/
MPRE
Course Materials
KaplanBarReview.com/MPRE
- Online Course Manager
- fleX Flashcards
- Practice Tests
- Study Materials
- Lecture
KAPLAN BAR REVIEW
MPRE COURSE
Access the Online Course Content
++ Go to www.KaplanBarReview.com/MPRE, click “log in” and
enter your username and password to access your course.
++
Online Course
Manager
If you did not receive a username and password to access
your online assets visit www.KaplanBarReview.com/MPRE
and select the “free MPRE with downloadable outline” option.
Once you’ve completed the free enrollment, you will receive
a confirmation email with your username and password. Use
that username and password to log in to your course at www.
KaplanBarReview.com/MPRE.
Lecture and
Bar Notes
Study Materials
Practice Tests
and Analysis
www.KaplanBarReview.com/MPRE
Log on to get started
fleX Flashcards
Welcome /
MPRE COURSE MATERIALS
Welcome to Kaplan Bar Review’s program for the Multistate Professional Responsibility Exam!
Our MPRE preparation program provides a comprehensive overview of the legal rules and concepts
tested on the MPRE. It includes exclusive tools for organizing this material and a curriculum designed to:
++
++
++
facilitate your learning,
improve your test-taking, and
optimize your exam-day performance, so that you can pass the MPRE with confidence.
This book is a companion piece to your online course, which contains the bulk of the MPRE program in
a convenient online course manager. Below is a review of some of the key features and tools that you
will see in the curriculum.
ONLINE COURSE MANAGER
++
Online Course Manager: The online course manager contains all of the content you will
need for your MPRE preparation, organized in the recommended sequence.
LECTURE AND BAR NOTES
++
Lecture: The on-demand online video lecture covers the course material in a series of
lessons, each dedicated to a different topic area and set of rules. It includes hypotheticals
to illustrate key concepts and highly tested issues.
++
Bar Notes: The Bar Notes should be used in conjunction with the lecture, and you should
take notes in the space provided. Doing so will help you remember the concepts being
lectured on and create a comprehensive reference guide for later review. The Bar Notes
can be downloaded from the online course manager.
STUDY MATERIALS
++
Outline: The outline is a detailed and comprehensive reference tool that should be used
after the lecture. Every outline page is accompanied by a roadmap on the left-facing page
that shows where you are in the subject and how the various topics and Rules interrelate.
++
Bar Points: The Bar Points are a concise version of the outline covering the most essential
legal principles needed for the MPRE. The Bar Points should be used both to familiarize
yourself with the structure of the material that will be covered before the lecture, and as a
review of the key concepts and rules tested on the MPRE.
PRACTICE TESTS AND ANALYSIS
Q:
++
Four Full-Length MPRE Practice Tests: Your MPRE program includes four simulated exams
so you can assess your performance under test-like conditions. Each practice test contains
60 test-like MPRE multiple choice questions, plus explanations for every answer choice.
++
Online Workshop: For Practice Test 1, we also provide an online workshop to walk you
through the Practice Test, question by question.
++
Qbank: The online Qbank provides more test-like MPRE multiple choice questions, plus
explanations for every answer choice. The Qbank allows you to build custom quizzes, take
them in a timed or untimed format, and review detailed explanations. Practicing multiple
choice questions is essential to absorbing key legal principles and learning how to apply
them on test day.
FLEX FLASHCARDS
++
fleX Flashcards: The online interactive flashcard program tests legal principles that are
likely to appear on the MPRE. The fleX Flashcards facilitate memorization of the law and
help to pin-point areas of strength and weakness.
Important note: As a student of Kaplan Bar Review, we trust you with the content for our MPRE course, including all printed and
online content. As indicated in your enrollment agreement, this content is made available for your exclusive use and should not,
under any circumstances, be shared with others. Kaplan Bar Review views a breach of this agreement—and the unauthorized use
of this content—as a serious legal and ethical matter and will respond to violations with, among other actions, legal sanctions and
notification to the character and fitness committee of your board of bar examiners.
This publication is designed to provide accurate and authoritative information in regard to the subject matter covered.
It is sold with the understanding that the publisher is not engaged in rendering legal or other professional service.
If legal advice or other expert assistance is required, the services of a competent professional should be sought.
Special thanks to: Lauren Allen, Esq., Bree Bernwanger, Esq., Gregory Binstock, Esq., Chris DeSantis, Esq.,
Adam Feren, Esq., Christopher Fromm, Esq., Elizabeth Horowitz, Esq., Justina LaPorte, Esq.,
Nicole Lefton, Esq., Steven Marietti, Esq., Adam Maze, Esq., Michael Merrill, Ph.D.,
Flora Midwood, Esq, Walter Niedner, Mike Power, Esq., Ryan Rentmeester, Esq., Tammi Rice, Esq.,
Micol Small, Esq., David Thau, Esq.
© 2014 by Kaplan, Inc.
Published by Kaplan Bar Review, a division of Kaplan, Inc.
395 Hudson Street
New York, NY 10014
All rights reserved. No part of this book may be reproduced or transmitted in any form or by any means
electronic or mechanical, including photocopying, recording, or by any information storage and retrieval
system, without the prior permission of Kaplan, Inc.
Printed in the United States of America
July 2014
Master Table of Contents /
INTRODUCTION
I. About the MPRE................................................................................................................................................. 1
II. Glossary.................................................................................................................................................................. 2
III. Subject Matter..................................................................................................................................................... 3
BAR POINTS................................................................................................................................................................. 5
OUTLINE
I. Regulation of Lawyers...................................................................................................................................... 43
II. Getting Clients..................................................................................................................................................... 67
III. Client-Lawyer Basics......................................................................................................................................... 77
IV. Duties to Clients.................................................................................................................................................. 97
V. Client Confidentiality........................................................................................................................................ 115
VI. Conflicts of Interest........................................................................................................................................... 129
VII. Duties to Tribunal and Opposing Parties.................................................................................................. 149
VIII. Duties to Non-Clients....................................................................................................................................... 169
IX. Professional and Public Duties...................................................................................................................... 177
X. Judges..................................................................................................................................................................... 183
PRACTICE TEST 1
I. Questions............................................................................................................................................................... 219
II. Answers and Answer Explanations............................................................................................................. 247
PRACTICE TEST 2
I. Questions............................................................................................................................................................... 285
II. Answers and Answer Explanations............................................................................................................. 311
V
PRACTICE TEST 3
I. Questions............................................................................................................................................................... 347
II. Answers and Answer Explanations............................................................................................................. 371
PRACTICE TEST 4
I. Questions............................................................................................................................................................... 409
II. Answers and Answer Explanations............................................................................................................. 434
VI
///////////////////////////////////////////////////////////////////////////////////////////////////////
About the MPRE /
REGISTRATION FOR THE MPRE
The MPRE is offered three times a year: April,
August, and November.
To register for the MPRE, an NCBE Number is
required. An NCBE Number can be requested
online at www.ncbex.org/ncbe-number.
To register for the MPRE online, applicants
must log onto their NCBE Number account at
www.ncbex.org/ncbe-number and proceed to
the MPRE registration page
MULTISTATE PROFESSIONAL
RESPONSIBILITY EXAMINATION
NATIONAL CONFERENCE
OF BAR EXAMINERS (NCBE)
Contact Information:
National Conference of Bar Examiners
302 South Bedford Street
Madison, WI 53703-3622
Phone: (608) 280-8550
Fax: (608) 280-8552
Email: Contact@ncbex.org
Website: www.ncbex.org
THE EXAM
++ The MPRE consists of 60 multiple-choice questions.
++ There are 50 scored questions and 10 non-scored, pretest questions which are indistinguishable
from those that are scored, so all 60 questions should be treated with equal regard.
++ Examinees will have two hours to answer all questions.
++ The MPRE is required in all but three states, as well as in several U.S. territories.
++ Examinees need not know rule numbers for the test, just the principles of law.
++ The purpose of the MPRE is to measure the examinee’s knowledge and understanding of
established standards related to a lawyer’s professional conduct; the MPRE is not a test to
determine an individual’s personal ethical values.
++ Test questions dealing with the discipline of lawyers by state disciplinary authorities apply
the current American Bar Association (ABA) Model Rules (MRs) of Professional Conduct; test
questions covering judicial ethics apply the current ABA Model Code of Judicial Conduct (CJC).
++ The remaining questions, dealing with regulating the legal profession outside the disciplinary
context, will be governed by the view reflected in a majority of cases, statutes, or regulations on
the subject.
Source: The National Conference of Bar Examiners; 2013 Multistate Professional Responsibility Examination Information Booklet
(www.ncbex.org)
///////////////////////////////////////////////////////////////////////////////////////////////////////
Glossary /
WORDS AND PHRASES USED ON THE MPRE
The MPRE uses certain words and phrases in the question-call with meanings specific to the
examination:
++ Subject to discipline
asks whether the conduct described in the question would subject the lawyer to discipline
under the provisions of the MRs, or subject the judge to discipline under the CJC.
++ May or proper
asks whether the conduct referred to or described in the question is professionally
appropriate in that it:
–– would not subject the lawyer or judge to discipline; and
–– is not inconsistent with the Preamble, Comments, or text of the MRs or with the
CJC; and
–– is not inconsistent with generally accepted principles of the law of lawyering.
++ Subject to litigation sanction
asks whether the conduct described in the question would subject the lawyer or the
lawyer’s law firm to sanction by a tribunal such as fine, fee forfeiture, disqualification,
punishment for contempt, or other sanction.
++ Subject to disqualification
asks whether the conduct described in the question would subject the lawyer or the
lawyer’s law firm to disqualification as counsel in a civil or criminal matter.
++ Subject to civil liability
asks whether the conduct described in the question would subject the lawyer or the
lawyer’s law firm to civil liability, such as claims arising from malpractice, misrepresentation,
or breach of fiduciary duty.
++ Subject to criminal liability
asks whether the conduct described in the question would subject the lawyer to criminal
liability for participation in or for aiding and abetting criminal acts, such as prosecution for
insurance or tax fraud, destruction of evidence, or obstruction of justice.
++ Bar, state bar, or state disciplinary authority
refers to the appropriate agency in the jurisdiction with authority to administer the
standards for admission to practice and for maintenance of professional competence and
integrity.
++ Certified specialist
means a lawyer who has been so certified by the appropriate agency in the jurisdiction in
which the lawyer practices.
Source: The National Conference of Bar Examiners; 2013 Multistate Professional Responsibility Examination Information Booklet
(www.ncbex.org)
///////////////////////////////////////////////////////////////////////////////////////////////////////
Subject Matter /
SCOPE OF COVERAGE
The following subject matter outline indicates the MPRE’s scope of coverage and the approximate
percentage of items that are included in each major area.
I.
Regulation of the Legal Profession
A.
B.
C.
D.
E.
F.
G.
H.
I.
J.
(6–12%)
Powers of courts and other bodies to regulate lawyers
Admission to the profession
Regulation after admission—lawyer discipline
Mandatory and permissive reporting of professional misconduct
Unauthorized practice of law—by lawyers and nonlawyers
Multijurisdictional practice
Fee division with a nonlawyer
Law firm and other forms of practice
Responsibilities of partners, managers, supervisory and
subordinate lawyers
Restrictions on right to practice
II. The Client-Lawyer Relationship
A.
B.
C.
D.
E.
F.
G.
H.
(10–16%)
Formation of client-lawyer relationship
Scope, objective, and means of the representation
Decision-making authority—actual and apparent
Counsel and assistance within the bounds of the law
Termination of the client-lawyer relationship
Client-lawyer contracts
Communications with the client
Fees
III. Client Confidentiality
A.
B.
C.
D.
E.
(6–12%)
Attorney-client privilege
Work-product doctrine
Professional obligation of confidentiality—general rule
Disclosures expressly or impliedly authorized by client
Other exceptions to the confidentiality rule
IV. Conflicts of Interest
A.
B.
C.
D.
E.
F.
G.
H.
I.
J.
(12–18%)
Current client conflicts—multiple clients and joint representation
Current client conflicts—lawyer’s personal interest or duties
Former client conflicts
Prospective client conflicts
Imputed conflicts
Acquiring an interest in litigation
Business transactions with clients
Third-party compensation and influence
Lawyers currently or formerly in government service
Former judge, arbitrator, mediator, or other third-party neutral
V. Competence, Legal Malpractice, and Other Civil Liability
(6–12%)
A.
B.
C.
D.
E.
F.
G.
Maintaining competence
Competence necessary to undertake representation
Exercising diligence and care
Civil liability to client, including malpractice
Civil liability to nonclients
Limiting liability for malpractice
Malpractice insurance and risk prevention
VI. Litigation and Other Forms of Advocacy
(10–16%)
A. Meritorious claims and contentions
B. Expediting litigation
C. Candor to the tribunal
D.
E.
F.
G.
Fairness to opposing party and counsel
Impartiality and decorum of the tribunal
Trial publicity
Lawyer as witness
VII. Transactions and Communications with
Persons Other Than Clients
A.
B.
C.
D.
(2–8%)
Truthfulness in statements to others
Communications with represented persons
Communications with unrepresented persons
Respect for rights of third persons
VIII.Different Roles of the Lawyer
A.
B.
C.
D.
E.
F.
G.
(4–10%)
Lawyer as advisor
Lawyer as evaluator
Lawyer as negotiator
Lawyer as arbitrator, mediator, or other third-party neutral
Prosecutors and other government lawyers
Lawyer appearing in nonadjudicative proceeding
Lawyer representing an entity or other organization
IX. Safekeeping Funds and Other Property
A.
B.
C.
D.
(2–8%)
Establishing and maintaining client trust accounts
Safekeeping funds and other property of clients
Safekeeping funds and other property of third persons
Disputed claims
X. Communications About Legal Services
A.
B.
C.
D.
E.
(4–10%)
Advertising and other public communications about legal services
Solicitation—direct contact with prospective clients
Group legal services
Referrals
Communications regarding fields of practice and specialization
XI. Lawyers’ Duties to the Public and the Legal System
A.
B.
C.
D.
E.
F.
G.
H.
(2–4%)
Voluntary pro bono service
Accepting appointments
Serving in legal services organizations
Law reform activities affecting client interests
Criticism of judges and adjudicating officials
Political contributions to obtain engagements or appointments
Improper influence on government officials
Assisting judicial misconduct
XII. Judicial Conduct
(2–8%)
A. Maintaining the independence and impartiality of the judiciary
B. Performing the duties of judicial office impartially, competently,
and diligently
C. Ex parte communications
D. Disqualification
E. Extrajudicial activities
Source: The National Conference of Bar Examiners; 2013 Multistate Professional Responsibility Examination Information Booklet
(www.ncbex.org)
Bar Points
BAR POINTS
REGULATION OF LAWYERS
„„ A lawyer must respond truthfully to requests for information relative to disciplinary proceedings
against himself or against other lawyers after admission.
„„ It is a separate disciplinary offense to lie or to refuse to cooperate in an investigation of a lawyer’s
own conduct.
Becoming a Lawyer
„„ Applicants for admission to the bar, and lawyers in connection with a bar admission application or a
disciplinary matter, must not knowingly make a false statement of material fact, fail to disclose a fact
necessary to correct a misapprehension, or knowingly fail to respond to a lawful demand for nonconfidential information.
„„ However, a lawyer who knows of derogatory information about a bar candidate cannot disclose that
information if it is confidential information protected under Rule 1.6.
„„ This Rule requires correction of any prior misstatement that the bar candidate may have made,
and requires affirmative clarification of any prior misunderstanding on the part of the admissions or
disciplinary authority of which the bar candidate becomes aware.
„„ Applicants sign the bar application under penalty of perjury.
„„ States may require more disclosure from applicants for a law license than employers may require
in a job application. For example, bar applications often contain questions not permitted by
constitutional or employment law in job applications, such as those asking about treatment for
chemical dependency and mental illness, records of arrests not leading to convictions, and whether
the applicant has been a party to any lawsuit.
„„ A candidate for admission may claim the 5th Amendment privilege against self-incrimination as a ground
for lawfully refusing to disclose confidential information to the extent protected by Rule 1.6. However,
the right against self-incrimination applies only where there is a threat of criminal prosecution; it does
not apply to past criminal prosecutions or to the mere possibility of disciplinary action by the state bar.
Losing the Right to Be a Lawyer
„„ Under Rule 8.4, it is professional misconduct for a lawyer to:
(1)
violate or attempt to violate the Rules, knowingly assist or induce another to do so, or do so
through the acts of another;
(2)
commit a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness, or fitness
as a lawyer;
(3)
engage in conduct involving dishonesty, fraud, deceit, or misrepresentation;
(4)
engage in conduct that is prejudicial to the administration of justice;
(5)
state or imply an ability to influence improperly a government agency or official or to achieve
results by means that violate the Rules or other law; or
(6)
knowingly assist a judge or judicial officer in conduct that is a violation of the applicable rules of
judicial conduct or other law.
