For the second time in a year I’m studying for a test that constitutes part of admission to the New York bar.
This one goes by the name of Multistate Professional Responsibility Exam (MPRE). It has 60 multiple-choice questions and tests knowledge of the rules of professional and judicial conduct.
Alert: reading about the bar exam may feel, to borrow a word from the novelist (and lawyer) Ayelet Waldman, “spinachy.”
I had forgotten about the MPRE when I set out a year ago to pass the bar exam and apply for a law license here in the Empire State. Last fall, I received a letter advising me that I passed, but the letter went on to say that the examiners would hold off on certifying me for admission until I passed the MPRE too.
Oh. That.
Thus, I’m studying for the MPRE, which takes place on March 28. Spinachy. Still, the material illuminates something about the law that appeals to me.
For example, you may have heard it said that a lawyer should represent his or her client zealously. That matters in our adversary system, which assumes that opposing sides, represented zealously within the bounds of law, will produce justice.
However, a lawyer also owes a duty of candor to the court. According to the rules, an attorney is subject to discipline for knowingly failing “to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel.”
Suppose you represent a client in a New York court, and your opponent fails to call the court’s attention to a case from the state’s Court of Appeals that directly counters a position taken by your client. You must cite the case.
That doesn’t mean that you have an obligation to volunteer facts that are harmful to your client – we trust the opposing side to handle that – or that you have to cite a case from Virginia, for example, here in New York. But it does mean that you have a responsibility to the tribunal that transcends even your duty to your client.
In short, press for advantage but remember that you have a responsibility to act ethically.