2015
FALL
PROFESSIONAL RESPONSIBILITY
COURSE
(PROF. STEVENSON)
Q & A SUPPLEMENTAL
MATERIALS
© 2015 DRU STEVENSON
0
Note for students: These questions have the same format and style as the questions on the
current Multistate Professional Responsibility Exam (MPRE). The multiple-choice format
also provides a useful way to test students’ knowledge of each provision or clause in each
of the Model Rules, as well as the drafters’ official Comments (which the MPRE tests
along with the Model Rules themselves).
This particular archive of questions was a draft version for the author’s recently-published
Glannon Guide to Professional Responsibility, and approximately 1/3 of the questions in
this book are also in the Glannon Guide. The Glannon Guide provides detailed
explanations for each of its questions, as well as a helpful introduction to each topic. This
book provides only an answer key, but has more questions. All the questions will be very
useful in preparing for the exam in Professor Stevenson’s course, as well as the MPRE
itself.
1
Table of Contents
PART I: MATERIAL COVERED ON THE MID-TERM EXAM AND
FINAL EXAM…………………….3
1. Conflicts of interest…………………………………………..4
2. The client-lawyer relationship………………………….…..57
3. Litigation and other forms of advocacy……………………97
4. Competence, legal malpractice, and other civil liability….141
5. Client confidentiality……………………………………..…158
PART II: MATERIAL COVERED ONLY ON THE FINAL
EXAM….178
6. Regulation of the legal profession…….179
7. Communications about legal services…222
8. Different roles of the lawyer…………...246
9. Transactions and communications with persons other than
clients…267
10.Safekeeping funds and other property...275
2
PART I:
MATERIAL
COVERED BY
MID-SEMESTER
3
QUESTIONS ABOUT CONFLICTS
Rules 1.7-1.12
Rule 1.7
Conflict of Interest: Current Clients
1. Attorney had been representing Client in a purely transactional matter, drafting
incorporation documents for Client’s business, as well as other commercial lease and
sale agreements. None of Attorney’s work for Client has involved information about
the Client’s finances or assets. As a result, Attorney did not know anything about the
average income, assets, or insurance of Client’s business, or even for Client personally,
except that he has duly incorporated the business under state law. On a wholly
unrelated matter, Victim approached Attorney seeking representation for a lawsuit over
damage to Victim’s expensive car in a parking lot when Client negligently scraped
Victim’s car while trying to back out of a parking space with his own vehicle. During
the initial interview, Victim gave very few details about the accident or the scope of
damages, except to identify Client as the intended defendant and that the incident
involved a scraped fender in a restaurant parking lot. The attorney believed there was
no significant risk that the representation of Client would materially limit the
Attorney’s responsibilities to Victim, and vice-versa. The attorney’s representation of
Client involved only the drafting of a few standard documents for Client’s business,
and Victim’s claim did not relate to the business at all, but to Client’s conduct outside
of work while driving his personal car in a parking lot. Because the attorney believed
there was no conflict here, he did not seek consent from either party, although he
mentioned to Victim that he had drafted some documents for Client’s business, and
Client would obviously learn about the representation of Victim when Attorney filed
the lawsuit. May an attorney proceed with representing Victim in this case?
a) Yes, because there is no conflict when a lawyer acts as an advocate in one matter
against a person the lawyer represents in some other matter, as long as the matters
are wholly unrelated.
b) Yes, because Attorney did not receive any relevant confidential information from
either party so far that he could use against the other in the anticipated litigation.
c) No, because absent consent, a lawyer may not act as an advocate in one matter
against a person the lawyer represents in some other matter, even when the matters
are wholly unrelated.
d) No, because Attorney already violated the rules of confidentiality by telling Victim
about how he drafted business documents for Client.
2. Attorney has been representing Client in a simple adoption of an orphan from
Zimbabwe. Corporation then hires Attorney to defend it against a defective-products
lawsuit brought by Victim, whom Attorney does not represent. During the discovery
phase of litigation, before trial, Victim’s lawyers disclose the list of witnesses they plan
to call to support Victim’s claims of injuries and the scope of damages. Attorney
notices that Client, for whom he has been handling an adoption matter, is going to
testify at trial in support of Victim’s claims, against Corporation. Client is still unaware
that Attorney is representing Corporation, and Client is merely testifying as a friend of
4
Victim about Victim’s character traits of caution and care, and the suffering Victim has
endured since the incident with Corporation’s defective product. Attorney was not
aware that Client even knew Victim, and unsurprisingly did not obtain consent from
Client, Corporation, or Victim about this issue. Is Attorney subject to disqualification
in this case?
a) Yes, because a lawyer who normally handles adoptions is probably not competent
to represent a corporation in litigation over defective products.
b) Yes, a directly adverse conflict may arise when a lawyer is required to crossexamine a client who appears as a witness in a lawsuit involving another client, as
when the testimony will be damaging to the client who is represented in the lawsuit.
c) No, because Client is merely a witness in the matter and not a party to the litigation,
so Client’s interests are not directly adverse to Attorney’s other client, Corporation.
d) No, because neither Client nor Attorney were aware, or could have been aware, that
Client would end up testifying in a case in support of a party to whom Attorney
would be opposing counsel.
3. Attorney is representing two French restaurants located across the street from each
other; the restaurants are bitter rivals and have sued each other in the past, using other
lawyers. They are the only French restaurants in that area, so they compete for the
same customers – their menus, décor, and prices are very similar. The owners were
childhood friends who became sworn enemies as adults when one started a restaurant
to compete with the other. Attorney represents one French restaurant in a dispute with
its landlord, and the other French restaurant in a lawsuit by a former employee who
claims she was wrongfully terminated for discriminatory reasons. When each French
restaurant learns that Attorney represents the other, they both express deep dismay and
some sense of betrayal, given that each is the other’s worst enemy. One of the French
restaurants believes Attorney has a conflict of interest and complains to the state bar.
The other French restaurant, when it loses its lawsuit with its former employee, sues
Attorney claiming that he had a conflict of interest in the representation. Does Attorney
have a conflict of interest here?
a) Yes, simultaneous representation in unrelated matters of clients whose interests are
economically adverse, such as representation of competing economic enterprises in
unrelated litigation, ordinarily constitutes a conflict of interest and requires consent
of the respective clients.
b) Yes, the state bar will use a subjective test for determining a conflict of interest –
whether the client would feel betrayed or perceive a conflict in the situation – and
could sanction Attorney, but the conflict here does not reach the level of
malpractice.
c) No, the fact that one client resorted to a malpractice tort claim precludes the state
bar from pursuing disciplinary action against the Attorney; and the malpractice
claim will fail as the lawyer’s conduct could not have changed the outcome of the
underlying employment case, which depended entirely on statutory rights.
d) No, simultaneous representation in unrelated matters of clients whose interests are
only economically adverse, such as representation of competing economic
enterprises in unrelated litigation, does not ordinarily constitute a conflict of interest
and thus may not require consent of the respective clients.
5
4. Big Firm represents hundreds of corporate clients out of a dozen offices in different
states. The firm has no formal procedures in place to check for clients at the outset of
representation for new clients, but the managing partner of the firm has an incredible
memory and has never failed to spot a potential conflict of interest in the past. Attorney
agrees to represent a new corporate client that owns many subsidiaries, and checks with
the managing partner, who assured Attorney there are no potential conflicts. After the
new corporate client had disclosed a substantial amount of confidential information, it
emerged that some of its subsidiaries were directly adverse to other clients of Big Firm.
Attorney was completely unaware of the potential conflicts at the time he agreed to the
representation, despite asking the corporate client a few questions about the opposing
parties in pending litigation it might have. Will Attorney be subject to discipline for
not declining representation in this case?
a) Yes, because ignorance caused by a failure to institute reasonable procedures,
appropriate for the size and type of firm and practice, will not excuse a lawyer's
violation of the Rules regarding conflicts of interest.
b) Yes, because there is a presumption that a company owning several subsidiaries
will have at least one adverse interest to other clients of a Big Firm.
c) No, as he was unaware of the conflict at the time, but now that the conflict is
apparent, Attorney must withdraw from representation
d) No, because Attorney reasonably relied upon the managing partner’s prowess in
identifying conflicts, given that the managing partner had never before made a
mistake.
5. Attorney sued Company on behalf of Client in a personal injury matter. During the
protracted litigation that ensued, Conglomerate bought Company. Attorney was
already representing Conglomerate in a regulatory compliance matter before a federal
administrative agency. Assuming this development was unforeseeable at the outset of
representing Client against Company, will Attorney have the option to withdraw from
one of the representations in order to avoid the conflict?
a) Yes, because one matter is in state court and the other matter is a completely
unrelated federal administrative proceeding.
b) Yes, but Attorney must seek court approval where necessary and take steps to
minimize harm to the clients, and must continue to protect the confidences of the
client from whose representation the lawyer has withdrawn.
c) No, if a conflict arises after representation has been undertaken, the lawyer
ordinarily must withdraw from the representation of both clients, unless the lawyer
has obtained the informed consent of each client at the outset of the representation.
d) No, because the federal administrative matter would preempt state tort law under
the Supremacy Clause.
6. Two successful business partners hired Attorney to help with the dissolution of the
partnership, as the two partners no longer want to work together. Attorney was very
concerned about the obvious conflict of interest, but the partners insisted that they did
not want to complicate matters unnecessarily by hiring separate counsel, and that they
were already in complete agreement about how to divide the business. They even
6
signed informed consent statements acknowledging and waiving the conflict. Each
partner believed it would be in both of their best interest to use only one lawyer to
dissolve the business. The matter was purely transactional at this point, and did not
involve any anticipated litigation before a tribunal. One partner had already mentioned
to Attorney that he might need his legal services in setting up a new business, as well
as handling some estate planning issues for him. Attorney still believed that dual
representation was not a good idea, given the complexity of the business and the
debatable future value of some of the patents, goodwill, and other intellectual property
involved, and because one partner contributed a much larger share of the startup funds
years before. The partner who mentioned hiring Attorney to do estate-planning work
wanted the dissolution to include assigning his proceeds from the business to his heirs.
Attorney proceeded with the dual representation and the dissolution appeared to
proceed smoothly. Is Attorney subject to discipline for representing both partners?
a) Yes, because Attorney did not reasonably believe that he would be able to provide
competent and diligent representation to each affected client.
b) Yes, because the facts do not mention whether they split the legal fees evenly, and
one of them has mentioned giving Attorney some business in the future.
c) No, because the representation involves the assertion of a claim by one client
against another client represented by the lawyer in the same litigation or other
proceeding before a tribunal
d) No, because it appears on these facts that there will be no assets in dispute at all, so
the theoretical conflict of interest would have no bearing on their case.
7. Husband and wife decide to divorce, and reach an agreement to share the same lawyer
in order to save money. They hire Attorney to represent each of them in Family Court
for the dissolution of marriage. Attorney explains that there is an obvious conflict of
interest here, but Husband and Wife insist, and sign informed consent forms waiving
the conflict and their rights to assert any future claims related to the conflict. Husband
and Wife have no children, and have always kept separate bank accounts. Each
purchased their own car from the money in their own bank account and each car’s title
is in only one name. They live in an apartment whose lease is expiring soon, so there
is no real property to divide. Would it be proper for Attorney to represent both in the
divorce?
a) Yes, because it appears on these facts that there will be no assets in dispute at all,
so the theoretical conflict of interest would have no bearing on their case.
b) Yes, because both clients consented in writing, the dual representation does not
violate law, and Attorney could reasonably believe that he will be able to provide
competent and diligent representation to each affected client.
c) No, because the representation involves the assertion of a claim by one client
against another client represented by the lawyer in the same litigation or other
proceeding before a tribunal
d) No, because contingent fees are not permissible in divorce cases, and Husband and
Wife’s sole motivation in sharing a lawyer was to save money.
8. What is the most frequently occurring enforcement mechanism for the rules regarding
conflicts of interest?
7
a) Disqualification from representation at the request of the opposing party in
litigation
b) Disbarment or reprimand by the state bar disciplinary authority
c) Legal malpractice action (civil suit) against the lawyer
d) Court-imposed monetary sanctions or reprimand
9. Three individuals plan to form a joint venture and ask Attorney to represent them in
drafting the necessary documents and making the necessary filings with government
agencies. They have already agreed that each individual will contribute exactly onethird of the startup funds for the venture, each will own a one-third share, each will
have equal control over the Board, and each agrees to indemnify the others for a onethird share of any personal liability related to the joint venture. They have also agreed
that they will have no non-compete agreements. The joint venture will hire managers,
marketers, and other employees to operate the business. The three individuals are coowners of a patent that could potentially be very lucrative when they bring it to market,
and have known each other and worked together for a long time. The attorney cannot
find any current areas of conflict between them, though he knows that it is technically
possible that some unforeseen conflict could arise in the future. The shared objectives
and goals of the group lead Attorney to conclude that no conflicts of interest are present
and that it would be counterproductive to try to convince each member of the group to
sign an informed consent form acknowledging that conflicts of interest exist and that
Attorney may still represent everyone at once. May Attorney trust his professional
judgment and proceed without obtaining separate consent forms from each person in
the joint venture?
a) Yes, as long as Attorney reasonably believes that he will be able to provide
competent and diligent representation to each client, because the representation
does not involve the assertion of a claim by one client against another client
represented by the lawyer in the same litigation or other proceeding before a
tribunal.
b) Yes, because the mere possibility of subsequent harm does not itself require
disclosure and consent.
c) No, the situation is likely to limit materially Attorney’s ability to recommend or
advocate all possible positions that each might take because of his duty of loyalty
to the others; representing the group’s overall interests in effect forecloses
alternatives that would otherwise be available to the client.
d) No, because the fact that the individuals already decided to create a joint venture,
and sought representation together from a single lawyer, constitutes implied
consent to the common representation despite any potential conflicts of interest
involved.
10. Attorney agreed to represent Seller, who wishes to sell her business to Buyer, a sale
already bogged down in protracted negotiations over sale price, outstanding liabilities,
and certain trade secrets. Attorney also represents Buyer in unrelated litigation over
custody of his children after a divorce. Buyer and Seller are not litigating against each
other, and that Attorney represents each in completely unrelated matters. Must
8
Attorney obtain informed consent from each client to undertake representation of Seller
in the negotiations over the sale of the business?
a) Yes, directly adverse conflicts can also arise in transactional matters, and when a
lawyer agrees to represent the seller of a business in negotiations with a buyer
represented by the lawyer, not in the same transaction but in another, unrelated
matter, the lawyer cannot undertake the representation without the informed
consent of each client.
b) Yes, but only if the confidential information the lawyer will learn from representing
Seller in the transaction could be relevant to Seller’s child custody dispute, or vice
versa.
c) No, because Buyer and Seller cannot be adverse parties if there is no litigation
pending between them, nor do they plan to commence litigation against each other
in the future.
d) No, directly adverse conflicts cannot arise in purely transactional matters, as both
parties have impliedly consented to the representation by agreeing to negotiate over
the transaction; a lawyer can undertake transactional representation without the
informed consent of each client.
11. Which of the following is NOT one of the reasons that a conflict of interest might be
“nonconsentable” under the Rules of Professional Conduct?
a) The lawyer does not reasonably believe that the lawyer will be able to provide
competent and diligent representation to each affected client;
b) The representation is prohibited by law, as where state substantive law provides
that the same lawyer may not represent more than one defendant in a capital case
c) One of more clients pay the lawyer lower fees than the other(s)
d) The representation involves the assertion of a claim by one client against another
client represented by the lawyer in the same litigation or other proceeding before a
tribunal
12. Comment 16 to Rule 1.7(b)(2) describes three examples of “conflicts that are
nonconsentable because the representation is prohibited by applicable state law.”
Which of the following is NOT one of the examples of conflicts that are nonconsentable
because the representation is prohibited by applicable state law?
a) State substantive law provides that the same lawyer may not represent more than
one defendant in a capital case, even with the consent of the clients
b) Under federal criminal statutes certain representations by a former government
lawyer are prohibited, despite the informed consent of the former client.
c) State hate crime statutes prohibit a lawyer who shares the same protected status as
the victim from representing the defendant in the criminal proceeding.
d) Decisional law in some states limits the ability of a governmental client, such as a
municipality, to consent to a conflict of interest.
13. Client owns a partnership share of a closely-held business, and the other partners vote
to impose an involuntary buy-out of Client in order to remove him from the firm. Client
is very upset about this, but the partnership agreement clearly permits involuntary
9
buyouts by a majority vote of the other shareholders. Client hires Attorney to represent
him in the buyout transaction, to review the necessary documents and provide legal
counsel about it. No litigation is under consideration yet. Attorney’s sister is also a
lawyer in that city, at another firm, and the sister represents the other shareholders in
the partnership. Attorney did not disclose that her sister represented the other partners,
as she and her sister are not close and rarely speak, and the matter is unlikely to turn
into litigation. Is Attorney, or the other lawyers in her firm, subject to disqualification
in this matter?
a) No, because Attorney and her sister are not close enough for there to be a substantial
risk that they will share confidential information, and the matter seemed unlikely
to turn into litigation.
b) No, as long as both sisters give informed consent in writing, and each reasonably
believes that she will be able to provide competent and diligent representation to
her client
c) Attorney would be subject to disqualification, but ordinarily the other lawyers in
her firm would not be subject to disqualification.
d) Both Attorney and her firm would be subject to disqualification, because the client
did not give written informed consent.
14. Attorney has applied to make a lateral move from her firm to Big Firm, and has
already gone through the first two of three rounds of interviews for the position.
Attorney agrees to represent Client in filing a breach of contract claim against
Construction Company over a commercial development project. Big Firm is
representing Construction Company, and the firm’s lawyers drafted the contract that
forms the basis of Client’s complaint. Client claims that Construction Company
breached a particular provision of the contract that is arguably ambiguous; Construction
Company is confident that its conduct falls within the contractual language in that
provision. Is it proper for Attorney to undertake representation of Client in this case?
a) Yes, as long as Client gives informed consent to the representation despite the
conflict of interest here.
b) Yes, because there is no clear conflict of interest here, because Attorney has not yet
started working at Big Firm, and could not have been involved at all in drafting the
contract provision that is now in dispute.
c) No, as during the previous interviews, Attorney probably gleaned some confidential
information about Construction Company from Big Firm.
d) No, because when a lawyer has discussions concerning possible employment with
an opponent of the lawyer's client, or with a law firm representing the opponent,
such discussions could materially limit the lawyer's representation of the client.
15. Which of the following is true about conflicts of interest, according to the Model Rules
of Professional Conduct?
a) Most conflicts are waivable by clients, but only if the clients provide informed
consent in writing, and there are three types of conflicts that are nonconsentable
10
b) All conflicts are waivable by clients, but only if the clients provide informed
consent in writing
c) All conflicts of interest subject the lawyer to disqualification, civil liability for legal
malpractice, and sanctions by the state bar
d) Most conflicts of interest are nonconsentable, but there are three types of conflicts
that are waivable by clients, as long as the clients provide informed consent in
writing.
16. A group of several individuals seeking to form a joint venture asked Attorney to
represent them in drafting the necessary documents and making the necessary filings
with government agencies. Two of the individuals were to provide most of the initial
funds for the startup; two others were experienced inventors who were to provide new
product designs; two others had expertise in business management and were to serve
as managers; and two had proven records in high-end sales and marketing. They have
not yet resolved the allocation of ownership shares, bonuses for managers, whether to
have anti-compete agreements for each participant, whether patents will belong solely
to the joint venture or partly to the inventors themselves, and whether sales reps will
work on salary or commissions. Each individual says that she wants whatever terms
would be best for the joint venture overall, rather than what would be most beneficial
for each one individually. The shared objectives and goals of the group lead Attorney
to conclude that no conflicts of interest are present and that it would be
counterproductive to try to convince each member of the group to sign an informed
consent form acknowledging that conflicts of interest exist and that Attorney may still
represent everyone at once. May Attorney trust his professional judgment and proceed
without obtaining separate consent forms from each person in the joint venture?
a) Yes, because the mere possibility of subsequent harm does not itself require
disclosure and consent.
b) Yes, as long as Attorney reasonably believes that he will be able to provide
competent and diligent representation to each client, because the representation
does not involve the assertion of a claim by one client against another client
represented by the lawyer in the same litigation or other proceeding before a
tribunal.
c) No, the situation is likely to limit materially Attorney’s ability to recommend or
advocate all possible positions that each might take because of his duty of loyalty
to the others; representing the group’s overall interests in effect forecloses
alternatives that would otherwise be available to the client.
d) No, because the fact that the individuals already decided to create a joint venture,
and sought representation together from a single lawyer, constitutes implied
consent to the common representation despite any potential conflicts of interest
involved.
17. The ABA Comment to Model Rule 1.7 (entitled “Conflict of Interest: Current Client”)
mentions a few reasons that, absent consent, a lawyer may not act as an advocate in
one matter against a person the lawyer represents in some other matter, even when the
matters are wholly unrelated. Which of the following, though probably true, is NOT
one of the reasons identified in the Comment?
11
a) The client as to whom the representation is directly adverse is likely to feel betrayed
b) Any time that the lawyer bills for the matter would simultaneously go to both
clients, meaning the lawyer inevitably will engage in double billing and receive
double fees for every hour worked on the case.
c) The resulting damage to the client-lawyer relationship is likely to impair the
lawyer's ability to represent the client effectively.
d) The client on whose behalf the adverse representation is undertaken reasonably may
fear that the lawyer will pursue that client's case less effectively out of deference to
the other client, i.e., that the representation may be materially limited by the
lawyer's interest in retaining the current client.
18. Three individuals hire Attorney to represent them as co-defendants in a tort action.
Attorney tells them that there could be a potential conflict of interest if he represents
all three of them, and that they will need to sign informed consent forms, which they
do. The three individuals have common goals and interests in the litigation, so they do
not hesitate to sign the forms or inquire further about the implications of the potential
conflicts. No further discussion occurs about the issue, and Attorney proceeds with the
representation. Could Attorney be obligated to withdraw from representation later in
the litigation, if the clients gave written consent to the shared representation at the
outset?
a) Yes, when representation of multiple clients in a single matter is undertaken, the
information must include the implications of the common representation, including
possible effects on loyalty, confidentiality and the attorney-client privilege and the
advantages and risks involved.
b) Yes, if the liability insurers for the three co-defendants disagree on the terms of
settlement, and were not included in the original written consent.
c) No, because the Attorney dutifully obtained written consent from each client, as
required by the Rules of Professional Conduct.
d) No, as long as no situations arise where the lawyer obtains confidential information
from one client that he could use to harm the interests of another client, and none
of the clients files a cross-claim against another co-defendant.
19. Two clients agree to representation by the same Attorney in a civil action, and both
provide written informed consent to the potential conflicts of interest. Halfway through
trial, the opposing party unexpectedly makes a settlement offer that one client wants to
accept. The other client prefers to decline, as he believes that a favorable jury verdict
is a certainty and will be much higher. Attorney strongly encourages them to accept
the settlement offer, which he believes is generous, given his perception that their
chances for a favorable jury verdict are slim. Unable to reach a consensus on whether
to accept the settlement offer, one of the clients revokes his consent to the conflict of
interest. Assuming there are no other special circumstances in this situation and that
the court would not prohibit withdrawal, must the Attorney withdraw from
representation?
a) Yes, Attorney must petition the court to withdraw from representing both clients.
b) Yes, Attorney must withdraw from representing the client who did not revoke
consent, and continue to represent the client who revoked consent.
12
c) No, given that both clients consented in writing at the outset of representation, and
that the trial is already underway, Attorney can and must continue to represent both
clients.
d) No, Attorney can continue to represent the other client who did not revoke consent,
even if the revoking client terminates the representation and hires another lawyer.
20. Husband and Wife wanted to hire Attorney to prepare their wills. Before the
formalities of representation were final, husband spoke with Attorney privately by
phone and disclosed that Husband had been having an affair, and that his mistress might
be pregnant. Husband forbid Attorney to tell Wife about this. Attorney realizes there
could be potential conflicts of interest between husband and wife about the wills,
distribution of assets, potential challenges to the will by offspring from outside the
marriage, and potential claims for child support against Husband’s estate. Would it be
proper for Attorney to proceed with representing Husband and Wife in preparing their
wills?
a) Yes, as long as each provides written consent after being informed of the potential
conflicts that generally emerge in dual representation
b) Yes, because this is a transactional matter, not litigation in which adverse claims
could arise.
c) No, because Attorney cannot violate the duty of confidentiality to Husband, which
would be necessary in order obtain informed consent from Wife.
d) No, because it would be improper to prepare a will for Husband under such
circumstances.
21. Business Manager and Shift Supervisor, who worked at a customer service call-center,
became co-defendants in a lawsuit by a disgruntled former employee. The plaintiff
claimed to have been the victim of gender discrimination in the form of a hostile work
environment, as well as intentional and negligent infliction of emotional distress related
to the same factual allegations about her treatment at the workplace. Business Manager
hired Attorney to represent both himself and the Shift Supervisor, who had been the
plaintiff’s direct superior. Based on Business Manager’s initial investigation and
review of the personnel files of the plaintiff and the Shift Manager, he believes the
allegations are baseless and that the suit will end in a dismissal or summary judgment
before trial. Shift Supervisor had a spotless work history, but the plaintiff had numerous
interpersonal conflicts with her peers, was frequently late for work or missed work
completely, and was the subject of several customer complaints. From his
consultations with the defendants, Attorney understood that both Business Manager
and Shift Supervisor were equally targets of the complaints. Business Manager and
Shift Supervisor both gave Attorney written informed consent to the potential conflicts
of interest in having Attorney represent both of them. Business Manager obtained
tentative permission to have the business cover the legal fees for Attorney. Near the
end of the discovery phase, however, plaintiff produced numerous inappropriate love
letters to her from Shift Supervisor, many with explicit sexual overtures, and a few that
sounded threatening based on her lack of response to previous letters. In addition,
several co-workers of plaintiff gave depositions explaining that they had witnessed
Shift Supervisor engaging in inappropriate and unwanted touching of plaintiff on many
13
occasions. Several also testified that Shift Supervisor would often accost her for ten or
fifteen minutes outside, before she could reach her workstation, and that this was the
cause of her tardiness for work. Business Manager had never heard about any of these
problems before. Moreover, during depositions the plaintiff explained that she always
had very little contact with Business Manager and had no direct complaints about his
treatment of her, and acknowledged that she had never complained to Business
Manager about Shift Supervisor’s harassment of her. She disclosed that Business
Manager was a co-defendant only because her attorney believed it was necessary to
name someone from upper management in the lawsuit in order to trigger the legal
protections of Title VII and other antidiscrimination laws. Business Manager then
revoked his consent to the conflict of interest, explaining that he wanted separate
representation from Shift Supervisor. Trial was due to begin two weeks later. Would
it be proper for Attorney to continue representing either Shift Supervisor or Business
Manager, but withdraw from representing the other?
a) Yes, Attorney can probably continue to represent Business Manager but not Shift
Supervisor, because Shift Supervisor engaged in misconduct that was unknown to
Business Manager, and Business Manager is the one who arranged for the payment
of the legal fees.
b) Yes, Attorney can probably continue representing Shift Supervisor but not Business
Manager, given the nature of the conflict, the fact that Business Manager revoked
consent because of a material change in circumstances, the expectations of Shift
Supervisor, and so on.
c) No, Attorney must petition the court to withdraw from representing both clients, as
he has now obtained confidential information about each of them, and one is
unwilling to consent to the continued common representation.
d) No, Attorney must continue to represent both clients, because it is the eve of trial
and withdrawing would be prejudicial to them, and both consented in writing to the
potential conflicts involved with using the same lawyer.
22. Attorney specializes in intellectual property law, and regularly represents both
inventors and venture capitalists in tech startup businesses. Even though Attorney
represents only one or the other side in each transaction, she may represent an inventor
in one contract with a venture capitalist and represent that venture capitalist in drafting
agreements with other inventors. Attorney has drafted a standardized “waiver of future
conflicts” form that she asks all clients to sign along with their retainer agreement at
the beginning of representation. The waiver of conflicts form explicitly consents to
representation despite any and all conflicts of interest that might arise regarding
Attorney’s past, present, or future clients. When an actual conflict of interest or adverse
relationship exists between clients at the outset of representation, Attorney carefully
explains the situation to new clients and encourages them to seek advice from other
counsel about signing the waiver. When no present conflicts are apparent, but only
hypothetical potential conflicts are at issue, Attorney merely says that the form is for
hypothetical, potential conflicts of interest that probably will not arise in the current
transaction. Is Attorney’s standardized “waiver of future conflicts,” when signed by
new clients, likely to be effective in this situation?
14
a) Yes, because whenever the client agrees to consent to a particular type of conflict
with which the client is already familiar, then the consent ordinarily will be
effective with regard to that type of conflict.
b) Yes, because Attorney explains obvious, existing conflicts to new clients and then
uses an all-inclusive, open-ended waiver form for unforeseen conflicts of interest.
c) No, because it violates the Rules of Professional Conduct for a lawyer to ask a client
to waive future claims such as a conflict of interest, unless the client has
representation by outside counsel in deciding whether to sign the waiver.
d) No, if the consent is general and open-ended, then the consent ordinarily will be
ineffective, because it is not reasonably likely that the client will have understood
the material risks involved.
23. Attorney has a private practice in a large rural township, and she specializes in
commercial real estate transactions, such as the sale and lease of farmland, stables,
granaries, and mills. As the only lawyer in the township with expertise in this area, she
has represents most of the parties who buy and sell commercial real estate there. As a
result, most of her clients pose potential conflicts of interest with other current, former,
or future clients, so Attorney has a standard “waiver of future conflicts” form that
explains conflicts of interest that typically arise in commercial real estate transactions,
and she asks every client to sign it at the commencement of representation. Client is a
major landholder in the township, who inherited extensive tracts of farmland from his
family, who in previous generations were some of the original settlers in the area. Over
the years, Client has sold off dozens of small parcels of farmland to neighboring
farmers or small businesses such as honey processors, taxidermists, a hardware store,
and a veterinarian. Client has also bought properties at times that were adjacent to his
existing landholdings. Client has always used other lawyers for these transactions in
the past, and in each previous instance, the other party had separate counsel. Client
now wants to hire Attorney to sell a parcel to a real estate developer. Buyer (the
developer) is also a client of Attorney on unrelated matters, but the Buyer has hired
another lawyer to handle this particular matter. Client and Buyer have had a good
working relationship in the past and have consummated a few transactions that went
smoothly. When Client meets with Attorney to review and sign a retainer for this
representation, Attorney includes with the retainer her standard “waiver of future
conflicts” form, without additional oral explanation except to mention that she
represents Buyer in an unrelated matter. Client reads the form and signs it. As the
negotiations for the sale to the developer proceed, an unforeseen conflict emerges
between Client’s interests and the unrelated matters for which Attorney has represented
the developer, as one will significantly affect the road traffic for the other. Is Attorney’s
standardized “waiver of future conflicts,” signed by Client, likely to be effective in this
situation?
a) Yes, if the client agrees to consent to a particular type of conflict with which the
client is already familiar, then the consent ordinarily will be effective with regard
to that type of conflict.
b) Yes, because the conflict of interest was unforeseeable at the time the representation
began, and Client was aware that Attorney represented the Buyer.
15
c) No, because it violates the Rules of Professional Conduct for a lawyer to ask a client
to waive future claims such as a conflict of interest, unless the client has
representation by outside counsel in deciding whether to sign the waiver.
d) No, because it violates the Rules of Professional Conduct for a lawyer to use a
standard, one-size-fits-all consent form without additional oral explanation
24. Two co-plaintiffs in a personal injury lawsuit hired Attorney to represent them in the
matter. The litigation promised to become very complex, with multiple issues
pertaining to liability and multiple potential defendants. Attorney had each client sign
a detailed “waiver of present and future conflicts of interest” form and carefully
explained the specific types of conflicts that can arise between co-plaintiffs in tort
litigation, such as indemnification claims, cross-claims, adversarial positions in
response to counterclaims from defendants or third-party interveners, and so on. In
addition, Attorney encouraged both clients to consult with separate lawyers for
consenting to the conflicts, and both do so. Moreover, both plaintiffs were themselves
lawyers and were very familiar with the potential conflicts of interest that could arise
from this common representation. Attorney reasonably believed that she would be able
to provide competent and diligent representation to each affected client. As the trial
date approached, a counter-claim by one of the defendants forced one plaintiff to file a
cross-claim for indemnification against the other. Will the written, informed consent
to potential conflicts that each client signed be effective in this situation, so that
Attorney does not have to withdraw from the representation?
a) Yes, because both clients are lawyers and have sophisticated knowledge of
potential conflicts of interest that could arise, and they consented in writing to the
dual representation.
b) Yes, because each client had the benefit of independent counsel advising them
about the risks of consenting to such conflicts of interest in litigation, and Attorney
carefully informed them as well.
c) No, advance consent cannot be effective if the circumstances that materialize in the
future are such as would make the conflict nonconsentable, such as the assertion of
a claim by one client against another client represented by the lawyer in the same
litigation
d) No, because it violates the Rules of Professional Conduct for a lawyer to ask a client
to waive future claims such as a conflict of interest, and a lawyer cannot withdraw
from representation in the middle of litigation.
25. On the same day, Attorney agrees to represent Undocumented Immigrant in a visarevocation matter, as well Victim in a tort action (product defect) against an automobile
manufacturer. The two matters are unrelated. In the second case, Attorney anticipates
that the defendant automobile manufacturer will argue that extensive federal safety
regulations of automobiles, which require certain safety features and specifications,
should preempt state tort law and therefore prevent a state court from adjudicating the
case. On the other hand, many undocumented immigrants have relied upon federal
preemption of state law in challenging onerous state penal statutes targeted at illegal
immigrants. If Attorney prevails in his preemption argument in the vehicle
16
manufacturing defect case, and on appeal creates precedent against federal preemption
of state law, the precedent would probably be unfavorable to Attorney’s other client,
Undocumented Immigrant. The state legislature has several bills pending that would
impose criminal sanctions on landlords who lease apartments to undocumented aliens,
drivers who transport undocumented aliens to work sites, and contractors who hire
subcontractors that employ undocumented aliens. Does the fact that advocating a legal
position on behalf of one client might create precedent adverse to the interests of the
other client create a conflict of interest, for which the lawyer must obtain consent from
each client?
a) Yes, it creates a conflict of interest, but this type of conflict is nonconsentable
because it involves questions of law, so the clients cannot consent to it and Attorney
cannot represent both.
b) Yes, but given that the matters are unrelated and that it is uncertain that the lawyer
will succeed in creating new precedent, the parties can give informed consent in
writing.
c) No, the mere fact that advocating a legal position on behalf of one client might
create precedent adverse to the interests of a client represented by the lawyer in an
unrelated matter does not create a conflict of interest.
d) No, because preemption precedent from one area of law like torts could not possibly
affect an unrelated area of law like immigration.
26. Two separate clients hired Attorney, signing their retainer agreements one week apart,
on unrelated matters, though both involve property owners’ rights under the state’s
common law doctrine of public trust for beaches, which guarantees public access to
beaches up to the vegetation line on the shore. In one case, erosion has moved the
boundary back on the property owner’s lot to the point where his house is now clearly
on the public access portion, and he seeks a declaratory judgment that erosion cannot
jeopardize the private ownership of a building and its curtilage. Current public trust
doctrine in the state would suggest that the property owner has lost all the value in his
property, so he needs to seek a change or exception to the current law. The other case
involves a property owner whose lots had always been separated from the beach by a
small public park, but erosion has eliminated the park and given him water access from
his property, which has greatly increased the value of his land under current public trust
doctrine. The state government, however, is seeking a declaratory judgment in his case,
arguing for an exception or change to the current law that would rob the owner of the
windfall he received due to the erosion. Does this situation present a conflict of interest
that would require Attorney to obtain informed consent, in writing, from both clients
in order to proceed with the representation?
a) No, the mere fact that advocating a legal position on behalf of one client might
create precedent adverse to the interests of a client represented by the lawyer in an
unrelated matter does not create a conflict of interest.
b) No, given that both are declaratory judgment actions, it is not possible that one
client’s interests could be adverse to the other’s.
c) Yes, a conflict of interest exists if there is a significant risk that a lawyer's action
on behalf of one client will materially limit the lawyer's effectiveness in
representing another client in a different case, as when a decision favoring one
17
client will create a precedent likely to seriously weaken the position taken on behalf
of the other client.
d) Yes, but this type of conflict involves a question of law so it is nonconsentable by
the two clients.
27. Attorney represented Client in a residential real estate transaction. At the same time,
Attorney agreed to represent the defendant in a large class-action lawsuit, an alcoholic
beverage maker that understated the alcohol content of its products on its labels, leading
to numerous cases of inadvertent intoxication, liver damage from continuous
consumption, and a few deaths from overconsumption that led to alcohol poisoning.
Client was an unnamed member of the plaintiff class in the class-action lawsuit against
the alcohol producer. Attorney did not inform Client that he was representing the
defendant in the class-action lawsuit or seek consent from Client or from the alcohol
producer. Plaintiffs’ counsel in the class action lawsuit discovered this situation, and
asked the court to disqualify Attorney from representing the defendant. Should
Attorney be subject to disqualification under such circumstances?
a) Yes, because Attorney represents clients whose interests are directly adverse, and
he did not seek or obtain written informed consent to the conflict of interest.
b) Yes, because Client will obviously feel betrayed when she learns that Attorney is
representing the defendant in the class action lawsuit, and Attorney might have
confidential information from representing Client in the real estate transaction that
would be prejudicial in the class action lawsuit.
c) No, because a lawyer seeking to represent an opponent in a class action does not
typically need the consent of an unnamed member of the class whom the lawyer
represents in an unrelated matter.
d) No, because the interests of Client and the alcohol producer are not adverse, as
Client merely hired Attorney to handle a residential real estate matter.
28. Attorney seeks to represent a class of plaintiffs in a class-action lawsuit over lethal
effects of a popular energy drink. The class action will have three named plaintiffs and
approximately two thousand unnamed plaintiffs. After the class action lawsuit is
underway, Attorney has the opportunity to represent another plaintiff in a personal
injury case over a traffic accident, and the defendant is one of the unnamed members
of the class action lawsuit over energy drinks. Must Attorney obtain written consent
of the unnamed class member before representing the second client in suing the
unnamed class member?
a) Yes, because both are technically clients of the same lawyer, and their interests will
be directly adverse, and there is no reason that the lawyer cannot seek consent from
each client.
b) Yes, because the lawyer will inevitably learn confidential information about the
unnamed member of the class in the energy drink lawsuit that he could potentially
use to the disadvantage of that member in the lawsuit against the member over the
traffic accident, such as financial information or a history of litigiousness.
c) No, because when a lawyer represents a class of plaintiffs in a class-action lawsuit,
unnamed members of the class are not clients of the lawyer for purposes of conflicts
18
rules; the lawyer does not need to get the member’s consent before representing a
client suing the person in an unrelated matter.
d) No, because the conflict in this case is nonconsentable, given that one client is suing
another client of the same lawyer, albeit in an unrelated matter.
29. Attorney handles claims against banks for many clients for issues regarding the failure
of banks to investigate in a timely manner claims of fraud or unauthorized use of
bankcards. Most of Attorney’s work consists of sending demand letters, and most cases
never actually result in the filing of a suit. Bank, a small local bank, retains Attorney
to handle a particular claim against a customer for non-payment of a loan. Attorney
has not represented any clients against Bank. Attorney includes in his contract for
services a clause in which Bank waives any conflicts that may arise in the future conflicts that involve Attorney representing clients against Bank for issues regarding
failure to investigate claims of fraud or unauthorized use of bankcards. Is Attorney’s
conduct proper?
a) Yes, attorneys may include waivers of future conflicts as long as clients are aware
of the waiver.
b) Yes, attorneys can include waiver clauses for future conflicts in their contracts if
the clients are aware of the waiver and the types of future representations that may
arise are limited and detailed in the contract.
c) No, attorneys cannot ever include waivers of future conflicts in contracts.
d) No, attorneys cannot include waivers of future conflicts in contracts if the types of
claims expected to be waived are financial in nature.
30. Client and her estranged husband have lived separately for several years. Client faces
charges for involvement in an armed robbery. Client retains Attorney to represent her
in the armed robbery case. Client’s estranged husband learns that Client faced criminal
charges and looks up her attorney’s information in the local court records. Client’s
estranged husband then contacts Attorney and asks to make a payment for Client’s
representation because he feels guilty for leaving her several years before. Attorney
accepts payment from Client’s estranged husband. Is Attorney subject to discipline?
a) Yes, attorneys are required to obtain informed consent from the client before
accepting payment from a third party.
b) Yes, attorneys are required to obtain informed consent from the client before
accepting payment from a third party, and the consent must be in writing.
c) No, attorneys may to accept payments towards client cases from third persons, as
long as the third person is a relative of the client.
d) No, attorneys may accept any payments toward client cases as long as they do not
disclose information about the case to the third person.
31. Attorney represents Company in a civil suit. During Attorney’s representation of
Company, Attorney begins a sexual relationship with Receptionist at Company.
Receptionist’s only duties are to answer the phone, route calls, take messages, and
prepare outgoing mailings at Company. Receptionist has no authority in decisionmaking at the Company. Receptionist’s only communication with Attorney as an
19
employee of the company is when he calls Company and Receptionist routes his call
to the person with whom Attorney wishes to speak. Is Attorney subject to discipline?
a) Yes, attorneys shall not have sexual relationships with their clients and when an
organization is the client of an attorney, the attorney shall not have sexual
relationships with employees of the organization.
b) Yes, when attorneys represent organizations, attorneys cannot have sexual
relationships with anyone they speak with at the company on a regular basis,
including administrative personnel.
c) No, attorneys are only restricted from having relationships with members of an
organization who are directly or are regularly involved with the attorney concerning
the organization’s legal matters.
d) No, attorneys are not restricted from having relationships with employees of an
organization the attorney represents because the employees are not the client.
32. The Workers’ Union at a manufacturing plant is having annual collective bargaining
negotiations with the Management. Wages and benefits are not in dispute this year, as
the parties reached an agreement in the previous year’s collective bargaining about a
five-year schedule for wages and benefits that was acceptable to both the Union and
Management. The sole issue in dispute this year is hiring: the Workers’ Union wants
the plant to hire five or six new assembly line workers so that there will be more
efficiency and more flexibility for workers requesting days off or changes in their
shifts. The Management wants to hire fewer new workers, perhaps two at most, in
order to keep payroll costs down and their stock share prices high. The Union and
Management agree to hire Attorney, an experienced labor lawyer at an outside firm, to
facilitate the collective bargaining negotiations. Neither side is currently expecting a
breakdown in bargaining that would lead to litigation. Would it be proper for Attorney
to have both the Union and the Management as clients while facilitating the
negotiations?
a) Yes, as long as both clients provide written informed consent, common
representation is permissible where the clients’ interests generally align, even
though there is some difference in interest among them, so a lawyer may seek an
agreement between them on an amicable and mutually advantageous basis
b) Yes, because conflicts of interest rules do not apply outside the litigation arena, and
the parties here are not litigating and do not expect to litigate, but instead are merely
hiring Attorney to facilitate negotiations of an issue where the two sides are not far
apart.
c) No, because the parties’ interests as directly adverse, and a lawyer may not seek to
establish or adjust a relationship between clients on an amicable and mutually
advantageous basis.
d) No, because conflicts of interest in a negotiation situation are nonconsentable, as
no lawyer could reasonably believe that the conflict of interest would not materially
limit his ability to represent both sides; this is especially true of collective
bargaining in the employment context.
33. A producer of popular energy drinks and the owner of a popular chain of video-rental
kiosks wanted to undertake a joint venture to distribute energy drinks and DVD rentals
20
through the same kiosks. They approached Attorney to work out the details of the joint
venture and draft the necessary legal documents. Attorney would provide common
representation to both as clients in the matter. As part of obtaining informed consent
from the clients regarding potential conflicts, Attorney explains that all information
would be shared, even information that otherwise would have been confidential
information in a normal representation with a single client. Attorney explains he will
have to withdraw if one client decides that some matter material to the representation
should be kept from the other. The energy drink maker, however, has a secret formula
for the drinks, and the DVD kiosk owner has a trade-secret method of tracking the
distribution and stocking of the DVDs in the kiosks minute-by-minute. Neither wanted
the other to discover their trade secrets, but Attorney may eventually possess the secrets
as part of his document review for the joint venture. Neither client actually needs to
know the trade secrets of the other, however, in order to proceed with the joint venture.
Attorney concludes that failure to disclose one client's trade secrets to another client
would not adversely affect the representation in this case, and agrees to keep that
information confidential with the informed consent of both clients. Is Attorney’s
conduct proper?
a) Yes, in limited circumstances like this, it would be appropriate for the lawyer to
proceed with the representation when the clients have agreed, after being properly
informed, that the lawyer will keep certain information confidential.
b) Yes, because no litigation is pending between the clients and the lawyer has not
represented them before in other matters, and both are willing to provide written
informed consent to the conflicts inherent in common representation.
c) No, continued common representation will certainly be inadequate if one client asks
the lawyer not to disclose to the other client information relevant to the common
representation.
d) No, because the lawyer has an equal duty of loyalty to each client, and each client
has the right to be informed of anything bearing on the representation that might
affect that client's interests and the right to expect that the lawyer will use that
information to that client's benefit.
34. Two brothers work together in a family landscaping business, and each is a named
defendant in a lawsuit over a broken sewage pipe on a client’s property where the
brothers were digging holes to plant new trees. The two brothers hire their family’s
lawyer, Attorney, to represent them. Though the brothers get along reasonably well,
there are a number of topics they avoid discussing, especially related to family matters
and the inheritance, and who is to blame for some lost clients and damaged equipment
in the recent past. Attorney explains the potential for conflicts of interest in the
common representation and asks if they are willing to sign a waiver to the conflicts.
One asks the lawyer privately about the issue of confidentiality and privileged
information, because it is possible that litigation could emerge within the family later
over various issues – the inheritance, control of the business, liability for business
losses, and even a marital dispute. Does the common representation have implications
for the attorney-client privilege?
a) Yes, with regard to the attorney-client privilege, the prevailing rule is that, as
between commonly represented clients, the privilege does not attach, and lawyers
21
should assume that if litigation eventuates between the clients, the privilege will
not protect any such communications.
b) Yes, with regard to the attorney-client privilege, the prevailing rule is that, as
between commonly represented clients, common representation provides extra
protections for privileged information, and this is one of the main benefits of
sharing the same lawyer.
c) No, with regard to the attorney-client privilege, the prevailing rule is that, as
between commonly represented clients, attorney-client privilege still applies to all
communications between each client and the lawyer, so clients sharing a lawyer
should know that the lawyer may not disclose to them confidential information
from the other clients.
d) No, with regard to the attorney-client privilege, the prevailing rule is that, as
between commonly represented clients, the lawyer may not have ex parte
communications with any of the clients, but all communications must occur when
all clients are present, in order to safeguard the privilege.
35. Attorney represents Conglomerate Corporation in a regulatory compliance matter,
drafting documents for Conglomerate to file with the Securities and Exchange
Commission and the Federal Trade Commission regarding executive salaries (for the
SEC) and product market share (for the FTC’s antitrust inquiry). Conglomerate
Corporation owns or co-owns numerous subsidiaries and affiliates in unrelated
industries. Attorney’s retainer agreement limits his representation exclusively to the
SEC and FTC regulatory matters. Victim hires Attorney to represent him in a personal
injury suit against Subsidiary Corporation, partly owned by Conglomerate Corporation,
over a slip and fall accident in Subsidiary’s parking lot. Is it proper for Attorney to
represent Victim in a tort action against an affiliate or subsidiary of his other client,
Conglomerate Corporation?
a) Yes, a lawyer who represents a corporation or other organization does not, by virtue
of that representation, necessarily represent any constituent or affiliated
organization, such as a parent or subsidiary, and the lawyer for an organization may
provide representation adverse to an affiliate in an unrelated matter.
b) Yes, as long as Attorney obtains written informed consent from both Victim and
the legal representative of Conglomerate Corporation, after explaining the conflict
of interest fully to each client.
c) No, unless Attorney obtains written informed consent from both Victim and the
corporate director of Conglomerate.
d) No, because the parties are directly adverse in litigation, and therefore the conflict
of interest described here is nonconsentable under the Rules of Professional
Conduct.
36. Attorney agrees to represent a group of three individuals in the same matter, a business
transaction. Their interests are not directly adverse. Attorney has represented each of
the clients in separate matters previously, and is already working under a retainer to do
legal work for each under the same hourly rates. Two of the clients are currently
traveling overseas, but everyone agrees to the representation by conference call.
Attorney explains potential conflicts of interest that could arise in common
22
representation, and all clients consent orally to the common representation despite the
potential conflicts. Attorney proceeds with working on their matter for three weeks
until all the clients are back from traveling and can sign written consent forms. By that
time, Attorney has completed 50 hours of work, and has acquired significant
confidential information by and about each of the three clients. Would Attorney be
subject to discipline for performing this legal work before obtaining written consent to
the conflict by each conflict?
a) Yes, because common representation requires informed consent in writing from
each client at the outset of representation.
b) Yes, because the fact that it was a transactional matter and not litigation means that
Attorney could easily have waited three weeks until all clients could be present to
sign written consent forms.
c) No, it was not feasible to obtain or transmit the writing at the time the client gives
informed consent, so the lawyer could obtain or transmit it within a reasonable time
thereafter.
d) No, because oral consent to a conflict of interest is sufficient when the parties are
not directly adverse and each already has an established relationship with the
attorney.
37. Attorney serves as the lawyer for a corporation and also is a member of its board of
directors. Which of the following is true regarding this situation?
a) Attorney is subject to discipline, because the responsibilities of the two roles may
conflict, as when Attorney must advise the corporation in matters involving actions
of the directors, and there is always a material risk that the dual role will
compromise the lawyer's independence of professional judgment
b) Attorney must limit his legal representation of the corporation to transactional and
regulatory matters, and cannot represent the corporation in litigation against
adverse parties, as there is always a material risk that the dual role will compromise
the lawyer's independence of professional judgment
c) Attorney must have the final word on decisions of the board when he is present as
a director, because Attorney bears responsibility for the decisions in the form of
potential legal malpractice liability, which does not apply to the other directors who
are not lawyers.
d) Attorney must advise the other board members that in some circumstances, matters
they discuss at board meetings while Attorney is there as a fellow director would
not be protected by the attorney-client privilege in later litigation; and that conflict
of interest considerations might require Attorney’s recusal as a director, or might
require Attorney to decline representation of the corporation in a matter.
38. A municipal election for a seat on the city council was very close one year, resulting
in a run-off election that was ever closer. Both candidates claimed victory and each
accused the opposing candidate of voter fraud and violations of various election rules.
There is potential for litigation if the two cannot agree as to a winner in the election,
with one or the other conceding. Attorney is a prominent lawyer in the community and
has previously represented each candidate in various legal matters. Both candidates
23
would like to hire Attorney to represent them in negotiating a resolution to the election.
Each candidate fully understands their adverse interests and the potential conflicts of
interest for Attorney, but each is willing to provide written informed consent in order
to have Attorney represent them both in facilitating the negotiations. May Attorney
represent both candidates in this negotiation?
a) Yes, common representation is permissible where the clients’ interests generally
align, even though there is some difference in interest among them, so Attorney
may pursue an agreement on an amicable and mutually advantageous basis.
b) Yes, because conflicts of interest rules do not apply outside the litigation arena, and
the parties here are not litigating and no litigation is pending, but instead are merely
hiring Attorney to facilitate negotiations of an issue where the two sides are not far
apart.
c) No, a lawyer may not represent multiple parties to a negotiation whose interests are
fundamentally antagonistic to each other, even in a negotiation.
d) No, because the fact that Attorney has represented each of the parties in the past
means that he would possess confidential information that would make mutual
representation nonconsentable in this case.
39.
Two sisters are co-tenants of a house that they inherited from their father. They want
to sell the house and hire Attorney to handle the real estate transaction. Attorney
explains the potential for conflicts of interest in detail, and each sister readily agrees to
provide written informed consent in the form of a waiver of future conflicts of interest.
After a long period, they finally find a buyer who is interested in the house, but the
buyer wants to impose several onerous conditions on the purchase, and engages in
unreasonably protracted negotiations over the purchase price. The sisters themselves
cannot agree on whether to accept any of the buyer’s proposals, further dooming the
negotiations. Eventually, one sister becomes frustrated with Attorney over the
prolonged, hitherto unsuccessful negotiations, and fires Attorney. The other sister
wants Attorney to continue the representation. With regard to the sister who seeks to
discharge Attorney, may she do so?
a) Yes, but only if discharging the lawyer will not be prejudicial to the interests of the
buyer, who has already invested a lot of time and energy in the negotiations to
purchase the property.
b) Yes, each client in the common representation has the right to discharge the lawyer
as stated in Rules of Professional Conduct and the accompanying Comments.
c) No, because she signed a waiver of future conflicts of interest, which is binding and
safeguards Attorney against premature discharge.
d) No, because by agreeing to common representation with her sister, she implicitly
agreed that discharging Attorney would require assent of both sisters, as they are
both clients.
40. Three co-owners of a successful startup business hire Attorney to help with working
out the financial reorganization of their enterprise. Attorney seeks to resolve
potentially adverse interests by developing the parties' mutual interests. In assenting
24
to represent all the parties as clients simultaneously, Attorney agrees to adjust the
relationship between clients on an amicable and mutually advantageous basis. The
clients each provide written consent to the potential conflicts of interest. Is it proper
for Attorney to represent three clients with potentially adverse interests in a negotiated
transaction?
a) Yes, common representation is permissible where the clients’ interests generally
align, even though there is some difference in interest among them, so Attorney
may pursue an agreement on an amicable and mutually advantageous basis.
b) Yes, because conflicts of interest rules do not apply outside the litigation arena, and
the parties here are not litigating and do not expect to litigate, but instead are merely
hiring Attorney to facilitate negotiations of an issue where the two sides are not far
apart.
c) No, because the parties’ interests as directly adverse, and a lawyer may not seek to
establish or adjust a relationship between clients on an amicable and mutually
advantageous basis.
d) No, because conflicts of interest in a negotiation situation are nonconsentable, as
no lawyer could reasonably believe that the conflict of interest would not materially
limit his ability to represent both sides; this is especially true of collective
bargaining in the employment context.
Rule 1.8
Conflict of Interest - Current Clients: Specific Rules
41. Attorney represents Client in a civil suit. Client and Attorney often discuss their
hunting trips and have gone hunting together on several occasions. Client tells
Attorney he is purchasing a piece of property for hunting with five other people and
asks Attorney if he would like to go in on the purchase. Attorney tells Client he would
like to join in the purchase and he provides Client with a check for his portion of the
purchase price. Is Attorney subject to discipline?
a) Yes, attorneys shall not enter into transactions with clients that result in joint
ownership of property.
b) Yes, attorneys shall not engage in social activities with current clients or enter into
transactions that result in joint ownership of property.
c) No, attorneys are not restricted from entering into transactions with clients as long
as the transactions are not related to the current representation of the client and the
client gives informed consent.
d) No, attorneys are allowed to enter into fair and reasonable business transactions
with clients as long as the client is informed in writing of the benefit of seeking
advice from independent counsel and gives informed consent, in writing and signed
by the client, of the transaction details.
25
42. Attorney represents Client in a civil matter, and has represented Client several times
before. Client and Attorney purchase a piece of property together, with an appraisal
value of $4 million. Each contributes fifty percent to the purchase price. Client
received a five percent interest in the property and Attorney receives a ninety-five
percent interest in the property. Attorney received a greater interest in the property as
payment for representing Client for several traffic citations recently, with the total fees
being around $2000, but the value of the representation is far less than the value of the
additional interest Attorney received in the property. Client was represented by
independent legal counsel for the property purchase. Is Attorney subject to discipline?
a) Yes, the business transaction must be fair and reasonable even when the client
obtains representation by independent legal counsel, though representation by
counsel will be a factor in determining the fairness of the transaction.
b) Yes, attorneys cannot accept an interest in an asset of a client as a fee for
representation.
c) No, any requirement that the business transaction be fair and reasonable is
eliminated when the client is represented by independent legal counsel, as we
always presume that the client’s independent counsel will detail the unfairness and
discourage transactions that are unfavorable to the client.
d) No, attorneys can enter into business transactions with clients as long as they are
unrelated to the current matter for which the attorney is representing the client.
Rule 1.8 Cmt. 4
43. Client hires Attorney in high-profile murder case in which Client is the defendant.
Client is unable to pay the fee, but offers Attorney full media and literary rights in
exchange for representation. Attorney agrees, but specifically states in contract that no
media or literary rights shall be used by Attorney until the case concludes. Is Attorney
subject to discipline?
a) Yes, attorneys cannot make an agreement with a client giving the lawyer media
and/or literary rights in exchange for representation before the conclusion of the
case.
b) No, attorneys can accept media and/or literary rights as long as they do not use such
rights until after the conclusion of the case.
c) Yes, attorneys shall not ever accept media and/or literary rights in exchange for
services provided to a client.
d) No, attorneys are authorized to accept media and/or literary rights in exchange for
services and may immediately use such rights if they are given in exchange for
representation.
44. Client is represented by a lawyer in a law firm for a malpractice suit against a doctor.
Client incurred significant medical bills and expenses after a surgery went unusually
wrong. Attorney, who works in the same law firm as the lawyer representing Client,
offered to give Client a set amount of money each month until the case ended. Client
26
could then repay this attorney with his recovery from the lawsuit. Is Attorney subject
to discipline?
a) Yes, attorneys cannot provide financial assistance to their clients and this rule
applies to other attorneys in the firm.
b) Yes, attorneys can provide financial assistance to clients but not if the funds are
subject to reimbursement.
c) No, attorneys not directly representing a client can provide financial assistance to
clients of other attorneys.
d) No, attorneys can provide financial assistance to clients as long as the funds are
subject to reimbursement.
45. Attorney represents Client, a non-relative of Attorney, in legal matters and has done so
for many years. Client retains Attorney to prepare a will for Client. Client asks
Attorney to include in the will a substantial amount of money be given to Attorney as
a gift of appreciation for Attorney’s years of service, though not as any form of payment
for services rendered. Attorney asks Client to seek independent legal counsel prior to
including the gift in the will. Upon obtaining advice from independent legal counsel,
Client asks Attorney to proceed with the will as directed. Attorney includes the gift in
the will. Is Attorney subject to discipline?
a) Yes, attorneys shall not prepare legal instruments such as wills for clients if the will
contains a substantial gift to that attorney.
b) Yes, attorneys shall not accept any substantial gift from a client.
c) No, attorneys may include any gifts from clients in a will prepared by the attorney,
regardless of whether the client receives advice from independent legal counsel, as
long as the gift is not solicited by the receiving attorney.
d) No, attorneys may include substantial gifts to themselves when preparing a will for
a client if directed by a client, as long as the client receives advice from independent
legal counsel and the gift is not solicited by the receiving attorney.
46. Attorney, a partner at a law firm, prepares a will for Sister. In the will, Sister directs
Attorney to receive a substantial part of her estate. Attorney also recommends Sister
appoint Attorney as the executor of the will because of his knowledge in this field.
Attorney explains to Sister the role of the executor and the pay the executor of the estate
will receive, and discussed alternative executor choices with her. Attorney
recommends Sister seek independent legal counsel regarding the issue of the executor.
Sister does so, and then she asks Attorney to list him as executor in the will. Is Attorney
subject to discipline?
a) Yes, attorneys cannot include substantial gifts to themselves in legal instruments
such as wills prepared by the attorney for the client.
b) Yes, attorneys cannot recommend that a client appoint the attorney as the executor
unless the client obtains the advice of independent legal counsel and gives informed
consent confirmed in writing.
c) No, attorneys are not prohibited from including gifts to themselves in a will
prepared by an attorney for a person related to the attorney, even if the gift is
substantial.
27
d) No, an attorney may recommend the client appoint the attorney as executor as long
as the client receives advice from independent legal counsel regarding the
appointment of the attorney as executor prior to signing the will.
47. Client retained Attorney to represent him in a car accident case. Client sought to
recover $5,000.00 for damage to his vehicle and a few medical expenses Client incurred
because of the accident. Attorney failed to timely file a lawsuit for Client before the
statute of limitations runs. After realizing that the suit was barred because Attorney
failed to timely file, Attorney sent Client a letter with a check for $20,000.00 and an
agreement for Client to sign and return. The agreement stated that keeping the
$20,000.00 check constituted acceptance of the agreement and that acceptance of the
agreement included releasing Attorney for any malpractice claims against Attorney. Is
Attorney’s conduct proper?
a) Yes, attorneys can settle claims or potential claims for malpractice as long as the
settlement amount is reasonable.
b) Yes, attorneys can settle claims or potential claims for malpractice as long as the
agreement terms are provided to the client in writing and the settlement amount is
reasonable in relation to what the client would expect to receive.
c) No, attorneys must advise the client of the importance of obtaining advice of
independent counsel and provide reasonable time for the client to obtain such
counsel prior to settling a claim or potential claim for malpractice.
d) No, attorneys cannot settle claims or potential claims for malpractice with clients.
48. Attorney represents Client, a wealthy executive, for the first time in a divorce case.
Attorney learns that Client intends to purchase and develop several parcels of land in
an undeveloped area on the outskirts of the city. Attorney also represents Physician in
an estate planning matter. Attorney and Physician have a longstanding relationship.
Attorney mentions the parcels of land that are for sale on the outskirts of the city, which
Client brought to Attorney’s attention. Attorney recommends that Physician also try
to buy one of the parcels of land as an investment for the estate, knowing that the area
will soon see development and the property values will increase. Even in the short
term, Attorney knows that Physician could probably make a quick profit by buying a
parcel and selling it to Client when Client gets around to purchasing the parcels.
Attorney did not mention to Physician that Client was the individual planning to
purchase and develop the parcels, or reveal anything about his representation of Client.
Is Attorney subject to discipline?
a) Yes, because using information gleaned from representation of a client to the
disadvantage of the client violates the lawyer's duty of loyalty, even when the
lawyer uses the information to benefit a third person, such as another client.
b) Yes, because Attorney should have given Client’s contact information to Physician
so that Physician could inquire more directly about the plans for development, and
see if Client would be interested in purchasing the parcels together.
28
c) No, because Attorney was careful not to divulge Client’s identity or any
confidential information about Client’s case and Attorney is acting in the
Physician’s best interest, not engaging in self-dealing.
d) No, because Attorney is merely recommending to another client that he buy a parcel
of land, using information from one client to help another client, and there is no
conflict of interest here.
49. Attorney represents several clients in various matters before the Federal Trade
Commission. In one proceeding, the FTC adopts a new interpretation of a recently
enacted statute about unfair trade practices, and this becomes the rule of the case.
Attorney has some new clients who are at the beginning stages of an FTC inquiry of
their business pertaining to the requirements of the unfair trade practices statute.
Without mentioning the identity of the other client or the exact nature of the
proceedings, Attorney informs the new clients that the FTC has just adopted a particular
interpretation that could be very favorable to the new clients in their interactions with
the agency, as long as the clients conduct certain internal audits and recordkeeping. Is
Attorney subject to discipline for sharing with new clients this information he learned
during the representation of the other client?
a) Yes, because using information gleaned from representation of a client to the
advantage of another client violates the lawyer's duty of loyalty, even when the
lawyer uses the information to benefit a third person, such as another client.
b) Yes, because it violates public policy for lawyers to exploit government agency
interpretations used against one regulatory violator to help other potential violators
gain an advantage against the agency.
c) No, the conflict of interest rules do not prohibit uses that do not disadvantage the
client, so a lawyer who learns a government agency's interpretation of trade
legislation during the representation of one client may properly use that information
to benefit other clients.
d) No, because the other clients could eventually have discovered the FTC’s new
interpretation of the statute without Attorney providing the information, given that
some written decision of the agency ruling would eventually be available.
50. Attorney obtained a successful outcome in Client’s matter, and Client was grateful.
Client sent Attorney a gift basket that year as a holiday gift, containing high-quality
fresh fruit, sample-size jars of gourmet fruit preserves, and a few other delicacies. The
gift basket cost Client $50. Is it proper for Attorney to accept this gift, or must Attorney
refuse it?
a) Yes, because as long as a lawyer does not solicit the gift, there is no restriction on
lawyers accepting unsolicited gifts from clients.
b) Yes, a lawyer may accept a simple gift such as a present given at a holiday or as a
token of appreciation.
c) No, a lawyer shall not accept any substantial gift from a client, unless the lawyer or
other recipient of the gift is related to the client.
29
d) No, because the lawyer’s entire compensation for obtaining the favorable outcome
should have been in the original retainer agreement and its schedule of fees, so any
additional compensation or transfers from a client to a lawyer constitute an
unwritten modification of the retainer agreement.
51. Client hires Attorney to represent her in business litigation. Another lawyer in the
firm, unknown to Attorney, approaches Client with a proposal for an unrelated business
transaction, the sale of a parcel of real estate adjacent to the lawyer’s own land. Client
agrees to sell the other lawyer in the firm the parcel of real estate for a reasonable price.
The lawyer is not involved at all in the representation of client and works exclusively
in the estate-planning department of the firm, rather than in litigation. Must the lawyer
nevertheless advise the client in writing of the desirability of seeking the advice of
independent legal counsel, and obtain written informed consent from the client before
proceeding with the purchase?
a) Yes, because a prohibition on conduct by an individual lawyer under the conflicts
of interest rules would automatically apply to all lawyers associated in a firm with
the personally prohibited lawyer, even if the first lawyer is not personally involved
in the representation of the client.
b) Yes, because the fact that the lawyer owns the adjacent real estate to the client’s
parcel of land means that he has a special conflict of interest with the client that
would not necessarily apply to the other lawyers in the same firm.
c) No, because the lawyer who is buying the real estate from Client is not involved in
the representation of Client, and the Rules of Profession Conduct would not impute
Attorney’s potential conflicts of interest to the other lawyers in the firm.
d) No, because the lawyer is willing to pay a fair and reasonable price for the parcel
of land, so there is no risk that the transaction will be to the disadvantage of the
client.
Rule 1.9
Duties to Former Clients
52. Client consults with Attorney regarding a criminal case in which Client is the
defendant. Attorney previously represented Client’s friend, who is a co-defendant in
the current case, in another matter. Attorney does not believe that the previous
representation of Client’s friend will disable him from providing competent and
diligent services to Client, and the parties are not making any claims against each other.
May Attorney represent Client in this case?
a) Yes, attorneys may represent conflicting parties as long as both clients have
informed consent and have had the opportunity to consult with independent counsel
regarding the matter.
b) Yes, attorneys may represent conflicting parties as long as both clients give
informed consent and both parties’ confirm their consent in writing.
30
c) No, attorneys shall not ever represent conflicting parties, as it is impossible for
attorneys to provide competent and diligent services when representing conflicting
parties.
d) No, attorneys cannot representing conflicting parties when the parties are codefendants in criminal matters.
53. Attorney represented Husband in a divorce case against Wife. Several years later, Wife
contacted Attorney regarding filing an enforcement against Husband for Husband’s
failure to pay child support. Attorney called Husband at a phone number provided by
Wife. Attorney discussed the conflict with Husband and Husband advised that he was
not opposed to Attorney representing Wife. Attorney then accepted the case and filed
the enforcement. Is Attorney subject to discipline?
a) Yes, attorneys shall not represent persons whose interests would be materially
adverse to those of a prior client.
b) Yes, attorneys shall obtain informed consent, confirmed in writing, if representing
a person in a case in which that person’s interests would be materially adverse to a
previous client’s interests.
c) No, attorneys may represent a person whose interests are materially adverse to those
of a prior client, as long as the attorney advised the person seeking to retain the
attorney and makes a reasonable effort to contact the prior client.
d) No, attorneys are not prohibited from representing adverse parties as long as both
parties give informed consent.
54. Client manufactures a new generation of magnetic-resonance imaging machines for
medical diagnostics in hospitals. The machines sell for nearly one million dollars
apiece. Three years ago, Client hired Attorney to draft a Purchase and Sale Contract
for Client to use whenever Client sells one of the devices to a hospital. Attorney’s
representation of Client ended after drafting a model contract, and Attorney has done
no legal work for Client since. Last week, Hospital Administrator hired Attorney to
handle a dispute with the manufacturer of one of its high-end diagnostic machines.
Attorney quickly learns that the faulty device is one of Client’s magnetic-resonance
imaging machines, and that the Hospital Administrator consummated the purchase by
signing one of the contacts that Attorney had drafted. Hospital Administrator merely
seeks to rescind the contract and return the machine for a full refund; the hospital has
not yet incurred damages due to the faulty machine, but the device is unusable and was
very expensive. Would it be proper for Attorney to represent Hospital Administrator
in this case?
a) Yes, because Attorney’s representation of the manufacturer ended three years ago,
so there is no conflict of interest or direct adversity between Attorney’s current
clients.
b) Yes, because the hospital is not seeking any damages besides a refund of the
purchase price in exchange for returning the faulty machine, which merely puts the
manufacturer back in the same place as if the sale had never occurred; therefore,
31
Attorney’s representation of the Hospital Administrator would not be materially
prejudicial to the manufacturer.
c) No, because under the Rules of Professional Conduct, a lawyer could not properly
seek to rescind on behalf of a new client a contract drafted on behalf of the former
client.
d) No, because under the Rules of Professional Conduct, if a period of three years or
more has elapsed since the termination of representation for a former client, no
conflict of interest exists between the former client and new clients the lawyer
undertakes to represent.
55. Attorney began her career as a prosecutor at the District Attorney’s Office. During her
tenure as a prosecutor, she brought charges against an individual suspected of sending
ricin, a deadly toxin, in an envelope to a prominent politician, apparently in an
unsuccessful attempt to assassinate the public official. The jury found the evidence too
attenuated, and acquitted the defendant. Shortly thereafter, another person, who was a
member of a terrorist organization, confessed to sending the ricin and provided
extensive evidence of his plot to kill the politician to make a political statement.
Attorney resigned from the District Attorney’s Office partly out of humiliation over
this case, and went into private practice. Eighteen months later, the accused individual
decides to sue the government over wrongful arrest, slander, libel, and wrongful
prosecution over the case in which he obtained an acquittal. Attorney feels that her
superiors at the D.A.’s Office had pressured her to press charges in order to satisfy the
public uproar over the ricin letters, despite having scanty evidence that the accused
individual was actually guilty. Attorney offers to represent the accused individual in
his lawsuit against the government, partly to make amends or atone for her role in what
she now views as an abuse of government power and a great injustice. Would it be
proper for Attorney to handle this case, given her good intentions?
a) Yes, because the test for determining if an improper conflict of interest exists
between former clients and a new client is the lawyer’s subjective motivations in
undertaking the new representation, and in this instance, Attorney is merely trying
to make amends for her past mistakes.
b) Yes, because Attorney has a duty to repudiate her previous wrongful actions, and
her representation of the individual will send a strong message to other prosecutors,
which in turn serves the public interest.
c) No, a lawyer who has prosecuted an accused person could not properly represent
the accused in a subsequent civil action against the government concerning the
same transaction.
d) No, because a prosecutor cannot ethically “switch sides” and start representing
criminal defendants in public practice, regardless of whether the same individuals
are involved as clients.
32
56. Attorney previously represented Client in securing environmental permits to build a
shopping center. State and federal agencies granted the necessary permits.
Construction of the shopping center, however, did not begin immediately, because
demolishing the outdated structures on the land and clearing the debris exhausted
Client’s initial supply of investment funds. Attorney’s representation of Client ended
once the environmental permits were securely in hand. Two years later, Client found
another investor and was ready to begin construction. In the meantime, the residents
of the neighborhoods around the shopping center had turned against the project, out of
concerns for the increase in traffic and litter that it could bring to the area, as well as
the flooding of adjacent yards that would result from the rainwater runoff from a new
parking lot. The “Not In My Back Yard Association” (NIMBY Assoc.) formed and
learned that the rezoning of the property by municipal authorities to permit a shopping
center was still pending, with an upcoming public hearing on the schedule. NIMBY
Assoc. hired Attorney to represent the neighbors in opposing the rezoning on the basis
of environmental considerations. Would it be proper for Attorney to represent the
neighbors in this matter?
a) Yes, because Attorney’s representation of Client terminated more than a year and
a day prior to this, so there is no potential for betraying a current Client’s
confidential information by representing the adverse interests of the neighbors.
b) Yes, because Attorney’s prior representation of Client involved securing
environmental permits from state and federal authorities, and the new
representation would involve a rezoning hearing before a municipal authority.
c) No, because the matters are "substantially related," as there is a substantial risk that
confidential factual information that would normally have been obtained in the
prior representation would materially advance the client's position in the subsequent
matter, such as detailed reports about the potential environmental impact of
constructing the shopping center.
d) No, because the neighbors are acting in their own self-interest rather than thinking
about the greater good that would result from constructing the shopping center, and
even among the group of neighbors there are probably conflicts of interest
depending on who lives closest to the proposed shopping center.
Rule 1.9 Cmt. 3
57. Attorney previously represented Client in securing environmental permits to build a
shopping center. State and federal agencies granted the necessary permits.