„„ This rule is a catchall provision permitting discipline for serious misconduct not specified elsewhere in
the Rules.
EXAM TIP
6
Any violation of the Rules, or any attempt to do so, is a violation of Rule 8.4. Therefore, a charge
under Rule 8.4 should accompany almost any other charge in a disciplinary complaint.
„„ A lawyer does not violate Rule 8.4, however, if that lawyer refuses to comply with a legal obligation,
including one of the Rules, in the good-faith belief that no valid obligation exists, even if the lawyer is
proven wrong in a challenge to the law or Rule.
EXAM TIP
Some conduct specifically prohibited by the Rules violates the general prohibitions in Rule 8.4 as well. If
one answer identifies a more specific Rule that was violated and another answer offers the general prohibitions contained in Rule 8.4, the better answer is the one referring to the more specific Rule violated.
Jurisdictional Authority to Discipline
„„ A lawyer admitted to practice in a jurisdiction is subject to the Rules of Professional Conduct of that
jurisdiction, regardless of where the lawyer’s conduct occurs.
„„ A lawyer not admitted in a jurisdiction is also subject to the Rules of Professional Conduct of that
jurisdiction if the lawyer provides or offers to provide any legal services in that jurisdiction.
NOTE
A lawyer may be subject to discipline in both the lawyer’s home jurisdiction and another jurisdiction for
the same conduct.
Restricting the Right to Practice Law
„„ Restrictions by agreement are generally prohibited. A lawyer may not agree to participate in any
partnership or employment agreement that restricts the lawyer’s right to practice after termination of
the relationship, other than an agreement concerning benefits upon retirement.
„„ This provision effectively prohibits lawyers from making any non-competition agreements, other than
an agreement under which retirement benefits will be forfeited if a lawyer enters into competition after
leaving his former firm.
„„ Thus, non-competition agreements, even if limited to a short time, to a particular locality, or to clients
of the firm are prohibited.
„„ However, the Rule does not prohibit restrictions that are included in the terms of the sale of a law practice.
Forms of Practice
Law Firms and Associations
„„ Partners and supervising attorneys must make reasonable efforts to establish internal policies and
procedures to provide reasonable assurance that all attorneys in their employ comply with the Rules.
„„ The precise measures required to fulfill these obligations depend on the structure and the work of the
firm, but should include procedures designed to detect and resolve conflicts of interest, identify dates
by which actions must be taken in pending matters so that deadlines are not missed, account for
client funds and property, and ensure that inexperienced lawyers are properly supervised.
NOTE
In a small firm that does not practice in areas where ethical problems frequently arise, an informal
program is sufficient. In a larger firm, particularly one practicing in areas involving difficult ethical
problems, a formal structure is required which could include referring ethics problems to an ethics
committee or to a senior partner.
„„ Supervising attorneys are personally responsible for subordinates’ ethical violations if they order or
ratify the subordinates’ work.
„„ Following a supervisor’s orders is not a defense for a subordinate lawyer. The subordinate’s own ethical
duties remain. However, where a subordinate acts in accordance with a supervisory lawyer’s reasonable
resolution of an arguable question of professional duty, the subordinate does not violate the Rules.
„„ A partner or managing or supervisory lawyer is also personally responsible to ensure that non-lawyers
employed or retained by, or associated with, the lawyer or law firm conduct themselves in a manner
7
BAR POINTS
compatible with the professional obligations of the lawyer. A lawyer is responsible for overseeing the
work of his non-lawyer assistants and is subject to discipline if:
(1)
the lawyer orders or ratifies wrongdoing; or
(2)
the lawyer is a partner in the law firm in which the person is employed or has direct supervisory
authority over the person, and knows of the conduct at a time when its consequences can be
avoided or mitigated but fails to take reasonable remedial action.
Lawyers Providing Law-Related Services
DEFINITION
Law-related services are services that might reasonably be performed in conjunction with, and in
substance are related to, the provision of legal services and not prohibited as the unauthorized practice of law when provided by a non-lawyer.
EXAM TIP
Law-related services include, for example, providing title insurance, financial planning, accounting,
trust services, and real estate counseling.
„„
A lawyer who is providing law-related services is subject to the Rules if the law-related services are provided:
(1)
in circumstances that are not distinct from the lawyer’s provision of legal services to clients; or
(2)
by a separate entity controlled or owned by the lawyer individually or with others, unless the
lawyer takes reasonable measures to ensure that persons obtaining law-related services know
that they are not obtaining legal services and are not protected by the client-lawyer relationship.
Duties to the Profession
Avoiding the Unauthorized Practice of Law
„„ A lawyer may not practice law, or assist another in doing so, in violation of the regulation of the legal
profession in the applicable jurisdiction.
„„ A lawyer who is not admitted in a jurisdiction may not establish an office or other systematic and
continuous presence in that jurisdiction for the practice of law or hold out to the public or otherwise
represent that the lawyer is admitted to practice in that jurisdiction.
„„ A lawyer admitted to practice and in good standing in one jurisdiction, is permitted to provide
temporary legal services in a separate, new jurisdiction if:
(1)
the representation is undertaken in association with a lawyer who is admitted to practice in the
new jurisdiction and who actively participates in the matter;
(2)
the legal services that the lawyer will be providing are in or reasonably related to a pending
or potential proceeding before a tribunal in the new jurisdiction or another jurisdiction, and the
lawyer or someone assisting the lawyer has either been admitted pro hac vice or reasonably
expect to be admitted pro hac vice;
(3)
the legal services that the lawyer will be providing are in or reasonably related to a pending or
potential alternative dispute resolution proceeding in the new jurisdiction or another jurisdiction,
provided that the services arise out of or are reasonably related to the lawyer’s practice in the
jurisdiction where he is admitted to practice law, and the services are not the kind of services
where a lawyer would first need to obtain pro hac vice admission; or
(4)
the legal services arise out of or are reasonably related to the lawyer’s practice in a jurisdiction
in which the lawyer is admitted to practice.
„„ A lawyer may not assist another person in the unauthorized practice of law.
„„ A lawyer may delegate tasks to those who are non-lawyers without being in violation of the Rules so
long as the lawyer maintains a direct relationship with the client, supervises the delegated work, and
retains complete professional responsibility for the work.
8
„„ Ultimately, the lawyer is responsible for the negligence or malfeasance of any non-lawyer employee
that the lawyer knew or should have known about and monitored.
EXAM TIP
For example, a law student employee may interview witnesses, make collections, and examine court
documents; a layperson may conduct an initial interview with a client as long as no service or advice
is provided, and the layperson reports back to a lawyer; and an insurance adjuster may negotiate a
settlement if the attorney received the case before a final settlement was approved.
Non-Lawyers and the Practice of Law
„„ Each state has specific rules permitting limited practice by a law student that is supervised by a
licensed lawyer. A law school graduate who has not passed the bar or who has not been admitted to
practice in any jurisdiction, however, may be guilty of the unauthorized practice of law if he gives legal
advice or holds himself out as a member of a bar.
„„
A lawyer may be guilty of the unauthorized practice of law if he continues to practice law while on suspended
status for non-payment of bar dues or non-compliance with continuing legal education requirements.
Fee-Splitting
„„ A lawyer or law firm may not share fees with non-lawyers, except that:
(1)
an agreement by a lawyer with the lawyer’s firm, partner, or associate may provide for the
payment of money to the lawyer’s estate over a reasonable period of time after the lawyer’s death;
(2) a lawyer who buys a practice from a deceased, disabled, or disappeared lawyer may pay the
purchase price to the lawyer’s estate or to another representative of the lawyer;
(3) a lawyer or firm may include non-lawyer employees in a compensation or retirement plan, even
if based on a profit-sharing arrangement; and
(4) a lawyer may share court-awarded legal fees with a nonprofit organization that employed,
retained, or recommended employment of the lawyer in the matter.
Associating with Non-Lawyers
„„ A lawyer may not:
(1) form a partnership or other business entity with a non-lawyer if any of the business’s activities
consist of the practice of law;
(2) allow a person who recommends, employs, or pays the lawyer to render legal services for
another to direct or regulate his professional judgment in rendering legal services; or
(3)
practice with or in the form of a professional corporation or association authorized to practice law
for a profit, if a non-lawyer owns an interest therein; a non-lawyer is a corporate director or officer
or occupies a position of similar responsibility in any form of association other than a corporation;
or a non-lawyer has the right to direct or control the professional judgment of a lawyer.
Reporting Professional Misconduct
„„ A lawyer who knows that another lawyer has committed a violation of the Rules or Judicial Code
that raises a substantial question as to that lawyer’s honesty, trustworthiness or fitness as a lawyer,
or in the case of a judge, that judge’s fitness to be a judicial officer, shall inform the appropriate
professional authority.
NOTE
The Rules require the self-reporting of disciplinary violations.
Exceptions
„„ Disclosure of information learned while serving as a member of a lawyer assistance program,
including programs for substance abuse or mental health problems, is not required.
9
BAR POINTS
„„ Disclosure of information involving confidential information otherwise protected by Rule 1.6 is not
required. However, a lawyer should encourage a client to consent to disclosure where doing so would
not substantially prejudice the client’s interests.
„„ Similarly, the duty to report past professional misconduct does not apply to a lawyer retained to
represent another lawyer whose professional conduct is in question.
GETTING CLIENTS
Advertising
DEFINITION
In broad terms, advertising is the communication of information about the availability of a lawyer’s
services in a general way that does not personally target any specific individual who might be “put on
the spot” to accept or decline employing the lawyer.
„„ A lawyer may communicate information about themselves or their services so long as the
communication is neither false nor misleading.
„„ A statement is misleading if it:
(1)
contains a material misrepresentation of fact or law;
(2)
omits facts that are necessary to make the communication, taken as a whole, not materially misleading;
(3)
is substantially likely to lead a reasonable person to formulate a specific conclusion about the
lawyer or the lawyer’s services for which there is no reasonable factual foundation; or
(4)
would lead reasonable persons to unjustified expectations that the same results could be
obtained for other clients in similar matters without reference to the specific factual and legal
circumstances of each client’s case.
„„ All ads must include the name and office address of at least one attorney or law firm.
Solicitation
„„ Rule 7.3 distinguishes between advertising and solicitation by focusing on personal contact.
DEFINITION
A solicitation is a targeted communication initiated by the lawyer that is directed to a specific person
and that offers to provide legal services.
„„ A lawyer cannot solicit fee-generating employment by in-person, live telephone, or real-time electronic
contact, when the lawyer’s significant reason for doing so is pecuniary gain, unless the person
solicited is a lawyer or has a family, close personal, or prior professional relationship with the lawyer.
„„ A lawyer may not solicit employment from anyone who has made it known to the lawyer that he
does not want to be solicited, nor may a lawyer engage in solicitation involving coercion, duress,
or harassment.
„„ If written, recorded, or electronic communication is used by a lawyer to solicit professional
employment from someone known to be in need of legal services, then the words “Advertising
Material” must appear on the outside envelope (in the case of a written communication) or at the
beginning and ending of the message (in the case of recordings or electronic communications).
„„ This Rule does not apply if the written, recorded, or electronic solicitation is used to target another
lawyer or a person with whom the lawyer has a family, close personal, or prior professional relationship.
NOTE
10
Solicitation is permitted where the lawyer does not have a substantial pecuniary motive. A lawyer has
the right to approach persons in need of legal services, to explain that need, and then to suggest that
they obtain a lawyer or obtain the services of the soliciting lawyer without charge.
„„ A lawyer has the right to contact the representatives of organizations or groups interested in establishing
a group or prepaid legal services plan for their members, beneficiaries, or other third persons.
„„ A lawyer may participate in a prepaid or group legal services plan that uses personal solicitation to
secure clients, as long as:
(1) the lawyer is not personally involved in the solicitation;
(2) the organization is not owned or directed by the lawyer; and
(3) the persons solicited are not known to be in need of legal services in a particular matter.
Specialization
„„ A lawyer admitted to engage in patent practice before the United States Patent and Trademark Office
can use the designation “Patent Attorney” or another substantially similar designation in advertisements.
„„ A lawyer engaged in admiralty law can use the designation “Admiralty,” “Proctor in Admiralty,” or
another substantially similar designation in advertisements.
„„ In an advertisement, a lawyer may identify the area of law in which he does or does not practice as
long as he does not imply that he is a certified specialist.
„„ A lawyer may not state or imply that he is certified as a specialist in a particular field of law, unless he
is certified by an organization approved by a state authority (like the state bar) or accredited by the
ABA, and the name of the certifying organization is identified.
„„ However, a state could prohibit advertisement of certifications issued by organizations that make no
inquiry into a petitioner’s fitness, or issue certificates indiscriminately for a fee.
Referrals
„„ A lawyer cannot give anything of value for client referrals, except that the lawyer may:
(1) pay the fees associated with being part of a legal service plan, or a not-for-profit, or qualified
lawyer referral service; and
(2) refer clients to another lawyer or a non-lawyer professional pursuant to an agreement that
provides for referrals of clients or customers to the lawyer, if the reciprocal referral agreement is
not exclusive and the client is informed of the existence and nature of the agreement.
Naming of Law Practice
„„ A law firm’s name must not be misleading.
„„ Trade names are permitted if they are not misleading and do not imply a connection with a
government or charitable legal services organization.
„„ Law firms with offices in more than one jurisdiction are permitted to use the same name or
designation in each jurisdiction, as long as their communications in each state identify those partners
not licensed to practice in the state.
„„ The name of any lawyer holding public office cannot be used in the name of the law firm, or in
communications on its behalf, during any substantial period when the lawyer is not actively and
regularly practicing with the firm.
„„
NOTE
Lawyers may state or imply that they practice in a partnership or other organization only when that is the fact.
Lawyers who are merely sharing office facilities, such as a secretary, conference room, or the like, but
who are not partners, cannot denominate themselves a partnership or give themselves a name that
implies a partnership.
11
BAR POINTS
CLIENT-LAWYER BASICS
Defining the Client-Lawyer Relationship
Allocation of Authority Between Client and Lawyer
„„
The client-lawyer relationship is contractual in nature: the client is the principal, and the attorney is the agent.
Therefore, the client has the ultimate authority to determine the purposes to be served by the representation.
„„ The client decides the objectives of the representation. These may include:
„„
(1)
in a civil case, whether to settle the matter; and
(2)
in a criminal case (after consulting with the lawyer), whether to enter a plea, whether to waive a
jury trial, and whether the client will testify.
The lawyer ordinarily has the right to determine the technical and legal tactical means by which the objectives
of the relationship will be pursued, but he has the obligation to consult with the client concerning those means.
(1)
Conversely, a lawyer will generally defer to the client questions about the expense to be
incurred and concern for third persons who might be adversely affected.
„„ Where a client and lawyer disagree, the lawyer should consult with the client to seek a mutually
acceptable resolution. If resolution efforts are unavailing and the lawyer has a fundamental
disagreement with the client, the lawyer may withdraw from the representation, or the client may
resolve the disagreement by discharging the lawyer.
Clients With Diminished Capacity
„„ When a client has diminished capacity to make decisions regarding the representation because of
minority, mental impairment, or other reason, the lawyer should strive to maintain a normal clientlawyer relationship with the client as far as reasonably possible. The lawyer has the same obligation
to treat the client with attention and respect and should, as far as possible, accord the represented
person the status of client, particularly in maintaining communication.
„„ The lawyer may take reasonably necessary protective action, including consulting with others who
have the ability to take action to protect the client or seeking the appointment of a guardian ad litem,
conservator, or guardian, when the lawyer reasonably believes that the client has diminished capacity
and cannot adequately act in the client’s own interests.
„„ If the lawyer seeks the appointment of a legal representative for the client, the lawyer is impliedly
authorized to make the necessary disclosures, even when the client directs the lawyer to the contrary.
Scope of Lawyer’s Representation
„„ A lawyer may limit the scope of the representation if the limitation is reasonable under the
circumstances and the client gives informed consent.
NOTE
Although an agreement for a limited representation does not exempt a lawyer from the duty to provide
competent representation, the limitation is a factor to be considered when determining the legal
knowledge, skill, thoroughness, and preparation reasonably necessary for the representation.
„„ A lawyer shall not assist or counsel a client to engage in conduct that the lawyer knows is criminal
or fraudulent.
„„ A lawyer may discuss the legal consequences of any proposed course of conduct and may counsel or
assist a client to make a good-faith effort to determine the validity, scope, meaning, or application of the law.
