I Doctrinal Framework

A Chapter 6 problem should proceed through a structured sequence.

II. Safekeeping Client and Third-Party Property

A lawyer must keep client and third-party property separate from the lawyer’s own property. This is one of the clearest and most important professional duties. Money belonging to clients or third persons must generally be placed in a client trust account, not in the lawyer’s personal account or law firm operating account.

The duty applies to settlement proceeds, escrow funds, filing-fee advances, unearned fees that must be held until earned, client documents, securities, physical property, and money subject to third-party claims. The lawyer must identify who has an interest in the property and protect that interest until proper distribution.

Safekeeping duties include separation, notification, delivery, accounting, and recordkeeping. When a lawyer receives funds or property in which a client or third person has an interest, the lawyer must promptly notify the interested person. The lawyer must promptly deliver funds or property the person is entitled to receive and provide a full accounting when requested.

The duty is fiduciary in nature. A lawyer does not hold client money as ordinary business income until earned or distributed. The lawyer holds it in trust.

III. Trust Accounts, Commingling, and Conversion

Two trust-account violations are especially important: commingling and conversion.

Trust-account duties are strict because mishandling client money threatens public confidence in the profession. Few violations are treated more seriously than misuse of client funds.

IV. Unearned Fees and Advance Payments

Unearned fees and advance payments may need to be held in trust until earned, depending on the fee structure and jurisdiction. The key distinction is whether the money already belongs to the lawyer or remains client property until earned.

If a client pays an advance against future hourly fees, the unearned portion commonly remains client property and should be held in trust until earned. As work is performed, the lawyer may transfer earned amounts to the operating account. If the representation ends before the full advance is earned, the unearned portion must be returned.

Some jurisdictions recognize special fee structures, such as flat fees or availability retainers, that may be treated differently if properly explained and agreed to. For MPRE purposes, the safest principle is this: funds that have not yet been earned and still belong to the client must not be treated as the lawyer’s money.

A lawyer must explain fee arrangements clearly. Confusion about whether funds are earned on receipt can create disciplinary risk, especially if the lawyer deposits the money directly into an operating account and then fails to refund any unearned portion.

V. Settlement Funds and Third-Party Claims

Settlement funds require careful handling. When a lawyer receives a settlement check payable to the client and lawyer, the lawyer must place the funds in trust, notify interested persons, account for the funds, and distribute them properly.

Problems arise when more than one person claims an interest. A medical provider may have a lawful lien. A litigation funder may assert a contractual claim. The lawyer may claim a fee. The client may demand immediate payment. The lawyer must not simply ignore valid third-party interests.

If a third party has a lawful claim to funds in the lawyer’s possession, the lawyer may need to protect that claim even if the client wants all money immediately. The lawyer should distribute undisputed amounts promptly and keep disputed funds separate until the dispute is resolved.

This does not mean the lawyer must honor every unsupported demand. If a third party has no lawful claim, the lawyer generally should not withhold the client’s money merely because someone asks. The lawyer’s task is to identify legitimate interests and protect disputed funds appropriately.

VI. Disputed Funds

Disputed funds must remain separated until the dispute is resolved. If the lawyer and client dispute part of a fee, the lawyer may not simply transfer the entire disputed amount to the operating account. Nor may the client automatically receive funds that are subject to a legitimate fee dispute or third-party claim.

The usual approach is to distribute the undisputed portion and hold the disputed portion in trust. The parties can then resolve the dispute through agreement, fee arbitration, court process, or other lawful procedure.

For example, if the lawyer claims a $20,000 fee, the client agrees that $15,000 is owed, and the client disputes $5,000, the lawyer should distribute the undisputed funds appropriately and hold the disputed $5,000 in trust until resolved.

VII Advertising and Communications About Legal Services

A lawyer must not make false or misleading communications about the lawyer or the lawyer’s services. This is the central rule governing advertising, websites, social media, mailers, television ads, online profiles, firm names, trade names, and public descriptions of legal services.

A statement is misleading if it contains a material misrepresentation of fact or law or omits a fact necessary to make the statement not materially misleading. The rule applies not only to outright lies but also to half-truths, unjustified expectations, unsupported comparisons, and implications of improper influence.

Lawyers may advertise. The modern rules do not treat advertising as inherently improper. Public communication can help people find legal help. But advertising must be truthful, accurate, and not misleading.

A lawyer may state practice areas, contact information, office location, fees, languages spoken, bar admissions, education, experience, and types of matters handled. A lawyer may say, “I handle bankruptcy cases” or “Our firm represents injured workers,” if true.