Construction of the shopping center, however, did not begin immediately, because
demolishing the outdated structures on the land and clearing the debris exhausted
Client’s initial supply of investment funds. Attorney’s representation of Client ended
once the environmental permits were securely in hand. Two years later, Client found
another investor, overcame neighborhood opposition to the construction, obtained
favorable rezoning for the parcel, and constructed the shopping center. Several business
tenants moved in and operated in the shopping center. Eighteen months later, one of
the tenants, an organic pet food store, was unable to pay rent for her unit for two
33
consecutive months, so the property manager commenced eviction proceedings.
Tenant hired Attorney to represent her in the eviction proceedings, but the shopping
center’s lawyer filed a motion to have Attorney disqualified due to the substantial
relationship between his previous work in securing environmental permits for the
building and the present legal dispute with one of the shopping center tenants. Is
Attorney subject to disqualification from representing Tenant?
a) Yes, because he previously represented the developer who constructed the
shopping center, and is now representing a party with directly adverse interests to
the shopping center.
b) Yes, because the confidential information Attorney learned in the process of
securing environmental permits prior to construction would certainly be
substantially related to the nonpayment of rent by a tenant a few years later, after
the shopping center is operational.
c) No, because as a public policy matter, it is difficult for small business owners to
find and afford legal representation, especially when facing something as
potentially devastating as an eviction.
d) No, the matters are not substantially related because they do not involve the same
transaction or legal dispute, and the confidential information Attorney learned in
the process of securing environmental permits prior to construction would not relate
to the nonpayment of rent by a tenant a few years later, after the shopping center is
operational.
Rule 1.9 Cmt. 3
58. Businesswoman hired Attorney to represent her in a tax dispute with the government,
in which the government accused her of hiding assets in overseas accounts and failing
to report income from certain obscure investments. During this representation,
Attorney learned extensive private financial information about Businesswoman, but the
representation ended at the resolution of the tax case. Several years later, after the
termination had ended, the husband of the Businesswoman filed for divorce. Attorney
was the only lawyer the husband knew, so he retained Attorney to represent him in the
divorce against Businesswoman. Businesswoman’s lawyer moves to have Attorney
disqualified from representing the husband, but Attorney claims that the matters were
not substantially related enough to merit disqualification. Is Attorney correct?
a) Yes, because resolving disputes with a government entity involves numerous
procedural protections and administrative burdens of proof that are inapplicable in
divorce proceedings in Family Court.
b) Yes, because Attorney’s representation of Businesswoman terminated at the
resolution of the tax matter, so there is no potential for betraying a current client by
representing Businesswoman’s husband.
c) No, matters are "substantially related" if there is a substantial risk that confidential
factual information that would normally have been obtained in the prior
representation would materially advance the client's position in the subsequent
matter, such as personal financial information.
34
d) No, because Businesswoman’s troubles with the government over unpaid taxes are
probably what led to the divorce from her husband, and the stress that the tax case
put on the marriage is likely to be a major issue in the divorce proceeding.
Rule 1.9 Cmt. 3
59. Attorney worked for Big Firm in their intellectual property department, specializing in
patent applications and patent enforcement, as well as some trademark disputes for
clients. Unbeknownst to Attorney, the regular litigation department at Big Firm
undertook representation of a trucking company in defending against a personal injury
lawsuit over a roadway accident involving one of the trucks. Attorney worked in the
Washington, D.C. office of Big Firm, near the United States Patent and Trademark
Office, and the litigators handling the truck accident is in the firm’s Dallas office. Each
office of Big Firm has its own local computer network for sharing documents and files
between lawyers there. It is possible for lawyers at Big Firm to access the networks of
other satellite offices, however, with a special login that most lawyers never use.
Attorney has never accessed the files of the Dallas office except for one trademark case
four years ago. Attorney did not make partner at Big Firm, so he left and went to work
for a small plaintiff’s firm in Kansas. One of Attorney’s first case assignments was the
same truck accident case in which Big Firm was defending the trucking company –
Attorney’s new firm represents plaintiff in the case. Attorney was not aware of the
case or that Big Firm represented the trucking company until the new firm assigned
him to the case as second chair on the litigation. Is Attorney subject to disqualification
in this matter?
a) Yes, because even though Attorney did not have actual knowledge of confidential
information about the trucking company, he had the ability to access the files if he
had used a special login while he was at Big Firm, and this creates the appearance
of impropriety.
b) Yes, because Attorney’s work in the patent enforcement division of Big Firm gave
him some exposure to Big Firm’s behind-the-scenes approach to litigation
generally, as well as familiarity with Big Firm’s litigators, thus providing Attorney
with an unfair advantage, so both Attorney and the other lawyers in the new firm
would be subject to disqualification.
c) No, because Attorney now works for a firm in Dallas, and both offices of Big Firm
mentioned were in other states, where many of the lawyers would not have licenses
to practice law in Texas, so Attorney would be subject to disqualification, but not
the other lawyers in the new firm.
d) No, if a lawyer while with one firm acquired no knowledge or information relating
to a particular client of the firm, and that lawyer later joined another firm, neither
the lawyer individually nor the second firm is disqualified from representing
another client in the same or a related matter even though the interests of the two
clients conflict.
Rule 1.9 Cmt. 5
35
60. Attorney worked for a small plaintiffs’ firm in Dallas, Texas. The firm undertook the
representation of Victim, who suffered severe injuries in a traffic accident with a large
truck, allegedly due to the truck driver’s negligence. Attorney was not involved in the
case at all; another associate at the firm represented Victim in the lawsuit. Big Firm,
which has offices in several states, is defending the trucking company in the personal
injury lawsuit brought by Victim. Attorney’s small firm has a single office and a
computer network that allows the five lawyers there to share documents and files from
all their cases with each other. Any lawyer in the firm could access all of the other
lawyers’ documents, which saved time as lawyers could copy and paste from various
motions and pleadings that other lawyers had drafted previously on unrelated matters.
Every Thursday afternoon, there was a mandatory meeting of the lawyers in the firm,
in which they discussed whether to accept the cases of new potential clients, and they
discussed how the pending litigation of each lawyer was proceeding. The lawyers
exchanged advice and suggestions for one another’s cases. Attorney did not make
partner at the small firm, so he left and went to the Kansas satellite office of Big Firm
instead. Big Firm assigned Attorney to work on the trucking company case, the same
case in which his pervious firm represented the opposing party. Attorney had not
worked previously on the case and had heard about it only in passing during the weekly
litigation meetings at his previous firm, and now remembers almost nothing from the
conversations. Should Attorney be subject to disqualification from defending the
trucking company?
a) Yes, if a lawyer has general access to files of all clients of a law firm and regularly
participates in discussions of their affairs, it creates an inference that such a lawyer
in fact is privy to all information about all the firm's clients, and the burden of proof
should rest upon the firm whose disqualification is sought.
b) Yes, because Attorney is familiar with all the litigators at the firm of opposing
counsel and knows each of their strengths and weaknesses as litigators and what
strategies they like to use, which would give Attorney an unfair advantage in any
case in which they serve as opposing counsel.
c) No, if a lawyer while with one firm acquired no knowledge or information relating
to a particular client of the firm, and that lawyer later joined another firm, neither
the lawyer individually nor the second firm is disqualified from representing
another client in the same or a related matter even though the interests of the two
clients conflict.
d) No, because Attorney now works for a firm in Kansas and the opposing counsel
has its office only in Texas, so Attorney would not be subject to disqualification,
but not the other lawyers in the new firm would be if they have a Texas law license.
Rule 1.9 Cmt. 5
36
61. Attorney represented Husband twenty years ago in a divorce with Husband’s first
wife. Husband is a well-known local celebrity, a retired professional athlete who
became a semi-successful actor and an outspoken advocate of a radical political cause.
Recently, Husband’s third wife approached Attorney asking him to represent her in
obtaining a divorce from Husband. There are no children from the marriage – their
children from previous marriages are now adults – and the distribution of assets will
follow the terms of a carefully drafted prenuptial agreement between Husband and his
third wife, which Husband’s new lawyer drafted for them. Husband long ago provided
written informed consent for future conflicts of interest if Attorney represented another
party with adverse interests to Husband. Attorney does not believe that any
confidential information learned from representing Husband twenty years ago in his
first divorce will be relevant to the pending third divorce. On the other hand, there is
regular media coverage of Husband’s trysts and on-and-off sexual relationships with
various actresses and female socialites in the area, and marital infidelity could trigger
certain except clauses in the prenuptial agreement. Can Attorney use the information
about Husband’s recent indiscretions in representing the third wife?
a) Yes, as long as the Husband’s new lawyer provides written informed consent to the
use of the information in the divorce proceeding.
b) Yes, the fact that a lawyer has once served a client does not preclude the lawyer
from using generally known information about that client when later representing
another client.
c) No, not if Attorney learned confidential information about Husband having a
pattern of marital infidelity during his prior representation of Husband.
d) No, the fact that there is a prenuptial agreement with exceptions triggered by marital
infidelity should preclude Attorney from using such information.
Rule 1.9 Cmt. 8
62. Attorney worked at Big Firm, which was disqualified from representing Client in a
case because one of the other lawyers at the firm had a conflict of interest regarding a
former client, and this conflict was imputable to the entire firm. The firm was not
timely in implementing screening measures and became subject to disqualification.
Attorney was at the firm during this time, but was not involved in the matter and did
not learn any confidential information about Client. Attorney left that firm and went
to work at another firm. It turned out that Attorney’s new firm is representing Client
instead – Client hired the new firm after the previous firm was subject to
disqualification. The new firm has no measures in place to screen Attorney from
participation in the matter, though Attorney is not in fact participating in the
representation. Will the new firm be subject to disqualification now, because Attorney
joined the firm from another firm that was subject to disqualification?
a) Yes, because the “taint” that Attorney brings from being part of a firm disqualified
from the matter will now be imputable to the other lawyers in the new firm, without
adequate screening measures in place.
b) Yes, unless the opposing party gives informed consent, confirmed in writing, to the
new firm’s representation of Client despite Attorney’s presence at the firm.
37
c) No, there is no doctrine of double-imputation that would impute a purely imputed
conflict from Attorney onto the other lawyers in the new firm.
d) No, as long as Attorney receives no part of the fees received for the representation.
.
38
Rule
1.10
Imputation
of
Conflicts
of
Interest:
General
Rule
63. Attorney works for a firm where another lawyer is representing Defendant in a personal
injury lawsuit. The other lawyer has represented Defendant for a long time on
unrelated, non-litigation matters, but the personal injury lawsuit is a new case. Victim,
the plaintiff in the same personal injury lawsuit, was a college classmate of Attorney
and he asks Attorney to represent him in the litigation. Attorney has not learned any
confidential information yet about Defendant from his fellow associate at the firm, nor
has Attorney learned any confidential information from Victim during their preliminary
consultation. The firm decides to undertake the representation of Victim as well. The
firm will carefully screen Attorney and lawyer from one another, forbidding them to
discuss the case with each other or anyone else in the office, and ensuring that they do
not have access to each other’s files for the case. In addition, neither lawyer will receive
a bonus from the fees received for this litigation. Under the Rules of Professional
Conduct, is it proper for Attorney to represent Victim, given these circumstances?
a) Yes, as long as the firm provides notice to Defendant and Victim about the specific
screening procedures it has in place, and gives periodic certifications of compliance
with the screening procedures.
b) Yes, as long as both clients provide written informed consent to the conflict of
interest, after receiving a detailed explanation of the problems with common
representation, and neither party has its fees paid by a third party.
c) No, because the Rules of Professional Conduct impute the conflict of the other
lawyer to Attorney, and screening procedures do not apply to conflicts between
current clients.
d) No, unless Attorney has already represented Victim in previous unrelated matters
while working at another law firm, and joined the new law firm only recently.
64. Attorney works for a firm. She also describes herself as an outspoken advocate for the
rights of unborn children, that is, she passionately favors legal restrictions on abortion.
A local abortion clinic asks the firm to represent it in litigation over recent zoning
measures that would significantly limit its hours of operation and therefore number of
clients the clinic take. The firm agrees to the representation. Attorney firmly refuses
to have any part in the representation, and though no formal screening measures are in
place, everyone else in the firm avoids discussing the case with her or around her,
because they are afraid of receiving another lecture about the wrongfulness of abortion.
Early in the litigation, the judge considers disqualifying the firm because they employ
Attorney, who has a reputation in the community for her advocacy against legalized
abortion. Neither the clinic nor the opposing party (the municipal zoning authority)
provided written consent to a conflict of interest. Should the firm be subject to
disqualification in this case?
a) Yes, because the firm did not implement formal screening measures to ensure that
Attorney receives no confidential information about the case and cannot influence
the other lawyers working on the case.
b) Yes, because the firm did not obtain informed written consent from both parties to
the potential conflict of interest.
39
c) No, the firm should not be disqualified where one lawyer in a firm could not
effectively represent a given client because of strong political beliefs, but that
lawyer will do no work on the case and the personal beliefs of the lawyer will not
materially limit the representation by others in the firm.
d) No, because preserving women’s access to legalized abortion is such an important
fundamental right that it would be improper to limit the abortion clinic’s options
for representation in the matter, and other firms may also have conflicts of interest
that would preclude representation.
65. Attorney is a partner in a law firm, and owns $100,000 worth of stock in Conglomerate
Corporation, the named defendant in a new antitrust suit. Attorney’s total
compensation from the firm is around $15 million per year, including bonuses, and his
net worth is around $500 million. His home is worth about $7 million and Attorney
inherited it, so the property is unencumbered by any mortgage or liens. Attorney works
in a specialized area of law at the firm and does not have much interaction with the
other lawyers, except at parties and occasional partners’ meetings. Another lawyer in
the firm seeks to represent the plaintiffs in the antitrust action against Conglomerate
Corporation, which is not a client of the firm. Would it be proper for the firm to
represent the plaintiffs in litigation against Conglomerate Corporation?
a) Yes, as long as Attorney is not involved in the representation, there will be no
imputation of Attorney’s conflict of interest to the other lawyers in the firm,
because it is Attorney’s personal interest and does not present a significant risk of
materially limiting the representation of the client by the remaining lawyers in the
firm
b) Yes, as long as the plaintiffs provide written informed consent to the potential
conflict of interest, and the firm carefully screens the other lawyer representing
them from the rest of the firm.
c) No, because the personal interest of the firm’s managing partner in Conglomerate
is so great, relative to his earnings and assets, that there is a significant risk of
materially limiting the representation of the plaintiffs in their cause of action against
Conglomerate.
d) No, because it is a nonconsentable conflict of interest for firm to represent both
adverse parties in litigation.
66. Attorney is a managing partner in a law firm, and owns $100,000 worth of stock in
Conglomerate Corporation, the named defendant in a new antitrust suit. Attorney’s
total compensation from the firm is around $120,000 per year, including bonuses, and
his stock holdings in Conglomerate are his most valuable asset besides his home, which
is worth about $300,000 but Attorney has very little equity in it. Attorney supervises,
at least indirectly, all the associates in the firm. Another lawyer in the firm seeks to
represent the plaintiffs in the antitrust action against Conglomerate Corporation, which
is not a client of the firm. Would it be proper for the firm to represent the plaintiffs in
litigation against Conglomerate Corporation?
a) Yes, as long as Conglomerate provides written informed consent to the potential
conflict of interest, and the firm carefully screens Attorney from the case.
40
b) Yes, as long as the plaintiffs provide written informed consent to the potential
conflict of interest, and the firm carefully screens the other lawyer representing
them from the rest of the firm.
c) No, because the personal interest of the firm’s managing partner in Conglomerate
is so great, relative to his earnings and assets, that there is a significant risk of
materially limiting the representation of the plaintiffs in their cause of action against
Conglomerate.
d) No, because it is a nonconsentable conflict of interest for firm to represent both
adverse parties in litigation.
67. A legal secretary in a law firm is married to the owner of an independent retail-clothing
store. The firm undertakes representation of a clothing wholesaler, who is suing the
same independent clothing store over nonpayment for shipments of merchandise. The
legal secretary’s husband hires another firm to represent his store in the lawsuit, and
his lawyer asks the court to disqualify the legal secretary’s firm because of her position
there. Should the firm be subject to disqualification?
a) Yes, because the conflict of interest is too great where the defendant’s spouse works
for opposing counsel’s firm.
b) Yes, because the lawsuit involves nonpayment for a shipment of merchandise, and
the legal secretary indirectly benefited from her husband keeping these unpaid
funds.
c) No, as long as the firm screens the legal secretary from any involvement in the case
or from access to any confidential information about the case.
d) No, because the legal secretary is not a lawyer, so the Rules of Professional Conduct
do not apply to her personal conflicts of interest.
68. Attorney represented Small Business Associates while working at Big Firm, her first
law firm after law school. When Attorney did not make partner at the firm, she ended
her employment there and started her own new firm. Attorney took some of her clients
with her, including Small Business Associates, whom she continues to represent. Big
Firm no longer has Small Business Associates as a client. Big Firm then agrees to
represent Conglomerate Corporation in a trademark infringement case against Small
Business Associates, the first such case that the latter has ever faced. Can Big Firm
represent Conglomerate in a case against its former client, Small Business Associates?
a) Yes, as long as the matter is not the same or substantially related to that in which
Attorney formerly represented the client; and no lawyer remaining in the firm has
confidential information about Small Business Associates from when Attorney
represented them at that firm.
b) Yes, because otherwise the disqualification of the firm would constitute an
agreement not to provide representation to particular clients in the future, which
would violate the Rules of Professional Conduct.
c) No, unless Attorney’s new firm screens her from the litigation according to the
procedures set forth in the Rules of Professional Conduct.
41
d) No, unless Conglomerate provides written informed consent to the potential
conflict of interest
69. Attorney recently moved laterally to a new firm. Attorney’s previous firm represented
Conglomerate Corporation and Attorney occasionally worked on some of
Conglomerate’s legal matters. Attorney’s new firm has recently decided to represent
Plaintiffs in a lawsuit against Conglomerate, and the cause of action arises from a new
consumer protection statute that the state legislature passed in its last session. Attorney
had left the previous firm before the new lawsuit began, and will not work on the new
lawsuit at all. Would it be proper for Attorney’s new firm to represent the Plaintiffs in
an action that is directly adverse to Conglomerate Corporation?
a) Yes, as long as the new firm screens Attorney from the case, and provides written
notice to Conglomerate about its screening procedures, as well as periodic
certifications that the firm is indeed following the screening procedures regarding
Attorney.
b) Yes, as long as the new firm obtains written informed consent from Conglomerate,
and screens Attorney from the case, providing written notice to Conglomerate about
its screening procedures, and periodic certifications of compliance with the
screening protocols.
c) No, unless the firm obtains written informed consent from both the Plaintiffs and
from Conglomerate Corporation, and declines representation of the plaintiffs in this
case.
d) No, because Attorney has enough confidential information from working on
Conglomerate’s previous legal matters that there is a substantial risk that the firm
will have an unfair advantage in the litigation.
70. Years ago, as a law student, Attorney worked on a case for Client during a law firm
internship. Now, Attorney’s firm is representing a Defendant in a lawsuit in which
Client is the plaintiff. Client’s new lawyer moves to disqualify Attorney’s firm from
the representation when it learns that Attorney worked for another firm on behalf of
Client when Attorney was still a law student. Is Attorney’s firm subject to
disqualification in this case?
a) Yes, because when lawyers are associated in a firm, none of them shall knowingly
represent a client when any one of them practicing alone would be prohibited from
doing so
b) Yes, unless both parties provided written informed consent and waived the conflict
of interest at the beginning of representation.
c) No, as long as the firm screens Attorney from any personal participation in the
matter to avoid communication to others in the firm of confidential information that
both the nonlawyers and the firm have a legal duty to protect.
d) No, because Attorney was not yet a lawyer during the law student internship, and
therefore did not actually provide legal representation for Client in the previous
matter.
42
71. Attorney’s new firm agrees to represent Client in an action against Corporation, which
Attorney’s previous law firm has represented for many years, and continues to
represent in the present matter. Conglomerate’s lawyers, that is, Attorney’s previous
firm, moves to disqualify Attorney’s new firm from representing Client. The partners
at Attorney’s new firm were unaware that Attorney’s previous employer represented
Conglomerate, and the partners at her new firm first learned of this when they received
the motion to disqualify their firm. The firm immediately implemented screening
procedures to keep Attorney from working on the case or receiving or sharing any
confidential information about the case or about Conglomerate’s other legal matters.
The firm provided notice to opposing counsel about the screening procedures and plans
to provide periodic certifications of compliance as well. Should Attorney’s new firm
be subject to disqualification under these facts?
a) No, because they implemented appropriate screening procedures as soon as they
learned of Attorney’s conflict of interest, and provided notice to the opposing party.
b) No, because at this point disqualification would be very disruptive to the litigation
and prejudicial to Client.
c) Yes, unless Client provides written informed consent to waive the potential conflict
of interest.
d) Yes, because the new firm did not implement the screening procedures soon
enough.
72. Lawyer worked for law firm and represented Client. Sometime after the conclusion of
the case, Lawyer left law firm. Potential Client consults with firm after Lawyer left
and discusses a potential case with Attorney, another attorney at the firm. Potential
Client’s interests would be materially adverse to those of Client. Attorney accepts
Potential Client’s case. Is Attorney subject to discipline?
a) Yes, attorneys are imputed with knowledge of current or previous members of the
firm, and attorneys with imputed knowledge shall not accept cases of potential
clients whose interests would be materially adverse to those of a prior client of firm.
b) Yes, an attorney shall obtain the informed consent, confirmed in writing, of a client
of a prior attorney’s clients if the attorney is going to represent a different client
with materially adverse interests.
c) No, when an attorney leaves a law firm, the rules regarding conflicts of interest and
imputation do not apply.
d) No, prior attorneys’ knowledge is not imputed unless the matter is the same or
substantially related or another lawyer in the firm has information that is material
to the matter.
Rule 1.11 Special Conflicts of Interest for Former and Current Government Officers
and Employees
43
73. Attorney worked for several years for a federal government agency in regulatory
enforcement. Big Firm then hired Attorney for a substantially higher salary, and
Attorney accepted the position and left her government position. One of Attorney’s
first assigned cases at Big Firm was a new action by Client against the same
government agency for which Attorney had previously worked, challenging the
constitutionality of a new regulation that the agency had recently promulgated. While
at the agency, Attorney had not been involved with the review and promulgation of any
new regulations, including the one at issue in Client’s challenge, but instead worked
exclusively on enforcement litigation matters. Is Attorney subject to disqualification
in Client’s matter against Attorney’s former employer?
a) Yes, because Big Firm gave Attorney an unreasonably large salary increase for
leaving his public service position and joining Big Firm in the private sector, which
creates a conflict of interest.
b) Yes, unless the federal government agency is will to provide written informed
consent to Attorney’s representation in the case.
c) No, because Attorney did not participate personally and substantially in the matter
as a public officer or employee
d) No, because the case involves a constitutional challenge to the validity of a
regulation, not the financial interests of Client or government as would be
recognized if the case involved fines, fees, or penalties.
74. Attorney worked for several years for a federal government agency in regulatory
enforcement. Big Firm then hired Attorney for a substantially higher salary, and
Attorney accepted the position and left her government position. One of Attorney’s
first assigned cases at Big Firm was a new action by Client against the same
government agency for which Attorney had previously worked, defending against an
enforcement action that Attorney had initiated while at the agency. The defense will
involve challenging the constitutionality of a new regulation that the agency had
recently promulgated. While at the agency, Attorney had not been involved with the
review and promulgation of any new regulations, including the one at issue in Client’s
challenge, but instead worked exclusively on enforcement litigation matters. Is
Attorney subject to disqualification in Client’s matter against Attorney’s former
employer?
a) No, because Big Firm gave Attorney an unreasonably large salary increase for
leaving his public service position and joining Big Firm in the private sector, which
creates a conflict of interest.
b) No, because the federal government agency cannot consent to Attorney’s personal
conflict of interest now that Attorney has left the agency
c) Yes, because the case involves a constitutional challenge to the validity of a
regulation, not the financial interests of Client or government as would be
recognized if the case involved fines, fees, or penalties.
d) Yes, because Attorney participated personally and substantially in the matter as a
public officer or employee
75. Attorney worked for several years for a federal government agency in regulatory
enforcement. Big Firm then hired Attorney for a substantially higher salary, and
44
Attorney accepted the position and left her government position. One of Attorney’s
first assigned cases at Big Firm was a new action by Client against the same
government agency for which Attorney had previously worked, defending against an
enforcement action that Attorney had initiated while at the agency. The defense will
involve challenging the constitutionality of a new regulation that the agency had
recently promulgated. While at the agency, Attorney had not been involved with the
review and promulgation of any new regulations, including the one at issue in Client’s
challenge, but instead worked exclusively on enforcement litigation matters. The
government agency gives its informed consent, confirmed in writing, to the
representation. Is Attorney nevertheless subject to disqualification in Client’s matter
against Attorney’s former employer?
a) Yes, because allowing Big Firm to give government lawyers an unreasonably large
salary increase for leaving his public service position and joining Big Firm in the
private sector creates a conflict of interest for all lawyers in government service.
b) Yes, because Attorney participated personally and substantially in the matter as a
public officer or employee
c) No, because the case involves a constitutional challenge to the validity of a
regulation, and Attorney was not personally and substantially involved in the
drafting or promulgation of the regulation.
d) No, because the appropriate government agency gave its informed consent,
confirmed in writing, to the representation.
Rule 1.11(a)(2)
76. Attorney worked for several years for a federal government agency in regulatory
enforcement. Big Firm then hired Attorney for a substantially higher salary, and
Attorney accepted the position and left her government position. One of Attorney’s
first assigned cases at Big Firm was a new action by Client against the same
government agency for which Attorney had previously worked, defending against an
enforcement action that Attorney had initiated while at the agency. The defense will
involve challenging the constitutionality of a new regulation that the agency had
recently promulgated. While at the agency, Attorney had not been involved with the
review and promulgation of any new regulations, including the one at issue in Client’s
challenge, but instead worked exclusively on enforcement litigation matters. The
government agency refuses to consent to Attorney representing Client, who is the
adverse party to the agency, in this matter, and seeks to disqualify Big Firm from
representing Client. Is Big Firm subject to disqualification in Client’s matter against
Attorney’s former employer?
a) Yes, because allowing Big Firm to give government lawyers an unreasonably large
salary increase for leaving his public service position and joining Big Firm in the
private sector creates a conflict of interest for all lawyers in government service.
b) Yes, because Attorney participated personally and substantially in the matter as a
public officer or employee, and cannot recuse herself from representing Client, and
the appropriate government agency gives its informed consent, confirmed in
writing, to the representation.
45
c) No, as long as Big Firm has policies and procedures in effect to supervise
Attorney’s work closely enough to ensure compliance with the Rules of
Professional Conduct.
d) No, as long as Big Firm screens Attorney in time from any participation in the
matter and provides the agency with prompt written notice about the screening
measures in effect.
Rule 1.11(b)
77. The Comment to Rule 1.11, “Special Conflicts of Interest for Former & Current
Government Officers & Employees” offers several policy interests that the rule seeks
to balance. Which of the following is NOT one of the state policy interests?
a) “A lawyer should not be in a position where benefit to the other client might affect
performance of the lawyer's professional functions on behalf of the government.”
b) “Unfair advantage could accrue to the other client by reason of access to
confidential government information about the client's adversary obtainable only
through the lawyer's government service.”
c) “If experience in government service makes lawyers excessively marketable
thereafter in the private sector, or results in excessive financial rewards for lawyers
with government experience once they enter the private sector, lawyers may enter
government service for the wrong reasons or out of self-interest, rather than acting
in the public interest.”
d) “The rules governing lawyers presently or formerly employed by a government
agency should not be so restrictive as to inhibit transfer of employment to and from
the government. The government has a legitimate need to attract qualified lawyers
as well as to maintain high ethical standards.”
Rule 1.11 Cmt. 4
78. Attorney worked for several years for a federal government agency in regulatory
enforcement. Big Firm then hired Attorney for a substantially higher salary, and
Attorney accepted the position and left her government position. One of Attorney’s
first assigned cases at Big Firm was a new action by Client against Conglomerate
Corporation. Attorney had worked on an enforcement against Conglomerate
Corporation and learned confidential governmental information about the entity during
the litigation. The government agency gives its informed consent, confirmed in
writing, to the representation. Is Attorney nevertheless subject to disqualification in
Client’s matter against Attorney’s former employer?
a) Yes, Attorney has confidential government information about a person acquired
while working for the government agency, and therefore may not represent a private
client whose interests are adverse to that person in a matter in which the information
could be used to the material disadvantage of that person.
b) No, because Attorney did not previously represent Client or Conglomerate
Corporation, so there is no Attorney-Client Privilege or conflict of loyalties here
between two clients that Attorney is representing or has represented.
c) No, because the appropriate government agency gave its informed consent,
confirmed in writing, to the representation.
46
d) No, as long as Big Firm has policies and procedures in effect to supervise
Attorney’s work closely enough to ensure compliance with the Rules of
Professional Conduct, including training sessions about the conflict of interest
rules.
Rule 1.11(c)
79. Attorney worked for several years for a federal government agency in regulatory
enforcement. Big Firm then hired Attorney for a substantially higher salary, and
Attorney accepted the position and left her government position. One of Attorney’s
first assigned cases at Big Firm was a new action by Client against Conglomerate
Corporation. Attorney had worked on an enforcement against Conglomerate
Corporation and learned confidential governmental information about the entity during
the litigation, but Attorney does not know, and has no reason to know, that the
information is confidential government information. Attorney is under the reasonable
impression that all the information she learned about Conglomerate Corporation is now
public information. The government agency gives its informed consent, confirmed in
writing, to the representation. Is Attorney nevertheless subject to disqualification in
Client’s matter against Attorney’s former employer?
a) Yes, Attorney has confidential government information about a person acquired
while working for the government agency, and therefore may not represent a private
client whose interests are adverse to that person in a matter in which the information
could be used to the material disadvantage of that person.
b) No, because the appropriate government agency gave its informed consent,
confirmed in writing, to the representation.
c) No because Attorney does not have confidential government information about
Conglomerate that she knows is confidential government information.
d) Yes, because Attorney did not previously represent Client or Conglomerate
Corporation, so there is no Attorney-Client Privilege or conflict of loyalties here
between two clients that Attorney is representing or has represented.
Rule 1.11(c)
80. Attorney worked for several years for a federal government agency in regulatory
enforcement. Big Firm then hired Attorney for a substantially higher salary, and
Attorney accepted the position and left her government position. One of Attorney’s
first assigned cases at Big Firm was a new action by Client against Conglomerate
Corporation. Attorney had worked on an enforcement against Conglomerate
Corporation but did not learn any confidential governmental information about the
entity during the litigation, but other lawyers who worked on the litigation before and
after Attorney did learn confidential government information. Conglomerate
Corporation seeks to disqualify Attorney from the representation of client, arguing that
the confidential government information known to Attorney’s previous employer,
while Attorney worked there, is imputable to Attorney. The government agency gives
its informed consent, confirmed in writing, to the representation. Is Attorney
nevertheless subject to disqualification in Client’s matter against Attorney’s former
employer?
47
a) Yes, because Attorney’s experience in litigating against Conglomerate Corporation
as a government lawyer gives Attorney an unfair advantage in the current litigation,
as Attorney is now familiar with Conglomerate’s litigation strategies and corporate
hierarchy.
b) Yes, because Attorney participated personally and substantially in the matter as a
public officer or employee.
c) No, because the appropriate government agency gave its informed consent,
confirmed in writing, to the representation.
d) No, because Attorney does not have confidential government information about
Conglomerate Corporation, and the Rules of Professional Conduct require actual
knowledge on the part of the former government lawyer litigating against a private
party; it does not operate with respect to information that merely could be imputed
to the lawyer.
Rule 1.11 Cmt. 8
81. Attorney worked for Big Firm for several years, during which he represented
Conglomerate Corporation on several matters. At the beginning of representation in
each matter, Attorney obtained written informed waiver of future conflicts of interest
from Conglomerate Corporation, specifically including the possibility that Attorney
might later represent the government in unrelated matters adverse to Conglomerate
Corporation. Attorney eventually left Big Firm and went to work for Federal
Regulatory Agency, in its enforcement and litigation division. On behalf of Federal
Regulatory Agency, Attorney then brought an enforcement action against
Conglomerate Corporation for some very recent regulatory violations. The new matter
was mostly unrelated to any previous work Attorney performed for Conglomerate
Corporation. Is Attorney subject to disqualification in this matter?
a) Yes, because as a government lawyer Attorney will presumably gain confidential
government information about Conglomerate Corporation that he could use to
Conglomerate’s disadvantage.
b) Yes, because Attorney’s experience in representing Conglomerate Corporation
before being a government lawyer gives Attorney an unfair advantage in the current
litigation, as Attorney is now familiar with Conglomerate’s litigation strategies and
corporate hierarchy
c) No, as long as the appropriate government agency gives its informed consent,
confirmed in writing.
d) No as long as Conglomerate Corporation ratifies its earlier waiver of future
conflicts of interest.
Rule 1.11(d)(2)(i)
82. Attorney worked for several years for a federal government agency in regulatory
enforcement. Attorney was involved in several enforcement matters against
Conglomerate Corporation. Big Firm has always represented Conglomerate
Corporation in all its litigation and regulatory compliance matters. Attorney made a
good impression on the Big Firm partners when serving as opposing counsel in the
same litigation. At the end of a deposition of Conglomerate Corporation’s executives
during the discovery phase of an enforcement proceeding, Big Firm partners
48
approached Attorney privately and asked if Attorney would be interested in leaving the
agency for a position at Big Firm. Attorney explained that they would have to match
his current salary at the government agency in order for him to consider the proposal.
Big Firm then scheduled an employment interview with Attorney, at the end of which
they offered to double his salary if he left the agency and accepted a position at Big
Firm. Attorney decided to postpone making a decision until the pending agency
enforcement matters against Big Firm’s client were complete, in order to avoid the
appearance of a conflict of interest. The matters dragged on for another year, however,
and Big Firm eventually withdrew its offer. Is Attorney subject to discipline?
a) No, because Attorney decided to postpone making a decision until the pending
agency enforcement matters against Big Firm’s client were complete, in order to
avoid the appearance of a conflict of interest.
b) No, because Big Firm eventually withdrew its offer and Attorney never actually
went to work for Big Firm.
c) Yes, because a lawyer currently serving as a public officer or employee shall not
negotiate for private employment with any person who is involved as a party or as
lawyer for a party in a matter in which the lawyer is participating personally and
substantially.
d) Yes, because Big Firm offered to double Attorney’s salary instead of merely
matching his current government salary, which creates a substantial conflict of
interest for Attorney in any pending or future matters.
Rule 1.11(d)(2)(ii)
83. Attorney spent several years working for the state Office of the Attorney General in
its environmental litigation division. While there, Attorney began a case against a scrap
metal facility for burying toxic materials on its grounds. Attorney then left government
service and went to work for Big Firm. There, Attorney began representing a group of
neighboring landowners in a lawsuit against the same scrap metal facility over the same
burying of toxic material, as it had polluted the groundwater and had migrated to
adjacent properties underground. Is it proper for Attorney to represent these plaintiffs?
a) Yes, as long as the new clients provide written informed consent.
b) Yes, because the new clients’ interests match those of Attorney’s government
employer, and there is no indication of adverse interests being present between
them.
c) No, a lawyer who has pursued a claim on behalf of the government may not pursue
the same claim on behalf of a later private client after the lawyer has left
government service, except when authorized to do so by the government agency.
d) No, because Attorney is using the prestige of having worked in government service
to attract new clients, which creates a conflict between Attorney’s self-interest and
the public interest represented by the government agency.
Rule 1.11 Cmt. 3
49
84. Attorney spent several years working for Big Firm in its business litigation division.
While there, Attorney represented Client in an action against Conglomerate
Corporation alleging unfair trade practices and antitrust violations. Attorney
eventually left Big Firm and accepted a position at a federal regulatory agency. There,
Attorney’s first assignment was to bring an enforcement action against Conglomerate
Corporation for violating antitrust laws and unfair trade practice laws. Attorney
obtained written informed consent from his previous Client to pursue a related matter
against Conglomerate, but not from the agency itself or from Conglomerate
Corporation. Is it proper for Attorney to represent the government in an enforcement
action against his prior opponent, if the matter is substantially related?
a) Yes, because the interests of Attorney’s previous Client and his new employer
align, rather than being adverse, so there is no conflict of interest.
b) Yes, because the conflict of interests rules apply to attorneys leaving government
service for private practice, but here, Attorney has done the opposite, going from
private practice to government service.
c) No, a lawyer who has pursued a claim on behalf of a private client may not pursue
the claim on behalf of the government, unless the appropriate government agency
gives its informed consent, confirmed in writing.
d) No, because Attorney did not obtain written informed consent from Conglomerate
Corporation at the outset of the new enforcement action, even though the action is
directly adverse to Conglomerate Corporation.
Rule 1.11 Cmt. 3
85. A subcontractor on a highway construction project negligently damaged the General
Contractor’s equipment and simultaneously inflicted property damage on a state
building storing the equipment. The relevant state office, along with the general
contractor, hire Attorney to represent them in a lawsuit against the subcontractor. The
state client and the private party each provide written informed consent to potential
conflicts of interest in the form of a waiver. Is it proper for Attorney to represent both
the government and a private party at the same time?
a) Yes, the fact that the state represents the public interest cancels out and potential
conflict of interest on the part of the private party and makes the Rules of
Professional Conduct inapplicable.
b) Yes, The Rules of Professional Conduct do not strictly prohibit a lawyer from
jointly representing a private party and a government agency
c) No, because the general contractor’s interests are purely financial, while the state’s
interests involve a balancing of various competing interests of the general public.
d) No, unless the subcontractor also provides written informed consent to Attorney’s
joint representation of the two parties that were once contractual partners with the
subcontractor.
Rule 1.11 Cmt 9
86. Attorney worked for several years as a city attorney for a large municipality in its
employment litigation division, defending the municipality against employmentrelated lawsuits from city employees, including discrimination claims. Attorney then
left that position and went to work for a federal regulatory agency, the Equal
50
Employment Opportunity Commission. The EEOC is sometimes an adverse party to
the municipality where Attorney once worked. Even when not involved in the same
matter or litigation, their goals and interests are often adverse, as the city attorneys are
usually arguing for limitations on employer liability in discrimination cases, while the
EEOC generally seeks to expand protections for workers against discrimination by
employers. At her new position, Attorney has no assignments that are the same cases
or matters in which she participated as a city attorney, but there are a number of cases
pending in the office that are adverse to the interests of her former employer, and some
in which they are opposing parties in the same litigation. Must the EEOC screen
Attorney from such cases in the same way that a private firm would need to do under
the Rules of Professional Conduct?
a) Yes, because when a lawyer is disqualified from representation, no lawyer in the
agency with which that lawyer is associated may knowingly undertake or continue
representation in such a matter without screening measures in place.
b) Yes, because Attorney may know confidential government information that would
provide an unfair advantage to the lawyers at the EEOC.
c) No, when a lawyer is employed by a city and subsequently is employed by a federal
agency, the latter agency is not required to screen the lawyer.
d) No, because it is more important, from a policy standpoint, to stop employment
discrimination everywhere than it is to protect the legal interests of one
municipality against its own employees.
Rule 1.11 Cmt. 5
87. After law school, Attorney worked for two years as a judicial clerk for a federal district
judge. A few months before her clerkship was to end, Attorney applied for positions
at several law firms in the area and interviewed with them for a position as an associate.
All of these firms had matters pending before the federal district court, but Attorney
did not tell the firms that she was aware that they had some matters on her judge’s
docket, and the interviewers at the firms did not bring up that they were appearing
regularly before the judge that currently employed Attorney as a clerk in chambers. In
each case, however, the employers were impressed that Attorney had obtained a
judicial clerkship and asked her general questions about how she liked her experience
at the courthouse. Attorney submitted to each firm a recommendation letter written on
her behalf from the judge before whom they had pending matters. The judge knew that
Attorney was interviewing with these firms and did not object or correct her about it at
all. Is Attorney subject to discipline for seeking employment with firms that have
pending matters before the judge for whom she works as a clerk?
a) Yes, because a lawyer working for the government may not negotiate for private
employment with any person who is involved as a party or as lawyer for a party in
a matter in which the lawyer is participating personally and substantially
b) Yes, because Attorney failed to disclose that she knew the firms had matters
pending before her judge, and failed to tell the firms what she knew about their
cases.
51
c) No, a lawyer serving as a law clerk to a judge, other adjudicative officer, or
arbitrator may negotiate for private employment in the manner described here.
d) No, because the firms failed to disclose to her that they had pending matters before
the federal judge that currently employed Attorney as a judicial clerk.
Rule 1.11(d)
Rule 1.12
Former Judge, Arbitrator, Mediator
88. Attorney, who often serves as a court-appointed mediator, was appointed to mediate
the divorce case between Husband and Wife. The case settled in mediation and the
divorce was finalized soon after. A year later, Husband sought to retain Attorney to
represent him in a modification suit against Wife. Attorney accepted the case and sent
a letter to Wife advising Wife that Attorney had been retained by Husband to represent
Husband in a modification suit. Are Attorney’s actions proper?
a) Yes, an attorney who previously served as a third-party neutral may represent any
party in a suit connected to the previous matter if the attorney provides proper
notice to the other party in writing.
b) Yes, an attorney who previously served as a third-party neutral may represent any
party in a suit connected to the previous matter if the previous case occurred more
than one year before the third party neutral began representation of one of the
parties.
c) No, an attorney who previously served as a third-party neutral is required to obtain
informed consent, confirmed in writing, from all parties to the proceeding prior to
representing a party in a suit connected to the previous matter.
d) No, an attorney who previously served as a third-party neutral shall not represent
any party in a suit connected to the previous matter.
Rule 1.12
89. Attorney was a state hearing officer for the Workers Compensation Board. Attorney
left that position and opened his own law firm, primarily representing parties before
the state Workers Compensation Board. One of the cases is the final rehearing of a
case in which Attorney had presided as hearing officer at an initial preliminary hearing
and ruled on preliminary matters, but Attorney left the Board without issuing any final
decision in the case and the Board transferred the matter to another hearing officer.
Attorney represents the injured worker, Client, and the employer is Manufacturer. All
the parties involved give informed consent, confirmed in writing, for Attorney to
represent Client. Is Attorney subject to discipline for representing Client in this matter?
a) Yes, because a lawyer shall not represent anyone in connection with a matter in
which the lawyer participated personally and substantially as a judge or other
adjudicative officer.
b) Yes, because the type of conflict of interest described here is nonconsentable, so it
is irrelevant that all the parties provided informed written consent.
52
c) No, as all the parties involved provided informed written consent to the
representation, despite the obvious conflicts of interest at stake.
d) No, the conflict of interest rules do not apply to merely administrative hearing
officers who are not actual judges, arbitrators, or mediators.
Rule 1.12
90. Attorney spent several years working on the state intermediate appellate court as one
of its nine justices, in a state in which such judges run for election in the general
elections every four years. When Attorney ran for re-election, she lost, and needed to
return to private practice. Client wants Attorney to represent her in her appeal of a state
trial verdict. The case previously came up on appeal before the state intermediate
appellate court, but Attorney was not on the panel that decided the case. The state
Supreme Court subsequently reversed the decisions of both the appellate court and the
trial court, and remanded the case for a new trial. The new trial resulted in an
unfavorable verdict for Client, so she wants to appeal the case again. Would it be
proper for Attorney to represent her in this matter?
a) No, because the appeal will come before the very court for which Attorney worked
as a judge, and the panel could include some of Attorney’s former colleagues.
b) No, because the state Supreme Court already reversed the decision of the state
intermediate appellate court, so it is improper for Client to appeal the remanded
case back to the same state intermediate appellate court again, as this could thwart
the intentions of the Supreme Court.
c) Yes, because it was not the judge’s fault that the state Supreme Court reversed the
previous appellate decision, making a new trial and subsequent appeals necessary,
and that the opposing party has not settled the case in the meantime.
d) Yes, because a judge who was a member of a multimember court, and thereafter
left judicial office to practice law, is not prohibited from representing a client in a
matter pending in the court, but in which the former judge did not participate.
91. Attorney was a judge for several years. Near the end of her tenure as a judge, she
functioned in the role of the chief administrative judge in that court, assigning cases to
the other judges and supervising their work, and had only a limited docket of her own
trials. Attorney then left the bench and opened her own law practice. Attorney agrees
to represent Client in a matter in the same court house where Attorney formerly served
as a judge. Attorney even remembers the case, but only the names of the parties and
the nature of the action, because she assigned it to the trial judge who currently has the
case on his docket, but Attorney had no other involvement in the matter. Client’s
previous lawyer in the matter was subject to disqualification at the motion of the
opposing party due to a conflict of interest. Is it proper for Attorney to represent Client
in this matter?
a) Yes, the fact that a former judge exercised administrative responsibility in a court
does not prevent the former judge from acting as a lawyer in a matter where the
judge had previously exercised remote or incidental administrative responsibility
that did not affect the merits.
53
b) Yes, as long as all the parties to the matter provide informed consent, confirmed in
writing, to the representation.
c) No, because she previously supervised the trial judge hearing the case, and even
assigned the case to that judge.
d) No, because Client’s previous lawyer was already subject to disqualification due to
a conflict of interest in the matter.
92. Attorney was a judge but has left that job and joined Big Firm. Another lawyer at Big
Firm represents Client in a case on the docket at the same court where Attorney worked
as a judge. In fact, as a judge, Attorney ruled on some of the pre-trial motions in the
case, mostly evidentiary motions. The firm has screening measures in place to screen
Attorney from any participation in the matter. Attorney will receive no part of the fee
from the matter, and timely notice went to the parties about the screening measures in
place. The other parties, however, did not provide informed written consent to Big
Firm’s representation of Client. Is it proper for the other lawyer at Big Firm to continue
representing Client in this matter?
a) No, because a lawyer shall not represent anyone in connection with a matter in
which the lawyer participated personally and substantially as a judge, and if a
lawyer is disqualified, no lawyer in a firm with which that lawyer is associated may
knowingly undertake or continue representation in the matter.
b) No, because a lawyer shall not represent anyone in connection with a matter in
which the lawyer participated personally and substantially as a judge, and the other
parties did not provide informed consent, confirmed in writing, to the
representation.
c) Yes, as long as Big Firm also provides timely notice to the appropriate tribunal as
well, so that the tribunal may ascertain compliance screening measures.
d) Yes, as long as Attorney is not receiving a salary or partnership share established
by prior independent agreement.
Rule 1.12(c)(2)
54
ANSWER KEY: CONFLICTS
Rule 1.7
1. c
2. b
3. d
4. a
5. b
6. a
7. c
8. a
9. b
10.a
11.c
12.c
13.c
14.d
Conflict of Interest: Current Clients
15.a
16.c
17.b
18.a
19.a
20.c
21.b
22.d
23.a
24.c
25.c
26.c
27.c
28.c
Rule 1.8
41.d
42.a
43.a
44.a
45.d
46.c
47.c
48.a
49.c
50.b
51.a
Conflict of Interest - Current Clients: Specific Rules
Rule 1.9
52.b
53.b
54.c
55.c
56.c
57.d
58.c
59.d
60.a
61.b
62.c
Duties to Former Clients
55
29.b
30.a
31.c
32.a
33.a
34.a
35.a
36.c
37.d
38.c
39.b
40.a
Rule 1.10
63.c
64.c
65.a
66.c
67.c
68.a
69.a
70.c
71.d
72.d
Imputation of Conflicts of Interest: General Rule
Rule 1.11 Special Conflicts of Interest for Former and Current Government Officers and
Employees
73. c
81. c
74. d
82.c
75. d
83.c
76. d
84.c
77. c
85.b
78. a
86.c
79. c
87.c
80. d
Rule 1.12
88.c
89.c
90.d
91.a
92.c
Former Judge, Arbitrator, Mediator
56
THE CLIENT-LAWYER RELATIONSHIP
(10–16%, 6-9 Questions of the 60 on MPRE)
1.
2.
3.
4.
5.
6.
7.
8.
Scope, objective, and means of the representation – Rule 1.2
Decision-making authority—actual and apparent – Rule 1.2
Counsel and assistance within the bounds of the law – Rule 1.4
Communications with the client – Rule 1.4, Rule 1.14
Formation of client-lawyer relationship – Rule 1.4-1.5
Client-lawyer contracts – Rule 1.5
Fees – Rule 1.5
Termination of the client-lawyer relationship – Rule 1.16
57
Rule 1.2
Scope of Representation and Allocation of Authority Between Client
and Lawyer
93. Client meets with Attorney to discuss certain financial decisions Client is considering
making in the future. Attorney discusses the pros and cons of making the decisions,
but does not give a recommendation to Client. Client goes on to make the financial
decisions and ultimately is filed upon by the IRS for tax fraud. Is Attorney subject to
discipline?
a) No, because an attorney may analyze and give an opinion about the likely
consequences of a client’s conduct.
b) Yes, because the attorney’s advice is construed as assisting a client in committing
fraud.
c) Yes, because an attorney shall not give advice to clients for actions they anticipate
making, especially if those actions might expose the client to criminal or fraudulent
liability.
d) No, because attorneys are authorized to give opinions and provide any
recommendations to their clients, and the attorneys are not held liable for the
decisions of their clients, even if made at the recommendation of the attorney.
94. Parent retains Attorney to represent Defendant, who is Parent’s 16-year-old child
accused of shoplifting. Because Parent is paying for his services and because
Defendant is a minor, Attorney generally communicates with Parent about the
proceedings, options for disposing of the case, and other case-related issues. After
speaking with Parent about a plea deal that would allow Defendant to do several
community service hours and have the case dismissed, Parent advises Attorney that
Defendant will take the deal. Attorney contacts the prosecutor who sends the
paperwork for Defendant to complete and then cancels the court appearance, advising
the Court that a plea deal has been reached. Are Attorney’s actions proper?
a) No, attorneys are required to continue a normal relationship with their client as
much as possible, even if the client has diminished capacity.
b) Yes, minor children are considered incapacitated, and attorneys can deal solely with
the parents or guardians of a minor when handling cases for the minor.
c) Yes, as long as the deal is not unreasonable to the minor, attorneys have no
obligation to work directly with their client’s capacity is diminished.
d) No, attorneys are not required to continue communication with a client with
diminished capacity, but are required to allow the client to make the final decision
on the client’s case, even if client’s capacity is diminished.
95. Attorney represents Defendant in a criminal case in which Defendant is accused of
assault causing bodily injury. Defendant details the events that led to the charge to
Attorney. Attorney believes Defendant is not guilty and has defeated such charges
against other clients in the past. Defendant asks Attorney to get him the best possible
plea deal and explains that he does not want to take the case to trial. Attorney contacts
58
Prosecutor who offers Defendant a reasonable settlement, but it requires the Defendant
to serve jail time. Attorney refuses the offer and tells Defendant they are taking the
case to trial because Prosecutor did not offer ideal plea. Is Attorney subject to
discipline?
a) Yes, because attorneys shall abide by client decisions regarding plea deals,
regardless of the attorney’s opinion about the guilt or innocence of the defendant.
b) Yes, because attorneys are not authorized to make any decisions or give advice
based on his or her own opinions about the case.
c) No, because attorneys shall not accept plea deals in criminal cases if the attorney
believes his or her client is innocent.
d) No, because attorneys are impliedly authorized to refuse plea deals if they do not
find them acceptable.
96. Attorney has always practiced exclusively in the area of business transactional work
and has no litigation experience. Client has used Attorney’s services on a number of
occasions related to her business transactions. In one instance, Attorney prepared a
detailed non-compete agreement for client to use with a nationally known
mathematician whom Client hired to work on Client’s predictive coding algorithms.
The mathematician, however, left Client’s firm and began working for Client’s main
business rival, apparently in violation of the non-compete agreement. Client asked
Attorney to bring an enforcement action against the mathematician. Attorney declined
to represent Client in the litigation, and reminded Client that their previous retainer
agreement over the non-compete agreement specifically stated that Attorney’s
representation would include only the drafting and related transactional work, and
would not include litigation to enforce or nullify the non-compete agreement. Would
Attorney be subject to discipline for including this provision in his agreement to
represent Client?
a) No, because a lawyer may reasonably limit the scope of the representation, by
informed agreement with the client, at the beginning of the representation, and
refusing to do litigation is a typical limitation on the scope.
b) No, because the Attorney has no litigation experience and could not competently
have represented Client in the enforcement action.
c) Yes, because under the Rules of Professional Conduct, a client has the sole right to
determine the scope of the representation.
d) Yes, because the Rules of Professional Conduct forbid lawyers from preparing noncompete agreements or similar documents that limit employees’ ability to practice
in their field.
97. Attorney represents Client, who is a defendant in a criminal matter. Defendant faces
felony charges. Attorney is very experienced in handling this type of case, and knows
from experience that defendants receive acquittals far more often in jury trials than in
bench trials, at least with this type of case. Client, however, does not want to incur the
legal fees involved in jury selection (voir dire, etc.), and cannot really afford it, so
59
Client tells Attorney that he does not want a jury trial, but rather a bench trial. Attorney
is convinced that Client is innocent of the crimes charged, and that a bench trial is likely
to result in a wrongful conviction in this particular case, given some of the evidentiary
issues. Attorney postpones notifying the court that the defendant will waive his right
to a jury trial, in hopes of changing Client’s mind. The court schedules jury selection,
and Attorney goes and participates in the voir dire without telling his client, because he
still hopes and believes that he will change his client’s mind about the issue. On the
first day of trial, Client arrives in court and is shocked to see a jury seated. Defendant
stands and objects loudly to the jury and explains that he wants to waive his right to a
jury trial and have a bench trial instead. The judge refuses to dismiss the jury at this
point, informing the defendant that his opportunity to request a bench trial has passed.
The trial proceeds and the jury acquitted Client of all charges, as Attorney had
expected, and to the apparent dismay of the judge, who would have ruled to convict if
it were up to him. Is Attorney subject to discipline in this situation?
a) Yes, because the client missed the important opportunity to participate in voir dire
and the selection of the jury, and will have to pay legal fees that he did not want to
incur.
b) No, because the defendant suffered no harm from the Attorney’s decision, as the
jury gave a complete acquittal and the judge apparently would have given an
unfavorable verdict.
c) Yes, because in a criminal case, the lawyer shall abide by the client's decision, after
consultation with the lawyer, as to whether to waive jury trial.
d) No, as long as Attorney does not bill Client for the day spent on jury selection,
because clients normally defer to the special knowledge and skill of their lawyer
with respect to the means to be used to accomplish their objectives, particularly
with respect to technical, legal and tactical matters.
Rule 1.2(a)
98. Attorney represented Client in litigation over a breach of contract. After a long period
of discovery, as the trial date approaches, the two parties make a new attempt at
settlement negotiations, with each party’s lawyer acting as representative. Client is the
plaintiff in the case, and has told Attorney on several occasions that she will not
consider any settlement offer less than $100,000. Client is a sophisticated business
owner who has weathered litigation many times in the past, including litigation over a
breach of a nearly identical contract term. Based on her experience, Client has made
an informed estimate that her chances of winning a $250,000 verdict at trial are almost
exactly 50%, and that trial expenses are likely to be around $50,000 whether she wins
or loses, and from there she derived her reserve amount of $100,000. Attorney met
with Client the evening before Attorney would meet with opposing counsel for
negotiations, and Client reiterated her reserve amount to Attorney, adding, “Do not
even call me if the opposing party offers less than $100,000 – I will not accept it, and
I want you to simply decline lowball offers.” The next day, Client leaves on a business
trip, and Attorney heads to the settlement negotiation meeting, where opposing counsel
offers $90,000 to settle plus a written apology from the defendant to Client for
60
breaching their contract. May Attorney reject this offer without first consulting with
Client?
a) Yes, because Clients have a right to dictate the overall objectives of the
representation, but the lawyer has a right to decide the means of achieving that
objective.
b) No, because a lawyer who receives from opposing counsel an offer of settlement in
a civil controversy must promptly inform the client of its substance
c) Yes, because the client has previously indicated that the proposal will be
unacceptable and has authorized the lawyer to reject the offer.
d) No, because Client’s method of deriving her $100,000 reserve amount is obviously
unreasonable.
Rule 1.2 Cmt 3
99. Attorney represented Defendant in a criminal case involving serious felony charges.
Defendant rejected all proffered plea bargains from the prosecutor, and insisted upon a
jury trial, and he then expressed his desire to testify at his trial to assert his innocence.
Attorney knew that it would be a disaster for Defendant to testify. First, Defendant
initially confessed to the crime, but Attorney managed to have the confession excluded
due to a technical defect in the Miranda warnings; Attorney believed that the otherwise
excluded confession will become admissible for impeachment purposes if Defendant
took the stand and tried to assert a contradictory version of the facts. Defendant also
has a long record of prior convictions involving fraud and embezzlement, which also
would otherwise be inadmissible at trial, but will become admissible to impeach
Defendant’s credibility if Defendant actually testifies. Even worse, Attorney has
confidential information that Defendant committed several related crimes to those
charged in the case, and the prosecutor would probably be able to elicit testimony
implicating Defendant in additional crimes if Defendant waives his Fifth Amendment
rights and insists on taking the stand. Attorney knows the prosecutor in the case is
notorious for aggressive cross-examination of witnesses at trial, and even teaches
special training courses to other litigators on how to conduct merciless, devastating
cross-examination. Finally, Defendant is not very articulate; he constantly uses street
slang, gratuitous profanity, and incorrect grammar when speaking, which combined
with his odd mannerisms, would be very alienating for most jurors. Attorney angrily
explains all of this to Defendant, and then reminds Defendant that he already rejected
several generous plea offers, insisted on a jury trial in a case where a bench trial would
have been more strategic, and now is about to lose any chance of winning at trial due
to his insistence about testifying. Attorney ends by saying, “There is no way I will
allow you to testify in this case; it would be malpractice on my part.” Defendant
understands this to mean that he has no choice, so he gives up and does not testify. The
trial went well and the jury acquitted Defendant of all charges. Would Attorney be
subject to discipline under these circumstances?
a) Yes, because he spoke angrily with his client and made unnecessary references to
the client’s speech and mannerisms, showing extreme insensitivity and disrespect;
he also deprived the client of a good opportunity to explain his side of the story
about all the previous cases in which he received convictions.
61
b) No, because Clients have a right to dictate the overall objectives of the
representation, but the lawyer has a right to decide the means of achieving that
objective, and leaving out the client’s testimony shortened the trial time and thereby
reduced the legal fees the client would owe to the lawyer.
c) Yes, in a criminal case, the lawyer shall abide by the client's decision, after
consultation with the lawyer, as to whether the client will testify.
d) No, because the defendant suffered no harm from the Attorney’s decision, as the
jury gave a complete acquittal, and Attorney was clearly correct in his reasoning
about why it would backfire if Defendant testified at trial.
Rule 1.2(a)
100. Client hired Attorney to represent her in a personal injury lawsuit in which Client
is the plaintiff. After an initial consultation and two meetings to review the main
evidence in case and to discuss the nature of the claims, Attorney drafted the initial
pleadings, served the opposing party, and filed the pleadings in the appropriate court.
Attorney did not allow Client to review the pleadings before filing them, and afterward,
Client expresses disappointment that she did not have the opportunity to review the
pleadings beforehand and make suggested edits, given that it is her case and that
Attorney is working for her. Was it proper for Attorney to draft the pleadings based on
conversations with the plaintiff and file the documents without first having the plaintiff
review them?
a) Yes, because a lawyer may take such action on behalf of the client as is impliedly
authorized to carry out the representation.
b) Yes, unless Client is an English teacher or a professional editor, and might therefore
have special expertise in proofreading texts for grammatical errors and stylistic
problems.
c) No, because a lawyer shall abide by a client's decisions concerning the objectives
of representation and shall consult with the client as to the means by which they are
to be pursued.
d) No, because Attorney may have to spend time later revising the pleadings, which
could affect the legal fees in the case, and such revisions may have been
unnecessary if someone else had proofread Attorney’s draft before filing it.
Rule 1.2(a)
101. Client is the leader of a radical religious group that protests at the funerals of
soldiers who died tragic combat deaths overseas. The protests are not against the war,
however, but against society’s increasing tolerance of homosexuality and gay marriage.
Client and his followers stand outside the funerals as grieving family members arrive,
and they hold large picket signs emblazoned with hateful sayings against homosexuals,
some of which use shocking language. They also hold signs indicating they are happy
that American soldiers die frequently, because they believe these deaths validate their
point that the country is on the wrong course morally, and has become evil by being
more tolerant. The group heckles those attending the funerals, but then disperses once
62
the funeral ceremony starts. The group receives regular national media coverage
because of the intentionally sensational and shocking nature of their protests. Client
now faces a tort lawsuit by the father of a deceased soldier whose funeral the group
picketed; the plaintiff claims intentional and negligent infliction of emotional distress.
Client is certain that his First Amendment rights trump such subjective-harm tort
claims, and has a recent Supreme Court case supporting his position. Client asks
Attorney to represent him in the matter. Attorney reluctantly agrees to take the case
and the trial court gives an unfavorable verdict against Client. After the case, reporters
interview Attorney asking how he could represent such a client and Attorney states
during the interviews that he did not necessarily endorse the client’s religious, social,
moral, or political views, but was merely providing representation. Are Attorney’s
actions proper in this case?
a) Yes, because Attorney did not win the case on behalf of this client, so justice was
served in the end, as this client advocates intolerance of others in our society.
b) No, because Attorney has a duty under the Rules of Professional Conduct to refuse
representation of a client if he cannot endorse the client’s political, social, or moral
views, especially those who preach intolerance and hate.
c) No, because Attorney lost the case, and then tried to justify himself in the media by
denying any endorsement of the client’s political, social, and moral views.
d) Yes, because a lawyer's representation of a client does not constitute an
endorsement of the client's political, economic, social, or moral views or activities.
Rule 1.2(b)
102. Defendant was indigent and received court-appointed defense counsel, Attorney, in
his felony larceny case. Defendant insisted that he was completely innocent and that
he would not accept any plea bargains, because he wanted an opportunity to prove his
innocence at trial. When Defendant told Attorney his expectations, Attorney explained
that there is a special type of plea called an “Alford Plea,” in which a defendant may
agree to accept a conviction while still contesting his guilt or maintaining his
innocence. Defendant refused, and told Attorney, “Do not even contact me with offers
from the prosecutor for a guilty plea. I will not plead guilty, but will prove my
innocence in a court of law!” The prosecutor indeed made several plea offers, and each
time Attorney presented the offer to Defendant, who rejected it and reminded Attorney
that he did not want to be bothered with any offers to “make a deal.” Defendant’s hard
line proved effective as a negotiating strategy, and eventually the prosecutor called
Attorney to say they would reduce the charges to a misdemeanor and the sentence to
“time served” if Defendant would plead guilty. Attorney thought this was a
ridiculously generous offer but simply rejected it without consulting his client. Client
proceeded to trial and the jury convicted him, and he received the maximum possible
sentence for the crimes charged. Was it proper for Attorney to reject the final plea
bargain offer without informing the client?
a) Yes, because Clients have a right to dictate the overall objectives of the
representation, but the lawyer has a right to decide the means of achieving that
objective.
63
b) Yes, because the client has previously indicated that the proposal will be
unacceptable and has authorized the lawyer to reject the offer.
c) No, because a lawyer who receives from opposing counsel a proffered plea bargain
in a criminal case must promptly inform the client of its substance.
d) No, because the ultimate result was a conviction and a severe sentence for
Defendant, which he could have avoided by accepting the final plea offer.
Rule 1.2 Cmt 3
103. Attorney represents Defendant in a murder case. At trial, the jury convicted
Defendant and sentenced him to death, and the appellate courts upheld the conviction
as well as the sentence. Attorney has now offered to file a habeas corpus petition in
federal court in order to appeal the case to the United States Supreme Court, if
necessary. Defendant, however, has developed terminal cancer, and does not expect to
live another six months. Defendant tells Attorney to drop the appeals because even if
they won, Defendant would not live long enough to enjoy his freedom. Defendant does
not terminate the representation, however, because he wants Attorney to handle his
estate planning matters while he is on death row, and he has some administrative
complaints in progress against the prison where he is living. Attorney is passionately
opposed to the death penalty and believes his client is innocent, so he files the habeas
petition anyway. While the habeas petition is making its way through the federal
appellate process, Defendant succumbs to his illness and dies in prison. Is Attorney
subject to discipline for filing the habeas petition, despite the client’s reservations?
a) Yes, because the appeals are clearly a waste of public resources in a case where the
defendant will die anyway before the appeals process would be complete.
b) No, because filing appeals is merely a matter of strategy and methods, and lawyers
do not have to defer to the client about strategy and methods.
c) No, because the client died before the Attorney’s actions produced any real results
that could affect the client.
d) Yes, because a lawyer shall abide by a client's decisions concerning the objectives
of representation and shall consult with the client as to the means by which they are
to be pursued.
104. An attorney represents criminal defendants. One day, a client appeared in the
attorney’s office and explained that he had been blackmailing his former employer for
the last year. The client had hired a prostitute to seduce the former employer in a room
with hidden cameras, then showed the embarrassing photographs to his former
employer and demanded monthly payments of $500, which the employer paid, not
wanting to destroy his marriage. The prostitute subsequently died of a drug overdose.
The client’s former employer eventually tired of making the monthly blackmail
payments, and went to the police about the matter. The client is now worried that he
will face charges for blackmail, which would violate his parole and result in a lengthy
incarceration. Client retained the only copies of the photographs, as he merely showed
them to the former employer a year ago in order to extort the payments. After the client
64
explained all this to his attorney, he gave the attorney the documents and instructed the
attorney to destroy them or hide them so that the police could not find them. Attorney
put the photos in a folder marked ATTORNEY WORK PRODUCT - PRIVILEGED
AND CONFIDENTIAL, and sent the folder to a secret overseas document storage
service in the Caymans. The police obtained an arrest warrant for the client based on
the former employer’s affidavit, and at trial, the prosecutor obtained a conviction based
on the employer’s testimony and the bank records showing the monthly transfers. Is
the attorney subject to discipline?
a) Yes, because the lawyer was clearly incompetent or negligent if he lost the trial
even without the prosecutor having the photographs or the prostitute’s testimony to
admit as evidence.
b) Yes, because a lawyer shall not assist a client in conduct that the lawyer knows is
criminal or fraudulent, such as destroying evidence when there is a pending
criminal investigation.
c) No, because the court convicted the client anyway, so the lawyer’s feeble attempt
to help the client made no difference to the outcome.
d) No, because once the client told the lawyer about the matter privately and gave him
the documents, they were covered by attorney-client privilege.
Rule 1.2(d)
105. An insurer retained Attorney to represent it in a matter, and requested a retainer
agreement that limited the representation to matters related to the insurance coverage.
The insurance was a homeowner’s policy for damage to the policyholder’s residential
real estate, and included a rider for premises liability. The incident that triggered the
claim, however, involved the brutal murder of a woman and her two young children
across the street from the house in a neighbor’s driveway. Due the limited scope of his
representation, however, Attorney ignored the horrific deaths and the fact that the
known killer had escaped conviction on a technicality. In a cool and calculated matter,
Attorney focused his work exclusively on the property damage from the incident and
the premises liability, and obtained a favorable outcome for the insurer. Was it proper
for Attorney to limit the scope of his representation in this way?
a) Yes, when an insurer retains a lawyer to represent an insured, the representation
may be limited to matters related to the insurance coverage; a limited representation
may be appropriate because the client has limited objectives for the representation.
b) Yes, because investigating the murders after the suspected killer obtained a
conviction would violate the double jeopardy clause of the Constitution.
c) No, because lawyer may limit the scope of the representation only if the limitation
is reasonable under the circumstances and the client gives informed consent, and
here the limitation was not reasonable.
d) No, because an attorney has a duty to investigate and discover the truth about what
happened, and it would violate public policy to allow lawyers to act in a cool and
calculated manner when human lives are at stake.
Rule 1.2 Cmt. 6
65
106. Client hired Attorney to research the legality of a musical “mash-up,” a sound
recording that includes brief sound clips and samples from many other artists’
commercial recordings. The client’s particular approach puts it in the gray area around
“fair use” and “composite works of art” under prevailing copyright law, and no court
has yet ruled on the precise issue, though the question has been the subject of seventeen
lengthy law review articles in the last two years, reaching a range of different
conclusions. No litigation is pending and Client has not yet undertaken any activity
that could constitute a copyright infringement; he is seeking reassurance before
proceeding that he would not face liability for copyright infringement. Because Client
primarily wants a memoranda of law answering his hypothetical legal question, he asks
Attorney to limit his research and writing to two hours of billable time. Attorney
agrees, spends an hour reading and an hour writing, and gives the Client a short
memoranda. Given that the client's objective was limited to securing general
information about the law the client needs, was it improper for Attorney to agree to this
limitation on the scope of representation up front?
a) Yes, because given the complexity of the subject and the uncertainty about this
particular point of law, two hours was not a reasonable amount of time to yield
advice upon which the client could rely.
b) Yes, because the other artists have a right to receive compensation for their creative
work, and Attorney is helping Client potentially infringe on other artists’
copyrights.
c) No, because the client's objective was limited to securing general information about
the law the client needs, so the lawyer and client may agree that the lawyer's
services will be limited to an hour of research and an hour of writing.
d) No, because Client probably cannot afford to have Attorney read through seventeen
tedious law review articles and try to formulate some kind of synthesis of the
positions they advocate.
Rule 1.2 Cmt. 7
107. Client calls Attorney to ask if it is possible to apply for an extension on filing his
annual tax returns, if the deadline for filing returns is still two weeks in the future.
Attorney offers to research the matter for a few hours and write a formal legal
memoranda for Client about filing extensions. Even so, off the top of his head,
Attorney can assure the Client over the phone that it is indeed possible to apply for an
extension and that the IRS routinely grants them if they receiving the application for
extension before the regular deadline. Attorney practices in the area of tax law and is
familiar with the rules. Client thanks the Attorney and says that he is satisfied with the
“short answer,” and that he does not want Attorney to do any more research or writing
about it, but rather to send a bill for the phone call. Attorney agrees and bills Client for
the telephone conversation, and conducts no further research on the matter. Is it proper
for Attorney to limit his representation to a single telephone call like this?
a) Yes, because Client's objective is limited to securing general information about the
law the client needs in order to handle a common and typically uncomplicated legal
problem, so the lawyer and client may agree that the lawyer's services will be
limited to a brief telephone consultation.
66
b) Yes, because the lawyer should defer to the client about costs and the objectives of
the representation, and should not assist a client in committing a crime or fraud,
such as tax evasion.
c) No, because such a limitation on the representation does not allot sufficient time to
yield advice upon which the client could rely, and the client could face devastating
fines for being late with his tax returns.
d) No, because such an agreement ignores the legal knowledge, skill, thoroughness
and preparation reasonably necessary for the representation.
Rule 1.2 Cmt. 7
108. Husband hired Attorney to represent him in a divorce; the husband and wife had
three adult children. Husband was quite upset when he met with Attorney, because his
wife had filed for divorce and he felt deeply betrayed. The couple had a prenuptial
agreement that clearly delineated the division of assets in case of divorce, and child
custody is not an issue as the children are in their twenties. As part of his routine
consultation questions, Attorney asked if there had been any marital infidelity on the
part of either the husband or wife. Husband admitted to Attorney that he once had an
affair many years ago, that the wife never discovered, and that he wanted to keep secret,
if possible. He then speculated that he had no idea if his wife had ever had an affair,
then became very emotional as he considered the possibility. Within minutes, he had
convinced himself that his wife had been having affairs with other men for years,
though he never knew it, and that the three children were probably not even his
offspring. Attorney had already looked at Husband’s photograph of his children, and
their resemblance to their father (Husband) was remarkable. Attorney finds repugnant
the idea of subjecting the adult children to paternity tests, which would probably
traumatize them unnecessarily, regardless of the result. Attorney also believes that
accusing the wife of infidelity would be imprudent, as it will ensure that the family
would discover Husband’s previous affair, which otherwise might not happen. Without
the accusations of infidelity, all the issues of the divorce would come under the
prenuptial agreement and not be in dispute. Attorney insists on limiting his
representation to the divorce, and wants to include in the retainer agreement that there
will be no accusations of infidelity or paternity testing of the children, unless the other
side initiates in this regard. After Husband calms down, he agrees to Attorney’s
conditions of representation. Is it proper for Attorney to insist on such conditions of
representation?
a) Yes, because it would be fraudulent for the husband to accuse the wife of marital
infidelity, of which there is no evidence, while hiding the fact that he himself had
an affair.
b) No, because there is always a chance that the other party in a divorce was guilty of
marital infidelity, and the children should get to know with absolute certainty who
is their real father.
c) Yes, the terms upon which representation is undertaken may exclude specific
means that might otherwise be used to accomplish the client's objectives, such as
actions that the lawyer regards as repugnant or imprudent.
67
d) No, because the lawyer should always defer to the client about the objectives of the
representation, while the client should defer to the lawyer about the means of
achieving the goals of the representation.