„„ The fact that the client uses the lawyer’s advice in a criminal or fraudulent course of conduct does not
make the lawyer a party to the course of action, as long as the lawyer has not assisted the client in
committing the crime or fraud.
12
„„ A lawyer may not continue assisting a client in conduct that the lawyer originally believed to be legally
proper but then discovers is criminal or fraudulent. The lawyer must withdraw from the representation
of the client.
„„ The lawyer is not permitted to reveal the client’s wrongdoing, except where permitted by rules
regarding confidential information. However, the lawyer is required to avoid furthering the purpose, for
example, by suggesting how it might be concealed.
NOTE
It is possible that withdrawal alone may be insufficient. It may be necessary for the lawyer to give notice of withdrawal and disaffirm any opinion, document, or affirmation that was unknowingly put forth
by the lawyer in the belief that they were legally proper.
Reasonable Fee Arrangements
„„ A lawyer shall not agree to, charge, or collect an unreasonable fee.
REASONABLE FEE
Factors to consider in determining whether a fee is reasonable include:
1. the time and labor required, the novelty and difficulty of the questions
involved, and the skill requisite to perform the legal service properly;
2. the likelihood that acceptance of this representation will preclude the
lawyer from accepting other employment;
3. the customary fee in the locale for this kind of work;
4. the amount involved and results obtained;
5. the time limitations imposed by the client or by the circumstances;
6. the nature and length of the professional relationship with the client;
7. the lawyer’s experience, reputation, and ability; and
8. whether the fee is fixed or contingent.
„„ A lawyer must explain to new clients the fee and how it will be calculated, preferably in writing,
before or within a reasonable time after the representation begins. The lawyer must also promptly
communicate any fee changes to the client.
DEFINITION
A contingent fee requires the client to pay a fee (or a bonus) only if there is a favorable outcome.
„„ A contingent fee agreement must be in writing, signed by the client, and state:
(1) the method by which the fee is to be determined;
(2) the expenses and costs to be deducted from the recovery and whether such expenses are to be
deducted before or after the calculation of the fee; and
(3) the expenses for which the client will be liable whether or not the client is the prevailing party.
„„ Upon conclusion of a contingent fee matter, the lawyer must provide the client with a written
statement stating the outcome of the matter and, if there is a recovery, showing the remittance to the
client and the method of its determination.
NOTE
Contingent fees are not permitted in domestic relations matters when the contingency is based
on the securing of a divorce, the amount of alimony or support, or the amount of a property
settlement. Contingent fees are also not permitted when the lawyer is representing a defendant in
a criminal case.
13
BAR POINTS
„„ A lawyer may advance court costs and other expenses of litigation, the repayment of which may be
contingent on the outcome of the matter. Under such an arrangement, if the client loses the case, the
lawyer absorbs the costs and expenses.
„„
A fee can be divided between lawyers who are not in the same firm if:
(1)
the lawyers either assume joint responsibility for the representation or the division is in
proportion to the services performed by each lawyer;
(2)
the client agrees to the arrangement in writing; and
(3)
the total fee is reasonable.
„„ 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 would likely be required, unless he
adequately explains the situation to the client.
„„ A modification of a fee agreement during the course of the representation presumptively shows
fraud by the attorney, unless the client consents to the change based on full disclosure and
adequate consideration.
„„ A lawyer may collect a fee in advance in the form of a retainer, but unless the advance payment is a
true retainer to reserve services, the lawyer must return any unearned portion.
„„ If a lawyer, by agreeing to represent a client, has foreclosed himself from other valuable legal work,
then he has the right to ask for a nonrefundable retainer. This arrangement is reasonable as long as
the attorney clearly explains to the client that the retainer is nonrefundable.
NOTE
So-called “non-refundable” retainers are viewed with increasing disfavor because the presumption is
that the advanced payment is not earned upon receipt. When the advanced payment is not earned
upon receipt, the payment constitutes client funds and any unearned portion must ultimately be refunded to the client pursuant to the Rules.
„„ A lawyer may receive property as a payment for services, as long as the payment does not involve
acquisition of a proprietary interest in the cause of action or subject matter of the litigation. However,
a fee paid in property may be subject to additional scrutiny because such fees have the essential
qualities of a business transaction with the client.
„„ In the event of a fee dispute, a lawyer should consider submitting to mediation or an established fee
arbitration service. The law may also prescribe a procedure for determining a lawyer’s fee. The lawyer
entitled to the fee and the lawyer representing the other party concerned with the fee should comply
with the prescribed procedure.
Terminating a Client-Lawyer Relationship
In General
„„ A lawyer’s representation of a client ordinarily continues until the completion of the matter;
however, there are two types of premature termination of the relationship: mandatory withdrawal
and optional withdrawal.
„„ The court’s approval or notice will likely be required before termination if the lawyer is representing
the client in pending litigation.
„„ Upon terminating representation, the lawyer must take steps to protect the client’s interests.
14
(1)
The lawyer must give the client reasonable notice and time to retain other counsel.
(2)
The lawyer must also return client papers and any unearned portion of prepaid fees. However,
the lawyer may retain papers as security for a fee only to the extent permitted by law.
„„ The lawyer’s duty of confidentiality continues after withdrawal. If a lawyer is asked by the court to
explain a withdrawal that is based on the client’s insistence on the performance of fraudulent conduct,
the lawyer should merely state that professional considerations or an irreconcilable conflict with the
client requires termination of employment.
Termination by Client
„„ The attorney-client relationship is terminable at will by the client, with or without cause, subject to
liability for payment for the lawyer’s services.
„„ If a client discharges appointed counsel, the appointing authority may decide that a successor
appointment is unjustified, leaving the client to represent himself. The client should be warned of this
potential consequence before appointed counsel is discharged.
Withdrawal by Lawyer
TERMINATION OF ATTORNEY-CLIENT RELATIONSHIP
Mandatory Withdrawal
Optional Withdrawal
A lawyer must withdraw from the representation of
a client when:
A lawyer may withdraw from the representation of a
client if:
• the representation will result in violation of the
law or the Rules;
• withdrawal can be accomplished without material
adverse effect on the interests of the client;
• the lawyer’s physical or mental condition
materially impairs his ability to represent the
client; or
• the client persists in a course of action involving
the lawyer’s services that the lawyer reasonably
believes is a criminal or fraudulent course of action;
• the lawyer is discharged.
• the client has used the lawyer’s services to
perpetrate a crime or fraud;
• the client insists upon taking action that the lawyer
considers repugnant or with which the lawyer
fundamentally disagrees;
• the client fails substantially to fulfill an obligation
to the lawyer regarding the lawyer’s services
(e.g., fees) and has been given reasonable
warning that the lawyer will withdraw unless the
obligation is fulfilled;
• the representation will result in an unreasonable
financial burden on the lawyer or has been
rendered unreasonably difficult by the client; or
• other good cause for withdrawal exists.
Sale of Law Practice
„„
A lawyer or a law firm may sell or buy a law practice, or an area of a law practice, including goodwill, as follows:
(1) the seller ceases all private practice of law, or will no longer practice law in the same
geographical and/or substantive area;
(2)
the entire practice, or an entire area of the practice, is sold to one or more lawyer(s) or group(s); and
(3) the seller notifies all clients in a writing that includes the proposed sale, the client’s right to
obtain other counsel or take possession of his file, and notice that the client’s consent to the
transfer of representation will be presumed if the client does not take any action or object within
90 days of receipt of the notice.
„„ The fees charged to the clients cannot increase as a result of the sale.
15
BAR POINTS
DUTIES TO CLIENTS
Duty of Competence
„„ Lawyers must provide clients with competent representation.
DEFINITION
Competent representation requires the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation.
„„ Fundamental skills necessary for competence include the ability to analyze precedent, evaluate
evidence, draft legal documents, and identify legal issues and problems. Even newly admitted
attorneys should have these skills.
„„ In order to be competent, a lawyer must do factual and legal research into a client’s problem.
LEGAL COMPETENCE
Factors used to assess the sufficiency of a lawyer’s knowledge and skill include:
1. the relative complexity and specialized nature of the matter;
2. the lawyer’s general experience;
3. the lawyer’s training and experience in the field in question;
4. the preparation and study the lawyer is able to give the matter; and
5. whether it is feasible to refer the matter to, or associate or consult with,
a lawyer of established competence in the field.
„„ A lawyer can provide adequate representation in a wholly novel field through necessary study.
„„ In an emergency, a lawyer may give advice or assistance to a client in need, even if he lacks the skill or
knowledge ordinarily required, and referral to or consultation with another lawyer is impractical; however,
the lawyer should limit his emergency assistance to that reasonably necessary under the circumstances.
„„ If the lawyer is not competent to handle the representation, he may:
NOTE
(1)
decline or withdraw from the representation;
(2)
take action to make himself competent to handle the representation; or
(3)
associate with competent counsel.
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 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.
Civil Liability for Malpractice
„„ A competent lawyer may nevertheless act incompetently in his representation of a client and be
subject to civil liability for malpractice.
„„ Plaintiffs generally cannot base a cause of action on a lawyer’s violation of an ethical rule.
„„
16
A violation of a Rule does not automatically give rise to a cause of action for malpractice against a lawyer, nor
does it create a presumption that a legal duty has been breached. However, a violation may nonetheless
be some evidence of an attorney’s negligence in a malpractice suit brought under tort law principles.
„„ A lawyer cannot make an agreement prospectively limiting his liability to a client for malpractice
unless the client is independently represented in making the agreement.
„„ A lawyer cannot settle a claim or potential claim for such liability with an unrepresented client or
former client unless that person is advised in writing of the desirability of seeking, and is given a
reasonable opportunity to seek, the advice of independent legal counsel in connection with the matter.
Duty of Diligence (Zealous Representation)
„„ A lawyer must act with reasonable diligence and promptness in representing a client.
„„ A lawyer should act with commitment and dedication to the interests of the client and with zeal in
advocacy upon the client’s behalf.
„„ However, a lawyer is not bound to press for every advantage that might be realized for a client and
will have discretion regarding the means by which a matter should be pursued.
„„ 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 his client.
„„ A lawyer should especially attend to:
(1) controlling his workload;
(2) avoiding unreasonable delay and procrastination;
(3) filing within the statutes of limitations; and
(4) carrying representation through to completion and ensuring clients know when representation
has ended.
Duty of Communication
„„ In communicating with clients, lawyers must:
(1) keep the client promptly informed of any decision or circumstance to which the client must
provide informed consent;
(2) reasonably consult with the client about means by which to accomplish the client’s objectives;
(3) keep the client reasonably informed about the status of the matter;
(4) promptly comply with reasonable requests for information; and
(5) consult with the client about any limitations of the lawyer’s conduct when the lawyer is aware
that the client expects assistance not authorized by the Rules.
„„ A lawyer must explain a matter to the extent reasonably necessary to permit the client to make
informed decisions about the representation.
EXAM TIP
In some circumstances, a lawyer may be justified in delaying transmission of information when the
client would be likely to react imprudently to an immediate communication (e.g., when disclosing a
psychiatric diagnosis of a client would harm the client). However, a lawyer may not withhold information to serve the interest or convenience of the lawyer.
Safekeeping Client Funds and Property
„„ When, in connection with a representation, a lawyer receives funds or other property in which a client
or third person has an interest, the lawyer must:
(1) hold such property separate from the lawyer’s own property;
17
BAR POINTS
(2)
promptly deliver to the client or third party any property the client or third party is entitled to receive;
(3)
keep, maintain, and preserve complete and accurate records for up to five years after the
termination of the representation; and
(4)
promptly render a full accounting of such property when requested by a client or third party.
„„ A lawyer may deposit his own funds in a client trust account, but only up to the amount necessary to
pay bank service charges.
„„ A lawyer must deposit into the client trust account all prepaid legal fees and expenses that have been paid
in advance. The lawyer may withdraw from the client trust account only fees earned or expenses incurred.
„„ If the funds are to be held in trust, then fiduciary management principles apply.
„„ If the trust funds are to be kept for a very short time, the funds may be placed in a non-interestbearing account. If the funds are to be kept for a longer period, then the funds should be placed in an
interest-bearing account with the client receiving the interest.
„„ To avoid difficulties in accounting for small amounts of interest on interest-bearing accounts, states
have established Interest on Lawyer Trust Account (“IOLTA”) plans, whereby the interest on clients’
accounts is paid into a special fund that uses the money for purposes such as the provision of legal
services to low-income recipients.
„„ Upon receiving funds or other property in which a client or third person has an interest, the lawyer
must promptly notify the client or third person.
„„ The lawyer must also safeguard, and account for, client property that is not cash.
(1)
Property must be kept safe.
(2)
Securities should be kept in a safe-deposit box.
„„ When two or more persons (one of whom may be the lawyer) claim interest in the client’s property, the
lawyer must keep it separate until the dispute is resolved. However, the lawyer must promptly distribute all
portions of the property that are not in dispute.
NOTE
A lawyer owes a duty not only to the client, but also to third parties with legitimate interests, such
as a client’s creditor who has a lien on funds recovered in a personal injury action and placed in the
lawyer’s trust account. A lawyer should protect third-party claims against wrongful interference by
the client and not disburse money to the client unless sufficient funds remain to satisfy the lien claim.
Under such circumstances, when the third person’s claim is not frivolous under applicable law, the
lawyer must refuse to surrender the property to the client until the claims are resolved.
Special Cases
The Business Organization as the Client
„„ A lawyer employed or retained by an organization represents the organization as distinct from its
directors, officers, employees, members, shareholders, or other constituents.
„„ In transactions between an organization and its lawyer, the client-lawyer relationship is maintained
through the constituents of the organization.
„„ When the lawyer knows that the organization is likely to be substantially injured by an action of an
officer or other constituent that violates a legal obligation to the organization or is in violation of law
and might be imputed to the organization, the lawyer must proceed as is reasonably necessary in the
best interests of the organization.
„„ Unless the lawyer reasonably believes that it is not necessary in the best interest of the organization
to do so, the lawyer shall refer the matter to higher authority in the organization, including, if
18
warranted by the circumstances to the highest authority that can act on behalf of the organization as
determined by applicable law.
EXAM TIP
In determining how to proceed, the lawyer must give due consideration to the seriousness of the
violation and its consequences, the scope and nature of the lawyer’s representation, the responsibility in the organization, the apparent motivation of the person involved, the policies of the organization
concerning such matters, and any other relevant considerations.
„„ If, despite the attorney’s reporting “up the ladder,” the highest authority that can act on behalf of the
organization insists upon or fails to address in a timely and appropriate manner an action, or a refusal to
act, that is clearly a violation of law, and the lawyer reasonably believes that the violation is reasonably
certain to result in substantial injury to the organization, then the lawyer may reveal information relating
to the representation whether or not Rule 1.6 permits such disclosure, but only if and to the extent the
lawyer reasonably believes necessary to prevent substantial injury to the organization.
„„ A lawyer for an organization may also represent any of its directors, officers, employees, members,
shareholders or other constituents if there is no conflict of interest.
„„ In case of any misunderstanding when dealing with an organization’s directors, officers, employees,
members, shareholders, or other constituents, the lawyer must explain that the organization itself is the client.
„„ The lawyer should take steps necessary to ensure that the individual understands that, when there is
such adversity of interest, the lawyer for the organization cannot provide legal representation for that
constituent individual, and that discussions between the lawyer for the organization and the individual
may not be privileged.
Lawyer as Advisor
„„
In representing a client, a lawyer must exercise independent professional judgment and render candid advice.
„„ A client is entitled to straightforward, honest advice, even if such advice involves unpleasant facts and
alternatives that a client may not want to confront. In rendering advice, a lawyer may refer not only to
law but also to other considerations such as moral, economic, social, and political factors that may be
relevant to the client’s situation.
NOTE
Purely technical legal advice may, at times, be inadequate. Therefore, it is appropriate for a lawyer to
refer to relevant moral and ethical considerations in giving advice. However, if the client expressly or
impliedly asks for purely technical advice, and the client is experienced in legal matters, the lawyer
may accept it at face value.
Lawyer as Evaluator
„„ A lawyer may provide an evaluation of a matter affecting a client for the use of a third person if
the lawyer reasonably believes that making the evaluation is compatible with other aspects of the
lawyer’s relationship with the client.
„„ Assuming there is no incompatibility, the lawyer should advise the client of the implications of the
evaluation, including the lawyer’s duty to third persons.
„„ When the lawyer knows or reasonably should know that the evaluation is likely to affect the client’s
interests materially and adversely, the lawyer may not provide the evaluation unless the client gives
informed consent.