The problems arise with claims like “best lawyer in the state,” “guaranteed victory,” “we never lose,” or “the judge listens to us.” Such statements may create unjustified expectations, imply improper influence, or lack factual support.

VIII. Fields of Practice and Specialization

A lawyer may communicate that the lawyer practices in particular fields. A lawyer may say the lawyer practices family law, criminal defense, tax, immigration, estate planning, or personal injury if the statement is truthful.

Specialization claims require more caution. A lawyer may claim certification as a specialist only if the certification is from an appropriate recognized organization and the communication identifies the organization accurately. The public may place special trust in claims of certification, so the statement must be clear and not misleading.

For example, “Certified Specialist in Tax Law by [recognized certifying organization]” may be permissible if accurate. “Tax law expert” or “certified tax specialist” may be misleading if no proper certification exists or if the statement implies recognition that the lawyer does not have.

IX. Solicitation

Solicitation is more restricted than advertising. Advertising usually involves general communication to the public. Solicitation involves targeted contact with a person known to need legal services in a particular matter.

Direct, live person-to-person solicitation for pecuniary gain is generally prohibited when directed to someone known to need legal services in a particular matter, unless an exception applies. Exceptions commonly include contacting another lawyer, a family member, a close personal friend, a prior business or professional contact, or another person within a recognized exception.

The concern is pressure. A person who has just been arrested, injured, sued, fired, or served with legal papers may be vulnerable. A live phone call, in-person visit, or real-time electronic contact may pressure the person before there is time for reflection.

Solicitation is also improper if the target has made known a desire not to be solicited or if the solicitation involves coercion, duress, or harassment. Even a communication that might otherwise be allowed becomes improper when it disregards a person’s request to be left alone or uses intimidation.

X. Advertising Compared to Solicitation

The distinction between advertising and solicitation is highly testable.

XI. Referrals, Lead Generation, and Independence

Referral and lead-generation arrangements must not compromise lawyer independence, involve improper fee sharing, or mislead clients.

A lawyer may participate in certain qualified referral services if the arrangement is properly structured. A lawyer may pay reasonable advertising costs. A lawyer may also participate in referral arrangements allowed by the rules, such as nonexclusive reciprocal referral arrangements if the client is informed and professional judgment remains independent.

But a lawyer generally may not pay someone simply for recommending the lawyer’s services in a way that turns referrals into purchased influence. Nor may a lead generator mislead prospective clients by pretending to be neutral if it is paid to steer clients to particular lawyers.

The key questions are whether the client is misled, whether the lawyer’s judgment remains independent, and whether the arrangement improperly shares legal fees or pays for recommendations.

XII. Firm Names and Public Identity

A law firm name, trade name, letterhead, website, and professional designation must not be false or misleading. A firm may not imply that lawyers practice together when they do not. A private firm may not imply government affiliation. A lawyer may not use a name suggesting a public agency or charitable organization if the practice is private and for profit.

Firm identity matters because clients rely on it. A person choosing a lawyer should know who is responsible for the legal services and whether the firm actually has the affiliation or experience it claims.

XIII Truthfulness in Statements to Others

A lawyer must be truthful when dealing with others on a client’s behalf. The lawyer must not knowingly make false statements of material fact or law.

This rule does not require revealing every negotiating position, bottom line, or estimate of value. Some negotiation statements are treated as nonmaterial puffing. A lawyer may say, “My client will not settle for less than $500,000,” even if the client might consider less, because bargaining positions are not usually treated as statements of material fact.

But a lawyer may not lie about material facts. A lawyer may not falsely say that a document has been signed, that funds have been deposited, that a witness exists, that insurance coverage is unavailable, or that a person is alive when the lawyer knows otherwise.

Truthfulness also interacts with confidentiality. A lawyer may sometimes remain silent, but may not use silence or half-truths to assist a client’s crime or fraud.

XIV. Respect for Rights of Third Persons

A lawyer must respect the rights of third persons. The lawyer may not use means that have no substantial purpose other than to embarrass, delay, or burden. The lawyer also may not use methods of obtaining evidence that violate legal rights.

This rule governs investigation, negotiation, witness contact, document collection, and communications with outsiders. A lawyer may investigate aggressively. A lawyer may interview witnesses, request documents, hire investigators, and conduct lawful searches. But the lawyer may not harass, trespass, invade privileged communications, or obtain evidence through unlawful means.