Rule 1.2 Cmt. 6
109. Client explains to Attorney that he is operating an illegal website where users can
anonymously upload and download pirated music and videos, in violation of copyright
laws and other anti-piracy statutes. The website is very lucrative for its operator, and
Client has become a multimillionaire by founding and operating the site. Client is
concerned about potential criminal charges or civil lawsuits over the website. Attorney
explains to Client how he could use a series of dummy limited liability corporations,
mail forwarding addresses, and offshore bank accounts in order to avoid detection.
Each of the steps of the process Attorney describes is technically legal – creating the
corporate entities, purchasing real mail-forwarding services, and opening bank
accounts in Belize. Attorney decides not to charge Client for this advice session, but
bills Client for other transactional work performed. Is Attorney subject to discipline?
a) Yes, because Attorney did not bill Client for the consultation, apparently in
violation of their regular retainer agreement.
b) No, because the individual steps that Attorney proposed would be legal in isolation,
and merely gave an honest opinion about the actual consequences that appear likely
to result from a client's conduct.
c) Yes, because a lawyer must avoid assisting a client in fraudulent or criminal
activity, which includes suggesting how the wrongdoing might be concealed.
d) No, because Attorney did not bill the client for the advice, and therefore did not
benefit personally from counseling the Client
Rule 1.2 Cmt 10
110. After Attorney has been representing Client in a transactional matter for six months,
Client asks Attorney to draft and deliver some documents that Attorney knows are
fraudulent. Attorney tries to dissuade Client, but Client insists. Attorney believes the
recipient of the documents will probably realize they are fraudulent before irreparable
harm happens to the recipient. Client is willing to sign a private document for Attorney
in which Client takes full responsibility for the fraud and states that Attorney was
merely following orders and is not blameworthy in the matter. Would it be improper
for Attorney to acquiesce, and draft and deliver the documents according to Client’s
instructions?
a) Yes, because the waiver of responsibility document that the Client signed
constitutes a personal transaction between the lawyer and client, for which Client
should have had the advice of outside counsel.
b) Yes, because a lawyer is required to avoid assisting the client, for example, by
drafting or delivering documents that the lawyer knows are fraudulent.
c) No, because the Model Rules of Professional Conduct confer upon the client the
ultimate authority to determine the purposes to be served by legal representation.
68
d) No, because Attorney reasonably believes that the recipient of the documents will
suffer no irreparable harm, and Client is will to assume full responsibility for the
action, confirmed in writing.
Rule 1.2 Cmt. 9
111. Attorney explains to Client that certain features of Client’s business proposal would
constitute money laundering under current federal statutes. Attorney explains the
statute in detail, and explains why the course of action would meet the statutory
definition of money laundering. Attorney explains the various monitoring and
reporting mechanisms that federal enforcement agencies have in place to detect money
laundering, in an attempt to convince Client that he would not escape arrest and
prosecution if he proceeds. Client absorbs the information and uses it to structure a
more elaborate money-laundering scheme that exploits some ambiguity in the statute
and the reporting requirements to make his enterprise much more difficult to detect,
and complicates enforcement and prosecution efforts against him. Attorney’s advice
turned out to be incredibly useful to Client in avoiding detection and expanding his
criminal enterprise. Is Attorney a party to Client’s course of action?
a) No, because Attorney’s subjective intentions were not wrong in the situation.
b) No, because the fact that a client uses advice in a course of action that is criminal
or fraudulent of itself does not make a lawyer a party to the course of action.
c) Yes, because there is no distinction between presenting an analysis of legal aspects
of questionable conduct and recommending the means by which a crime or fraud
might be committed with impunity.
d) Yes, because a lawyer may not discuss the legal consequences of any proposed
criminal course of conduct with a client and or counsel a client to determine the
validity, scope, meaning or application of the law.
Rule 1.2 Cmt. 10
112. Client is an inexperienced drug dealer and consults with Attorney about the legal
ramifications of his business. Without explicitly endorsing or encouraging Client in
his criminal enterprise, Attorney conducts research at Client’s request about various
drug laws and sentencing guidelines. Attorney writes a detailed memorandum of law
explaining that certain threshold quantities of drugs, according to the relevant statutes,
create a presumption of “intent to distribute” or trigger a significant sentencing
enhancement. Similarly, Attorney explains that statutes and sentencing guidelines
impose higher-grade charges and severe sentencing enhancements if a drug dealer
brings a firearm to a transaction. Client mulls over the information and decides to
change his business model from bulk sales of narcotics to selling smaller quantities in
more individual transactions, such that each sale constitutes only the lowest-level
misdemeanor. Client also instructs all his subordinates to avoid carrying firearms and
instead to refill pepper spray devices with hydrochloric acid, which they spray in the
face of their opponents in any altercation, causing severe disfigurement. Is it proper
for Attorney to provide such legal advice to Client?
69
a) Yes, because a lawyer 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.
b) Yes, because the Rules of Professional Conduct confer upon the client the ultimate
authority to determine the purposes to be served by legal representation, within the
limits imposed by law and the lawyer's professional obligations.
c) No, because off attorney-client privilege and the duty of confidentiality.
d) No, because a lawyer is required to avoid assisting the client in criminal activity by
suggesting how the wrongdoing might be concealed.
Rule 1.2(d)
113. Attorney represents Client in a drug trafficking case. Client asks Attorney to
deliver a package to a friend of Client. Client tells Attorney that the package contains
illegal drugs but assures Attorney he will not reveal that Attorney made the delivery if
police discover that the transfer was made. Attorney advises that he will not participate
in the transfer. Attorney does not advise the Court of Client’s request and remains
Client’s attorney on the drug trafficking case. Are Attorney’s actions improper?
a) No, because an attorney is not required to decline or withdraw from cases unless
the client demands that the attorney engage in illegal conduct.
b) No, because attorney has no obligation to withdraw from a case as long as he does
not engage in illegal activity with or for a client.
c) Yes, because an attorney must decline or withdraw from representing a client if the
client asks that the attorney engage in illegal conduct.
d) Yes, because an attorney must notify the court if his client asks or demands that he
engage in illegal activity.
Rule 1.4
Communications
114. Attorney represents Client in a transactional matter, a complex business merger.
The parties have agreed in advance, by contract, to engage in good-faith negotiations,
but that if an agreement does not emerge within six months, either party can abandon
the deal and cease negotiations. Three months into the negotiations, the parties are
very close to a final agreement. Attorney has been conducting the negotiations without
Client present, checking in with Client from time to time. One day, the other party
presents a detailed proposal that would resolve all remaining issues, and would give
each side most of what it wants, but also requires a few concessions from each party.
Attorney calls Client immediately and gives a brief overview of the new proposal,
hitting most of the highlights and carefully explaining the bottom-line concerning the
final buyout price to complete the merger. Client gives Attorney consent to
consummate the agreement. Could Attorney be subject to discipline for how he
handled the final agreement?
a) Yes, because it is improper for a lawyer to make an agreement in advance to reach
a settlement or other final agreement by a certain date, so that parties will abandon
negotiations after that point.
70
b) Yes, when there is time to explain a proposal made in a negotiation, the lawyer
should review all important provisions with the client before proceeding to an
agreement, and the facts suggest that Attorney did not necessarily explain all the
concessions that Client would have to make.
c) No, because Attorney was impliedly authorized by Client to work out all important
provisions of the agreement, and Client does not need to know all the details.
d) No, because Attorney obtained Client’s consent about the bottom line before
proceeding to a final agreement.
Rule 1.4 Cmt 5
115. Attorney represents Client in a litigation matter. Client was not present during the
last pre-trial hearing at which the lawyers argued about whether certain experts on each
side could testify at trial. The trial was to start the following week. At the end of the
hearing, the opposing counsel asked the court to have the record sealed in the upcoming
trial, and to have reporters banned from the courtroom. He explained that the testimony
at trial would necessarily reveal some of his client’s trade secrets, and it was important
to the client to keep the trial records sealed. The judge was amenable to this suggestion
and asked Attorney if he had any objections. Attorney tried to call Client, but Client
did not answer his phone right then. Attorney could not think of a compelling reason
for Client to oppose the motion, so he agreed, and the judge set the matter for a sealedrecord trial. Client never returned Attorney’s call, and Attorney did not explain what
had transpired until they arrived at the court for the first day of trial. Client was
dismayed because he had planned to use this litigation as a test case for subsequent
litigation over the same type of issue, but Attorney explained that it would now be
difficult to get the judge to reverse course on this point. Is Attorney subject to discipline
in this case?
a) Yes, because even when an immediate decision must be made during trial, and the
exigency of the situation may require the lawyer to act without prior consultation,
the lawyer must promptly inform the client of actions the lawyer has taken on the
client's behalf.
b) Yes, because the importance of the action under consideration and the feasibility of
consulting with the client meant the lawyer’s duty required consultation prior to
taking action.
c) No, because the opposing party’s request was reasonable, and even if Attorney had
asked Client and Client disapproved, Attorney could not have ethically objected to
the request.
d) No, because it was proper for the lawyer to defer to the judge on this question, lest
he risk angering the judge or unnecessarily inconveniencing the opposing party.
Rule 1.4 Cmt 3
116. Attorney represents Client in a litigation matter. Client was not present during the
last pre-trial hearing at which the lawyers argued about whether certain experts on each
side could testify at trial. The trial was to start the following week. At the end of the
hearing, the opposing counsel asked the court to have the record sealed in the upcoming
71
trial, and to have reporters banned from the courtroom. He explained that the testimony
at trial would necessarily reveal some of his client’s trade secrets, and it was important
to the client to keep the trial records sealed. The judge was amenable to this suggestion
and asked Attorney if he had any objections. Attorney tried to call Client, but Client
did not answer his phone right then. Attorney could not think of a compelling reason
for Client to oppose the motion, so he agreed, and the judge set the matter for a sealedrecord trial. Three hours later, Client returned Attorney’s call, and Attorney explained
what had transpired. Client was dismayed because he had planned to use this litigation
as a test case for subsequent litigation over the same type of issue, but Attorney
explained that it would now be difficult to get the judge to reverse course on this point.
Was it proper for Attorney to agree to the request without obtaining Client’s prior
consent?
a) Yes, because the opposing party’s request was reasonable, and even if Attorney had
asked Client and Client disapproved, Attorney could not have ethically objected to
the request.
b) Yes, because during a trial, when an immediate decision must be made, the
exigency of the situation may require the lawyer to act without prior consultation,
as long as the lawyer promptly informs the client of actions the lawyer has taken
on the client's behalf.
c) No, because the importance of the action under consideration and the feasibility of
consulting with the client meant the lawyer’s duty required consultation prior to
taking action.
d) No, because a lawyer must promptly consult with and secure the client's consent
prior to taking action unless prior discussions with the client have resolved what
action the client wants the lawyer to take.
Rule 1.4 Cmt 3
117. Client is a second-year law student at a state law school. Client’s Professional
Responsibility professor forbid the use of the Internet by students during class sections,
out of frustration that students spend the class sessions on social networking sites or
doing email, and tune out the professor. The school’s student handbook also strictly
forbids use of the school’s wireless computer network, which provides the only Internet
access inside the building, during class sessions unless the professor permits it. Client
visited a social networking site during a class session, and when the professor
discovered it, he had the student arrested for violating the state’s Computer Fraud and
Abuse Act, which imposes civil and criminal penalties for unauthorized use of a
government computer network. Client, the student, hires Attorney to represent him.
Attorney is shocked that the police and prosecutor are involved in such a ridiculous
case, and is reasonably certain a judge would dismiss the charges before trial. The
prosecutor calls Attorney and explains that the District Attorney regards this as an
important test case and wants to bring it to trial, but they will offer a plea bargain of
only twenty years in prison if the student will plead guilty and accept responsibility.
Attorney blurts out a profanity and hangs up on the prosecutor. He does not even
mention the offer to Client, out of fear that it would upset him, and instead drafts a
72
motion to dismiss. The court grants the motion and dismisses the charges against
Client. Is Attorney subject to discipline?
a) Yes, because a lawyer should show respect and decorum toward opposing parties
and lawyers, and using profanity or hanging up on someone is a clear violation of
the Rules of Professional Conduct.
b) Yes, because a lawyer who receives from opposing counsel a proffered plea bargain
in a criminal case must promptly inform the client of its substance unless the client
has previously indicated that the proposal will be acceptable or unacceptable or has
authorized the lawyer to accept or to reject the offer.
c) No, because the prosecutor’s offer was unreasonable and the case was frivolous, so
there was no duty to discuss such an offer with the client.
d) No, because the dismissal of the charges in this case meant that the client was far
better off than if he had considered the plea bargain offered by the prosecutor.
Rule 1.4 Cmt 2
118. Attorney represents Client in a guardianship proceeding. Client is an adult with
Down’s Syndrome and has an IQ far below average, in the “mental retardation” range
of the DSM-IV. Client’s family is trying to have Client institutionalized involuntarily,
and Client is fighting this, wanting instead to live semi-independently in a group home.
With the help of a social worker, Client has hired Attorney to defend him against the
legal proceedings to have Client institutionalized permanently. Having researched this
type of case, Attorney knows that case precedents give Client a small chance of
prevailing in regular state court, but a good chance of prevailing if Attorney can change
the venue to family court or probate court. Attorney has not discussed with Client his
decision to seek a change of venue that would be more favorable to Client under that
jurisdiction’s recent appellate decisions. Switching venue, however, will mean
traveling much further (more than an hour) to the proceedings. Is it proper for Attorney
to leave Client out of this decision entirely?
a) Yes, as long as the lawyer explains to the Client that the probate or family court is
much further away.
b) Yes, fully informing the client according to the usual ethical standards may be
impracticable, because the client suffers from diminished capacity.
c) No, because a lawyer should always provide information that is appropriate for a
client who is a comprehending and responsible adult.
d) No, because Attorney should defer to the client’s parents, given that the client has
diminished capacity.
Rule 1.4 Cmt 6
119. Attorney represented Client in litigation over a breach of contract. After jury
selection but before the opening arguments of trial the following Monday, the opposing
party contacted Attorney with a settlement offer. Attorney, an experienced litigator,
was familiar with opposing counsel from previous cases, and knew that opposing
counsel always follows up an initial settlement offer with a better offer a day or two
later. Attorney declined the offer immediately, knowing from experience that a better
73
offer was forthcoming. When Attorney met Client at the courthouse the following
Monday for the first day of trial, he mentioned that he was encouraged by the opposing
party’s initial offer the previous week, which he had declined, because it meant that a
more generous offer was on the way any time. Client was surprised that Attorney had
not consulted with him about the offer, but he accepted Attorney’s explanation for
declining it and agreed they would wait for the next offer. As both parties and their
lawyers took their places in the courtroom, the opposing counsel passed a note to
Attorney with a new settlement offer, and just as Attorney expected, it was much more
generous. Attorney and Client agreed to settle the case right then, and avoided the
inconvenience of going through a trial. Is Attorney subject to discipline?
a) Yes, because waiting to settle the case until the last minute before trial meant a lot
of inconvenience for the judge, the jury, and other court personnel that could have
been avoided if the lawyer had engaged opposing counsel in negotiations at the
time of the first offer, the previous week.
b) Yes, because a lawyer who receives from opposing counsel an offer of settlement
in a civil controversy must promptly inform the client of its substance prior to
taking any action.
c) No, because Attorney obtained a more favorable outcome for his client by waiting
for the follow-up offer on Monday, and the case still ended up settling before trial.
d) No, as long as Client would have agreed anyway to let Attorney decline the initial
offer, if Attorney had explained opposing counsel’s consistent pattern with offers.
Rule 1.4 Cmt 2
120. Attorney represented client in a criminal matter. Client had a history of mental
illness, and the court ordered a psychological examination to determine if Client would
be competent to stand trial. The case did not involve an insanity defense or a defense
of diminished capacity. The psychologist who evaluated Client spoke privately to
Attorney, and explained that Client was indeed competent to stand trial, but that in his
opinion, Client also suffered from delusional narcissism, paranoia, and oppositionaldefiant syndrome. The psychologist pleaded with Attorney not to tell Client about this
diagnosis, because the disclosure could harm the client, triggering an episode of
paranoia in which the client would suspect that everyone around him was conspiring to
institutionalize him, and he would become uncooperative at trial and mistrustful of his
own lawyer. Attorney told Client that the psychologist had deemed him competent to
stand trial and did not disclose the rest of the psychologist’s assessment. Was it proper
for Attorney to conceal the psychologist’s diagnosis from Client?
a) Yes, a lawyer may be justified in delaying transmission of information when the
client would be likely to react imprudently to an immediate communication,
including a psychiatric diagnosis of a client when the examining psychiatrist
indicates that disclosure would harm the client.
b) Yes, because the psychologist’s duty was only to evaluate for competence to stand
trial, so his additional diagnosis was outside the scope of his assignment.
c) No, because the information to be provided is that appropriate for a client who is a
comprehending and responsible adult, and if Client is competent to stand trial, he
is competent to receive the rest of the psychologist’s diagnosis.
74
d) No, because full communication between the lawyer and the client is necessary for
the client effectively to participate in the representation.
Rule 1.4 Cmt 7
121. Attorney was a litigator and represented Client in a civil lawsuit in which Client is
the defendant. Attorney explained the general strategy and prospects of success, and
consulted the client on tactics that were likely to result in significant expense, such as
the hiring of experts or jury consultants. At the same time, Attorney believes their best
shot at winning the case will be to elicit an admission from the plaintiff during crossexamination when plaintiff testifies at trial. More specifically, Attorney plans to elicit
a mild, relatively innocuous admission during the first round of cross-examination,
expecting opposing counsel to rehabilitate the witness on re-direct examination.
Attorney then plans a short, direct, re-cross consisting of three yes-or-no questions that
should elicit a devastating admission from the plaintiff, which opposing counsel is
probably not anticipating. Attorney has not discussed this plan for cross and re-cross
with Client. Even if the re-cross does not go as well as Attorney hopes, they might
prevail in the case by several other ways. Is it proper for Attorney to leave Client out
of the planning for the cross-examination and re-cross of the plaintiff?
a) Yes, because a lawyer ordinarily will not be expected to describe trial or negotiation
strategy in detail.
b) Yes, because Client might try to interfere with Attorney’s strategies and tactics,
which would put Attorney under the control of Client.
c) No, because a lawyer should explain the general strategy and prospects of success
and ordinarily should consult the client on tactics that are likely to result in
significant expense or to injure or coerce others.
d) No, because lawyers should consult with clients about their plans for direct
examination, but not cross-examination, because it is impossible to plan a crossexamination until one first hears the witness’ testimony during direct examination.
Rule 1.4 Cmt 5
122. Client hired Attorney to handle a transactional matter. Client, a billionaire, wants
to devote several million dollars to philanthropy. There are several alternative ways to
achieve Client’s goals – incorporating a 501(c)3 charitable corporation, establishing a
private foundation, creating a charitable trust, operating a nonprofit unincorporated
association, or simply donating the money to an existing charity of some kind. Each
alternative has different pros and cons regarding immediate tax benefits for the donor
versus tax deductions for subsequent contributors, permissible activities for the
charitable entity, donor control versus independence, eligibility for government grants,
and administrative costs related to accounting and recordkeeping. Attorney does not
discuss all of these details with Client, though, because Client said at the outset that he
trusted Attorney’s judgment, and Attorney believed Client would find the details
tiresome and confusing. Attorney set up a private foundation for Client because this
seemed to provide Client with the greatest immediate tax benefits and the highest
degree of control in the long term. The downside was that the private foundation option
75
involved burdensome paperwork and reporting to the IRS every year, imposed annual
spend-down requirements, and limited the tax benefits for any other philanthropists
who wanted to donate to the foundation later. Attorney believed the pros outweighed
the cons in this case, but Client was unhappy because he wanted to start something that
would grow and attract other wealthy philanthropists who might get involved, and the
administrative costs drained some of the funds that Client had hoped would go directly
to charitable causes. Could Attorney be subject to discipline for how he handled the
matter?
a) Yes, because the Rules of Professional Conduct require a lawyer to consult with
the client about the means to be used to accomplish the client's objectives.
b) Yes, because the lawyer in this case is merely helping the client avoid his tax
obligations on millions of dollars, and a lawyer should not assist a client in shirking
his fair share of taxes.
c) No, because a lawyer ordinarily will not be expected to describe transactional
strategy in detail, according to the Rules of Professional Conduct.
d) No, as long as Attorney was objectively correct that the pros outweighed the cons
in this situation, based on his professional judgment and experience.
Rule 1.4 Cmt. 2 & 3
Rule 1.5
Fees
123. Client is ordered to receive child support from her ex-husband. Client’s ex-husband
stopped making child support payments 12 months ago. Client hires Attorney to handle
the enforcement of child support against Client’s ex-husband. Attorney agrees to take
the case on a contingency basis because Client cannot afford to hire an attorney since
she has not been receiving child support from her ex-husband. Client also asks
Attorney to pay her court costs, as she cannot afford those either. Attorney prepares a
contract that states Attorney will only be paid for his representation if Client prevails
on the enforcement motion, but that court costs will be reimbursed by Client within 30
days of the finalization of the case regardless of whether Client prevails. Is Attorney’s
conduct proper?
a) Yes, because attorneys may accept cases on a contingency basis in domestic
relations issues if the case is strictly intended to enforce a prior order, and attorneys
may pay for court costs for clients.
b) Yes, because attorneys may represent clients, regardless of the type of case, on a
contingency basis, as long as clients are required to reimburse the attorney for the
actual expenses paid by the attorney for the client.
c) No, because attorneys cannot advance funds to clients for any expenses, whether or
not those expenses are related to the case.
d) No, because contingency fees are specifically prohibited in any case involving
domestic relations, including enforcement of prior orders.
Rule 1.5 Cmt 6
76
124. Client retained Attorney to represent him in two cases, a criminal case and a divorce
case. Attorney required that Client pay a retainer fee for the family law case, which
was billed at Attorney’s hourly rate. Attorney then arranged for Client to pay him based
on a contingency fee for the criminal case. Attorney and Client both signed the
combined contract, which detailed each fee arrangement for each case, and Attorney’s
representation began. Are Attorney’s actions proper?
a) No, because attorneys cannot charge a contingent fee for representing a defendant
in a criminal case.
b) No, because attorneys must have separate contracts for each separate case the
attorney is handling for a client.
c) Yes, because attorneys can charge hourly rates for domestic relations matters and
can charge contingency, hourly, or flat fees for criminal cases.
d) Yes, because attorneys are only restricted from charging contingency fees in
domestic relations matters when the payment is contingent upon the securing of a
divorce or upon the amount of alimony, support, or property settlement.
Rule 1.5(d)(2)
125. How does a contingent fee work, outside of plaintiff’s personal injury cases?
a) In contract litigation, sometimes the lawyer’s fee depends on the amount saved,
rather than the award; in some stock offerings, fees depend on capital generated
b) No state allows contingent fees outside personal injury litigation
c) The fees are all-or-nothing – the lawyer either keeps the entire jury award, or
receives no payment whatsoever
d) The fees are a flat hourly rate instead of the percentage of the verdict-award
126. What is wrong with charging a contingent fee in a criminal case, according to the
ABA Model Rules of Professional Conduct?
a) The Comments to the Model Rules do not articulate a clear rationale for this
prohibition, but it is a longstanding tradition
b) The Comments to the Model Rules explicitly base the prohibition on concerns that
lawyers will have an incentive to suborn perjury
c) The Comments to the Model Rules imply that the prohibition is related to concerns
that no lawyers will represent defendants in close cases
d) The Comments to the Model Rules state that the prohibition is meant to prevent
money laundering by lawyers at the behest of criminal defendants.
127. A new federal Treasury Regulation provides that attorneys who prevail in tax cases
on behalf of their clients against the Revenue Service are entitled to attorneys’ fees at
the fixed rate of $100 per hour, not to exceed $100,000. Attorney lives in a state that
allows “reasonable” fees, and he makes a written fee agreement with Client for an
additional $100 fee per hour, on top of whatever fees the Treasury Regulations allow
in their case. If the Client provides written informed consent, could Attorney be subject
to discipline for this fee agreement?
77
a) Yes, because state rules about legal fees are subject to limitations by applicable law,
such as government regulations regarding fees in certain tax matters.
b) Yes, because tax matters require a contingent fee agreement, not an hourly rate, lest
attorneys have a temptation to drag out the case in order to drive up their collectable
fees.
c) No, as long as the fee agreement incorporates the federal regulation by reference,
it is permissible for clients and lawyers to make a private agreement for additional
compensation to the lawyer.
d) No, as long as the total fees paid do not exceed $100,000.
Rule 1.5 Cmt 3
128. Can a contingent fee be unreasonably high?
a) No, because all contingent fees involve risk for the lawyer
b) No, many states allow lawyers to charge up to 90% contingent fees for routine
personal injury cases
c) Yes, and reasonableness is measured at the time of making the contingent fee
agreement, not after the fee is due.
d) Yes, and reasonableness is measured after the fee is due, depending on success, not
at the time of making the contingent fee agreement.
Rule 1.5 Cmt 3
129. Suppose the lawyer knows at the outset that the case is a sure winner – is a
contingent fee proper?
a) The validity of contingent fees has nothing to do with the assumption of risk by the
lawyer, so the odds of winning should have no bearing on the appropriateness of a
contingent fee
b) No, because the Model Rules require lawyers to take zero-risk cases on a pro bono
basis.
c) In theory, a disciplinary board could conclude that a contingent fee is unreasonably
high in a case involving zero risk for the lawyer, if such a case existed
d) It depends whether the client is a plaintiff or defendant.
Rule 1.5 Cmt 3
130. Attorney agreed to represent Client as plaintiff in a patent infringement lawsuit.
Attorney was part of a partnership that specialized in intellectual property law.
Attorney prepared, and Client signed, a written fee agreement that specified the
Attorney would receive a tiered contingent fee in the case: 25% if the case settled before
trial, 30% if they went to trial and won, and 35% if the case went up on appeal and they
prevailed in the appellate stage. In addition, the agreement specific that the contingent
fee come from total award before court costs and other expenses, and that Client would
be responsible for court cost and expenses out of his own pocket, either along the way
as expenses arose during the proceedings, or from the Client’s share of the award after
Attorney received his contingent fee. Attorney never revealed that his partnership
agreement required him to share his part of the fees with three other partners in the
78
firm, or that his fees would go toward a general firm operating budget from which the
partnership paid the salaries of non-lawyer staff, such as paralegals and secretaries.
Attorney obtained a favorable settlement before trial. He telephoned Client with the
good news, and explained that he would deduct his 25% contingent fee, as they had
agreed, and would send the Client the remainder of the settlement funds. At that time,
there were no outstanding unpaid expenses or court costs. Client was glad to hear the
news, and Attorney promptly sent Client a check for 75% of the total amount received
from the other party. Attorney and Client had no other contact except to exchange
holiday greeting cards. Were Attorney’s actions improper?
a) Yes, because Attorney failed to obtain written informed consent from Client to
share fees with other lawyers in the firm, and because Attorney charged a tiered
contingent fee in a patent litigation case.
b) No, because contingent fees in patent litigation are proper as long as there is a
written fee agreement at the beginning of the representation.
c) Yes, because Attorney failed to provide the client with a written statement stating
the outcome of the matter and showing the remittance to the client and the method
of its determination.
d) No, because Attorney properly followed the agreement with the Client, and there
were no outstanding court costs or unpaid expenses at the time of the settlement.
Rule 1.5(c)
131. A state bar adopted a new ethical rule for lawyers that forbid contingent fees higher
than 30%. Attorney agrees to represent Client in a tort case that is in federal court due
to diversity jurisdiction. Attorney and Client form a written fee agreement that
provides for a 33% contingent fee, which is still legal in most jurisdictions. Is Attorney
subject to discipline for this contingent fee agreement?
a) No, because the case is entirely in the federal court system, which means that local
laws or rules about contingent fees are inapplicable.
b) Yes, because contingent fees are not proper in diversity cases brought in federal
court.
c) Yes, because applicable state law may impose limitations on contingent fees, such
as a ceiling on the percentage allowable, or may require a lawyer to offer clients an
alternative basis for the fee.
d) No, as long as client provided informed, written consent to the fee arrangement.
Rule 1.5 Cmt 3
132. Client sought to have Attorney represent her as the defendant in a litigation matter.
Client had previously retained another lawyer in the same matter, but two weeks before
trial was to begin, the opposing counsel had moved to have her lawyer disqualified due
to her lawyer having a conflict of interest with the opposing party, who was the lawyer’s
former client. She needed a new lawyer immediately as the trial date was now only ten
days away. Attorney agreed to represent her for a much higher fee than he would
customarily charge, which was also much higher that the customary fee for legal
services in that locality. Client was upset about the seemingly exorbitant fee, and she
said that she felt that Attorney was exploiting her predicament. Attorney carefully
79
explained that the fee agreement was hourly, and client would be responsible for all
costs and expenses in addition to the hourly fees, and would even have to reimburse
Attorney for in-house expenses such as photocopying. Attorney never memorialized
the agreement in writing; it was merely an oral agreement for fees, and Attorney
commenced his representation. Attorney did not prevail at trial and Client had to pay
the plaintiff an enormous amount of damages. Was Attorney’s conduct proper?
a) No, because Attorney did not put the agreement in writing, even though it was a
fee related to litigation.
b) No, because Attorney did not prevail at trial, despite charging a high fee, so Client
had to pay both the exorbitant fee and the damages awarded to the plaintiff.
c) Yes, because the reasonableness of a fee depends in part upon the time limitations
imposed by the client or by the circumstances.
d) Yes, because it was another lawyer’s fault for agreeing to represent the client
previously despite having a conflict of interest, which risked a potential
disqualification order on the eve of trial.
Rule 1.5(a)
133. What is the difference between a static contingent fee and a sliding contingent fee?
a) A static fee is the same for every case and every client, while a sliding fee adjusts
the percentage based on the type of case or type of client
b) A static fee is one that parties establish at the outset of representation, while a
sliding fee allows the percentage to fluctuate throughout the course of the
representation depending on how well things seem to be going
c) A static fee has a fixed percentage rate regardless of the apparent merits of the case,
while a sliding fee adjusts the percentage depending on the strength or weakness of
the case, judged at the outset.
d) A static fee has a fixed percentage rate, while a sliding fee has the percentage
increase with either how long the case takes or the amount of the recovery.
134. Attorney has represented Client in the past on various transactional matters. They
have always operated under an oral agreement about the fees, and they have never had
a dispute over fees in the past – Attorney would send Client a bill, and Client would
pay it. Recently, Client contacted Attorney by phone about representing him as a
plaintiff in a personal injury lawsuit. Attorney agreed, and then explained that he would
charge a contingent fee in the case, so that Client did not have to worry about how
much time Attorney had to put into the case, as Client would still receive the same
share of whatever amount they won. Given their long history of working together,
Attorney offers to set the contingent fee below the rate charged by other attorneys in
the area, and they agree over the phone on a 25% contingent fee for Attorney, after
costs and expenses. They never formalize this agreement in writing, though at the end
of the case, after they prevail and win a large verdict, Attorney sends Client a written
statement about keeping 25% of the award for his fee. Client is very happy with the
outcome of the case and they have no dispute over this fee. Would Attorney be subject
to discipline in a situation like this?
a) Yes, because contingent fees must always be formalized in writing at the beginning
of representation.
80
b) Yes, because a lawyer cannot charge a contingent fee in a personal injury case.
c) No, because the lawyer agreed to charge a contingent fee far below the rate that
most lawyers receive for this type of case.
d) No, because the lawyer provided an accounting at the end of the case and there was
no dispute over the fees.
135. Which of the following is NOT one of the factors listed by the Rules of Professional
Conduct that lawyers should use in determining the reasonableness of a fee?
a) “the nature and length of the professional relationship with the client”
b) “the novelty and difficulty of the questions involved”
c) “the fee customarily charged in the locality for similar legal services”
d) “the client’s financial situation or ability to pay”
Rule 1.5(a)
136. Attorney has represented Client on various small matters in the past. Client now
needs representation for a more substantial matter involving a business transaction.
During a phone call, Attorney agrees to represent Client at a slightly higher hourly rate,
given the complexity of the matter, and when they meet to discuss the transaction in
more detail, Attorney double-checks with Client about the fee arrangement verbally,
explaining it carefully and answering any questions Client may have. Attorney and
Client never formalize the fee arrangement in writing, but Attorney does send printed
bills to Client periodically. Eventually, Client starts to feel that the representation is
costing too much, and objects to one of the bills. Was it permissible for Attorney to
have an oral agreement over hourly fees, without putting the fee agreement into
writing?
a) Yes, because even though it is always preferable to have fee agreements in writing,
it is not required in this type of case.
b) Yes, because the matter is more complex than the previous work Attorney has done
for Client.
c) No, because fee arrangements must be in writing, in order to avoid disputes between
lawyers and their clients later on.
d) No, because Attorney should have reduced his hourly fee, rather than raising it, if
the matter is more complex and will generate more hours of work for the lawyer.
137. Client hired Attorney to represent him in suing his employer for wrongful
termination. Attorney proposed a fee arrangement that made the fees contingent on the
outcome, and included in the fee agreement that Attorney would advance the costs of
litigation. Attorney lost the case at trial, and Client then refused to pay back the costs
that Attorney had advanced beforehand. Can Attorney force Client to repay the
litigation costs that Attorney advanced to him?
a) Yes, because even where the fee agreement stipulates that it is a contingent fee, this
does not apply to litigation costs that a lawyer advances to a client.
b) Yes, because losing the case nullified the contingent fee agreement and created a
quantum meruit situation.
81
c) No, because under the fee agreement, the client was only obligated to repay the
attorney if they won the case.
d) No, because the parties never made a legally binding fee agreement.
138. Attorney agrees to represent Client, and obtains Client’s written consent to divide
the fees with a lawyer in another state, as the trial will occur in the other jurisdiction,
but most of the discovery and pre-trial work will occur in the state where Client and
Attorney reside. The other lawyer, a well-known litigator and courtroom advocate, will
handle the actual trial, but Attorney will handle nearly all of the discovery, settlement
negotiations, and pre-trial motions. The case settles the day before the trial was to
begin, so the other lawyer did not have to do anything except his usual trial preparation.
Attorney had agreed beforehand with the other lawyer to divide the fees in half between
them, and that Attorney would take full responsibility for the representation as a whole.
Client had agreed to this beforehand, in writing. Attorney sends Client the expected
bill at the resolution of the matter, with half the fee going to Attorney and half the fee
going to the other lawyer. Could Attorney, or the other lawyer, be subject to discipline
for this fee arrangement?
a) Yes, because Attorney should not have asked Client to agree to pay another lawyer
in another jurisdiction whom Client has never met.
b) Yes, because division of a fee between lawyers who are not in the same firm may
be made only if the division is in proportion to the services performed by each
lawyer, if they do not assume joint responsibility for it.
c) No, because Client agreed to the arrangement beforehand in writing.
d) No, because the other lawyer’s reputation as a trial advocate may have influenced
the opposing party to settle the case before going to trial.
Rule 1.5(e)(1)
139. Client asked Attorney to defend him in a small litigation matter. Client explained
that he had very limited funds available, and wondered if Attorney could handle the
case for $2000. Attorney’s usual hourly rate is $200. Attorney explained that he would
handle the case for $2000, but would do a maximum of ten hours of work on the case.
Attorney expected the case to settle before trial, so ten hours seemed like a reasonable
amount of time to draft a demand letter, file the pleadings, and conduct some
preliminary discovery, at which point the matter would probably resolve itself in a
settlement.
Client agreed and they formalized this agreement in writing.
Unfortunately, the matter did not settle, and Attorney had already spent ten hours on
the case three months before the trial date. Attorney explained that his representation
in the matter had terminated and withdrew from the case. Would Attorney be subject
to discipline in a situation like this?
a) Yes, because a lawyer may not withdraw from representation three months before
trial.
b) Yes, because a lawyer should not enter into an agreement whereby services are to
be provided only up to a stated amount when it is foreseeable that more extensive
services probably will be required, unless the situation is adequately explained to
the client.
82
c) No, because the Client agreed to this arrangement in writing.
d) No, because Attorney fulfilled the terms of the written agreement with Client, and
Client had proposed buying limited representation due to his financial constraints.
Rule 1.5 Cmt 5
140. Attorney agrees to represent Client in a divorce proceeding against her husband.
Client is particularly concerned about obtaining her fair share of the marital property
or assets – as much as possible, in fact - as well as a suitable level of child support for
their children. Client agrees to pay Attorney his usual flat fee for divorce cases, $5000,
but also offers to pay him 10% of whatever he wins in terms of payments and
distribution of assets, on top of his usual fee. After a protracted, acrimonious divorce
proceeding, Attorney obtains a settlement worth approximately $2 million for Client.
Is Attorney subject to discipline in this scenario?
a) No, because Client proposed the arrangement and agreed to it beforehand.
b) No, because the contingent fee was much lower than the typical contingent fee in
personal injury cases, and the trial was protracted and acrimonious.
c) Yes, because Attorney entered into a mixed flat-fee/contingent fee arrangement,
which is improper under the Rules of Professional Conduct.
d) Yes, because Attorney entered into an arrangement for a fee in a domestic relations
matter, the amount of which was contingent upon the amount of alimony, support,
or property settlement.
Rule 1.5(d)
141. Attorney agreed to represent Client in a litigation matter. During their discussions
of the case, Attorney mentioned to client that one of the points in the litigation seemed
to involve a novel question of law, for which Attorney may need to seek advice from
another lawyer with more expertise in that area. At the resolution of the matter,
Attorney sent Client a bill that included Attorney’s agreed-upon fee, as well as a
reasonable fee for three hours of work performed by the expert attorney for research
and a brief memorandum. Attorney reduced his own fee by the same amount, so that
Client’s total bill was the same. Client had been unaware that he would have to pay
the other lawyer as well, but reluctantly agreed and paid the bill. Could Attorney be
subject to discipline for this additional fee?
a) No, because Client’s total bill was exactly what Client expected, so there was no
harm done in dividing the fee with another lawyer.
b) No, because Client agreed to pay the bill in the end instead of disputing it, which
would have triggered an inquiry from the state disciplinary authorities.
c) Yes, because Attorney should not have reduced his own fee below the agreed-upon
rate if some of his own work is now uncompensated as a result.
d) Yes, a division of a fee between lawyers who are not in the same firm may be made
only if the client agrees to the arrangement, including the share each lawyer will
receive, and the agreement is confirmed in writing.
Rule 1.5(e)(2)
83
142. Attorney met with potential clients, a husband and wife, about seeking legal
guardianship and power-of-attorney for the wife’s elderly mother, who was suffering
from early-stage senile dementia. The couple had taken the wife’s elderly mother into
their home, and needed to be able to help manage her assets and finances as her
situation deteriorated. Attorney proposed a flat fee for his legal services, which was
reasonable, and the couple agreed. At the close of their meeting, Attorney said he
would formalize their fee arrangement in a written document and send them a copy,
but a sudden crisis in another unrelated case distracted him, so he forgot to prepare a
written fee agreement. Eventually, Attorney drafted and filed the necessary documents
to place the elderly mother under the legal custodial care of the couple, including a
brief probate proceeding. When the matter reached its conclusion, Attorney sent the
couple a bill. The bill included Attorney’s flat fee, as the couple had agreed, plus
administrative filing fees and court costs, which were accurate and reasonable. Is
Attorney subject to discipline for his actions?
a) Yes, because Attorney neglected to formalize the fee agreement in writing at the
outset of the representation.
b) Yes, because Attorney did not explain to the clients that they would be responsible
for administrative fees and court costs in addition to his legal fees.
c) No, because written fee agreements are unnecessary, though preferable, if the case
does not involve a contingent fee.
d) No, because all of the fees and costs were reasonable, and the central tenant of the
Rules of Professional Conduct pertaining to fees is that they are reasonable.
143. Which of the following is NOT one of the factors listed by the Rules of Professional
Conduct that lawyers should use in determining the reasonableness of a fee?
a) “the nature and length of the professional relationship with the client”
b) “the experience, reputation, and ability of the lawyer or lawyers performing the
services”
c) “whether the fee is fixed or contingent”
d) “when the fee will actually be due”
Rule 1.5(a)
144. Which of the following IS one of the factors listed by the Rules of Professional
Conduct that lawyers should use in determining the reasonableness of a fee?
a) “the financial situation of the client or the client’s ability to pay fees in advance”
b) “the current financial resources of the lawyer or the lawyer’s usual fees”
c) “the skill requisite to perform the legal service properly”
d) “whether the payment of the fees will be due at the commencement of
representation or at the resolution of the client’s matter”
Rule 1.5(a)
84
145. Which of the following is NOT one of the factors listed by the Rules of Professional
Conduct that lawyers should use in determining the reasonableness of a fee?
a) “the amount involved and the results obtained”
b) “the time limitations imposed by the client or by the circumstances”
c) “that the acceptance of the particular employment will preclude other employment
by the lawyer”
d) “whether the fee will involve cash payments or the exchange of goods or services”
Rule 1.5(a)
146. Attorney specialized in aviation law and airline litigation. Client sought to have
Attorney represent her smaller airline in a high-stakes antitrust action against the four
largest national airlines. The matter was likely to go on for more than two years.
Attorney explained that taking the case would present him with a conflict of interest
against the largest airlines in the country, and possibly with their affiliates, suppliers,
contractors, and subsidiaries as well, which would severely limit Attorney’s ability to
represent any other clients in his area of specialty for a long time. He would have to
seek to withdraw from representing a few existing clients, which was feasible, and
would have to decline numerous future cases and matters. Client insisted on having
Attorney handle her case, however, due to his specialized knowledge of the field.
Attorney then offered to represent Client for quadruple his usual fee, or five times the
fees customarily charged in the locality for regular legal services. In addition, Attorney
explained that Client would have to pay a large retainer sum up front, against which
Attorney would draw fees. Finally, Client would have to reimburse Attorney for every
penny of expenses and costs incurred in-house, such as photocopies and telephone
calls, plus any costs and expenses incurred from outside services providers such as
court reporters or experts. Client was astonished at the exorbitant fees, which she
realized would quickly run into hundreds of thousands or millions of dollars, but she
reluctantly agreed because she felt she had no real choice. Attorney memorialized their
agreement in writing, and obtained client’s signature on it. Was the fee agreement
reasonable, according to the Rules of Professional Conduct?
a) Yes, because it was apparent to the client that the acceptance of the particular
employment will preclude other employment by the lawyer
b) Yes, because the client had no other real choice
c) No, because the fee is quadruple the lawyer’s usual fee, and five times as high as
regular legal fees in that locale
d) No, because the lawyer is forcing the client to reimburse him for routine operational
overhead costs, such as photocopying and phone calls.
Rule 1.5(a)(2), Cmt 1
147. Attorney was a new law school graduate, and had recently moved to a new town
and opened a practice there. Client met with Attorney to discuss representation in a
rather simple personal injury lawsuit against the town’s largest company and major
employer, with the municipal government and local hospital added as co-defendants.
Client explained that she had already gone to consultations with every other plaintiff’s
firm in the town, and that each one declined her case because it presented conflicts of
interest for them, as many of their other clients worked for, or were under the ownership
85
or control of, either the town’s largest company, the city government, or the local
hospital. Attorney quickly realized that he was probably the only lawyer in town who
could represent Client in this action, as he was too new in town to have any conflicts
of interest. The other potential clients of the lawyer were all domestic relations cases
that presented few hurdles with conflicts of interest. Attorney offered to represent
Client for four times his usual fee, which would be five times the fees customarily
charged in the locality for regular legal services. In addition, Attorney explained that
Client would have to pay a large retainer sum up front, against which Attorney would
draw fees. Finally, Client would have to reimburse Attorney for every penny of
expenses and costs incurred in-house, such as photocopies and telephone calls, plus
any costs and expenses incurred from outside services providers such as court reporters
or experts. Client was astonished at the exorbitant fees, but she reluctantly agreed
because she felt she had no real choice. Attorney did memorialized their agreement in
writing. Is Attorney subject to discipline for this fee agreement?
a) Yes, because the fee is unreasonably high and is merely exploiting the client’s
predicament.
b) Yes, because the lawyer is forcing the client to reimburse him for routine
operational overhead costs, such as photocopying and phone calls.
c) No, as long as the fee customarily charged for legal services in that locale is
unusually low compared to other parts of the country.
d) No, because of the experience, reputation, and ability of the lawyer or lawyers
performing the services
Rule 1.5(a)
86
ANSWER KEY: RULES 1.2, 1.4, 1.5
Rule 1.2
Lawyer
Scope of Representation and Allocation of Authority Between Client and
93. a
94. a
95. a
96. a
97. c
98. c
99. c
100. a
101. d
102. b
103. d
Rule 1.4
104. b
105. a
106. a
107. a
108. c
109. c
110. b
111. b
112. a
113. a
Communications
114. b
115. a
116. b
117. b
118. b
119. b
120. a
121. a
122. a
Rule 1.5
Fees
123. a
124. a
125. a
126. a
127. a
128. c
129. c
130. c
131. c
132. c
133. d
134. a
135. d
136. a
137. c
138. b
139. b
140. d
141. d
142. b
143. d
144. c
145. d
146. a
147. a
87
Rule 1.16: Declining or Terminating Representation
148. Attorney agreed to represent a plaintiff in a personal injury lawsuit, and the next day
agreed to represent a defendant in litigation where the defendant faces vicarious
liability. Only after Attorney has conducted some investigation of the case, and has
obtained confidential information from each client, does Attorney discover that the
plaintiff client is, in fact, suing Attorney’s other client, the defendant, under a theory of
vicarious liability. The two clients are adverse parties in the same litigation. Must
Attorney withdraw from representing both clients?
a) Yes, a lawyer shall withdraw from the representation of a client if the representation
will result in violation of the rules of professional conduct.
b) Yes, the lawyer must withdraw unless both clients consent to the conflict of interest.
c) No, the lawyer may withdraw, but withdrawal is optional and not mandatory.
d) No, the lawyer may not withdraw once litigation is underway, regardless of the
conflict of interest.
Rule 1.16(a)
149. Client hired Attorney to handle several real estate transactions, and once the
representation was underway, Client explains that the transactions are all part of a
money laundering scheme and that the money ultimately is being used to fund terrorist
activities. May Attorney continue with the representation, if each individual
transaction appears to be technically legal?
a) Yes, because Attorney was not aware of the criminal purpose of the transactions
when he consented to the representation.
b) Yes, but Attorney may also withdraw if he finds the course of action repugnant.
c) No, Attorney must withdraw because the transactions involve a conflict of interest.
d) No, Attorney must withdraw from representation if the client demands that the
lawyer engage in conduct that is illegal
Rule 1.16 Cmt. 2
150. Attorney injured his back and leg badly in a car accident. In the aftermath, Attorney
became chemically dependent on prescription pain medications. This addiction
progressed until it began to affect Attorney’s relationships and work habits. The
partners in his firm eventually insisted that Attorney seek professional help, so he
enrolled in an outpatient rehab program and a twelve-step support group for painkiller
addicts. The supervising psychiatrist in the outpatient program expressed concern
about Attorney’s complete dependence on the painkillers and his diminished ability to
function physically or mentally. He advised Attorney to take a leave of absence from
work, because he did not believe Attorney could competently fulfill his obligations to
his clients. This same concern had prompted Attorney’s partners to insist that he seek
professional help. Just before enrolling in the outpatient program, a new client had
approached Attorney about representing her in a tax dispute with the Internal Revenue
Service. Attorney had handled such cases before, but it was not his specialty. Client
88
is so desperate that he tells Attorney privately that he is considering shredding
documents to hide some of his tax fraud from the IRS, which Attorney says he should
not do, but worries that Client might do it anyway. May Attorney undertake the
representation?
a) Yes, as long as Attorney can acquire the necessary knowledge or expertise through
additional research to handle the complexity of the matter on Client’s behalf.
b) Yes, because Attorney is getting help for his addiction problem and should recover
soon.
c) No, because the Client has proposed engaging in fraud or criminal activity.
d) No, because at the moment, physical or mental condition materially impairs the
lawyer's ability to represent the client.
Rule 1.16(a)(2)
151. Client, a convicted felon, is serving a thirty-year sentence in prison. Client discharged
the lawyer who lost his criminal trial, and recently hired Attorney to handle his appeal
in federal circuit court. Attorney has filed a preliminary notice of appeal, but briefs in
the appeal are not due for several months, and oral argument will not occur until two
or three months thereafter. Yesterday, Attorney received court appointments to handle
last-minute appeals in three high-profile death penalty cases, in which the executions
are on the schedule for the next few weeks. Attorney also took on a complex classaction suit by prisoners against the state Department of Corrections, which if successful
would pay the Attorney several million dollars in statutory legal fees. Given the
urgency of the death-penalty cases and the potential fees from the class action suit,
Attorney decides to transfer Client’s appeal of his life sentence to another competent
lawyer, who is glad to take on the case. Client refused to grant Attorney permission to
withdraw as counsel, though. Attorney mailed a letter to Client explaining that he was
withdrawing from the case, and included all documents and papers relating to the
representation; Attorney also filed the appropriate notice with the appellate court. Is
Attorney subject to discipline for withdrawing from the case over Client’s objection?
a) Yes, because a lawyer must comply with the rules requiring permission of a client
when terminating a representation.
b) Yes, because Attorney agreed to represent Client first, and could have declined the
subsequent cases if he were fulfilling his duty of loyalty to the client.
c) No, because if the client is actually guilty of the crime, it would be using the
lawyer’s services to perpetrate a fraud for the lawyer to reverse the client’s
conviction.
d) No, because the withdrawal of representation in this case presents no material
adverse effect on the interests of the client.
Rule 1.16(b)(1)
152. Attorney represents Client in a family law matter. A hearing is set for Monday. On
the Wednesday prior to the scheduled hearing, Client calls Attorney and advises that
89
Client no longer wants to be represented by Attorney and that Attorney’s representation
is considered terminated as of the date and time of the call. Client advises that she
intends to retain another attorney prior to the hearing. After receiving the call from
Client, Attorney schedules another matter for Monday, does not appear at the hearing,
and does nothing further on the case. Is Attorney subject to discipline?
a) Yes, if representation has begun, attorney is required to withdraw from the case and
take reasonable steps to mitigate consequences to client if discharged by client.
b) Yes, attorney is required to continue representation of client until attorney receives
notice of discharge in writing and signed by client.
c) No, if attorney receives notice of discharge directly from client, whether oral or in
writing, attorney can cease work entirely on the case as long as client is aware of
all hearings or other important dates that are scheduled as of the date of the
discharge.
d) No, if attorney reasonably believes client will be represented by other counsel in a
reasonable time and that client will not have any consequences as a result of the
immediate discharge, attorney may discontinue all work on case.
153. Client fired Attorney after Attorney had completed 80% of the work involved in the
representation. Client refuses to pay any of the fees that were in the original agreement
at the beginning of representation. Client demands that Attorney turn over all papers
and documents relating to the representation. Must Attorney immediately return
Client’s documents regardless of the fees owed?
a) Yes, a lawyer must surrender all papers and property to the client as soon as
representation ends, even if it ends with an untimely discharge of the lawyer.
b) Yes, because the client has not received what she bargained for if she wants to
discharge the lawyer before the representation is complete.
c) No, because a client forfeits any right to papers and documents related to the
representation if she discharges the lawyer without cause before the representation
is complete.
d) No, because a lawyer may retain papers relating to the client to the extent permitted
by law.
154. Client fired Attorney after two weeks of representation, long before the matter was
complete. Client had prepaid a large refundable retainer, against which Attorney was
to draw his fees and the representation went on. Client therefore has fully paid her fees
up to that point to Attorney. Attorney is very upset about Client discharging him
without cause and believes it is unfair and wrongful. Attorney refuses to return the
remainder of the fees, and refuses to turn over any documents from the representation
to Client. Is it proper for Attorney to take this course of action, if indeed Client had no
good reason to discharge Attorney?
a) Yes, because a client must obtain court permission to discharge a lawyer before the
representation is complete.
b) Yes, it is proper for Attorney to retain the remaining funds and the documents.
90
c) No, it is improper for Attorney to retain the unused funds, but Attorney may
withhold the documents.
d) No, it is improper for Attorney to retain either the unused funds or the documents.
155. Attorney agreed to represent a tenant in an eviction proceeding in housing court.
Client was facing eviction for nonpayment of rent. Attorney formalized his
representation agreement with Client, and filed an appearance in the local housing
court, where the eviction was on the docket. The court docket had Client’s hearing
scheduled for one month later. Four days after filing his appearance, Attorney received
a phone call from Client saying she no longer wanted him to represent her, because she
wanted to represent herself instead. She offered no reason for discharging Attorney,
and conceded that he had done nothing wrong. Attorney tried to persuade her to change
her mind, but she was insistent, so Attorney said he would send her all the documents
from her case. Attorney then drafted a letter acknowledging the termination of
representation, and sent it along with copies of the court documents he had pertaining
to Client’s case. The letter returned three days later to Attorney, marked
“Undeliverable: Not At This Address.” Concerned, Attorney tried calling Client, but
her phone number was no longer in service. Attorney even tried visiting her apartment,
but no one answered the door. Attorney did receive, however, a postcard reminder
from the clerk at the housing court about the upcoming hearing. On the date of the
hearing, Attorney decided he should appear in person to notify the judge that Client
had discharged him and that he was withdrawing from the case. Attorney arrived at
housing court, but Client never appeared. When the clerk called Client’s case, Attorney
stood and explained to the judge that Client had fired him a few weeks prior, and that
he needed the court to approve his withdrawal from representation. The judge refused
to permit Attorney to withdraw from the case and ordered him to proceed with the
representation, because otherwise a default judgment would enter against the tenant for
failure to appear. The hearing then proceeded as scheduled, in Client’s absence, with
Attorney presenting the same defense for nonpayment of rent that he would have
presented even if Client had not discharged him. Ultimately, the court ruled in favor
of the landlord and ordered the eviction of the tenant. Was it improper for Attorney to
represent Client at the hearing after Client had discharged him?
a) Yes, because a client has a right to discharge a lawyer at any time, with or without
cause, subject to liability for payment for the lawyer's services.
b) Yes, because Attorney failed to ensure that Client had received proper
documentation of the discharge, and had failed to notify the court before the hearing
of the termination of representation.
c) No, because the court ruled against the tenant anyway, so Attorney’s representation
did not make any difference either way.
d) No, because the court refused to grant Attorney leave to withdraw from the case,
despite the Client’s attempt to discharge the lawyer.
Rule 1.16(c)
91
156. Client hired Attorney to represent her in a litigation matter. At the end of the first day
of trial, client is unhappy with lawyer’s performance in the courtroom and informs
Attorney that she is firing him and will find another lawyer. Attorney wants to continue
representing Client until the end of the trial. May Client discharge Attorney after a trial
has begun?
a) Yes, as long as a client obtains permission from the court to discharge Attorney, it
is permissible.
b) Yes, a client has a right to discharge a lawyer at any time, with or without cause,
subject to liability for payment for the lawyer's services.
c) No, a client may not discharge a lawyer once a trial is underway, because the
disruption could be prejudicial to the opposing party.
d) No, a client cannot discharge a lawyer once the lawyer has received confidential
information about the client’s case.
157. Attorney has represented Client on a number of matters. Most recently, Attorney has
represented Client in a litigation matter against the city’s largest manufacturer. The
manufacturer, whom Attorney is suing on behalf of Client, is both the city’s largest
employer and the largest purchaser of goods and services from small businesses in the
area. As the discovery phase winds to a close and the court sets a trial date, Attorney
learns that Client misused Attorney’s services in the past to perpetrate fraud by having
Attorney submit falsified documents to government entities and to insurance
companies. Attorney is furious and yells at Client, using profanity. Attorney then
petitions the court to let him withdraw from the representation, stating the reasons in
general terms that do not betray specific client confidences. Client strongly objects to
Attorney withdrawing from the representation, because the trial is only two months
away, and all the other litigation firms in the city have conflicts of interest that prevent
them from taking a case against the large manufacturer. It is indisputable that the
withdrawal is materially prejudicial to Client, who may have to proceed into the trial
pro se or have to find a new lawyer from out of town. The court is willing to postpone
the trial by three weeks to give Client time to find a new lawyer or prepare to represent
himself. Is it proper for Attorney to withdraw from representation in this case, if the
court has no objection?
a) Yes, because if a court or tribunal has no objection to a lawyer withdrawing from a
case, then the lawyer has no ethical duty to continue the representation.
b) Yes, because withdrawal is permissible if the client misused the lawyer's services
in the past, even if the withdrawal would materially prejudice the client.
c) No, because a lawyer cannot withdraw from representation, if doing so would have
a materially adverse impact on the client.
d) No, because the lawyer yelled at the client and used profanity, which is completely
unprofessional.
Rule 1.16 Cmt. 7
92
158. Attorney works as a public defender, and she feels completely overwhelmed. Her
caseload is so heavy that she has started to double-book two or more trials for the same
day, counting on one or more of them to resolve in a plea-bargain agreement before
trial. Most clients meet her only for a few minutes before their plea bargaining session,
and she emphatically insists with her clients that they accept the prosecutor’s second
or third offer for a deal. When her cases go to trial, she must waive voire dire entirely,
and often does no factual investigation or case research – yet she still wins acquittals
in many cases because she is very gifted at destroying the credibility of hostile
witnesses during cross-examination. It is now clear to her that she cannot meet the
basic ethical obligations required of her in representation of her existing clients. Must
Attorney withdraw from representing some of her current clients?
a) Yes, if she cannot fulfill her ethical duties, she must not continue representation of
her current clients.
b) Yes, as long as her clients and the court both consent to her withdrawal.
c) No, she is not required to withdraw, but she may seek to withdraw if it would not
materially prejudice a client and the court allows.
d) No, because as long as she takes no new clients, her current cases will resolve soon
and her caseload will become more workable.
ABA Formal Ethics Op. 06-441
159. Client, a judge, hired Attorney to represent her in her divorce proceeding against her
husband, who is guilty of marital infidelity. Their fee agreement stipulates that
Attorney will bill Client every month for the work performed in the previous thirty
days. After two months of representation, Attorney has sent Client two bills, and has
received no payments. Is it proper for Attorney to seek to withdraw from the case on
the basis of unpaid fees?
a) Yes, because otherwise the Attorney will develop a conflict of interest with his own
client, as the share of the marital assets will impact the client’s ability to pay all the
outstanding fees at the end of the proceeding.
b) Yes, because a lawyer may withdraw if the client fails substantially to fulfill an
obligation to the lawyer regarding the lawyer's services and has been given
reasonable warning that the lawyer will withdraw unless the obligation is fulfilled.
c) No, because a lawyer representing a judge may not withdraw without the judge’s
approval or permission.
d) No, because withdrawing over unpaid fees turns the representation into a contingent
fee arrangement, which is impermissible in a divorce case.
Rule 1.16(b)(5)
160. A trial judge is going through a divorce, and he hired Attorney to represent him.
Attorney’s law firm partner is representing another client who is appearing before the
same judge in his personal injury lawsuit. The judge and the litigation client both give
written informed consent to the representation despite the potential conflicts of interest.
Even so, the judge is trying to keep the divorce quiet until after the upcoming elections,
because this occurs in a state with elected judges. The judge therefore refuses to
93
disclose to the parties in the personal injury case that counsel for one side is from the
same firm as the lawyer representing the judge in his pending divorce. Neither
Attorney nor his partner can reveal to opposing counsel in the personal injury case that
their firm represents the judge, due to their duty of confidentiality. The judge believes
he will be unbiased in the personal injury case, despite the fact that he is the client of a
partner of one of the lawyers in the case, so the judge does not need to disqualify
himself from the case. The Code of Judicial Ethics does require, however, that the judge
disclose the representation to the litigants appearing before him, which the judge has
refused to do at this time. Can Attorney continue representing the judge in his divorce?
a) Yes, if the judge and the litigation client both provided written, informed consent,
then Attorney can continue with the representation.
b) Yes, because in a case where the judge does not need to disqualify himself, the
lawyers would not need to withdraw merely because the judge refuses to disclose
the representation to the other litigants appearing before the judge in the tort case.
c) No, because the lawyer would need the judge’s permission to withdraw from
representing him in the divorce case, and the judge is unlikely to agree to that.
d) No, because the lawyer is obligated to withdraw from the representation of the
judge under these circumstances.
ABA Formal Ethics Op. 07-449
161. Attorney agreed to represent plaintiff in a lawsuit. Attorney was in the middle of a
three-week trial at the time, however, so he did not start working on the new client’s
case immediately. By the time Attorney began investigating the case and drafting the
pleadings, he discovered to his horror that he had already missed the statute of
limitations for filing the lawsuit. Attorney files the pleadings anyway, knowing that
the other party will file a motion to dismiss the case based on the statute of limitations
within a month or so. Must Attorney withdraw from representation at this point?
a) Yes, as long as the client agrees and the court approves the withdrawal of
representation.
b) Yes, Attorney must terminate the representation and must notify the client promptly
of his malpractice.
c) No, because there is a chance that the opposing party and the judge will not notice
that the statute of limitations has passed.
d) No, because withdrawing from the representation would not help the client at this
point, and is likely to be prejudicial to the client.
Tex. Ethics Op, 593 (2010)
162. Attorney represents Client, who is a defendant in a prosecution for rape. Client turned
down several other experienced criminal defense lawyers who offered to take the case
and hired Attorney to represent him. Client saw the victim early in the evening on the
date when the rape occurred, but he has a solid alibi, supported by multiple credible
witnesses, that he was nowhere near the scene where the rape occurred at the time that
it happened, and no DNA tests link Client to the rape. The only evidence against Client,
in fact, is the victim’s memory of seeing him early that evening and feeling
94
uncomfortable around him, as if she could sense that he was a sexual predator. Her
rapist wore a mask, so she could not identify his face, but he was the same height and
build as Client, so she is convinced he is the perpetrator. Despite the weakness of the
evidence against him and his airtight alibi, Client is furious about the false accusation
and wants to teach the victim a lesson. He informs Attorney that he plans to take the
stand and testify that the victim has a reputation among his friends for being
promiscuous, that when he saw her that evening she was wearing provocative clothing,
and that he believes she was “asking to be raped.” Attorney finds this repugnant, but
he believes Client is truly innocent of the rape in this case, and will probably receive
an acquittal with or without this testimony attacking the victim’s character and
reputation. Attorney believes the court will allow him to withdraw from the case and
that Client could easily hire one of the other lawyers to take over the representation. Is
it improper for Attorney to withdraw from the representation, if he agrees with the
objectives Client is pursuing (acquittal), but disagrees with the actions Client plans to
take?
a) Yes, because even though a lawyer may withdraw from representation only if the
client is pursuing an objective that the lawyer finds repugnant, a disagreement about
a single action the client takes does not justify withdrawal.
b) Yes, because a lawyer cannot ethically withdraw from representation in a criminal
case, even with a court’s permission, if the trial preparation phase is already
underway.
c) No, because even where the lawyer agrees with the overall objectives of the client,
a lawyer may withdraw from a case if the client insists upon taking action that the
lawyer considers repugnant.
d) No, because a lawyer may withdraw from representation at any time if a court or
tribunal permits it.
Rule 1.16(b)(4)
95
ANSWER KEY: Declining or Terminating Representation
148. a
149. d
150. d
151. d
152. a
153. d
154. d
155. d
156. b
157. b
158. a
159. b
160. d
161. b
162. c
96
Litigation and other forms of advocacy (10–16%, 6-9
MPRE Questions), Rules 3.1-3.7
1. Meritorious claims and contentions – rule 3.1
2. Expediting litigation – Rule 3.2
3. Candor to the tribunal – Rule 3.3
4. Fairness to opposing party and counsel – Rule 3.4
5. Impartiality and decorum of the tribunal – Rule 3.5
6. Trial publicity – Rule 3.6
7. Lawyer as witness – Rule 3.7
97
Rule 3.1
Rule 3.2
Rule 3.3
Rule 3.4
Rule 3.5
Rule 3.6
Rule 3.7
Rule 3.8
Rule 3.9
QUESTIONS ABOUT RULES 3.1-3.9
Advocate
Meritorious Claims and Contentions
Expediting Litigation
Candor toward the Tribunal
Fairness to Opposing Party and Counsel
Impartiality and Decorum of the Tribunal
Trial Publicity
Lawyer as Witness
Special Responsibilities of a Prosecutor
Advocate in Nonadjudicative Proceedings
Rule 3.1
Meritorious Claims and Contentions
163. Attorney represents Conglomerate Corporation in a lawsuit against the company
brought by an individual plaintiff. The lawsuit could bring very bad publicity to
Conglomerate Corporation and could adversely affect its stock share price.
Conglomerate offers to settle the matter quietly, but the plaintiff rejects the settlement
offer. Attorney then files a counterclaim against plaintiff, alleging libel and slander of
Conglomerate Corporation, vexatious litigation, and tortious interference with contract,
for which he demands millions of dollars in damages. Attorney and plaintiff’s counsel
both know these counterclaims lack any real basis in fact, but will be costly for plaintiff
to defend. Attorney uses the counterclaims as leverage in reopening the settlement
negotiations, offering to withdraw the counterclaims if plaintiff will accept a new,
slightly higher settlement offer. The plaintiff calculates the cost of defending against
the counterclaims and the difference between the settlement offer and the expected
damages if plaintiff wins at trial, and reluctantly agrees to accept the terms of the offer.
Could Attorney be subject to discipline for filing the counterclaims?
a) Yes, because there is no factual basis for the claims, and the lawyer did not bring
them in good faith.
b) Yes, because the lawyer used the counterclaims as leverage to induce the opposing
party into accepting an unfavorable settlement.
c) No, because an advocate has a duty to use legal procedure for the fullest benefit of
the client's cause.
d) No, because the claims and counterclaims settled before going to trial, so the lawyer
did not violate his duty of candor to the court.
164. Client asked Attorney to represent him in a lawsuit. Attorney conducts some
preliminary research and quickly discovers that the lawsuit is a very long shot. In fact,
based on Attorney’s survey of the existing judicial decisions in very similar cases,
Attorney estimates that they have only a 15% chance of winning, and it will depend on
an extraordinarily lopsided jury, a strongly partisan judge whose political leanings go
in their favor, as well as a mediocre lawyer representing the other side. Otherwise, all
98
things being equal, Attorney advises Client that it is about 85% certain that the will not
prevail. Client is willing to take risks, however, and urges Attorney to take the matter.
Attorney reluctantly agrees, on the condition that he can charge a somewhat higher fee
that usual, and files the lawsuit. Could Attorney be subject to discipline for bringing a
frivolous claim?
a) Yes, because Attorney knows from his research that the claim is very unlikely to
prevail, and is therefore wasting the court’s time.
b) Yes, because should not have charged a higher fee in a case where client is already
facing unfavorable odds of winning, as this puts the client into an even worse
position.
c) No, because an action is not frivolous even though the lawyer believes that the
client's position ultimately will not prevail.
d) No, because the client should control the overall objectives of the representation,
even if the lawyer controls the specific strategies, methods, and tactics.
Rule 3.1 Cmt. 2
165. Attorney agreed to defend Client in a lawsuit over the breach of an oral agreement to
sell a particular breeding cow, which turned out to be already pregnant at the time the
parties made their agreement. Client had agreed to sell the cow to another rancher, and
received payment, but before delivery of the cow to the purchaser, Client claims the
cow became pregnant. Client now wants to renege on the agreement because delivering
a pregnant cow to the purchaser would be like giving the purchaser one animal (the
expected calf) for free, which he cannot afford to do. Client wants Attorney to assert a
mistake of fact defense to the oral contract, claiming that neither he nor the purchaser
knew or could have known that the cow was pregnant at the time of sale or would
somehow become pregnant in the short time between payment and delivery. Attorney
conducts some research on prior court decisions and concludes that mistake of fact
claims usually lose in scenarios like this. Worse, in his various discussions with Client,
the story has changed a little each time, so that Attorney now suspects Client either is
lying or is so confused that he will not be a credible witness at trial. Attorney would
like to withdraw before filing an answer to the lawsuit asserting a defense of mistake
of fact, because he knows they will probably not win, and he is not even sure now if
his client is telling the truth. Client insists that Attorney should file the answer before
withdrawing from the case, so that Client does not miss the deadline and face a default
judgment, but does not mind if he must find another lawyer to handle the discovery and
trial phase. Would it be improper for Attorney to file the answer to the pleadings,
asserting a mistake of fact defense?
a) Yes, because Attorney suspects his client is either lying or is confused about the
facts.
b) Yes, because Attorney’s research has led him to the conclusion that courts usually
disfavor such defenses as a rule.
c) No, because filing the answer contradicts the lawyer’s duty of candor to the court.
d) No, because the client’s defense has some basis in fact and law, even if it seems
improbable in both regards.
99
166. Client, age 18, is facing criminal charges of sex with a minor, based on his sexual
relationship with his thirteen-year-old girlfriend, who lives in the same tenement
building. The relevant statute has strict liability for perpetrators – that is, no mens rea
or scienter element – and places the victim’s age cutoff for the most serious grade of
felony at age 14. It is indisputable in the case that the defendant had a sexual
relationship with the victim when she was thirteen, but the victim claims she wanted
the relationship and willingly consented to the sexual contact with her boyfriend. A
state psychologist examined the victim and included in his report that she was
emotionally mature for her age and was making relationship decisions in the same way
as an adult. Even though Attorney is certain that the trial court will convict Client, he
believes there is a slight chance that he could convince an appellate court to take a loose
view of the age-of-consent provision in the statute, either on substantive due process
grounds or simply as a matter of progressive statutory construction. Attorney believes
that many thirteen-year-olds, and even younger, are sexually active nowadays and that
the criminal laws should reflect the changing values of society. Attorney agrees,
therefore, to take Client’s case and to use it as a test case to try to change the law of
sexual consent in the appellate courts. Is it proper for Attorney to make a defense in a
criminal case that goes against the clear statutory verbiage and established case
precedent?
a) Yes, because a claim or argument is not frivolous if the lawyer is making a good
faith argument for modification or reversal of existing law.
b) Yes, because the statute has no mens rea requirement, but is a strict liability crime.
c) No, because a lawyer shall not bring or defend a proceeding, or assert or controvert
an issue therein, unless there is a basis in law and fact for doing so that is not
frivolous.
d) No, because the unlikelihood that the lawyer will win on appeal, in contradiction to
the plain language of the statute, makes the lawyer’s fee in the case a contingent
fee, which is not permissible in a criminal case.
167. Attorney is a criminal defense lawyer. The court has appointed him to represent a
defendant who has already given a full confession of the burglary to the police, after
receiving proper Miranda warnings, and the prosecution has several witnesses who
either saw the crime or heard the defendant discussing his plans to commit the crime
beforehand. The police properly obtained all necessary warrants during their
investigation and arrest, and the defendant’s actions clearly meet the elements in the
statute. The lawyer explains to the defendant that he has almost zero chance of an
acquittal, given the evidence against him and the fact that the Supreme Court has
repeatedly upheld the penal code provision that furnished the basis of the charges in
the case. In fact, Attorney cannot imagine any viable defense to raise at trial. Does
Attorney have an obligation to ask the court for permission to withdraw from the
representation?
a) Yes, because if Attorney is already that fatalistic about the outcome of the trial, he
will not be able to provide the diligent, zealous advocacy that every defendant
deserves.
100
b) Yes, because the defense is frivolous if the lawyer is unable either to make a good
faith argument on the merits or to support the defense taken by a good faith
argument for an extension, modification or reversal of existing law.
c) No, because a lawyer for the defendant in a criminal proceeding may nevertheless
so defend the proceeding as to require that every element of the case be established.
d) No, because the court appointed the lawyer to represent the defendant, so it would
be futile to petition the same judge for permission to withdraw from the case.
168. Associate Attorney works at a law firm. The Supervising Attorney, who is a partner
at the law firm, directs Associate Attorney to prepare a petition for a civil case.
Associate Attorney contacts the client and discusses the facts of the case. Associate
Attorney discovers that the suit he was directed to file is frivolous and there are no facts
to support the claim. Associate Attorney discusses his concerns with Supervising
Attorney. Supervising Attorney directs Associate Attorney to file the suit and indicates
that he expects it will settle prior to trial. Following Supervising Attorney’s direction,
Associate Attorney files the suit. Are Associate Attorney’s actions proper?
a) Yes, because when an attorney is directed to file a suit by a partner at the firm for
which he works, full responsibility for the filing lies with the partner.
b) Yes, because an attorney who makes efforts to discourage a partner of a firm from
having a frivolous suit filed is relieved of his responsibility and the responsibility
lies with the partner of the firm.
c) No, because an attorney is responsible for any violations, including the filing of
frivolous suits, even if directed to file such suit by a partner of the firm at which the
attorney works.
d) No, because an attorney who is directed to file a frivolous suit must refuse to file
the suit and also report the partner who directed him to file such suit to the court in
which the case would be filed.
169. Client was an indigent defendant and received court-appointed counsel for his trial.
The trial ended in a conviction. Attorney served as his appointed counsel in the case.