„„ Except as disclosure is required in connection with a report of an evaluation, information relating to
the evaluation is otherwise protected by the duty of confidentiality.
NOTE
Common examples of an evaluation made for a third party include an opinion concerning the title
of property rendered at the behest of a vendor or borrower for the information of a prospective
purchaser or lender, or an opinion concerning the legality of securities registered for sale under the
securities laws.
19
BAR POINTS
CLIENT CONFIDENTIALITY
ETHICAL DUTY OF CONFIDENTIALITY VS. ATTORNEY-CLIENT PRIVILEGE
Duty of Confidentiality
Source
Attorney-Client Privilege
Ethical Duty, Model Rule 1.6
Evidentiary Privilege
Prevents
Lawyer from voluntarily revealing or misusing
information related to the representation of a client
Lawyer from forced disclosure of privileged
information
Communications
Protected
Confidential communications protected by the
attorney-client privilege plus all information relating
to the representation of a client from any source,
including information from parties and information
acquired before the lawyer was retained
Confidential communications between the
client and the lawyer made for the purpose of
obtaining legal advice or services
Everywhere where the attorney-client privilege
does not apply
In a judicial or other proceeding where a lawyer
is called as a witness or otherwise required to
produce evidence concerning a client
Holder of the
Privilege
Affirmative duty on the attorney not to reveal
information relating to the representation of a
client unless the client gives informed consent
or the disclosure is impliedly authorized in order
to carry out the representation
Client can assert or waive directly, and lawyer
can assert or waive as agent of client
Duration
Continues indefinitely even after the lawyer-client
relationship is terminated and survives the death of
the client, unless an exception to the rule applies
Continues indefinitely, unless waived by the
client, even after the lawyer-client relationship
is terminated or after the client’s death
Where
Applicable
Duty of Confidentiality
„„ A lawyer cannot reveal information relating to the representation of a client unless the client gives
informed consent or the disclosure is impliedly authorized in order to carry out the representation.
This obligation includes disclosures that do not in themselves reveal protected information but could
reasonably lead to the discovery of such information by a third person.
NOTE
The duty of confidentiality differs from the attorney-client privilege in that it applies not only to matters communicated in confidence by the client, but also to all information relating to the representation from any source.
This also includes information acquired before the lawyer was retained that relates to the representation.
Exceptions
„„ Despite the general duty of confidentiality, there are certain instances where a lawyer may disclose
information relating to the representation of a client, without the client’s informed consent or implied
authorization. Disclosure is permitted—but not required—in the following situations:
20
(1)
to prevent reasonably certain death or substantial bodily harm;
(2)
when a client used or is using the lawyer’s services in furtherance of a crime or fraud, a lawyer
may disclose information to prevent, mitigate, or rectify substantial injury to the financial
interests or property of another;
(3)
to obtain legal advice about the lawyer’s compliance with the Rules;
(4)
to detect and resolve conflicts of interest that arise from a lawyer’s change of employment or
from changes in the composition of a lawyer’s firm but only if disclosing the information would
not prejudice the client or compromise the attorney-client privilege;
(5) to protect the lawyer’s ability to assert claims and defenses on his own behalf; or
(6) to comply with the law or a court order.
„„ A lawyer must also make reasonable efforts to prevent the inadvertent or unauthorized disclosure
of, or unauthorized access to, information relating to the representation of a client. This provision
requires a lawyer to act competently to safeguard information relating to the representation of a client
against unauthorized access by third parties and against inadvertent or unauthorized disclosure by
the lawyer or other persons who are subject to the lawyer’s supervision.
„„ The inadvertent disclosure of information relating to the representation of a client does not constitute
a violation of this Rule if the lawyer has made reasonable efforts to prevent the access or disclosure.
Former Clients
„„ The duty of confidentiality survives the lawyer-client relationship. Unless the former client consents
after consultation, a lawyer who has formerly represented a client, or whose present or former firm has
formerly represented a client, must not thereafter use or reveal confidential information relating to the
representation of the former client, except as the Rules would permit or require with respect to a client
NOTE
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. Thus, regardless of how the information
became generally known, it is no longer protected by the attorney-client privilege or the duty of confidentiality.
The Attorney-Client Privilege
„„ The attorney-client privilege applies in judicial and other proceedings in which a lawyer may be called as
a witness or is otherwise required to produce evidence concerning a client.
„„ The general rule is that where matters are communicated by a client to his attorney in professional
confidence, the attorney may not at any time afterwards be called upon or permitted to disclose the
communications in testimony.
NOTE
The communication must be intended to be confidential. If the communication was knowingly made in
the presence of third parties, it is not covered by the privilege. On the other hand, if the communication
was not intended to be disclosed to third persons other than those to whom the disclosure is made, or
those reasonably necessary for the transmission of the communication, then it is confidential.
„„ The privilege does not extend to information obtained by a lawyer from witnesses or third
parties unless those witnesses or third parties are representatives of the client. However, such
communications are still protected from pretrial discovery.
„„
EXAM TIP
Consultation of a lawyer in the role of business adviser, friend, or confidant, or for some purpose other than
legal advice, is not within the privilege. Even if the lawyer is consulted in his professional capacity, statements
made to him that are not related to legal advice or legal services are not protected by the privilege.
Preexisting written documents, such as contracts, leases, or intercompany memos, do not become
privileged merely because they are handed over to a lawyer.
„„ The privilege continues indefinitely (unless waived by the client), even after the lawyer-client
relationship is terminated or after the client’s death.
Exceptions
„„ When the purpose of the communication is to plan or perpetrate a future crime or fraudulent act,
the privilege will not arise. However, communications regarding past crimes or frauds made for the
purpose of defending a client are within the privilege.
„„ The executor, administrator, or personal representative possesses the consent and waiver rights
formerly vested in the client.
21
BAR POINTS
„„ The privilege does not apply when the lawyer authenticates a document, because the lawyer is acting
more like a witness than a lawyer, and the client is presumed to have waived any privilege.
„„ When more than one client consults with a lawyer regarding a common legal problem, statements
made among the clients and lawyer are privileged, except where a later dispute arises between the
clients. In that case, the communications are no longer privileged, and the lawyer is permitted to
disclose the communications.
Work-Product Doctrine
„„ The work product doctrine generally protects from discovery any records of statements or interviews,
and other tangible items prepared in anticipation of litigation.
„„ Materials prepared in anticipation of litigation or for trial may be obtained only upon a showing that
the party seeking discovery has substantial need of the materials in the preparation of the case and is
unable to obtain their substantial equivalent without undue hardship.
„„ Even if disclosure of work product is ordered, documents reflecting the lawyer’s mental impressions,
conclusions, opinions, or legal theories are not discoverable without some exceptional circumstance
requiring their production.
CONFLICTS OF INTEREST
Ethical Prerequisites to Forming the Client-Lawyer Relationship
In General
„„ A lawyer may not represent a client if:
(1)
the representation would violate the Rules or other law; or
(2) the lawyer’s physical or mental condition would materially impair the lawyer’s ability to
represent the client.
„„ A lawyer should not accept representation in a matter unless it can be performed competently,
promptly, without improper conflicts of interest, and to completion.
„„ Ordinarily, a lawyer may take inconsistent legal positions in different tribunals at different times on
behalf of different clients.
Conflicts between Client and Lawyer
„„ Business Transactions: A lawyer must not enter into a business transaction with a client or knowingly
acquire an ownership, possessory, security or other pecuniary interest adverse to a client unless:
(1)
the transaction and terms are fair and reasonable to the client;
(2)
the terms are fully disclosed in writing in a manner reasonably understandable by the client;
(3)
the client is advised in writing of the desirability of seeking advice of an independent lawyer;
(4)
the client is given a reasonable opportunity to seek the advice of an independent lawyer; and
(5)
the client gives informed consent in writing of the essential terms of the transaction and the
lawyer’s role in the transaction.
„„ Use of Confidential Information: A lawyer must not use information relating to the representation of
a client to the disadvantage of that client unless the lawyer obtains the client’s informed consent or it
is otherwise permitted or required by the Rules.
22
NOTE
This rule is not about the duty of confidentiality and the revealing of information related to a client’s
representation. It is about whether a lawyer can use confidential information even when using it does
not require that a lawyer also reveal it.
„„ Aggregate Settlements: Before any settlement offer or plea bargain is made or accepted on behalf
of multiple clients, the lawyer must inform each client about all the material terms of the settlement,
including what the other clients will receive or pay if the settlement or plea offer is accepted.
„„ Gifts to Lawyers: A lawyer shall not solicit any substantial gift from a client. This Rule does not prohibit a
lawyer from accepting an unsolicited gift from a client if the transaction meets general standards of fairness.
(1) A lawyer cannot prepare the instrument giving himself or his relative a substantial gift from a
client, including a testamentary gift, unless the lawyer or other recipient is related to the client.
„„ Literary or Media Rights: A lawyer may not obtain or negotiate literary or media rights to a portrayal
or account regarding a pending representation prior to the conclusion of the representation. However,
it is permissible to obtain as a fee a percentage of independent literary material that is the subject of
the representation.
„„ Proprietary Interests: Except for a lien (authorized by law) to secure his fee or a reasonable
contingency fee (in a civil case), a lawyer may not obtain a proprietary interest in the client’s cause of
action or subject matter of litigation.
„„ Sexual Relations: A lawyer may not have sexual relations with a client unless a consensual sexual
relationship existed between them when the client-lawyer relationship commenced.
„„ Opposing Counsel is Lawyer’s Relative: If opposing counsel is a close relative, the lawyer may
not take the case unless each client gives informed consent. However, if the lawyer is disqualified
because of a familial relationship with opposing counsel, another lawyer in the disqualified lawyer’s
firm may still take the case.
Conflicts Involving Current Clients
„„ A lawyer must not represent a client if a concurrent conflict exists between two clients, a client and a
third party, or a client and the lawyer’s own interest.
„„ A concurrent conflict exists if:
(1) the representation of one client will be directly adverse to the representation of another; or
(2) there is a significant risk that the representation of one client will be materially limited by the
lawyer’s responsibilities to another client or the lawyer’s own interest.
„„ If a concurrent conflict is found, a lawyer can still represent the client if:
(1) the lawyer reasonably believes he will be able to provide competent and diligent representation
to each affected client;
(2) the representation is not prohibited by law;
(3) the representation does not involve one client asserting a claim against another client in the
same litigation; and
(4) each client gives informed consent in writing.
NOTE
In some cases, the lawyer’s duty of confidentiality may make it impossible for the lawyer to make the
disclosures necessary for one of the clients to make an informed decision, and so the lawyer may be
unable to obtain a valid consent.
„„ Because of the grave potential for a conflict when a lawyer represents multiple defendants in a
criminal case, a lawyer should ordinarily decline to represent more than one co-defendant.
23
BAR POINTS
„„ Common representation of persons having similar interests is proper if the lawyer reasonably believes
that the risk of adverse effect is minimal, and all persons have given their informed consent to the
multiple representations.
„„ Where a lawyer represents two or more clients, the lawyer may not make an aggregate settlement
of the claims of or against the clients or, in a criminal case, make an aggregated agreement as to
guilty or nolo contendere pleas, unless each client consents in writing after consultation. The lawyer’s
disclosure to the clients must include the existence and nature of all claims or pleas involved, and the
participation of each person in the settlement.
Conflicts between a Present Client and a Prospective Client
DEFINITION
A person who consults with a lawyer about the possibility of forming a client-lawyer relationship with
respect to a matter is a prospective client. Not all persons who communicate information to a lawyer
are entitled to protection under this Rule. A person who communicates information unilaterally to a
lawyer, without any reasonable expectation that the lawyer is willing to discuss the possibility of forming a client-lawyer relationship, is not a prospective client.
„„ Even when no client-lawyer relationship ensues, a lawyer who has learned information from a
prospective client may not use or reveal that information, except as Rule 1.9 would permit with
respect to information of a former client.
„„ A lawyer may not represent a client with interests adverse to those of a prospective client in the same
or a substantially related matter if the lawyer received information from the prospective client that
could be significantly harmful to that person in the matter, except if:
(1)
both the affected client and the prospective client have given written informed consent; or
(2) the lawyer who received the information took reasonable measures to avoid exposure to more
disqualifying information than was reasonably necessary to determine whether to represent
the prospective client, the disqualified lawyer is timely screened from any participation in
the matter and is apportioned no part of the fee, and written notice is promptly given to the
prospective client.
NOTE
In order to avoid acquiring disqualifying information from a prospective client, a lawyer considering
whether to undertake a new matter should limit the initial consultation to only such information as
reasonably appears necessary for that purpose. The lawyer may also condition a consultation with a
prospective client on the person’s informed consent that no information disclosed during the consultation will prohibit the lawyer from representing a different client in the matter.
Conflicts between a Present Client and a Former Client
„„ A lawyer who formerly represented a client shall not represent a current client in the same or a
substantially related matter if the current client’s interests are materially adverse to the interests of the
former client, unless the former client gives written informed consent.
„„ A lawyer shall not knowingly represent a current client in the same or a substantially related matter
in which the lawyer’s previous firm represented a client whose interests are materially adverse to the
current client and about whom the lawyer had acquired information material to the matter protected
by Rule 1.6 and Rule 1.9(c), unless the former client gives informed consent.
„„ A lawyer who has formerly represented a client in a matter, or whose present or former firm has
formerly represented a client in a matter, may not thereafter:
24
(1)
use information relating to the representation to the disadvantage of the former client except as the
Rules permit or require with respect to a client, or when the information has become generally known; or
(2)
reveal information relating to the representation except as the Rules permit or require with
respect to a client.
„„ A lawyer cannot represent a private party against a government agency in a matter in which the
lawyer participated personally and substantially while working for the government, unless the
government agency gives its written consent to the representation.
NOTE
The scope of a matter for purposes of this Rule may depend on the facts of a particular situation or
transaction. The underlying question is whether the lawyer was so involved in the matter that the subsequent representation can be justly regarded as a changing of sides in the matter in question.
Conflicts between Client and Third Party
„„ A lawyer is prohibited from representing a client if the representation might be materially limited
because of the lawyer’s responsibilities to a third person, unless:
(1) the lawyer reasonably believes that he will be able to provide competent and diligent
representation to each affected client;
(2) the representation is not prohibited by law;
(3) 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; and
(4) each affected client gives informed consent, confirmed in writing.
„„ A conflict of interest can occur when a third party pays the lawyer to represent a client. A third party
may pay for a client’s representation only if:
(1) the client gives informed consent;
(2) there is no interference with the lawyer’s independent professional judgment or with the clientlawyer relationship; and
(3) confidentiality is preserved.
„„ In a business context, such a conflict can arise in insurance liability cases, where the company
pays for defense of the client. If a conflict arises between the interest of the company and the
interest of the client because a claim is made for damages over the policy limits or because one
theory for liability is not covered by the policy, the company must advise the insured to obtain
independent counsel.
„„ In the family context, a parent often pays for the representation of a minor child accused of a
crime. The lawyer must independently represent the child and not defer to the parent. Likewise,
unless the client consents, the lawyer cannot reveal to the parents protected information involved
in the representation.
Disqualification from Representation
„„ Disqualification is necessary where there is either an actual conflict of interest regarding the lawyer’s
duty of loyalty to the client or where there is a potential conflict, and the client, after being so
informed, does not accept the arrangement.
„„ As a general rule, when one attorney is disqualified, the whole firm is also disqualified. This is called
imputed disqualification and is based on a presumption that all partners and associates in a firm
know about all cases. The knowledge of one lawyer working on a case is “imputed” to all the others
while that lawyer is at the firm.
EXAM TIP
When a lawyer leaves or joins a firm, the key to analyzing whether a firm is disqualified because of
a conflict of interest is to determine who knows what. Think of knowledge as a contaminant; lawyers
in firms are presumed to have contaminated each other with their knowledge. Thus, when a lawyer
leaves a firm, the question is whether he took all of the contaminant with him, or whether other lawyers are actually contaminated with the departing lawyer’s knowledge.
25
BAR POINTS
Exceptions to Imputed Disqualification
„„ If a lawyer is prohibited from representing a client based on his own personal interest, other lawyers
in the firm will not be precluded from representing the client if the prohibited lawyer’s disqualification
does not present a significant risk of materially limiting the representation of the client by the
remaining lawyers in the firm.
„„ If a lawyer is prohibited from representing a client based on both his duties to a former client and his
association with a prior firm, other lawyers in the firm will not be precluded from representing the client if:
(1)
the disqualified lawyer is timely screened from any participation in the matter;
(2)
the disqualified lawyer is not apportioned any part of the fee;
(3)
written notice is promptly given to any affected former client; and
(4)
certifications of compliance with these Rules and with the screening procedures are provided to
any affected former client upon the former client’s written request and upon termination of the
screen procedures.
