Understanding MPRE Keywords and Phrases
One aspect of the MPRE that students often overlook is how the question is asked. When students have to re-take the MPRE we often hear that they never realized that the National Conference of Bar Examiners provides a breakdown of the “keywords and phrases” that often appear in the call of the question. Understanding these keywords and phrases will help ensure you get a passing score on the MPRE!
Understanding MPRE Keywords and Phrases
Subject to Discipline
One of the most common questions on the MPRE is “Is the lawyer subject to discipline”? This is basically the same as asking whether the lawyer’s conduct violates the ABA Model Rules of Professional Conduct. (If the question asks whether a judge is subject to discipline, it is generally asking whether the judge has violated the ABA Model Code of Judicial Conduct).
It generally is not enough to go with your “gut instinct” if you see this question. Thorough knowledge of the ABA Model Rules of Professional Conduct will best help you answer this question. For instance, whether a lawyer is subject to discipline for failing to report the misconduct of another lawyer turns on whether the lawyer “knows” or simply “believes” that the other lawyer has committed misconduct. Model Rule 8.3. Knowing the nuances of the rule will allow you to more easily answer this question!
Another tip if you see this question is to keep in mind who can be subject to discipline. The ABA Model Rules of Professional Conduct regulate the conduct of lawyers. Thus non-lawyers and law firms are not “subject to discipline” under the rules!
Subject to Litigation Sanction
This question looks at whether the lawyer or the lawyer’s firm (note that this question also applies to firms, unlike “subject to discipline”!) could face discipline from the court or tribunal for its actions or conduct. Some of the potential sanctions that a lawyer or firm might face include fines, fee forfeiture, disqualification, and punishment for contempt.
Conduct that could put a lawyer or firm in jeopardy of litigation sanctions does not have to amount to a violation of the ABA Model Rules of Professional Conduct. Something like failing to respond to discovery on time could subject a lawyer or law firm to litigation sanctions.
Subject to Disqualification
This question also applies to both lawyers and law firms. This question asks whether the conduct subjects the lawyer or firm to disqualification from the matter. When might a lawyer be subject to disqualification?
A lawyer or firm does not necessarily have to violate the ABA Model Rules of Professional Conduct to be subject to disqualification. For instance, knowing that a conflict will arise would subject the lawyer to disqualification, even if the conflict has not yet arisen and there is not yet a violation of the ABA Rules of Professional Conduct.
Subject to Civil Liability
Whether a lawyer or law firm is “subject to civil liability” is another common question that appears on the MPRE. In understanding when a lawyer or firm is subject to civil liability, it is important to understand the distinction between this question and the question that asks whether a lawyer is “subject to discipline.” Disciplinary proceedings can only be brought against a lawyer, not a firm. They are generally brought by the state bar association as a result of a complaint (or grievance) filed by another person. The purpose of the disciplinary hearing is usually to punish the lawyer.
On the other hand, civil liability can be assessed against both lawyers and law firms. A lawyer is generally subject to civil liability if he or she commits some tort or breaches a contract. For instance, a lawyer who commits legal malpractice (essentially, negligence) can be subject to civil liability! If this is the case, ask yourself whether the elements of negligence are present: duty, breach, causation, and harm. Similarly, a lawyer who breaches a contract with a client could be subject to civil liability to that client.
Unlike discipline, the purpose of civil liability is not to punish the lawyer, but rather to remedy the client. Civil liability actions are generally instituted by the client in court (rather than by the state bar association). They result in money paid to remedy the client’s damages. Note: in order to be subject to civil liability for malpractice, the client must show that they suffered damages (indeed, it is an element of negligence!). This is not the case for if the lawyer is subject to discipline — the client need not have suffered any harm.
Subject to Criminal Liability
A question that asks whether a lawyer is “subject to criminal liability” is not generally asking whether the lawyer has violated the ABA Model Rules of Professional Conduct. Rather, this question asks whether the lawyer has committed some crime. Think about the crimes you learned in criminal law. Fraud, destruction of evidence, and obstruction of justice are all crimes that a lawyer could potentially commit (or help a client commit) that would subject that lawyer to criminal liability!
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