Client wanted to appeal his conviction, but Attorney reasonably believes that there is
no merit to an appeal. Client insisted that Attorney file an appeal before he missed the
deadline, and agreed that Attorney could withdraw from the case without Client’s
objection if he would simply file the appeal and provide Client with the opportunity to
pursue the appeal pro se or with another lawyer. Attorney presented a “no-merit” letter
to the appellate court explaining that his client was appealing his conviction but that
Attorney could see no merit in the appeal. Was Attorney’s conduct proper, according
to the United States Supreme Court?
a) Yes, because a lawyer shall not bring or defend a proceeding, or assert or controvert
an issue therein, unless there is a basis in law and fact for doing so that is not
frivolous.
b) Yes, as long as the letter preserves the client’s right to proceed with the appeal on
his own, and client has agreed to terminate the representation after that.
101
c) No, because if the lawyer reasonably believed there was no merit to the appeal, he
had an ethical duty to refuse to file the appeal or do anything to facilitate the
defendant’s abuse of the court system.
d) No, because a lawyer must prepare a brief referring to anything in the record that
might arguably support the appeal, and leave it to the appellate court to decide
whether the appeal is truly frivolous.
Anders v. California, 386 U.S. 738 (1967)
170. Attorney and his partner sued Conglomerate Corporation in a Nicaraguan court for
injuries sustained by local farmers from the toxic effects of a pesticide made by
Conglomerate Chemical Company, a closely held affiliate of Conglomerate
Corporation. Both companies have headquarters in Texas. Conglomerate Chemical
Company was not a party in the litigation in Nicaragua, and the Nicaraguan court
rejected Conglomerate Chemical Company’s attempt to intervene in the case.
Nevertheless, at the end of the case, the Nicaraguan court was confused and entered a
billion-dollar judgment against Conglomerate Chemical Company, which had
manufactured the pesticide, rather than Conglomerate Corporation, which had
participated in the lawsuit. Attorney and his partner then brought an action to enforce
the judgment against Conglomerate Chemical Company in Texas courts. Conglomerate
Corporation, which actually participated in the litigation, is now judgment proof. The
trial court dismissed the enforcement action because Conglomerate Chemical
Company was not a party to the litigation that ended in the judgment that Attorney
sought to execute. Attorney then appealed the decision, still hoping to execute the
billion-dollar judgment against the wrong legal entity. Are Attorney and his partner
subject to discipline for bringing a frivolous action and appeal?
a) Yes, because they pursued the attempt to execute a foreign judgment in the United
States against a company that had not participated in the litigation.
b) Yes, because they should have stipulated to the intervention of Conglomerate
Chemical Corporation in the litigation instead of opposing it.
c) No, because they are seeking enforcement of a foreign judgment based on the facial
reading of the foreign court’s entered judgment.
d) No, because they are seeking to enforce a judgment for damages against the firm
that actually manufactured the pesticides that were the subject of the litigation.
In re Girardi, 611 F.3d 1027 (9th Cir. 2010)
171. Client hired Attorney to represent her federal court litigation, defending against
antitrust enforcement actions by the Federal Trade Commission and the Department of
Justice. Attorney adopts a “quagmire” strategy, burying the government lawyers in
several dozen motions to limit or compel discovery, to compel admissions or
stipulations, to limit the admissibility of certain evidence or witness testimony, and so
on. On a few occasions, Attorney even re-filed a motion after the court ruled on the
motion in the government’s favor, merely to make the government lawyer spend the
time filing objections or replies based on the court’s previous ruling on the same issue.
The government lawyers filed a complaint against Attorney with the state bar
102
authorities, but the state disciplinary authority decided not to pursue the matter, in part
because it was in federal court and involved exclusively federal issues. Could Attorney
also face sanctions or penalties under federal law, if the state bar rejected the
complaint?
a) Yes, but only because some of the motions were redundant, and may have been refiled after the state disciplinary authority rendered its no-action decision.
b) Yes, a federal statute authorizes federal courts to require a lawyer to pay all the
excess costs, expenses, and legal fees incurred because of the lawyer “unreasonably
and vexatiously” multiplying the proceedings.
c) No, because discipline of lawyers over frivolous or vexations litigation is
exclusively a matter of state law, so the judge should simply refer the matter again
to the state disciplinary authorities, who are more likely to take it seriously if it
comes from a federal judge.
d) No, because the Free Speech Clause of the constitution gives lawyers an absolute
right to file motions on their clients’ behalf in federal court.
28 U.S.C.A. § 1927
172. A billionaire business owner decided to run for high-level public office. The
billionaire candidate’s platform includes a strong commitment to use military force, if
necessary, to protect international human rights in foreign nations, especially rights for
women, children, and grown men. A college student who operated a radical political
blog wrote a blog post saying that the billionaire is “the real face of international
terrorism” because the student strongly disagreed with the candidate’s foreign policy
commitments involving military force. The blog post also called the candidate “another
Hitler,” who would probably bring “another Holocaust in the nation of Africa.” The
insults deeply hurt the billionaire candidate’s feelings, so he filed a defamation suit
against the student blogger, who had not even bothered to spell the billionaire’s name
correctly. He also vowed that if he were to win the election, he would seek to revoke
the citizenship of the blogger, who was born in the United States, and have him
deported as an illegal alien to “some hostile nation, such as France.” The student
immediately filed a motion to dismiss under the state’s anti-SLAPP statute, requested
a stay of discovery, and asked that the billionaire should have to pay the student’s legal
costs and fees. Could the billionaire suffer all these adverse results for his defamation
suit?
a) Yes, because anti-SLAPP (“strategic litigation against public participation”)
statutes are very common and often impose such penalties on public figures who
file defamation suits.
b) Yes, because the billionaire’s threats about revoking the citizenship of natural-born
citizens and deporting them to France show that his political ideas are ridiculous.
c) No, because the anti-SLAPP statute is probably unconstitutional and violates the
First Amendment.
d) No, because the blogger overstepped his legal rights by calling the candidate a
terrorist, and undermined his credibility by referring to the 54 countries in Africa
as a single nation.
103
Texas Citizen's Participation Act, Tex. Civ. Prac. & Rem. Code Ann. §§ 27.001-27.011
(West 2011)
Rule 3.2
Expediting Litigation
173. Attorney is a busy litigator. During one scheduling conference with the judge and
opposing counsel, Attorney asked for a continuance (postponement) of a particular
hearing until a later date because she planned to be on vacation in Europe during that
time. The judge and the opposing counsel agreed. On another occasion, three months
later, Attorney asks another judge to reschedule a hearing so that it will not fall on her
anniversary, when she has dinner plans in the early evening. In that instance, which
was not the same matter or client as the first instance, the lawyer for the other party
complained about rescheduling for such a trivial reason, but the judge agreed to
reschedule the hearing for a month later. Was it improper for Attorney to seek these
postponements?
a) Yes, because a lawyer shall make reasonable efforts to expedite litigation consistent
with the interests of the client.
b) Yes, because it is not proper for a lawyer to fail to expedite litigation solely for the
convenience of the advocates.
c) No, because there are occasions when a lawyer may properly seek a postponement
for personal reasons.
d) No, it was not improper to seek a postponement for a scheduled vacation, but the
postponement merely for an anniversary dinner was improper.
Rule 3.2 Cmt. 1
174. Attorney is a busy litigator, but she is also a single mother of two young children. She
has to pick her children up from daycare every weekday by 4pm. As a result, whenever
she is scheduling hearings, conferences, settlement negotiations, or trial dates, she
simply refuses to schedule anything in the late afternoon, as that could easily run into
the time when she must pick up her children. The result is that her cases tend to stretch
out over a long period, as she is available for hearings, trials, and other litigation-related
meetings only in the mornings and early afternoons, and otherwise must seek
postponements. Could Attorney be subject to sanctions for managing her schedule in
this way?
a) Yes, because it is always improper for an Attorney to seek postponement for
personal reasons, rather than the needs of the client or the court.
b) Yes, because it is not proper for a lawyer to fail routinely to expedite litigation
solely for the convenience of the advocates.
c) No, because there are occasions when a lawyer may properly seek a postponement
for personal reasons.
104
d) No, because a failure to accommodate a lawyer who is a single mother regarding
her childcare schedule would constitute a form of gender bias or even
discrimination.
Rule 3.2 Cmt. 1
175. Attorney represents client in a commercial litigation matter against a small
independent bookstore. It is known in the local business community that the opposing
party (the bookstore) has been on the verge of bankruptcy for the last two or three years.
The facts and law of the present litigation, however, make it a close case – Attorney
believes, accurately, that his client has at best a 50% chance of winning at trial. At
Client’s urging, Attorney files frequent motions asking for more time in discovery,
more time to respond to the opposing party’s motions, and a postponement of the trial
date to allow more time to prepare and locate the necessary expert witnesses. Attorney
thinks that the opposing party may have to close down and file for bankruptcy soon,
which would make the opposing party’s claims moot. The judge has an overcrowded
docket, and is always glad to grant postponements or more time on various responses.
Is it proper for Attorney to take this “time is on our side” approach to litigation?
a) Yes, because regarding the ethical duty to expedite litigation, it constitutes a
justification that similar conduct is often tolerated by the bench and bar.
b) Yes, because Attorney is acting in the best interests of his own client, and the
opposing party’s financial fragility is not his fault or responsibility.
c) No, because an Attorney has a duty to seek the best result possible for both sides in
a case, under the “lawyer for the case” approach.
d) No, because realizing financial or other benefit from otherwise improper delay in
litigation is not a legitimate interest of the client.
Rule 3.2 Cmt. 1
176. Client hired Attorney to represent Client in a litigation matter, but after he filed the
notice of representation and the initial pleadings in the case, the opposing party hired
Big Firm to represent it. Attorney has already completed three rounds of job interviews
with Big Firm and is now simply waiting for their answer, which he hopes will be an
offer of employment. Rather that notify the client that an unforeseen conflict of interest
has possibly emerged, Attorney simply slows down his work on the case, because if
the job offer comes through, he will have to transfer Client’s case to another lawyer
anyway, and if he does not receive an offer, the potential conflict disappears and he can
proceed with the litigation. Attorney thus waits until the last possible day to respond
to any filings or discovery requests, and frequently calls the opposing party asking for
more time, which they always grant. Is it proper for Attorney to stall the progress of
the case for a while, to allow time for the conflict either to disappear or for him to need
to transfer the case to some other lawyer?
a) Yes, because the conflict of interest will disappear if Big Firm rejects Attorney’s
application for employment before the case proceeds any further.
105
b) Yes, because Attorney may need to transfer the case to another lawyer anyway, and
addressing the potential conflicting of interest directly, instead of simply stalling,
could create unnecessary expenses for the client.
c) No, because a lawyer has a duty to make reasonable efforts to expedite litigation
consistent with the interests of the client.
d) No, because a lawyer has a duty to withdraw from the representation immediately
if a potential conflict of interest emerges.
ABA Formal Op. 96-400
177. Client hired Attorney to represent him in litigation because of Attorney’s reputation
for being the meanest, most aggressive litigator in town. Client is the defendant and
Attorney bills by the hour. The judge in the case orders the parties to participate in a
“caucused mediation” to encourage a settlement before trial. Attorney begins the
mediation by declaring that his client is unwilling to compromise at all, even though
Client had told him that they might settle the case for a reasonable amount. Attorney
overstates the strength of Clients case and grossly understates the strength of the
opposing party’s position in what everyone knows is a close case. Attorney is merely
posturing or bluffing in an effort to obtain a more favorable settlement for his client.
Due to Attorney’s hardline approach, the mediation drags on for several sessions
spanning several days, and ultimately proves to be futile, so the parties schedule a trial.
Is Attorney potentially subject to discipline for this approach in court-ordered
mediation?
a) Yes, because overstating the strength of his case or downplaying his client’s
willingness to compromise are misstatements of material fact.
b) Yes, because even if the statements were not material facts, lawyers must make
reasonable efforts to expedite litigation consistent with the interests of the client.
c) No, because a lawyer can advocate zealously in order to obtain the most favorable
outcome possible for his client.
d) No, because this is court-ordered mediation, meaning the parties did not willingly
agree to it and therefore have no duty to negotiate in good faith.
ABA Formal Op. 06-439 fn. 18
106
Rule 3.3
Candor toward the Tribunal
178. Attorney represented Client in a criminal prosecution. Client agrees to a plea bargain,
and the case moves on to a sentencing hearing. The prosecution’s pre-sentencing report
to the judge erroneously indicates that Client has no prior convictions, and the trial
judge asks Client directly whether that is true. Client affirms that he has no prior
criminal record, and the judge sentences him leniently, giving his six months’
probation. Attorney represented Client previously in another jurisdiction in a criminal
matter, and he knows that the pre-sentencing report is erroneous. Before adjourning,
the judge asks Attorney if he has anything else to say. Could Attorney be subject to
discipline if he does not correct the judge’s misperception about Client’s criminal
record?
a) Yes, because Attorney must not allow his client to offer evidence that he knows to
be false to a tribunal.
b) Yes, because Client committed perjury when he answered the judge’s question in
the courtroom, once the court was in session for the sentencing hearing
c) No, because a lawyer cannot violate his ethical duty of confidentiality to his client
d) No, because the attorney did not make the false statement, and has no duty to correct
the false statements of others.
179. Attorney was representing Client in a criminal matter. At the bail hearing, the
prosecutor told the court that the defendant was a flight risk, and asked the court either
to confine the defendant until trial or to set bail at $15,000. When it was Attorney’s
turn to speak, he assured the judge that Client had a medical condition that would
prevent him from leaving the area, and that Client did not intend to flee the jurisdiction,
but was confident that he could stand trial and clear his name of all charges. Attorney
knew, however, that Client already had plane tickets to Venezuela, a non-extradition
country, and that Client had already fully recovered from his serious medical condition.
Is Attorney subject to discipline for making these statements to the court?
a) Yes, because there is no constitutional right to have bail in state court.
b) Yes, because a lawyer may not knowingly make a false statement of fact or law to
a tribunal.
c) No, because the statements made a bail hearing would not affect the merits or
outcome of the case.
d) No, because the lawyer does not know for a fact that Client will actually flee the
jurisdiction, and he cannot say with medical certainty that Client’s medical
condition will not relapse.
Rule 3.3(a)(1)
107
180. A witness testified on Client’s behalf at trial. That evening, when Attorney was
reviewing exhibits and documents to prepare for the next day of trial, he noticed a
document that completely negated the witness’ testimony from earlier that day. The
testimony was material evidence in the case. The witnesses left the jurisdiction after
his testimony concluded, and he is no longer available to correct the false statements.
The opposing party’s lawyer waived his opportunity to cross-examine the witness,
because the testimony was unfavorable to his side and he was eager to move on to a
more favorable witness. Does Attorney have a duty to take remedial measures to
correct the false testimony, such as disclosing the falsehood to the court?
a) Yes, because no proper cross-examination occurred, which violated the other
party’s constitutional rights.
b) Yes, because if a witness called by the lawyer has offered material evidence, and
the lawyer comes to know of its falsity, the lawyer shall take reasonable remedial
measures, including, if necessary, disclosure to the tribunal.
c) No, if a witness called by the lawyer has offered material evidence and the lawyer
comes to know of its falsity, the lawyer has no duty to correct the information if the
opposing counsel waived his right to cross-examination.
d) No, because the lawyer did not realize at the time of the testimony that it was false,
and therefore did not knowingly offer any false statements to the tribunal.
Rule 3.3(a)(3)
181. While conducting research on a litigation matter, Attorney finds a very new case from
the highest court in his jurisdiction that is directly adverse to his client’s legal position
in the case. The opposing party did not mention the case in its briefs, and Attorney
realizes that the opposing party’s lawyer has been recycling his firm’s briefs for this
type of case for several years without updating his research. Does Attorney have an
ethical duty to disclose the unfavorable binding precedent to the court?
a) Yes, because it is very common for litigators to recycle their briefs for years at a
time, and everyone should help each other out with updating their legal research on
issues that arise frequently in that area of litigation.
b) Yes, because a lawyer must 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.
c) No, because it is the other lawyer’s duty to find the cases favorable to his own side,
and providing the research to the opposing side is facilitating the other lawyer’s
neglect of diligent representation.
d) No, because it would be a breach of Attorney’s duty of loyalty to his own client to
disclose a case unnecessary that undermines their position.
Rule 3.3(a)(2)
182. While preparing for trial, Client tells Attorney that he intends to lie on the witness
stand. Attorney tries to dissuade him, but Client insists. May Attorney allow Client to
108
take the stand and conduct direct examination of Client as a witness under these
circumstances?
a) Yes, because Attorney fulfilled his ethical duty by trying to dissuade his client from
perjury, and the opposing lawyer will have an opportunity to cross-examine the
client to catch him in his lies.
b) Yes, as long as the untruthful testimony is not material to the case and is unlikely
to affect the outcome of the litigation.
c) No, Attorney must either disclose the contemplated perjury to the tribunal, or have
the client testify in a narrative mode without direct examination.
d) No, Attorney must withdraw from representation before the testimony occurs.
Rule 3.3(b)
183. Attorney represented Client in her divorce and custody case. Client’s husband had
been abusive, so she asked Attorney to obtain a temporary restraining order against her
ex-husband. The application for the temporary restraining order is an ex parte
proceeding, so opposing counsel is not present. Attorney knows that the ex-husband
has not been physically abusive to Client in over two years, and that he has been
faithfully attending an anger-management support group during that time that appears
to have produced genuine results. At the same time, Client is fearful that the ongoing
custody battle will push her ex-husband over the edge, and that the abuse she endured
in the past will resume. At the hearing for the temporary restraining order application,
does Attorney have an affirmative duty to disclose the length of time since the last
abuse occurred and the husband’s faithful participation in an anger management
program?
a) Yes, but only if the judge asks Attorney if there are any countervailing facts or
considerations in the matter.
b) Yes, in an ex parte proceeding, a lawyer shall inform the tribunal of all material
facts known to the lawyer that will enable the tribunal to make an informed
decision, whether or not the facts are adverse.
c) No, in an ex parte proceeding, a lawyer has no affirmative duty to inform the
tribunal of all material facts known to the lawyer that will enable the tribunal to
make an informed decision, if the facts are adverse.
d) No, because disclosing those facts would violate the lawyer’s duty of loyalty to his
own client, because the client feels fearful and requested the restraining order.
Rule 3.3(d) & Cmt. 14
184. Client committed perjury on the witness stand during his trial, but Attorney did not
know it at the time. Client won his case and there was no appeal of the verdict. Client
boasts to Attorney after the representation ends that he successfully lied to the court
and won the case as a result. Does Attorney have an ethical duty to remonstrate with
the client or disclose to the tribunal that the perjury occurred?
a) Yes, because if a witness called by the lawyer has offered material evidence and
the lawyer comes to know of its falsity, the lawyer shall take reasonable remedial
measures, including, if necessary, disclosure to the tribunal.
109
b) Yes, because when a lawyer represents a client in an adjudicative proceeding and
knows that a person has engaged in fraudulent conduct related to the proceeding
shall take reasonable remedial measures.
c) No, because a lawyer’s duty to take remedial measures after perjury occurs,
continue only to the conclusion of the proceeding.
d) No, unless the judge at some later time specifically asks Attorney if his client
committed perjury.
Rule 3.3(c)
185. While conducting research on a litigation matter, Attorney finds a very new case from
the highest court in a neighboring jurisdiction that is directly adverse to his client’s
legal position in the case. The issue presents a case of first impression in Attorney’s
own jurisdiction, where the case is taking place. The opposing party did not mention
the case in its briefs, and Attorney realizes that the opposing party’s lawyer has been
recycling his firm’s briefs for this type of case for several years without updating his
research. Does Attorney have an ethical duty to disclose the unfavorable authority
precedent to the court?
a) Yes, because it is very common for litigators to recycle their briefs for years at a
time, and everyone should help each other out with updating their legal research on
issues that arise frequently in that area of litigation.
b) Yes, because a lawyer must 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.
c) No, because the case is not controlling authority in that jurisdiction.
d) No, because it would be a breach of Attorney’s duty of loyalty to his own client to
disclose a case unnecessary that undermines their position.
Rule 3.3(a)(2)
186. During a deposition, Client gives testimony that Attorney, who is representing Client,
knows is false. Does Attorney have an affirmative duty to take remedial measures to
correct the false statements offered by Client?
a) Yes, the ethical duty to take remedial measures when a client offers false statements
applies when the lawyer is representing a client in an ancillary proceeding
conducted pursuant to the tribunal’s adjudicative authority, such as a deposition.
b) Yes, unless it appears that opposing counsel already knows that the statements are
false and is planning to impeach the witness.
c) No, because a lawyer has a duty to protect client confidentiality and a duty of
loyalty to the client that prohibits such a disclosure.
d) No, because the client was testifying in a deposition, which is merely an ancillary
proceeding to a trial, rather than committing perjury during the trial itself.
Rule 3.3 Cmt. 1
110
187. Attorney submitted a brief to the court arguing against the opposing party’s motion
for summary judgment. In his brief, Attorney never mentioned specific cases that were
controlling authority in that jurisdiction and that were adverse to Attorney’s position,
because the opposing party’s brief already discussed all adverse controlling authority.
Instead, Attorney focused on a few outlier cases that supported his side, and
dismissively referred to all the contrary authority, discussed at length in the opposing
party’s brief, as “easily distinguishable from the present case on factual grounds.” No
objective reader would have thought that Attorney presented a fair, even-handed
exposition of the law relevant to the case, and no objective reader would have found
Attorney’s brief convincing. Has Attorney violated an ethical duty by writing such a
one-sided brief?
a) Yes, because there are special duties of lawyers as officers of the court to avoid
conduct that undermines the integrity of the adjudicative process.
b) Yes, because the lawyer must not allow the tribunal to be misled by false statements
of law or fact or evidence that the lawyer knows to be false.
c) No, because no objective reader would have found the brief convincing, so there is
no chance that the brief will mislead the tribunal about the controlling law in that
jurisdiction.
d) No, because a lawyer in an adversary proceeding is not required to present an
impartial exposition of the law.
Rule 3.3 Cmt. 2
188. Client hired Attorney to represent him in litigation, and explained to Attorney his
version of the incident that gave rise to the dispute with the other party. Attorney took
notes on the account that Client provided, and drafted pleadings that alleged the facts
as alleged by Client. Attorney did no investigation before filing the pleadings to
provide independent verification of Client’s version of the story, because he thought
that discovery would bring to light the necessary facts to reveal the truth of the matter.
Similarly, Attorney submitted as evidence the various documents client provided to
him, without doing his own assessment of the authenticity of the evidence so that he
could vouch for the evidence himself. It turned out, as the other side submitted its
evidence, that Client’s account of what happened was full of fabrications, and some of
the evidence was invalid. Attorney did not know the Client was being untruthful, but
he neglected to make any efforts to verify Client’s story before presenting it in court.
Could Attorney be subject to discipline for undermining the integrity of the
adjudicative process?
a) Yes, because the lawyer as an advocate is responsible for pleadings and other
documents prepared for litigation, and therefore must have personal knowledge of
matters asserted therein.
b) Yes, because a lawyer in an adversary proceeding has an ethical duty to vouch for
the evidence submitted in a cause of action.
c) No, because the discovery phase and the trial will bring to light which side is telling
the truth.
111
d) No, because a lawyer need not have personal knowledge of matters asserted in
pleadings, for litigation documents ordinarily present assertions by the client, and
not assertions by the lawyer.
Rule 3.3. Cmt. 3
189. During litigation, a judge issued an order that the parties could not transfer any assets
out of the jurisdiction. Two weeks later, Attorney learns from Client’s spouse that
Client has transferred hundreds of thousands of dollars to secret offshore bank accounts
in the Cayman Islands. Although neither Attorney nor Client have made any
affirmative representations to the court about following the court’s order, it is clear to
Attorney that the court and the opposing party are under the impression that both parties
are complying with the court’s order, and are relying upon that fact in the ongoing
proceedings. Client did not use Attorney’s services in any way to make the transfers,
and Attorney did not recommend it or know about it until after it occurred. Would it
be proper for Attorney to do nothing and say nothing about the matter at this time, in
order to protect the client’s confidential information?
a) Yes, because Attorney has not made any material misrepresentations to the court.
b) Yes, because Client has not made any false statements to the court.
c) No, because a lawyer always has a duty to inform the court if a client is engaged in
illegal or fraudulent conduct, even if it is unrelated to Attorney’s representation.
d) No, because this is a circumstance where failure to make a disclosure is the
equivalent of an affirmative misrepresentation.
Rule 3.3 Cmt. 3; ABA Formal Op. 98-412
190. Attorney must testify briefly at Client’s trial about a point that is uncontested but
necessary as an antecedent point for the issues in the case. Attorney testified to facts
that he believed were true at the time he testified. Later, before the conclusion of the
proceedings, Client discharges Attorney, and then informs Attorney of previously
unknown facts that compel the conclusion that Attorney’s testimony was incorrect.
Does Attorney have a duty to take remedial measures to rectify the false statements?
a) Yes, because a lawyer shall not fail to correct a false statement of material fact or
law previously made to the tribunal by the lawyer
b) Yes, because Client discharged Attorney, and no duty of confidentiality remains
after the termination of representation.
c) No, because the lawyer has a duty of confidentiality that continues even after a
client discharges the lawyer.
d) No, because Attorney was not aware at the time that the statements were false, and
therefore did not knowingly mislead the tribunal.
Rule 3.3(a)(1)
112
191. Attorney represents Client in a civil litigation matter. As they prepare for trial, at
which Client will testify as a witness on his own behalf, Attorney realizes that Client
is probably not going to tell the truth, even though Client insists he will be completely
truthful. Attorney believes there is some chance that Client is indeed telling the truth,
but he is about 70% certain that Client is being untruthful, despite Client’s
protestations. Does Attorney have an ethical duty to try to prevent Client from
presenting testimony that Attorney believes is probably false?
a) Yes, a lawyer cannot suborn perjury, or even risk that the testimony he is eliciting
via direct examination is perjury.
b) Yes, a lawyer must disclose to the court that he does not believe Client’s testimony
and have the court give the client an opportunity to testify in a narrative mode.
c) No, because the prohibition against offering false evidence only applies if the
lawyer knows that the evidence is false, and a lawyer’s reasonable belief that
evidence is false does not preclude its presentation to the trier of fact.
d) No, because the opposing party will have an opportunity to impeach the witness
and the testimony during cross-examination.
Rule 3.3 Cmt. 8
192. Client is a defendant in a criminal prosecution, and Attorney is his court-appointed
defense lawyer. Client wants to testify at his own trial, despite Attorney’s
recommendations that he not do so. As they are preparing for trial, Attorney asks Client
what he plans to say on the stand. Client’s story seems suspicious to Attorney – he has
serious doubts about its veracity – but Client insists that he is telling the truth, and
Attorney is not sure. Does Attorney have an ethical duty to allow Client to give this
improbable testimony at trial?
a) Yes, because in a criminal case, a lawyer cannot refuse to offer the testimony of a
client where the lawyer reasonably believes but does not know that the testimony
will be false; unless the lawyer knows that the testimony will be false, the lawyer
must honor the client’s decision to testify.
b) Yes, because a lawyer cannot control what a client will say once the Client is on
the stand under oath.
c) No, because a lawyer should refuse to offer testimony or other proof that the lawyer
reasonably believes is false; offering such proof may reflect adversely on the
lawyer's ability to discriminate in the quality of evidence and thus impair the
lawyer's effectiveness as an advocate.
d) No, because the lawyer has a duty of candor to the court and cannot allow a criminal
defendant to abuse the legal process by testifying falsely in order to obtain a
wrongful acquittal.
Rule 3.3. Cmt. 9
113
193. Attorney is a criminal defense lawyer, and he represents Client, who is facing charges
for burglary of a private residence. Client has asserted an alibi – he claims that on the
evening of the burglary, he was 100 miles away on a romantic getaway with his
girlfriend. Attorney interviews Client’s girlfriend, who recounts a similar story about
being on a romantic getaway, but a few details do not match Client’s account, such as
what they ordered for dinner when they stopped at a restaurant, and whether they had
to stop for gas along the way. Attorney suspects the girlfriend is lying to protect Client,
and that they rehearsed an alibi story without working through the fine details together.
Attorney lectures both Client and his girlfriend about the wrongfulness of perjury and
the fact that they do not have to testify at all, as well as the hazard of having their stories
crumble under rigorous cross-examination. Is it permissible, under the Rules of
Professional Conduct, for Attorney to call Client and his girlfriend as witnesses during
trial?
a) Yes, because Attorney does not know with certainty that they are lying, he must
allow Client to testify, and it is permissible to call the girlfriend as a witness as well.
b) Yes, because a lawyer in a criminal case has no duty to screen witnesses based on
whether they plan to tell the truth.
c) No, because Attorney may not call the girlfriend as a witness, but he has no choice
about allowing Client to testify.
d) No, because it would be improper for Attorney to call either Client or the girlfriend
to testify if he is not reasonably certain that each one will tell the truth.
Rule 3.3 Cmt. 9
Rule 3.4
Fairness to Opposing Party and Counsel
194. Client is on trial for a theft case. Witness was with Client at the time police state that
Client committed the crime at a location far from the crime scene. Client chooses to
take the case to trial. For Witness’s attendance at trial, Attorney pays Witness a lump
sum amount. Are Attorney’s actions proper?
a) Yes, because witnesses can be paid for their attendance and expenses incurred for
attending and testifying at a hearing or trial.
b) Yes, because contingency fees are the only kinds of fees not allowed to be paid to
witnesses for their attendance and testimony at a hearing or trial; lump sum
payments are allowed.
c) No, because a witness cannot be paid to attend and testify at a hearing or trial.
d) No, because an attorney cannot pay for witnesses’ attendance at a trial or hearing;
rather, the fees must be paid directly from the client to the witness.
114
195. Client is aware that he is under investigation for student loan fraud. A friend who
works at the courthouse tips off client that a magistrate issued a warrant to search
Client’s home for evidence the next day in the early morning. In a panic, Client calls
Attorney, whom he has retained to represent him during the investigation and any
prosecution that follows, and asks what he should do. Attorney informs him that the
agents executing the warrant will surely seize any computers and hard drives that they
find, and that Client should probably wipe and reformat all his drives or dispose of his
computers, that he should probably smash his cell phone, and that he might want to go
on a long vacation immediately. Is Attorney subject to discipline for this advice?
a) Yes, because the Sixth Amendment right to counsel does not arise until formal
adjudicatory proceedings begin.
b) Yes, because a lawyer shall not counsel or assist another person to destroy or
conceal a document or other material having potential evidentiary value.
c) No, because the traditional rules against destroying documentary evidence apply
only to printed copies, not to electronic files stored on a computer hard drive.
d) No, because until the police execute the warrant and legally seize the computers,
they are Client’s private property and he can do whatever he wants with them.
Rule 3.4(a)
196. Attorney responded to a distressed call from Client asking that he meet him
immediately on the street behind Attorney’s office. Attorney rushes downstairs to meet
Client outside his building. Client is very distraught and has blood splattered on his
clothes, hands, and face, and is holding a pistol. Client stammers, “You will not believe
what just happened.” Attorney takes the pistol and throws it down the closest storm
gutter on the street, and they can hear the gun clanging against concrete as it tumbles
deep down into the storm sewer. Attorney says, “It is late and you are too upset to talk.
Go home and clean yourself up, and do your laundry – you are a mess. We can discuss
this tomorrow morning when you are in a better frame of mind.” Client goes home to
shower and launder his clothes, and Attorney returns to his office and resumes his work
on the brief he was writing. Was Attorney’s conduct a violation of his ethical duties?
a) Yes, because he had a duty to inquire about what had happened and to call the
police or emergency services if someone had been hurt.
b) Yes, because Attorney concealed or obstructed the police’s access to potential
evidence by discarding the gun, and he counseled Client to destroy the evidence on
his clothes.
c) No, because Attorney does not know if Client has perpetrated a crime or if he was
the victim of a crime, so he has not destroyed evidence knowingly; perhaps Client
just saved someone else from a violent attacker.
d) No, because the gun is still retrievable from the storm sewer, and Attorney could
still testify about his observations of Client’s appearance when they met.
Rule 3.4(a)&(b)
115
197. In preparation for trial, Attorney and Client sat down together to go over Client’s
upcoming testimony. Client mentioned, as he recounted his version of the facts,
something that Attorney knew would constitute an admission of fault on a critical point
in the case. Attorney interrupted Client and said, “If you admit that, you will have
forfeited your entire case.” Client nods to show his comprehension of what Attorney
said. Client testified at trial and changed his story significantly, carefully omitting the
statement that Attorney had identified as a legal admission of guilt. Did Attorney
violate the Rules of Professional Conduct in preparing Client for his testimony in this
way?
a) Yes, because a lawyer should not prepare a witness for testimony at trial at all,
due to the risk of manipulating the witness or coaching the witness on the
testimony.
b) Yes, because a lawyer must not counsel another person to conceal a matter with
evidentiary value.
c) No, because the lawyer did not actually coach the witness to make a false
statement, but merely to refrain from making certain unfavorable admissions.
d) No, because one of the main values of having representation in litigation is to
have advice and counsel as one prepares to testify at trial.
Rule 3.4(a)
198. After much effort, Attorney located a witness who could fully corroborate his client’s
story and could impeach the testimony of the opposing party’s star witness. The
witness, however, was afraid of retaliation from others if she testified, and did not want
to be involved. Attorney offered witness $10,000 to appear at the trial for one afternoon
and testify for an hour or two. The witness reluctantly agreed. Was it proper for
Attorney to offer to pay a favorable witness to undergo the trouble of testifying at the
trial?
a) Yes, because expert witnesses routinely charge large sums to testify at trial, so it is
proper for a non-expert to receive a modest amount of compensation, especially if
she is fearful of adverse consequences from testifying.
b) Yes, because the goal of the trial is to determine the facts of what happened, and it
is important to have every material witness testify in order to corroborate the truth
and impeach the false statements of others.
c) No, because the lawyer offered the witness an unreasonably large amount of
money.
d) No, because the common law rule in most jurisdictions is that it is improper to pay
an occurrence witness any fee for testifying apart from expenses.
Rule 3.4(b) & Cmt. 3
199. After much effort, Attorney located a witness who could fully corroborate his client’s
story and could impeach the testimony of the opposing party’s star witness. The
witness, however, was afraid of retaliation from others if she testified, and did not want
to be involved. The witness also lives 1000 miles away and works as a waiter, so he
cannot afford the travel expenses and lodging, and cannot afford to miss work, because
he receives no wages if he does not work. Attorney offers to pay all the witness’
116
expenses. Attorney then pays for airfare and pays to put witness in one of the nicest
hotels in the city, and pays for all of witness’ dining bills at expensive downtown
restaurants. The witness reluctantly agreed. Was it proper for Attorney to offer to pay
the expenses for a favorable witness to undergo the trouble of testifying at the trial?
a) Yes, because expert witnesses routinely charge large sums to testify at trial, so it is
proper for a non-expert to receive a modest amount of compensation, especially if
she is fearful of adverse consequences from testifying.
b) Yes, because it is not improper to pay a witness’ expenses, as long as Attorney does
not offer to make pay the witness an inducement to provide favorable testimony.
c) No, because it is improper to pay an occurrence witness any fee for testifying apart
from expenses.
d) No, because it is proper to compensate a witness only if the lawyer will also
compensate a witness for the opposing party.
Rule 3.3 Cmt. 3
200. After much effort, Attorney located an expert witness who could substantiate his
client’s claims and could refute the testimony of the opposing party’s expert witness.
The expert witness, however, demanded a large retainer fee to review the case
documents and a fee of $1000 per hour of courtroom time. Was it proper for Attorney
to agree to pay the expert witness a princely sum to testify at the trial?
a) Yes, it is proper to compensate an expert witness on terms permitted by law.
b) Yes, as long as the lawyer did not select this expert merely because he expects his
testimony to be favorable to his client’s position.
c) No, a lawyer may not offer an inducement to a witness, especially an expert witness,
who is supposed to provide a purely objective assessment.
d) No, a lawyer may not hire an expert witness unless he pays the witness a contingent
fee that depends on the outcome of the case.
Rule 3.4 Cmt. 3
201. Attorney interviewed an expert witness that he thought he might hire to testify at
Client’s trial. Attorney explained that he was meeting with several expert witnesses
and would hire the one that he thought would seem most persuasive to the jury. The
expert witness offered to work on a contingent fee basis; if Attorney did not win the
case at which the expert testified, no fee would be due. Attorney would have to pay
the expert witness only if his testimony was compelling enough to produce a favorable
outcome in the case. Attorney thought that this would give the expert an incentive to
prepare more thoroughly for trial, and that it would be fairer to Client, who would be
left bankrupt if they lost at trial and would have trouble paying the expert’s fee anyway.
Would it be proper for Attorney to hire the expert witness under such terms?
a) Yes, it is permissible to pay an expert witness a large fee.
b) Yes, because if the client loses the case and would be unable to pay the fees to the
lawyer and the expert, the same type of contingency would result either way.
c) No, because it is improper to pay the expert witness a contingent fee.
d) No, because a lawyer cannot offer any inducement to a witness to testify.
Rule 3.4 Cmt. 3
117
202. During trial, the plaintiffs complained that Attorney’s client had not fully complied
with certain production requests during discovery. The judge ordered Attorney to
produce the specific records. Attorney believed that his client had no legal obligation
to produce the records in question, because they included important trade secrets and
were not relevant or material to the current litigation in any way. Attorney openly
refused to produce the records and explained his position to the judge. The judge
disagreed and ordered Attorney to bring the records to the courtroom the next day.
Attorney did not obey the judge’s order. Apart from any potential contempt-of-court
sanctions, could Attorney be subject to discipline for violating the Rules of Professional
Conduct?
a) Yes, because a lawyer must not knowingly disobey an obligation under the rules of
a tribunal.
b) Yes, because the proper response would be to produce the records and then object
to their admissibility at trial.
c) No, because a lawyer may disobey an order from a tribunal when the lawyer has
made an open refusal based on an assertion that no valid obligation exists.
d) No, because in an adversarial proceeding, the judge should rely on the evidence
that the parties present, rather than meddling with discovery and production of
evidence.
Rule 3.4(c)
203. During opening arguments in a criminal trial before a jury, Attorney, who was
representing the defendant, closed his statements by declaring, “My client is innocent;
I know it in my heart. By the end of the trial, I am confident that you will agree with
me that this is an innocent man.” Are such comments proper for a defense lawyer to
make during trial?
a) Yes, because we presume that every defendant is innocent until proven guilty.
b) Yes, because the fact that the defendant has pleaded not guilty has already put that
assertion before the jury.
c) No, because such comments could manipulate and prejudice a jury, even though
the comments would be acceptable in a bench trial.
d) No, because at trial, a lawyer shall not state a personal opinion as to the guilt or
innocence of an accused.
Rule 3.4 (e)
204. During his closing argument at a bench trial, Attorney makes the following statement
to the judge: “Your Honor, I know this client, because we grew up together and I have
represented him in various legal matters for years. I know that he is an honest person
who would never lie or try to take advantage of another person unfairly. In fact, I am
doing this case on a pro bono basis because I feel so strongly about the justness of his
cause.” All of these statements were truthful – Attorney had known Client since
childhood and had represented him many times, Attorney admired Client’s integrity,
and Attorney had offered to handle this case without charging any fee because he
118
believed so strongly that Client was on the right side. Was it proper for Attorney to
make these comments during closing arguments?
a) Yes, because it was a bench trial so there was no danger of manipulating or
prejudicing a jury in this case.
b) Yes, because a lawyer has a duty to be a zealous advocate for his client, and lawyers
merely represent the assertions of their clients, rather than vouching for the
accuracy of all the claims.
c) No, because at trial, a lawyer shall not assert personal knowledge of facts in issue
except when testifying as a witness, or state a personal opinion as to the justness of
a cause, the credibility of a witness.
d) No, because it is improper to disclose during a trial how much, if anything, a lawyer
is charging to represent a client.
Rule 3.4(e)
205. Attorney represents a small business in an enforcement action brought by the National
Labor Relations Board over violations of the laws protecting unionized workers.
Attorney meets with the employees of his client, in groups of four or five at a time, and
explains that there is litigation pending, that government lawyers are representing the
NLRB, and that they should simply decline to discuss the case with anyone, especially
lawyers from the government. Was it proper for Attorney to ask the employees not to
talk to the other party?
a) Yes, the Rules of Professional Conduct permit a lawyer to advise employees of a
client to refrain from giving information to another party, for the employees may
identify their interests with those of the client.
b) Yes, because each of those individuals is still free to ignore the lawyer and talk to
whomever they want about the case or about the company.
c) No, because the lawyer could not reasonably believe that the employees’ interests
will not be adversely affected by refraining from giving such information.
d) No, because the Rules of Professional Conduct require a lawyer to encourage every
potential witness to talk openly and honestly with the lawyers on both sides of the
case.
Rule 3.4(f)(2)
206. Attorney represents a small business in a contract dispute with one of its suppliers.
Attorney meets with the employees of his client, in groups of four or five at a time, and
explains that there is litigation pending, that Big Firm is representing the supplier, and
that they should simply decline to discuss the case with anyone, especially lawyers
from Big Firm. Was it proper for Attorney to ask the employees not to talk to the other
party?
a) Yes, the Rules of Professional Conduct permit a lawyer to advise employees of a
client to refrain from giving information to another party, for the employees may
identify their interests with those of the client.
119
b) Yes, because each of those individuals is still free to ignore the lawyer and talk to
whomever they want about the case or about the company.
c) No, because the Rules of Professional Conduct do not permit a lawyer to advise
employees of a client to refrain from giving information to another party, for the
employees may identify their interests with those of the opposing party.
d) No, because a lawyer shall not request a person other than a client to refrain from
voluntarily giving relevant information to another party.
Rule 3.4(f) & Cmt. 4
207. Client hired Attorney to represent her in litigation over the custody of her children
following a divorce. Client was concerned about her former best friend, in whom she
had confided for many years about her struggles with substance abuse and mental
illness. The friendship had ended, because of an intense argument over Christmas
presents, even before Client married and had children, and Client had been free from
substance abuse since she married, and was now managing her mental health issues
very well. Her former friend knew many of her darkest secrets. Attorney located the
former friend, explained that Client was fighting for custody of her children, and that
he expected the ex-husband’s lawyer to call her to testify at the hearing about Client’s
former troubles. Attorney pleaded with her to show some consideration for the years
of good friendship and good memories she shared with Client, and to refuse to betray
her former friend’s confidence and reveal all her dark secrets. The former friend felt
deeply moved by this entreaty and agreed to stay out of the litigation. Was Attorney’s
conduct proper?
a) Yes, because a lawyer may request that someone refrain from voluntarily giving
relevant information to another party.
b) Yes, as long as the lawyer reasonably believes that the person's interests will not be
adversely affected by refraining from giving such information.
c) No, because a lawyer may not request a person other than a client to refrain from
voluntarily giving relevant information to another party, except for certain cases
that do not apply here.
d) No, because the lawyer has a duty to think about the best interests of the children
in this case, rather that his client’s convenience or feelings.
Rule 3.4(f)
208. Client hired Attorney to represent her in litigation over the custody of her children
following a divorce. Client was concerned about her older sister, in whom she had
confided for many years about her struggles with substance abuse and mental illness.
Her good relationship with her sister had ended, because of an intense argument over
Christmas presents, even before Client married and had children, and Client had been
free from substance abuse since she married, and was now managing her mental health
issues very well. Her sister knew many of her darkest secrets. Attorney located the
sister, explained that Client was fighting for custody of her children, and that he
expected the ex-husband’s lawyer to call her to testify at the hearing about Client’s
former troubles. Attorney pleaded with her to show some consideration for the years
of good relationship and good memories she shared with Client, and to refuse to betray
120
her sister’s confidence and reveal all her dark secrets. The sister felt deeply moved by
this entreaty and agreed to stay out of the litigation. Was Attorney’s conduct proper?
a) Yes, because a lawyer may request that a relative of the client refrain from
voluntarily giving relevant information to another party.
b) Yes, as long as the lawyer reasonably believes that the person's interests will not be
adversely affected by refraining from giving such information.
c) No, because a lawyer may not request a person other than a client to refrain from
voluntarily giving relevant information to another party, except for certain cases
that do not apply here.
d) No, because the lawyer has a duty to think about the best interests of the children
in this case, rather that his client’s convenience or feelings.
Rule 3.4(f)(1)
209. During the discovery phase of business litigation, Conglomerate Corporation receives
a discovery request asking for “all documents, memoranda, emails, or other internal
correspondence related to the transaction that is the subject of this dispute.” Attorney
represents Conglomerate Corporation. Thousands of documents stored in electronic
format on Conglomerate’s computers and servers would arguably fall under this request
for production. Attorney proposes to opposing counsel that they produce the requested
documents in electronic form on a set of compact discs, and the opposing counsel
readily agrees. Long before the litigation began, Attorney began using software to
scrub the metadata from documents – electronically embedded information about the
name of the user whose computer created the document, the date and time of creation,
redlined changes from each stage of editing, and comments that other readers added to
the document before it took its final form. Proposed contracts, letters to business
partners, and correspondence with opposing counsel are all free from embedded
metadata. Was it proper for Attorney to scrub the metadata from electronic documents
that could potentially be subject to a discovery or production request in future
litigation?
a) Yes, because the printed copies of the documents would not have had such
information.
b) Yes, because a lawyer may take measures to eliminate metadata from documents
that could later fall into the hands of an opposing party.
c) No, because the main reason for scrubbing metadata is to conceal information that
might be useful to an opposing party or tribunal in the future.
d) No, because the metadata is often necessary for determining who created a
document, when they created it, or how the document changed from its original
draft to its final form.
ABA Formal Op. 06-442
121
210. During the discovery phase of business litigation, Conglomerate Corporation receives
a discovery request asking for “all documents, memoranda, emails, or other internal
correspondence related to the transaction that is the subject of this dispute.” Attorney
represents Conglomerate Corporation. Thousands of documents stored in electronic
format on Conglomerate’s computers and servers would arguably fall under this request
for production. Attorney proposes to opposing counsel that they produce the requested
documents in electronic form on a set of compact discs, and the opposing counsel
readily agrees. After receiving the production request, Attorney began using software
to scrub the metadata from documents – electronically embedded information about the
name of the user whose computer created the document, the date and time of creation,
redlined changes from each stage of editing, and comments that other readers added to
the document before it took its final form. Proposed contracts, letters to business
partners, and memoranda between managers all have their embedded metadata erased.
Was it proper for Attorney to scrub the metadata from electronic documents before
delivering them to the other party in response to a discovery request?
a) Yes, because the printed copies of the documents would not have had such
information.
b) Yes, because a lawyer may take measures to eliminate metadata from documents
that could later fall into the hands of an opposing party.
c) No, because the main reason for scrubbing metadata is to conceal information that
might be useful to an opposing party or tribunal in the present litigation.
d) No, because the metadata is often necessary for determining who created a
document, when they created it, or how the document changed from its original
draft to its final form.
ABA Formal Op. 06-442
Rule 3.5
Impartiality and Decorum of the Tribunal
211. Attorney represented Client in a prosecution for murder, and the prosecutor was
seeking the death penalty. The trial was not going well, and the judge had not
sequestered the jury, so Attorney sent his secretary to visit some of the jurors in their
homes one evening, bringing them cookies and talking to them about the seriousness
of sentencing a fellow human being to death. The secretary did not say she worked for
Attorney, but instead introduced herself as a member of an advocacy group that seeks
to abolish the death penalty, and she left pamphlets about abolishing the death penalty
in each juror’s home. Could Attorney be subject to discipline for this activity?
a) Yes, because he was communicating ex parte with the jurors through the secretary
during the proceeding.
b) Yes, because the secretary did not inform the jurors that she worked for Attorney.
c) No, because Attorney did not actually speak to any of the jurors directly and
therefore had no ex parte contact with them.
122
d) No, because Attorney did not have the secretary discuss the merits of the case or
the evidence, but only the morality of the death penalty, which is a serious public
policy issue.
Rule 3.5(b)
212. Police arrested several protestors who were advocating a cause that Attorney strongly
supported. One of the protestors had a violent altercation with police, and she was
facing criminal charges. Attorney practices corporate transactional law and not
litigation. The news media reported that jury selection would begin the following
Monday in the protestor’s prosecution. Attorney waited outside the courthouse where
prospective jurors were reporting for jury service, and a long line formed at the metal
detectors for entering the courthouse. Attorney waited in line and started conversations
with the prospective jurors in front of him and behind him in the line, during which he
explained that he was a lawyer and that the case against the protestor was ridiculous
from a legal standpoint. He told them that he hoped the jury would follow the laws of
the state and acquit the protestor. Once Attorney made it through the security line, he
walked out of the courthouse and got back in the security line again, and had similar
conversations with more prospective jurors. During voir dire, the prosecutor asked the
prospective jurors if anyone had spoken to them directly about the case, and three
people mentioned their conversations with a lawyer in the security line waiting to get
into the building. None of the individuals with whom Attorney spoke ended up on the
jury in the case. The prosecutor eventually determined Attorney’s identity and filed a
grievance with the state disciplinary authority. Could Attorney be subject to discipline?
a) Yes, because Attorney should have explained both sides of the case as fairly as
possible to the prospective jurors.
b) Yes, because a lawyer shall not seek to influence a judge, juror, or even a
prospective juror.
c) No, because he spoke to prospective jurors, and they did not end up serving on the
case.
d) No, because he was not representing a party in the case, and was not even a litigator.
Rule 3.5(a)
213. Attorney represented Client in an action for replevin. After the filing of the case, but
before the court had sent any notices about the docket number, Attorney spoke to a
clerk at the courthouse, and inquired whether the case had received an assignment yet
to a judge. The clerk said it was still unassigned. Attorney then asked the clerk to
mention to the Director of Judicial Administration, who was also the Chief Presiding
Judge, that they should not assign the case to a particular judge, who was notorious for
having a biased against parties like Attorney’s client, and who had an extraordinarily
high reversal rate from the appellate courts in replevin cases. The clerk said he would
mention the conversation to the Director, which he did. The Director said she could
not accommodate special requests from lawyers regarding case assignments, but when
it came time to assign the case, she assigned the case to another judge merely to avoid
another embarrassing reversal from the appellate courts. Was it improper for Attorney
to ask the clerk to pass his concerns along to the Director?
123
a) Yes, because he should have waited until the case was assigned before asking the
administrator to reassign it to another judge.
b) Yes, because during a proceeding a lawyer may not communicate ex parte with
persons serving in an official capacity in the proceeding, such as judges, masters or
jurors, unless authorized to do so by law or court order.
c) No, because Attorney did not actually speak ex parte with the judicial officer, but
instead spoke with a front-counter clerk.
d) No, because the case had not yet been assigned to any judge.
214. Attorney is a litigator and finds it helpful to talk to jurors after a trial concludes to see
what they thought about the performance of the lawyers in the case. Assuming the
judge has not forbid talking to jurors and the jurors are willing to talk to him, is it proper
for Attorney to have conversations with jurors in their homes, a week after the trial?
a) Yes, because a lawyer may communicate with a juror after the discharge of the jury,
but must respect the desire of the juror not to talk with the lawyer.
b) Yes, as long as the lawyer does not talk about the merits of the case, the evidence,
or the credibility of the witnesses.
c) No, because a lawyer may talk to jurors after discharge only with opposing counsel
present and while they are still at the courthouse.
d) No, because a lawyer may not communicate ex parte with a juror, without an
express authorization by the judge.
Rule 3.5 Cmt. 3
215. A judge lost his temper with Attorney and spoke very abusively to him in open court,
in front of a jury, using profanity and calling Attorney “an embarrassment to the
profession and a menace to his own clients.” Attorney shot back that the judge was
completely out of line, that the judge should have retired years ago; Attorney also made
a mildly obscene gesture at the judge. Eventually, both calmed down and apologized
to each other profusely. Opposing counsel reported Attorney to the state bar
disciplinary authority, but did not report the judge, before whom opposing counsel
appears regularly. Could Attorney be subject to discipline?
a) Yes, because he escalated the fiery exchange by making an obscene gesture.
b) Yes, because a lawyer may stand firm against abuse by a judge but should avoid
reciprocation; the judge's default is no justification for similar dereliction by an
advocate.
c) No, because the opposing counsel who reported the matter did not report the judge,
who instigated the exchange, and presumably reported Attorney merely to make
trouble for his opponent in litigation.
d) No, because the Attorney apologized to the judge immediately, and a lawyer is not
required to passively accept abuse or inappropriate attacks from a judge or other
lawyer.
Rule 3.5 Cmt. 4
124
216. Client is struggling through a deposition, during which opposing counsel is subjecting
him to intense questioning. Attorney, who represents Client, tries objecting a few times
in order to break the opposing counsel’s momentum, but it was to no avail. Attorney
then stood up, shouted, and with a heave overturned the conference table around which
the lawyers, court reporter, and deponent were sitting. Notes, cell phones, and open
briefcases flew across the room, and the stenographer’s equipment tumbled to the floor.
Attorney and Client gathered their things and stormed out of the room. A few days
later, Attorney called opposing counsel and halfheartedly apologized, and agreed to
reschedule the deposition if opposing counsel would agree to behave himself this time.
Opposing counsel reported Attorney to the state bar disciplinary authority. Could
Attorney be subject to discipline for the way in which he disrupted the deposition?
a) Yes, because Attorney did not properly apologize for his own conduct or take
responsibility for his actions.
b) Yes, because the duty to refrain from disruptive conduct applies to any proceeding
of a tribunal, including a deposition.
c) No, because the disruption was merely at a deposition, which is not as formal as a
trial or hearing.
d) No, because his response was appropriate given the aggressiveness of opposing
counsel in the deposition.
Rule 3.5(d) & Cmt. 5
217. Attorney received a call from his cousin, who lives in another city, one evening after
work. The cousin was serving on a jury in a misdemeanor criminal case, and
deliberations were set to begin the following morning. The cousin explained that part
of the jury instructions focused on whether the defendant committed the act
“knowingly.” She is confused about whether that means that the defendant knew that
he was committing the act, or that the defendant knew he was doing something illegal
at the time. She called Attorney hoping for some clarification. Attorney practiced real
estate law and had never handled a criminal case, but he vaguely remembered
something about this from his first-year law school course in criminal law. Given that
there was no time for him to research the subject, or to create an agreement for
representation, and the fact that he had very limited information, Attorney offered the
best explanation he could. Was it proper for Attorney to answer her question under
these circumstances?
a) Yes, because he has no involvement with the case, and the juror is his relative.
b) Yes, because the Supreme Court has held that any restrictions in this area violate
the First Amendment.
c) No, because he communicated with a juror about a pending case.
d) No, because there is a chance his cousin could repeat a garbled version of his
informed opinion to the other jurors during deliberations.
Rule 3.5(b)
218. During a trial, the judge overruled one of Attorney’s objections. Attorney felt that the
judge had made a fundamental error and had ignored a clear provision of the official
125
Rules of Evidence. Court adjourned for the day a few minutes later, and the judge
retreated to his chambers. Attorney approached the judge’s clerk, who was still in the
courtroom, and gave him a handwritten note, folded into a square, to pass along to the
judge. The clerk gave the note to the judge. The note thanked the judge for recently
inviting Attorney to the judge’s home, along with sixty other people from the legal
community, for a holiday party. It also said that the judge had made a mistaken ruling
on Attorney’s objection that day, and referred the judge to the relevant provision of the
Rules of Evidence. Could Attorney be subject to discipline for his actions?
a) Yes, because the lawyer was mixing personal matters with his representation of a
client.
b) Yes, because the attorney communicated ex parte with a judge communicating ex
parte with a judge during the proceeding, without being authorized to do so by law
or court order.
c) No, because the note did not directly ask the judge to take a position on the merits
of the case.
d) No, because the Attorney did not speak to the judge directly, but instead gave a note
to the clerk, who is not a judicial officer.
Rule 3.5(b)
Rule 3.6
Trial Publicity
219. Defendant was facing charges for a high-profile crime, and he was the subject of
constant negative media coverage, strongly presuming Defendant’s guilt. Attorney was
the criminal defense lawyer representing Defendant. When a reporter asked Attorney
for a comment on the case, Attorney replied, “The only one guilty of anything here is
the media.” Was Attorney’s comment proper?
a) Yes, because it was unlikely to have a materially prejudicial effect on an
adjudicative matter.
b) Yes, because a lawyer may make a statement that a reasonable lawyer would
believe is required to protect a client from the substantial undue prejudicial effect
of recent publicity not initiated by the lawyer or the lawyer's client.
c) No, because a lawyer should not publicly express any opinion as to the guilt or
innocence of a defendant or suspect in a criminal case or proceeding that could
result in incarceration.
d) No, because a lawyer participating in a criminal proceeding shall not make any
extrajudicial statement that the lawyer knows or reasonably should know will be
disseminated by means of public communication
Rule 3.6 Cmt. 5(4)
220. A lawyer is representing the defendant in a highly publicized trial. On his way into
the courthouse on the day of jury selection, reporters gather around the lawyer hoping
for comments. The lawyer explains that the prosecutor already held a press conference
in which she shared that the defendant had refused to take a polygraph test, that DNA
tests had confirmed the defendant’s guilt, and that the defendant had refused several
126
offers of guilty pleas. To set the record straight before trial, the defense lawyer explains
that his client had actually agreed to take a polygraph test but that none had occurred.
He adds that defense experts would testify about problems with the DNA tests, and that
the plea offers had all been the same (a life sentence instead of the death penalty) and
were unacceptable to the client. Were the defense lawyer’s statements proper?
a) Yes, when prejudicial statements have been publicly made by others, responsive
statements may have the salutary effect of lessening any resulting adverse impact
on the adjudicative proceeding.
b) Yes, because the First Amendment and Sixth Amendment protect a defendant’s
right to defend himself publicly through his attorney against false accusations.
c) No, because there is a presumption of prejudicial effect on the proceedings when a
lawyer comments publicly about the possibility of a guilty plea, or a party’s refusal
to confess to a crime
d) No, because there is a presumption of prejudicial effect on the proceedings when a
lawyer comments publicly about the performance or results of any examination or
test or the refusal or failure of a person to submit to an examination or test.
Rule 3.6(c) & Cmt. 7
221. A lawyer is representing the defendant in a highly publicized trial. On his way into
the courthouse on the day of jury selection, reporters gather around the lawyer hoping
for comments. The lawyer explains that the prosecutor already held a press conference
in which she shared that the defendant had refused to take a polygraph test, and that
DNA tests had confirmed the defendant’s guilt. The lawyer explains that polygraphs
tests are inadmissible due to their unreliability, and that the DNA results are in dispute
and will be the subject of expert testimony at trial. He adds that the sleazy prosecutor
has a habit of holding such press conferences to trial to prejudice the proceedings before
every criminal trial, and that it merely reveals that the prosecutor’s cases are too weak
to win on the merits without such stunts. His client, he says, is now guilty until proven
innocent, which is a shame considering the serious criminal charges in the case. He
also mentions that the state’s star witness is a dangerous convicted felon who is
testifying in exchange for early release from prison. Were the defense lawyer’s
statements proper?
a) No, such responsive statements should be limited to contain only such information
as is necessary to mitigate undue prejudice created by the statements made by
others.
b) Yes, when prejudicial statements have been publicly made by others, responsive
statements may have the salutary effect of lessening any resulting adverse impact
on the adjudicative proceeding.
c) Yes, because the First Amendment and Sixth Amendment protect a defendant’s
right to defend himself publicly through his attorney against false accusations.
d) No, because there is a presumption of prejudicial effect on the proceedings when a
lawyer comments publicly about the performance or results of any examination or
test or the refusal or failure of a person to submit to an examination or test.
Rule 3.6(c) & Cmt. 7
127
222. A lawyer is representing the defendant in a highly publicized personal injury trial
between a celebrity plaintiff and a famous hotel, where the plaintiff claims to have
suffered injuries due to unsafe conditions. On his way into the courthouse on the day
of jury selection, reporters gather around the lawyer hoping for comments. The lawyer
explains that his client has already made renovations to the hotel to ensure that no
accidents happen in the future, even though they do not admit liability in the present
case. He also explains that if his client loses, his insurance company will simply pay
the damages, and lawsuits like this make everyone’s insurance premiums go up. The
lawyer has his client’s permission to talk to the media. Opposing counsel is standing
nearby waiting for his turn to talk, and he expresses no objection to the first lawyer
giving interviews like this, or to the lawyer’s comments. Were the lawyer’s statements
proper?
a) No, it violates the Model Rules for a lawyer to make public statements about
information that the lawyer knows or reasonably should know is likely to be
inadmissible as evidence in a trial and that would, if disclosed, create a substantial
risk of prejudicing an impartial trial; the defendant’s insurance and post-accident
renovations would clearly be inadmissible at trial due to their potential for
prejudicial effect.
b) Yes, because the other lawyer is present and did not object to the comments at the
time, and the client has consented to the lawyer’s media communications.
c) No, because in civil trials a defendant’s lawyer should not tell the press that his
client denies liability in the case.
d) Yes, the rules about trial publicity explicitly permit lawyers to talk about defenses
in the case, and the client’s mitigation efforts and public policy concerns over
skyrocketing insurance rates could be the defendant’s main arguments to the jury.
Rule 3.6 Cmt. 5(5)
223. A lawyer is representing the defendant in a highly publicized civil trial between two
celebrities. On his way into the courthouse on the day of jury selection, reporters gather
around the lawyer hoping for comments. The lawyer explains that his client has agreed
to take a polygraph test proving that he is telling the truth about the disputed matter,
but that the opposing party has refused to take a polygraph test, which suggests that the
other person is hiding something. The lawyer has his client’s permission to talk to the
media. Opposing counsel is standing nearby waiting for his turn to talk, and he
expresses no objection to the first lawyer giving interviews like this, or to the lawyer’s
comments. Were the lawyer’s statements proper?
a) No, because there is a presumption of prejudicial effect on the proceedings when a
lawyer comments publicly about the performance or results of any examination or
test or the refusal or failure of a person to submit to an examination or test.
b) Yes, because the other lawyer is present and did not object to the comments at the
time.
c) No, because it violates the rules to talk to crowds of reporters near a courthouse
entrance on the day when potential jurors are entering the building for voir dire.
d) Yes, because polygraph tests are inadmissible in court in almost every state, so
commenting on these tests is irrelevant to the trial itself.
128
Rule 3.6 Cmt. 5(3)
224. A lawyer is representing the defendant in a highly publicized criminal trial. On his
way into the courthouse on the day of jury selection, reporters gather around the lawyer
hoping for comments. The lawyer explains that his client is still considering whether
to enter a guilty plea to lesser charges, as the prosecutor’s offer is still open, and that
they are waiting to see how jury selection goes before deciding whether to plead guilty
or proceed to trial. The lawyer also explains that his client has never actually confessed
to the crime charged, despite several lengthy interviews with the police and the client’s
admitting that he was near the scene of the crime when it occurred. The lawyer has his
client’s permission to talk to the media, and the prosecution has expressed no objection
to him giving interviews like this on the courthouse steps in previous cases. Were the
lawyer’s statements proper?
a) No, because there is a presumption of prejudicial effect on the proceedings when a
lawyer comments publicly about the possibility of a guilty plea, or a party’s refusal
to confess to a crime
b) Yes, because the rules about trial publicity explicitly allow the lawyer to explain
the offense or defense involved, and the prosecutor has not objected.
c) No, because it violates the rules to talk to crowds of reporters near a courthouse
entrance on the day when potential jurors are entering the building for voir dire.
d) Yes, because the lawyer’s statements clearly fall under the protection of his First
Amendment rights, and he has his client’s consent.
Rule 3.6 Cmt. 5(2)
225. A lawyer is representing the defendant in a highly publicized civil trial between two
celebrities. On his way into the courthouse on the day of jury selection, reporters gather
around the lawyer hoping for comments. The lawyer explains that the (unrelated)
criminal trial happening at the courthouse that day is far more important, and he
expresses regret that he is not involved in that case at all. He states that he believes the
criminal case should result in an acquittal because the police (who are testifying as
witnesses in the case) violated the defendant’s civil liberties, and because the relevant
penal statute itself, which furnished the basis for charges in the case, violates the Bill
of Rights. His own civil case, he says, is a brief matter scheduled for a one-day trial,
so he hopes to observe the closing arguments tomorrow in the important criminal case
in the other courtroom. Were the lawyer’s statements proper?
a) Yes, because the rule limiting trial publicity applies only to lawyers who are, or
who have been involved in the investigation or litigation of a case
b) Yes, because the lawyer is expressing opinions about the constitutionality of a law
and of the state’s actions, and such statements receive special protection under the
First Amendment
c) No, because the lawyer is commenting on the character or reputation of police who
will be witnesses in the case
129
d) No, because the lawyer’s arguments would be inadmissible at trial, if the courts
have already upheld the constitutionality of the statute and the police actions in this
circumstance
Rule 3.6 Cmt. 3
226. A lawyer is representing the defendant in a highly publicized trial. On his way into
the courthouse on the day of jury selection, reporters gather around the lawyer hoping
for comments. The lawyer explains that his client has a perfectly clean criminal record,
while the state’s star witness is already serving time on a felony drug conviction. In
his personal opinion, he says, the client is innocent and should receive an acquittal, but
he does not explain the defense theory of the case. The lawyer declares that he has his
client’s permission to talk to the media, which is true, and that the prosecution
expressed no objection to him giving interviews like this on the courthouse steps in
previous cases. Were the lawyer’s statements proper?
a) No, because the official Comment to the Model Rules says that expressing an
opinion about a party’s guilt or innocence, or about the criminal record of a party
or witness, is more likely than not to have a material prejudicial effect on a
proceeding.
b) Yes, because the rules about trial publicity explicitly allow the lawyer to explain
the offense or defense involved, and the prosecutor has not objected.
c) No, because it violates the rules to talk to crowds of reporters near a courthouse
entrance on the day when potential jurors are entering the building for voir dire.
d) Yes, because the lawyer’s statements clearly fall under the protection of his First
Amendment rights, and he has his client’s consent.
Rule 3.6 Cmt. 5(4)
227. Attorney represented a newspaper publisher in a defamation case brought by a
popular actor. A radio talk show invited Attorney to participate in their afternoon
program and respond to calls from the radio listeners. The first caller asked Attorney
to explain the case involving the superhero that the popular actor had played in a recent
film. Attorney explained that the actor (using the actor’s legal name as it appeared in
the pleadings, rather than his stage name or the character for which the actor was most
famous), and the legal name of the publisher Attorney represented. He also explained
that the lawsuit was over alleged defamation by the newspaper, and that the newspaper
planned to raise an affirmative defense of truth, that is, it would attempt to show that
the stories it printed about the actor were factually accurate, even if they were
unflattering. Attorney also mentioned that the actor owns a home and a business in the
state, which is a matter of public record, and that is why the case is in the courts in that
state. Did Attorney violate the Rules of Professional conduct by making these
statements on a radio talk show program?
a) Yes, because a lawyer who is participating or has participated in litigation shall not
make an extrajudicial statement that the lawyer knows or reasonably should know
will be disseminated by means of public communication.
130
b) Yes, because he explained that his side would assert the truth of the unflattering
stories it published, which could prejudice the upcoming proceedings, and revealed
where the actor lives.
c) No, because a lawyer may state the claim, the defense involved, and the identity of
the persons involved.
d) No, because a lawyer has a right to explain his client’s side of the story and defend
his client in public when the client has been subjected to the stigma of a lawsuit.
Rule 3.6(b)(1)
228. A prosecutor in a felony drug case addressed a group of reporters outside the District
Attorney’s office. In response to questions about the specific case underway, the
prosecutor explained that the judge had consolidated the trials of three co-defendants
into a single proceeding and had postponed the proceeding until the next summer, four
months away. Was it proper for the prosecutor to disclose such details about the case
to reporters?
a) Yes, because the public has a right to know how the details of a criminal
prosecution, as the taxpayers are paying the prosecutor’s salary.
b) Yes, because a lawyer may tell reporters the scheduling or result of any step in
litigation.
c) No, because no lawyer associated in a firm or government agency subject to the
Rules of Professional Conduct shall make a statement prohibited by the Rules.
d) No, because criminal jury trials will be most sensitive to extrajudicial speech.
Rule 3.6(a)(4)
229. Attorney defended Client in a criminal proceeding that attracted low-level media
attention on the local evening news and a few local-interest blogs. A semi-retired
reporter for the local evening news called Attorney at his office and asked for a quote
about Client’s case. Attorney stated that Client had no prior criminal record and that
they planned to put on a rigorous defense, and he hoped the prosecutor would drop all
the charges before trial. Was it improper for Attorney to make these statements?
a) Yes, because lawyers involved in a criminal proceeding may not make any
statements to the media about the case or the parties involved.
b) Yes, because a lawyer should not make extrajudicial comments about the criminal
record of a party during a criminal matter.
c) No, because a lawyer may state the claim, offense or defense involved and, except
when prohibited by law, the identity of the persons involved.
d) No, because the matter received only low-level media attention and the reporter
was semi-retired.
Rule 3.6 Cmt. 5(1)
131
230. Attorney defended Client in a criminal proceeding that attracted low-level media
attention on the local evening news and a few local-interest blogs. One of these
bloggers called Attorney at his office and asked for a quote about Client’s case.
Attorney stated that a member of the local clergy, as well as the Principal of the local
high school, would testify as to Client’s good character and volunteer activities. Was
it proper for Attorney to discuss such things with a blogger?
a) Yes, because a local-interest blogger is not an official public communication and
does not constitute dissemination by means of public communication.
b) Yes, because a lawyer may state the expected testimony of a party or witness in a
criminal matter.
c) No, because in a criminal matter, it is presumptively prejudicial for a lawyer to
make extrajudicial statements about the expected testimony of a party or witness.
d) No, because a criminal defense lawyer may not make any extrajudicial statements
except to state the claim, offense or defense involved and, except when prohibited
by law, the identity of the persons involved.
Rule 3.6 Cmt. 5(1)
231. At a press conference about the prosecution of an accused serial killer, the prosecutor
stated that the defendant was single and lived with his mother in a particular apartment
complex in the city, and that the defendant worked as a butcher. Was it proper for the
prosecutor to disclose such information about the case to reporters?
a) Yes, because a lawyer in a criminal case may state the identity, residence,
occupation, and family status of the accused.
b) Yes, because a prosecutor represents the people, and the public disclosures are
necessary communications between a lawyer and his clients, the taxpayers.
c) No, because the defendant is on trial for murder, so special ethical duties
automatically apply to the prosecutor’s public statements.
d) No, because a lawyer in a criminal case may not disclose the residence, occupation,
or family status of the accused.
Rule 3.6(b)(7)(i)
232. At a press conference about the prosecution of an accused serial killer, the prosecutor
stated that the police arrested the defendant at the scene of one of the crimes soon after
the crime occurred, at 11 pm on Saturday. Was it proper for the prosecutor to disclose
such information about the case to reporters?
a) Yes, because a lawyer in a criminal case may state the fact, time, and place of arrest.
b) Yes, because a prosecutor represents the people, and the public disclosures are
necessary communications between a lawyer and his clients, the taxpayers.
c) No, because the defendant is on trial for murder, so special ethical duties
automatically apply to the prosecutor’s public statements.
d) No, because a lawyer in a criminal case may not disclose the time and place of
arrest
Rule 3.6(b)(7)(i)
132
233. At a press conference about the prosecution of a notoriously vice-prone celebrity, the
prosecutor stated that the District Attorney’s office had filed charges against the
celebrity for shoplifting and drug possession. The prosecutor then said he had no
further comments and took no further questions. Was it proper for the prosecutor to
disclose such information about the case to reporters?
a) Yes, because the prosecutor took no further questions and merely stated the nature
of the case.
b) Yes, because in a criminal case, a prosecutor may state publicly that a defendant
has been charged with a crime, as long as he does not include a statement that the
charge is merely an accusation and that the defendant is presumed innocent until
and unless proven guilty.
c) No, because a prosecutor should not make any public statement about a criminal
case, unless the prosecutor has express authorization from a tribunal.
d) No, because in a criminal case, it is presumptively prejudicial for a prosecutor to
state publicly that a defendant has been charged with a crime, unless he includes a
statement explaining that the charge is merely an accusation and that the defendant
is presumed innocent until and unless proven guilty.
Rule 3.6 Cmt. 5(6)
Rule 3.7
Lawyer as Witness
234. As he left work one evening, Attorney was approaching his car in the parking garage
when he noticed two men arguing near a car at the far end of that floor of the garage.
He could not hear what they were arguing about, but could hear occasional profanities
and insults, and one of them shouting, “I warned you!” Then he saw that the men began
to fistfight. A few other people by this point had stopped to watch in the parking garage
and someone called the police, who arrived within five minutes. By that point, one of
the men who had been fighting was bloody and could not walk away from the fight on
his own. The police took the men into custody and the other witnesses quickly
dispersed, so the police took a statement from Attorney, the only witness who
remained. The officer turned to his partner, who was standing near the squad car with
its driver door open, and shouted that one of the witnesses was actually a lawyer, which
prompted a snide remark from the other officer. One of the arrestees in the car
overheard this exchange and asked the officer to get Attorney’s business card so that
133
he could hire him. May Attorney represent the arrestee in the criminal or civil
proceedings that follow?
a) Yes, because only one of the arrestees asked Attorney to represent him, and
Attorney owed no ethical duty to the other man who had been fighting.
b) Yes, because Attorney did not engage in solicitation of a client at the scene of an
incident, but instead the prospective client requested his representation.
c) No, because a lawyer should not represent a client who was referred to him by a
police officer, even if the referral was in the context of a casual exchange between
police in the client’s presence.
d) No, because a lawyer shall not act as advocate at a trial in which the lawyer is likely
to be a necessary witness.
