligations under applicable law to avoid criminal and tortious misrepresentation. D. Lawyer as Arbitrator, Mediator, or Other Third Party Neutral if the lawyer reasonably believes she can represent the interest of each party effectively, the attorney discloses her role to both and the lawyer does not engage in representation of one of the parties, a lawyer may act as an arbitrator, mediator or neutral third party between parties. E. Special Responsibilities of a Prosecutor 1. Refrain from Prosecuting without Probable Cause the prosecutor in a criminal case shall refrain from prosecuting a charge that the prosecutor knows is not supported by probable cause. 2. Protect the Accused Right to Counsel the prosecutor in a criminal case shall make reasonable efforts to assure that the accused has been advised of the right to, and the procedure for obtaining, counsel and has been given reasonable opportunity to obtain counsel. ! Advised of o Right to Counsel AND o Procedure for Obtaining Counsel AND ! Reasonable Opportunity to Obtain Counsel 3. Shall Not Seek Waiver of Pretrial Rights from Unrepresented Accused the prosecutor in a criminal case shall not seek to obtain from an unrepresented accused a waiver of important pretrial rights, such as the right to a preliminary hearing. 4. Make Timely Disclosure of Potentially Exculpatory to Defense the prosecutor in a criminal case shall make timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense, and, in connection with sentencing, disclose to the defense and to the tribunal all unprivileged mitigating information known to the prosecutor, except when the prosecutor is relieved of this responsibility by a protective order of the tribunal. ! Negate the Guilt of the Accused or Mitigate the Offense OR ! Mitigate Sentencing 5. Shall Not Subpoena Another Lawyer a prosecutor shall not subpoena a lawyer in a grand jury or other criminal proceeding to present evidence about a past or present client unless the prosecutor reasonably believes: ! Info Sought Not Protected By Privilege the information sought is not protected from disclosure by any applicable privilege; ! Info Sought Essential to Successful Completion of an Ongoing Investigation the evidence sought is essential to the successful completion of an ongoing investigation or prosecution; AND ! No Feasible Alternative there is no other feasible alternative to obtain the information. 6. Refrain from Making Public Statements with Substantial Likelihood of Heightening Public Condemnation of the Accused except for statements that are necessary to inform the public of the nature and extent of the prosecutor's action and that serve a legitimate law enforcement ! #!

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BarMax MPRE Study Guide

purpose, a prosecutor shall refrain from making extrajudicial comments that have a substantial likelihood of heightening public condemnation of the accused and exercise reasonable care to prevent investigators, law enforcement personnel, employees or other persons assisting or associated with the prosecutor in a criminal case from making an extrajudicial statement that the prosecutor would be prohibited from making.

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