„„ When a lawyer has terminated an association with a firm, the firm is not prohibited from representing
a person with interests materially adverse to those of a client represented by the formerly associated
lawyer and not currently represented by the firm if:
NOTE
(1)
the matter is not the same or substantially related to that in which the formerly associated
lawyer represented the client; and
(2)
no lawyer remaining in the firm has information that is both protected by the lawyer’s
confidentiality obligations and material to the matter.
For any of the above mentioned imputed disqualifications, the disqualification can be waived and the
representation rendered ethically permissible if the lawyer obtains, from each affected client, informed
written consent.
Disqualification Issues related to Lawyers Formerly Employed by the Government
„„ A former government lawyer can join a firm that has clients with direct conflicts with the government
agency, and about which the attorney possesses protected information.
„„ A former government lawyer who enters private practice is prohibited from representing a client in
connection with a matter in which the lawyer has personally and substantially participated as a public
officer or employee, unless the government agency gives informed written consent.
„„ Personal involvement does not include general supervisory authority over the matter; for example,
a district attorney who supervises an office of 50 lawyers would be disqualified only with respect to
those cases the district attorney handled personally.
„„ A lawyer who had such personal involvement will be disqualified even if the new representation is not
adverse to the government.
„„ Other lawyers in the former government lawyer’s new firm may handle matters the former government
lawyer participated in while in public service. The only restrictions are that:
NOTE
26
(1)
the former government lawyer must be effectively screened from any participation in the matter;
(2)
the former government lawyer must not be apportioned any part of the fee; and
(3)
written notice must be promptly given to the appropriate government agency to enable it to
ascertain compliance with the provision of this Rule.
If the lawyer is switching from one government agency to another government agency, the new
agency is treated like a client for the purposes of the Rule.
„„ A lawyer currently serving as a government attorney may not participate in a matter in which he was
personally and substantially involved in while in the private sector. Nor can the lawyer negotiate
for private employment with anyone in whose matter he is presently personally and substantially
involved, except that a law clerk to a judge, other adjudicative officer, or arbitrator may negotiate for
private employment, but only after notifying the judge or other adjudicative officer.
„„ A lawyer may not represent anyone in connection with a matter in which the lawyer participated
personally and substantially as a judge or other adjudicative officer, law clerk, or arbitrator, unless all
parties give informed consent, confirmed in writing. However, an arbitrator selected as a partisan of a
party in a multimember arbitration panel is not prohibited from subsequently representing that party.
DUTIES TO TRIBUNAL AND OPPOSING PARTIES
Duties to Tribunal and Court System
Duty to Avoid Frivolous Claims
„„ A lawyer shall not bring or defend a proceeding, or raise or challenge an issue, unless there is a basis
in law or fact for doing so that is not frivolous.
DEFINITION
An action is frivolous if the lawyer is unable to either make a good-faith argument on the merits of
the action taken or support the action taken by a good-faith argument for an extension, modification,
or reversal of existing law.
„„ Even if the lawyer believes that the client will not ultimately prevail, a claim is not frivolous as long as
the lawyer is informed about the facts of his client’s case and the applicable law, and is able to make
good-faith arguments in support of his client’s position.
EXAM TIP
It is never frivolous for the defendant’s lawyer in a criminal case to require the prosecution to meet its
burden of proof on each and every element of the charge.
Duty of Candor to the Court
„„ A lawyer must not knowingly:
(1) make a false statement of material fact or law to a tribunal or fail to correct a false statement of
material fact or law previously made to the tribunal by the lawyer;
(2) fail to disclose to a tribunal controlling legal authority known to the lawyer to be directly adverse
to the client’s position and not disclosed by opposing counsel; or
(3) offer evidence that the lawyer knows to be false.
„„ This Rule terminates at the “conclusion of the proceeding,” meaning at the point in time when a final
judgment has been affirmed on appeal or the time for appellate review has passed.
„„ If a lawyer has offered material evidence and the lawyer comes to know of its falsity, the lawyer must
take reasonable remedial measures, including, if necessary, disclosure to the tribunal.
„„ If a lawyer knows that the client intends to testify falsely or wants the lawyer to introduce false
evidence, the lawyer should seek to persuade the client that the evidence should not be offered. If the
lawyer’s statements are ineffective and the lawyer continues to represent the client, the lawyer must
refuse to offer the false evidence.
„„ If, having offered material evidence in the belief that it was true, the lawyer later learns it is false, the
lawyer should seek to persuade the client that its false character should immediately be disclosed.
(1) If the persuasion is ineffective, the lawyer must take reasonable remedial measures.
27
BAR POINTS
(2)
The advocate should seek to withdraw if that will remedy the situation.
(3)
If withdrawal from the representation is not permitted or will not remedy the effect of the false
evidence, the lawyer must make such disclosure to the tribunal as is reasonably necessary to
remedy the situation, even if doing so requires the lawyer to reveal information that otherwise
would be protected by Rule 1.6.
„„ If a lawyer knows that the lawyer’s client or other person intends to engage, is engaging, or has
engaged in criminal or fraudulent conduct related to an adjudicative proceeding involving the client, the
lawyer must take reasonable remedial measures, including, if necessary, disclosure to the tribunal.
„„ In an ex parte proceeding, a lawyer must inform the tribunal of all material facts that are known to the
lawyer and that will enable the tribunal to make an informed decision, whether or not the facts are adverse.
„„ In a criminal matter, a defendant has a constitutional right to testify on his own behalf.
„„ If a defendant offers false testimony despite the lawyer’s remonstrations, the lawyer may seek the judge’s
permission to withdraw in order to avoid assisting the client in committing a fraud on the court. The lawyer
may reveal only as much confidential information as is necessary to make the withdrawal request.
Duty of Fairness to Opposing Party and Counsel
LAWYER’S ETHICAL DUTIES TO OPPOSITION
A lawyer cannot:
1. unlawfully obstruct another party’s access to evidence
(or counsel or assist another person to do so);
2. unlawfully alter, destroy, or conceal a document
with potential evidentiary value (or counsel or assist
another person to do so);
3. falsify evidence;
4. knowingly disobey an obligation under the rules of
a tribunal except for an open refusal based on an
assertion that no valid obligations exists;
5. in a pretrial procedure, make a frivolous discovery
request or fail to make a reasonably diligent effort to
comply with legally proper discovery request by an
opposing party;
6. during trial, allude to an irrelevant matter or one that is
unsupported by admissible evidence, assert personal
knowledge of facts in issue other than when testifying
as a witness, or state a personal opinion as to the
justness of a cause, the witness’s credibility, a civil
litigant’s liability, or a defendant’s guilt or innocence; or
7. request a person other than a client to refrain from
voluntarily giving relevant information to another party
unless the person is a relative or an employee of other
agent of a client and the lawyer reasonably believes
that the person’s interests will not be adversely affected
by refraining from giving such information.
28
„„ A lawyer may not advise or assist any witness to give false testimony. A lawyer must be aware of
this ethical limit when preparing witnesses for a deposition or trial. A lawyer can help a witness
testify coherently and completely. A lawyer can try to refresh a witness’s memory by referring to the
testimony of other witnesses and by referring to documentary evidence.
„„ However, a lawyer is permitted to pay a witness’s incurred expenses, compensation to a witness for
loss of time for attending or testifying in a case, or a fee for the professional services of an expert,
provided that all payments are reasonable.
Duty to Expedite Litigation
„„ A lawyer must make reasonable efforts to expedite litigation consistent with his client’s interests. A
lawyer must not delay litigation to frustrate an opposing party’s attempt to obtain rightful redress.
„„ The standard for determining the reasonableness of a lawyer’s efforts is whether a competent lawyer,
acting in good faith, would regard the course of action as having some substantial purpose other
than delay. Realizing a financial or other benefit from an otherwise improper delay in litigation is not a
legitimate interest of the client.
Duty to Maintain the Impartiality of the Tribunal
„„ A lawyer shall not seek to influence a judge or other official by means prohibited by law, or
communicate ex parte about an adversary proceeding with the judge or other official before whom the
proceeding is pending, unless authorized to do so by law or court order.
„„ To protect the integrity of the judiciary, a lawyer is specifically prohibited from making a statement
that he knows to be false or with reckless disregard as to its truth or falsity, concerning the
qualifications or integrity of a judge, adjudicative officer, public legal officer, or candidate for
appointment to judicial or legal office.
„„ A lawyer shall not seek to illegally influence a juror or prospective juror, or communicate ex parte about
an adversary proceeding with a juror or prospective juror, except as permitted by law or court order.
„„ Before trial, a lawyer connected with a case, the lawyer’s client, and persons working for the lawyer
are prohibited from communicating with anyone they know to be a member of the venire from which
the jury will be chosen.
„„ Except during official proceedings, lawyers connected with the case, their clients, and employees
may not communicate with the jurors or their families in any way, including socializing or sitting with
jurors at a restaurant.
„„ A lawyer may want to communicate with a juror or prospective juror after the jury has been
discharged. The lawyer may do so unless the communication is prohibited by law or a court order, but
must respect the desire of the juror not to talk with the lawyer. The communication must not constitute
misrepresentation, coercion, duress, or harassment.
„„ A lawyer must not engage in undignified or discourteous conduct intended to disrupt a tribunal.
Duty to Avoid Prejudicing Proceedings with Trial Publicity
„„ A lawyer who is or has been involved in a matter must not make extrajudicial statements that the
lawyer knows or reasonably should know:
(1) will be disseminated by public communication; and
(2)
will have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter.
29
BAR POINTS
MATERIALLY PREJUDICIAL EXTRAJUDICIAL
STATEMENTS
A statement will have a substantial likelihood of
materially prejudicing an adjudicative proceeding when it
refers to a civil matter triable to a jury, a criminal matter,
or any other proceeding that could result in incarceration,
and the statement relates to:
1. the character, credibility, reputation, or criminal record of
a party, suspect, or witness;
2. the identity of a witness;
3. the expected testimony of a party or witness;
4. the possibility of a guilty plea;
5. the existence or contents of any confession, admission,
or statement by a criminal defendant or suspect, or that
person’s refusal or failure to make such a statement;
6. the performance or results of any examination or test,
or failure to submit to such a test;
7. the identity or nature of physical evidence expected to
be presented;
8. an opinion regarding guilt or innocence of a criminal
defendant or suspect that could result in incarceration;
9. information that is likely to be inadmissible, disclosure of
which would create a substantial risk of prejudice; or
10.the fact that a defendant has been charged with a
crime, unless it is also stated that the defendant is
presumed innocent until and unless proven guilty.
„„ Notwithstanding a lawyer’s general duty to avoid certain extrajudicial statements, when responding to
recent adverse publicity a lawyer may make any statement that:
(1)
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; and
(2)
is limited to information necessary to mitigate the recent adverse publicity.
„„ Despite the general prohibition of extrajudicial statements, a lawyer may state:
(1)
the claim, offense, or defense involved;
(2)
information contained in a public record;
(3)
the fact that an investigation is in progress;
(4)
the scheduling or result of a step in litigation;
(5)
a request for assistance in obtaining evidence and necessary information; and
(6)
a warning of danger concerning the behavior of a person involved, if there is reason to believe
there is a likelihood of substantial harm to an individual or to the public.
„„ In a criminal case, in addition to the above, a lawyer may also state:
(1)
30
the identity, residence, occupation, and family status of the accused;
(2) information necessary to help apprehend the accused, if not already in custody;
(3) the fact, time, and place of the arrest;
(4) the identity of investigating and arresting officers or agencies; and
(5) the length of the investigation.
Lawyer as Witness
„„ A lawyer must not serve as an advocate at a trial in which the lawyer is likely to be a necessary witness,
unless the testimony relates to an uncontested issue; the testimony relates to the nature and value of legal
services rendered in the case; or disqualification of the lawyer would create substantial hardship on the client.
(1) If there is likely to be substantial conflict between the testimony of the client and that of the
lawyer or a member of the lawyer’s firm, the representation would be improper.
(2) A lawyer may act as an advocate in a trial in which another lawyer in his firm is likely to
be called as a witness unless the testifying lawyer would also be disqualified from the
representation due to a conflict.
Special Duties of Prosecutors
„„ In addition to the general prohibition against extrajudicial statements that have a substantial likelihood
of prejudicing an adjudicatory proceeding, a prosecutor has special duties. Prosecutors must:
(1)
refrain from prosecuting a charge that the prosecutor knows is not supported by probable cause;
(2) make reasonable efforts to assure that the accused has been advised of his right to, and the
procedure for, obtaining counsel and that he has been given reasonable opportunity to do so;
(3) not seek to obtain a waiver of important pretrial rights from an unrepresented accused;
(4)
make timely disclosure of all exculpatory and mitigating evidence (absent a contrary protective order); and
(5) not subpoena a lawyer in a grand jury or criminal proceeding to present evidence about a
past or present client unless the information sought is not protected from disclosure by any
applicable privilege, the evidence sought is essential to the successful completion of an ongoing
investigation or prosecution, and there is no other feasible alternative to obtain the information.
„„ When a prosecutor knows of new, credible, and material evidence creating a reasonable likelihood that
a convicted defendant is innocent, the prosecutor must promptly disclose that evidence to the authorities
and, if the conviction was obtained in the prosecutor’s jurisdiction, to the defendant. In addition, the
prosecutor must undertake further investigation to determine if the defendant was wrongly convicted.
„„ 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 must seek to remedy the conviction.
Appearances in Nonadjudicative Proceedings
DEFINITION
A nonadjudicative proceeding is one in which the tribunal will not render a binding legal judgment
directly affecting a client’s interest in the manner.
„„ A lawyer representing a client before a legislative or administrative tribunal in a nonadjudicative
proceeding must disclose to the tribunal that his appearance is in a representative capacity.
„„ A lawyer must conform to the same obligations of candor as to both law and fact imposed by the
Rules, the obligation to not unlawfully obstruct access, destroy, conceal, or falsify evidence imposed
by the Rules, the obligation to obey the rules of the tribunal imposed by the Rules and the Rules
designed to secure the impartiality and decorum of the tribunal.
31
BAR POINTS
DUTIES TO NON-CLIENTS
Statements to Third Parties
TRANSACTIONS WITH PERSONS OTHER THAN CLIENTS
Truthfulness
in Statements
to Others
In the course of representing a client, a lawyer shall not
knowingly make a false statement of material fact or law to a
third person or fail to disclose a material fact to a third person
when disclosure is necessary to avoid assisting a criminal or
fraudulent act by a client unless disclosure is prohibited by
client confidentiality.
Communication
with Person
Represented
by Counsel
In representing a client, 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. A lawyer may, as required by
law, serve notice or process on another lawyer’s client.
Dealing with
Unrepresented
Persons
A lawyer shall not state or imply to an unrepresented person that
the lawyer is uninterested in a matter while actually representing
a client. When the lawyer knows or reasonably should know that
the unrepresented person misunderstands the lawyer’s role in
the matter, the lawyer shall make reasonable efforts to correct the
misunderstanding. The lawyer shall not give legal advice to an
unrepresented person, other than the advice to secure counsel.
Respect
for Rights of
Third Persons
In representing a client, a lawyer shall not use means that have
no substantial purpose other than to embarrass, delay, or burden
a third person or knowingly use methods of obtaining evidence
that violate the legal rights of such a person.
A lawyer who receives a document relating to the
representation of the lawyer’s client and knows or reasonably
should know that the document was inadvertently sent shall
promptly notify the sender.
„„ Ordinarily, a lawyer can avoid assisting a client’s crime or fraud by withdrawing from the representation.
„„ Sometimes the lawyer must give notice of withdrawal to third parties and disaffirm an opinion,
document, or affirmation, or even disclose information (as permitted by Rule 1.6) to avoid being
deemed to have assisted the client’s crime or fraud.
„„ Disclosure is not required unless the lawyer is unable to withdraw or the client is using the lawyer’s
work product to assist the client’s illegal or fraudulent act. A lawyer must disclose a material fact,
including one that may be protected by the attorney-client privilege, when the disclosure is necessary
to avoid the lawyer’s assistance in the client’s illegal or fraudulent act.
Duties as a Third-Party Neutral
„„ A lawyer acts as a third-party neutral when he assists two or more non-clients to reach a resolution of
a dispute. Examples include service as an arbitrator or mediator.
„„ The lawyer must inform unrepresented parties that the lawyer is not representing them.
Furthermore, when the lawyer knows or reasonably should know that a party does not understand
the lawyer’s role, the lawyer must explain the difference between the lawyer’s role as a third-party
neutral and a lawyer’s role as one representing a client, including the inapplicability of the attorneyclient evidentiary privilege.