Rule 3.7(a)
235. Attorney works in a partnership with one other lawyer. Client wants Attorney to
represent her in litigation over a contract dispute, because Attorney helped negotiate
the contract. In fact, Attorney was the only other party in the room when Client and
the other party reached a final agreement on the terms and signed the contract. Attorney
explains that he will probably have to testify as a witness at Client’s trial, as the dispute
involves the parties’ intention regarding a certain ambiguous provision of the contract.
Attorney said he would truthfully corroborate Client’s version of the events. As a
result, Attorney explains, he cannot represent Client at the trial, but his partner at the
firm (a two-lawyer partnership) could represent Client instead. Client retained the
Attorney’s partner to represent her in the litigation. Is this arrangement proper?
a) Yes, because the client has agreed to it and there is no conflict of interest.
b) Yes, because lawyer may act as advocate in a trial in which another lawyer in the
lawyer's firm is likely to be called as a witness.
c) No, because the firm had only two partners and the relationship is too close for one
to be objective while conducting direct examination of the other.
d) No, because a lawyer may not act as advocate in a trial in which another lawyer in
the lawyer's firm is likely to be called as a witness.
Rule 3.7(b)
236. Attorney, an associate at Big Firm, applied for a patent for Client and successfully
obtained the patent. Three years later, another party sued Client for allegedly infringing
on one of their patents. Attorney was a necessary witness in the patent infringement
matter, and planned to testify on behalf of Client that Client had successfully obtained
a patent to the invention in dispute. Two partners at Big Firm, where Attorney worked,
handled the representation of Client in the infringement case, pursuant to Client’s
written consent. Would the two partners at Big Firm be subject to disqualification from
representing Client in the patent infringement case, if Attorney will be a witness about
the original patent application?
a) Yes, because a lawyer shall not act as advocate at a trial in which the lawyer is
likely to be a necessary witness, and this restriction applies by imputation to the
other lawyers in the same firm.
134
b) Yes, because a lawyer cannot serve as an advocate if a lawyer with whom the
lawyer is associated in a firm is precluded from doing so.
c) No, because the client provided written consent.
d) No, because lawyer may act as advocate in a trial in which another lawyer in the
lawyer's firm is likely to be called as a witness.
Rule 3.7(b)
237. Attorney normally represents Client in commercial litigation matters, but in one
particular case, Attorney had to testify as a witness during the trial, so he arranged for
another firm to represent Client during the trial at which Attorney testified. Client
prevailed at trial, and the opposing party filed an appeal. Attorney’s testimony from
the trial is not an issue in the appeal; instead, the appeal focuses on the apportionment
of fault and certain guarantees in a commercial contract. The firm that handled the trial
did not do appellate work and ended their termination of Client after the trial ended in
a favorable verdict. May Attorney represent Client in the appeal, even though Attorney
testified at the trial?
a) Yes, because the advocate-as-witness rule generally applies only to representation
during the trial, unless the lawyer’s testimony is an issue on appeal.
b) Yes, because the opposing party brought the appeal after Attorney’s client obtained
a favorable verdict at trial using other trial counsel.
c) No, because a lawyer shall not act as advocate at a trial in which the lawyer is likely
to be a necessary witness.
d) No, because combining the roles of advocate and witness can prejudice the tribunal
and the opposing party and can also involve a conflict of interest between the
lawyer and client.
Rule 3.7
238. After obtaining a favorable verdict at trial, Client asked the court to award attorney’s
fees, which was permissible under relevant law. Attorney had represented Client
throughout the litigation and now had to testify as a witness about the fees he had
charged during the representing, authenticating, explaining, and justifying both the
billable hours recorded on the timesheets and the lodestar rate for his legal services.
Was it improper for Attorney to testify as a witness in the same proceeding in which
he had represented a party as trial counsel?
a) Yes, because combining the roles of advocate and witness can prejudice the tribunal
and the opposing party and can also involve a conflict of interest between the
lawyer and client.
b) Yes, because a lawyer shall not act as advocate at a trial in which the lawyer is
likely to be a necessary witness.
c) No, because the fact-finder has already rendered a verdict in the case.
d) No, because the testimony relates to the nature and value of legal services
rendered in the case.
Rule 3.7(a)(2)
135
239. Attorney was a criminal defense lawyer and she represented Client, who was a
defendant in a criminal prosecution. The prosecution called Attorney to the witness
stand to authenticate a piece of evidence, which Attorney was willing to do because the
authenticity of the evidence was not really in dispute; Attorney planned to use alibi
evidence to defeat the charges against Client, which would make this piece of evidence
relatively unimportant to the case. May Attorney testify in this manner in a case in
which she represents the defendant?
a) Yes, because the testimony relates to an uncontested issue.
b) Yes, because testifying as a witness will give the lawyer a good opportunity to
advocate on behalf of his client.
c) No, because a lawyer shall not act as advocate at a trial in which the lawyer is likely
to be a necessary witness.
d) No, because this is a criminal prosecution.
Rule 3.7(a)(1)
240. Three years into the litigation in a complex antitrust lawsuit, it became necessary to
have Attorney, who alone represented the defendant corporation, testify as a witness at
the trial. Attorney had been present at a private meeting between his client and an
industry rival, at which they allegedly discussed a price-fixing scheme, and the
testimony of the two rivals (the only ones besides Attorney at the meeting) contradicted
each other. The question of what occurred at the meeting was a hotly contested issue
in the case, but was only one of many issues in the protracted, extremely complex
litigation. The opposing party moved to disqualify Attorney from representing his
client after Attorney takes the stand to testify. Should the court disqualify Attorney
from representation, or from testifying as a witness?
a) Yes, because a lawyer shall not act as advocate at a trial in which the lawyer is
likely to be a necessary witness.
b) Yes, because the testimony relates to a contested issue.
c) No, because testifying allows the lawyer to promote the truth and integrity of the
proceedings when it is clear that one of the witnesses is lying about the
conversation.
d) No, because disqualification of the lawyer would work substantial hardship on the
client.
Rule 3.7(a)(3)
241. Client is an indigent criminal defendant and Attorney is his court-appointed counsel.
The trial is taking place in a rural county where only a handful of lawyers practice law.
Before appointing Attorney to represent Client, the court had tried to appoint five other
local criminal defense lawyers, one after the other, but each was unable to provide
representation due either to a conflict of interest or because their current caseload would
have precluded them from providing competent representation. In fact, Attorney was
the last lawyer on the court appointments list. Unfortunately, Attorney also needed to
serve as a witness during part of the trial, in order to authenticate a piece of evidence,
and the authenticity of the evidence was a matter of dispute in the case. In addition,
Attorney realized that his testimony would radically contradict the testimony of his
136
own client, though Attorney still believed he could obtain an acquittal by impeaching
the prosecution’s star witness. May Attorney continue to represent Client and testify
as a witness in this matter?
a) Yes, because the testimony relates to a contested issue, so the ambiguities in the
dual role are purely theoretical.
b) Yes, because disqualification of the lawyer would work substantial hardship on the
client.
c) No, because there is likely to be substantial conflict between the testimony of the
client and that of the lawyer, so the representation involves a conflict of interest
that requires compliance with the conflicts rules.
d) No, because a lawyer shall not act as advocate at a trial in which the lawyer is likely
to be a necessary witness, and it may not be clear whether a statement by an
advocate-witness should be taken as proof or as an analysis of the proof.
Rule 3.7 Cmt. 6
242. Attorney is representing himself in his divorce proceeding. Would it be proper, under
the advocate-witness rule, for Attorney to testify as a witness on his own behalf in the
proceeding in which he represents himself?
a) Yes, because disqualification of the lawyer either from representing himself or from
testifying would work substantial hardship on the client.
b) Yes, because the advocate-witness prohibition does not apply to pro se litigants
who are attorneys.
c) No, because a lawyer shall not act as advocate at a trial in which the lawyer is likely
to be a necessary witness.
d) No, because he will be unable to make objections to improper questions by
opposing counsel during cross-examination.
See Ayres v. Canales, 790 S.W.2d 554 (Tex. 1990); Horen v. Bd. Of Educ., 882 N.E.2d
14 (Ohio Ct. Appl. 2007); Conn. Informal Ethics Op. 05-03 (2005)
243. A famous professional athlete faced charges for allegedly murdering his wife and her
male companion one evening outside their Beverly Hills home. The defendant
assembled a legal “dream team” of the five most famous criminal defense lawyers from
around the country. One of the lawyers was in possession of a handwritten letter from
one of the murder victims saying that a drug cartel had been making death threats
against the victim for a few weeks. The evidence would have been somewhat
exculpatory for the defendant, but the lawyer would have to take the witness stand
briefly during the trial to authenticate the document or explain how he received it. The
document was a hotly contested piece of evidence in the case, but was not the only
evidence pointing toward the defendant’s innocence or guilt. The prosecutor wanted
the court to disqualify the lawyer from representing the defendant if he testified about
the letter. The defendant insisted that this would work a substantial hardship on him,
because this particular lawyer was the only criminal defense lawyer in the county with
an undefeated record – he had obtained acquittals in hundreds of criminal trials and had
137
never lost a case. Should the court side with the defendant in this case and allow the
lawyer to continue as part of his defense team?
a) Yes, because disqualification of the lawyer would work substantial hardship on the
client.
b) Yes, because this is a criminal prosecution and the client has a Sixth Amendment
right to counsel.
c) No, because disqualification of the lawyer would not work substantial hardship on
the client.
d) No, because a lawyer may act as advocate in a trial in which another lawyer in the
lawyer's firm is likely to be called as a witness.
Rule 3.7(a)(3)
138
ANSWER KEY
163. a
164. c
165. d
166. a
167. c
168. c
169. d
170. a
171. b
172. a
173. c
174. b
175. d
176. c
177. b
178. a
179. b
180. b
181. b
182. c
183. b
184. c
185. c
186. a
187. d
188. d
189. d
190. a
191. c
192. a
193. a
194. c
195. b
196. b
197. b
198. d
199. b
200. a
201. c
202. c
203. d
204. c
205. c
206. a
207. c
208. a
209. b
210. c
211. a
212. b
213. b
214. a
215. b
216. b
217. c
218. b
219. c
220. a
221. a
222. a
223. a
224. a
225. a
226. a
227. c
228. b
229. b
230. c
231. a
232. a
233. d
234. d
235. b
236. d
237. a
238. d
239. a
240. d
241. c
242. b
243. c
139
Competence, legal malpractice, and other civil liability
(6–12%, 3-7 MPRE Questions), Rules 1.1, 1.3, 2.3, 7.2
1. Maintaining competence – Rule 1.1
2. Competence necessary to undertake representation –
Rule 1.1
3. Exercising diligence and care – Rule 1.3
4. Civil liability to client, including malpractice – Rule
1.8
5. Civil liability to nonclients – Rule 2.3
6. Limiting liability for malpractice – Rule 1.8
7. Malpractice insurance and risk prevention – Rule
7.2
140
Rule 1.1
Competence
244. Client consults with Attorney, a solo practitioner, about a family law issue. Attorney
has never practiced family law, but has spent his years as an attorney practicing strictly
construction litigation issues. Attorney accepts the case, as he is only handling a few
construction litigation cases at this time and could use the money this case will bring
to his practice. Attorney believes he can get advice on how to handle case from
attorneys in the area who practice family law, and with whom he has good
relationships. Is attorney subject to discipline?
a) No, because attorneys can represent clients as long as they are able to provide
competent representation to a client, and the lawyer does not have to have prior
experience to practice in a specific area of law.
b) No, because an attorney who is authorized to practice in a state may practice
regardless of his or her legal knowledge and skill.
c) Yes, because attorneys are required to have experience in an area of law before
accepting a case to ensure the attorney is competent to represent the client.
d) Yes, because attorneys are required to have assistance of other counsel when
handling a case in an area of law in which the attorney is unfamiliar.
245. Attorney normally does business transactional work for clients, and has done so for a
decade. One of Attorney’s clients recently injured another driver in a car accident, and
he asked Attorney to defend him in the personal injury lawsuit over the incident.
Attorney has never taken a case to trial, but took trial advocacy courses in law school,
and has served as second chair on other lawyer’s commercial litigation trials. Attorney
would like to keep the client and would not mind expanding his practice into a new
area. Which of the following would be an improper course of action?
a) Attorney could decline to represent the client in the matter, explaining that he
specializes in transactional work and does not do trials, and could encourage the
client to find another lawyer.
b) Attorney could refer his client to another lawyer and charge the other lawyer a
substantial referral fee.
c) Attorney could research personal injury lawyers in the area, refer his client to the
one who seems most reputable, and charge the client for the time spent finding a
suitable referral.
d) Attorney could take the case, conduct research to master the relevant points of
precedent or statutory law, and represent the client to the end of the litigation.
Rule 1.1 Cmt 1
246. Attorney gave a consultation to Client, who wanted Attorney to represent him in a
regulatory takings case over changes in zoning and land use rules that interfered with
Client’s intended use of his property. Attorney was a recent law school graduate, and
had her own small law firm. She had never handled a regulatory takings case before,
141
which she explained to Client. Nevertheless, Attorney agreed to take Client’s case and
to do the research necessary to get up to speed on the law in that area. As Attorney
began researching the area, she found it terribly confusing, and eventually called a
friend from law school for help, another lawyer in the area. The other lawyer had an
impressive familiarity with the law of regulatory takings, and offered to join Attorney
as co-counsel in the case in exchange for an even split in the fees. Attorney agreed to
this arrangement privately with the other lawyer, though Client was not aware of it, and
together they achieved exactly the result that Client sought in the case. Attorney’s bill
to Client at the end of the representation was exactly what they had agreed in the
retainer, and Client paid. Attorney then split the amount with the other lawyer who
helped her. Is Attorney subject to discipline in this situation?
a) No, because it was proper for Attorney to bring in co-counsel with more expertise
in the area of law.
b) Yes, because Attorney did not know the area well enough to provide representation,
and was unable to teach herself the relevant law as she promised Client she would
do..
c) No, because Attorney did, in fact, make a good-faith effort to learn the area of law
as she had promised.
d) Yes, because before a lawyer retains or contracts with other lawyers outside the
lawyer’s own firm to provide or assist in the provision of legal services to a client,
the lawyer should ordinarily obtain informed consent from the client and must
reasonably believe that the other lawyers’ services will contribute to the competent
and ethical representation of the client
247. Client asks Attorney to represent him in a complex corporate taxation matter
regarding the taxable earnings of an overseas corporate subsidiary that pays its
American employees by direct deposits to bank accounts in the United States. All of
the overseas subsidiary’s sales occur in the United States, but all its products and
supplies it purchases overseas, and half the employees are foreigners. A dispute with
the IRS over the matter has been going on for several years. Attorney never took a tax
course in law school and has no practice experience in the area. Attorney needs more
clients, so he agrees to take the case and to conduct the necessary study to provide
adequate representation. Client agrees to those terms, and Attorney undertakes the
representation. A few months later, due to a change in which political party controlled
the White House, the IRS abruptly dropped the case against Client, so Client receives
a satisfactory resolution to the matter. Would Attorney be subject to discipline for
undertaking this representation?
a) Yes, because another change in the political climate could put Client back into the
same position as before.
b) Yes, because expertise in a particular field of law is a requirement in circumstances
where the nature of the matter is complex and specialized, and the lawyer has no
training or experience in the field.
c) No, because a lawyer can provide adequate representation in a wholly novel field
through necessary study.
142
d) No, because the Client obtained a satisfactory resolution to the matter, so
Attorney’s competence, or lack thereof, did not harm the Client in any way.
Rule 1.1 Cmt 2
248. Attorney worked as in-house counsel for a petroleum refinery. One day, after weeks
of stalemate in a round of collective bargaining, the refinery workers decided to go on
strike to demand higher wages and more vacation time. The workers abandoned their
workstations and picketed on the sidewalk in front of the building. Late in the evening,
some of the picketers moved their protests onto the refinery compound, including some
hazardous areas. The usual safety personnel were also on strike, so there was a
substantial risk of an explosion at the refinery if the protestors engaged in vandalism,
and a risk for injuries to the protestors. At midnight, the management called in Attorney
to ask if it would be legal for them to call in a private security force and have all the
picketers arrested and removed from scene, or if federal labor laws and Free Speech
laws protected their right to protest. Attorney initially suggested that they simply
remove the protestors from the hazardous areas of the compound, but the management
believed that the protesters on the sidewalk would simply migrate over to the same
areas to fill the gaps from those removed, and then pose an ongoing safety risk.
Attorney knew nothing about protester rights or the rights of striking workers, because
all of his legal work up to that point has involved reviewing contracts with suppliers
and distributors for the refinery. Attorney tried to call one or two lawyers he knew who
might know the answer, but nobody answered his calls given the late hour. Attorney
then guessed that it would be fine for the management to remove the picketers by force,
and advised accordingly. Unfortunately, during the ensuing scuffle with the private
security force, several workers and security offers received serious injuries, and it
turned out that Attorney’s advice about labor laws was incorrect given the special
circumstances surrounding the collective bargaining. The refinery was subject to
substantial liability both to the injured individuals and faced fines from the federal labor
board. Should Attorney be subject to discipline in this situation?
a) No, because the management made the final decision and should bear the full
responsibility for it.
b) Yes, because a lawyer should provide competent representation to a client, and
competent representation requires the legal knowledge, skill, thoroughness and
preparation reasonably necessary for the representation.
c) No, because in an emergency a lawyer may give advice or assistance in a matter in
which the lawyer does not have the skill ordinarily required where referral to or
consultation or association with another lawyer would be impractical.
d) Yes, unless the management provided a waiver, confirmed in writing, that
exonerated Attorney from responsibility for their decision.
Rule 1.1 Cmt 3
143
ANSWER KEY
Rule 1.1
Competence
244. a
245. b
246. d
247. b
248. c
144
Rule 1.3
Diligence
249. Attorney represents Client in a civil matter. Client’s case went to trial and Client lost.
Client wished to appeal the matter. Attorney did not file an appeal because there was
no agreement that the attorney would handle the appeal. The period of time in which
Client could file an appeal expired and no appeal was filed. Is attorney subject to
discipline?
a) Yes, because an attorney must discuss the possibility of an appeal prior to
relinquishing responsibility for a client’s case if there were no prior discussions
regarding whether or not the attorney would handle the appeal process.
b) Yes, because an attorney shall complete an entire case for a client, including the
appeal process, unless the parties have agreed in writing that the attorney’s
employment terminates after trial.
c) No, because an attorney is not required to continue working on a case for a client
after trial unless the attorney and the client specifically agreed that the attorney
would continue to be employed as the attorney for the appeal process.
d) No, because an attorney is not required to continue working on a case for a client
after trial unless the attorney and the client specifically agreed, in writing, that the
attorney would continue to be employed as the attorney for the appeal process.
Rule 1.3 Cmt. 4
250. Attorney works as a public defender. The office is always under-funded, meaning
they cannot afford to hire enough staff attorneys, and the current attorneys all carry an
overload of cases. Attorney feels that she is unable to provide full representation to
each client, as she must conduct about seven plea bargaining sessions for different
clients per weekday, and usually meets the clients for the first time about fifteen
minutes before each plea bargain session. Each plea bargain takes about an hour, with
short breaks in between. Attorney strongly encourages nearly all of her clients to accept
a plea bargain, because taking one case to trial will mean that the public defender’s
office must turn away about two dozen indigent clients. Attorney and her colleagues
believe that it is better for defendants to have a little representation rather than none at
all, and that most defendants would lose at trial anyway. Does Attorney have an ethical
problem, under the Rules of Professional Conduct?
a) Yes, because a lawyer must control her workload so that each matter can be handled
competently.
b) Yes, because it would be better for clients to have no lawyer at all than to rely upon
a lawyer who is providing minimal or inadequate representation.
c) No, if most of the clients would, in fact, fare worse if they went to trial, then
Attorney’s representation is their best option.
d) No, because there is a special exception for public defenders in the Rules of
Professional Conduct regarding diligence.
Rule 1.3 Cmt. 2
145
251. Attorney has her own firm and works as a sole practitioner. She has been practicing
law for about twenty years, and is now in her mid-40’s. Recently, though, a routine
visit to her doctor revealed indications of multiple sclerosis, and she has scheduled
appointments with specialists for more testing. She has been struggling with several
symptoms that usually result from this condition. Does Attorney have any ethical
obligations toward her clients, at least related to her possible condition?
a) Yes, because each sole practitioner shall prepare a plan that designates another
lawyer to review client files, notify each client of the lawyer's death or disability,
and determine whether there is a need for immediate protective action.
b) Yes, because every lawyer has an obligation to make sure that a medical condition
or disability does not in any way influence her actions, decisions, or plans regarding
client representation.
c) No, because lawyer medical information is strictly confidential and should not
influence a lawyer’s actions, decisions, or plans regarding client representation.
d) No, because clients need to feel that they can rely fully upon their lawyer’s ongoing
representation, and any planning or decisions based around potential disability or
death could undermine the trust that is so essential to the attorney-client
relationship.
Rule 1.3 Cmt 5
252. Attorney is representing the plaintiffs in a class action lawsuit over a mass tort, and
the case has become surprisingly complex and time-consuming. The federal court has
scheduled a five-week trial for the case, and the trial is coming up next week, meaning
that Attorney must work long hours on trial preparation from now until then. Attorney
has about twenty other open cases with other clients, but none of them have motions
due until after the upcoming class action trial, so Attorney has been focusing
exclusively on the class action suit and has been temporarily ignoring the other cases.
Attorney has not commenced discovery on the other cases or responded to recent
discovery requests, because they do not even have scheduled trial dates yet, and there
is nothing new to report to the clients about the other cases, so Attorney has not been
in touch with them for the last two or three months. Could Attorney be subject to
discipline for procrastinating about these other cases?
a) Yes, because one class action lawsuit does not equal the individual cases of twenty
other clients, and a lawyer has a duty to apportion time evenly across open cases.
b) Yes, because a client's interests often can be adversely affected by the passage of
time or the change of conditions, and unreasonable delay can cause a client needless
anxiety and undermine confidence in the lawyer's trustworthiness.
c) No, unless the lawyer has actually missed a deadline or statute of limitations, there
is no rule violation in this instance.
d) No, as long as the class action lawsuit involves more clients in the class than the
twenty individual clients who comprise the remainder of the lawyer’s caseload.
Rule 1.3 Cmt. 3
146
253. Attorney has taken on many new clients recently, and is having trouble managing her
time and meeting deadlines, though she has not missed any deadlines yet in any client
matter. At one pre-trial hearing, opposing counsel asks for a two-month postponement
of the previously scheduled trial, to Attorney’s great relief. Attorney readily agrees,
because the postponement will enable her to attend to other urgent client matters and
will give her more time to prepare for the trial. After she returns to her office from the
courthouse, Attorney calls her client to notify him about the trial postponement. Client
is upset about the postponement because he wanted the matter resolved as quickly as
possible, and he accuses Attorney of putting her own scheduling needs ahead of his
interests. Attorney explains that they have not lost anything through the postponement,
and that Attorney will now have more time to prepare for the trial, so the delay is
probably advantageous for Client’s case, both from a strategic and a preparation
standpoint. Client accepts Attorney’s answer but still feels disappointed that Attorney
did not ask him first, in which case he would have expressed his will to contest the
postponement. Is Attorney in compliance with her ethical duties under the Rules of
Professional Conduct?
a) Yes, because a lawyer has an ethical duty to accommodate opposing counsel’s
request for a postponement or continuance, as long as the delay will not prejudice
the client in the final outcome.
b) Yes, a lawyer's duty to act with reasonable promptness does not preclude the lawyer
from agreeing to a reasonable request for a postponement that will not prejudice the
lawyer's client.
c) No, because Attorney failed to ask Client about the postponement before agreeing
to it in the courtroom.
d) No, because a client's interests often can be adversely affected by the passage of
time or the change of conditions, and unreasonable delay can cause a client needless
anxiety and undermine confidence in the lawyer's trustworthiness.
Rule 1.3 Cmt. 3
254. Attorney represented Husband in a transactional matter twenty years ago, which
involved incorporating a small business that Husband later sold to an acquaintance. The
proceeds from the sale went to fund college tuition for Husband’s grown children. Wife
recently retained Attorney to represent her in a divorce action against Husband.
Husband and wife both provided Attorney with informed consent, confirmed in writing,
waiving any conflicts of interest. Husband barely remembered Attorney, in fact, and
the previous representation has no bearing on the current divorce or marital property.
Wife then told Attorney, in confidence, that Husband had a homosexual affair last year
with a man at his health club, and this was a major factor in her deciding to file for
divorce. She explains that it is very important to her that Husband’s affair be a
centerpiece in the divorce proceedings, as this will give her closure and will help both
her parents and her grown children to understand why she felt compelled to end the
marriage. Attorney believes her, but finds this allegation unsavory, and does not want
to embarrass Husband, especially given that Husband is a former client. Attorney
halfheartedly files the divorce petition without any mention of the affair, stipulates to
147
the Husband’s request for a sealed record without discussing this move with Wife, and
resolves the matter as discreetly as possible. Ultimately, Wife accepts the settlement
recommended by Attorney, but is deeply disappointed that the affair has been kept
secret, and the family will not believe her about it. Is Attorney subject to discipline for
handling the matter in this way?
a) Yes, because the Wife was disappointed at the end of the case, though she
consented to the final settlement.
b) Yes, because a lawyer must act with commitment and dedication to the interests
of the client and with zeal in advocacy upon the client's behalf.
c) No, because a lawyer has an ethical duty to preserve the privacy of opposing
parties, especially when protecting against the potential for bigotry against
homosexuals.
d) No, because Attorney a lawyer is not bound, however, to press for every
advantage that might be realized for a client.
Rule 1.3 Cmt. 1
255. Client hired lawyer to represent her in bringing a lawsuit against a manufacturer over
a defective product that was very expensive. Attorney regularly represents plaintiffs in
product liability cases. Client believes that the manufacturer has knowingly sold
defective products to other customers as well, and wants Attorney to include a claim
for “civil RICO” (accusing the manufacturer of racketeering) as part of the lawsuit. In
addition, Client discussed reporting the manufacturer to various governmental
regulatory agencies to try to get the company in trouble with them, as this might
overwhelm the defendant with simultaneous litigation on several fronts, and might even
bring out otherwise undiscoverable information about the manufacturer’s wrongdoing.
Attorney reluctantly adds the civil-RICO claim to the complaint and is not surprised
when the judge strikes that claim at the request of the defendant. Attorney declines to
notify government agencies about the manufacturer, and suggests that Client do that on
her own, writing complaint letters to whatever agencies she has in mind. Attorney
proceeds with the tort litigation and prevails, winning a favorable verdict for the
plaintiff. Was it proper for Attorney to decline to pursue the regulatory attack against
the manufacturer?
a) No, because a lawyer must act with commitment and dedication to the interests of
the client and with zeal in advocacy upon the client's behalf.
b) No, because a lawyer is bound to press for every advantage that might be realized
for a client.
c) Yes, because a lawyer is not bound to press for every advantage that might be
realized for a client.
d) Yes, because the lawyer acquiesced to the Client about the civil RICO claim, and
a lawyer should not have to defer to the client on more than one unusual request
in the same representation.
Rule 1.3 Cmt 1
148
256. Attorney represents Client in patent infringement litigation. Client is a longtime
business rival of the opposing party, and has successfully sued the opposing party
before over an unrelated matter. The opposing party still loses his temper whenever
someone brings up the previous lawsuit he lost, because he felt it was completely unfair
and he nearly went bankrupt over it, and his marriage even failed due to the stress from
the case and the burdensome verdict. On the eve of trial, Attorney mentions to Client
that the opposing party will actually take the stand to testify in the case. Client instructs
Attorney to bring up the time that Client won another lawsuit against the opposing party
during cross-examination, merely to make the opposing party get upset. He assures
Attorney that the opposing party will lose his temper on the stand, and will at least lose
credibility before the jury, and may even slip and say something that would undermine
his position in the case. Attorney simply refuses to bring up a matter merely to provoke
an outburst from the opposing party during trial. Client believes Attorney has a duty
to provide zealous advocacy and to pursue every advantage for Client’s interests.
Would it be proper for Attorney to refuse to bring up the prior unrelated lawsuit during
his cross-examination, despite Client’s instructions to do so?
a) No, because a lawyer has a duty to provide zealous advocacy and to pursue every
advantage for Client’s interests.
b) No, because provoking a hostile witness into an angry outburst on the stand
violates the lawyer’s strict duty to preserve the decorum of the proceedings.
c) Yes, because a lawyer's duty to act with reasonable diligence does not require the
use of offensive tactics or preclude the treating of all persons involved in the legal
process with courtesy and respect.
d) Yes, as long as Attorney expects that opposing counsel would object to the line of
questioning, and that the court would probably sustain the objection.
Rule 1.3 Cmt 1
149
ANSWER KEY:
Rule 1.3
Diligence
249. a
250. a
251. a
252. b
253. b
254. b
255. c
256. c
150
Rule 2.3 Evaluation For Use By Third Persons
257. Client wants to sell a parcel of commercial real estate, and he hired Attorney to
represent him in the matter. As part of the representation, Client asked Attorney to
prepare a thoroughly researched opinion memorandum concerning the title of the
property, for the information of a prospective purchaser and the purchaser’s prospective
lender. Attorney gave the title opinion to Client, who gave it to the prospective
purchaser, who in turn submitted it to the prospective lender. The prospective lender
received and reviewed Attorney’s title opinion, but was not aware that the lawyer who
prepared the title opinion represented the seller of the property rather than the buyer.
Could Attorney be subject to discipline for failing to disclose explicitly in the
memorandum what party he represents and that he has a duty of loyalty and
confidentiality to the seller?
a) Yes, because the title opinion should identify the person by whom the lawyer is
retained, and should make this clear not only to the client under examination, but
also to others to whom the results are to be made available.
b) Yes, because when a lawyer knows that third parties may rely on his written legal
opinions, he has a diminished duty of loyalty or confidentiality to the original client.
c) No, because the lawyer’s duty of loyalty, confidentiality, and candor runs only to
the client who retained the lawyer.
d) No, because everyone in a commercial real estate transaction presumes that title
opinion letters from lawyer s represent the best interest of the seller of the property.
Rule 2.3 Cmt. 1 & 2
258. Attorney represents Client before a government agency that enforces securities
regulations. As part of the representation, Attorney must prepare an opinion
concerning the legality of the securities registered for sale under the securities laws, for
submission to the government agency, which requires such reporting. Client authorizes
Attorney to prepare the written opinion, but insists that Attorney exclude any mention
of a particular business loss the Client’s company incurred recently, in order to avoid
upsetting the shareholders. In order to preserve Client’s confidential information,
Attorney prepares the written opinion without the information Client asked him to
withhold. The report does not mention that it excludes some unfavorable information.
Attorney prepares the written opinion and gives it to Client, who submits it to the
agency. Is it proper for Attorney to follow Client’s instructions in preparing this report?
a) Yes, because when the lawyer is retained by the person whose affairs are under
examination, the general rules concerning loyalty to client and preservation of
confidences apply.
b) Yes, because it is the Client’s decision what to disclose to the agency, and the Client
alone will bear the consequences if the agency concludes later that the Client
submitted a misleading report.
c) No, because when a lawyer’s report categorically excludes certain issues or sources,
any such limitations that are material to the evaluation should be described in the
report.
151
d) No, because Attorney has a duty to include in the report whatever information the
government agency requested, as the agency will rely upon the report in making its
decisions.
Rule 2.3 Cmt. 1 &4
259. A government agency contacts Attorney, who works as in-house counsel for
Corporation, and requests a report about some of Corporation’s activities that come
under the agency’s regulatory jurisdiction. As Attorney begins to investigate the matter
to prepare the report, he learns that the information requested by the agency will subject
Corporation to significant regulatory enforcement sanctions, and if the information
became public, would adversely affect Corporation’s share price. At this point, the
agency has not issued a subpoena and compliance with the request is voluntary,
although the agency could compel the disclosure eventually. The managers and
directors of Corporation instruct Attorney not to submit the report until the agency
issues a subpoena, in order to buy some time to mitigate their regulatory violations.
May Attorney prepare the report and submit it to the agency at this time?
a) Yes, because a lawyer should have whatever latitude of investigation seems
necessary as a matter of professional judgment.
b) Yes, because the agency will inevitably subpoena the information anyway, and
delaying merely provides the managers with an opportunity to conceal their
wrongdoing.
c) No, because even if the managers and directors consented to the disclosures,
Attorney should not disclose information that will adversely affect the
shareholders.
d) No, because when a 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.
Rule 2.3(b)
260. Client intends to purchase a parcel of real estate, and retained Attorney to analyze the
seller’s title to the property. Attorney requests information from the seller regarding the
seller’s original acquisition of the property, and also obtains information from the local
tax assessors and title registry. Attorney concludes that the seller does not have clear
title to the property, and informs seller of this opinion when the seller asks him about
it. Seller forbids Attorney to disclose the information to the prospective purchaser of
the property and insists that he showed Attorney his documents about the original
acquisition of the parcel with the understanding that Attorney would not say anything
unfavorable. May Attorney inform the prospective purchaser of his opinion about the
title?
a)
Yes, because remaining silent or withdrawing from representation at this point
would make it easier for the seller to perpetrate a fraud on the purchaser.
b)
Yes, because the seller does not have a client-lawyer relationship with the attorney.
152
c)
No, because the Attorney is bound by the duty of confidentiality to keep the
information private.
d)
No because the seller did not provide informed consent.
261. Attorney represents Client, who wants to sell his business. A prospective purchaser
has required from Client an evaluation of the business’ solvency, detailing its current
liabilities, potential liabilities, revenue, and assets. Client provides Attorney with
documents pertaining to each of these issues, and explains to Attorney in confidence
that he has often understated the earnings of the business in order to avoid paying taxes
on the business profits. Now he is concerned that the prospective purchaser will
undervalue the profitability of the business and refuse to pay an appropriate price to
purchase it. He asks Attorney to adjust the earnings figures upward by 25%, the same
amount by which Client falsely lowered them in the corporate records, in order to
portray the business accurately to the potential purchaser. Attorney finds this
objectionable and prepares a report based on what the records actually say regarding
the earnings, and gives the evaluation directly to the purchaser. When Client learns
about this, he explains to the prospective purchaser over the phone what happened.
Despite the low reported earnings, the purchaser pays Client’s asking price for the
business, because of Client’s truthful representations over the phone. Could Attorney
be subject to discipline for his conduct in this matter?
a) Yes, because even with the client’s truthful disclosures about the earnings, the
report does not account for the fact that the profits appear higher than they would
be if the business had paid its taxes.
b) Yes, because under no circumstances is the lawyer permitted to knowingly make a
false statement of material fact or law in providing an evaluation for a third party.
c) No, because the lawyer’s evaluation accurately represented the earnings reported
in the corporate records.
d) No, because the client’s phone conversation with the purchaser ensured that the
purchaser was not relying on false information when he made his decision.
Rule 2.3 Cmt. 4
153
ANSWER KEY: RULE 2.
257. a
258. c
259. d
260. b
261. b
154
LEGAL MALPRACTICE QUESTIONS FROM CLASS
262. As mentioned in class, what is currently the most frequently alleged malpractice error
in Law Professional Liability claims?
a) Missing Filing Deadlines/Statute of Limitations
b) Conflicts of interest
c) Breach of Confidentiality
d) Failure to Communicate
263. As mentioned in class, what is currently the practice area generating the largest
number of Law Professional Liability claims?
a) Wills & Trusts
b) Immigration
c) Real estate
d) Criminal Law
264. As mentioned in class, what is currently the trend for the number of malpractice
claims?
a) Steadily increasing
b) Steadily decreasing
c) Plateaued
d) Cyclical and varying wildly
265. As mentioned in class, how many major malpractice insurers report that they have
paid LPL claims over $100 million?
a) Less than half
b) More than half
c) All
d) None
266. As mentioned in class, what is currently the average hourly rate for defense counsel
in legal malpractice claims?
a) Most pay more than $300 per hour
b) Most pay more than $1000 per hour
c) Most pay more than $100 per hour
d) Most of the work is done by in-house counsel at the insurance companies and is
therefore not billed at an hourly rate
267. Legal malpractice lawsuits require proving that the plaintiff would have prevailed but
for the lawyer’s negligence, and proving damages. As mentioned in class, which of
the following is necessary to prove these elements of a typical malpractice action?
155
a)
b)
c)
d)
A trial within a trial
Reverse bifurcation of the trial
Expert testimony by experienced judges
A decision from the state bar disciplinary authority about whether the lawyer’s
conduct violated the Rules of Professional Conduct
268. As mentioned in class, what is currently the requirement under the Rules of
Professional Conduct regarding lawyers having liability insurance for legal malpractice
claims?
a) The Model Rules require every practicing lawyer in the private sector to carry at
least minimal liability insurance, but not governmental lawyers.
b) The Model Rules require lawyers practicing in certain areas, like real estate and
family law, to carry malpractice insurance, but not lawyers doing criminal defense
work.
c) The Model Rules do not require lawyers to have malpractice insurance, but many
states require disclosure to clients if the lawyer is uninsured.
d) The Model Rules forbid lawyers to carry malpractice insurance because of the
moral hazard problem – insurance provides a perverse incentive to take more risks
or to be less careful.
ANSWERS: MALPRACTICE
262. b
263. c
264. a
265. b
266. a
267. a
268. c
156
Client confidentiality (6–12%, 3-7 questions),
casebook ch. 7
MRPC 1.6
1. Attorney-client privilege 2. Work-product doctrine
3. Professional obligation of confidentiality - general rule – Rule
1.6
4. Disclosures expressly or impliedly authorized by client – Rule
1.6
5. Other exceptions to the confidentiality rule – Rule 1.6
157
Questions about Confidentiality MRPC 1.6
269. Client was with three friends in a car when a police officer stopped the vehicle.
During the stop, the police officer found cocaine and marijuana in the vehicle. The
prosecutor charged Client for possession of a controlled substance. The prosecutor did
not charge anyone for possessing marijuana, though it was illegal to possess such
substance. Attorney knows Client uses marijuana. Client has expressed that he has
never used cocaine but that he knows a friend that was in the car uses it. Client takes
a drug test at Attorney’s recommendation. The drug test shows Client negative for
controlled substances, but positive for marijuana. Attorney wants to use the drug test
to show it was unlikely that the cocaine found in the car belonged to Client. However,
providing the drug test to the prosecutor would reveal that Client tested positive for
marijuana and might lead to charges based on the marijuana found in the vehicle at the
time of the stop. Attorney asks his Client if he can show the prosecutor the drug test to
prosecutor to evidence that Client did not use cocaine around the time of the finding
and that the cocaine likely did not belong to Client. Client tells the Attorney he can
share the results with prosecutor. Did Attorney act properly?
a) Yes, because an attorney is impliedly authorized to carry out the representation of
a client, including revealing confidential information.
b) Yes, because an attorney can disclose confidential information if the client permits
the attorney to do so.
c) No, because attorneys shall not reveal any confidential information despite what
the client requests or authorizes.
d) No, because client must give informed consent and the attorney did not make client
aware of the risks and reasonable alternatives.
270. Attorney is representing a client who is a notorious celebrity-turned-criminal.
Attorney is confused about whether he may publicly disclose information that he
learned in confidence from his client if the information is already a matter of public
record, and his research indicates there is a split of authority on this question. Attorney
calls another lawyer who specializes in lawyer malpractice and lawyer disciplinary
matters to seek advice about what course of action would comply with the Rules of
Professional Conduct. The other lawyer, an expert in legal ethics, agrees to provide an
opinion and to keep the conversation a secret. Attorney tries to use a hypothetical to
explain the problem, but given the client’s national reputation and celebrity status, the
other lawyer knows immediately who the client is, and can easily surmise the nature of
the confidential information. Is Attorney subject to discipline for disclosing
confidential information about his client?
a) Yes, because Attorney used a hypothetical that was obvious enough that the other
lawyer immediately knew the identity of the client and the client’s information that
the Attorney was supposed to protect.
b) Yes, because a lawyer's confidentiality obligations generally preclude a lawyer
from securing confidential legal advice about the lawyer's personal responsibility
to comply with the Rules.
158
c) No, because a lawyer may reveal information relating to the representation of a
client to the extent the lawyer reasonably believes necessary to secure legal advice
about the lawyer's compliance with the Rules of Professional Conduct, even when
the lawyer lacks implied authorization to make the disclosure.
d) No, because a lawyer may generally disclose confidential information to another
lawyer as long as the other lawyer promises to keep the conversation secret, and
the other lawyer has a reputation for complying with the ethical rules.
Rule 1.6(b)(4) & Cmt 9
271. Client met with Attorney for a free consultation, and explained that she had met with
two other lawyers for consultations and that she planned to hire one of the three to
provide the legal services necessary to set up her professional business. Attorney
needed to make a good impression on Client, so he mentioned a few prominent
accountants and physicians in town whom Attorney had represented and helped with
incorporating their partnerships or practice groups. These former clients had never
explicitly authorized Attorney to disclose his representation of them in these matters.
Client hired Attorney, and Attorney provided the legal services necessary to set up her
business. Unfortunately, a dispute arose between Client and Attorney over the fees,
and this fee dispute turned into litigation between Attorney and Client. In order to
support his claims and defenses in the fee dispute, Attorney had to disclose to the
tribunal exactly what he did for Client and the complexity of the issues involved, which
necessarily involved the disclosure of confidential information. Was it proper for
Attorney to mention his representation of identifiable former clients to a prospective
client in a situation where it seemed necessary to impress the prospective client?
a) Yes, because the representation of those clients ended already, so Attorney has no
remaining duty of confidentiality to them.
b) Yes, a lawyer may reveal information relating to the representation of a client to
the extent the lawyer reasonably believes necessary to establish a claim or defense
on behalf of the lawyer in a controversy between the lawyer and the client.
c) No, because the former clients did not authorize Attorney to disclose that he had
represented them or the nature of the matters involved in the representation.
d) No, because the lawyer was not using such information to the disadvantage of the
former client.
Rule 1.6
272. Attorney works in a law firm with other attorneys. Attorney is handling a case for
Client, and Client instructs Attorney not to share any of the case details or any of
Client’s personal details or information with other attorneys in the firm. While
preparing for a hearing, Attorney goes to another attorney in the firm and discusses the
case. Attorney advises the attorney with whom he discusses the case that Client would
prefer that other attorneys in the firm not be involved in the case. Attorney uses the
information and guidance provided by the other attorney to successful win the hearing.
Are Attorney’s actions proper?
159
a) Yes, because attorneys are authorized to make disclosures when reasonably
necessary or when it is in the client’s best interest, even if the client instructs the
attorney otherwise.
b) Yes, because an attorney may discuss with other members of the firm at which he
is employed any issues regarding a case that is being handled by that firm.
c) No, because attorneys shall not discuss a client’s case with other attorneys of the
firm handling the client’s case if instructed by a client not to do so.
d) No, because an attorney shall not discuss a client’s case with anyone, including
other attorneys of the firm that is handling the case, unless specifically authorized
to do so by the client.
Rule 1.6 Cmt. 5
273. Client hired lawyer to defend him in a criminal matter regarding the murder of Client’s
girlfriend. During Attorney’s interviews and investigation for this case, he learns that
Client has also been committing identity theft and credit card fraud, obtaining credit
cards in the names of other individuals, and running up charges on the cards without
paying the bills, so that the individuals whose names are on the cards will have to pay
instead. Attorney urges Client to stop this practice, and Client merely laughs at him.
Attorney continues his representation of Client and wins an acquittal on the murder
charge. The representation is now over. May Attorney warn some of the individuals
in whose names Client has obtained credit cards, according to the Model Rules of
Professional Conduct?
a) Yes, because the lawyer’s representation of client has ended, and the information
he wants to disclose is unrelated to the matter for which he represented the client.
b) Yes, because a lawyer may reveal information relating to the representation of a
client to the extent the lawyer reasonably believes necessary to prevent the client
from committing a crime or fraud that is reasonably certain to result in substantial
injury to the financial interests or property of another.
c) No, because the information he wants to disclose is unrelated to the matter for
which he represented the client, and it is not certain that substantial injury to the
financial interests of others will occur.
d) No, because the exception that permits disclosure to prevent the client from
committing a crime or fraud that is reasonably certain to result in substantial injury
to the financial interests or property of another applies only when the client has
used or is using the lawyer's services in furtherance of the crime or fraud.
Rule 1.6(b)(2)
274. Client hired Attorney to represent him in a criminal matter. Client faces charges over
corporate fraud that he perpetrated two years before when he was the Chief Financial
Officer of a large, publicly traded corporation. Attorney learns during his interviews
with Client that the fraud will have some far-reaching consequences for investors and
another large corporation in the area, consequences that the prosecution and regulatory
authorities have overlooked so far. Attorney realizes that if he discloses this
information now, he could prevent substantial injury to the financial interests or
160
property of innocent people, and that harm is reasonably certain to result otherwise.
According to the Model Rules of Professional Conduct, may Attorney disclose the
information in order to prevent this substantial injury to the financial interests of others?
a) Yes, because a lawyer may reveal information relating to the representation of a
client to the extent the lawyer reasonably believes necessary to prevent substantial
injury to the financial interests or property of innocent people.
b) Yes, because a lawyer may reveal information relating to the representation of a
client to the extent the lawyer reasonably believes necessary when the client has
committed a crime or fraud that is reasonably certain to cause substantial financial
injury to others.
c) No, because a lawyer may never reveal information relating to the representation
of a client to the extent the lawyer reasonably believes necessary when the client
has committed a crime or fraud that is reasonably certain to cause substantial
financial injury to others.
d) No, because the exception that permits disclosure to prevent substantial financial
harm to others does not apply when a person who has committed a crime or fraud
thereafter employs a lawyer for representation concerning that offense.
Rule 1.6 Cmt. 8
275. Attorney represents Mr. Sharp in several contract dispute cases regarding services for
which Mr. Sharp was paid but which were not provided. The local District Attorney’s
office recently indicted Mr. Sharp on offenses related to a financial investments fraud
run by Mr. Sharp. Mr. Sharp retains Attorney for representation for his criminal case
as well. During a meeting that Attorney had with Mr. Sharp to discuss his criminal
case, Mr. Sharp tells the attorney in confidence about some financial transactions he
made recently that are the cause of the criminal charges. Specifically, Mr. Sharp
advises that he solicited and accepted money from Ms. Mayfield, a 75-year-old widow,
for a financial investment company that did not exist. Mr. Sharp explained that his
construction business ran into financial troubles and he used this scheme to obtain
money to pay his construction company’s expenses. Mr. Sharp explained that he would
not do this again. What may Attorney do in this situation?
a) He may disclose the information because it is fraud committed that resulted in
substantial injury to the financial interests of another.
b) He can disclose because an attorney may make any disclosures that relate to
anticipated fraud or crime by his client.
c) He cannot disclose the information because the client retained the attorney to
represent him on the matter and the details provided are confidential.
d) The attorney may not disclose because disclosure of the financial scheme is not
reasonably certain to prevent death or substantial bodily injury.
Rule 1.6
276. Client met with Attorney for a free consultation, and explained that she had met with
two other lawyers for consultations and that she planned to hire one of the three to
provide the legal services necessary to set up her professional business. Attorney
needed to make a good impression on Client, so he mentioned a few prominent
accountants and physicians in town whom Attorney had represented and helped with
161
incorporating their partnerships or practice groups. These former clients had never
explicitly authorized Attorney to disclose his representation of them in these matters.
Client hired Attorney, and Attorney provided the legal services necessary to set up her
business. Unfortunately, a dispute arose between Client and Attorney over the fees,
and this fee dispute turned into litigation between Attorney and Client. In order to
support his claims and defenses in the fee dispute, Attorney had to disclose to the
tribunal exactly what he did for Client and the complexity of the issues involved, which
necessarily involved the disclosure of confidential information. Was it proper for
Attorney to disclose this confidential information about Client merely to prevail in a
fee dispute?
a) Yes, because the representation of Client ended when the fee dispute began, so
Attorney has no remaining duty of confidentiality to Client.
b) Yes, a lawyer may reveal information relating to the representation of a client to
the extent the lawyer reasonably believes necessary to establish a claim or defense
on behalf of the lawyer in a controversy between the lawyer and the client.
c) No, because the former clients did not authorize Attorney to disclose that he had
represented them or the nature of the matters involved in the representation.
d) No, because the duty of confidentiality continues after the client-lawyer
relationship has terminated, including the prohibition against using such
information to the disadvantage of the former client.
Rule 1.6(b)(5)
277. Attorney is a partner in a seven-lawyer firm. Client retained Attorney to handle his
workers’ compensation matter. Attorney did discuss with Client that he would
normally disclose to the other partners in the firm some of the details about his cases
and clients, and Client expressly forbid Attorney from telling anyone in his firm
anything about his case. Nevertheless, at the weekly meeting of the partners, as
everyone discussed their pending cases, Attorney explained Client’s case and solicited
input from the partners. One partner had an ingenious suggestion that would have been
very helpful to Client’s case. Attorney mentioned to Client in their next phone call that
one of his partners had made a brilliant suggestion that could turn the case in Client’s
favor. Client was upset that Attorney had discussed the case with anyone else. Was it
proper for Attorney to discuss the case with the others at the firm?
a) Yes, because a lawyer is impliedly authorized to disclose client information to other
partners in his firm merely from the fact that the representation has been
undertaken, regardless of client attempts to limit such necessary disclosures.
b) Yes, because the routine check for potential conflicts of interest presumably already
eliminated any potential injury to client that could result from the disclosure.
c) No, because lawyers in a firm may not disclose to each other information relating
to a client of the firm if the client has instructed that particular information be
confined to specified lawyers.
d) No, because a lawyer is never permitted to discuss client matters with other lawyers
in the firm without express client authorization.
162
Rule 1.6 Cmt. 5
278. Attorney represented Client, who was a defendant in a criminal prosecution. Client’s
trial ended in a conviction and a life sentence. After all possible appeals were complete,
Attorney’s representation of Client ended. Attorney sent Client a letter, which Client
received in prison, explaining that his representation was now ending and providing a
detailed accounting of all billing matters. No outstanding bills remained. Several years
later, Attorney met with some former law school classmates at an alumni event, and
they swapped stories over drinks about some of their cases over the years. Attorney
mentioned Client, but only by first name, and explained how the guilty verdict felt like
a failure on his part even though he knew Client was guilty because Client’s friends
and family members had all witnessed the crime and told Attorney privately what they
had seen. Could Attorney be subject to discipline for disclosing confidential client
information?
a) Yes, because the duty of confidentiality continues after the client-lawyer
relationship has terminated.
b) Yes, because the information Attorney disclosed did not come from Client, but
from friends and family members who had betrayed Client by telling Attorney that
they saw Client commit the crime.
c) No, because the defendant was no longer his client, as the representation had ended
several years before.
d) No, because the client is already serving a life sentence for the crime in question,
so the disclosure could not possibly be prejudicial to the client.
Rule 1.6 Cmt. 20
279. Client hired Attorney to represent him in a criminal matter. Client faces charges for
abducting a young girl from her home three months ago. Attorney learns from Client
that Client indeed abducted the girl, that the girl is probably still alive and hidden in a
secluded location, and that the child was left alone, locked in a car trunk, with some
food and water two weeks ago when police arrested Client. Client refuses to disclose
the location of the girl to authorities. There is a chance that someone may happen upon
the car where the girl is trapped and help her. Does Attorney have a duty to disclose
the location of the girl to authorities or the parents in order to save the girl’s life?
(Answer according to the Model Rules of Professional Conduct, NOT the Texas rules
governing this situation).
a) Yes, because the disclosure is reasonably necessary to prevent reasonably certain
death or substantial bodily harm.
b) Yes, but only if the lawyer discloses the location as an anonymous tip, and is
reasonably certain that the discovery of the girl will not be prejudicial to the client’s
case.
c) No, the Rules of Professional Conduct do not require the lawyer to reveal the
client’s misconduct or the girl’s location.
d) No because the girl could survive indefinitely in the trunk of the car until she finds
a way to escape or someone happens to find her.
Rule 1.6(b)(2) & Cmt. 7 & 17
163
280. Attorney is a partner in a seven-lawyer firm. Client retained Attorney to handle his
workers’ compensation matter. Attorney did not discuss with Client that he would
normally disclose to the other partners in the firm some of the details about his cases
and clients. At the weekly meeting of the partners, as everyone discussed their pending
cases, Attorney explained Client’s case and solicited input from the partners. One
partner had an ingenious suggestion that would have been very helpful to Client’s case.
Attorney mentioned to Client in their next phone call that one of his partners had made
a brilliant suggestion that could turn the case in Client’s favor. Client was upset that
Attorney had discussed the case with anyone else. Is Client correct that Attorney
should not have discussed the case with the others at the firm?
a) Yes, because a lawyer has a duty to preserve the confidentiality of client
information, even from other lawyers in his law firm, unless the client expressly
authorizes disclosure.
b) Yes, because the disclosure automatically created potential conflicts of interest for
the other lawyers in the firm who might represent clients with adverse interests to
this client.
c) No, because lawyers in a firm may, in the course of the firm's practice, disclose to
each other information relating to a client of the firm, unless the client has instructed
that particular information be confined to specified lawyers.
d) No, because in this case the disclosure yielded a brilliant suggestion from another
lawyer that was very helpful to the case, which offsets any potential injury to the
client from the disclosure.
Rule 1.6 Cmt. 5
281. Attorney uses an outside billing service to track client billing and send bills to clients
each month. Attorney keeps track of his time, and submits computerized reports by
email to the billing company at the end of each workday about how much time he spent
on which tasks for which clients. The billing company calculates the monthly totals
and sends detailed bills to clients on Attorney’s behalf. Attorney found this outside
billing company online, visited their website, downloaded their app, and used their
online lawyer registration form to create an account with the company. At one point
in setting up the account and downloading the app, Attorney had to click on an “I accept
the terms and conditions” of a long user agreement that Attorney scrolled through
quickly, without reading. Clients are not aware that Attorney uses an outside billing
service until they receive their bills. Has Attorney violated his ethical duties to his
clients?
a) Yes, because a lawyer must not outsource components of the representation,
including billing, to non-lawyers.
b) Yes, because submitting the client names, time worked, and tasks involved
constitutes a disclosure of confidential information for which clients must provide
informed consent beforehand.
c) No, because a lawyer may outsource administrative tasks to nonlawyers for a
reasonable fee.
d) No, because a lawyer entitled to a fee is permitted to prove the services rendered in
an action to collect it.
ABA Formal Op. 08-451
164
282. Client paid his legal fees to Attorney in cash. The total fees were $11,100, and Client
paid Attorney in bundles of twenty-dollar bills. The Internal Revenue Code, 26 U.S.C.
§ 6050, requires that lawyers disclose, through Form 8300, the identities of clients,
amounts, and payments dates of all cash fees in excess of $10,000. Client already
forbid Attorney to disclose the information to the IRS. Must Attorney disclose Client’s
name, the amount, and the dates of payment on Form 8300?
a) Yes, the Internal Revenue Code supersedes the Rules of Professional Conduct
regarding the duty of confidentiality, so the lawyer should make such disclosures
as are necessary to comply with the law, after informing the client.
b) Yes, because payment of the fee is not confidential client information and could
not be prejudicial to the interests of the client in the representation.
c) No, a lawyer must comply with the client’s express wishes regarding the disclosure,
as the punishment for failing to file Form 8300 will probably fall on the client, not
the lawyer.
d) No, the Rules of Professional Conduct permit, but do not require disclosure to
comply with other law, so Attorney may file Form 8300, but it is not correct to say
Attorney “must” do so.
Rule 1.6(b)(6) & Cmt. 12
283. Attorney represented Client, who was suing his former employer over wrongful
discharge. The former employer claimed that the termination was necessary because
the job involved high-level security clearance, and the employer learned that Client had
a prior felony conviction that Client had not disclosed on his job application. The
phrasing of the question on the job application was confusing and a subject of dispute
in the case. The former employer also claimed that they would have needed to
terminate Client regardless of whether he was untruthful on his job application, because
his prior conviction disqualified him from the necessary security clearance. During a
preliminary hearing, the judge asked Attorney if it was true that Client had a prior
conviction, and if so, what was the crime. Attorney conceded that Client had a grand
larceny conviction in that jurisdiction and had served a two-year jail sentence, which
was a matter of public record. Attorney then explained that their theory of the case was
that the employer never clearly asked about prior convictions, and that the conviction
actually did not disqualify client from the necessary security clearance for his position,
but rather than this was a mere pretext for a racially discriminatory termination. Did
Attorney violate his duty of confidentiality to Client by making this admission?
a) Yes, unless the client expressly authorized the disclosure, prior convictions are
confidential information that a lawyer should protect.
b) Yes, because a lawyer has no duty to answer a direct question from a tribunal if the
answer could constitute a fatal admission in a case.
c) No, because the duty of confidentiality does not apply to disclosures made during
a colloquy between a judge and a lawyer during a preliminary hearing.
d) No, because a lawyer may be impliedly authorized to admit a fact that cannot
properly be disputed or to make a disclosure that facilitates a satisfactory
conclusion to a matter.
Rule 1.6 Cmt. 5
165
284. Attorney was a well-known criminal defense lawyer, and he agreed to represent
Client, a celebrity who is a defendant in a high-profile murder case. Attorney filed the
proper notice with the court and the prosecutor’s office that he was representing Client.
Attorney also filed a motion to exclude Client’s confession that he gave to the police
on the night of the murder while Client was somewhat intoxicated, in which he
concedes the intoxication and contends that this nullifies the voluntariness of the
confession for Fifth Amendment purposes. The news media thereby learned that
Attorney was representing Client, and news commentators began to speculate that
Client must be guilty if he hired such a notorious defense lawyer. Client was furious
that anyone knew that he had hired a lawyer, which he claims was confidential. Was
it proper for Attorney to make these disclosures without Client’s express authorization?
a) Yes, because a lawyer is impliedly authorized to make disclosures about a client
when appropriate in carrying out the representation, except to the extent that the
client's instructions or special circumstances limit that authority.
b) Yes, because Client is already in the public light as a celebrity and therefore has a
lower reasonable expectation of privacy, and he knew he was hiring a well-known
defense lawyer.
c) No, because a lawyer has an ethical duty to receive express authorization from a
client before taking any action that could disclose a client’s confidential
information.
d) No, because Attorney was raising a constitutional issue in the motion that has
greater importance than the duty of confidentiality to a client.
Rule 1.6 Cmt. 5
285. Attorney represents Client in a misdemeanor criminal matter involving minor
vandalism. Attorney interviews the victim, who incurred the property damage, hoping
to learn more about the value of the damage and how frequently vandalism occurs in
that neighborhood. The property owner explained to Attorney that Client had been
demanding “protection money” from him and other business owners in the
neighborhood for a long time, and that the vandalism followed his refusal to continue
paying the protection money. The amount involved was substantial, and Attorney
realized that Client could face much more serious charges for extortion. Attorney never
discussed this with Client, and Client gladly accepted a plea bargain offer for a few
months’ probation on the misdemeanor vandalism charge. Several years later, Client
died in a car accident, and the property owner became a business-world celebrity when
he published a book about how businesses transform neighborhoods. A reporter
eventually found Attorney and interviewed him about the vandalism incident, several
years prior, that had damaged property owner’s building at the time. Attorney
explained that the incident was actually part of a larger extortion operation and that the
business owner had handled the matter nobly. Should Attorney be subject to discipline
for this disclosure?
a) Yes, because the confidentiality rule applies not only to matters communicated in
confidence by the client but also to all information relating to the representation,
whatever its source.
166
b) Yes, because Attorney made the disclosure to a reporter, who is likely to
disseminate the information widely, and it involved a misdemeanor that could have
been a felony instead.
c) No, because Attorney did not receive the confidential information from his own
client, but rather from the client’s victim, whom he did not represent.
d) No, because the disclosure occurred after the client was dead, so it could no longer
harm the client.
Rule 1.6 Cmt. 3
286. A government entity provides grants to a legal aid office that represents indigent
individuals. The government entity requires reporting of the names of clients, brief
factual summaries, and the type of representation involved for all matters where the
government entity’s funds provided the financial support for the representation.
Attorney works for the legal aid office. The government entity uses this information to
ensure that the funding is going to its intended purposes and complies with various
statutory requirements. Most of his clients are uneducated and unsophisticated, so he
does not explain to them how the finances work for the legal aid office or that he must
disclose their information. Is it proper for Attorney to represent legal aid clients
without obtaining their informed consent to the disclosures required by the funding
agency?
a) Yes, because the information is going to governmental entity, not to a private party,
so the disclosure does not violate the Rules of Professional Conduct.
b) Yes, because the client names, basic facts, and type of case do not constitute
confidential information that would require client authorization for disclosure.
c) No, because the client names, basic facts, and types of cases are confidential
information, and require client authorization for disclosure.
d) No, because information disclosed by a lawyer about a client to the government
automatically constitutes a breach of the duty of confidentiality.
ABA Formal Op. 96-399
287. Attorney represents Client before an Administrative Law Judge in a regulatory
enforcement matter. The Administrative Law Judge orders Attorney to disclose
whether Client was informed by counsel about the regulatory requirements in question
before the violation occurred. Client forbids Attorney to answer the question. Attorney
initially objects, but the Administrative Law Judge insists. Could Attorney be subject
to discipline for disclosing such confidential client information to the Administrative
Law Judge?
a) Yes, because an Administrative Law Judge is not a court or tribunal for purposes
of the exceptions to the confidentiality rules that might permit disclosures in
response to a court order.
b) Yes, because a lawyer shall not reveal information relating to the representation of
a client unless the client gives informed consent.
c) No, because a lawyer may comply with an order to reveal information relating to
the representation of a client by a court or by another tribunal or governmental
entity claiming authority pursuant to other law to compel the disclosure.
167
d) No, because the information relates only to what the lawyer told the client, not to
what the client told the lawyer, so the duty of confidentiality does not apply.
Rule 1.6(b)(6) & Cmt. 15
288. An insurance company hired Attorney to represent one of its policyholders. The
insurance company requires periodic updates and detailed billing statements about the
matter from Attorney, as part of its agreement to provide representation for its insured.
In addition, the insurance company requires Attorney to submit detailed billing
statements to a third-party auditor, designated and paid by the insurance company.
Client is unaware of these reporting requirements and did not provide explicit consent
to either of them. The third-party auditor receives no information except the name and
policy number of the client and the time spent by Attorney on various tasks necessary
for the representation. Could Attorney be subject to discipline for disclosing
confidential information?
a) Yes, because both the disclosures to the insurance company and the third-party
auditor violate the lawyer’s duty of confidentiality toward the client.
b) Yes, even though the policyholder impliedly authorized the Attorney to provide
updates and billing statements to the insurance company, submitting the bills to the
third-party auditor constitutes an unauthorized disclosure of confidential
information.
c) No, because the lawyer has implied authorization from the fact that the insurance
company hired him to represent the policyholder to make all of the disclosures
described above.
d) No, because billing information is not privileged and its disclosure could not
prejudice the client.
ABA Formal Op. 01-421
289. Client, a large auto dealer, retains Attorney to represent him in a bankruptcy case.
Attorney’s firm represents a bank, through which Client has several large loans that
covered loans for the dealership. The loans are all contained in the bankruptcy.
Attorney is concerned about whether there is a conflict, so he contacts a lawyer friend
of his. While explaining his dilemma, Attorney tells Friend the name of the dealer. Is
Attorney subject to discipline?
a) Yes, because the attorney disclosed more than what details were necessary to
accomplish his purpose.
b) Yes, because attorneys shall not discuss client matters with other lawyers not also
serving as counsel for their client.
c) No, because attorneys may discuss their cases with other lawyers to ensure they are
following the rules of professional conduct.
d) No, because the restrictions regarding confidentiality only apply in criminal cases.
290. Attorney is in-house counsel for a large international corporation and has daily contact
with higher-level executives and managers. One day, a senior executive mentions
casually to Attorney that he has offered lucrative stock options, worth millions of
dollars, to a foreign government official who has agreed to give the firm an exclusive
contract to provide certain goods and services to the foreign state. The executive seems
168
to think this is normal and good for the company, but Attorney believes it constitutes
bribery of foreign officials, which would violate the Foreign Corrupt Practices Act, and
could subject the company to enormous fines and penalties. Attorney explains her
concerns to the executive, including her concern that he could face personal criminal
charges in addition to bringing liability on the corporation, and she reminds him that
she represents the corporation, not him personally. The executive is dismissive of her
concerns, even though she approaches him several times about the matter. How must
Attorney proceed?
a) She should report the matter immediately, in writing, to the Department of Justice,
and tell no one in the company that she has done so.
b) She should keep her conversations with the executive confidential but try to
document everything that she knows about the situation in case the Department of
Justice brings an enforcement action.
c) She should approach the executive’s immediate corporate superior, advising those
next up the chain of authority to stop the transaction and take appropriate actions
against the executive involved.
d) She should immediately notify the company’s Board of Directors, advising them
about the potential liability and threatening to report the activities to the Department
of Justice if they take no action.
291. Attorney represents Client before an Administrative Law Judge in a regulatory
enforcement matter. The Administrative Law Judge orders Attorney to disclose
whether Client had received legal counsel about the regulatory requirements in question
before the violation occurred. Client forbids Attorney to answer the question. Should
Attorney object and try to assert various claims that the order is not authorized by law,
or that the information is not relevant to the proceeding, or that the information is
covered by the attorney-client privilege?
a) Yes, because a lawyer should assert on behalf of the client all nonfrivolous claims
that the order is not authorized by other law or that the information sought is
protected against disclosure by the attorney-client privilege or other applicable law.
b) Yes, because the information relates only to what the lawyer told the client, not to
what the client told the lawyer, so the duty of confidentiality does not apply.
c) No, because an Administrative Law Judge is not a court or tribunal for purposes of
the exceptions to the confidentiality rules that might permit disclosures in response
to a court order.
d) Yes, because a lawyer shall not reveal information relating to the representation of
a client unless the client gives informed consent.
Rule 1.6(b)(6) & Cmt. 15
292. Ms. Mathis hired Attorney to represent her in a burglary charge. During a meeting
with Attorney and with the understanding that any information would be confidential,
Ms. Mathis advised Attorney about a murder she committed in which another person
was on trial. Eventually, Attorney was able to negotiate a plea deal for Ms. Mathis on
her burglary charge. Shortly after the plea deal was reached and Attorney’s
representation of Ms. Mathis concluded, Attorney discovered that the person who was
on trial for the murder to which Ms. Mathis admitted was found guilty by a jury and
169
sentenced to life in prison without the possibility of parole. Attorney contacted the
District Attorney’s office that handled the murder trial and left an anonymous tip stating
that Ms. Mathis confessed to committing the murder. Was Attorney’s conduct proper?
a) Yes, because attorneys have a duty to reveal information, even if confidential, that
relates to a crime or fraud committed by his client.
b) Yes, because attorneys no longer have a duty not to disclose information relating
to the representation of a client once the attorney’s representation of that client
terminates.
c) No, because an attorney must not leave such tips anonymously, but must make
themselves available to be questioned and for testifying if making any tip regarding
a crime or fraud committed by one of his clients.
d) No, because attorneys cannot disclose client representation information and the
death had already occurred, therefore, the disclosure would not prevent certain
death or substantial bodily injury.
293. Attorney has been practicing law for two years, and has represented some law school
graduates in their appeals before the bar when the Board of Law Examiners had denied
the applications for licenses on character or fitness grounds. A former law school
classmate, who was a first-year student when Attorney was a third-year student, visits
Attorney in his office. The former classmate was on law review and graduated near
the top of the class, but now he expresses concern about the character portion of the bar
application. “I need you to represent me before the Board of Law Examiners,” the
former classmate said. Attorney asks the classmate to explain the problem. The
classmate then explains a history of heroin addiction in college, which led to a criminal
conviction and a period of incarceration; but a successful rehabilitation program
enabled the student to beat this addiction and live drug-free throughout law school. The
classmate does not want to disclose this on the bar application. Attorney declines to
represent the former student, and later receives a call from the bar examiners, inquiring
about this former classmate’s character and fitness. Attorney then recounts everything
the classmate said about the past addiction and criminal conviction. Was Attorney’s
conduct proper in this situation?
a) Yes, as bar admission is a delineated exception to the usual attorney-client
relationship, so confidentiality and privilege do not apply.
b) Yes, as no attorney-client relationship exists until the parties sign a retainer, so the
confidentiality rules do not apply here
c) No, as the student did not actually ask Attorney to write a recommendation letter
or get involved in the matter, but was just seeking advice.
d) No, the former classmate here was a prospective client, and the attorney owed a
duty of confidentiality, even though no representation occurred.
Rule 1.6 Cmt. 1
294. Attorney is representing a client who is a notorious celebrity-turned-criminal in a
criminal case involving drug charges. Attorney is confused about whether he may
publicly disclose information that he learned in confidence from his client if the
information is already a matter of public record, and his research indicates there is a
170
split of authority on this question. Attorney calls another lawyer who specializes in
lawyer malpractice and lawyer disciplinary matters to seek advice about what course
of action would comply with the Rules of Professional Conduct. The other lawyer, an
expert in legal ethics, agrees to provide an opinion and to keep the conversation a secret.
Attorney tries to use a hypothetical to explain the problem, but given the client’s
national reputation and celebrity status, the other lawyer knows immediately who the
client is, and can easily surmise the nature of the confidential information. In addition,
Attorney mentions that his client is secretly a bisexual and has been having an affair
with both the male and female hosts of a nationally televised morning talk show, though
neither of them is aware that the other is having an affair with the same person. Is
Attorney subject to discipline for disclosing confidential information about his client?
a) Yes, because Attorney used a hypothetical that was obvious enough that the other
lawyer immediately knew the identity of the client and the client’s information that
the Attorney was supposed to protect.
b) Yes, because the lawyer revealed more client information than was necessary to
secure legal advice about the lawyer's compliance with the Rules
c) No, because a lawyer may reveal information relating to the representation of a
client to secure legal advice about the lawyer's compliance with the Rules, even
when the lawyer lacks implied authorization to make the disclosure.
d) No, because a lawyer may generally disclose confidential information to another
lawyer as long as the other lawyer promises to keep the conversation secret, and
the other lawyer has a reputation for complying with the ethical rules.
Rule 1.6(b)(4) & Cmt 9
295. Client hired Attorney to represent him in a divorce proceeding and custody battle over
Client’s children. At one point, Client explains to Attorney that if he loses custody of
the children to his estranged spouse, he has detailed plans to murder the spouse and
make it look like a suicide, so that he can regain custody of his children. Attorney
believes that Client could plausibly carry out this plan successfully, and Attorney is
reasonably certain that Client will indeed lose custody of the children in the current
proceeding. May Attorney immediately warn the estranged spouse, the tribunal, or the
police about Client’s plan?
a) Yes, because a lawyer may reveal information relating to the representation of a
client to the extent the lawyer reasonably believes necessary to prevent reasonably
certain death or substantial bodily harm.
b) Yes, because Client’s plan falls outside the scope of Attorney’s representation in
the current proceeding, and therefore the information does not come under the duty
to protect client confidentiality.
c) No, because whenever practicable, the lawyer should first seek to persuade the
client to take suitable action to obviate the need for disclosure.
d) No, because the far-fetched plan is still contingent on losing custody of the children,
and therefore it does not constitute reasonably certain death or bodily injury, and
thus fails to trigger the exception to the duty of confidentiality.
Rule 1.6 Cmt. 16
171
296. Attorney represents the family members of one of several people who died when a
section of a sports arena collapsed. Attorney sent an investigator to talk to the property
management company that operated the arena, and that conversation led the
investigator to a former employee of the management company, who explained that he
had lost his job for insisting that the property managers address some structural
problems and maintenance issues in the part of the arena that eventually collapsed. The
disgruntled former employee gave the investigator copies of reports he had submitted
to his employer, the property managers. Later, the lawyers representing the property
management company and the sports arena owners learned that this investigator had
talked to their former employee, and asked the court to disqualify Attorney from
representing the plaintiffs in the case. They based their motion for disqualification on
the ex parte communication with their former employee and taking receipt of a copy of
the internal reports about the arena’s maintenance problems. Under the Rules of
Professional Conduct, should the court grant the motion to disqualify Attorney?
a) Yes, because the former employee appears to be unrepresented and could become
a party to the litigation.
b) Yes, because the reports that the former employee had submitted to the property
managers were privileged and confidential.
c) No, because the fact that there are co-defendants negates any claim of privilege and
therefore nullifies the motion for disqualification.
d) No, because the former employee is no longer working for the property
management company, and the reports are not privileged.