XV. Lawyer Roles: Advisor, Evaluator, Negotiator, and Neutral

A lawyer may serve in different professional roles. The lawyer may be an advisor, evaluator, negotiator, arbitrator, mediator, or third-party neutral. Each role carries different responsibilities, and role confusion creates ethics problems.

• As advisor, a lawyer may refer not only to law but also to moral, economic, social, and political considerations relevant to the client’s situation. Good legal advice often requires practical judgment. A lawyer may discuss those considerations without imposing personal values.
• As evaluator, a lawyer may provide an evaluation for use by a third person if the lawyer reasonably believes the evaluation is compatible with other aspects of the client relationship. If the evaluation is likely to materially and adversely affect the client, the lawyer must obtain informed consent.
• As negotiator, the lawyer represents the client’s interests but must remain truthful about material facts and law.
• As mediator, arbitrator, or third-party neutral, the lawyer does not represent all participants merely by serving in that role. The lawyer must clarify the role, especially when participants may misunderstand whether the lawyer is protecting their individual interests.

XVI. Duties to the Public and Legal System

Lawyers also have duties to the public and legal system. These duties may be lower-percentage MPRE areas, but they are often straightforward.

Lawyers should support access to justice and may have responsibilities concerning court appointments. A lawyer generally should not seek to avoid appointment by a tribunal except for good cause, such as likely violation of the rules, unreasonable financial burden, or inability to handle the matter competently.

Lawyers must avoid improper influence on government officials. A lawyer may advocate before agencies, legislatures, and public bodies, but may not offer unlawful inducements or imply improper access.

Lawyers must not make statements about judges or adjudicative officers that the lawyer knows are false or makes with reckless disregard for truth or falsity. Criticism of courts is not forbidden, but reckless false accusations undermine public confidence in the legal system.

Lawyers must also be careful with political contributions made to obtain government legal engagements or judicial appointments. Contributions may be lawful in political life, but they may not be used as improper payment for legal work or appointments.

XVII Judicial Conduct

Judicial conduct is tested on the MPRE because judges hold public power and must preserve confidence in impartial justice. Judges must maintain independence, integrity, and impartiality. They must perform duties competently, diligently, and impartially. They must avoid impropriety and the appearance of impropriety.

XVIII. Ex Parte Communications, Gifts, and Public Comments

Ex parte communications are a common judicial-conduct issue. A judge generally must not initiate, permit, or consider private communications about a pending or impending matter unless an exception applies. Limited exceptions may exist for scheduling, administrative matters, emergencies, settlement discussions with consent, or communications authorized by law. Even then, the judge must avoid unfairness and often must notify the parties.

Judges must be careful with gifts. Gifts may create actual or apparent influence. The rules regulate what gifts judges may accept, from whom, and under what circumstances.

Judges must also avoid public comments that could affect pending or impending proceedings. A judge should not publicly preview how she would rule in a pending case, criticize parties in a matter before the court, or make statements undermining impartiality.

XIX. Judicial Campaign Activity

Judicial candidates may discuss qualifications, experience, and general judicial philosophy, but they must avoid pledges, promises, or commitments inconsistent with impartial performance of judicial duties.

A judicial candidate may say, “I believe courts should apply the law fairly and efficiently.” A candidate should not say, “I will always rule against criminal defendants,” or “I will never award punitive damages.” Those promises suggest the candidate has prejudged future cases.

Campaign activity, endorsements, fundraising, political involvement, and public statements are regulated to preserve public confidence in judicial independence.

XXI. Bar-Style Analysis Notes

• For safekeeping property, ask whose property it is, where it must be held, who must be notified, what must be delivered, whether an accounting is required, and whether any funds are disputed.
• For trust accounts, distinguish commingling from conversion. Mixing funds is improper; using client funds is even more serious.
• For advertising, ask whether the statement is false, misleading, unsupported, or likely to create unjustified expectations.
• For solicitation, ask whether the lawyer used live person-to-person contact for pecuniary gain toward someone known to need legal services in a particular matter, and whether an exception applies.
• For referral and lead-generation issues, ask whether the arrangement misleads clients, compromises independence, or improperly pays for recommendations.
• For nonclient communications, ask whether the lawyer knowingly made a false statement of material fact or law or violated third-person rights.
• For lawyer roles, ask whether the lawyer clarified the role and avoided confusion about representation and confidentiality.
• For public duties, ask whether the lawyer improperly influenced officials, made reckless false statements about judges, or failed to respect access-to-justice obligations.
• For judicial conduct, ask whether independence, integrity, impartiality, disqualification, ex parte limits, gifts, campaign activity, or public comments are implicated.