32
PROFESSIONAL AND PUBLIC DUTIES
Voluntary Pro Bono Publico Work
„„ Every lawyer has a professional responsibility to provide legal services to those unable to pay.
„„ A lawyer should aspire to render at least 50 hours of pro bono publico legal services per year. This is
not mandatory, but strongly recommended.
„„ A substantial portion of the 50 hours of pro bono publico legal services should be provided without fee
or expectation of fee to:
(1)
persons of limited means; or
(2)
charitable, religious, civic, community, governmental, and educational organizations in matters
that are designed primarily to address the needs of persons of limited means.
Accepting Appointments by the Court
„„ Where a lawyer is appointed to represent a client, he should accept the appointment except for good
cause, such as, if:
(1) representing the client is likely to result in a violation of the Rules or other law;
(2) representing the client is likely to result in an unreasonable financial burden on the lawyer; or
(3) the client or the cause is so repugnant to the lawyer as to be likely to impair the client-lawyer
relationship or the lawyer’s ability to represent the client.
„„ An appointed lawyer has the same obligations to the client as retained counsel, including the
obligations of loyalty and confidentiality, and is subject to the same limitations on the client-lawyer
relationship, such as the obligation to refrain from assisting the client in violation of the Rules.
Service as Director, Officer, or Member of an Organization
Law-Reform Organization
„„ A lawyer may serve as a director, officer, or member of a law-reform organization, even if the reform
may affect the interests of a client of the lawyer. However, when the lawyer knows that a client’s
interests will be materially benefited by a decision in which the lawyer participates, the lawyer must
disclose that fact, but not the client’s identity.
Short-Term Services
„„ A lawyer may provide short-term limited legal services for a client through a nonprofit organization or
court (e.g., a legal-advice hotline or an advice-only legal aid clinic for indigents) where neither lawyer
nor client expects continuing representation.
„„ The lawyer may not be able to systematically screen for conflicts of interest in these situations. Thus,
the lawyer is subject to the conflict of interest rules only if the lawyer knows that the representation
involves a conflict of interest.
Legal Services Organization
„„ A lawyer may serve as a director, officer, or member of a legal services organization, even if the
organization serves persons having interests adverse to a client of the lawyer.
„„ The lawyer should not knowingly participate in a decision or action of the organization if:
(1) participating in the decision would be incompatible with the lawyer’s obligation to the client; or
33
BAR POINTS
(2)
the decision or action could have a material adverse effect on the representation of a client of
the organization whose interests are adverse to a client of the lawyer.
Commenting on Judges and Judicial Candidates
„„ A lawyer must 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, adjudicatory officer or public
legal officer, or of a candidate for election or appointment to judicial office.
Political Contributions
„„ A lawyer must not accept engagement for legal work offered by a government agency or an
appointment by a judge if they or their firm make or solicit political contributions for the purpose of
obtaining or being considered for such an engagement or appointment.
JUDGES
Canon 1: Integrity and Independence of the Judiciary
„„ At all times, a judge must comply with:
(1)
the rules of law; and
(2)
the Code of Judicial Conduct.
„„ A judge must uphold and promote the independence, integrity, and impartiality of the judiciary, and
avoid impropriety, including the appearance of impropriety.
(1)
The test for appearance of impropriety is whether the conduct would create in reasonable minds
a perception that the judge violated this Code, or engaged in other conduct that reflects
adversely on the judge’s honesty, impartiality, temperament, or fitness to serve as a judge.
„„ A judge should not:
(1)
allow his family, social, political, financial, or other interests or relationships to influence his
judicial conduct or judgment;
(2)
abuse the prestige of his office to advance the personal or economic interests of the judge or
others, or allow others to do so;
(3)
convey or permit others to convey the impression that they are in a special position to influence the judge;
(4)
testify voluntarily as a character witness; and
(5)
be a member of any organization that practices invidious discrimination on the basis of race,
sex, gender, religion, national origin, ethnicity, or sexual orientation.
„„ A judge may serve as a personal reference or provide a letter of recommendation based on personal
knowledge. The judge may use official letterhead if the judge indicates that the reference is personal
and if there is no likelihood that the use of the letterhead would reasonably be perceived as an
attempt to exert pressure by reason of the judicial office.
NOTE
A judge’s membership in a religious organization is a lawful exercise of the freedom of religion, and is
not a violation of this Rule.
Canon 2: Impartiality, Competence, and Diligence
„„ A judge must perform the duties of judicial office impartially, competently, and diligently. A judge’s
judicial duties take precedence over all of the judge’s other activities.
34
„„ A judge should hear and decide matters assigned to him except those in which he is disqualified.
„„ A judge should require lawyers in proceedings before him to refrain from manifesting, by words or
conduct, bias or prejudice, or engaging in harassment, based upon race, sex, religion, national origin,
ethnicity, disability, age, sexual orientation, marital status, socioeconomic status, or political affiliation,
against parties, witnesses, lawyers, or others.
„„ A judge should not initiate, permit, or consider ex parte communications concerning a pending or
impending proceeding, unless authorized by law to do so. A judge must make reasonable efforts,
including the provision of appropriate supervision, to ensure that the general prohibition against ex
parte communications is not violated through law clerks and other court personnel.
DEFINITION
Ex parte communication means a communication, concerning a pending or impending matter, between the judge and a representative for one side of a matter when opposing counsel or an unrepresented party is not present.
(1) Ex parte communications that relate to scheduling, administrative purposes, or emergencies,
and not to substantive matters or issues, are authorized, if the judge reasonably believes that
no party will gain a procedural or tactical advantage as a result and the judge takes steps to
promptly notify all of the other parties of the substance of the ex parte communication, and to
give the parties a chance to respond.
(2) A judge may consult with court personnel whose function is to aid the judge in carrying out the
judge’s adjudicative responsibilities, or with other judges, provided that the judge makes all
reasonable efforts to avoid receiving from court personnel or other judges factual information
that is not part of the case record.
(3)
A judge may obtain the advice of a disinterested expert on the law applicable to a proceeding before the
judge if the judge gives notice to the parties of the person consulted and the subject matter of the advice
solicited, and affords the parties a reasonable opportunity to object or respond to the advice received.
„„ A judge may not investigate facts in a matter independently, and may consider only the evidence
presented and any facts that may properly be judicially noticed.
„„ A judge should not make any public statement that might reasonably be expected to affect the outcome or
impair the fairness of a matter pending or impending in any court, or make any nonpublic statement that might
substantially interfere with a fair trial or hearing. A judge should require similar abstention on the part of his staff.
(1) This rule does not apply to any oral or written statement made by a judge in the course of his
adjudicative duties.
(2) A judge is permitted to make public statements in the course of official duties and may explain
court procedures.
(3) A judge is permitted to respond directly or through a third party to allegations in the media or
elsewhere concerning the judge’s conduct in a matter.
(4) A judge should not knowingly disclose or use, for any purpose unrelated to judicial duties,
information acquired in a judicial capacity that is not available to the public.
(5) In the course of performing judicial duties, a judge may acquire information of commercial or
other value that is unavailable to the public. The judge must not reveal or use such information
for personal gain or for any purpose unrelated to his or her judicial duties.
„„ A judge must perform judicial and administrative duties competently and diligently.
(1) A judge must cooperate with other judges and court officials in the administration of
court business.
(2) In making administrative appointments, a judge should exercise the power of appointment
impartially and on the basis of merit and should avoid nepotism, favoritism, and
unnecessary appointments.
35
BAR POINTS
„„ A judge having knowledge that another judge or lawyer has committed a violation of this Code or
the Rules that raises a substantial question regarding their honesty, trustworthiness, or fitness as a
judge or lawyer in other respects must inform the appropriate authority.
(1)
A judge who does not have actual knowledge, but who receives information indicating a
substantial likelihood that another judge or a lawyer has committed misconduct, must take
appropriate action. Appropriate action may include, but is not limited to, communicating directly
with the judge or lawyer involved, communicating with a supervising judge, or reporting the
suspected violation to the appropriate disciplinary authority.
Disqualification
„„ A judge may recuse himself from a proceeding on his own initiative.
MANDATORY DISQUALIFICATION
A judge must disqualify himself in a proceeding in which his impartiality may reasonably be questioned,
including where the judge:
1. has a personal bias or prejudice concerning a party or a party’s lawyer;
2. has personal knowledge of the disputed facts in controversy;
3. knows that the judge, the judge’s spouse or domestic partner, or a person within the third degree of
relationship to either of them, or the spouse or domestic partner of such a person is a party to the
proceeding, or an officer, director, general partner, managing member, or trustee of a party; is acting as
a lawyer in the proceeding; has more than a de minimis interest that could be substantially affected by
the proceeding; or is likely to be a material witness in the proceeding;
4. knows that he, individually or as a fiduciary, or the judge’s spouse, domestic partner, parent, or child, or
any other member of the judge’s family residing in the judge’s household, has an economic interest in
the subject matter in controversy or in a party to the proceeding;
5. knows or learns by means of a timely motion that a party, a party’s lawyer, or the law firm of the party’s lawyer
has made contributions to the judge’s campaign in an amount that is not reasonable or appropriate;
6. while a judge or a judicial candidate, has made a public statement, other than in a court proceeding,
judicial decision, or opinion, that commits or appears to commit the judge to reach a particular result or
rule in a particular way in the proceeding or controversy; or
7. the judge meets any of the following criteria: the judge served as a lawyer in the matter in controversy or was
associated with a lawyer who participated substantially as a lawyer in the matter during such association;
the judge served in governmental employment, and in such capacity participated personally and
substantially as a lawyer or public official concerning the particular matter, or has publicly expressed in such
capacity an opinion concerning the merits of the particular matter in controversy; the judge was a material
witness concerning the matter; or the judge previously presided as a judge over the matter in another court.
„„ A judge must keep himself informed about his personal and fiduciary economic interests, and should
make a reasonable effort to inform himself about the personal economic interests of his spouse or
domestic partner and minor children residing in his household. An economic interest is ownership of
a more than a de minimis legal or equitable interest.
„„ Instead of withdrawing, a judge who might be disqualified for a reason other than bias or prejudice
may disclose on the record the basis of the potential disqualification. The lawyers have the
independent discretion to agree to waive disqualification of the judge. If all the parties and their
lawyers agree, the judge may participate in the proceeding. The agreement must be incorporated into
the record of the proceeding.
„„ The parties cannot agree to waive a judge’s disqualification based on personal bias or prejudice
concerning a party.
36
„„ If a judge believes a lawyer or another judge is performance-impaired by drugs or alcohol or a mental,
emotional, or physical condition, he must take appropriate action, including a confidential referral to
a lawyer or judicial assistance program. In some situations, the judge may be required to take other
action, such as reporting the impaired person to the appropriate authority.
Canon 3: Extrajudicial Activities
„„ A judge must conduct the judge’s personal and extrajudicial activities so as to minimize the risk of
conflict with the obligations of judicial office. A judge must not participate in conduct or activities that:
(1) cast reasonable doubt on the judge’s capacity to act impartially as a judge;
(2) interfere with the proper performance of judicial duties;
(3) lead to frequent disqualification of the judge;
(4) appear to a reasonable person to undermine the judge’s independence, integrity, or
impartiality; and
(5) would appear to a reasonable person to be coercive.
„„ A judge may hold and manage investments of the judge and members of the judge’s family.
„„ A judge may not engage in otherwise permitted financial activities if they will do any of the following:
(1) interfere with the proper performance of judicial duties;
(2) lead to frequent disqualification of the judge;
(3) involve the judge in frequent transactions or continuing business relationships with lawyers or
other persons likely to come before the court on which the judge serves; or
(4) result in violation of other provisions of this Code.
„„ A judge may not accept any gifts, loans, bequests, benefits, or other things of value, if acceptance
would appear to a reasonable person to undermine the judge’s independence, integrity, or impartiality.
„„ A judge may accept reimbursement of necessary and reasonable expenses for travel, food, lodging,
or other incidental expenses, or a waiver or partial waiver of fees or charges for registration, tuition,
and similar items, from sources other than the judge’s employing entity, if the expenses or charges
are associated with the judge’s participation in extrajudicial activities permitted by this Code.
„„ A judge must publicly report the amount or value of:
(1) compensation received for extrajudicial activities;
(2) gifts and other things of value; and
(3) reimbursement of expenses and waiver of fees or charges.
„„ A judge should not act as an arbitrator or mediator or perform other judicial functions apart from the
judge’s official duties unless expressly authorized by law.
„„ A judge should not practice law. Notwithstanding this prohibition, a judge may act pro se.
„„ A judge may receive reasonable compensation for extrajudicial activities permitted by law unless such
acceptance would appear to a reasonable person to undermine the judge’s independence, integrity,
or impartiality. A judge is permitted to accept honoraria, stipends, fees, wages, salaries, royalties, or
other compensation for speaking, teaching, writing, and other extrajudicial activities, provided that the
compensation is reasonable and commensurate with the task performed.
„„ Compensation derived from extrajudicial activities is subject to public reporting.
37
BAR POINTS
Canon 4: Political and Campaign Activities
„„ A judge or candidate for judicial office may not engage in political or campaign activity that is
inconsistent with the independence, integrity, or impartiality of the judiciary.
„„ In general, judges and judicial candidates must not:
(1)
act as leaders in or officers of a political organization;
(2)
make speeches on behalf of a political organization;
(3)
personally solicit funds for a political organization;
(4)
personally solicit contributions from a political organization;
(5)
publicly endorse or oppose candidates for office;
(6)
make false statements knowingly or with reckless disregard for the truth; and
(7)
make statements, pledges, or commitments that are inconsistent with the independence,
integrity, and impartiality of the judiciary.
„„ A candidate for an elective judicial office may engage in any of the following campaign-related activities:
(1)
establish a campaign committee pursuant to the provisions of Rule 4.4;
(2)
speak on behalf of his candidacy through advertisements, websites, or other literature;
(3)
publicly endorse or oppose candidates for the same judicial office for which he is running;
(4)
attend or purchase tickets for dinners or other events sponsored by a political organization or a
candidate for public office;
(5)
seek, accept, or use endorsements from any person or organization other than a partisan
political organization; and
(6)
contribute a limited amount of financial support to a political organization or candidate for public office.
„„ A judicial candidate in a partisan public election may identify himself as a candidate of a political
organization and seek, accept, and use endorsements of a political organization.
„„ A candidate for appointment to a judicial office may:
(1)
communicate with the appointing or confirming authority, including any selection, screening, or
nominating commission or similar agency; and
(2)
seek endorsements for the appointment from any person or organization other than a partisan
political organization.
„„ A judicial candidate may not personally solicit campaign contributions, except as expressly authorized,
and may not personally accept campaign contributions.
(1)
A judicial candidate may establish a campaign committee to manage and conduct a campaign for
the candidate, subject to the provisions of this Code. The judicial candidate is responsible for ensuring
that his campaign committee complies with applicable provisions of this Code and other applicable law.
„„ A judge must resign from the judicial position held when he becomes a candidate either in a primary
or general election for a nonjudicial elective office. A judge is not required to resign from a judicial
position upon becoming a candidate for a nonjudicial appointive office.
38
Outline
INTRODUCTION
A. About the MPRE
1. The Multistate Professional Responsibility Examination (MPRE) is a two-hour, 60
multiple-choice questions examination required in all but three states, as well as in
several U.S. territories. There are 50 scored questions and 10 non-scored, pretest
questions. However, the non-scored questions are indistinguishable from the scored
questions, so all 60 questions should be treated with equal regard. The MPRE is
developed and administered by the National Conference of Bar Examiners (NCBE).
One need not know rule numbers for the test, just the principles of law.
2. The purpose of the MPRE is to measure the examinee’s knowledge and understanding of established standards related to a lawyer’s conduct including the
disciplinary rules of professional conduct as articulated in the American Bar
Association (ABA) Model Rules (MRs) of Professional Conduct and the ABA
Model Code of Judicial Conduct (CJC). The MPRE is not a test of an individual’s personal ethical values.
3. Outside of the disciplinary context, generally accepted majority rules, principles,
and common law regulating lawyers apply. For questions that raise procedural or
evidentiary issues, such as the availability of litigation sanctions or the scope of
the attorney-client evidentiary privilege, the Federal Rules of Civil Procedure and
of Evidence apply unless otherwise stated in a question.