297. Small Firm is considering hiring Attorney, who currently works for Big Firm, in a
lateral move. Attorney is a transactional lawyer, so none of the information he
possesses is “privileged” in that it was not in anticipation of litigation. In order to check
for conflicts of interest, Attorney discloses to Small Firm the clients he has represented
while at Big Firm. This includes the names of persons and issues involved in the
matters, as well as names and issues for matters handled by other lawyers in the firm
about which Attorney had overheard or otherwise acquired some confidential
information. Small Firm uses the information solely for checking about potential
conflicts of interest before making an offer of employment to Attorney. Attorney did
not ask any of the clients for authorization to disclose the representation or the nature
of the issues involved in their matters. Was it proper for Attorney to disclose this
confidential information without the consent of the clients?
a) Yes, as long as Attorney informs the clients subsequently that such disclosures have
occurred.
b) Yes, because Attorney disclosed the information solely to detect and resolve
conflicts of interest arising from the lawyer’s change of employment.
c) No, because Attorney did not obtain consent or authorization from the clients before
disclosing this information.
d) No, because Attorney disclosed not only the clients that he himself represented, but
also clients of other lawyers in his firm.
Rule 1.6(b)(7); ABA Formal Op. 09-455
172
298. Attorney represents a chemical manufacturer. A regional vice-president recently
informed Attorney that there was an unfortunate chemical spill that released hundreds
of gallons of toxic substances into a stream that ran into the town’s nearby water supply
reservoir. The spill occurred because a newly hired employee turned the wrong valve
during a training exercise at the plant. Attorney explained that the corporation could
face civil liability in either tort actions or regulatory actions by governmental entities
at the state and federal levels, and urged the vice-president to report the spill
immediately, if it was still unreported. The vice-president replied that they could not
afford the negative publicity and the impact it would have on their share prices. He
reminded Attorney that the upper management of the company received most of its
compensation in the form of preferred stocks and options, so it seemed unfair to
penalize them through a loss in share price, when the fault was some recently hired
manual laborer. Attorney explained that he would have to withdraw from
representation and would report the incident to the necessary public health officials,
which he did, despite the vice-president insisting that this was confidential information.
Is Attorney subject to discipline?
a) Yes, because the company’s conduct may not have been criminal and did not yet
result in anyone’s death or serious bodily injury.
b) Yes, because the Attorney disclosed confidential information and betrayed his duty
of loyalty to the client.
c) No, because the lawyer believed the company’s disposal of waste products was
likely to cause serious injury to others.
d) No, because Attorney believed that the bad publicity and decrease in share price
would be even worse if it emerged that there was an attempted cover-up after the
chemical spill.
Rule 1.6(b)(1)
299. Attorney works for a state-operated legal aid clinic, which under a state statute counts
as a social service agency. The state has a mandatory reporting law for child abuse,
which statutorily requires employees of social service agencies to report any instances
of child abuse they discover among their clients or constituents. Attorney met with a
prospective client and her child to discuss possibly representation at a welfare
termination hearing. The prospective client did not meet the agency’s guidelines to be
eligible for free legal representation, however, so Attorney had to decline the case.
Nevertheless, it was evident during the interview that the prospective client’s child was
the subject of serious physical abuse – a black eye, cigarette burns on her arms and
neck, bruises on the backs of her legs, and a demeanor of cowering in fear around
adults. Attorney wanted to talk to the mother about it, but has been unable to reach her
since declining to represent her. Must Attorney report the prospective client for child
abuse?
a) Yes, because the mother was only a prospective client who was ineligible for
representation by Attorney, so Attorney owed her no duty of confidentiality.
b) Yes, because state law requires the disclosure, and a lawyer may reveal information
relating to the representation of a client to the extent the lawyer reasonably believes
necessary to comply with other law.
173
c) No, because the exceptions to the duty of confidentiality merely permit disclosure,
so Attorney “may” report the incident, but there is no duty to do so.
d) No, because Attorney met the prospective client only once, and does not know if
the abuse occurred at the hands of her mother, or if the child was the victim of a
crime at the hands of someone else, and it is not the mother’s fault.
Rule 1.6(b)(6)
300. Attorney agreed to represent Client, a foreign national living in the United States.
Client explained to Attorney that he was a business owner who owned and operated
several small grocery stores catering to immigrants from Client’s home country.
Nothing seemed suspicious to Attorney until they were about to consummate a deal on
the purchase of a small parcel of commercial real estate, and Client insisted on paying
with cash, arriving at the closing with duffle bags containing bundles of twenty dollar
bills. The parties completed the sale and title transferred to one of Client’s businesses,
7777777 LLC. Attorney was then suspicious that Client might somehow be laundering
money through such transactions. Would it be proper for Attorney to inform the FBI
about the transaction without Client’s consent?
a) Yes, a lawyer functions as a gatekeeper to the financial system and has an ethical
duty to report any suspicion of money laundering.
b) Yes, a lawyer may disclose confidential information to prevent the client from
committing a crime or fraud that the lawyer suspects might result in substantial
injury to the financial interests or property of another and in furtherance of which
the client has used or is using the lawyer's services.
c) No, because there is no indication here that the transaction could lead to reasonably
certain death or serious bodily injury.
d) No, because the Rules of Professional Conduct do not mandate that a lawyer
perform a gatekeeper role in this context, and mandatory reporting of suspicion
about a client is in conflict with the duty of confidentiality.
ABA Formal Op. 13-463
174
ANSWER KEY: CONFIDENTIALITY
269. d
270. c
271. c
272. c
273. d
274. d
275. c
276. b
277. c
278. a
279. c
280. c
281. b
282. a
283. d
284. a
285. a
286. c
287. c
288. b
289. a
290. c
291. a
292. d
293. d
294. b
295. c
296. d
297. b
298. c
299. b
300. d
175
PART II :
MATERIAL
COVERED IN
SECOND
HALF OF
SEMESTER
176
Regulation of the legal profession (6–12%, 3-7 MPRE
Questions), Rules 5.1-5.5, 8.1-8.5
1. Law firm and other forms of practice – Rule 5.1
2. Responsibilities of partners, managers, supervisory and
subordinate lawyer - Rule 5.1-5.3
3. Fee division with a nonlawyer – Rule 5.4
4. Unauthorized practice of law by lawyers and nonlawyers
– Rule 5.5
5. Multijurisdictional practice – Rule 5.5
6. Admission to the profession – Rule 8.1
7. Regulation after admission—lawyer discipline Rule 8.1,
8.4
8. Mandatory and permissive reporting of misconduct –
Rule 8.3
9. Powers of courts and other bodies to regulate lawyers –
Rule 8.5
177
QUESTIONS ON RULES 5.1-5.7
LAW FIRMS AND ASSOCIATIONS
RULE 5.1
301. Attorney is a partner in a newer law firm that has no effective measures in place to ensure that lawyers
in the firm conform to the Rules of Professional Conduct. An associate at the firm violates the Rules,
and the state bar investigates the policies and procedures in place at the firm. The state disciplinary
authority has determined that Attorney is subject to discipline for his failure to take reasonable measures
to ensure conformity with the Rules. Because of this determination and the subsequent sanction, which
of the following is true?
a) Whether a lawyer may be liable civilly or criminally for another lawyer's conduct is a question of
law beyond the scope of the Rules; the determination of a violation does not automatically mean
that Attorney would be civilly or criminally liable.
b) The fact that the state bar found Attorney guilty of a violation of the Rules, and imposed a sanction,
means Attorney is automatically liable in any legal malpractice action related to the violation.
c) The fact that the state bar found Attorney guilty of a violation of the Rules, and imposed a sanction,
means Attorney is automatically guilty in any criminal prosecution related to the violation.
d) The fact that the state bar already imposed a sanction for the violation precludes being subject to
damages in a malpractice action or criminal sanctions in a criminal prosecution related to the same
violation, due to the double jeopardy rules.
302. Attorney is a second-year associate at a law firm with no supervisory responsibilities. He learns that
another second-year associate is working on a case in which the client is suing a company that the other
associate used to represent at his previous firm, and Attorney suspects it is a substantially related matter.
The firm has done nothing to screen the other associate from the matter. No one ever discusses it with
Attorney, and Attorney does not know all the facts of the situation. Later, the client sues the firm for
malpractice due to the conflict of interest, and reports the matter to the state disciplinary authority.
Which of the following is true regarding Attorney’s involvement in the situation?
a) Attorney does not have disciplinary liability for the conduct of the other associate, because he is
neither a partner nor in a supervisory position, and did not participate in the violations directly.
b) Attorney is subject to discipline because he had an affirmative duty to inquire about the potential
conflict and the lack of screening of this other associate.
c) Attorney is subject to discipline because the Rules of Professional Conduct impute violations of
any lawyer in the firm to all other lawyers in the firm.
d) Attorney does not have disciplinary liability in this matter because the Rules of Professional
Conduct do not impute conflicts of interest to other lawyers in the same firm just because the firm
failed to screen one associate with a possible conflict with former clients.
303. Attorney is a fifth-year associate at a large firm, and is responsible for supervising the work of a firstyear associate. Attorney, however, now spends most of his time in Singapore, trying to open a satellite
office for the firm there to service one of its major corporate clients. He has not inquired into the
associate’s compliance with the Rules of Professional Responsibility in over 18 months, as they mostly
communicate by email regarding pending cases and assignments. To the best of his knowledge, though,
Attorney believes associate is following the Rules, and he knows that the associate has attended two
Legal Ethics C.L.E. courses in the last year. Unbeknownst to Attorney, the new associate has been
overbilling his hours and neglecting certain client matters. Which of the following is true regarding
Attorney’s situation?
a) Attorney is subject to discipline as a lawyer having direct supervisory authority over another lawyer
who failed to make reasonable efforts to ensure that the other lawyer conforms to the Rules of
178
Professional Conduct, even though there was no direction, ratification, or knowledge of the
violation.
b) Attorney is subject to discipline for effectively ratifying the associate’s violations through his
neglect of his supervisory role.
c) Attorney is not subject to discipline because there was no there was no direction, ratification, or
knowledge of the violation.
d) Attorney is subject to discipline because the Rules of Professional Conduct impute violations of
any lawyer in the firm to all other lawyers in the firm.
304. Attorney is a partner in a medium-size firm. Another partner at the firm, the managing partner, is
responsible for implementing policies and procedures to detect and resolve conflicts of interest, to
account for client funds and property, to identify dates by which actions must occur in pending matters,
and to ensure that inexperienced lawyers receive proper supervision. The managing partner, however,
now spends most of his time in Singapore, trying to open a satellite office for the firm there to service
one of its major corporate clients. The managing partner is rarely at the home office and has completely
neglected the implementation of ethical policies in the firm, so that minimal safeguards or procedures
are in place. One of the new associates has committed several serious violations of professional
responsibilities in the last few months, including an egregious conflict of interest problem and several
missed deadlines for filing responsive pleadings. Attorney knew nothing about the violations and was
not directly supervising the associate, and tries not to meddle in any of the managing partner’s
responsibilities, including the implementation of ethical policies and procedures. Which of the
following is correct?
a) Attorney is subject to discipline as a partner in the firm for failing to make reasonable efforts to
ensure that the firm has in effect measures giving reasonable assurance that all lawyers in the firm
conform to the Rules of Professional Conduct.
b) Attorney is not subject to discipline because it was the managing partner’s job to implement
measures giving reasonable assurance that all lawyers in the firm conform to the Rules of
Professional Conduct.
c) Attorney is not subject to discipline because he did not directly supervise the associate who violated
the Rules of Professional Conduct.
d) Attorney is subject to discipline because the Rules of Professional Conduct impute violations of
any lawyer in the firm to all other lawyers in the firm.
305. Attorney is a fifth-year associate at a large firm, hoping to make partner in the next two or three years.
She supervises the first-year associates at the firm. She learns that the most recently hired associate
recently shredded some evidence that would have undermined a client’s case, and then told the judge
and opposing party that the missing documents had been in a briefcase that went missing when a burglar
broke into the associate’s car. Attorney knows this is not true and discusses it with the senior litigation
partner, who finds the story amusing. Neither reports the associate’s deception to the judge or opposing
party. Which of the following statements is true regarding this situation?
a) Both Attorney and the litigation partner are subject to discipline for not taking action to correct the
associate’s false statements and misconduct.
b) Attorney is subject to sanctions, as she was directly supervising the associate, but the senior
litigation partner was not involved, did not know about it at the time, and has no responsibility in
the matter.
c) The associate is subject to discipline, but neither Attorney nor the senior litigation partner would be
subject to discipline, as they were not aware of the misconduct until after the fact.
d) The senior litigation partner is subject to discipline because he has a responsibility to take
reasonable measures to ensure that everyone in the firm complies with their ethical duties, but
Attorney is not subject to discipline, as she is merely an associate at the firm.
179
306. Attorney works at the state Public Defender office. Due to their insufficient funding and the
overwhelming number of indigent defendants in her city, her caseload is so great that she cannot do
adequate investigation into any of her client’s cases or conduct legal research about possible defenses.
Nevertheless, 95% of the cases end in plea bargains without going to trial, so Attorney tells herself that
her neglect of case development makes no difference. Her supervisor at the Public Defender office is
aware of the unreasonable caseloads of all the attorneys who work there, but the supervisor wants the
attorneys to increase their caseloads in order to provide representation to more indigent defendants,
even if that means doing minimal work on each case. Which of the following is true regarding the
ethical situation facing Attorney and her supervisor?
a) Attorney has an ethical duty to control her workload in order to avoid prejudice to her existing
clients, even if that means refusing to take any more cases now.
b) Attorney’s supervisor is not subject to discipline because it is a valid policy decision to provide
minimal representation to as many defendants as possible, as even minimal representation is better
than having no representation at all.
c) The normal duty of diligence does not apply to public defenders, as everyone recognizes that the
priority should be to provide representation for every defendant.
d) For purposes of professional discipline or sanctions, the supervisor is the one responsible for the
case overload, not the attorneys who work there.
RULE 5.2
307. Attorney is an associate at a small firm, and her supervising partner instructs her to draft pleadings in
a case for a client. The supervising partner knows that the statute of limitations has already run on the
claim, and that the client had virtually no factual evidence to support the claim in any case. The partner
believes the opposing party will want to settle the claim quickly for a modest sum, and will not bother
to investigate issues such as the statute of limitations or the factual support for either side. Attorney
follows the partner’s instructions and drafts the pleadings, without checking the statute of limitations
for this particular claim or conducting her own investigation into the facts of the case. Opposing
counsel, however, is upset over the frivolous claim and reports Attorney to the state bar. Which of the
following is correct regarding Attorney’s situation?
a) Attorney is probably not responsible for asserting a frivolous claim, and the fact that she was just
following orders could support her defense that she was unaware that the claim was frivolous.
b) Attorney is responsible for asserting a frivolous claim, despite the fact that her supervising partner
insisted that she do it.
c) Neither Attorney nor the partner would be subject to discipline as long as the case settles before trial
and the bogus claim about statutory duties was not the sole basis for their complaint.
d) If the partner had terminated Attorney for refusing to assert the frivolous claim, the state bar
disciplinary authority would have compelled the firm to reinstate her.
308. Attorney is a new associate at a law firm, and the managing partner assigns her a new case, in which
the firm will represent two co-plaintiffs in a personal injury case. Attorney is concerned that a conflict
of interest could arise between the two plaintiffs, and suggests that the firm should represent only one
of them. When she discusses this with the managing partner, the managing partner disagrees, because
the interests of the two plaintiffs seem perfectly aligned, and they can have each sign an informed
consent form waiving the conflict up front. Both admit the question is a close one in terms of the ethical
180
rules for conflicts of interest, but the managing partner insists that they proceed. Which of the following
is true regarding this situation?
a) The supervisor's reasonable resolution of the question should protect the subordinate professionally
if the resolution subsequently faces a challenge.
b) Attorney has a duty to follow her own judgment about her ethical obligations to clients under the
Rules of Professional Conduct, even if that means ignoring the managing partner’s instructions.
c) The fact that the two discussed the potential conflict at length will help shield both of them from
any professional repercussions if they turn out to be wrong later.
a) The answer depends on whether the firm will receive a contingent fee if they prevail, as there is a
strict prohibition on representing co-plaintiffs in a contingent fee case.
309. Partner gives Associate Attorney the typed notes from a previous client interview conducted by
Partner, and Associate has the task of drafting a complaint for a personal injury lawsuit based on the
allegations in the notes. Associate Attorney has no direct contact with the client, and does not really
have any way to verify whether the notes represent everything discussed in the interview (the notes are
not a transcript) or whether the allegations are factually accurate, truthful, or tell the complete story.
Associate Attorney completes the task as assigned, drafting the pleadings based on the notes. Associate
Attorney then submits the drafted complaint to Partner for review. Later, the pleadings turn out to be
frivolous, based on complete falsehoods. Which of the following is true regarding Associate Attorney’s
role in drafting the complaint?
a) The lack of opportunity for Associate Attorney to investigate or verify facts on her own WILL be a
relevant factor for the state disciplinary authority in deciding whether to discipline Associate
Attorney.
b) The lack of opportunity for Associate Attorney to investigate or verify facts on her own will NOT
be a relevant factor for the state disciplinary authority in deciding whether to discipline Associate
Attorney.
c) The client will be subject to discipline, but not her lawyers, who merely took her at her word and
filed complaints based on what she told the lawyers.
d) Associate Attorney will be subject to discipline for drafting a complaint based on interview notes
rather than a transcript of the interview or a notarized affidavit.
310. Attorney is an associate in a litigation firm representing plaintiffs. In her current case, her supervising
partner instructs her to assert that the defendant had an affirmative statutory duty to protect the
plaintiff’s interests, even though Attorney can find no statute to support this assertion. Attorney has
brought this to the attention of her supervising partner, who rebuked her for questioning his authority
and insisted that she do as he said. He assures her that the defendants will settle before trial anyway.
Thus, the bogus claim merely gives some psychological leverage during settlement negotiations, and
cannot do any harm. Moreover, the partner says that Attorney may not last long at the firm if she cannot
follow instructions, which seemed to be a threat of termination. At a preliminary hearing, however, the
judge confronts Attorney about the unsupportable claim, and she concedes that no statutory duty exists.
The judge is irate and considers reporting Attorney to the state bar disciplinary authority. Which of the
following is correct regarding Attorney’s situation?
a) Attorney is responsible for asserting a frivolous claim, despite the fact that her supervising partner
insisted that she do it and threatened her with termination.
b) Attorney is not responsible for asserting a frivolous claim, because her supervising partner insisted
that she do it and threatened her with termination.
c) Neither Attorney nor the partner would be subject to discipline as long as the case settles before
trial and the bogus claim about statutory duties was not the sole basis for their complaint.
d) If the partner had terminated Attorney for refusing to assert the frivolous claim, the state bar
disciplinary authority would have compelled the firm to reinstate her.
181
RULE 5.3
311. Attorney has switched to cloud computing, meaning that their firm pays a monthly fee to store all their
spreadsheets and documents in an Internet-based database or archive. This protects client information
and case documents from being lost whenever a computer at the firm crashes; the cloud service
automatically creates an online backup for every file. According to the Rules of Professional Conduct,
which of the following is true?
a) Attorney and his firm were correct in prioritizing the protection of documents against loss from
failed hard drives over the protection of client confidentiality, as the chances of a security breach on
the cloud server are extremely low.
b) Attorney and his firm have an affirmative duty to make reasonable efforts to ensure that the cloud
service is secure against computer hacking or other invasive access to clients’ confidential
information.
c) If the cloud storage company advertised that its online servers were super-secure, the lawyers have
no duty to make additional inquiries about the risk of disclosing clients’ confidential information.
d) It is not a violation of the Rules if the employees at the cloud storage company can access the
information stored on their servers.
312. Attorney represents a sophisticated business client in a litigation matter. Attorney wants to hire an
outside nonlawyer investigator/paraprofessional to help find and develop evidence and witnesses for
the case. Client agrees, but wants Attorney to hire a particular outside company with whom Client has
close business dealings and a long history. Attorney would normally have used a different firm that is
more familiar to him. Which of the following is correct, according to the Model Rules and the
accompanying Comments?
a) Where the client suggests the selection of a particular nonlawyer service provider outside the firm,
the lawyer ordinarily should make the selection and override the client’s suggestion, given that the
lawyer bears responsibility for monitoring the ethical behavior of the service provider.
b) Where the client directs the selection of a particular nonlawyer service provider outside the firm,
the lawyer ordinarily should agree with the client concerning the allocation of responsibility for
monitoring as between the client and the lawyer.
c) Where the client directs the selection of a particular nonlawyer service provider outside the firm,
the client bears the responsibility for monitoring the behavior of the service provider he selected.
d) Where the client directs the selection of a particular nonlawyer service provider outside the firm,
the lawyer will be subject to discipline for allowing the client to engage in the unauthorized practice
of law.
313. Attorney works for a mid-size law firm that employs two or three law students every year as summer
associates. The manager of the student associates assigns one of them to work on Attorney’s pending
antitrust case, in addition to assignments for other lawyers at the firm. While researching an important
issue in the case, the summer associate discovered an older Supreme Court decision that was
unfavorable to their client. The summer associate decided not to tell anyone about the case, as the
opposing party seemed to have overlooked it in their briefs. Attorney was not aware of any of this.
The hearing went well for their side, and the associate never said a word about “burying” that Supreme
Court case he had found. After winning at the hearing, Attorney complimented the summer associate
for his fine work and rewarded him by treating him to lunch at an expensive restaurant. The judge’s
clerks, however, found the case, and the judge queried the lawyers about how they could have missed
it. Opposing counsel admitted he had been negligent in doing legal research on the matter, and summer
associate then recounted how he hid the case from Attorney. Is Attorney now subject to discipline for
what the summer associate did?
182
a) Yes, even though he was unaware of the violation at the time, Attorney ratified the summer
associate’s conduct by complimenting him on his work and buying him an expensive lunch.
b) No, because Attorney did not know about the associate’s conduct at the time it occurred, or while
submitting briefs, or even when the hearing began.
c) Yes, because lawyers are automatically liable for the misconduct of nonlawyer employees at their
firm; the lawyer had an affirmative duty to find the case himself and disclose it.
d) No, because opposing counsel was negligent in failing to research the issue, and if he had, he would
probably have discovered the case on his own.
314. Attorney works for a mid-size law firm that employs two or three law students every year as summer
associates. The manager of the student associates assigns one of them to work on Attorney’s pending
antitrust case, in addition to assignments for other lawyers at the firm. While researching an important
issue in the case, the summer associate discovered an older Supreme Court decision that was
unfavorable to their client. The summer associate decided not to tell anyone about the case, as the
opposing party seemed to have overlooked it in their briefs. Attorney was not aware of any of this until
they were on a break during their hearing. The hearing was going well for their side, and the associate
boasted to Attorney about “burying” that Supreme Court case he had found. Attorney said, “Well, you
should have told me about it at the time, but there is no point in bringing it up now, as it appears
opposing counsel overlooked it and the hearing is going our way.” The judge’s clerks, however, found
the case, and the judge queried the lawyers about how they could have missed it. Opposing counsel
admitted he had been negligent in doing legal research on the matter, and Attorney recounted the story
about the summer associate hiding the case from him. Is Attorney now subject to discipline for what
the summer associate did?
a) Yes, because lawyers are automatically liable for the misconduct of nonlawyer employees at their
firm; the lawyer had an affirmative duty to find the case himself and disclose it.
b) Yes, even though he was unaware of the violation at the time, Attorney ratified the summer
associate’s conduct after he learned about it.
c) No, because Attorney did not know about the associate’s conduct at the time it occurred, or while
submitting briefs, or even when the hearing began.
d) No, because opposing counsel was negligent in failing to research the issue, and if he had, he would
probably have discovered the case on his own.
315. Attorney hired Receptionist because of her good looks and because her brother was in Attorney’s
college fraternity, but he did not check into her background at all or ask for references. Receptionist
had access to all files, records, and accounts in the firm, and three months later, there arose a problem
with funds missing from client trust accounts. Circumstantial evidence pointed to Receptionist as the
culprit, and at this point Attorney learns that Receptionist has an arrest record for theft and
embezzlement on several occasions in the past. Attorney lectures Receptionist about it but allows her
to keep her job because nobody can prove her guilty - the firm does not keep the type of records that
would enable anyone to prove where the missing funds went. When additional complaints arise over
misappropriated client trust funds, would Attorney be subject to discipline?
a) Yes, because lawyers face strict liability (automatic responsibility) for misappropriations of client
trust funds.
b) Yes, because he was negligent in the hiring and supervision of nonlawyer employees.
c) No, because Attorney could not reasonably have known about the arrest record of someone merely
interviewing for a receptionist position, and there is still no way to prove that Receptionist actually
stole the money.
d) No, because Receptionist is not a lawyer and therefore not subject to the Rules of Professional
Conduct.
183
316. Attorney is a fifth-year associate at a large national law firm. As a senior associate, Attorney can
attend business meetings of the firm, but cannot vote on any decisions. Attorney is aware that the firm
has no measures in effect that would give reasonable assurance that the paralegals are observing the
confidentiality and conflict of interest rules that are part of the professional obligations of lawyers.
Attorney mistakenly believes, however, that the rules apply only to the lawyers in the firm, not to the
clerical staff of paralegals. When a paralegal in a separate practice group from Attorney violates the
rules and the state disciplinary authority investigates the firm’s ethical compliance measures, will
Attorney be subject to discipline?
a) Yes, because any attorney with enough seniority to attend firm business meetings with the partners
has shared responsibility to ensure that measures are in effect to keep the paralegals in compliance
with the rules.
b) No, because Attorney is not a partner nor in a comparable managerial position to implement such
measures, nor does it appear that the paralegal was under Attorney’s direct supervision
c) Yes, because Attorney is aware that the firm has no measures in effect that would give reasonable
assurance that the paralegals are observing the confidentiality and conflict of interest rules
d) No, because Attorney honestly believed that the Rules of Professional Conduct do not apply to the
paralegals, and therefore falls under the good-faith exception to the rule.
317. Attorney employs an experienced legal assistant to manage administrative matters in the firm,
including the client trust accounts. Attorney provided the legal assistant with detailed instructions about
client trust accounts, including the specific kinds of records to keep, what funds to deposit there, and
under what circumstances to withdraw funds. Attorney also sent the legal assistant to attend CLE
courses and workshops on IOLTA accounts and managing firm records. Due to the legal assistant’s
thorough training, competence, and experience, Attorney reviewed the client account books cursorily
once a year during the annual review of the employee. Eventually, an audit by the state disciplinary
authority revealed numerous discrepancies in the bookkeeping regarding the IOLTA accounts and some
prohibited commingling of client funds with the firm’s funds. Attorney had no actual knowledge of
the discrepancies or problems regarding the client trust accounts. Is Attorney subject to discipline?
a) Yes, because Attorney must manage all client trust accounts personally and cannot delegate such
matters to support staff at the firm.
b) Yes, because Attorney did not make reasonable efforts to ensure that the legal assistant’s conduct
was compatible with the professional obligations of a lawyer.
c) No, because Attorney made reasonable efforts to ensure that the legal assistant’s conduct was
compatible with the professional obligations of a lawyer by providing extensive training and
periodic reviews.
d) No, because Attorney lacked actual knowledge of the discrepancies, and the legal assistant is not
subject to the Rules of Professional Conduct.
RULE 5.4
318. Attorney was part of a partnership before he died. He left his nephew as his sole heir. The partnership
agreement, as written, provides that the firm should pay the certain amounts to the nephew. Those
amounts are $210,000, for Attorney’s share of the firm's assets; a $500,000 death benefit, provided for
all shareholders in the partnership; and $17,500 for fees that Attorney earned on recent cases, but had
184
not yet received. Under the Model Rules, which of the following represents the most that the firm may
properly pay to the decedent's nephew?
a) Only the $210,000 for Attorney’s share of the firm's assets.
b) $727,500, for Attorney’s share of the firm's assets, his of uncollected fees, and the death benefit
c) Only $17,500 for Attorney’s uncollected fees.
d) Only $500,000 for the death benefit, as death benefits come under a special exception under the
Rules of Professional Conduct.
319. Attorney practices personal injury law, representing plaintiffs on a contingent fee basis. The attorney
employs a paralegal to assist with preparing documents for litigation. The paralegal’s salary
arrangement is 10% of the firm’s total net revenue each year. In years when the attorney wins several
large cases, the paralegal receives higher wages, and in years when the attorney has no big wins, the
paralegal receives almost nothing. The paralegal does not bring clients to the firm, does not participate
in judgments about which clients to represent, or about how to handle the cases. Is the attorney subject
to discipline for this arrangement?
a) Yes, unless the paralegal has a law degree and is admitted in another state.
b) No, because nonlawyers may participate in a firm compensation plan based on overall profit
sharing.
c) Yes, because the paralegal here is engaged in unauthorized practice of law.
d) No, because the Rules treat paralegals the same as lawyers for purposes of sharing fees or profits.
320. The American Liberties Foundation, a tax-exempt 501(c)3 nonprofit corporation, hired Celebrity
Attorney to represent a class of defendants who want to eliminate federal decency standards that
prohibit frontal nudity and pornographic sex scenes on broadcast television, as promulgated and
enforced by the Federal Communications Commission. Celebrity Attorney prevailed in the case,
winning the class members the right to broadcast pornography to school-age children on broadcast
television in the afternoon. The court also awarded substantial attorney fees to the prevailing party in
the case. Celebrity Attorney shares the fees with the American Liberties Foundation, and gives 85%
of the fees to the nonprofit. Which of the following is true about this action by Celebrity Attorney?
a) The fee-sharing arrangement is improper because Celebrity Attorney gave most of the money to
the nonprofit, rather than splitting it evenly as the Rules require.
b) The fee-sharing arrangement with the nonprofit entity is proper.
c) The fee-sharing arrangement is improper because the Foundation is not a law firm or owned by
lawyers, so this action constitutes sharing legal fees with nonlawyers.
d) The fee-sharing arrangement would have been proper only if the Foundation collected all the fees
awarded by the court, and then paid Attorney a reasonable pro rata share based on the number of
hours worked and the customary lodestar rate in that state.
321. An attorney practices personal injury law, representing plaintiffs on a contingent fee basis. The
attorney employs a paralegal to assist with preparing documents for litigation. The paralegal’s salary
arrangement is 10% of the firm’s total net revenue each year. In years when the attorney wins several
large cases, the paralegal receives higher wages, and in years when the attorney has no big wins, the
paralegal receives almost nothing. The paralegal does not bring clients to the firm, but does participate
in judgments about which clients to represent, how to structure contingent fee arrangements, and how
much to seek in damages after a verdict, as these matters directly affect the paralegal’s income as well
as the attorney’s. Is the attorney subject to discipline for this arrangement?
a) Yes, unless the paralegal has a law degree and is admitted in another state.
b) No, because nonlawyers may participate in a firm compensation plan based on overall profit
sharing.
c) Yes, because a nonlawyer has a right to influence the professional judgment of the lawyer under
this arrangement.
185
d) No, because the Rules treat paralegals the same as lawyers for purposes of sharing fees or profits.
322. Attorney could not find a full-time job after law school, so instead he works on a contract basis for
other firms. Attorney also signs up with a legal temp-work agency, a company owned by nonlawyers
that places lawyers in temporary assignments at law firms that need an extra associate on a short-term
basis. Law firms contact the legal temp-work agency when they need lawyers for a special project or
assignment, and the agency sends them several resumes from which to choose the temporary associates
they want. Through this temp-work agency, Attorney receives a three-month assignment at Big Firm
conducting document review as part of litigation discovery. The firm pays Attorney $75 per hour, and
pays the temp-work agency a placement fee of 7% on whatever Attorney earns. Big Firm, in turn,
passes the Attorney’s $100/hour fees and the 7% placement fee through to its clients as an item on the
client’s bill. Is this arrangement proper?
a) It is proper for Big Firm to hire Attorney on an hourly, short-term contract basis and to pass his
fees through to the client, but it is improper for Big Firm to pay the temp-work agency a percentage,
as this constitutes sharing legal fees with the nonlawyers who own the temp-work agency.
b) It is proper for Big Firm to pay Attorney and the temp-work agency, but it is improper for Big Firm
to pass the costs through to their clients.
c) It is proper for Big Firm to pay the placement fee to the agency, to pass the fees through to the
clients, and to pay Attorney’s hourly rate out of the fees it receives from clients.
d) It is proper for Big Firm to pay a temp-work agency and to pass these costs through to the clients,
but it is improper for Attorney to work on a case on an hourly-fee basis without becoming an
associate at Big Firm.
[see ABA Formal Opinion 88-356]
323. After a long, distinguished career as a solo practitioner in a major city, an elderly attorney agrees to
join a newer law firm on the condition that the firm would pay $1000 per month after the attorney’s
death to his sister, who is 74 years old, until her death. The attorney’s sister is not a lawyer. The firm
agrees to this arrangement, in addition to making the attorney a partner with a 15% share in the firm.
Is this arrangement proper?
a) No, because the sister is not a lawyer and therefore cannot share in the legal fees received by the
firm.
b) No, because payments that continue until the sister’s death could go on indefinitely, and this goes
beyond the Model Rules’ stipulation of “a reasonable period of time.”
c) Yes, because it is the payment of money over a reasonable period of time after the lawyer’s death
to a specified person.
d) Yes, because the Contracts Clause of the Constitution guarantees the freedom of contract, so
lawyers and firms can make whatever compensation arrangements they want.
324. An attorney in a state that has adopted the Model Rules in their current form enters into a fee-sharing
agreement with a lawyer admitted in Washington, D.C., which permits fee-sharing with nonlawyers
and multidisciplinary practices. They collaborate on a case and divide the fees as agreed. The attorney
from the Model Rules state is aware that the other attorney will share his part of the fees with
nonlawyers in the Washington office; in fact, the Washington lawyer’s firm has accountants who hold
an ownership share in that firm. Is the non-Washington attorney subject to discipline for indirectly
sharing legal fees with nonlawyers, given that he practices in a state that forbids fee-sharing with
nonlawyers?
a) Yes, attorneys have a duty to uphold the rules in their own jurisdiction, and given that the attorney
knows that the other lawyer will share some of the fees with nonlawyers, he has violated the rule
in his own state.
b) Yes, but only because the lawyer had actual knowledge of the fee-sharing arrangement.
186
c) No, as long as the first attorney shares fees only with another attorney, it does not matter if the
other attorney shares fees with nonlawyers as permitted by his home jurisdiction.
d) No, because the rule in the attorney’s own state, prohibiting fee sharing with nonlawyers, is
unconstitutional, according to the Supreme Court.
Accord Formal Opinion 13-464, Division of Legal Fees With Other
Lawyers Who May Lawfully Share Fees With Nonlawyers (2013).
325. Attorney agrees to buy the successful law firm of a fellow attorney who recently succumbed to
terminal cancer. The sale includes the office building, the library and furnishings, and the good will of
the firm, and conforms to the provisions of Rule 1.7. The purchasing attorney pays $100,000, the
agreed-upon purchase price, to the executor of the deceased attorney’s estate, but the executor is not a
lawyer. The funds for the purchase came from the contingent fees in a recent personal injury case won
by the purchasing attorney. Was this transaction improper?
a) Yes, because the lawyer is sharing legal fees with a nonlawyer, the executor.
b) Yes, because the funds for the purchase came from a contingent-fee case.
c) No, because a lawyer purchasing the firm of a deceased lawyer may pay the executor the agreedupon purchase price.
d) No, because even a nonlawyer executor of a firm functions temporarily in the role of a lawyer for
purposes of the Model Rules.
326. Attorney hires a nationally known internet-marketing specialist, a tech guru, to help develop the firm’s
reputation and attract new clients. The internet specialist has made millions on previous tech startups,
while Attorney is relatively unknown and has been practicing for only two years. The tech guru
demands certain terms in the contract that require Attorney to confer with the tech guru about accepting
clients that were former clients of the tech guru, in order to avoid conflicts of interest. Attorney must
also clear any litigation positions, approaches, or strategies that pertain to intellectual property or
internet marketing liability with the tech guru, to avoid positions that would jeopardize the guru’s other
business. Is Attorney subject to discipline for this arrangement?
a) No, because Attorney is merely hiring an advertising specialist and can pay normal rates for such
services.
b) No, because the contract merely reflects the lawyer’s duty under the Model Rules to avoid conflicts
of interest between current clients.
c) Yes, because a nonlawyer has a contractual right to direct or control the professional judgment of
the lawyer.
d) Yes, because Attorney is advertising online, which means internet users in other states can see the
firm’s advertisements and offers of representation, even though the Attorney does not have a license
to practice in most of those jurisdictions.
327. Three law partners have decided to incorporate their firm instead of continuing as a partnership, as
their malpractice insurer has offered them a lower rate on their premiums if their incorporate and
thereby reduce some of their joint liability. They also want to make a clearer track for associates to
become shareholders after reaching certain performance benchmarks. The articles of incorporation
provide that when a shareholder dies, a fiduciary representative of the estate may hold stock in the
corporation for a reasonable time during administration of the estate before transferring it to the heirs.
Which of the following may the partners properly do as they incorporate?
a) They may incorporate their law practice and convey an interest in the corporation to their heirs,
such as spouses or children.
b) They may stipulate that the corporation will hold all funds in a single operating account, and thereby
avoid holding client funds in separate IOLTA accounts.
187
c) They may provide, as stated, that when a shareholder dies, a fiduciary representative of the estate
may hold stock in the corporation for a reasonable time during administration of the estate before
cashing out the shares and transferring the funds to the heirs.
d) They may not have a plan whereby associates acquire shares merely by working at the firm for a
certain number of years and bringing in a certain number of clients.
Rule 5.4(d)(1)
328. Holy Trinity Church retains Attorney to challenge a new zoning regulation that would prohibit the
church from constructing a new, expanded sanctuary on its property, attached to the existing church.
The church cannot afford to pay Attorney, and it is seeking only a declaratory judgment (that the
regulation is invalid) rather than money damages. Attorney agrees to take the case and then split any
court-awarded legal fees with the church if they prevail. They win a favorable judgment; the court
declares the regulation unconstitutional and awards legal fees, which Attorney shares with the church.
Is the fee sharing proper?
a) No, because a lawyer or law firm shall not share legal fees with a nonlawyer.
b) No, because the award of legal fees to a church violates the separation of church and state, and a
lawyer is under oath to uphold the Constitution.
c) Yes, because a lawyer may share court-awarded legal fees with a nonprofit organization that retains
the lawyer in a matter.
d) Yes, as long as the lawyer takes only 30% of the legal fees, and does not claim a tax deduction for
the 70% shared with the church.
RULE 5.5
329. Attorney is a licensed lawyer in a New England state, but has an office and represents clients
exclusively in a southern state. Attorney confines her practice to immigration law, representing foreignborn clients in immigration hearings. A relevant federal statute permits nonlawyers to appear as
representatives for immigrants when they appear before the immigration agency. Many of Attorney’s
clients have applied for a spousal visa after marrying an American citizen, and some clients had a
Notary Public from their home country or an un-ordained lay minister from their home church conduct
their wedding ceremony. In addition, some were previously married and divorced in their home
country, where such transactions are informal and have no official documentation. There is often some
question about whether the marriage is valid under local state law, which is a prerequisite for obtaining
certain types of visas. Which of the following is correct?
a) Attorney’s conduct is proper, because she is merely providing services authorized by federal law,
which preempts state licensing requirements.
b) Attorney’s conduct is proper because she has specialized in immigration law, which is entirely
federal and involves no questions of state law.
c) Attorney is probably subject to discipline for the unauthorized practice of law in this southern state.
d) Attorney’s conduct is improper if she does not file a pro hac vice appearance in each case.
330. A husband and wife are both attorneys in Puerto Rico, though they attended law school in Florida.
They have practiced in Puerto Rico for ten years and are duly admitted to the bar there. Last year, they
moved to Florida, where the wife took the state bar exam and gained admission to the Florida bar. They
have now opened a law office in Florida with both of their names listed on the firm letterhead, followed
by the phrase “Attorneys at Law.” The husband confines his practice exclusively to Puerto Rican clients
who are living in Florida or are visiting there; the wife handles all other legal matters. It is proper for
them to use such letterhead?
a) Yes, because Puerto Ricans are U.S. Citizens, and they both attended an American law school.
b) Yes, because the husband confines his practice to Puerto Rican immigrants and visitors, whom he
would be able to represent if they were back in Puerto Rico.
188
c) No, because the letterhead reveals that the wife is aiding her husband in the unauthorized practice
of law.
d) No, because identifying themselves as law firm partners is misleading, and does not apprise readers
to the fact that they are actually married.
331. Attorney has a firm in a state in which Attorney lacks a license to practice law. Attorney’s legal work,
however, consists entirely of representing local inventors before the United States Patent and
Trademark Office in Washington, DC, either by correspondence or by travelling to appear there in
patent proceedings. A relevant federal statute states that nonlawyers may represent patent applicants
before the USPTO. Attorney does no other legal work for clients – if clients need representation for
family law matters, employment matters, incorporating businesses, or personal injury suits, Attorney
refers them to outside counsel. All of Attorney’s clients, however, are located in the state where the
firm has its office, and Attorney is unlicensed there. Is Attorney subject to discipline?
a) Yes, because Attorney is regularly engaged in the unauthorized practice of law in that state.
b) Yes, because all of the clients reside in a state where the Attorney is unlicensed.
c) No, because Attorney has specialized in a single area of law, and refers all other matters to outside
counsel.
d) No, because Attorney is providing services authorized by federal law, which preempts state
licensing requirements.
332. Attorney has a license to practice in the state in which his firm operates. He hires as an associate a
law school friend who does not have a license in the state, but holds a license to practice in a neighboring
state with similar laws and precedents. Attorney gives the associate attorney only simple cases that
require mostly scrivener’s work (paperwork) for the clients, but he allows the associate to interview
clients and to prepare and file client forms and paperwork. About once a week, Attorney checks with
the associate and asks how his work is going, and the associate always says everything is fine, and
occasionally asks questions about local laws or rules. Any clients whose matters seem to require actual
litigation go to Attorney; the associate handles only non-litigation forms and filings for clients. Is
Attorney subject to discipline for this arrangement?
a) No, because the associate handles only non-litigation matters like forms and filings for the clients.
b) No, because the associate is a duly licensed attorney in a neighboring state with similar laws.
c) Yes, because it is inappropriate for an attorney to hire a friend from law school as an associate,
rather than interviewing and hiring the most qualified available candidate.
d) Yes, because he is assisting another person in the unlicensed practice of law in his jurisdiction.
333. A nonlawyer social worker contacts Attorney asking for advice about how to help poor tenants in the
neighborhood in disputes with landlords over housing code violations and unreturned security deposits.
The social worker also needs guidance about how to appeal an adverse decision from a welfare agency
against one of her constituents. Attorney provides extensive advice on specific procedures the tenants
can follow to have a court hold their rent in escrow until the landlords remedy the housing code
violations, and explains how to file claims for unreturned security deposits plus treble damages.
Attorney does none of the legal work, but explains to the social worker exactly what to do, and is
available to answer follow-up questions by the social worker about how to complete the relevant legal
forms and documents. Attorney coaches the social worker on how to represent her constituent at an
administrative hearing as a nonlawyer representative. The landlord even meets with one of the social
worker’s constituents and explains how to proceed as a pro se defendant against a landlord in an eviction
action. Several landlords trace the chain of excellent advice back to Attorney and file a grievance with
the state bar, accusing Attorney of assisting others (especially the social worker) in practicing law
without a license. Is Attorney subject to discipline?
a) No, because none of the actions Attorney advised are sufficiently law-related.
189
b) Yes, because all the actions Attorney advised were essentially the practice of law by nonlawyers.
c) Attorney is not subject to discipline for advising the social worker, but he is subject to discipline
for actually meeting with a pro se defendant and giving legal advice about how to handle her own
case.
d) No, because lawyers may provide professional advice and instruction to nonlawyers whose
employment requires knowledge of the law, including social workers.
334. Attorney obtained a license to practice law in the state where she attended law school. After a few
years, Attorney took a job in a neighboring state, moved there, and obtained a license to practice law
in her new state. She kept her original license, in her former state, but went on inactive status there in
order to avoid the burdensome annual bar membership fees in a state where she no longer practiced.
Eventually, her new firm loses its anchor clients and recommends that Attorney drum up some new
business among her former clients. Attorney sends letters to all of her former clients in her former
state, offering to represent them in any new legal matters they have, or in updating wills or contracts
that she previously did for them. She travels about once per week to her home state and meets with
clients in a library study room at the law school she attended. A few of her former clients refer her to
friends or relatives who become new clients, and Attorney’s new employer is thrilled. Which of the
following is true?
a) Attorney is subject to discipline for practicing law in her home state while on inactive status, but
her supervising lawyer is not subject to discipline because she was admitted in that state at the time
he hired her.
b) Neither Attorney nor her supervising lawyer would be subject to discipline, because she merely
went on inactive status in the other state, but she still holds her license there.
c) Only the supervising lawyer is subject to discipline, because he encouraged his subordinate to
solicit out-of-state clients in a state where he is unlicensed, but Attorney can still practice law there.
d) Both Attorney and her supervising lawyer are subject to discipline because she is on inactive status
in her home state, but is soliciting clients and handling their matters there regularly.
335. In anticipation of a hearing before a federal agency in Washington, D.C., Attorney travels to a
Washington suburb in Virginia from her own state to meet with her client (from her home state),
interview witnesses, and review relevant documents. Attorney makes weekly trips there over the course
of a year, and spends most of her workweek there each time (four or five days), as the agency hearing
pertains to a complex antitrust matter. Attorney solicits no new clients there, but works only on the
matter for a client from her home state, but is nonetheless unlicensed in Virginia. Is Attorney’s conduct
proper?
a) Yes, the rules pertaining to unauthorized practice of law do not apply to any federal agency
hearings.
b) No, because her activity there continued for a full year, and therefore is not “temporary,” so she is
engaged in the unauthorized practice of law.
c) No, because she is spending more time there than in her home state where she holds a license,
despite this being a temporary arrangement.
d) Yes, because a lawyer rendering services in a foreign jurisdiction on a temporary basis does not
violate the Rules merely by engaging in conduct in anticipation of a proceeding or hearing in a
jurisdiction in which the lawyer is authorized to practice law.
336. Client retains Attorney, who has represented Client in the past, to represent him in litigation in another
state, where Attorney is unlicensed. The matter requires some knowledge of the law of the state where
the trial will occur. Attorney files a pro hac vice appearance in the matter, which the local court accepts,
190
and begins preparing for trial there. Attorney and Client never discuss the particulars of filing a pro
hac vice appearance; nor did they discuss why it would be necessary. Client never asked if Attorney
could practice law in the other jurisdiction, and Attorney never explained the licensing requirement and
that he would need permission from the court there in order to handle the case. Attorney prevailed in
the matter on behalf of the client, kept his agreed-upon contingent fee, and gave the client the remaining
proceeds and unused retainer funds. Which of the following is true?
a) Attorney is subject to discipline for accepting a contingent fee in a proceeding in another state
where Attorney does not have a license to practice law.
b) Attorney’s conduct was proper, as the court accepted the pro hac vice appearance, and it made no
difference to the Client whether the Attorney had a license to practice there on an ongoing basis,
or could appear only on a pro hac vice basis.
c) Attorney’s conduct was proper, as long as Attorney can acquire the necessary knowledge of local
laws with a reasonable amount of study.
d) It was improper for Attorney to fail to disclose to Client that he was unlicensed in the other state
and would need to file a pro hac vice appearance, especially given that the matter required some
knowledge of local laws.
337. Attorney is a joint-owner of a collection agency. Whenever the agency’s initial efforts to collect prove
unsuccessful, the staff at the agency sends the delinquent debtor a demand letter on Attorney’s law firm
letterhead, threatening to commence litigation if the matter is not resolved within 30 days. Attorney
authorized the staff at the agency to send these demand letters, but Attorney is too busy to review all
the letters himself. The collection agency staff signs the letters on behalf of Attorney’s firm. Will
Attorney be subject to discipline for authorizing these letters?
a) Yes, because the letter contains a specific threat of litigation and the facts do not specify whether
Attorney will actually follow through and file any claims in court.
b) No, because the collection agency has other owners besides Attorney, so it is not necessarily his
responsibility to supervise the employees there.
c) No, because the staff at the collection agency are acting on Attorney’s behalf with his explicit
authorization
d) Yes, because Attorney is essentially facilitating the collection agency in the unauthorized practice
of law.
338. Attorney hired a second-year law student as a clerk. The law student is not licensed. Attorney has the
law student perform a variety of tasks. Which of the following tasks, if performed by the law student,
would mean that Attorney is subject to discipline?
a) Conducting online legal research and writing research memoranda.
b) Drafting a customized retainer agreement for Attorney to use with clients pursuing claims against
a government agency
c) Interviewing accident witnesses and potential character witnesses, and asking them to certify the
accuracy of the student's written notes.
d) Reaching settlement agreements with insurance companies before Attorney actually files any
lawsuit in the matter.
Rule 5.5(b) & Cmt 2
339. Attorney hires three new associates upon graduation from law school in a neighboring state. The
associates passed the bar in the neighboring state, but are yet unlicensed in Attorney’s state. The
associates confine their work to conducting research, reviewing documents, and attending meetings
with witnesses in support of Attorney, who is responsible for all the litigation. The research done by
191
the associates, however, is far beyond the capabilities of a paralegal or law student associate. Is
Attorney subject to discipline for this arrangement?
a) Yes, because Attorney has facilitated the unauthorized practice of law by the associates.
b) No, because the associates are licensed in a neighboring state, which presumably has similar laws
and precedents.
c) Yes, because Attorney is relying on research done by lawyers unlicensed in that jurisdiction.
d) No, because the subordinate lawyers merely conduct delegated work under Attorney’s supervision,
for which Attorney is ultimately responsible.
RULE 5.6
340. Attorney is a notorious personal injury lawyer, widely feared by defendant corporations and insurers
who must defend claims. Attorney reaches one exceptionally favorable settlement for his client, a
structured settlement paying several hundred million dollars over the period of five years. The
defendant has lost cases to Attorney on several occasions, and wants to avoid dealing with him in the
future. The defendant demands, as a condition of settlement, that Attorney will not represent any other
clients in the future in tort actions related to this defendant or even to similar businesses in that
jurisdiction. Attorney’s contingent fee will be large enough for him to retire comfortably to a private
tropical island and never need to work again, so he is amenable to this condition of the settlement. Is
Attorney subject to discipline for this agreement?
a) No, because the Attorney is in a position to retire, so this is more like selling a practice to the
opposing party than restricting a lawyer’s ability to continue practicing law.
b) No, because the condition is part of a settlement in a case where the lawyer is receiving a contingent
fee, so this is not a genuine restriction on the right to practice law.
c) Yes, because it is improper to have a settlement agreement that structures payments over such a
long period.
d) Yes, the agreement violates the Rules, but Attorney probably does not care about being subject to
discipline if he plans to leave the practice of law.
341. Attorney wants to retire from practice due to a chronic illness, and decides to sell his practice to another
lawyer. The sale agreement complies with the Model Rules regarding the sale of a law practice. As
part of the sale agreement, however, Attorney stipulates that he will not resume the practice of law in
that jurisdiction, even if medical breakthroughs cure his chronic illness and restore him to perfect
health. The purchaser of the firm is aware that research for a cure of Attorney’s illness is well
underway, and is concerned because it is foreseeable that Attorney would recover and want to return to
the practice of law in a few years. Is it proper for Attorney and his buyer to include this provision of
the sales agreement for the law firm?
a) Yes, because the rule against restrictions on the right to practice does not apply to the sale of a law
practice.
b) No, because a lawyer shall not participate in offering or making an agreement that restricts the right
of a lawyer to practice.
c) No, because a lawyer shall not participate in offering or making an agreement in which a restriction
on the lawyer’s right to practice is part of the settlement.
d) Yes, because the Contracts Clause of the U.S. Constitution would prohibit a state from restricting
the right for a lawyer to include certain contract provisions in a sale agreement.
342. Attorney is 60 years old and owns his own firm. He hires New Partner, a younger lawyer, to help
manage the growing caseload. The partnership agreement provides that after Attorney retires, at age
192
65, the firm will pay him $5000 per month as a benefit as long as Attorney does not re-enter law practice
anywhere. Which of the following is true regarding this partnership agreement?
a) The agreement is unenforceable, according to the Rules of Professional Conduct.
b) The agreement is proper, according to the Rules of Professional Conduct.
c) Attorney is subject to discipline for creating this partnership agreement, in which he agrees never
to practice law again as a condition of receiving a retirement benefit.
d) New Partner is subject to discipline for entering into this type of partnership agreement, which
restrains Attorney from practicing law.
343. Attorney owns his own firm in a small town, and hires Associate as a junior lawyer to help with the
growing caseload. The employment agreement stipulates that Associate cannot practice law in that
small town after leaving Attorney’s firm. Which of the following is true regarding this arrangement?
a) Neither Attorney nor Associate are subject to discipline for such an agreement.
b) Attorney is subject to discipline for requiring this as a condition of employment, but Associate is
not subject to discipline because his employer imposed the condition upon him.
c) Both Attorney and Associate are subject to discipline for such an agreement.
d) Associate is subject to discipline for accepting employment in a firm under such a condition, but
Attorney is not subject to discipline, because Associate is the one who will have to execute the
provision after leaving the firm.
344. Attorney agrees to join a new firm as one of its shareholders, and to merge his practice with that of the
new firm. The shareholder agreement includes a provision that if Attorney retires from the firm and
begins collecting the firm’s retirement benefits, he cannot practice law with another firm, government
entity, or as a solo practitioner. Otherwise, the agreement stipulates, Attorney will forfeit the retirement
benefits. The firm is concerned that Attorney will want to represent clients occasionally in his
retirement, and may steal some clients from the firm. Is this agreement proper?
a) No, because prohibiting a lawyer from practicing after retiring from the firm is a restriction on the
right of the lawyer to practice, in violation of the Model Rules.
b) No, because it is motivated by a desire to keep Attorney from “poaching” clients, and thus limits
the freedom of clients to choose a lawyer.
c) Yes, because the Contracts Clause of the U.S. Constitution would prohibit a state from restricting
the right for a lawyer to include certain contract provisions in a sale agreement.
d) Yes, because the rule against restrictions on the right to practice have an exception for agreements
concerning benefits upon retirement.
193
RULE 5.7
345. Attorney specializes in estate planning. Besides being a lawyer, she is a certified public accountant.
One of her clients hires her to prepare a will and handle the planning for a complex estate, which will
involve creating two charitable trusts and other maneuvers for avoiding hefty estate taxes. The estate
planning in this case involves some transfers to create the trusts in the current calendar year, which will
be reportable on the current year tax returns. Client asks Attorney to prepare her tax returns for the
current year, given that Attorney is handling all the estate planning, and already has all the
documentation about the finances and assets of Client. Attorney agrees to prepare the returns as a
C.P.A., and creates a separate retainer agreement with the client for the preparation of the tax returns,
one that complies with all IRS requirements for tax preparers, and that stipulates this retainer shall be
for accounting work, not legal services. Five years later, Client runs for Congress, and during a
contentious campaign, a reporter asks Attorney how much Client paid in taxes in the year that Attorney
prepared the tax returns. Attorney answers the question in detail. Client complains that this constitutes
a breach of lawyer confidentiality, but Attorney defends her actions by explaining that the amount of
taxes paid that year was information derived solely from her work as a C.P.A., under a separate retainer
with due disclosures, and not as a lawyer. Who is correct here – Client, or Attorney?
a) Client is correct because the circumstances were such that the non-legal accounting services were
not distinct from the legal services Attorney was providing at the time.
b) Client is correct because lawyers have a duty of confidentiality toward clients even for information
acquired outside the legal representation of the client.
c) Attorney is correct because Client is obviously a sophisticated individual with a complex estate, as
long as the separate retainer provided adequate disclosure that the Rules of Professional Conduct
for Lawyers would not apply to the preparation of the tax returns.
d) Attorney is correct because candidates have a duty to disclose how much they pay in taxes.
346. Attorney practices corporate securities law in a Wall Street firm. Attorney is also one of three owners
of a financial forecasting consulting firm, Trends Tomorrow, which employs several well-known
economists and financial analysts. Attorney refers clients to this firm when they need consultants to
advise them about the timing of new stock offerings, projections for share price and profit forecasts,
and so on. Attorney duly discloses to clients before referring them that she is a part owner of the
consulting firm and that they are free to shop around and hire other consultants if they prefer; she also
explains that the Trends Tomorrow is not a law firm and provides only financial forecasting services.
Trends Tomorrow is located in the building next door to Attorney’s Wall Street firm, and when clients
go there, Trends Tomorrow explains as part of their service contract that they provide no legal services.
Eventually, complaints emerge that Trends Tomorrow has been leaking confidential client information
to the press, and that the consulting firm appears to have conflicts of interest, advising competing clients
about strategies to encroach on each others’ market share. Attorney faces disciplinary charges for these
violations, but Attorney claims that the complaining clients need to show that the disclosures provided
were inadequate to apprise them of the fact that the Rules of Professional Conduct for lawyers would
not apply to Trends Tomorrow. Who has the burden of proof on this issue?
a) Clients have the burden of proof to show that the lawyer failed to take reasonable measures to
ensure that clients had adequate information about the inapplicability of the Rules of Professional
Conduct.
b) Attorney has the burden of proof to show that the lawyer has taken reasonable measures under the
circumstances to communicate the desired understanding.
c) The burden is on the disciplinary authority to show that the lawyer failed to take reasonable
measures to ensure that clients had adequate information about the inapplicability of the Rules of
Professional Conduct.
194
d) The burden is on the press to show that the lawyer failed to take reasonable measures to ensure that
clients had adequate information about the inapplicability of the Rules of Professional Conduct.
347. Which of the following is one of the listed “law-related services” found in the official Comment to
Rule 5.7, related to lawyers providing such services?
a) Photocopying the transcripts of depositions and hearings
b) Preparing a client to testify before a government agency
c) Environmental consulting
d) Providing clients with a complete accounting of the use of retainer funds during the course of
representation
348. Which of the following is NOT in the list of “law-related services” found in the official Comment to
Rule 5.7, related to lawyers providing such services?
a) Economic analysis
b) Social work
c) Psychological counseling
d) Photocopying the transcripts of depositions and hearings
349. Attorney has expertise in launching new businesses. His undergraduate major was entrepreneurship,
and he has numerous connections among investment bankers, and venture capitalists in the area.
Entrepreneurs seek him out to incorporate their new businesses and help them find loans and equity
investors for startup. Attorney drafts articles of incorporation and bylaws, handles name registration
with the Secretary of State, and arranges meetings with local commercial bankers and potential
investors, and helps write business plans and market analysis in anticipation of these meetings. Which
of the following is true regarding Attorney’s activities?
a) Both the legal services (incorporating) and the law-related related services (writing business plans
and arranging investor meetings) would be subject to the requirements of the Rules of Professional
Conduct.
b) It is improper for Attorney to provide both the legal services and the law-related services.
c) The legal services (incorporating) would be subject to the requirements of the Rules of Professional
Conduct, but the law-related related services (writing business plans and arranging investor
meetings) are not subject to the Rules.
d) Only the law-related related services (writing business plans and arranging investor meetings would
be subject to the requirements of the Rules of Professional Conduct, and not the legal services
(incorporating).
350. Attorney practices commercial real estate law in the state capitol, but also provides legislative lobbying
services for some clients, especially for firms seeking lucrative government contracts. For example,
working on a retainer, Attorney successfully lobbied his state legislature to privatize most of its prison
system, and to give his client the contract to operate the private prisons. His client continues to pay the
retainer and Attorney continues to lobby for longer statutory minimum sentences for crimes, so that the
private prisons remain full. Attorney uses a separate retainer agreement for lobbying work, which
specifies that he is not representing the client as their lawyer, but only as a lobbyist, and is not providing
legal advice or legal services under their agreement. Meanwhile, one of attorney’s other clients faces
charges of securities fraud and hires Attorney to handle his appeal, which includes arguing that the
mandatory minimum sentences are unconstitutional. The criminal defendant signs a written waiver of
the potential conflict of interest the Attorney has over the mandatory sentencing issue, but the Attorney
195
fails to obtain a similar waiver from the private prison client on whose behalf he lobbied for the
mandatory sentencing laws. If Attorney is successful in having mandatory sentencing laws declared
unconstitutional on behalf of his criminal client, will he be subject to discipline for the conflict of
interest with his lobbying client?
a) No, because lobbying is a law-related service that a nonlawyer could do, and is distinct from the
lawyer’s legal services, according to the retainer, so the conflict of interest rules do not apply.
b) Yes, because he lobbied for people to suffer longer periods of incarceration merely to help his
corporate clients earn more profits, which is unconscionable.
c) Yes, because the fact that his legal client signed a waiver of the conflict of interest means that a
reciprocal waiver was necessary from the lobbying client.
d) No, because lobbying the legislature receives special constitutional protection due to its integral
part in a functioning democracy.
.
196
ANSWER KEY – RULES 5.1-5.7
301.
302.
303.
304.
305.
306.
307.
308.
309.
310.
311.
312.
313.
314.
315.
316.
317.
a
a
a
a
a
a
a
a
a
a
b
b
b
b
b
b
b
318.
319.
320.
321.
322.
323.
324.
325.
326.
327.
328.
329.
330.
331.
332.
333.
334.
b
b
b
c
c
c
c
c
c
c
c
c
c
d
d
d
d
197
335.
336.
337.
338.
339.
340.
341.
342.
343.
344.
345.
346.
347.
348.
349.
350.
d
d
d
d
d
d
a
b
c
d
a
b
c
d
a
a
Questions on Rules 8.1-8.5
Maintaining the Integrity of the Profession
Rule
Rule
Rule
Rule
Rule
8.1
8.2
8.3
8.4
8.5
Rule 8.1
Bar Admission and Disciplinary Matters
Judicial and Legal Officials
Reporting Professional Misconduct
Misconduct
Disciplinary Authority; Choice of Law
Bar Admission and Disciplinary Matters
351. A recent law school graduate has applied for admission to the bar in her home jurisdiction.
The application forms ask applicants to list all arrests and convictions for misdemeanors or
felonies. The graduate had two minor convictions for underage drinking or possession of
alcohol when she was in high school, eight years earlier, and her attorney told her at the time
that the state would expunge her records when she turned 18, meaning she would never have
to report the convictions. In addition, she had one arrest in college where a shop owner
mistakenly thought she was a shoplifter who had visited the store the day before, but the district
attorney had not pressed charges once it became obvious that this was a case of
misidentification. On her bar application, the applicant did not report the convictions from
high school or the arrest from college, because she thought the earlier convictions were no
longer on her record, and she had cleared herself of all wrongdoing after the arrest, resulting
in dropped charges. Nevertheless, the state bar discovered the convictions and arrest during
its comprehensive criminal background check, which it conducts for all applicants. The state
bar admissions board denied her application, and filed a grievance against the applicant for
making a false statement on her application. Did the applicant violate the Model Rules of
Professional Conduct in this case?
a) Yes, because she knowingly made a false statement of material fact on her application for
admission to the state bar.
b) Yes, but only regarding the convictions from high school, as the arrest was clearly a case
of misidentification that did not result in formal criminal charges.
c) No, because the applicant is not yet a lawyer, and the ethical rules governing lawyers did
not yet apply to her during the application stage.
d) No, because the earlier convictions occurred when she was a minor, and the state promised
to expunge her records, and the arrest during college did not result in formal criminal
charges.
352. An attorney agreed to write a recommendation letter for admission to the bar on behalf of the
law student who had worked for him part-time throughout law school. The student had
behaved appropriately, and in compliance with the ethical rules for lawyers and law firms, at
all times during her employment. On one occasion, the student intern had confided in the
attorney that she had faced academic discipline for plagiarism on a law school seminar paper,
and that she was very ashamed of herself about the incident and had accepted a failing grade
in the class. She took an overload of courses the following semester to make up for the lost
credits from the course she failed. The attorney did not mention this incident at all in his
“character and fitness” recommendation to the state bar, because he felt it was out of character
and did not represent the way the student normally behaved at the workplace. He also assumed
the student would report it herself or that the bar would inquire about the failing grade on her
198
law school transcript. The bar admissions board eventually learned about the incident only
from the law school administration, which turned over the student’s disciplinary records.
Could the attorney who wrote the favorable recommendation be subject to discipline for filing
to mention or address the incident?
a) Yes, because the attorney had a conflict of interest in the situation, as it would be in his
best interest for his own employee to gain admission to the bar.
b) Yes, because he did not disclose a fact necessary to correct a misapprehension known by
the person to have arisen in the matter in connection with an admission to the state bar.
c) No, because the attorney had no duty to report the incident, given that the bar could easily
discover it from another source (as it did), and because the attorney reasonably believed
the incident did not reflect the true character of the applicant.
d) No, because the student intern had told him about the incident in confidence, and it was
not related to her work at the firm, so the attorney had a duty of confidentiality under Rule
1.6.
353. An attorney faced a grievance over a client complaint regarding his neglect of the client’s
matter. The attorney knew that he had never actually agreed to represent the client, but instead
had met with the client once, determined that he had a conflict of interest, and he had refused
to represent the potential client by both oral and written communication. The client failed to
hire another lawyer, and mistakenly (unreasonably) believed that the attorney she had met with
was, in fact, representing her. Because he knew the case was without merit, he did not respond
to the state bar when the disciplinary authorities requested a formal response from him.
Ultimately, the client withdrew her complaint and the disciplinary authorities dismissed the
grievance as frivolous. The board then commenced disciplinary proceedings against the
attorney for failing to respond to its requests in the case it had dismissed. Was the attorney’s
refusal to respond permissible in this case?
a) Yes, because he knew the case was without merit as he had never agreed to represent the
complainant, and the board’s determination vindicated him in this regard.
b) Yes, because it was improper for the board to commence new proceedings that it based on
prior proceedings that it had dismissed for being without merit.
c) No, every lawyer has the right to refuse to answer, according to the Fifth Amendment.
d) No, because in connection with a disciplinary matter, a lawyer must not knowingly fail to
respond to a lawful demand for information from an admissions or disciplinary authority.
Rule 8.1(b)
354. An attorney agreed to represent an applicant to the state bar – a recent law school graduate –
in her hearing before the state bar admissions board, which had tentatively denied her
application for making false statements on her bar application. The board formally requests
the applicant and her attorney make full disclosures about the events in question to help resolve
the matter. The client (bar applicant) explains the entire situation to her attorney, including
some self-incriminatory information – it turned out that the applicant’s misbehavior had been
much more serious than the board was aware. The attorney did not disclose this new
information, which would have made it much clearer to the board that the applicant lacked the
character and fitness to practice law. Could the attorney be subject to discipline for this action?
199
a) Yes, because a lawyer in connection with a bar admission application or in connection with
a disciplinary matter, shall not fail to disclose a fact necessary to correct a misapprehension
known by the person to have arisen in the matter, or knowingly fail to respond to a lawful
demand for information from an admissions or disciplinary authority.
b) Yes, because the lawyer knows that the applicant actually lacks the requisite integrity to be
a lawyer.
c) No, because a lawyer representing an applicant for admission to the bar, or representing a
lawyer who is the subject of a disciplinary inquiry or proceeding, is governed by the rules
applicable to the client-lawyer relationship, including the duty of confidentiality.
d) No, because the state bar cannot ask other attorneys to disclose unfavorable information
about third party applicants.
Rule 8.1 Cmt. 3
355. An attorney obtained admission to the bar in New York and practiced there for two years.
She worked for Big Firm, which has offices in five states and a few locations overseas. After
her two years in the New York office, the firm transferred her to its office in San Diego,
California. The attorney then applied for admission to the California bar under a reciprocity
arrangement, and the state bar admitted her without making her re-take the bar exam. After
practicing in California for three years, somehow the New York state bar learned that the
attorney had made false statements on her original bar application about misdemeanor arrests
during college. The New York bar informed the California state disciplinary authority about
this problem, and the California state bar commenced disciplinary proceedings against the
attorney in California. Can the attorney be subject to discipline in California for false
statements made on a bar application in another state?
a) Yes, because the states depend on each other to help enforce their own attorney disciplinary
rules, and California therefore has a legal duty to enforce disciplinary rules from New
York.
b) Yes, because if a person makes a material false statement in connection with an application
for admission, it may be relevant in a subsequent admission application.
c) No, because the alleged misconduct occurred on a bar application in a non-contiguous state,
so California has no jurisdiction over the matter.
d) No, because the fact that the attorney has now practiced for five years means that the
estoppel doctrine prevents a state bar from revisiting her original bar application.
Rule 8.1 Cmt. 1
356. An attorney has been practicing for five years, but on her application to the bar five years
earlier, she had stated that she had attended a particular private high school, when in fact she
had attended a public high school. An unhappy client recently filed a grievance against the
attorney, which was frivolous, but the state disciplinary authority had to conduct a routine,
preliminary inquiry into the matter in order to make a determination that the complaint merited
dismissal. The disciplinary board member assigned to the case had attended the elite private
high school from which the attorney claimed to have graduated, and made a mental note of the
attorney’s high school when he did a cursory review of her bar admission files. He thought it
200
was strange that he had never seen or heard her name at any alumni or reunion functions, as
they had supposedly graduated the same year and the classes were small. On a hunch, the
board member checked the alumni lists for the school and discovered that the attorney had lied
on her application to the bar five years earlier. When asked about this issue, the attorney said
she could not be subject to discipline now for the misstatement she made several years ago,
and that the board lacked jurisdiction because it was unrelated to the current grievance
complaint. Is she correct?
a) Yes, because she has been practicing now for five years and has demonstrated her character
and fitness to practice law, making the application queries moot.
b) Yes, because it was improper for the board member to conduct a self-initiated investigation
into her high school attendance merely because he had graduated from the same high
school that the attorney listed on her original bar application.
c) No, because the fact that she lied about her high school makes it likely that the current
client complaint has merit as well.
d) No, because if a person makes a material false statement in connection with an application
for admission, it may be the basis for subsequent disciplinary action if the person is
admitted.
Rule 8.1 Cmt. 1
357. An attorney faced a disciplinary action over accusations that she had neglected a client matter
and had failed to communicate adequately with the client. The state disciplinary authority
requested a written account of her version of what happened, and asked her ten or twelve
probing questions during the hearing. At the conclusion of the hearing, the disciplinary
tribunal decided that the client complaint was without merit and cleared the attorney of all
charges in that regard. At the same time, it also concluded that the attorney had answered one
question during the hearing untruthfully, and had made a minor misrepresentation regarding
dates in her written statement to the board. The tribunal therefore filed a separate grievance
against the attorney for these misrepresentations. Could the attorney be subject to discipline
for incidental misrepresentations to the grievance committee if the same committee had
decided that the underlying case had no merit and issued a dismissal?
a) Yes, because it is a separate professional offense for a lawyer to knowingly make a
misrepresentation or omission in connection with a disciplinary investigation of the
lawyer's own conduct.
b) Yes, because her the dismissal of the original complaint may have been in reliance upon
some of her false statements, making it seem that the original complaint was probably valid
as well.
c) No, because the board lacks jurisdiction to commence disciplinary proceedings when there
is not a client complaint pending.
d) No, because the misstatements were part of a proceeding that has ended in a complete
dismissal.
Rule 8.1 Cmt. 1
358. An attorney faced disciplinary action over a client grievance. The disciplinary tribunal asked
the attorney several probing questions about her handling of client funds. The attorney actually
used some client funds to pay off a gambling debt, so she is less worried about a temporary
201
suspension of her law license than about potential criminal charges for embezzlement. The
attorney, therefore, invokes her Fifth Amendment privilege against self-incrimination and
refuses to answer the questions. The disciplinary tribunal then determines that it lacks
substantial evidence that the attorney mishandled client funds, but commences disciplinary
proceedings over the attorney’s refusal to answer some of its questions. Could the attorney be
subject to discipline for refusing to answer the questions in this scenario?
a) Yes, because a lawyer must not knowingly fail to respond to a lawful demand for
information from an admissions or disciplinary authority.
b) Yes, because the board found no evidence that the attorney had mishandled client funds,
and the attorney had an affirmative duty to clarify any misunderstanding on the part of the
admissions or disciplinary authority of which the person involved becomes aware.
c) No, because the rules requiring attorney candor to disciplinary authorities are subject to the
provisions of the Fifth Amendment of the United States Constitution and corresponding
provisions of state constitutions.
d) No, because the committee did not read the attorney her Miranda rights, according to this
fact scenario.
Rule 8.1 Cmt. 2
359. An attorney faced disciplinary action over a client grievance. The disciplinary tribunal asked
the attorney several probing questions about her handling of client funds. The attorney actually
used some client funds to pay off a gambling debt, so she is less worried about a temporary
suspension of her law license than about potential criminal charges for embezzlement. The
attorney, therefore, simply refuses to answer the questions, without offering any explanation.
The disciplinary tribunal then determines that it lacks substantial evidence that the attorney
mishandled client funds, but commences disciplinary proceedings over the attorney’s refusal
to answer some of its questions. The attorney now claims she was merely exercising her Fifth
Amendment right to refrain from self-incriminating statements. Could the attorney be subject
to discipline for refusing to answer the questions in this scenario?
a) Yes, because a lawyer can never refuse to respond to a lawful demand for information from
an admissions or disciplinary authority.
b) Yes, a person relying on such constitution protections in response to a question must do so
openly and not use the right of nondisclosure as a justification afterward for failure to
comply with the rules requiring disclosures to the disciplinary authorities.
c) No, because the rules requiring attorney candor to disciplinary authorities are subject to the
provisions of the Fifth Amendment of the United States Constitution and corresponding
provisions of state constitutions.
d) No, because the committee did not read the attorney her Miranda rights, according to this
fact scenario.
Rule 8.1 Cmt. 2
ANSWER KEY - Rule 8.1
202
351. a
352. b
353. d
354. c
355. b
356. d
357. a
358. c
359. b
203
Rule 8.2
Judicial and Legal Officials (saved for a later section)
360. An attorney was upset when he lost a high-stakes bench trial. When friends and
acquaintances asked him about it in the following weeks, he would bitterly complain
that the judge must have received a bribe from the opposing party, because there was
no way that a reasonable judge could have ruled against the attorney’s own client, given
the evidence in the case. The attorney has no reason to think that the judge accepted a
bribe except that he was shocked when he lost the case. Could the attorney be subject
to discipline for making such comments?
a) Yes, because a lawyer shall not make a statement that the lawyer knows to be false
or with reckless disregard as to its truth or falsity concerning the qualifications or
integrity of a judge.
b) Yes, but only if the attorney makes the statements in the public media, that is, to a
reporter or in a press release.
c) No, because the First Amendment protects the attorney’s right to free speech, and
these are merely complaints made to friends and acquaintances.
d) No, because such comments implicate slander or libel doctrine in tort law, rather
than disciplinary actions by a state bar.
Rule 8.2
361. In Texas, state trial judges are elected by popular vote. A well-known liberalprogressive judge is running for reelection. An attorney who is a staunch conservative
is campaigning for the opposing candidate from the other party. At a campaign rally,
the attorney declares that the liberal judge (seeking reelection) is completely
unqualified and incompetent to serve in the judiciary, and that he is an activist judge
who uses his court to push a particular political and social agenda. The judge graduated
from a prestigious law school, was formerly a partner at a large law firm, and is active
in the state bar. He does, however, give consistently lenient sentences to criminal
defendants who are black or Hispanic, and has always ruled in favor of unions when
he adjudicated cases involving collective bargaining agreements. The judge learns of
these remarks by the attorney and files a grievance. Could the attorney be subject to
discipline?
a) Yes, because the judge is doing the right thing and conservatives like the attorney in
this case are criticizing officials merely for upholding civil liberties and seeking
justice and equality.
b) Yes, because a lawyer shall not make a statement that the lawyer knows to be false
or with reckless disregard as to its truth or falsity concerning the qualifications or
integrity of a judge.
c) No, because the comments occurred in the context of a political campaign, where
speakers regularly resort to overstatement and soaring rhetoric.
d) No, because the claims appear to be true.
Rule 8.2
204
362. A would-be judge asked his former law school classmate, a practicing lawyer, to write
a recommendation letter for him as part of his application and vetting process for a
judicial appointment. The attorney obliged and wrote a glowing recommendation,
entirely favorable, even though he personally knew that his friend (the one seeking to
be a judge) was an alcoholic. Was is proper for the attorney to write such a letter?
a) Yes, as long as the attorney believes his friend will be a fair judge.
b) Yes, because the attorney has no duty to disclose confidential information he knows
about a friend.
c) No, because assessments by lawyers are relied on in evaluating the professional or
personal fitness of persons being considered for appointment to judicial office, so
expressing honest and candid opinions on such matters contributes to improving the
administration of justice.
d) No, because an attorney should not write a recommendation letter for a prospective
judge if there is any chance that the attorney will someday appear in that judge’s court
representing a client.
Rule 8.2 Cmt. 1
ANSWER KEY – RULE 8.2
360. a
361. b
362. c
205
Rule 8.3
Reporting Professional Misconduct
363. An attorney discovers that a partner at his own firm has violated the Rules of
Professional Conduct by failing to disclose adverse binding precedent to a tribunal, and
by depositing client funds into his own bank account instead of a client trust account.
Does the attorney have a duty to report the partner from his own firm to the state bar
disciplinary authority?
a) Yes, but he must make an anonymous complaint to the state bar.
b) Yes, because a lawyer who knows of a violation of the Rules that raises serious
questions about the other attorney’s honesty must report it to the state disciplinary
authority.
c) No, because lawyers do not have to report violations or misconduct by their own
superiors, as this would put the reporting attorney in a difficult position at his
workplace.
d) No, because a lawyer is not required to report violations, but instead is merely
permitted to do so.
Rule 8.3
364. An attorney suspects that another lawyer in his firm has violated the Rules of
Professional Conduct in a rather serious matter, but has no first-hand knowledge of the
situation – his suspicion rests on the fact that the other lawyer seems to be acting
paranoid and evasive, and a number of strange coincidences have occurred in his cases.
Does the attorney who suspects something seriously wrong is afoot have a duty to
report the other lawyer to the state bar disciplinary authority?
a) Yes, but he must make an anonymous complaint to the state bar.
b) Yes, because a lawyer who knows of a violation of the Rules that raises serious
questions about the other attorney’s honesty must report it to the state disciplinary
authority.
c) No, because he does not have actual knowledge of the violation.
d) No, because lawyers do not have to report violations by other attorneys at their own
firm, which would create internal divisions and mistrust between partners.
365. An attorney works at a large firm and sees almost daily violations or potential
violations of the Rules of Professional Conduct, though nearly all of them are minor
and cause no harm or injury to the clients, third parties, or anyone else. For example,
some lawyers represent co-defendants in cases where conflicts could arise at some
point in the litigation, though the cases always seem to settle before any such scenarios
develop. In other instances, certain lawyers seem to do minimal research on their cases
or sometimes neglect client matters for weeks at a time, but again there has not been a
case that was particularly serious. Does the attorney have a duty to report these
violations to the state disciplinary authority?
a) Yes, because a lawyer who knows of a violation of the Rules that raises serious
questions about the other attorney’s honesty must report it to the state disciplinary
authority.
b) Yes, but he must make an anonymous complaint to the state bar.
c) No, because he does not have actual knowledge of the violation.
206
d) No, because a lawyer must report only those offenses that a self-regulating
profession must vigorously endeavor to prevent; if a lawyer were obliged to report
every violation of the Rules, the failure to report any violation would itself be a
professional offense.
Rule 8.3 Cmt 3
366. An attorney knew about another lawyer’s involvement in an illegal money laundering
enterprise, although the money laundering was unrelated to the other lawyer’s law
practice or representation of clients. Eventually, when federal law enforcement
officials bring criminal charges against the other lawyer, who is part of another firm,
the first attorney’s awareness of the situation becomes evident. Could the attorney who
knew of the wrongdoing and ignored it be subject to discipline?
a) Yes, because it is a violation of the Rules of Professional Conduct to fail to report
serious fraud or criminal activity by another lawyer.
b) Yes, because the lawyer who knew and did nothing was an accomplice after the fact.
c) No, because the attorney had no duty to report misconduct of lawyers in other firms.
d) No, because the attorney could have put himself in danger by reporting an organized
crime effort, and lawyers do not have to report misconduct when doing so might
expose the reporting lawyer to retaliation by criminal organizations.
367. An attorney discovers that another lawyer has been stealing clients’ funds, but he
cannot prove it, as he learned about it from another party who was involved and who
has since disappeared. He has some evidence, but not enough to prove that the other
lawyer stole the clients’ funds. When he confronted the other lawyer, the other lawyer
admitted it privately but said he would deny it if there was any attempt to expose the
matter. Does the attorney who knows about the violation, but could probably never
prove it, have a duty to report the violation to the state disciplinary authority?
a) Yes, because it does not matter how serious the misconduct is, it merely matters that
there is some evidence of misconduct.
b) Yes, because the duty to report misconduct depends upon the seriousness of the
possible offense and not the quantum of evidence of which the lawyer is aware.
c) No, because if the lawyer cannot prove the misconduct with a preponderance of
evidence, he does not have “knowledge” of the misconduct for purposes of the
Rules of Professional Conduct.
d) No, because the duty to report depends on the quantum of proof of which the lawyer
is aware, not the seriousness of the possible offense.
Rule 8.3 Cmt. 3
207
ANSWER KEY RULE 8.3
363. b
364. c
365. d
366. a
367. b
208
Rule 8.4
Misconduct
368. A trial attorney agreed to represent a client in a high-profile criminal case, and asked
at the outset for the client to give the attorney literary rights to write a book or
screenplay about the case after its conclusion, in lieu of part of the attorney’s normal
fees. The client refused, so the attorney represented the client for his normal hourly
rate. The evidence in the case was very unfavorable to the client, so the trial ended in
a conviction and the client hired a different lawyer to represent him on appeal. At some
point, the client told his appellate lawyer that the trial attorney had requested literary
rights in the case at the outset of the representation. The appellate lawyer believed this
was a violation of the Rules of Professional Conduct, and reported the trial attorney to
the state disciplinary authority. When disciplinary proceedings commenced, the trial
attorney maintained that he had not actually violated the Rules of Professional conduct,
because the client had refused to grant him literary rights related to the case. He
maintained that even if he had attempted to violate the Rules, he was unable to achieve
his goals and therefore no actual violation occurred. Is the trial attorney correct?
a) Yes, because his request merely constituted an attempt to violate the Rules of
Professional Conduct, and the Rules do not impose discipline for attempts or
inchoate violations.
b) Yes, because the client refused to grant him literary rights, so the complaint is not
ripe.
c) No, because the lawyer should not have requested literary rights at the outset of
litigation, but could have waited until it was clear how the trial was going before
asking for literary rights.
d) No, because under the Rules, even an attempt to violate the Rules of Professional
Conduct independently constitutes professional misconduct.
Rule 8.4(a)
369. A trial attorney knew he cannot have ex parte communications with the judge in his
case, but he wanted to explain a point about the case to the judge without opposing
counsel present. The attorney happened to attend an alumni reception at his law school,
and one of his former classmates mentioned to him that the she would be having lunch
with the judge the next day. The attorney explained his case to his former classmate
and asked her to explain a particular point to the judge privately during the lunch, and
she agreed to do it as a favor. Could the attorney be subject to discipline in this case?
a) Yes, because it is professional misconduct for a lawyer to violate or attempt to
violate the Rules of Professional Conduct through the acts of another.
b) Yes, because the attorney knew that the classmate should not have lunch with a
judge.
c) No, because the attorney did not personally have ex parte contact with the judge, so
there was no risk of manipulation or coercion.
d) No, because the classmate consented to talk to the judge.
Rule 8.4(a)
370. A lawyer faced prosecution for failing to file tax returns over a five-year period. The
attorney worked for a legal aid clinic and never charged clients any legal fees, as the
209
clinic provided free representation to the indigent. The attorney received a modest
salary from the legal aid clinic, the funds for which came from the state’s IOLTA
program and from a federal Legal Services Corporation (LSC) grant. Could the
attorney face suspension of his license to practice law?
a) Yes, because the lawyer’s salary comes from a commingling of state IOLTA funds
and federal LSC funds.
b) Yes, because it is professional misconduct for a lawyer to commit a criminal act that
reflects adversely on the lawyer's honesty.
c) No, because the lawyer’s illegal conduct did not pertain to his representation of any
of his clients.
d) No, because none of the lawyer’s income derived from legal fees collected from
clients.
Rule 8.4(b) & Cmt. 2
371. An attorney was an immigrant from a country that permits polygamy – men can have
up to four wives. The attorney had two wives, which his religion permitted, as did the
laws of his homeland. Nevertheless, his multiple marriages constituted bigamy in the
American jurisdiction where he practiced law, and eventually a court convicted him of
bigamy and imposed a fine. Could the attorney be subject to professional discipline
for committing this illegal act?
a) Yes, because it is professional misconduct for a lawyer to commit a criminal act that
reflects adversely on the lawyer's honesty.
b) Yes, because having multiple wives significantly increases the opportunities to have
conflicts of interest with various clients.
c) No, because offenses concerning personal morality, such as bigamy and comparable
offenses, have no specific connection to fitness for the practice of law.
d) No, because his bigamy does not reflect negatively on his character or morality if
his religion permits it.
Rule 8.4 Cmt. 2
372. A criminal court found that a lawyer had engaged in domestic violence against his
partner, and convicted the lawyer of misdemeanor-level battery, for which he served a
six-month term of probation. Could the attorney be subject to professional discipline
as well?
a) Yes, because any illegal activity by a lawyer constitutes professional misconduct.
b) No, because crimes of violence have no specific connection to fitness for the practice
of law
c) Yes, because crimes of violence indicate a lack of the character traits required for
law practice.
d) No, because only felonies (not misdemeanors) can constitute professional
misconduct.
Rule 8.4 Cmt. 2
210
373. An attorney faced criminal sanctions for having over two thousand unpaid traffic and
parking tickets, and several instances of failure to appear for jury duty. Could the
attorney be subject to professional discipline for these minor offenses?
a) Yes, because any illegal activity by a lawyer constitutes professional misconduct.
b) Yes, because a pattern of repeated offenses, even ones of minor significance when
considered separately, can indicate indifference to legal obligation.
c) No, because traffic violations or neglecting jury duty would have no specific
connection to fitness for the practice of law.
d) No, because these activities do not arise from or pertain to the attorney’s
representation of a client.
Rule 8.4 Cmt. 2
374. After practicing for two years, an attorney enrolled in an LL.M. program at a local
law school, taking night classes. During his second semester, the attorney faced
academic discipline for plagiarism in a seminar paper; the school permitted him to
graduate, but he received a failing grade in the class and had to make up the credits
with another course. As the attorney already has a license to practice law in the
jurisdiction, could he be subject to discipline if the state disciplinary authorities learned
of the plagiarism?
a) Yes, because it is professional misconduct for a lawyer to commit a criminal act that
reflects adversely on the lawyer's honesty.
b) Yes, because it is professional misconduct for an attorney to engage in conduct
involving dishonesty, fraud, deceit or misrepresentation.
c) No, because the attorney already obtained admission to the bar, so his courses now
have no bearing on his application for admission to the bar.
d) No, because the incident does not pertain to his representation of a client, so the
disciplinary rules do not apply.
Rule 8.4(c)
375. While cross-examining a Hispanic witness during a trial, a defense attorney grew
frustrated at the witnesses’ evasive answers, and finally asked the witness if “his
people” or others “in his community” regularly lie under oath on the witness stand.
The prosecutor immediately objected and the judge sustained the objection, so the
attorney withdrew the question. The witness then stated that he did not feel offended
by the question because he understood that the lawyer was simply ignorant and relying
on stereotypes. Three of the jurors were also Hispanic. Could the attorney be subject
to discipline for this question?
a) Yes, because it is professional misconduct for a lawyer in the course of representing
a client to say things that manifest bias or prejudice based upon race or national
origin.
b) Yes, because the judge sustained the objection and there were Hispanics serving on
the jury.
c) No, because the witness claimed that he did not feel offended.
211
d) No, because the lawyer immediately withdrew the question.
Rule 8.4(d) Cmt. 3
376. Partly out of a desire to impress a potential client during an initial consultation, and
partly to reassure a potential client who was visibly upset about her pending criminal
charges, the attorney said that he knew the judge in the case. He explained that they
were close friends, former law school classmates, and that he could talk to the judge
privately and “take care of the problem.” Is it permissible for a lawyer to make such a
claim to a potential client?
a) Yes, as long as the claim is true and the lawyer is not misleading the client or create
false expectations.
b) Yes, because there is not yet a lawyer-client relationship before the commencement
of representation, and the situation here occurred during an initial consultation.
c) No, because it is a potential client, and the lawyer is using inappropriate
manipulation to try to get business instead of allowing the client to make a fair
decision about which lawyer to hire.
d) No, because it is professional misconduct for a lawyer to state or imply an ability to
influence improperly a judge or to achieve results by means that violate the Rules
of Professional Conduct or other law.
Rule 8.4(e)
377. A judge asks the two lawyers in a case to help him conduct some first-hand
investigation of the facts. At the judge’s request, the plaintiff’s lawyer and the
defendant’s lawyer together drive the judge to the location where the accident occurred
that became the subject of the litigation, and allowed the judge to take measurements
and photographs of the scene from different angles. They also accompanied the judge
to interview several witnesses at their homes, off the record. Both lawyers felt
awkward about this, but they were afraid to contradict or confront the judge, out of
respect for the judicial office. Could the lawyers be subject to discipline for this
conduct?
a) Yes, because it constitutes ex parte communication with the judge.
b) Yes, because it is professional misconduct for a lawyer to assist a judge or judicial
officer in conduct that is a violation of applicable rules of judicial conduct or other
law.
c) No, because the lawyers did this activity at the judge’s behest, and possible under
orders from the judge.
d) No, because it furthers the ends of justice and accurate case outcomes for judges to
have more complete understanding of the facts of a case.
Rule 8.4(f)
ANSWER KEY – RULE 8.4
368. d
369. a
370. b
371. c
372. c
212
373. b
374. b
375. a
376. d
377. b
213
Rule 8.5
Disciplinary Authority; Choice of Law
378. An attorney had a license to practice law in two jurisdictions – his home state where
he lived and had his main office, and a neighboring state where he represented several
clients each year. The attorney committed serious professional misconduct in the
neighboring state, and received a public reprimand from the state disciplinary
authorities. All of the conduct took place in that state, the client resided in that state,
and the representation took place entirely in that state. The lawyer’s conduct would
have violated the rules in either of the jurisdictions where he had a license to practice
law, because it involved commingling client funds with his own money, and the states
had nearly identical rules concerning this activity. After the attorney received a public
reprimand in the state where the misconduct occurred, the state bar disciplinary
authority in the attorney’s home state also commenced disciplinary proceedings against
him. Ultimately, the attorney’s home state bar suspended his license for six months in
that state, a much more severe sanction than the public reprimand he received in the
state where the misconduct actually occurred. The attorney claims that the home state
bar has no jurisdiction over conduct that occurred entirely outside of the state. He also
objects that the second punishment raises double jeopardy concerns. Is the attorney
correct?
a) Yes, because a lawyer cannot be subject to the disciplinary authority of two
jurisdictions for the same conduct if it occurred entirely within one state.
b) Yes, because even in cases where a second state can administer discipline over the
same conduct, double jeopardy rules prevent the second tribunal from imposing a
more severe sanction than the first tribunal already imposed on the lawyer.
c) No, because the fact that the lawyer has his office in the second state, as well as his
support staff, means that some part of the representation necessarily occurred there.
d) No, because a lawyer may be subject to the disciplinary authority of two jurisdictions
for the same conduct.
Rule 8.5(a)
379. An attorney had a license to practice law in two jurisdictions – his home state where
he lived and had his main office, and a neighboring state where he represented several
clients each year. The attorney committed serious professional misconduct in his home
state, and received a public reprimand from the state disciplinary authorities. All of the
conduct took place in his home state, the client resided in the state, and the
representation took place entirely within his home state. The lawyer’s conduct would
have violated the rules in either of the jurisdictions where he had a license to practice
law, because it involved commingling client funds with his own money, and the states
had nearly identical rules concerning this activity. After the attorney received a public
reprimand in his home state, where the misconduct occurred, the state bar disciplinary
authority in the neighboring state (where he also practiced) then commenced
disciplinary proceedings against him as well. Ultimately, the neighboring state bar
suspended his license for six months in that state, a much more severe sanction than
the public reprimand he received in his home state, where the misconduct actually
occurred. The attorney claims that the neighboring state bar has no jurisdiction over
214
conduct that occurred entirely outside of the state. He also objects that the second
punishment raises double jeopardy concerns. Is the attorney correct?
a) Yes, because even in cases where a second state can administer discipline over the
same conduct, double jeopardy rules prevent the second tribunal from imposing a
more severe sanction than the first tribunal already imposed on the lawyer.
b) Yes, because a lawyer cannot be subject to the disciplinary authority of two
jurisdictions for the same conduct if it occurred entirely within one state.
c) No, because a lawyer may be subject to the disciplinary authority of two jurisdictions
for the same conduct, and may receive different sanctions in each state.
d) No, because choice of law rules require that each state impose the same sanction.
Rule 8.5(a)
380. An attorney practices law in two adjacent states, as he has a license to practice in each.
He lives near the border and can easily serve clients in each jurisdiction. The two states
have different rules about attorney disclosures of confidential client information - one
state requires disclosures of client confidences whenever necessary to save a third party
from death or serious bodily injury, while the other state forbids disclosures even under
these circumstances. The attorney did indeed disclose confidential client information
in order to save someone’s life (the client was planning a murder and the attorney
notified the authorities and warned the potential victim), but this occurred in the state
that forbids such disclosures under these circumstances. The client files a grievance
against the attorney in both states, and both state bars commence disciplinary
proceedings over the same incident. The state bar of the other state, which would have
required disclosure in this situation under its own rules, nevertheless reprimands the
attorney for making the disclosure in violation of the rules in the state where the
incident occurred. The attorney objects that the state cannot impose a sanction on him
for conduct that the state’s rules would have required. Is the state bar correct?
a) Yes, the state bar should apply the rules of the jurisdiction in which the lawyer’s
conduct occurred.
b) Yes, because a state disciplinary authority does not have to consider the rules of
professional conduct from its own state in making disciplinary determinations,
regardless of where the misconduct occurs.
c) No, because each state bar should apply its own rules, otherwise we could have the
absurd result of a state bar punishing a lawyer for an action that the rules of that
state require.
d) No, because a lawyer can face discipline for professional misconduct only in the
state where the misconduct occurred.
Rule 8.5(b)(2)
381. An attorney was representing a client in a probate matter. Nearly all of the
representation occurred within the attorney’s home state, where the client also lived.
One asset of the probated estate, however, was an account receivable from a debtor in
a neighboring state; the matter was already the subject of pending contract litigation in
that state. The attorney filed a pro hac vice appearance in the neighboring state, and
traveled there to represent his client in the contract matter, which was ancillary to the
probate matter in his home state. During the proceedings, the lawyer committed an act
215
that constituted a violation of the ethical rules in his home state, but not in the
neighboring state where he was appearing in a proceeding; the states had different rules
in this regard. Could the attorney be subject to discipline in his home state for violating
its rules before a tribunal in the neighboring state?
a) Yes, because when an attorney takes an oath to uphold the rules of a jurisdiction in
order to obtain admission to the bar, he or she does so without regard to the lawyer’s
future geographic location when a violation of the rules occur.
b) Yes, because otherwise, lawyers could simply drive across state lines and violate all
the rules of professional conduct without repercussions from the state bar where the
lawyer practices.
c) No, because whenever a lawyer's conduct relates to a proceeding pending before a
tribunal, the lawyer shall be subject only to the rules of the jurisdiction in which the
tribunal sits.
d) No, because a lawyer cannot be subject to discipline in more than one jurisdiction
for the same act or incident.
Rule 8.5(b)(1)
ANSWER KEY – RULE 8.5
378. d
379. c
380. a
381. c
.
216
Questions about TX disciplinary process
382. In Texas, which entity determines what constitutes the unauthorized practice of law
in this state?
a) The State Bar of Texas (SBOT), subject to review by the Texas courts
b) The Unauthorized Practice of Law Commission (UPC), subject to review by the
Texas courts
c) The Texas Committee on Profession Ethics (TCPE), which has sole statutory
authority in Texas to issue Ethics Opinion Letters
d) The Texas Office of the Chief Disciplinary Counsel (CDC), subject to review by
the Board of Disciplinary Appeals.
383. Attorney has a license to practice law in New York, but she is living in Texas and is
practicing law in Texas out of her own firm office in Huntsville. What is the position
of state bar regarding this situation?
a) The State Bar of Texas has jurisdiction to decide what constitutes the unauthorized
practice of law in this state, and to take disciplinary action against individuals who
engage in the unauthorized practice of law.
b) The jurisdiction of the State Bar of Texas does not permit it to take disciplinary
action for any violation of the Texas Disciplinary Rules against any person who is
not licensed to practice law in Texas or who is not specially admitted by a Texas
court for a particular proceeding.
c) The State Bar of Texas refers unauthorized practice of law enforcement actions to
the United States Department of Justice for enforcement proceedings under federal
law in the federal courts, as this situation involves a dispute between a citizen of
one state and the state government of another state.
d) Texas has a special reciprocity agreement with the State Bar of New York, so
attorneys admitted in New York can practice law in Texas, and vice-versa, as long
as they file a notice with the local bar association.
384. What is the role of the Board of Disciplinary Appeals in Texas?
a) The final judgment of the Board of Disciplinary Appeals may be appealed in the
same way civil cases are generally appealed.
b) If an attorney facing a grievance does not elect a trial in district court, the judgment
of an evidentiary panel may be appealed to the Board of Disciplinary Appeals, and
an appeal from the Board of Disciplinary Appeals may be taken to the Supreme
Court of Texas.
c) Grievances are filed directly with the Board of Disciplinary Appeals, which then
makes a Just Cause Determination and offers the lawyer an opportunity to file a
Response.
d) The Board of Disciplinary Appeals evaluates the fitness to practice law of new law
school graduates and determines whether they meet the good moral character
requirements of the state bar.
217
385. In TX, an attorney facing discipline can elect whether to have his complaint tried
before an evidentiary panel or in district court. Which of the following best describes
the attorney’s tradeoff in making this election decision?
a) The lowest form of sanction, a private reprimand, is available only if the complaint
is in district court; but a jury is available only before an evidentiary panel, as are
many of the evidentiary exclusions and procedural protections of court
adjudications.
b) The lowest form of sanction, a private reprimand, is available only if the complaint
is before an evidentiary panel; but a jury is available only in district court, as are
many of the evidentiary exclusions and procedural protections of court
adjudications.
c) The most severe sanction, disbarment, is available only if the complaint is before
an evidentiary panel; but punitive damages are available only in district court, as
are orders to make restitution and payment of attorneys’ fees.
d) The most severe sanction, disbarment, is available only in district court; but
punitive damages are available only if the complaint is before an evidentiary panel,
as are orders to make restitution and payment of attorneys’ fees.
386. Which of the following best describes the first five steps, in order, of the Texas
disciplinary process?
a) Filing of grievance with the Board of Disciplinary Appeals, Just Cause
Determination, Response, Election of Forum, Classification
b) Filing of grievance with the Office of Chief Disciplinary Counsel, Classification,
Response, Just Cause Determination, Election of Forum
c) Filing a grievance with the Board of Disciplinary Appeals, Election of Forum,
Evidentiary Panel, Sanctions, and Appeal
d) Filing of grievance with the Office of Chief Disciplinary Counsel, Election of
Forum, Evidentiary Panel, Sanctions, and Appeal
387. Which of the following is NOT one of the most common alleged violations among
grievances filed against attorneys in Texas?
a) Neglect of a client matter
b) Conflict of interest
c) Failure to communicate
d) Improper behavior surrounding withdrawal or termination of representation
388. Of all the grievances filed against Texas attorneys each year, what are the most
common alleged violations?
a) Conflicts of interest, breach of confidentiality, and neglect of client matters
b) Neglect, failure to communicate, and improper behavior surrounding withdrawal
or termination of representation
218
c) Failure to communicate, advertising and solicitation violations, and violation of the
duty of candor to a tribunal
d) Improper behavior surrounding withdrawal or termination of representation, failure
to screen new attorneys from matters posing conflicts of interest, and failure to
supervise or train support staff at the firm
ANSWER KEY – TX DISC RULES
382. b
383. b
384. b
385. b
386. b
387. b
388. b
219
Communications about legal services
(4–10%, 2-6 MPRE Questions Rules 7.1-7.6
1. Advertising – Rule 7.2
2. Solicitation—direct contact with prospective clients
– Rule 7.3
3. Group legal services – Rule 7.2-7.3
4. Referrals – Rule 7.2
5. Communications regarding fields of practice and
specialization – Rule 7.6
220
Questions about Advertising & Solicitation Rules 7.2-7.6
Information About Legal Services
Rule 7.1
Communication Concerning a Lawyer's Services
Rule 7.2
Advertising
Rule 7.3
Solicitation of Clients
Rule 7.4
Communication of Fields of Practice and Specialization
Rule 7.5
Firm Names and Letterhead
Rule 7.6
Political Contributions to Obtain Legal Engagements or Appointments
by Judges
RULE 7.1
Communication Concerning A Lawyer's Services
389. Attorney advertises his services on billboards in a major city, emblazoned with the
logo, “LOWEST LEGAL FEES IN THE CITY!” The billboard contains the firm’s
name, address, phone number, and website, but no disclaimers or qualifications about
the claim regarding the legal fees they charge. Approximately 10,000 lawyers practice
in that city, and a legal aid clinic provides free legal services for homeless or indigent
clients. The location of the billboards happens to be on roads with very high frequency
of accidents and traffic fatalities, so the billboards are often visible to those who have
just had an accident. Could Attorney be subject to discipline for these billboards?
a) Yes, because an unsubstantiated comparison of the lawyer's services or fees with
the services or fees of other lawyers may be misleading if presented with such
specificity as would lead a reasonable person to conclude that the comparison can
be substantiated.
b) Yes, because the billboard constitutes solicitation of clients immediately after they
have an accident, as it is directed to the general public, such as through a billboard,
an Internet banner advertisement, a website or a television commercial
c) No, because the billboards do not violate the prohibition against stating or implying
an ability to influence improperly a government agency or official or to achieve
results by means that violate the Rules of Professional Conduct or other law.
d) No, because the lawyer is merely exercising his First Amendment rights to free
speech.
390. Attorney recently earned her Juris Doctor degree from a prestigious law school and
easily passed the state bar exam, gaining admission to the bar in her home state. She
worked for three years for a legal aid clinic that provided free legal services for indigent
clients. At the end of her third year at the clinic, Attorney decided to start her own
firm, representing primarily low-income clients who were ineligible for free services
at the legal aid clinic, but who also rarely could afford the fees of most attorneys. She
sent a certified letter to most of the lawyers in her geographic area describing her
experience and explaining that she was starting her own firm and intended to specialize
221
in low-dollar consumer protection cases, simple divorces, adoptions, name changes,
and landlord-tenant disputes. The letter concluded by offering to handle such cases for
other lawyers if the other lawyers did not want to invest their time on such low-dollar
matters. She did not notify the legal aid clinic that she planned to leave or that she had
sent this letter. Were Attorney’s actions proper?
a) Yes, because Attorney’s statements were not false or misleading and the letter was
an appropriate announcement of the opening of her new firm and her intent to
specialize in certain areas of law.
b) Yes, because Attorney sent the letter only to other lawyers, so there was little risk
of manipulation or abuse of unsophisticated clients.
c) No, because Attorney failed to notify the legal aid clinic of her plans to open a new
firm, or to send a letter to hundreds of lawyers that described her experience
working at the clinic.
d) No, because Attorney has never handled such fee-generating cases before, if her
only work experience is at a legal aid clinic that provides services without charge
to indigent clients.
391. Attorney has advertisement placards on the sides of public transportation buses in his
city. The signs read, “If your home suffered storm damage this year, you are entitled
to full recovery! Call us now!” Attorney represents clients in claims against their
homeowner insurance companies, who often deny claims for storm damage, at least
initially. Attorney often wins at least a small settlement, if not full recovery costs, for
his clients. Is this advertisement proper?
a) Yes, because Attorney does, in fact, represent clients who have suffered storm
damage in claims against their insurers.
b) Yes, because this is not an in-person solicitation, so there is little risk of
unsophisticated potential clients misunderstanding the claims in the advertisement.
c) No, because it contains a material misrepresentation of fact or law, or omits a fact
necessary to make the statement considered as a whole not materially misleading.
d) No, because the advertisement was placed on a public transportation vehicle, which
tacitly suggests an endorsement of the municipal government, as opposed to a
privately-owned billboard on private property near a roadside.
392. Attorney grew up in a family that spoke the Maori language in the home. His law
practice advertisements prominently state that he speaks Maori and can represent
Maori-speaking clients. No Maori speakers live within 2000 miles of where Attorney
practices. Is it improper for Attorney to include this language ability in his
advertisements?
a) Yes, because it creates a misperception that Attorney is unusually intelligent.
b) Yes, because Maori speakers in far-away jurisdictions might misunderstand and
believe that Attorney is admitted in their jurisdiction as well.
c) No, because the statement is true.
d) No, because Attorney has Free Speech rights to make any claim he wants in his
public advertisements.
222
393. Attorney practices law in Texas, and he runs advertisements in local newspapers and
journals that say, “HIRE THE BEST LAWYER!” The advertisement does not
explicitly claim that Attorney is the best lawyer in the state, but it does include
Attorney’s website address, which is www.bestlawyerintexas.com. Is such an
advertisement improper?
a) Yes, because the advertisement it misleading.
b) Yes, because it includes a website address.
c) No, because it merely exhorts readers to hire the best lawyer, without suggesting
who is the best lawyer.
d) No, unless Attorney is, by all measures, the best lawyer in Texas.
RULE 7.2
Advertising
394. Attorney pays $1000 per month for a billboard advertisement for his firm, $2000 per
month for a few radio commercials, $3000 per month for internet advertising, and
$4000 per month for newspaper and magazine advertisements. The total amount for
advertising is $10,000. Attorney’s average total income from legal fees is $15,000 per
month. Is it permissible for Attorney to spend such sums on advertising?
a) Yes, because a lawyer may advertise services through written, recorded or
electronic communication, including public media and may pay the reasonable
costs of such advertisements or communications.
b) Yes, because as long as the lawyer is not making in-person solicitations, there are
no limitations on advertising by law firms, as long as the advertisements are not for
a particular lawyer.
c) No, because it is not reasonable to spend more than half of a firm’s monthly
revenues on advertising.
d) No, because it is not reasonable to spend $1000 on billboards, which are notoriously
ineffective.
395. Attorney is dating a woman whose sister works as a nurse in a hospital emergency
room. Attorney gives the nurse, his girlfriend’s sister, a stack of his business cards and
law firm brochures, and offers to pay her $200 for any clients who hire him because of
her referrals, with the understanding that she will not refer patients to any other lawyers.
The nurse recommends several patients per month to Attorney for representation in
personal injury claims, and one or two per month actually hire Attorney to represent
them. Is such an arrangement proper?
a) Yes, because the nurse is closely related to Attorney, given that Attorney is dating
her sister.
b) Yes, because Attorney is not paying the nurse on a contingent fee basis.
c) No, because a lawyer shall not give anything of value to a person for recommending
the lawyer's services, with certain exceptions not applicable here.
223
d) No, because the fact that Attorney is dating her sister creates a conflict of interest
if the nurse refers clients to Attorney.
396. Attorney represented Client as the plaintiff in a personal injury lawsuit and won a
large settlement for Client. Attorney had represented Client on a contingent fee basis,
with an agreement at the outset of representation to charge 30% of the total winnings
or settlement amount. Client was very good-looking, and Attorney offered at the end
of representation to discount his fee by another 10% if Client would pose for a
photograph with Attorney for use in printed advertisements, with a quote by Client that
truthfully expressed gratitude to Attorney for providing excellent representation in the
case. The advertisement did not include any disclaimer explaining that not all of
Attorney’s clients were as attractive as the client who appeared in the photo. The
advertisement also included a promise from Attorney “to provide the same type of
excellent legal representation to you [the reader] as well.” Was this advertisement
proper?
a) Yes, because the client and the lawyer both made truthful statements.
b) Yes, because the discount offered to the client was reasonable for such an
endorsement, as long as the amount was comparable to hiring a model to pose for
the photograph instead.
c) No, because the lawyer promised implicitly to obtain similar results for other
potential clients, without knowing their circumstances or the merits of their claims.
d) No, because the lawyer effectively offered money to the client by giving a discount
on the earned legal fees in exchange for appearing in the advertisement.
397. Attorney made an informal agreement with Physician that they would refer clients to
each other when the situation seemed appropriate. They did not pay each other any
money for referrals, but the relationship was explicitly reciprocal – Attorney referred
patients who needed medical examinations to Physician, and when Physician had
patients needing legal representation, he referred them to Attorney. The relationship
was not explicitly exclusive – each was free to refer clients to others – but it happened
that neither had similar reciprocal relationships with anyone else. They never inform
their clients when making such referrals that they have a reciprocal relationship. Is
such an arrangement proper?
a) Yes, a lawyer may agree to refer clients to another lawyer or a nonlawyer
professional, in return for the undertaking of that person to refer clients or
customers to the lawyer, as long as the relationship is not exclusive.
b) Yes, because the agreement is informal, not a written contract.
c) No, because a lawyer may not agree to refer clients to another lawyer or a
nonlawyer professional, in return for the undertaking of that person to refer clients
or customers to the lawyer, without informing clients about the existence and nature
of the arrangement.
d) No, because the relationship described here is de facto exclusive, even if they have
not agreed specifically to keep the relationship exclusive.
224
398. Attorney made an informal agreement with Physician that they would refer clients to
each other when the situation seemed appropriate. They did not pay each other any
money for referrals, but the relationship was explicitly reciprocal – Attorney referred
patients who needed medical examinations to Physician, and when Physician had
patients needing legal representation, he referred them to Attorney. The relationship
was not explicitly exclusive – each was free to refer clients to others – but it happened
that neither had similar reciprocal relationships with anyone else. They always inform
their clients when making such referrals that they have a reciprocal relationship. Is
such an arrangement proper?
a) Yes, a lawyer may agree to refer clients to another lawyer or a nonlawyer
professional, in return for the undertaking of that person to refer clients or
customers to the lawyer, as long as clients are aware and the relationship is not
exclusive.
b) Yes, because the agreement is informal, not a written contract.
c) No, because a lawyer may not agree to refer clients to another lawyer or a
nonlawyer professional, in return for the undertaking of that person to refer clients
or customers to the lawyer.
d) No, because the relationship described here is de facto exclusive, even if they have
not agreed specifically to keep the relationship exclusive.
399. Attorney made and distributed bumper stickers advertising for his firm that simply
provided a catchy phone number: 1-800-LAWYER-1. The phone number rolled over
to Attorney’s office phone. The bumper stickers included no other information. Could
Attorney be subject to discipline for such an advertisement?
a) Yes, because bumper sticker advertising undermines the dignity of the legal
profession.
b) Yes, because it does not include the name and office address of at least one lawyer
or law firm responsible for its content.
c) No, because bumper stickers do not constitute advertising under the Model Rules
of Professional Conduct.
d) No, because the information on the bumper stickers was truthful and accurate.
400. Attorney made an informal agreement with Physician that they would refer clients to
each other when the situation seemed appropriate. They did not pay each other any
money for referrals, but the relationship was explicitly reciprocal – Attorney referred
patients who needed medical examinations to Physician, and when Physician had
patients needing legal representation, he referred them to Attorney. The relationship
was explicitly exclusive – each agreed not to refer clients to others – but it happened
that neither had similar reciprocal relationships with anyone else anyway. They always
inform their clients when making such referrals that they have a reciprocal relationship.
Is such an arrangement proper?
a) Yes, a lawyer may agree to refer clients to another lawyer or a nonlawyer
professional, in return for the undertaking of that person to refer clients or
225
customers to the lawyer, as long as clients are aware of the existence and nature of
the arrangement.
b) Yes, because the agreement is informal, not a written contract.
c) No, because a lawyer may not agree to refer clients to another lawyer or a
nonlawyer professional, in return for the undertaking of that person to refer clients
or customers to the lawyer, if the relationship is exclusive.
d) No, because the relationship described here is de facto exclusive, even if they have
not agreed specifically to keep the relationship exclusive.
401. Attorney is a friend of Blogger, who operates a successful local blog about events,
news, and gossip about their city. Blogger includes posts about local judges and wellknown lawyers. Attorney and Blogger have a secret agreement. Attorney passes along
tips to Blogger in the form of courthouse gossip regarding local lawyers and judges, or
even about big cases. Blogger, in turn, covers Attorney's successful cases in glowing
terms and recommends Attorney to his readers. Blogger's website is so successful that
he earns approximately $50,000 in advertising revenue from the site. Attorney
occasionally purchases a small, inexpensive advertisement on the site, which merely
gives Attorney's name, address, phone number, and areas of practice. Could Attorney
be subject to discipline?
a) Yes, because Attorney provides gossip that undermines the dignity of the
profession
b) Yes, because Attorney provides something of value to Blogger in exchange for
recommending his services.
c) No, because Attorney pays a reasonable sum for his advertisements on the blog
d) No, because it is impossible to quantify the value of the information that Attorney
provides to Blogger in exchange for favorable reviews of Attorney's legal victories
402. Attorney advertised in a local newspaper. His advertisement reads, “I never charge
more than $200 per hour for any type of legal work, and for simple legal problems such
as uncontested divorces or name changes, I charge even less.” Attorney once had a
particularly complicated, tedious case in another jurisdiction for which he charged $250
per hour, but he does not expect such a case to arise in the future, though his fee would
be higher if it did. Attorney's advertisement fails to state that some other lawyers in
the community charge substantially lower fees. Attorney's advertisement includes a
pencil drawing of an unrealistically handsome, but generic-looking judge sitting behind
the bench in a courtroom with a gavel in his hand. Could Attorney be subject to
discipline for this advertisement?
a) Yes, because it is not true that he never charges more than $200 per hour.
b) Yes, because he included a drawing of an unrealistically handsome judge
c) No, as long as no other attorneys in the area charge lower fees
226
d) No, as long as a reasonable percentage of Attorney's cases are simple legal
problems for which he charges less than $200 per hour.
403. An internet marketing company, GlomOn, advertises “daily deals” and permits users
to receive frequent email notifications of daily deals that might interest them. GlomOn
makes arrangements with local businesses to offer goods or services at discount rates
to GlomOn subscribers. After a certain number of subscribers purchase a particular
daily deal, GlomOn splits the proceeds with the local business, and the purchaser
receives a code or electronic voucher with an expiration date. Attorney decides to use
GlomOn to find new clients, and offers an online deal for $400 off a client’s legal fees
if they retain Attorney. Attorney honors these commmitments and resists the urge to
raise his rates for GlomOn clients in order to offset the $400 rebate, so his GlomOn
advertisements are not misleading in any way. GlomOn costs Attorney more than other
internet advertisers. In fact, because GlomOn promotes Attorney’s message to a large
number of subscribers, and because GlomOn handles the processing of payments from
the coupon purchasers, nearly the entire fee paid by GlomOn customers actually goes
to GlomOn, not to Attorney. Could Attorney be subject to discipline for marketing his
legal services through GlomOn in this way?
a) Yes, because this constitute fee sharing with nonlawyers.
b) Yes, because it is an unreasonable fee for advertising if it is higher than comparable
advertisers and most of the initial fee goes to the advertiser.
c) No, because the Model Rules do not regulate internet advertising for lawyers.
d) No, because the fee is reasonable, given the services that GlomOn provides to
advertisers.
ABA Formal Op. 13-465
RULE 7.3
Solicitation Of Clients
404. Attorney calls Friend, a close personal acquaintance, who was recently arrested for
driving while intoxicated. Attorney advises that he saw Friend’s arrest on the local
police news and offers to represent Friend for Attorney’s usual fee for handling such
cases. Friend hires Attorney to represent him on the case. Are Attorney’s actions
proper?
a) Yes, because attorneys can solicit professional employment from family members,
close personal friends, and persons with whom the attorney had a previous
professional relationship.
b) Yes, because attorneys are not restricted from soliciting professional employment
from people they know.
c) No, because attorneys are restricted from soliciting professional employment from
persons who are not lawyers or the members of the attorney’s family.
d) No, because attorneys are not allowed to solicit professional employment.
227
405. Attorney is active within a new political movement and she has represented several
members of the movement who faced arrest or criminal charges for protesting and
picketing. Attorney learns that police have arrested one of the prominent leaders of the
movement for trespassing on private property during a protest, but that the movement
leader is already out on bail. Attorney calls the leader and offers to represent him in
his case free of charge, explaining that he has experience representing other members
of the movement in similar cases. The leader agrees to have Attorney represent him on
a pro bono basis. Attorney wants to represent the leader because he admires him, but
also because he believes it will generate terrific publicity for Attorney’s practice. Was
it proper for Attorney to make this telephone solicitation?
a) Yes, because Attorney believes in the leader’s cause and is an active member of the
movement.
b) Yes, because Attorney did not charge for providing these legal services.
c) No, because Attorney made a live telephone solicitation of a prospective client.
d) No, because Attorney hopes to receive indirect benefit from the publicity that the
representation will bring.
406. Which of the following most accurately describes the Model Rules’ treatment of inperson solicitations of prospective clients by lawyers and live telephone solicitations
by lawyers?
a) The Rules treat in-person solicitations as much more serious and likely to result in
abuse than telephone solicitations.
b) The Rules treat live telephone solicitations the same as in-person solicitations.
c) The Rules treat live telephone solicitations the same as email solicitations.
d) The Rules treat live telephone solicitations the same as a billboard, an Internet
banner advertisement, a website, or a television commercial.
407. Attorney heard that an acquaintance from law school, now also a lawyer, was the
subject of a recent grievance before the state disciplinary authority for live telephone
solicitation of prospective clients. Attorney called his acquaintance and offered to
represent him in his hearing before the grievance committee, for a fee of $400 per hour,
higher than the usual rate for such representation. Attorney’s motivation was primarily
for pecuniary gain, not concern for his former classmate. Could Attorney himself be
subject to discipline for making this live telephone solicitation of his law school
classmate?
a) Yes, because a lawyer shall not by in-person, live telephone or real-time electronic
contact solicit professional employment when a significant motive for the lawyer's
doing so is the lawyer's pecuniary gain.
b) Yes, because Attorney offered to represent the prospective client for a higher-thanaverage fee.
c) No, because the prospective client is also a lawyer.
d) No, because the prospective client is an acquaintance from law school.
228
408. Attorney’s brother is a physician. Attorney calls his brother and explains that his firm
is not doing well, that he needs more cases, and asks his brother to use him as his lawyer
for any medical malpractice actions he faces or any collection actions against patients
who do not pay their bills. Attorney’s brother finds this request annoying and makes
no promises. Was it proper for Attorney to make such a telephone solicitation?
a) Yes, because the recipient of the solicitation has a family relationship with the
lawyer.
b) Yes, because he merely asked his brother to use his services whenever a case should
arise, without offering to represent him in a specific matter or for a specific fee.
c) No, because the brother found the call annoying and the appropriateness of the
solicitation is from the perspective of the recipient.
d) No, because a lawyer shall not by in-person, live telephone or real-time electronic
contact solicit professional employment when a significant motive for the lawyer's
doing so is the lawyer's pecuniary gain.
409. Attorney’s brother is a physician. Attorney calls his brother and explains that his firm
is not doing well, that he needs more cases, and asks his brother to use him as his lawyer
for any medical malpractice actions he faces or any collection actions against patients
who do not pay their bills. Attorney’s brother finds this request annoying and reminds
Attorney that he has asked him on several occasions not to pester him to use Attorney
as his lawyer. Was it proper for Attorney to make such a telephone solicitation?
a) Yes, because the recipient of the solicitation has a family relationship with the
lawyer.
b) Yes, because he merely asked his brother to use his services whenever a case should
arise, without offering to represent him in a specific matter or for a specific fee.
c) No, because the call involves contact with someone who has made known to the
lawyer a desire not to be solicited by the lawyer.
d) No, because a lawyer shall not by in-person, live telephone or real-time electronic
contact solicit professional employment when a significant motive for the lawyer's
doing so is the lawyer's pecuniary gain.
410. Attorney sends a solicitation letter to a prospective client, with the designation
“Advertising Material” printed on the outside of the envelope. The recipient of the
letter opens it and reads it, but does not respond. Lawyer then sends a follow-up letter
to the prospective client, again with the designation “Advertising Material” printed on
the outside of the envelope. Could Attorney be subject to discipline for sending the
second letter?
a) Yes, because a lawyer may not solicit individual prospective clients with direct mail
unless the prospective client has requested the information.
b) Yes, if after sending a letter or other communication as permitted by the Rules, the
lawyer receives no response, any further effort to communicate with the recipient
of the communication may violate the provisions of Rules.
c) No, because the lawyer clearly indicated that it was advertising material on the
outside of the envelope.
229
d) No, because the lawyer had no way to know whether the prospective client received
the first letter.
Rule 7.3 Cmt. 6
411. After a hurricane damaged hundreds of homes in a southeastern state, Attorney, who
practices in that state, sent letters to a dozen homeowners in the affected area offering
to represent them in their insurance claims arising out of the storm damage. Each letter
was handwritten and personalized, and Attorney addressed each envelope by hand so
that recipients would perceive it as a personal letter and would be more likely to open
it and read it. At the top of the letter itself, Attorney wrote by hand the words
“Advertising Material.” Were Attorney’s actions proper?
a) Yes, because Attorney clearly indicated at the top of the letter that it was advertising
material.
b) Yes, because Attorney sent the letters only to homeowners in the affected areas
who would be likely to need his help.
c) No, because Attorney did not include the phrase “Advertising Material” on the
outside of the envelope.
d) No, because a lawyer should not send a solicitation letter to those who have recently
experienced a tragedy and are vulnerable to manipulation or coercion.
412. After a hurricane damaged hundreds of homes in a southeastern state, Attorney
received requests for information about legal representation from several affected
homeowners. Attorney wrote back, offering to represent them in their insurance claims
arising out of the storm damage. Each letter was handwritten and personalized, and
Attorney addressed each envelope by hand so that recipients would perceive it as a
personal letter and would be more likely to open it and read it. At the top of the letter
itself, Attorney wrote by hand the words “Advertising Material.” Were Attorney’s
actions proper?
a) Yes, because Attorney clearly indicated at the top of the letter that it was advertising
material.
b) Yes, because the requirement that certain communications be marked "Advertising
Material" does not apply to communications sent in response to requests of
potential clients.
c) No, because Attorney did not include the phrase “Advertising Material” on the
outside of the envelope.
d) No, because a lawyer should not send a solicitation letter to those who have recently
experienced a tragedy and are vulnerable to manipulation or coercion.
Rule 7.3 Cmt. 8
413. Attorney made a lateral move to another firm in the same city where he already
practiced. Attorney sent letters to area residents and businesses, whom he knew to be
230
in need of legal services, announcing that he had gone to work for a new firm and had
a new office address. The letter stated that he was excited about the new opportunities
he would have at this firm to provide excellent legal representation to new clients in
the city. Nowhere on the letter or envelope did Attorney include the words
“Advertising Material.” Could Attorney be subject to discipline for sending these
letters?
a) Yes, because every written communication from a lawyer soliciting professional
employment from anyone known to be in need of legal services in a particular
matter shall include the words "Advertising Material" on the outside envelope.
b) Yes, because Attorney was implicitly soliciting new clients through this general
professional announcement.
c) No, general announcements by lawyers, including changes in personnel or office
location, do not constitute communications soliciting professional employment
from a client.
d) No, because Attorney sent the letters only to area residents and businesses.
Rule 7.3 Cmt. 8
414. Attorney specializes in employment law, especially employer-provided benefits, as
well as health care law. After Congress passes sweeping legislative reforms for the
regulation of employer-sponsored healthcare plans, Attorney sent a letter to her former
business clients offering to help them sort through the changes in employee benefit
plans that the new laws would require. Nowhere did Attorney indicate that these letters
were advertising materials. Could Attorney be subject to discipline for sending these
letters?
a) Yes, because every written communication from a lawyer soliciting professional
employment from anyone known to be in need of legal services in a particular
matter shall include the words "Advertising Material" on the outside envelope.
b) Yes, because Attorney was implicitly soliciting new clients through this general
professional announcement.
c) No, because Attorney sent the letters only to former clients.
d) No, because Attorney is merely offering to implement new laws enacted by the
duly-elected legislature.
415. After a bizarre accident that received heavy media coverage, the victims took the
unusual step of sending written notices to every plaintiff’s firm in the area stating that
the victims did not want to hear from any lawyers about the matter. Attorney received
the notice and promptly forgot about it, because he had not yet seen any of the media
coverage about the accident. Two weeks later, Attorney decided to catch up on the
recent news, and read an article online about the bizarre incident. He sent a letter to
the victims expressing condolences for their suffering and offering to provide legal
services if they decided to file a claim over the incident. The victims read the letter,
changed their minds, and agreed to have Attorney represent them. A lawyer at another
plaintiff’s firm, who had also received the notice from the victims, learned that
Attorney was representing the victims. He made some inquiries and discovered how
231
the Attorney had found his new clients. The lawyer filed a grievance against Attorney
with the state disciplinary authorities. Should Attorney be subject to discipline for the
way in which he offered to represent the victims?
a) Yes, because the target of the solicitation has made known to the lawyer a desire
not to be solicited by the lawyer.
b) Yes, because it was unfair for Attorney to have the opportunity to represent these
clients when other lawyers had diligently avoided soliciting them.
c) No, because the victims decided that they wanted Attorney to represent them.
d) No, because the grievance came from a rival lawyer and the motivation was petty
envy.
416. Attorney specializes in criminal defense work. His advertising, signage, and firm
brochures offer a service that other lawyers in his city do not provide – Attorney
promises to post bail or bond for any client who cannot afford the amount of his bail or
bond. Could Attorney be subject to discipline for such an advertisement offer?
a) Yes, because the advertisement is inherently misleading.
b) Yes, given the coercion and duress inherent in the client's incarceration, using the
promise of securing the client's release from custody as an inducement to engage
the lawyer would be a violation of Rule 7.3(b)(2).
c) No, as long as he actually posts bail or bond for every client who claims to be unable
to afford it themselves.
d) No, because lawyers can post bail for clients under certain circumstances, as long
as it does not generate a conflict of interest that the client is unwilling to waive.
ABA Formal Op. 04-432
417. Attorney is representing a group of plaintiffs in a mass tort claim, and he hopes to
obtain class certification so that it will become a class action lawsuit. Attorney sends
letters to hundreds of potential class members inviting them to join the lawsuit and
inquiring about whether they would be willing to join as a named party in the action.
He does not designate the letters as “advertising material” on the outside because each
recipient is a potential class member of a lawsuit that is already underway, but not yet
certified as a class action. Could Attorney be subject to discipline for sending these
letters?
a) Yes, because if plaintiffs' counsel's goal is to seek to represent the putative class
member directly as a named party to the action or otherwise, the provisions
of Rule 7.3 apply.
b) Yes, because it is always inappropriate for a lawyer to contact putative members of
a class prior to class certification.
c) No, because it is always permissible for lawyers to contact putative members of a
class prior to class certification, and such contact does not constitute solicitation.
d) No, because the lawyer and the class have a legitimate interest in finding the best
possible named plaintiffs for the lawsuit.
ABA Formal Op. 07-445
232
418. Attorney is representing a group of plaintiffs in a mass tort claim, and he hopes to
obtain class certification so that it will become a class action lawsuit. Attorney sends
letters to hundreds of potential class members inviting them to testify as witnesses. All
the statements in the letter are accurate and are not coercive. Even so, he does not
designate the letters as “advertising material” on the outside because each recipient is
a potential class member of a lawsuit that is already underway, but not yet certified as
a class action. Could Attorney be subject to discipline for sending these letters?
a) Yes, because if plaintiffs' counsel's goal is to seek to represent the putative class
member directly as a named party to the action or otherwise, the provisions
of Rule 7.3 apply.
b) Yes, because it is always inappropriate for a lawyer to contact putative members of
a class prior to class certification.
c) No, because it is always permissible for lawyers to contact putative members of a
class prior to class certification, and such contact does not constitute solicitation.
d) No, because Rule 7.3's restrictions do not apply to contacting potential class
members as witnesses, so long as those contacts are appropriate and comport with
the Model Rules.
ABA Formal Op. 07-445
RULE 7.4
Communication Of Fields Of Practice And Specialization
419. On his website, Attorney explains that he handles most areas of personal injury law,
and then displays in large, bold letters: “I DO NOT REPRESENT CLIENTS IN
CRIMINAL MATTERS OR DIVORCE MATTERS – PLEASE FIND ANOTHER
LAWYER IF YOU ARE FACING CRIMINAL CHARGES OR NEED TO LEAVE
YOUR SPOUSE.” Is it improper for a lawyer to make such a statement in his website
or advertising materials?
a) Yes, because a lawyer should not categorically refuse to represent needy clients in
criminal matters or family law matters, as these are the most acute needs for legal
representation.
b) Yes, because a lawyer should state his areas of specialization, not the areas he or
she does not practice, as this information is less useful to consumers.
c) No, because a lawyer may communicate the fact that the lawyer does or does not
practice in particular fields of law.
d) No, because a lawyer is required to disclose in their advertisements if they will
refuse to take criminal clients or handle divorces.
420. Attorney is properly certified as an immigration law specialist by a state bar
organization that provides official certifications. In her advertisements, Attorney
describes herself as a “Certified Specialist in Immigration Law” without identifying the
certifying organization. Attorney also mentions that she speaks Spanish and
Portuguese (besides English), and that her fees are very affordable. Could Attorney be
subject to discipline for making such statements in her advertisements?
233
a) Yes, because she failed to identify the certifying organization.
b) Yes, because a lawyer should not claim in an advertisement that she has special
expertise compared to other lawyers in some area.
c) No, because this lawyer is indeed a certified specialist.
d) No, because a lawyer may not obtain certification in an area of law involving
federal statutes.
421. Attorney specializes in tax law, and primarily represents individuals and entities
defending themselves against enforcement claims by the IRS. Attorney has a
successful practice, but she would like to attract even more clients. She identifies
potential clients, those facing enforcement proceedings, from public records and
filings. She sends each one the following email:
“ADVERTISING MATERIAL: Do you have problems with the IRS? I specialize
in defending individuals and entities against tax evasion and delinquency claims,
and I have decades of experience. For free information, visit my website or reply
to this email. Advertising material.”
Is the tax lawyer subject to discipline for this email?
a) No, as a lawyer may identify potential clients from public records and contact them,
even if they have indicated to the lawyer that they do not want such solicitations
b) No, because lawyers may represent that they specialize in particular fields of law
c) Yes, as a lawyer cannot misleadingly state or imply a certification as a specialist
d) Yes, as the lawyer cannot solicit clients using real-time electronic contact unless
the person contacted the lawyer, or is a relative or close friend of the lawyer, or was
a prior client of the lawyer
422. In his advertisements, Attorney, who practices in California, states, “CERTIFIED
SPECIALIST IN CALIFORNIA LAW.” Attorney is referring to the fact that he passed
the California Bar Exam, not to any other official certification beyond admission to the
California bar. According to the Model Rules of Professional Conduct, is such a
statement proper in a lawyer’s advertisement?
a) Yes, because a lawyer may communicate the fact that the lawyer does or does not
practice in particular fields of law.
b) Yes, because passing a state’s bar exam demonstrates sufficient expertise in the
laws of that state to practice there as a lawyer.
c) No, because a lawyer shall not state or imply that a lawyer is certified as a specialist
in a particular field of law without being certified as a specialist by an official
certifying organization in that state, and without including the name of the
certifying organization in the advertisement.
d) No, because under the Model Rules, lawyers should not claim to be “certified
specialists” in anything.
234
423. Attorney promotes himself on his website and through other advertisements as a
“Patent Attorney.” He is admitted to engage in patent practice before the United States
Patent and Trademark Office, but he does not mention this on his website or in his
advertisements – he simply states that he is a “Patent Attorney.” Is it proper for him to
use this designation without the name of the U.S. Patent and Trademark Office being
clearly identified in the communication as the certifying organization?
a) Yes, because a lawyer admitted to engage in patent practice before the United States
Patent and Trademark Office may use the designation "Patent Attorney" or a
substantially similar designation without further clarification.
b) Yes, but only if he does not handle any other types of cases or matters for clients.
c) No, because a lawyer shall not state or imply that a lawyer is certified as a specialist
in a particular field of law, unless the name of the certifying organization is clearly
identified in the communication.
d) No, because a lawyer shall not state or imply that a lawyer is certified as a specialist
in a particular field of law, unless the lawyer has been certified as a specialist by an
organization that has been approved by an appropriate state authority, and the states
do not approve the U.S.P.T.O.
424. Attorney describes his areas of practice in his advertisements as “real estate” and
“personal injury,” but his state bar requires that lawyers use the less descriptive terms
“property law” and “tort law” instead. Could Attorney be subject to discipline for using
these more descriptive terms instead of the verbiage prescribed by the state bar?
a) Yes, because states have an absolute right to place reasonable requirements on
lawyers pertaining to the verbiage used in their advertisements.
b) Yes, because “real estate” and “personal injury” are inherently misleading terms,
whereas “property law” and “tort law” are very precise.
c) No, because states may not regulate lawyer advertising in any way.
d) No, because lawyers have a First Amendment right to use verbiage that is accurate
and descriptive in their advertisements, as long as the statements are not misleading.
See In re R.M.J., 455 U.S. 191 (1982)
425. In his advertisements and firm brochures, Attorney describes his many years of
experience litigating in a particular area of commercial real estate litigation, without
claiming to be a specialist or an expert. He does not mention any official certification.
Is it permissible for Attorney to boast of his years of experience practicing in a
particular area, even though some readers might infer from this that he is an expert or
a certified specialist?
a) Yes, the Supreme Court has held that state bars may not pass any rules that limit or
sanction communications by lawyers to potential clients.
235
b) Yes, the Supreme Court has held that state bars cannot prohibit lawyers form
describing their years of experience with certain types of cases, as long as the
information is truthful.
c) No, the Supreme Court has held that describing one’s years of experience is too
misleading, because readers could incorrectly infer that the lawyer will obtain
successful results in their case.
d) No, because the lawyer cannot predict what types of cases he will handle in the
future, when new clients hire him.
See Zauderer v. Office of Disciplinary Counsel, 471 U.S. 626 (1985)
426. Attorney identified himself on his letterhead as a “Certified Trial Specialist by the
National Board of Trial Advocacy.” Attorney’s state has no lawyer certification
program of its own, besides admission to the bar. Is it inherently misleading, and
therefore improper, for Attorney to list a certification if it did not come from an
organization that has been approved by an appropriate state authority?
a) Yes, because the traditional rule is that lawyers may state areas in which they
practice, but may not claim to be certified specialists in anything.
b) Yes, because consumers are likely to think that the state bar actually certified
Attorney as a Trial Specialist.
c) No, because the Supreme Court has held that such statements are merely
“potentially misleading” and that it would violate the First Amendment for states
to prohibit such statements completely.
d) No, because the Model Rules place no restrictions on lawyers making claims about
certifications, expertise, or specialization.
See Peel v. Attorney Registration & Disciplinary Comm’n, 496 U.S. 91 (1990)
RULE 7.5 FIRM NAMES AND LETTERHEAD (NOTE: The Examiners do not list
Rule 7.5 as a topic that is on the MPRE exam, BUT it appears that a recent MPRE
exam included TWO questions based on Rule 7.5)
427. Attorney’s law firm is simply “The Law Offices of [Attorney’s name], Esq.” Attorney
specializes in courtroom litigation. His website address is www.mytrialattorney.com.
Attorney selected this domain name and registered it so that he could use it for his law
firm’s website. Is this website address/domain name proper for Attorney’s law firm?
a) Yes, because it is not misleading, and lawyer or law firm may also be designated
by a distinctive website address or comparable professional designation.
b) Yes, because “internet neutrality” requires that anyone can use any domain name
they want.
236
c) No, because the ABA Model Rules require that law firm domain names include the
names of the partners.
d) No, because the ABA Model Rules forbid lawyers from designating themselves
with a distinctive website address.
Rule 7.5 Cmt 1
428. Attorney’s law firm is simply “The Law Offices of [Attorney’s name], Esq.” Attorney
specializes in courtroom litigation. He sees himself as a savior to his clients, who really
appreciate his help. His website address is www.mytrialattorney.org. Attorney
selected this domain name and registered it so that he could use it for his law firm’s
website. Is this website address/domain name proper for Attorney’s law firm?
a) Yes, because it is not misleading, and lawyer or law firm may also be designated
by a distinctive website address or comparable professional designation.
b) Yes, because “internet neutrality” requires that anyone can use any domain name
they want.
c) No, because the ABA Model Rules require that law firm domain names include the
names of the partners.
d) No, because the use of “.org” as the ending of the domain name suggests that the
firm is a charitable legal aid clinic, so it is misleading.
429. Attorney practices in a small town in a rural area. His law firm’s sign reads, “HOME
TOWN ATTORNEY.” Attorney’s entire practice consists of representing local
townsfolk. Other lawyers and law firms in the town use more traditional designations,
listing the named partners on their signage and advertising. Could Attorney be subject
to discipline for using this designation for his law firm?
a) Yes, because the name suggests that he is associated with the municipal
government in that locale.
b) Yes, because he is not the only lawyer in the town, so he should not have a sign
suggesting that he is the only lawyer in town.
c) No, because the sign is not misleading or untruthful, and a law firm may use a
trade name instead rather than lawyers’ personal names.
d) No, because the rules pertaining to firm names and letterheads do not apply to
sole practitioners.
430. Attorney left Big Firm to open his own practice. Not wanting to sound alone and
isolated, he decided to call it “[Attorney’s Name] & Associates,” even though he had
no lawyers working for him. Nevertheless, he did have a receptionist and a paralegal.
Could Attorney be subject to discipline for using this name for his firm?
a) Yes, because the name is misleading if there are no lawyer associates working for
Attorney.
b) Yes, because the Model Rules require sole practitioners to invert the order and call
it “Associates & [Attorney Name]”
c) No, because the name is not misleading or confusing to the public.
d) No, because the name is his personal name, and “associates” could include his
nonlawyer staff.
237
431. Attorney left Big Firm to open his own practice. He decided to give it a grandiose
name, and called it “The Law Firm of America.” He hopes someday to have offices in
all fifty states. Could Attorney be subject to discipline for using this name for his firm?
a) Yes, because he does not yet have offices in all fifty states.
b) Yes, a trade name may be used by a lawyer in private practice only if it does not
imply a connection with a government agency
c) No, because he intends to have offices in all fifty states someday.
d) No, because a trade name may be used by a lawyer in private practice if it does not
imply a connection with a government agency, and there is no agency named,
“America.”
432. Three lawyers open a new firm (a partnership) together and call it “The Houston
Litigation Center,” named after the city where they practice. Their advertising,
brochures, and signage contain no disclaimers disavowing any connection with the
Houston municipal government or with the Houston City Attorney’s Office, which is a
department of the municipal government. Could they be subject to discipline for using
this name?
a) Yes, because a trade name may be used by a lawyer in private practice only if it
does not imply a connection with a government agency or subdivision of
government.
b) Yes, because the firm name does not include the names of the three founding
partners.
c) No, because a firm may use the name of the city where they have their office, but
not the state or federal government.
d) No, because there is nothing untruthful or misleading about the name, as long as
they have headquarters in Houston.
433. Attorney outsources complicated legal research to a firm that exclusively provides
background legal research for lawyers. Client is a nationwide business with branches
operating in all fifty states, so he needs information about his legal responsibilities
regarding a particular issue in every state – a state-by-state survey. Attorney represents
himself as a sole practitioner. Could Attorney be subject to discipline for failing to
inform Client that he plans to outsource the 50-state survey to a research firm?
a) Yes, because the client may prefer to hire fifty separate research firms to investigate
the issue in each state.
b) Yes, because lawyers must not misrepresent their partnership with others or other
organizations.
c) No, because this is no different than delegating research tasks to an in-house
associate attorney.
d) No, as long as the lawyer does not affirmatively deny that he will outsource the
legal work.
ABA Formal Op. 08-451
238
Rule 7.6
Political Contributions To Obtain Legal Engagements Or Appointments
By Judges
434. Attorney solicits campaign contributions on behalf of an elected judge who is running
for reelection. The judge wins reelection, and shows his gratitude to Attorney by
frequently appointing him to represent indigent defendants at the state’s expense.
Attorney engaged in the solicitation of contributions for the judge’s reelection
campaign because he hoped to receive such appointments. The fees from the
appointments are disappointing, though, and Attorney later realizes that the fees earned
from these appointments were not equal to the time Attorney spent soliciting the
contributions.
Could Attorney be subject to discipline for accepting these
appointments?
a) Yes, because a lawyer shall not accept a government legal engagement or an
appointment by a judge if the lawyer makes a political contribution or solicits
political contributions for the purpose of obtaining or being considered for that type
of legal engagement or appointment.
b) Yes, because this type of quid-pro-quo arrangement constitutes a bribe.
c) No, because the fees earned from the appointments did not match the time Attorney
spent soliciting contributions, so at least some of the solicitation was merely
volunteer activity.
d) No, because all constituents who donate or solicit donations for election campaigns
are hoping to receive some direct or indirect benefits as a result.
435. Attorney solicits campaign contributions on behalf of an elected judge who is running
for reelection. Attorney engaged in the solicitation of contributions for the judge’s
reelection campaign because he hoped to receive court appointments. The judge won
reelection, but never rewarded Attorney by appointing him to represent indigent
defendants at the state’s expense. Could Attorney be subject to discipline for soliciting
funds for a judge with such self-interested motives?
a) Yes, because a lawyer shall not accept a government legal engagement or an
appointment by a judge if the lawyer makes a political contribution or solicits
political contributions for the purpose of obtaining or being considered for that type
of legal engagement or appointment.
b) Yes, because this type of quid-pro-quo arrangement constitutes a bribe.
c) No, because the lawyer never received or accepted any appointments after soliciting
the contributions.
d) No, because all constituents who donate or solicit donations for election campaigns
are hoping to receive some direct or indirect benefits as a result.
436. Attorney volunteered for a judge’s reelection campaign because he hoped to receive
court appointments. He drives the judge from campaign stop to campaign stop without
receiving any compensation for his time or effort. The judge wins reelection, and shows
his gratitude to Attorney by frequently appointing him to represent indigent defendants
239
at the state’s expense. The appointments turn out to be lucrative and generate
substantial fees for Attorney. Could Attorney be subject to discipline for soliciting
funds for a judge with such self-interested motives?
a) Yes, because a lawyer shall not accept a government legal engagement or an
appointment by a judge if the lawyer makes a political contribution or solicits
political contributions for the purpose of obtaining or being considered for that type
of legal engagement or appointment.
b) Yes, because this type of quid-pro-quo arrangement constitutes a bribe.
c) No, because all constituents who donate or solicit donations for election campaigns
are hoping to receive some direct or indirect benefits as a result.
d) No, because for purposes of this Rule, the term "political contribution" does not
include uncompensated services.
Rule 7.6 Cmt. 2
437. Attorney made substantial financial contributions to the reelection campaign of an
elected judge. The judge won reelection, and showed his gratitude to Attorney by
frequently appointing him to represent indigent defendants at the state’s expense.
Attorney made the donations not because he hoped to receive such appointments, but
because he honestly believed that the judge was the best candidate for the position.
Attorney especially admired the fact that the judge had attended Harvard Law School
and that the judge was an active member of the Federalist Society. Could Attorney be
subject to discipline for accepting these appointments?
a) Yes, because a lawyer shall not accept a government legal engagement or an
appointment by a judge if the lawyer makes a political contribution or solicits
political contributions.
b) Yes, because attending Harvard Law School is not a valid reason to believe that a
candidate would make a good judge.
c) No, because all constituents who donate or solicit donations for election campaigns
are hoping to receive some direct or indirect benefits as a result.
d) No, because the lawyer’s motivation was a sincere political or personal support for
the judge’s candidacy, not a design to receive court appointments.
438. Attorney made substantial financial contributions to the reelection campaign of an
elected judge. The judge won reelection, and showed his gratitude to Attorney by
frequently appointing him to represent indigent defendants at the state’s expense.
Attorney claims that he made the donations not because he hoped to receive such
appointments, but because he honestly believed that the judge was the best candidate
for the position, though he could not explain why. In addition, it turned out that in the
aggregate, Attorney gave more than every other lawyer or law firm in the judge’s
district. Could Attorney be subject to discipline for accepting these appointments?
a) Yes, because a lawyer or law firm shall not accept a government legal engagement
or an appointment by a judge if the lawyer or law firm makes a political contribution
or solicits political contributions for the purpose of obtaining or being considered
for that type of legal engagement or appointment.
240
b) Yes, because contributions that in the aggregate are substantial in relation to other
contributions by lawyers or law firms, made for the benefit of an official in a
position to influence award of a government legal engagement, and followed by an
award of the legal engagement to the contributing or soliciting lawyer or the
lawyer's firm would support an inference that the purpose of the contributions was
to obtain the engagement
c) No, because all constituents who donate or solicit donations for election campaigns
are hoping to receive some direct or indirect benefits as a result.
d) No, because the lawyer’s motivation was a sincere political or personal support for
the judge’s candidacy, not a design to receive court appointments.
Rule 7.6 Cmt 5
439. Attorney made substantial financial contributions to the reelection campaign of an
elected judge. The judge won reelection, and showed his gratitude to Attorney by
frequently appointing him to serve as referee or mediator in situations where Attorney
received no compensation except reimbursement for travel expenses. Attorney made
the donations because he hoped to receive such appointments, but received no fees as
a result. Could Attorney be subject to discipline for accepting these appointments?
a) Yes, because a lawyer or law firm shall not accept a government legal engagement
or an appointment by a judge if the lawyer or law firm makes a political contribution
or solicits political contributions for the purpose of obtaining or being considered
for that type of legal engagement or appointment, regardless of the amount of the
fees earned.
b) Yes, because this type of quid-pro-quo arrangement constitutes a bribe.
c) No, because all constituents who donate or solicit donations for election campaigns
are hoping to receive some direct or indirect benefits as a result.
d) No, because the term "government legal engagement" does not include
substantially uncompensated services.