B. The Applicable Law
1. The law governing the conduct of lawyers is based on the rules of professional
conduct currently set forth in the American Bar Association’s Model Rules of
Professional Conduct (“the Rules”), as adopted in 1983 and subsequently
amended, including a comprehensive revision in 2002.
a. The MPRE is not a test of an individual’s personal ethical values or of the
law of an individual’s home jurisdiction. Rather, the MPRE tests knowledge
of what the current ABA rules say is acceptable behavior.
b. The purpose of the Model Rules is both to regulate the profession and to
provide ethical norms. The Model Rules, in conjunction with substantive
and procedural law, prescribe many of a lawyer’s professional responsibilities. A lawyer is also guided by “personal conscience and the approbation
of professional peers” (Preamble, Model Rules of Professional Conduct), in
performing each of the lawyer’s three basic roles and in resolving conflicts
that may arise between two or more of these roles:
(1) As a representative of clients, the lawyer is an advisor, advocate,
negotiator, and evaluator.
(2) As an officer of the legal system, the lawyer must conduct all professional and personal activities in conformity to law, use law only for legitimate purposes, demonstrate respect for the system, and uphold legal
process, challenging the rectitude of official action only when necessary.
40
Sources: The National Conference of Bar Examiners, 2013 Multistate Professional Responsibility Examination
Information Booklet (www.ncbex.org); Model Rules of Prof’l Conduct Preamble and Scope (2012)
(3)
2.
3.
4.
As a public citizen having special responsibility for the quality of
justice, the lawyer should seek improvement of the law and equal
access to the legal system, cultivate knowledge, and devote
professional time, resources and civic influence on behalf of
persons who cannot afford adequate legal counsel. In addition, the
lawyer may serve as a “third-party neutral,” which is a non-representational role in helping parties resolve a dispute or other matter.
c. Only those rules which contain mandatory language or imperatives such
as “shall” or “must” require attorney discipline; rules with permissive
language such as “may” do not require attorney discipline when broken,
but merely serve to help guide the lawyer in making choices and taking
action in areas where the lawyer is expected to exercise discretion and
professional judgment. The “Comments” construing the Rules may use
the word “should,” but do not add obligations to the Rules; they only
explain and illustrate the meaning and purpose of the Rules.
d. In practice, violation of any obligation or prohibition imposed by a
Rule warrants invoking the disciplinary process, but does not necessarily warrant discipline. Assessment is made on the basis of facts
and circumstances as they existed at the time of the conduct and in
recognition of the fact that a lawyer often has to act upon uncertain
or incomplete evidence. Circumstances such as willfulness, seriousness, extenuating circumstances, and prior violations may determine whether or not to discipline the lawyer and the severity of any
discipline imposed.
e. The Model Rules and generally accepted principles regulating the legal
profession in the United States govern for purposes of the MPRE, unless
a specific test question includes the text of a local statute or rule that must
be considered when answering that question.
The applicable law also includes constitutional decisions in areas such as
lawyer advertising, and generally accepted principles established in leading
federal and state cases and in procedural and evidentiary rules.
The Federal Rules of Civil Procedure and the Federal Rules of Evidence will
be assumed to apply unless otherwise stated when questions of professional
responsibility arise in the context of procedural or evidentiary issues.
The MPRE also tests the rules governing judicial conduct. The Model Code of
Judicial Conduct (1990, as amended) is the sole official authority for questions
dealing with judicial conduct. Generally, only two or five of the 60 MPRE questions test judicial conduct. The remaining questions test professional responsibility as discussed above.
a. The CJC applies to full-time judges, including officers such as a justice
of the peace, magistrate, court commissioner, special master, referee, or
administrative law judge. Part-time and retired judges must comply with
some of the limitations on outside and political activities.
Sources: The National Conference of Bar Examiners, 2013 Multistate Professional Responsibility Examination
Information Booklet (www.ncbex.org); Model Rules of Prof’l Conduct Preamble and Scope (2012)
41
OUTLINE
I.Regulation
of Lawyers
A. Becoming a Lawyer
Rule 8.1: Bar Admission and
Disciplinary Matters
ABA Model Rule for Admission by Motion
II. Getting Clients
III. Client-Lawyer Basics
B. Losing the Right
to Be a Lawyer
Rule 8.4: Misconduct
Rule 8.5: Disciplinary Authority; Choice of Law
IV. Duties to Clients
V. Client Confidentiality
VI. Conflicts of Interest
C. Restricting the Right
to Practice Law
VII.Duties to Tribunal
and Opposing Parties
VIII.Duties to Non-Clients
Rule 5.6: Restrictions on Rights to Practice
Rule 5.1: Responsibilities of a Partner
or Supervisory Lawyer
D. Forms of Practice
Rule 5.3: Responsibilities Regarding
Nonlawyer Assistance
Rule 5.2: Responsibilities of a Subordinate Lawyer
Rule 5.7: Responsibilities Regarding
Law-Related Services
IX. Professional and
Public Duties
Rule 5.5: Unauthorized Practice of Law;
Multijurisdictional Practice of Law
X. Judges
E. Duties to the Profession
Rule 5.4: Professional Independence of a Lawyer
Rule 8.3: Reporting Professional Misconduct
42
I. REGULATION OF LAWYERS
A. Becoming a Lawyer
1. Applicants for admission to the bar, and lawyers in connection with a bar
admission application or a disciplinary matter, must not knowingly make a
false statement of material fact, fail to disclose a fact necessary to correct a
misapprehension, or knowingly fail to respond to a lawful demand for nonconfidential information [MR 8.1].
a. This rule applies to non-lawyer applicants as well as lawyers [MR 8.1, cmt. [1]].
2. Subject to the Fifth Amendment, states may require more disclosure from
applicants for a law license than employers may require in a job application.
a. Bar applications often contain questions not permitted by constitutional
or employment law in job applications, such as those asking about
treatment for chemical dependency and mental illness, records of
arrests not leading to convictions, and whether the applicant has been
a party to any lawsuit.
b. Applicants sign the bar application under penalty of perjury.
3. A lawyer who writes a letter of recommendation for a bar candidate or who
is asked by bar authorities for information about a bar candidate is subject
to the same Rule [MR 8.1, cmt. [3]].
a. However, a lawyer who knows of derogatory information about a bar
candidate cannot disclose that information if it is confidential information protected under Rule 1.6, which prevents a lawyer from revealing
information relating to the representation of a client unless the client
gives informed consent, the disclosure is impliedly authorized in order
to carry out the representation, or the lawyer reasonably believes it is
necessary [MR 1.6(b)]:
(1) to prevent reasonably certain death or substantial bodily harm;
(2) 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, and in furtherance of which the
client has used or is using the lawyer’s services;
(3) to prevent, mitigate, or rectify substantial injury to the financial
interests or property of another that is reasonably certain to result
or has resulted from the client’s commission of a crime or fraud in
furtherance of which the client has used the lawyer’s services;
(4) to secure legal advice about the lawyer’s compliance with these Rules;
(5) to establish a claim or defense on behalf of the lawyer in a
controversy between the lawyer and the client, to establish a
defense to a criminal charge or civil claim against the lawyer
based upon conduct in which the client was involved, or to
respond to allegations in any proceeding concerning the lawyer’s
representation of the client; or
(6) to comply with other law or a court order.
43
OUTLINE
I.Regulation
of Lawyers
A. Becoming a Lawyer
Rule 8.1: Bar Admission and
Disciplinary Matters
ABA Model Rule for Admission by Motion
II. Getting Clients
III. Client-Lawyer Basics
B. Losing the Right
to Be a Lawyer
Rule 8.4: Misconduct
Rule 8.5: Disciplinary Authority; Choice of Law
IV. Duties to Clients
V. Client Confidentiality
VI. Conflicts of Interest
C. Restricting the Right
to Practice Law
VII.Duties to Tribunal
and Opposing Parties
VIII.Duties to Non-Clients
Rule 5.6: Restrictions on Rights to Practice
Rule 5.1: Responsibilities of a Partner
or Supervisory Lawyer
D. Forms of Practice
Rule 5.3: Responsibilities Regarding
Nonlawyer Assistance
Rule 5.2: Responsibilities of a Subordinate Lawyer
Rule 5.7: Responsibilities Regarding
Law-Related Services
IX. Professional and
Public Duties
Rule 5.5: Unauthorized Practice of Law;
Multijurisdictional Practice of Law
X. Judges
E. Duties to the Profession
Rule 5.4: Professional Independence of a Lawyer
Rule 8.3: Reporting Professional Misconduct
44
4. The duty of candor also applies to reinstatement petitions, which are treated
like admission proceedings.
5. Violating Rule 8.1 when making an application can result in disciplinary
action after the bar candidate is admitted to the bar, including a suspension
or revocation of the license to practice law, as well as the denial or voidance of admission [MR 8.1, cmt. [1]].
EXAMPLE: Violations may include submission of a false transcript with the
bar application, or failure to disclose prior or pending disciplinary actions in
connection with any type of professional license.
6. Rule 8.1 further requires correction of any prior misstatement that the bar
candidate may have made, and affirmative clarification of any prior misunderstanding on the part of the admissions or disciplinary authority of which
the bar candidate becomes aware [Id.].
7. A candidate for admission may claim the privilege against self-incrimination
as a ground for lawfully refusing to disclose confidential information to the
extent protected by Rule 1.6.
a. The candidate for admission must claim the privilege openly, and may
not use the right of nondisclosure defensively as the reason for not
complying with this Rule.
b. It is generally held that the right to invoke the privilege applies only
when the attorney is threatened with criminal prosecution; the mere
possibility of discipline by the state bar is not sufficient justification.
EXAMPLE: Susan is applying to become a member of the bar. The application asks, “Have you ever been convicted of a misdemeanor?” Susan
was convicted of a misdemeanor as a minor, and her record has since been
expunged. Nevertheless, Susan may not answer “No” to this question.
8. As of August 2012, the ABA has approved the ABA Model Rule for
Admission by Motion, which the ABA urges jurisdictions to adopt. The
Model Rule provides that an applicant, upon motion, may be admitted to
the practice of law in this jurisdiction if the applicant meets the following
requirements [ABA Model Rule for Admission by Motion]:
a. have been admitted to practice law in another state, territory, or the
District of Columbia;
b. hold a J.D. or LL.B. degree from an approved law school;
c. have been primarily engaged in the active practice of law in one or ore
states, territories or the District of Columbia for three of the five years
immediately preceding the date upon which the application is filed;
d. establish that the applicant is currently a member in good standing in
admitted jurisdictions;
e. establish that the applicant is not currently subject to discipline in
any jurisdiction;
f. establish that the applicant possesses the character and fitness to
practice law in this jurisdiction; and
g. designate the Clerk of the jurisdiction’s highest court for service of process.
45
OUTLINE
I.Regulation
of Lawyers
A. Becoming a Lawyer
Rule 8.1: Bar Admission and
Disciplinary Matters
ABA Model Rule for Admission by Motion
II. Getting Clients
III. Client-Lawyer Basics
B. Losing the Right
to Be a Lawyer
Rule 8.4: Misconduct
Rule 8.5: Disciplinary Authority; Choice of Law
IV. Duties to Clients
V. Client Confidentiality
VI. Conflicts of Interest
C. Restricting the Right
to Practice Law
VII.Duties to Tribunal
and Opposing Parties
VIII.Duties to Non-Clients
Rule 5.6: Restrictions on Rights to Practice
Rule 5.1: Responsibilities of a Partner
or Supervisory Lawyer
D. Forms of Practice
Rule 5.3: Responsibilities Regarding
Nonlawyer Assistance
Rule 5.2: Responsibilities of a Subordinate Lawyer
Rule 5.7: Responsibilities Regarding
Law-Related Services
IX. Professional and
Public Duties
Rule 5.5: Unauthorized Practice of Law;
Multijurisdictional Practice of Law
X. Judges
E. Duties to the Profession
Rule 5.4: Professional Independence of a Lawyer
Rule 8.3: Reporting Professional Misconduct
46
B. Losing the Right to Be a Lawyer
1. Rule 8.4 is a catchall provision permitting discipline for serious misconduct
not specified elsewhere in the Rules.
a. Rule 8.4 occasionally fills in a gap when no other Rule is applicable.
EXAMPLE: Lawyers holding public office and those holding positions
of private trust, such as executor, administrator, guardian, or trustee,
assume legal responsibilities beyond those of other citizens, such that
abuse of public office or fiduciary responsibilities may suggest an inability to fulfill the professional role of a lawyer [MR 8.4, cmt. [5]].
2. Under Rule 8.4, it is professional misconduct for a lawyer to:
a. violate or attempt to violate the Rules, knowingly assist or induce
another to do so, or do so through the acts of another [MR 8.4(a)];
(1) Any violation of the Rules, or any attempt to do so, is a violation
of Rule 8.4(a), so a charge under Rule 8.4(a) should accompany
almost any other charge in a disciplinary complaint.
EXAMPLE: Violations involving dishonesty, for example, often
are violations of other rules as well, such as Rule 3.3 (which
prohibits a lawyer from making a false statement of law or fact to
a tribunal), Rule 3.4 (which prohibits a lawyer from falsifying or
concealing evidence), or Rule 4.1 (which prohibits a lawyer from
making false statements of law or fact to a third party).
(2) A lawyer does not violate Rule 8.4, however, if that lawyer refuses
to comply with a legal obligation, including one of the Rules, in the
good-faith belief that no valid obligation exists, even if the lawyer is
proven wrong in a challenge to the law or Rule [MR 8.4, cmt. [4]].
(3) Similarly, Rule 8.4(a) does not prohibit a lawyer from advising a
client concerning action the client is legally entitled to take; that is
to say, the client does not thereby become the lawyer’s agent in a
violation of the Rules [MR 8.4, cmt. [1]].
b. commit a criminal act that reflects adversely on the lawyer’s honesty,
trustworthiness, or fitness as a lawyer [MR 8.4(b)];
(1) Criminal acts or dishonest conduct need not be related to the
practice of law to constitute a violation of Rule 8.4.
c. engage in conduct involving dishonesty, fraud, deceit, or misrepresentation [MR 8.4(c)];
(1) Fraud means conduct that is fraudulent under the substantive or
procedural law of the applicable jurisdiction and has a purpose to
deceive [MR 1.0(d)].
(2) This does not include merely negligent misrepresentation or
negligent failure to apprise another of relevant information
[MR 1.0(d); cmt. [5]].
(3) It is not necessary for anyone to have suffered damages or relied
on the misrepresentation or failure to inform [Id.].
47
OUTLINE
I.Regulation
of Lawyers
A. Becoming a Lawyer
Rule 8.1: Bar Admission and
Disciplinary Matters
ABA Model Rule for Admission by Motion
II. Getting Clients
III. Client-Lawyer Basics
B. Losing the Right
to Be a Lawyer
Rule 8.4: Misconduct
Rule 8.5: Disciplinary Authority; Choice of Law
IV. Duties to Clients
V. Client Confidentiality
VI. Conflicts of Interest
C. Restricting the Right
to Practice Law
VII.Duties to Tribunal
and Opposing Parties
VIII.Duties to Non-Clients
Rule 5.6: Restrictions on Rights to Practice
Rule 5.1: Responsibilities of a Partner
or Supervisory Lawyer
D. Forms of Practice
Rule 5.3: Responsibilities Regarding
Nonlawyer Assistance
Rule 5.2: Responsibilities of a Subordinate Lawyer
Rule 5.7: Responsibilities Regarding
Law-Related Services
IX. Professional and
Public Duties
Rule 5.5: Unauthorized Practice of Law;
Multijurisdictional Practice of Law
X. Judges
E. Duties to the Profession
Rule 5.4: Professional Independence of a Lawyer
Rule 8.3: Reporting Professional Misconduct
48
EXAMPLE: Lawyers who attempt to defraud their own partners or
law firms by submitting false disbursement requests or by requesting clients to pay their fees to the lawyer directly instead of to the
firm may be suspended or disbarred for violations of Rule 8.4.
EXAMPLE: Illegal conduct which reflects adversely on a lawyer’s
fitness to practice law constitutes a violation of this Rule, such as
a lawyer’s willful filing of a false personal income tax return, or his
willful failure to file an income tax return [MR 8.4, cmt. [2]].
EXAMPLE: If a lawyer is also a real estate broker and lies in a
material way about the condition of a house that she is selling,
she has violated Rule 8.4(c).
d. engage in conduct that is prejudicial to the administration of justice
[MR 8.4(d)];
EXAMPLE: Sexist or rude remarks or behavior toward the judge or
other attorneys or parties are violations of this Rule.
EXAMPLE: A prosecutor giving people a break on a traffic ticket in exchange for a campaign contribution would likewise constitute a violation.
e. state or imply an ability to influence improperly a government agency
or official or to achieve results by means that violate the Rules or other
law [MR 8.4(e)]; or
f. knowingly assist a judge or judicial officer in conduct that is a violation
of the applicable rules of judicial conduct or other law [MR 8.4(f)].