Rule 7.6 Cmt 3
440. Attorney made substantial financial contributions to the reelection campaign of an
elected judge. The judge won reelection, and Attorney thereafter received court
appointments to represent indigent defendants at the state’s expense, and over time
these appointments turned out to be lucrative in terms of generating high legal fees.
All appointments were made on a rotational basis from a list compiled without regard
to political contributions. Attorney made the donations because he hoped to receive
such appointments, and became wealthy as a result. Could Attorney be subject to
discipline for accepting these appointments?
a) Yes, because a lawyer or law firm shall not accept a government legal engagement
or an appointment by a judge if the lawyer or law firm makes a political contribution
or solicits political contributions for the purpose of obtaining or being considered
for that type of legal engagement or appointment, regardless of the amount of the
fees earned.
241
b) Yes, because this type of quid-pro-quo arrangement constitutes a bribe.
c) No, because all constituents who donate or solicit donations for election campaigns
are hoping to receive some direct or indirect benefits as a result.
d) No, because the term "government legal engagement" does not include
appointments made on a rotational basis from a list compiled without regard to
political contributions.
Rule 7.6 Cmt 3
ANSWER KEY
Rule 7.1
415. a
416. b
417. a
418. d
389. a
390. a
391. c
392. c
393. a
Rule 7.4
419. c
420. a
421. b
422. c
423. a
424. d
425. b
426. c
Rule 7.2
394. a
395. c
396. d
397. c
398. a
399. b
400. c
401. b
402. a
403. d
Rule 7.5
427. a
428. d
429. c
430. a
431. b
432. a
433. b
Rule 7.3
404. a
405. b
406. b
407. c
408. a
409. c
410. b
411. c
412. b
413. c
414. c
Rule 7.6
434. a
435. c
436. d
437. d
438. b
439. d
440. d
242
243
Different roles of the lawyer (4–10%, 2-6 MPRE
Questions) Rules 2.1-2.4, 3.8-3.9, and 1.13
1. Lawyer as advisor – Rule 2.1
2. Lawyer as evaluator – Rule 2.3
3. Lawyer as negotiator – Rule 2.4
4. Lawyer as arbitrator, mediator etc Rule 2.4
5. Prosecutors and other government lawyers – Rule
3.8
6. Lawyer appearing in nonadjudicative proceeding –
Rule 3.9
7. Lawyer representing an entity or other organization
– Rule 1.13
244
Rule 2.1
Advisor
441. Halfway through a trial, Attorney can tell that his client is going to lose. The opposing
party successfully impeached Attorney’s only favorable witness, and the judge has
already told the parties that he plans to follow the state’s model jury instructions for
this type of case, which effectively preclude the legal theory that Attorney had made
the centerpiece of his case. During a lunchtime break, Client turns to Attorney and
tearfully asks if they still have any chance of winning. Attorney does not want to make
her cry and feels very awkward about the situation, so in order to spare her feelings, he
assures Client that they still have a good chance of prevailing. Attorney is representing
Client on a contingent fee basis, so he knows it will not cost the Client any more in
legal fees to finish the trial. At the same time, there is still an open settlement offer on
the table from the other party, albeit a very small, unsatisfying settlement, which Client
could accept at any time if she wants to terminate the litigation. Is it proper for Attorney
to feign confidence in order to protect Client’s feelings?
a) Yes, because the lawyer is working on a contingent fee basis, so finishing the case
will not cost the client any more in legal fees.
b) Yes, because a lawyer should think about moral, social, and psychological factors
when deciding whether to answer the client in stark, realistic terms.
c) No, because a lawyer must encourage a client to accept a settlement offer if the
client would be better off doing so than by proceeding with the litigation.
d) No, because in representing a client, a lawyer shall render candid advice.
Rule 2.1
442. Client repeatedly calls Attorney to discuss her pending divorce case. Client wants
above-guideline child support, alimony, and a large percentage of the estate, even
though the parties have only been married two years. Attorney has continuously given
his honest opinion about what he believes Client is eligible to receive, and what he
believes she may receive in the divorce based on his experience. Client has recently
become angry with Attorney because she is unhappy with his opinion. She has even
asked, “Are you working for me or my Husband?” In an effort to keep Client happy,
Attorney begins to tell Client what he believes she is eligible to receive when she asks,
but simply states “the Court will decide” when Client asks Attorney what he believes
she will receive. Are Attorney’s actions proper?
a) Yes, attorney may respond to a client’s requests for attorney’s opinion in any
manner that will maintain client’s morale, including refusing to give advice if
attorney believes the client will not be accepting of attorney’s advice.
b) Yes, attorneys are not required to give their opinions or advice, but may, at any
time, respond to clients by referring them to the appropriate legal authority or by
advising them that the court will ultimately decide the issue, if applicable.
c) No, an attorney should give his honest opinion about the case when asked, even if
the opinion is unsatisfactory to the client.
d) No, attorneys should always give advice to clients that encourages the client to have
confidence in the client’s position.
Rule 2.1
443. Attorney represents Client, who lost his criminal appeals and is now serving a life
sentence in a federal penitentiary. Client confesses to Attorney that he (Client)
245
committed a murder for which a jury incorrectly convicted another (innocent) man.
Client says he is happy that someone else took the fall for that crime and that he will
never tell anyone. Attorney lectures Client about the morality of this situation, allowing
an innocent man to face life imprisonment or even capital punishment for a crime that
Client committed, and pleads with Client to reveal the truth. Was it proper for Attorney
to bring morality into his consultation with Client, and to sermonize on this point for a
few moments?
a) Yes, because in rendering advice, a lawyer may refer not only to law but to other
considerations such as moral factors.
b) Yes, because Attorney will have an obligation under the Model Rules to disclose
the information if Client does not reveal the truth.
c) No, because in rendering advice, a lawyer may refer only to legal and financial
considerations, and not to personal views about morals or politics.
d) No, because urging the client to reveal information that could overturn a final jury
verdict undermines the finality of court decisions and the public’s confidence in the
legal system.
Rule 2.1
444. Client hired Attorney to represent him in a simple real estate matter. When Attorney
asked some standard questions about the financial arrangements for the sale and
purchase of the property, Client was somewhat evasive on a few points, but provided
the information necessary to complete the legal work for the transaction. Attorney also
heard from a friend that Client frequently cavorted with prostitutes. Attorney finds
Client rather suspicious and has many unanswered questions, but none surrounding the
transaction that occasioned the representation. Does Attorney have an ethical duty to
inquire into the affairs of a suspicious client?
a) Yes, because it is possible that Client is engaging in some kinds of illegal activity,
and it is important to uncover whatever that might be.
b) Yes, because Attorney has a right to know what kind of person he is representing
in this simple real estate transaction.
c) No, because a lawyer must never invade the privacy of a client in any way.
d) No, because a lawyer ordinarily has no duty to initiate investigation of a client's
affairs or to give advice that the client has indicated is unwanted.
Rule 2.1 Cmt. 5
445. Client hires Attorney to help with the legal documents necessary to liquidate most of
his investments so that he can use the cash to fund a new business venture. Client
explains that he plans to quit his regular job and start a new career working from home
as a “day trader,” buying and selling stocks online every day in hopes of making large
profits. Client has no experience or training in finance or investments, but he attended
a seminar that featured testimonials from others who claimed to have made millions as
day traders. Attorney thinks this is a foolish idea, but Client does not ask Attorney for
his advice. Does Attorney have an ethical duty to caution Client against his seemingly
reckless decision?
a) Yes, because a lawyer has a duty to offer sound advice and not wait for a client to
ask questions to solicit the specific information.
246
b)
c)
d)
Yes, if Attorney suspects that Client will eventually have trouble paying his legal
fees.
No, because many day traders are indeed successful, and this client could be one of
the fortunate ones.
No, because a lawyer is not expected to give advice until asked by the client.
Rule 2.1 Cmt. 5
446. An insurance company retained Attorney to represent one of its policyholders (i.e., an
insured) against a lawsuit. The insurance company that hired Attorney requires its
retained counsel to follow its own litigation management guidelines, designed to
monitor the fees and costs of the lawyers the insurer retains. The litigation management
guidelines include the requirement of a third-party audit of legal bills. Although the
guidelines usually serve the interests of both the insured and the insurer by keeping
litigation costs low and expediting the resolution of the case, in this instance Attorney
finds that the guidelines require tactical moves that are adverse to the insured’s
interests. The insurer claims that the insured impliedly consented to the guidelines by
agreeing contractually in the insurance policy to “cooperate” during litigation. The
insurance company hired Attorney for the case. Should Attorney comply with the
insurer’s litigation management guidelines?
a) Yes, because the insured impliedly consented to the arrangement by accepting the
insurance company’s choice of legal counsel in defending the claim.
b) Yes, because the insurer retained Attorney to handle the case.
c) No, because a lawyer shall exercise independent professional judgment, and the
insurer’s litigation management guidelines in this instance materially impair the
lawyer’s professional judgment.
d) No, because a lawyer hired by an insurance company to represent an insured should
always represent the interests of the insured rather than the insurer.
Rule 2.1; ABA Formal Op. 01-421
447. Attorney agreed to prepare a will for Client, a wealthy widow with three grown
children. An earlier will divided her estate equally between her children, but Client
now wants to modify the will to disinherit her only daughter, who disobeyed Client’s
wishes by marrying outside their nationality. The daughter is also a lawyer and is
married to a lawyer, and the estate is substantial. Client’s two sons are both working
as manual laborers and they struggle financially. In the past, there had been some
tension between the brothers and their sister, although the relationships seem to be
cordial now. Attorney believes that disinheriting the daughter will ensure that the
daughter and her husband will contest the will after Client’s death, and will rupture the
tenuous relationship between the siblings. Client did not ask for Attorney’s advice
about disinheriting the daughter, she just insisted on it. Attorney initiated a debate
about it, explaining that he believed it could be against Client’s best interests and would
cause unnecessary acrimony between her children. Was it proper for Attorney to
initiate such advice when Client did not ask for it?
a) Yes, because a lawyer may initiate unrequested advice to client when doing so
appears to be in client's interest.
247
b) Yes, because a lawyer has a duty to refer not only to law but also to other
considerations such as moral factors that may be relevant to the client's situation.
c) No, because a lawyer is not expected to give advice until asked by the client, and
should normally wait until asked for such advice, especially when the advice is not
strictly a statement of the law on a subject.
d) No, because a testator has a sacred right to devise her estate as she wishes.
Rule 2.1; ABA Formal Op. 05-434 note 15
448. Attorney represented Client in tort litigation against a pharmaceutical company over
injuries allegedly resulting from one of the company’s drugs. During a pretrial hearing
about the admissibility of certain evidence, the court ruled against Attorney and ordered
that the evidence was inadmissible at trial. Attorney then contacted a reporter from a
prominent newspaper and gave him a lengthy interview explaining the case, discussing
the upcoming trial, and giving the reporter the very evidence that the court had held
should be inadmissible at the trial. The newspaper ran the story on the same day that
jury selection began for the trial. Opposing counsel moved to disqualify Attorney due
to misconduct in the matter, that is, the public disclosure of the inadmissible material
in an attempt to taint the jury pool. The court agreed to disqualify Attorney on the eve
of trial. Another firm was already representing Client as co-counsel, so that firm agreed
to continue with the trial work alone. Attorney filed an interlocutory appeal, which he
lost at the appellate court and appealed to the Supreme Court. Delaying the trial with
this interlocutory appeal was clearly against Client’s interest, but was necessary for
Attorney to continue to handle this big case. Is it proper for Attorney to appeal his
disqualification if it is not clearly in Client’s interest to do so?
a) Yes, because the lawyer’s interests and the client’s interests presumptively align in
litigation.
b) Yes, because the other lawyer might not obtain as favorable a result for the client
as Attorney would.
c) No, because the decision to appeal should turn entirely on the client's interest.
d) No, because the disqualification was for lawyer misconduct rather than a conflict
of interest.
Rule 2.1; Richardson-Merrell, Inc. v. Koller, 472 U.S. 424, 435 (1985)
ANSWER KEY RULE 2.1
441. d
442. c
443. a
444. d
445. d
446. c
447. a
448. c
248
Rule 2.4
Lawyer Serving as Third-Party Neutral
449. Attorney, who often serves as a court-appointed mediator, was appointed to mediate
the divorce case between Husband and Wife. The case settled in mediation and the
divorce was finalized soon after. A year later, Husband sought to retain Attorney to
represent him in a modification suit against Wife. Attorney accepted the case and sent
a letter to Wife advising Wife that Attorney had been retained by Husband to represent
Husband in a modification suit. Are Attorney’s actions proper?
a) Yes, an attorney who previously served as a third-party neutral may represent any
party in a suit connected to the previous matter if the attorney provides proper
notice to the other party in writing.
b) Yes, an attorney who previously served as a third-party neutral may represent any
party in a suit connected to the previous matter if the previous case occurred more
than one year before the third party neutral began representation of one of the
parties.
c) No, an attorney who previously served as a third-party neutral is required to obtain
informed consent, confirmed in writing, from all parties to the proceeding prior to
representing a party in a suit connected to the previous matter.
d) No, an attorney who previously served as a third-party neutral shall not represent
any party in a suit connected to the previous matter.
Rule 2.4 Cmt.4
450. Husband and Wife are attending court-ordered mediation with Attorney, who is
serving as the neutral mediator. Husband is represented by counsel, but wife is not.
During mediation, Wife asks Attorney for his advice, and asks whether he believes that
Husband’s offer is a “good deal” for her. Attorney explains that his position as
mediator only allows him to facilitate the negotiating process. Wife continues to seek
Attorney’s advice about the settlement proposals Husband makes. Attorney finally
tells Wife what she is getting is a decent percentage of the estate and that he believes it
to be a “good deal” for her. Attorney also informs Wife again that he does not represent
her and that anything he says should be construed as general information, not legal
advice. Are Attorney’s actions proper?
a) Yes, attorneys serving as mediators are allowed to give their opinions about
settlement offers to clients, as their experience as mediators offers insight that
would not be obtainable by clients elsewhere.
b) Yes, attorneys serving as mediators are required to inform parties that their role is
to facilitate the negotiation process, and are then allowed to give general advice as
long as they inform the party that any advice given should be taken as general
information, not as legal advice.
c) No, attorneys serving as mediators shall inform the parties that their role is to
facilitate the negotiation process and is not to represent or give legal advice to
participating parties.
d) No, attorneys are not allowed to give legal advice or their opinions to unrepresented
persons who do not have an attorney also in attendance to further advise the
unrepresented person.
Rule 2.4(b)
249
451. A law school suffers from deep divisions among its faculty. One group of the faculty
dislikes the Dean and wants to force his resignation with a vote of no confidence and
pressure on the Board of Trustees. The other group is loyal to the Dean and resents
their disloyal colleagues, whom they consider unprofessional. The controversy
surrounding the law school’s Dean overlaps with faculty divisions over hiring
practices, tenure, and whether the school should try to emulate top-tier law schools in
order to boost their national rankings, or if they should focus instead exclusively on
pedagogy and preparing the students for the practice of law after graduation. The
divisions are so great that each faction has threatened to quit, or take other drastic action
that would imperil the school’s existence, if their side does not prevail. The Board of
Trustees obtains an agreement from both factions on the faculty that they will hire
Attorney to function as a third-party neutral to attempt to broker a compromise between
the factions on the faculty. Attorney is an alumnus of the law school and offers to serve
in this capacity without charging legal fees. He claims that he is not representing the
Board, the Dean, or either side of the balkanized faculty. He begins to schedule private
conferences with each faculty group, the Dean, and the Board, as well as meetings
attended by representatives from each faction of the faculty to have deliberations and
consider possible compromises. Attorney also insists that he is not an arbitrator or
mediator because no litigation over the dispute is pending or even contemplated at this
point. Is it proper for Attorney to serve in this capacity?
a) Yes, because a lawyer can serve as a third-party neutral when the lawyer assists
two or more persons who are not clients of the lawyer to reach a resolution of a
dispute or other matter that has arisen between them.
b) Yes, because in this situation, the lawyer represents all of the parties jointly for
purposes of the Rules of Professional Conduct, and all the parties have consented
to any potential conflicts of interest.
c) No, because it is unclear whom, if anyone, the lawyer represents in this situation,
so it is impossible to ascertain the lawyer’s duty of loyalty.
d) No, because the lawyer is an alumnus of the law school and therefore is not truly
neutral in the dispute.
Rule 2.4(a)
ANSWERS RULE 2.4
449. c
450. c
451. a
250
Rule 3.8
Special Responsibilities of a Prosecutor
452. A prosecutor brought charges against a defendant for rape and murder, but only one
witness could link the defendant to the crime, and that witness disappeared
mysteriously while the defendant was out on bail awaiting trial. The prosecutor’s case
collapsed and the defendant won an easy acquittal, even though the defendant had
confessed to the murder. The confessional turned out to be inadmissible because the
police erred in failing to read the defendant all of his rights before taking his confession,
which he later recanted. The prosecutor now has some evidence – less than probable
cause but enough to be worth a try – that the defendant committed check fraud, so he
brings charges in hopes that the attenuated charges will stick this time, and the
dangerous murderer will be off the streets, regardless of the reason. Is the prosecutor
in compliance with his ethical duties as a lawyer?
a) Yes, because he is trying to protect the public from a dangerous criminal, and the
defendant still has a fair chance to beat the charges in the new case, especially if
the evidence is weak.
b) Yes, because the “beyond a reasonable doubt” burden of proof in a criminal case
provides protection for defendants when prosecutors bring unfounded charges.
c) No, because the prosecutor is trying to use a lesser charge to incarcerate a murderer,
which will result in the murderer receiving an unfairly short sentence.
d) No, because the prosecutor in a criminal case shall refrain from prosecuting a
charge that the prosecutor knows is not supported by probable cause.
Rule 3.8(a)
453. A prosecutor sees the backlog of prosecutions coming from his office and feels
concern about whether all the cases will come to trial in time to comply with the Speedy
Trial Act. In order to expedite some of the simpler cases, the prosecutor asks arrestees
to waive their right to a pre-trial hearing, which saves up to a week due to scheduling
complications, and allows the defendants’ cases to come to trial sooner. Because most
of the defendants in these cases are unrepresented by counsel, the prosecutor explains
that they have a right to a preliminary hearing, but that defendants without a lawyer
usually accomplish little or nothing at such hearings, and that the defendant will have
a full trial at which to argue his innocence. He also explains that if the defendant
believes he can win an acquittal, waiving a preliminary hearing might bring about the
defendant’s moment of freedom a bit sooner. Nearly all the defendants without
representation agree to waive their preliminary hearings, which relieves some of the
pressure on the local criminal docket and makes this more manageable for everyone.
Is the prosecutor behaving properly in this regard?
a) Yes, because he is making a good-faith effort to expedite the proceedings, which is
good for the defendants who are innocent and want to get their trials done sooner
rather than later.
b) Yes, because he is apprising them of their rights before asking them to waive the
right to a preliminary hearing.
c) No, because it is improper for a prosecutor to have any direct contact with an
unrepresented defendant before trial.
d) No, because a prosecutor must not seek to obtain from an unrepresented accused a
waiver of important pretrial rights, such as the right to a preliminary hearing.
251
Rule 3.8(c)
454. Attorney works as a prosecutor and brings charges against a defendant. Attorney
clearly has probable cause for alleging that the defendant committed the crime, but he
also doubts that a judge or jury will find that the evidence satisfies the standard of
“beyond a reasonable doubt.” Attorney brings the case anyway, and the defendant wins
an acquittal. Has Attorney acted improperly, under the Rules of Professional Conduct?
a) Yes, because a prosecutor in a criminal case shall not seek a conviction unless the
prosecutor believes in good faith that the defendant is guilty beyond a reasonable
doubt.
b) Yes, because the prosecutor should have conducted more investigation before
commencing the proceedings so that he could ensure a conviction, if he already has
probable cause to believe the defendant is guilty.
c) No, because when a prosecutor knows of clear and convincing evidence
establishing that a defendant in the prosecutor’s jurisdiction was convicted of an
offense that the defendant did not commit, the prosecutor shall seek to remedy the
conviction.
d) No, because a prosecutor may bring charges as long as the prosecutor knows the
charges are supported by probable cause.
Rule 3.8(a)
455. What is the basic difference between a prosecutor’s duties under Brady v. Maryland
and the duties under MRPC 3.8?
a) Brady requires prosecutors to turn over all material exculpatory information, while
the Model Rules require prosecutors to turn over any information that tends to
negate guilt of the accused or mitigate the offense, which is more inclusive.
b) The Model Rules require prosecutors to turn over all material exculpatory
information, while Brady requires prosecutors to turn over any information that
tends to negate guilt of the accused or mitigate the offense, which is more inclusive.
c) The two standards are identical.
d) The Model Rules apply even before the filing of criminal charges, while Brady
requirements apply only if a case goes to trial.
Rule 3.8(d)
456. Attorney is an Assistant U.S. Attorney (federal prosecutor) working for the
Department of Justice, and he must prosecute the defendants arrested in a high-profile
sting operation against a terrorist cell. Attorney faces tremendous political and media
pressure to win convictions at any cost. Attorney argues with his supervisor that he is
not subject to local ethics rules, as he is litigating exclusively in federal court in cases
involving federal law, and that he should therefore be immune from state bar
disciplinary proceedings. Is Attorney correct?
a) Yes, because of federal preemption of state law, a federal prosecutor who litigates
exclusively in federal court, under federal law, does not come under the jurisdiction
of the local bar disciplinary authorities.
252
b) Yes, because under the USA Patriot Act, federal prosecutors are immune from
disciplinary actions for their decisions in antiterrorism prosecutions.
c) No, because Attorney will inevitably have cases that involve questions of state law,
or will have cases transferred to state court.
d) No, because federal statute, as well as Department of Justice regulations, subject
federal prosecutors to the ethics rules of the state where such attorney engages in
that attorney’s duties.
28 U.S.C. § 530B; 28 C.F.R. §77.3
457. A prosecutor receives a call from a crime lab about some DNA samples that someone
had misplaced years before in a freezer at the lab. The DNA related to one of the
prosecutor’s former cases. Someone at the crime lab had checked the files and realized
that the defendant in the case had been convicted of rape and murder, and was serving
a life sentence in prison, but that the DNA evidence absolutely exonerates the defendant
and points instead to the victim’s cousin as the perpetrator. Does the prosecutor have
specific ethical duties about what to do regarding this information?
a) Yes, the prosecutor must notify the defense counsel of the man who was wrongfully
convicted, and must investigate to see if there is corroboration for the new
confession to the crime by the New York defendant.
b) Yes, the prosecutor shall seek to remedy the conviction.
c) No, as long as the prosecutor believes that the original defendant really did commit
the crime.
d) No, unless other evidence turns up to corroborate the story that the crime lab just
told the prosecutor, the prosecutor does not need to take any action.
Rule 3.8(g)
458. A prosecutor discovers a single item of evidence that partly undermines the state’s
case against a criminal defendant – the state’s star witness in the case, the prosecutor
learns, had a suspension from high school for an instance of egregious plagiarism. The
prosecutor believes this is not material in that it would not change the outcome of the
case, because the incident occurred ten years ago and the witness is now an undercover
police officer-informant. In fact, the prosecutor believes it is trivial, and he is correct
that the item would not fall under the duty of disclosure set forth by the U.S. Supreme
Court in Brady v. Maryland. At the same time, the defense lawyer in the case has a
reputation for making much ado about nothing, prolonging trials unnecessarily with
tedious minutia. Prosecutor decides to keep the information about the high school
suspension to himself and let defense counsel discover it on his own if he wants. Is
this action proper for the prosecutor to take?
a) Yes, because the trivial incident in the distant past is extremely unlikely to prove
helpful to the defendant in a substantial way.
b) Yes, because the defense lawyer can find the information himself and admit it into
evidence; the prosecutor does not have to do the other lawyer’s work for him.
253
c) No, because the evidence is material in that it substantially impeaches the
credibility of a key witness against the defendant.
d) No, because the evidence tends to negate the guilt of the accused.
Rule 3.8(d)
459. A prosecutor in New York is engaged in plea bargain negotiations with a defendant
and defense counsel. The defendant offers to confess to a much more serious crime,
committed several years ago in California, if the prosecutor will drop the current
charges, which will put the defendant in danger of retaliation from his gang once he is
in prison. The prosecutor agrees, and the defendant confesses to a notorious armored
car robbery in California ten years earlier that made national news, and for which
another man had been convicted and was serving his sentence. The defendant describes
the crime with sufficient detail that the prosecutor doubts that he could be fabricating
the story. Does the prosecutor have any ethical duties about what to do with this
information?
a) Yes, the prosecutor must notify the defense counsel of the man who was wrongfully
convicted, and must investigate to see if there is corroboration for the new
confession to the crime by the New York defendant.
b) Yes, the prosecutor must promptly disclose that evidence to an appropriate court or
authority.
c) No, the prosecutor does not have to take any action unless there is clear and
convincing evidence that the wrong person was convicted of a crime and is in
prison.
d) No, because the prosecutor cannot breach his duty of confidentiality, but he should
urge the defendant to contact the authorities in California directly so that the
wrongfully-convicted man can get out of prison.
Rule 3.8(g)
460. Three years after prosecuting a defendant and obtaining a conviction for murder,
another individual comes to the police station and confesses to committing the very
murder for which the defendant is already serving time. The defendant always
maintained his innocence and the basis of his conviction was an identification (in a
lineup) by a single eyewitness. The person now confessing to the crime also fits the
description given by the eyewitness and had a plausible motive for committing the
murder. Does the prosecutor have a duty report this to the convicted defendant’s
lawyer?
a) Yes, when a prosecutor knows of new, credible and material evidence creating a
reasonable likelihood that a convicted defendant in his jurisdiction did not commit
an offense of which the defendant was convicted, the prosecutor shall promptly
disclose that evidence to the defendant unless a court authorizes delay, and
undertake further investigation, or make reasonable efforts to cause an
investigation, to determine whether the defendant was convicted of an offense that
the defendant did not commit.
254
b) Yes, the prosecutor shall seek to remedy the conviction.
c) No, as long as the defendant received a fair trial and had presentation by counsel, a
judgment of the court is final and the new evidence is irrelevant.
d) No, the prosecutor should report it to the defendant himself and urge him to file a
habeas corpus petition in federal court.
Rule 3.8(g)
Rule 3.9
Advocate in Nonadjudicative Proceedings
461. Attorney testified before a state legislative committee about the need for the state to
privatize its dysfunctional prison system. Attorney said he was there to testify as a
concerned citizen of the state and a taxpayer, and Attorney did in fact believe that prison
privatization was smart public policy. Attorney did not disclose that he was
representing Alcatraz Incorporated, the largest private prison company in the country,
which hoped to secure the lucrative contracts to operate the state’s prisons after the
legislature votes to privatize them. Was it improper for Attorney to neglect to disclose
his representation of the private prison company?
a) Yes, because a lawyer representing a client before a legislative body or
administrative agency in a nonadjudicative proceeding shall disclose that the
appearance is in a representative capacity.
b) Yes, because the lawyer pretended that he was hoping to save on his taxes, but the
privatization of prisons often turns out to be more expensive than having state-run
prisons.
c) No, because what the lawyer told the committee was factually accurate – he is a
concerned citizen, a taxpayer, and he truly believes in privatizing prisons.
d) No, because a lawyer’s duty of candor pertains to tribunals, not to legislative
subcommittees.
Rule 3.9
462. Attorney represents an alternative energy firm that is lobbying the state legislature to
provide subsidies for companies that develop wind, solar, or geothermal energy
sources. When appearing before a legislative committee, Attorney discloses that he
represents the company, and submits reports from his client about the efficiency of his
client’s products and the savings that could accrue to the public if more people used
their products. The reports also purported that the company was having trouble staying
in business and could not survive without a large government grant or subsidy.
Attorney knew, however, that many of these figures were inaccurate, and that in fact
the company was making a handsome profit on products that were less efficient than
fossil fuel sources of energy. Is it improper for Attorney to submit such documents to
a legislative committee?
255
a) Yes, because a lawyer appearing before a legislative body in a nonadjudicative
proceeding shall conform to the same standards of candor and honesty that are
expected of lawyers in a courtroom.
b) Yes, because Attorney should have simply submitted the documents on behalf of
the client without endorsing them by providing oral testimony.
c) No, because many special interest group submit exaggerated or highly biased
reports to legislative committees, and the legislators recognize that they are
unreliable.
d) No, because the lawyer is not appearing before a tribunal or court in an adjudication
and does not have the same requirements of candor that he would in the adjudicative
context.
Rule 3.9
256
ANSWER KEY RULE 3.8-3.9
452. d
453. d
454. d
455. a
456. d
457. b
458. d
459. b
460. a
461. a
462. a
257
Questions on Rule 1.13
Rule 1.13 Organization as Client
463. An attorney worked for a corporation as its in-house counsel. Hostility breaks out between
the Chief Executive Officer and the Chief Financial Officer, with each threatening to sue the
other over allegations of slander, libel, trespass to chattel, and so on. Does this personal clash
between top managers present the attorney with a conflict of interest?
a) Yes, because as representative of the corporation, he also necessarily represents each of the
top managers or directors, so both of these individuals are the lawyer’s clients.
b) Yes, because the both the corporation as an entity and the Chief Executive Officer are
necessarily clients of the lawyer, and the clash with the Chief Financial Officer is
essentially a clash with the corporation.
c) No, because a lawyer representing an organization as a client cannot have a conflict of
interest, as conflicts are strictly between natural persons.
d) No, because a lawyer employed by an organization represents the organization acting
through its duly authorized constituents, so the lawyer represents neither of these officers
individually.
Rule 1.13(a)
464. An attorney worked for a corporation as in-house counsel. The attorney discovered that the
Chief Financial Officer (CFO) falsified the corporation’s quarterly earnings report in order to
prop up the firm’s share price, as the CFO’s compensation is partly in stock options. The
attorney knows that these misrepresented earnings appeared in the filings to the Securities and
Exchange Commission, and will eventually result in severe regulatory fines or civil liability
for the corporation. What should the attorney do in this situation?
a) The attorney should immediately report the matter to the appropriate government
authorities without warning the Chief Financial Officer or his friends within the
corporation, lest they have an opportunity to destroy evidence.
b) The attorney should confront the Chief Financial Officer, but if the CFO remains
recalcitrant, the attorney must drop the matter.
c) The attorney should start with the Chief Financial Officer, and then take the matter to up
the chain of command in the organization if necessary, eventually bringing the matter to
the board of directors if nobody in management will address the problem.
d) The attorney should drop the matter unless the SEC inquires about it.
Rule 1.13(b)
465. An attorney worked for a corporation as in-house counsel. The attorney discovered that the
Chief Financial Officer falsified the corporation’s quarterly earnings report in order to prop up
the firm’s share price, as the CFO’s compensation is partly in stock options. The attorney
knows that these misrepresented earnings appeared in the filings to the Securities and Exchange
Commission, and will eventually result in severe regulatory fines or civil liability for the
corporation. The attorney thus reasonably believes that the violation is reasonably certain to
result in substantial injury to the organization. The attorney confronted the Chief Financial
Officer, but this proved unfruitful, and then he proceeded up the corporate chain of command,
258
eventually going to the Chief Executive Officer and the board of directors. The officers and
directors refused to address the problem because they thought it would send their stock prices
into a freefall and make the corporation vulnerable to a hostile takeover from corporate raiders.
Would it now be proper for the attorney to become a whistleblower and reveal the problem to
the relevant government authorities?
a) Yes, as long as the attorney protects the identities of all those involved and does not reveal
the names of the wrongdoers, as they are his clients.
b) Yes, because the attorney has exhausted all other reasonable avenues to address the
problem internally, so the lawyer may reveal information relating to the representation
whether or not Rule 1.6 permits such disclosure.
c) No, because the lawyer has a duty of confidentiality to the corporation, and this information
relates directly to the attorney’s representation.
d) No, because has a duty of confidentiality to the corporate officers and directors personally,
and may not disclose information relating to his representation of them without their
consent.
Rule 1.13(c)
466. A large corporation was under investigation by a government regulatory agency over possible
violations of securities law. The corporation hired an attorney to represent it in the matter, and
authorized the attorney to make a full internal investigation to discover the merits of the
accusations. The attorney discovered that a high-level manager had falsified quarterly earnings
reports, a clear violation of the law that could expose the corporation to devastating sanctions
and civil liability. The attorney confronted the officer involved, but this proved unfruitful, and
then he proceeded up the corporate chain of command, eventually going to the Chief Executive
Officer and the board of directors. The officers and directors refused to address the problem
because they thought it would send their stock prices into a freefall and make the corporation
vulnerable to a hostile takeover from corporate raiders. Would it now be proper for the attorney
to become a whistleblower and reveal the problem to the relevant government authorities?
a) Yes, because the attorney has exhausted all other reasonable avenues to address the
problem internally, so the lawyer may reveal information relating to the representation
whether or not Rule 1.6 permits such disclosure.
b) Yes, as long as the attorney protects the identities of all those involved and does not reveal
the names of the wrongdoers, as they are his clients.
c) No, because has a duty of confidentiality to the corporate officers and directors personally,
and may not disclose information relating to his representation of them without their
consent.
d) No, because the attorney has a duty of confidentiality to the corporation, and the
corporation hired the attorney to defend the organization against a claim arising out of an
alleged violation of law.
Rule 1.13(d)
467. An attorney worked for a corporation as in-house counsel. The attorney discovered that the
Chief Financial Officer falsified the corporation’s quarterly earnings report in order to prop up
the firm’s share price, as the CFO’s compensation is partly in stock options. The attorney
knows that these misrepresented earnings appeared in the filings to the Securities and Exchange
Commission, and will eventually result in severe regulatory fines or civil liability for the
corporation. The attorney thus reasonably believes that the violation is reasonably certain to
result in substantial injury to the organization. The Chief Financial Officer hired the attorney,
259
and he directly supervises the attorney in the organizational chain of command. The attorney
confronted the Chief Financial Officer, but this proved unfruitful, and then the Chief Financial
Officer discharged the attorney. What should the attorney do in this situation?
a) The attorney should immediately report the matter to the relevant government regulatory
authority.
b) The attorney should keep the information confidential, because the person who hired him
has not authorized him to disclose the information.
c) The attorney should proceed as the lawyer reasonably believes necessary to assure that the
organization's highest authority is informed of the lawyer's discharge.
d) The attorney should notify the manager directly above the Chief Financial Officer in the
corporation and then drop the matter.
Rule 1.13(e)
468. An attorney represents a corporation. One of the corporation’s delivery trucks, driven by a
corporation employee, had a tragic accident with a school bus full of children, and many
children died. The delivery truck driver suffered severe injuries, but survived, and spent three
weeks recovering in the hospital. In preparation for the wrongful death lawsuits by the
deceased children’s families, the corporation’s attorney visited the truck driver in the hospital
and interviewed him about the accident. The attorney did not explain that he was not
representing the driver, or that the driver should retain his own lawyer. The unsophisticated
driver may have assumed that his employer’s lawyer was also looking out for his (the driver’s)
interests. The driver made some incriminating admissions to the lawyer about being slightly
intoxicated at the time of the accident and having been careless while driving. He also admitted
that at the time of the accident, he had taken the corporate delivery truck off its assigned route
to attend to some personal business for about twenty minutes. Could the attorney be subject to
discipline in this case?
a) Yes, because he shares in the corporation’s collective responsibility for the deaths of those
innocent children.
b) Yes, because in dealing with an organization's employees, the lawyer should explain the
identity of the client when the lawyer should reasonably know that the organization's
interests are adverse to those of the employee with whom the lawyer is dealing.
c) No, because it is not yet clear whether the driver’s interests are adverse to the corporation’s
interests, or whether the corporation will be responsible through respondeat superior.
d) No, because a lawyer does not have an obligation to remind every employee in a
corporation that the lawyer represents the organization rather than the individuals within
the organization.
Rule 1.13(f)
469. A corporation consents to having the attorney who serves as its in-house counsel represent the
corporation’s officers and directors on matters related even tangentially to the company. The
consent came by a vote of the shareholders. Can an attorney be subject to discipline for
representing both a corporation and its officers or directors individually?
a) Yes, because there is always a potential conflict of interest between the individual running
a corporation and the shareholders.
b) Yes, because shareholders of a corporation cannot consent or grant a waiver to a potential
conflict of interest.
c) No, because a lawyer representing an organization may also represent any of its directors
or officers, if the shareholders give consent.
260
d) No, because conflicts of interest apply only between natural persons, not between
individuals and organizations.
Rule 1.13(g)
470. An organizational client requested that its lawyer investigate allegations of wrongdoing. The
lawyer conducted interviews in the course of that investigation of the organization's employees
and managers. It turned out that the alleged wrongdoing involved only one employee, whom
the corporation promptly terminated. After the resolution of the matter, the lawyer wrote a
series of blog posts about the amusing anecdotes he heard during his interviews, revealing the
pettiness of internal politics in the organization, the low morale in certain departments, and a
few of the office romances that had ended badly. Did the lawyer violate his duty of
confidentiality to his client?
a) Yes, because if an organizational client requests its lawyer to investigate allegations of
wrongdoing, interviews made in the course of that investigation between the lawyer and
the client's employees come under the client-confidentiality rules.
b) Yes, because when a lawyer represents an organization, every constituent of that
organization is a client of the lawyer, and he owes a duty of confidentiality to each one.
c) No, because the employees were not the lawyer’s clients, if he represented only the
organization as a whole, and the disclosed information was personal information, not
institutional information.
d) No, because after the represented ended, the lawyer no longer had a duty of confidentiality
to anyone in the organization.
Rule 1.13 Cmt. 2
471. An attorney represented a large corporation as a defendant in a toxic tort action. The matter
had received little media attention and the corporate officers who retained the attorney
emphasized the need to be discreet as long as possible, so that the pending litigation would
have a minimal effect on stock prices. The representation necessitated that the attorney
interview some of the employees involved in the incident that gave rise to the litigation,
including some of the lowest-level unskilled laborers. A few of these individuals, as well as
their co-workers whom the lawyer did not interview, asked the lawyer for details about what
was happening with the case. The lawyer felt that they had a right to know about the case as it
could affect the company, and their jobs, so he explained who the plaintiffs were, how strong
the evidence appeared to be on each side, and the potential liability the company was facing.
Could the attorney be subject to discipline for sharing this information with the company
employees?
a) Yes, but only for sharing it with the employees whom he did not need to interview.
b) Yes, because a lawyer may not disclose to company employees any information relating to
the representation except for disclosures explicitly or impliedly authorized by the
organizational client in order to carry out the representation.
c) No, because a lawyer should disclose to the company employees any information relating
to the representation unless the officers explicitly forbid the disclosures as necessary to
carry out the representation.
d) No, because when a lawyer represents a corporation, every employee of the corporation is
the client of the lawyer, and has a right to the information.
Rule 1.13 Cmt. 2
261
472. An attorney works as in-house counsel for a large international corporation and has daily
contact with higher-level executives and managers. One day, a senior executive mentions
casually to the attorney that he has offered lucrative stock options, worth millions of dollars, to
a foreign government official who has agreed to give the firm an exclusive contract to provide
certain goods and services to the foreign state. The executive seems to think this is normal and
good for the company, but the attorney believes it constitutes bribery of foreign officials, which
would violate the Foreign Corrupt Practices Act, and could subject the company to enormous
fines and penalties. The attorney explains her concerns to the executive, including her concern
that he could face personal criminal charges in addition to bringing liability on the corporation,
and she reminds him that she represents the corporation, not him personally. The executive is
dismissive of her concerns, even though she approaches him several times about the matter.
How must the attorney proceed?
a) She should report the matter immediately, in writing, to the Department of Justice, and tell
no one in the company that she has done so.
b) She should keep her conversations with the executive confidential but try to document
everything that she knows about the situation in case the Department of Justice brings an
enforcement action.
c) She should approach the executive’s immediate corporate superior, advising those next up
the chain of authority to stop the transaction and take appropriate actions against the
executive involved.
d) She should immediately notify the company’s Board of Directors, advising them about the
potential liability and threatening to report the activities to the Department of Justice if they
take no action.
473. An attorney served as general counsel for a municipal auditing and enforcement bureau, which
monitored the internal affairs and expenditures of the municipal government. The attorney
discovered that the head of the bureau engaged in selective enforcement and self-dealing, and
suspected that bribery had occurred in a few instances. The attorney’s confrontation of the
bureau head proved futile, so the attorney then needed to proceed up the chain of command.
Can the attorney serving as general counsel for a government bureau report wrongdoing to
anyone higher within that municipality?
a) Yes, but only by testifying under subpoena at a city council hearing or the legislative
equivalent for that municipality (town aldermen, board of county commissioners, etc.).
b) Yes, because if the action or failure to act involves the head of a bureau, either the
department of which the bureau is a part or the relevant branch of government may be the
client for purposes of the Rules of Professional Conduct.
c) No, because the head of the bureau is the general counsel’s client.
d) No, because governmental lawyers do not have a “client” organization in the same sense
as attorneys in the private sector, because civil servants must act in the public interest.
Rule 1.13 Cmt. 9
474. According to the official Comment to Rule 1.13 of the Model Rules of Professional Conduct,
when it is reasonably necessary to enable the organization to address the matter in a timely and
appropriate manner, a lawyer must refer the matter to higher authority. This includes, if
warranted by the circumstances, the highest authority that can act on behalf of the organization
under applicable law. Ordinarily (unless applicable law specifies otherwise), which of the
following would be an organization’s highest authority to whom a lawyer might refer the
matter?
262
a)
b)
c)
d)
The Chief Executive Officer (CEO)
The board of directors or similar governing body
The annual meeting of the shareholders or the majority shareholder
The general counsel of the corporation
Rule 1.13 Cmt. 5
475. An attorney served as in-house counsel for a corporation, and uncovered illegal actions taken
by a particular senior manager (not the Chief Executive Officer or any comparable officer or
director, but an individual with decision-making authority and several direct subordinates in
the organization). The senior manager had a reputation for being arrogant and unreasonable,
and he and the attorney had clashed on several occasions and were barely on speaking terms.
At the same time, the senior manager was exceptional in his area of expertise and was an asset
to the company despite his unpleasant demeanor. The attorney summoned the nerve to confront
the senior manager about the problem as graciously as possible, and the senior manager’s initial
response was to be dismissive, saying that he was unaware of any laws or regulations that he
might have violated. The attorney walked away from the conversation discouraged and
planned to take the matter up with the corporate officers, and perhaps the board of directors.
Before doing so, he reconsidered and returned to the manager, and patiently explained to him
the relevant laws and regulations that the manager had violated. The senior manager
begrudgingly accepted the attorney’s advice and took all necessary measures to rectify the
wrongdoing and prevent any long-term repercussions. The senior manager also insulted the
attorney, called him incompetent for not bringing up the matter earlier, and suggested that the
attorney’s incompetence was due to the attorney’s ethnic background. Could the attorney be
subject to discipline for not referring the matter of the illegal actions to a higher authority in
the corporation?
a) Yes, because the senior manager continued to insult him and behave like a bigot even after
the attorney proved that the manager’s actions violated the law.
b) Yes, because referral to a higher authority in the corporation is part of the lawyer’s
professional duty under the Model Rules.
c) No, because if the circumstances involve a constituent's innocent misunderstanding of law
and subsequent acceptance of the lawyer's advice, the lawyer may reasonably conclude that
the best interest of the organization does not require that the matter be referred to higher
authority.
d) No, because a lawyer for a corporation represents not only the corporation itself, but all the
managers within the corporation, so the lawyer had a direct client-attorney relationship
with the manager.
Rule 1.13 Cmt. 4
263
ANSWER KEY – RULE 1.13
463.
464.
465.
466.
467.
468.
469.
470.
471.
472.
473.
474.
475.
d
c
b
d
c
b
c
a
b
c
b
b
c
264
Transactions and communications with persons other than clients (2–
8%, 1-3
Rule 4.1
Rule 4.2
Rule 4.3
Rule 4.4
Truthfulness in Statements to Others
Communication with Person Represented by Counsel
Dealing with Unrepresented Person
Respect for Rights of Third Persons
(2–8%, 1-3 questions on MPRE)
476. In anticipation of trial, a plaintiff’s lawyer contacts several former employees of the
defendant corporation and interviews them about the day-to-day operations of the
company and the chain of command for addressing complaints. The lawyer does this
without permission from the defendant’s attorney. Was this proper?
a) Yes, consent of the organization’s lawyer is not required for communication with a
former constituent of the organization that is a represented opposing party.
b) Yes, because being a party to litigation means that the company waived its right to
prevent opposing counsel from privately interviewing their present or former
employees
c) No, consent of the organization’s lawyer is always required for communication
with a present or former constituent of the organization that is a represented
opposing party.
d) No, because it is improper for the lawyer to inquire into the private, behind-thescenes workings of a company, merely looking for dirt or gossip to use against the
company during litigation.
477. A lawyer represents the defendant in litigation over a car accident. The plaintiff, who
was driving the other car, was a childhood friend and neighbor of the lawyer – they still
keep in touch. As the defendant’s lawyer has known the plaintiff since childhood, he
calls the plaintiff, who has retained counsel as well, to see if they can resolve the case
without going to trial. Is the lawyer subject to discipline for calling his lifelong friend?
a) Yes, as a lawyer shall not communicate about the subject of the representation with
a person the lawyer knows to be represented by another lawyer in the matter, unless
the lawyer has the consent of the other lawyer or is authorized to do so by law or a
court order.
b) Yes, the Model Rules prohibit in-person solicitation of settlements, and this
includes real-time electronic communication such as telephone calls, texts, or chat.
c) No, as the existence of a controversy between a government agency and a private
party, or between two organizations, does not prohibit a lawyer for either from
communicating with nonlawyer representatives of the other regarding a separate
matter.
265
d) No, the courts and disciplinary boards strongly favor settlement before trial as a
matter of public policy.
478. A lawyer represents one of his former college roommates in litigation over a dissolved
business partnership. The client had formed a business partnership with another of
their college classmates after graduation, and the dissolved partnership is now the
subject of an acrimonious legal dispute. After an incident regarding an attempted ex
parte contact, the judge sternly admonished both lawyers against contacting the judge
or the opposing party about the case without the other lawyer present. Now, however,
the ten-year reunion for their graduating class is two months away, and the lawyer and
the opposing party (the other classmate) are both on the Alumni Association’s reunion
committee. The lawyer calls the opposing party to discuss arrangements for the
upcoming reunion banquet, but does not mention the pending litigation at all. Opposing
counsel overhears his client talking to the lawyer and reports it to the judge, accusing
the lawyer of violating the Model Rules by talking to his client without his consent. Is
the lawyer subject to sanctions of discipline for talking to the opposing party,
represented by counsel, without opposing counsel present?
a) The lawyer is not subject to sanctions or discipline because the communication was
about a matter outside the representation.
b) The lawyer is subject to sanctions for violating the court’s order but not subject to
discipline for violating the Model Rules, as the conversation was about a matter
outside the representation.
c) The lawyer is subject to discipline for violating the Model Rules’ no-contact rule,
but not to sanctions for violating the judge’s order, as the conversation was not
about the litigation.
d) The lawyer is subject to discipline for violating the ethical rules AND is subject to
sanctions for violating the judge’s order.
479. While preparing for a trial over workplace discrimination, the plaintiff’s lawyer
contacts the owner and chief executive officer (C.E.O.) of the defendant corporation
and interviews her about the day-to-day operations of the company and the chain of
command for addressing personnel complaints. The owner/CEO is not personally
involved in the matter of the pending litigation – she actually never met the plaintiff
warehouse worker who claims to be the victim of workplace discrimination, she is not
expected to testify at trial, and nobody has suggested that she was responsible for the
wrongdoing. Even so, she has the power to settle the case or stipulate to a judgment
amount, so the plaintiff’s lawyer talks to her directly. The lawyer does this without
permission from the corporation’s attorney, whom the company’s general counsel
hired; general counsel is an employee two-steps below the CEO in the organizational
chart. Was this communication by the plaintiff’s lawyer proper?
a) Yes, because the rules allow a lawyer to communicate with the constituent of a
represented organization (opposing party) who has authority to obligate the
organization with respect to the matter.
266
b) Yes, because the CEO is two steps above the employee who hired the outside
counsel, and therefore clearly has authority to overrule outside counsel’s
permission or lack thereof
c) No, the rules prohibit a lawyer from communicating with the constituent of a
represented organization (opposing party) who has authority to obligate the
organization with respect to the matter.
d) No, because the CEO clearly would not have first-hand knowledge of lower-level
personnel problems in the company’s warehouse, although asking the owner/CEO
for a settlement was proper.
480. A lawyer knows that his opposing counsel has a reputation for refusing to settle cases
and forcing lawsuits to go to trial, in order to impose the full costs of litigation on the
opposing party. Cultivating this reputation serves as a deterrent to other would-be
litigants against opposing counsel’s clients. In order to avoid a rebuff by opposing
counsel, the lawyer finds a close friend of the opposing party, and asks the close friend
to communicate an informal settlement offer to the opposing party directly, bypassing
the other lawyer. The opposing party is delighted to hear the offer and readily agrees
to settle the case. Opposing counsel is furious and reports the lawyer for misconduct.
The lawyer claims that he did not communicate with opposing counsels’ client, but
rather the friend did, so the prohibitions on contact with other parties would not apply.
Is the lawyer correct?
a) Yes, the friend’s willingness to be an informal intermediary serves as an
independent intervening actor that breaks the line of causation to the lawyer.
b) Yes, the opposing party’s eagerness to settle the case shows that the lawyer did
what the other party wanted; such an endorsement after the fact negates any
possible violation of the Rules.
c) No, a lawyer may not make a communication prohibited by the Rules through the
acts of another, such as the friend in this case.
d) No, lawyers are never permitted to speak directly to an opposing party under any
circumstances; even if the opposing counsel had consented to the communication,
the lawyer would be subject to discipline.
481. While preparing for a trial over workplace discrimination among a company’s sales
force and marketing department, the plaintiff’s lawyer contacts some night shift
workers in the company’s offsite warehouse to learn about the day-to-day operations
of the company, and hoping to hear some revealing gossip about the management and
human resources department. The lawyer does this without permission from the
defendant’s attorney, and if asked, the company’s lawyer would have forbid it and
would have told the warehouse workers not to talk to the plaintiff’s lawyer at all. Was
this communication by the plaintiff’s lawyer proper?
a) Yes, because the warehouse workers are not involved in the matter, do not report
directly to the firm’s in-house counsel, and lack authority to bind the organization
in the matter.
267
b) Yes, because he knows that opposing counsel would improperly forbid the
warehouse workers from talking to him, so the Model Rules allow him to take
action to counteract this inappropriate potential behavior by the company’s lawyer.
c) No, because he is mostly looking for gossip about the company’s management,
which could only serve to embarrass the managers or marketing department at trial.
d) No, because he knows that the company’s lawyer would not approve, and these are
constituents of a company that is represented by counsel.
482. The plaintiff and the defendant in a lawsuit run into each other in the supermarket and
start discussing their case without their lawyers present. Both have been shocked at
the mounting litigation costs, and at how long the case has gone on. The plaintiff
volunteers to withdraw his case if the defendant will withdraw his counterclaims and
pay whatever filing fees are involved in such a voluntary dismissal. Later, when each
party reports this to their respective lawyers, the plaintiff’s lawyer is very upset. The
plaintiff mentioned that the defendant said his own lawyer (defense counsel) had helped
give him the idea by asking at their first consultation, “Why haven’t you and the
plaintiff simply resolved this on your own, without resorting to litigation?” The
plaintiff’s lawyer reports the defendant’s lawyer for misconduct, claiming that
opposing counsel merely used his client as an agent to communicate with the plaintiff
without the latter’s lawyer present. Is the defendant’s lawyer subject to discipline,
based on these facts?
a) Yes, because parties to a matter must not communicate directly with each other,
and a lawyer is prohibited from advising a client concerning a communication that
the client might make.
b) Yes, because the lawyer clearly manipulated his client into communicating directly
with the opposing party without opposing counsel present.
c) No, because the plaintiff is the party who actually agreed first to withdraw his
claim, so the defendant’s lawyer cannot be responsible for any communication
thereafter.
d) No, because parties to a matter may communicate directly with each other, and a
lawyer is not prohibited from advising a client concerning a communication that
the client is legally entitled to make.
483. In anticipation of trial over workplace discrimination, a plaintiff’s lawyer contacts
several current managers of the defendant corporation and interviews them about the
day-to-day operations of the company and the chain of command for addressing
personnel complaints. These managers supervise employees, address interpersonal
problems between workers, filed complaints, and consult with the firm’s in-house
counsel about personnel matters that seem serious. The lawyer does this without
permission from the defendant’s attorney. Was this proper?
a) Yes, given that these managers are likely to be witnesses at trial and subject to
cross-examination anyway, it is reasonable for the lawyer to have a chance to speak
with them informally before trial.
268
b) Yes, because 95% of such cases settle before trial, meaning most discrimination
cases do not really constitute “litigation” for purposes of the ethical rules.
c) No, because even the identity of the managers at a defendant corporation is
confidential information that should not be available to a lawyer in discrimination
litigation.
d) No, consent of the company’s lawyer is always required for communication with a
present constituent of the organization who supervises, directs or regularly consults
with the organization’s lawyer concerning the matter.
484. While preparing for a trial over workplace discrimination, the plaintiff’s lawyer
contacts an entry-level, night shift worker in the company’s off-site warehouse, who
supposedly told the frequent, shocking sex jokes that led to the “hostile environment”
claim by female workers that became the subject of the pending lawsuit. The lawyer
did this without the permission of the company’s lawyer, even though he suspects the
company’s lawyer would have allowed it if he had asked. The warehouse worker has
no supervisory authority, has never been to the corporate offices, has no authority to
bind the company, and is now on suspension (unpaid leave) while the company does
its own internal investigation of the allegations. Was the communication by the
plaintiff’s lawyer proper?
a) No, a lawyer may not communicate with the constituent of a represented
organization (opposing party) whose act or omission in connection with the matter
may be imputed to the organization for purposes of civil liability.
b) Yes, because this is a low-level employee who has no supervisory authority, has
never been to the corporate offices, and has no authority to bind the company
c) Yes, because the temporary suspension of the worker (unpaid leave) makes him a
former constituent of the organization rather than a current constituent
d) Yes, if the plaintiff’s lawyer honestly believed that opposing counsel would have
allowed the communication if the lawyer had asked.
485. A business owner hires a lawyer hoping to enforce a non-compete agreement against
a former employee at their technology firm. According to the client, a rumor started
going around just this past week that the former employee had either started his own
business nearby or was working for a nearby competitor, either of which, if true, could
violate the non-compete agreement. The employee left the client’s company on bad
terms about three weeks ago. The client provides a copy of the non-compete
agreement, and speculates that the former employee may have forgotten about the
agreement (which he signed fifteen years ago), and would probably be oblivious to the
fact that he is violating it. The lawyer decides that the first step is to call the former
employee and ask him whether he has found another job yet or has started his own
business. The lawyer assumed that the former employee would not have retained
counsel yet to challenge the non-compete agreement, given the client’s comments
about him, and how recently the events unfolded. The former employee answers the
phone, explains that he has started his own rival company, and that he believes the noncompete agreement is invalid under state law. When the lawyer asks why it would be
invalid, the former employee says that his own lawyer says that recent changes in state
269
law make the previous agreement void, and that they plan to challenge the agreement
in court. The lawyer asks him to have his own lawyer contact him so that they can
discuss possible settlement for the dispute. Has the lawyer acted properly?
a) Yes, as the prohibition on communications with a represented person only applies
in circumstances where the lawyer knows that the person is in fact represented in
the matter to be discussed, and this means that the lawyer has actual knowledge of
the fact of the representation.
b) Yes, if the non-compete agreement has a binding arbitration clause, as matters
covered under alternative dispute resolution (arbitration, mediation, or a nonjudicial referee) do not implicate the prohibition on communication with opposing
parties.
c) No, the prohibition on communications with a represented person applies
regardless of the lawyer’s knowledge, because the burden is on every lawyer to
determine whether an opposing party has representation before making contact.
d) No, because one can easily infer from these facts and circumstances that the lawyer
actually knew the former employee had representation.
486. A business owner hires a lawyer to enforce a non-compete agreement against a former
executive at the client’s technology firm. According to the client, a rumor started going
around just this past week that the former executive had either started his own business
nearby or was consulting for a nearby competitor; if true, either scenario could violate
the non-compete agreement. The client explains that the former executive has already
asserted that the non-compete agreement is invalid under a recent decision from the
state Supreme Court, and is filing an action for a declaratory judgment to challenge the
non-compete agreement preemptively, though the client is unsure whether his company
received proper service yet about the lawsuit. The lawyer decides that the first step is
to call the former employee and ask him whether he has found another job yet or has
started his own business. The former employee answers the phone, explains that he
has started his own rival company, and that he believes the non-compete agreement is
invalid under state law. The lawyer asks him to have his own lawyer contact him so
that they can discuss possible settlement for the dispute. Has the lawyer acted properly?
a) Yes, as the prohibition on communications with a represented person only applies
in circumstances where the lawyer knows that the person is in fact represented in
the matter to be discussed, and this means that the lawyer has actual knowledge of
the fact of the representation.
b) Yes, if the non-compete agreement has a binding arbitration clause, as matters
covered under alternative dispute resolution (arbitration, mediation, or a nonjudicial referee) do not implicate the prohibition on communication with opposing
parties.
c) No, because one can easily infer from these facts and circumstances that the lawyer
actually knew the former employee had representation.
d) No, because this is an action for declaratory judgment rather than money damages,
so the usual exceptions to the prohibition on communication do not apply.
270
487. Attorney represents Plaintiff in a civil suit. Defendant is also represented, but contacts
Attorney to negotiate a settlement agreement. Attorney advises Defendant that he
cannot discuss the case with Defendant because Defendant is represented by counsel.
Defendant faxes Attorney a letter stating that he waives the rule restricting Attorney
from communicating with Defendant while Defendant is represented. Upon receipt of
the fax, Attorney contacts Defendant and discusses a settlement agreement. Are
Attorney’s actions proper?
a) Yes, because an attorney may communicate with represented persons as long as the
represented person provides a written waiver to that attorney.
b) Yes, because an attorney may communicate with represented persons as long as the
represented person initiates the communication.
c) No, because attorneys may not communicate with represented persons at all unless
the attorney representing that person is also present.
d) No, because attorneys may not communicate with represented persons unless the
attorney representing that person permits the attorney to communicate with the
represented person.
488. Attorney sees Friend at high school reunion. Friend asks Attorney for advice about a
possible civil lawsuit Friend is considering hiring an attorney to file. Attorney gives
Friend general information about the area of law and about the particular kind of
lawsuit an attorney will most likely file for Friend. Friend lives too far away from
Attorney for Attorney to handle the case, and Friend is planning to hire an attorney near
his residence to handle the lawsuit. Attorney later talks to his own wife about Friend’s
lawsuit. Wife discusses the suit with her own friend. Friend discovers that several
people know about his potential suit and is upset, as he believed that Attorney was not
allowed to speak about his potential case to others. Is Attorney subject to discipline?
a) Yes, attorneys shall not disclose information about potential lawsuits they discuss
with others unless authorized by that person, whether or not the person is or is not
a potential or current client.
b) Yes, persons with whom an attorney discusses potential litigation, even if only in a
general manner, are considered prospective clients and are afforded protection as if
they were, in fact, clients themselves.
c) No, an attorney owes no duties or protections, including protections against
disclosing information about potential lawsuits, to persons who communicate with
attorneys without any expectation of forming a client-attorney relationship.
d) No, an attorney may discuss potential client cases with others as long as the
potential client did not retain the attorney to handle the matter that potential client
discussed with the attorney.
ANSWER KEY: RULES 4.1-4.4
271
476.
477.
478.
479.
480.
481.
482.
483.
484.
485.
486.
487.
488.
a
a
a
c
c
a
d
d
a
a
c
d
c
272
QUESTIONS ON MODEL RULE 1.15 – Safekeeping Property
Safekeeping funds and other property (2–8%, 1-3 MPRE Questions),
Rule 1.15
1. Establishing and maintaining client trust accounts – Rule 1.15
2. Safekeeping funds and other property of clients– Rule 1.15
3. Safekeeping funds and other property of third persons– Rule 1.15
4. Disputed claims– Rule 1.15
489.
An attorney represented a seller in a business transaction involving industrial equipment.
When the deal was complete, the purchaser sent the attorney a check for $7,000, the agreedupon purchase price, with a letter directing the attorney to forward the money to his client (the
seller). The attorney notified his client immediately that the check had come in. The client
was traveling at the time, and asked the attorney to hold the funds until he returned from his
trip. The attorney had only recently opened his own firm and did not yet have a client trust
account at any banks in the area, so he deposited the check in his own bank account temporarily.
As soon as the check cleared, the attorney wrote a check to the client for the full amount, which
the client picked up in person. Did the attorney act properly in this case?
a) Yes, because the amount was less than $10,000, so it did not trigger the ethical rules
pertaining to separate client accounts.
b) Yes, because the client asked the attorney to hold the funds temporarily, and the attorney
faithfully delivered the entire sum to the client with his own check.
c) No, because a lawyer must hold property of clients or third persons that is in a lawyer's
possession in connection with a representation separate from the lawyer's own property.
d) No, because a lawyer should not have accepted the check at all, but should have instructed
the purchaser to write the check out to the client himself, and deliver it directly to the client.
Rule 1.15(a)
490.
An attorney represented a seller in a business transaction involving industrial equipment.
When the deal was complete, the purchaser sent the attorney a check for $7,000, the agreedupon purchase price, with a letter directing the attorney to forward the money to his client (the
seller). The attorney notified his client immediately that the check had come in. The client
was traveling at the time, and asked the attorney to hold the funds until he returned from his
trip. The attorney had only recently moved to this jurisdiction and opened a new firm, did not
yet have a client trust account at any banks in the area, so he deposited the check in the client
trust account in the neighboring state, where he had practiced until recently. He told the client
that the funds would be in a separate client trust account, but did not mention that it would be
out of state. As soon as the check cleared, the attorney wrote a check to the client for the full
amount from the client trust account, which the client picked up in person. Did the attorney
act properly in this case?
a) Yes, because the lawyer shall hold property of clients or third persons that is in a lawyer's
possession in connection with a representation separate from the lawyer's own property.
b) Yes, because the client asked the attorney to hold the funds temporarily, and the attorney
faithfully delivered the entire sum to the client with his own check.
c) No, because a lawyer should not have accepted the check at all, but should have instructed
the purchaser to write the check out to the client himself, and deliver it directly to the client.
d) No, because client funds must be kept in a separate account maintained in the state where
the lawyer's office is situated, unless the client explicitly consents to another arrangement.
273
Rule 1.15(a)
491.
An attorney represented a seller in a business transaction involving industrial equipment.
When the deal was complete, the purchaser sent the attorney a check for $7,000, the agreedupon purchase price, with a letter directing the attorney to forward the money to his client (the
seller). The attorney notified his client immediately that the check had come in. The client
was traveling at the time, and asked the attorney to hold the funds until he returned from his
trip. The attorney had only recently moved to this jurisdiction and opened a new firm, did not
yet have a client trust account at any banks in the area, so he deposited the check in the client
trust account in the neighboring state, where he had practiced until recently. He told the client
that the funds would be in a separate client trust account, and explained that it would be out of
state, and the client consented. As soon as the check cleared, the attorney wrote a check to the
client for the full amount from the client trust account, which the client picked up in person.
Did the attorney act properly in this case?
a) Yes, because a lawyer may deposit client funds in an out-of-state client trust account if the
client gives informed consent to this arrangement.
b) Yes, because the client asked the attorney to hold the funds temporarily, and the attorney
faithfully delivered the entire sum to the client with his own check.
c) No, because a lawyer should not have accepted the check at all, but should have instructed
the purchaser to write the check out to the client himself, and deliver it directly to the client.
d) No, because client funds must be kept in a separate account maintained in the state where
the lawyer's office is situated, unless the client explicitly consents to another arrangement.
Rule 1.15(a)
492.
An attorney has a busy transactional practice and frequently must handle client funds,
either for making commercial purchases, sales, leases, dispute settlements, or other transfers.
The attorney faithfully deposits client money in a separate trust account and does not
commingle the funds with his own, except that he deposits enough of his own money in the
account to cover the monthly bank service charges. The attorney keeps complete, accurate
records of all deposits and withdrawals for a full year, after which he destroys the records to
preserve client confidentiality. Is the attorney acting improperly?
a) Yes, because the attorney did not keep records for a long enough period.
b) Yes, because the attorney should not have deposited any of his own funds in the account
together with client funds.
c) No, because the lawyer may deposit the lawyer's own funds in a client trust account for the
sole purpose of paying bank service charges on that account.
d) No, because the attorney keeps property of clients or third persons that is in a lawyer's
possession in connection with a representation separate from the lawyer's own property, in
a separate account maintained in the state where the lawyer's office is situated.
Rule 1.15(a)
493.
An attorney has a busy transactional practice and frequently must handle client funds,
either for making commercial purchases, sales, leases, dispute settlements, or other transfers.
The attorney faithfully deposits client money in a separate trust account and does not
commingle the funds with his own, except that he deposits enough of his own money in the
account to cover the monthly bank service charges. He also put $1000 in the account when he
opened it and left it there, as a buffer in case there were any accounting errors, so the clients
would never experience inconvenience due to the account being inadvertently overdrawn. The
attorney keeps complete, accurate records of all deposits and withdrawals for seven full years,
after which he destroys the records to preserve client confidentiality. Is the attorney acting
improperly?
274
a) Yes, because the attorney did not keep records for a long enough period.
b) Yes, because the attorney should not have deposited the $1000 buffer from his own funds
in the account.
c) No, because the lawyer may deposit the lawyer's own funds in a client trust account for the
purpose of paying bank service charges on that account.
d) No, because the attorney keeps property of clients or third persons that is in a lawyer's
possession in connection with a representation separate from the lawyer's own property, in
a separate account maintained in the state where the lawyer's office is situated.
Rule 1.15(b)
494.
A client hires an attorney to represent him in a divorce proceeding, and gives the attorney
a $10,000 retainer to cover all legal fees and expenses in the case. The attorney deposited the
money in his client trust account, to be withdrawn by the lawyer only as the fees were earned
or expenses incurred. Was this arrangement proper?
a) Yes, a lawyer may deposit into a client trust account legal fees and expenses that have been
paid in advance, to be withdrawn by the lawyer only as fees are earned or expenses
incurred.
b) Yes, because $10,000 is a reasonable amount for the legal fees and expenses in a typical
divorce case, and the lawyer did not charge a contingent fee.
c) No, because the fees are for the lawyer, and therefore the lawyer has commingled his own
legal fees in the client trust account, in violation of the Model Rules.
d) No, because withdrawing the fees gradually throughout the course of the representation
constitutes a contingent fee arrangement, which is impermissible in representation for a
divorce proceeding.
Rule 1.15(c)
495.
An attorney received a small settlement check for a client from the opposing party on
Christmas Eve, late in the afternoon. All the support staff at the firm had already gone home
for the day, due to the impending holiday, and the firm was to stay closed until January 2.
Attorney was rushing to catch a flight to Europe, where she planned to spend the holidays with
her family. On January 2, when attorney returned and the office reopened, attorney promptly
notified the client that the check had arrived. Could the attorney be subject to discipline for
her actions in this case?
a) Yes, because she should have instructed the opposing party to send the check directly to
the client.
b) Yes, because she did not notify the client soon enough.
c) No, because the office was closed during the entire period, and the attorney notified the
client promptly as soon as the office reopened.
d) No, because the attorney had to catch a flight, and the client suffered no harm from this
delay.
Rule 1.15(d)
496.
An attorney received a small settlement check from a client for the opposing party on
Christmas Eve, late in the afternoon. All the support staff at the firm had already gone home
for the day, due to the impending holiday, and the firm was to stay closed until January 2.
Attorney was rushing to catch a flight to Europe, where she planned to spend the holidays with
her family. On January 2, when attorney returned and the office reopened, attorney promptly
notified the opposing party that the check had arrived. Could the attorney be subject to
discipline for her actions in this case?
a) Yes, because she did not notify the opposing party soon enough.
275
b) Yes, because she should have instructed the client to send the check directly to the opposing
party.
c) No, because the office was closed during the entire period, and the attorney notified the
opposing party as soon as the office reopened.
d) No, because there is no attorney-client relationship with the opposing party, so the attorney
did not have a duty to notify the opposing party immediately.
Rule 1.15(d)
497.
An attorney represented a client in a contention litigation matter, at the end of which the
attorney received a settlement check for an agreed-upon amount from the opposing party
($100,000). The client had agreed to the amount but was unsatisfied and blamed the lawyer
for the disappointing settlement amount. The attorney called the client to inform her that the
check had arrived, and explained that he would forward the amount minus his fees and the
expenses, which constituted half of the amount (the jury consultants and experts in the case had
turned out to be very expensive). The client was furious and said that the expenses should have
been included in the attorney’s contingent fee, and that the attorney was not entitled to the
original contingent fee in any case because the case had never gone to a verdict and had settled
for a mediocre amount. Pursuant to their retainer agreement, the client and attorney agreed to
schedule arbitration over the disputed fees and expenses as soon as possible, which realistically
would be three or four months later. In the meantime, the attorney kept the money in the client
trust account until they could resolve the dispute. Was this proper?
a) Yes, because the client has disputed the expenses and a portion of the contingent fee, so it
is prudent to hold the entire sum until they reach a resolution.
b) Yes, because the lawyer put the money in a separate client trust account and did not
commingle it with his own funds.
c) No, because the attorney should have paid the client $50,000 immediately and held only
the remainder until the dispute was resolved.
d) No, because the attorney should have paid the client all the money immediately and
collected the fees and expenses from the client later, depending on the amount determined
in arbitration.
Rule 1.15(e)
498.
An attorney received from the opposing party $150,000 as a settlement for the attorney’s
client. Before the attorney could disburse the funds to the client, a third-party judgment creditor
with a court-ordered lien against the client contacts the lawyer demanding disgorgement of the
client’s funds to satisfy the amount of the judgment, from a matter in which the lawyer did not
represent the client. The client instructs the attorney to give the money to the client
immediately and not to give anything to the third-party judgment creditor. Preliminary
inquiries suggest that the third-party judgment creditor has a valid court order to execute on the
client’s assets. The attorney did as the client instructed him to do, disbursing the funds
promptly to the client, and informed the judgment creditor to take up the matter with the client
directly. Did the attorney act properly?
a) Yes, because the attorney should not unilaterally assume to arbitrate a dispute between the
client and the third party.
b) Yes, because the attorney has a duty of loyalty to the client, and no duty to the third-party
judgment creditor.
c) No, because the attorney should immediately have disbursed the funds to the judgment
creditor.
d) No, because in this type of situation, the lawyer must refuse to surrender the property to
the client until the claims are resolved.
276
499.
Attorney, a solo practitioner who recently passed the bar exam, accepts Client’s case for a
flat fee of $3,000.00. Attorney’s contract includes a statement in underlined and bold print that
states the entire fee is non-refundable regardless of the outcome of the case or whether Client
continues to retain Attorney through the finalization of the case. After several weeks with no
movement on the case by Attorney, Client fires Attorney and hires other counsel to represent
him on this case. Client sends a request in writing for reimbursement of the retainer. Attorney
responds to Client by stating the funds are non-refundable and refuses to refund Client. Are
Attorney’s actions proper?
a) Yes, because attorneys may refuse to refund an advanced payment of fees if the contract
contained such language and the language was clear and obvious in the contract.
b) Yes, because attorneys are not required to refund advanced payments if they are fired from
a case.
c) No, because client requested refund in writing and attorneys must refund any unused
portion of an advanced fee if the client requests such reimbursement in writing.
d) No, because attorneys shall refund unused portions of an advanced payment of fees and
provide client with a detailed listing of fees deducted from the advanced payment,
regardless of how long the attorney represents the client.
500.
Client retains Attorney to handle a criminal matter. Client delivers a retainer check to
Attorney on Friday afternoon. The retainer check will only cover the work Attorney anticipates
he will begin and complete the following Monday. Because the following Monday is a banking
holiday, if Attorney deposits the retainer check into his client trust account on Friday afternoon,
he will not have access to the funds until Tuesday. Attorney deposits the retainer check into
his business checking account and pays himself on Friday before the firm closes with those
funds. Is Attorney subject to discipline?
a) Yes, attorneys shall not accept amounts paid in advance for criminal matters.
b) Yes, attorneys shall deposit amounts paid in advance into a client trust account and the
attorney shall not withdraw the funds until fees are earned or expenses are incurred.
c) No, if an attorney believes the funds will be earned within a short period, the attorney may
deposit the amount he anticipates will be earned directly into his business account.
d) No, when an event out of an attorney’s control, such as a bank holiday, cause the funds to
be unavailable when the attorney anticipates he will need to withdraw the funds, the
attorney may deposit the amount he reasonably believes will be earned or needed for
expenses into his business account instead of the client trust account.
277
ANSWER KEY- Rule 1.15
489.
490.
491.
492.
493.
494.
495.
496.
497.
498.
499.
500.
c
d
a
a
b
a
b
a
c
d
d
b
278
279
280