EXAM TIP
Some conduct specifically prohibited by the other Rules violates the general
prohibitions in Rule 8.4 as well. If one answer identifies a more specific Rule
that was violated and another answer offers the general prohibitions contained in Rule 8.4, the better answer is the one referring to the more specific
Rule violated.
3. A lawyer is under an obligation under Rule 8.1(b) to respond truthfully to
requests for information relative to disciplinary proceedings against himself
or against other lawyers after admission [MR 8.1(b)].
a. It is a separate disciplinary offense to lie or to refuse to cooperate in an
investigation of a lawyer’s own conduct.
b. The lawyer would have the right to claim the privilege against selfincrimination and to refuse to disclose confidential information to the
extent protected by Rule 1.6.
c. Disciplinary action can be imposed for failure to cooperate with the
disciplinary authorities even if no substantive violations are found.
4. Jurisdictional Authority to Discipline
a. A lawyer admitted to practice in a jurisdiction is subject to the Rules
of Professional Conduct of that jurisdiction, regardless of where the
lawyer’s conduct occurs [MR 8.5(a)].
49
OUTLINE
I.Regulation
of Lawyers
A. Becoming a Lawyer
Rule 8.1: Bar Admission and
Disciplinary Matters
ABA Model Rule for Admission by Motion
II. Getting Clients
III. Client-Lawyer Basics
B. Losing the Right
to Be a Lawyer
Rule 8.4: Misconduct
Rule 8.5: Disciplinary Authority; Choice of Law
IV. Duties to Clients
V. Client Confidentiality
VI. Conflicts of Interest
C. Restricting the Right
to Practice Law
VII.Duties to Tribunal
and Opposing Parties
VIII.Duties to Non-Clients
Rule 5.6: Restrictions on Rights to Practice
Rule 5.1: Responsibilities of a Partner
or Supervisory Lawyer
D. Forms of Practice
Rule 5.3: Responsibilities Regarding
Nonlawyer Assistance
Rule 5.2: Responsibilities of a Subordinate Lawyer
Rule 5.7: Responsibilities Regarding
Law-Related Services
IX. Professional and
Public Duties
Rule 5.5: Unauthorized Practice of Law;
Multijurisdictional Practice of Law
X. Judges
E. Duties to the Profession
Rule 5.4: Professional Independence of a Lawyer
Rule 8.3: Reporting Professional Misconduct
50
b. A lawyer not admitted in a jurisdiction is also subject to the Rules of
Professional Conduct of that jurisdiction if the lawyer provides or offers
to provide any legal services in that jurisdiction [Id.].
c. A lawyer may be subject to discipline in both the lawyer’s home jurisdiction and another jurisdiction for the same conduct [Id.].
EXAMPLE: Joan is a lawyer in Blueacre. When applying for a law license
in the state of Whiteacre, she lies on her application. Blueacre may discipline her, even though her unprofessional act occurred in Whiteacre.
EXAMPLE: Cynthia is a lawyer in the state of Sandville. While on
vacation in the state of Wellington, Cynthia steals money from a fellow
traveler and is prosecuted in Wellington for theft. Sandville may also
discipline Cynthia, even though her crime occurred in Wellington.
5. Choice of Law and the Rules Governing Lawyers’ Conduct
a. The lawyer’s conduct in connection with a matter pending before a
tribunal will be subject to the rules of the jurisdiction where the tribunal
sits, unless the rules of the tribunal provide otherwise [MR 8.5(b)(1)].
(1) A tribunal means a court, an arbitrator in a binding arbitration
proceeding, or a legislative body, administrative agency, or other
body acting in an adjudicative capacity, meaning that a neutral
official will render a binding legal judgment directly affecting a
party’s interests in a particular matter after the presentation of
evidence or legal argument by a party or parties [MR 1.0(m)].
b. For any other conduct, the lawyer will be subject to the rules of the
jurisdiction where the lawyer’s conduct occurred, unless the predominant effect of the conduct is in a different jurisdiction, in which case the
rules of that jurisdiction will be applied [MR 8.5(b)(2)].
(1) However, the lawyer will not be subject to discipline if the
lawyer’s conduct conforms to the rules of a jurisdiction in which
the lawyer reasonably believes the predominant effect of his
conduct will occur [Id.].
(2) When a lawyer’s conduct involves significant contacts with more
than one jurisdiction, it may not be clear initially whether the predominant effect of the lawyer’s conduct will occur in a jurisdiction other
than the one in which the conduct occurred [MR 8.5, cmt. [5]].
c. As long as the lawyer’s conduct conforms to the rules of a jurisdiction
in which the lawyer reasonably believes the predominant effect will
occur, the lawyer will not be subject to discipline under this Rule [Id.].
(1) In determining a lawyer’s reasonable belief with respect to
conflicts of interest under Rule 8.5(b)(2), a written agreement
between the lawyer and client that reasonably specifies a
particular jurisdiction as within the scope of that paragraph may
be considered if the agreement was obtained with the client’s
informed consent confirmed in the agreement [Id.].
51
OUTLINE
I.Regulation
of Lawyers
A. Becoming a Lawyer
Rule 8.1: Bar Admission and
Disciplinary Matters
ABA Model Rule for Admission by Motion
II. Getting Clients
III. Client-Lawyer Basics
B. Losing the Right
to Be a Lawyer
Rule 8.4: Misconduct
Rule 8.5: Disciplinary Authority; Choice of Law
IV. Duties to Clients
V. Client Confidentiality
VI. Conflicts of Interest
C. Restricting the Right
to Practice Law
VII.Duties to Tribunal
and Opposing Parties
VIII.Duties to Non-Clients
Rule 5.6: Restrictions on Rights to Practice
Rule 5.1: Responsibilities of a Partner
or Supervisory Lawyer
D. Forms of Practice
Rule 5.3: Responsibilities Regarding
Nonlawyer Assistance
Rule 5.2: Responsibilities of a Subordinate Lawyer
Rule 5.7: Responsibilities Regarding
Law-Related Services
IX. Professional and
Public Duties
Rule 5.5: Unauthorized Practice of Law;
Multijurisdictional Practice of Law
X. Judges
E. Duties to the Profession
Rule 5.4: Professional Independence of a Lawyer
Rule 8.3: Reporting Professional Misconduct
52
C. Restricting the Right to Practice Law
1. Restrictions by agreement are generally prohibited.
a. A lawyer may not agree to participate in any partnership or employment agreement that restricts the lawyer’s right to practice after termination of the relationship, other than an agreement concerning benefits
upon retirement [MR 5.6(a)].
(1) This provision effectively prohibits lawyers from making any noncompetition agreements, other than an agreement under which
retirement benefits will be forfeited if a lawyer enters into competition after leaving his former firm [MR 5.6, cmt. [1]].
(2) Thus, non-competition agreements, even if limited to a short time,
to a particular locality, or to clients of the firm are prohibited.
b. A lawyer is also prohibited from making an agreement in which a
restriction on the lawyer’s right to practice is part of the settlement of a
client controversy [MR 5.6(b)].
(1) However, the Rule does not prohibit restrictions that are included
in the terms of the sale of a law practice [MR 5.6, cmt. [3]].
2. Restrictions through Court Sanctions
a. An attorney may be subject to litigation sanctions for such things as
pursuing a non-meritorious claim, or failing to respond to a discovery order.
b. Sanctions can include suspension and probation, among other things.
D. Forms of Practice
1. Law Firms and Associations
a. Responsibilities of Partners and Supervising Attorneys
(1) Partners and supervising attorneys must make reasonable efforts
to establish internal policies and procedures to provide reasonable assurance that all attorneys in their employ comply with the
ethical rules [MR 5.1(b); MR 5.1, cmt. [2]].
(2) The precise measures required to fulfill these obligations depend on
the structure and the work of the firm, but should include procedures
designed to detect and resolve conflicts of interest, identify dates by
which actions must be taken in pending matters so that deadlines are
not missed, account for client funds and property, and ensure that
inexperienced lawyers are properly supervised [MR 5.1, cmt. [2]].
(3) In a small firm that does not practice in areas where ethical problems
frequently arise, an informal program is sufficient [MR 5.1, cmt. [3]].
(4) In a larger firm, particularly one practicing in areas involving difficult ethical problems, a formal structure is required [Id.].
(a) This could include referring ethics problems to an ethics
committee or to a senior partner [Id.].
(5) Supervising attorneys are personally responsible for subordinates’ ethical violations if they order or ratify the subordinates’
work [MR 5.1(c)(1)].
53
OUTLINE
I.Regulation
of Lawyers
A. Becoming a Lawyer
Rule 8.1: Bar Admission and
Disciplinary Matters
ABA Model Rule for Admission by Motion
II. Getting Clients
III. Client-Lawyer Basics
B. Losing the Right
to Be a Lawyer
Rule 8.4: Misconduct
Rule 8.5: Disciplinary Authority; Choice of Law
IV. Duties to Clients
V. Client Confidentiality
VI. Conflicts of Interest
C. Restricting the Right
to Practice Law
VII.Duties to Tribunal
and Opposing Parties
VIII.Duties to Non-Clients
Rule 5.6: Restrictions on Rights to Practice
Rule 5.1: Responsibilities of a Partner
or Supervisory Lawyer
D. Forms of Practice
Rule 5.3: Responsibilities Regarding
Nonlawyer Assistance
Rule 5.2: Responsibilities of a Subordinate Lawyer
Rule 5.7: Responsibilities Regarding
Law-Related Services
IX. Professional and
Public Duties
Rule 5.5: Unauthorized Practice of Law;
Multijurisdictional Practice of Law
X. Judges
E. Duties to the Profession
Rule 5.4: Professional Independence of a Lawyer
Rule 8.3: Reporting Professional Misconduct
54
(6) Rule 5.3 imposes a parallel obligation on a partner or managing
or supervisory lawyer to ensure that non-lawyers employed or
retained by, or associated with, the lawyer or law firm conduct
themselves in a manner compatible with the professional obligations of the lawyer [MR 5.3(a), (b)].
(7) A lawyer is responsible for overseeing the work of his non-lawyer
assistants and is subject to discipline if [MR 5.3(c)]:
(a) the lawyer orders or ratifies wrongdoing; or
(b) the lawyer is a partner in the law firm in which the person is
employed or has direct supervisory authority over the person, and
knows of the conduct at a time when its consequences can be
avoided or mitigated but fails to take reasonable remedial action.
EXAMPLE: Jamie’s paralegal, Gail, is working on a document production for one of Jamie’s clients. In the course of
going through the documents, Gail finds a “smoking gun”
that all but sinks Jamie’s case. Gail tells Jamie that she is
going to conveniently spill grape juice all over the only copy
of the document. If Jamie tells Gail to go ahead or does not
stop her, Jamie will be subject to discipline.
(8) All firms, whether large or small, are urged to comply with the
Rules by encouraging continuing legal education in ethics and
encouraging an ethical atmosphere in the firm [MR 5.1, cmt. [3]].
b. Ethical Duties of Subordinates
(1) Following a supervisor’s orders is not a defense for a subordinate
lawyer. The subordinate’s own ethical duties remain [MR 5.1,
cmt. [8]; MR 5.2(a)].
EXAMPLE: Lois Lawyer is a first-year associate at XYZ, LLP, a
large law firm. XYZ is responding to a document request from opposing counsel. Her boss, Peter Partner, tells her not to produce
documents with handwritten notes on them, even though these
have been requested. If Lois follows Peter’s orders, both Peter
and Lois will be personally responsible.
(2)
However, where a subordinate acts in accordance with a supervisory
lawyer’s reasonable resolution of an arguable question of professional duty, the subordinate does not violate the Rules [MR 5.2(b)].
EXAMPLE: Lois Lawyer believes a document request to which
she is responding requires production of documents with handwritten notes on them. Her supervisor Peter disagrees. The document request as framed is arguably ambiguous on this issue. Lois
follows Peter’s orders and does not produce such documents.
The court later holds that refusing to produce documents with
handwritten notes was an ethical violation. Peter will be personally responsible, but Lois will not be.
55
OUTLINE
I.Regulation
of Lawyers
A. Becoming a Lawyer
Rule 8.1: Bar Admission and
Disciplinary Matters
ABA Model Rule for Admission by Motion
II. Getting Clients
III. Client-Lawyer Basics
B. Losing the Right
to Be a Lawyer
Rule 8.4: Misconduct
Rule 8.5: Disciplinary Authority; Choice of Law
IV. Duties to Clients
V. Client Confidentiality
VI. Conflicts of Interest
C. Restricting the Right
to Practice Law
VII.Duties to Tribunal
and Opposing Parties
VIII.Duties to Non-Clients
Rule 5.6: Restrictions on Rights to Practice
Rule 5.1: Responsibilities of a Partner
or Supervisory Lawyer
D. Forms of Practice
Rule 5.3: Responsibilities Regarding
Nonlawyer Assistance
Rule 5.2: Responsibilities of a Subordinate Lawyer
Rule 5.7: Responsibilities Regarding
Law-Related Services
IX. Professional and
Public Duties
Rule 5.5: Unauthorized Practice of Law;
Multijurisdictional Practice of Law
X. Judges
E. Duties to the Profession
Rule 5.4: Professional Independence of a Lawyer
Rule 8.3: Reporting Professional Misconduct
56
2. Lawyers Providing Law-Related Services
a. Law-related services are services that might reasonably be
performed in conjunction with and, in substance, are related to the
provision of legal services and not prohibited as the unauthorized practice of law when provided by a non-lawyer [MR 5.7(b)].
(1) Law-related services include, among other things, providing title
insurance, financial planning, accounting, trust services, real
estate counseling, legislative lobbying, economic analysis, social
work, psychological counseling, tax preparation, and patent,
medical, or environmental consulting [MR 5.7, cmt. [9]].
b. A lawyer who is providing law-related services is subject to the Rules if
the law-related services are provided [MR 5.7(a)]:
(1) in circumstances that are not distinct from the lawyer’s provision
of legal services to clients; or
(2) by a separate entity controlled or owned by the lawyer individually or with others, unless the lawyer takes reasonable measures
to ensure that persons obtaining law-related services know that
they are not obtaining legal services and are not protected by the
client-lawyer relationship.
E. Duties to the Profession
1. Avoiding the Unauthorized Practice of Law
a. A lawyer may not practice law, or assist another in doing so, in violation of
the regulation of the legal profession in the applicable jurisdiction [MR 5.5(a)].
b. A lawyer who is not admitted in a jurisdiction may not [MR 5.5(b)]:
(1) establish an office or other systematic and continuous presence
in that jurisdiction for the practice of law; or
(2) hold out to the public or otherwise represent that the lawyer is
admitted to practice in that jurisdiction.
c. A lawyer admitted to practice in another U.S. jurisdiction, and in good
standing in the jurisdiction in which the lawyer is admitted, may provide
legal services on a temporary basis in another jurisdiction that [MR 5.5(c)]:
(1) are undertaken in association with a lawyer who is admitted to practice in that jurisdiction and who actively participates in the matter;
(2) are in or reasonably related to a pending or potential proceeding
before a tribunal in this or another jurisdiction, if the lawyer, or a
person the lawyer is assisting, is authorized by law or order to appear
in such proceeding or reasonably expects to be so authorized;
(3) are in or reasonably related to a pending or potential arbitration,
mediation, or other alternative dispute resolution proceeding
in this or another jurisdiction, if the services arise out of or are
reasonably related to the lawyer’s practice in a jurisdiction in
which the lawyer is admitted to practice and are not services for
which the forum requires pro hac vice admission; or
57
OUTLINE
I.Regulation
of Lawyers
A. Becoming a Lawyer
Rule 8.1: Bar Admission and
Disciplinary Matters
ABA Model Rule for Admission by Motion
II. Getting Clients
III. Client-Lawyer Basics
B. Losing the Right
to Be a Lawyer
Rule 8.4: Misconduct
Rule 8.5: Disciplinary Authority; Choice of Law
IV. Duties to Clients
V. Client Confidentiality
VI. Conflicts of Interest
C. Restricting the Right
to Practice Law
VII.Duties to Tribunal
and Opposing Parties
VIII.Duties to Non-Clients
Rule 5.6: Restrictions on Rights to Practice
Rule 5.1: Responsibilities of a Partner
or Supervisory Lawyer
D. Forms of Practice
Rule 5.3: Responsibilities Regarding
Nonlawyer Assistance
Rule 5.2: Responsibilities of a Subordinate Lawyer
Rule 5.7: Responsibilities Regarding
Law-Related Services
IX. Professional and
Public Duties
Rule 5.5: Unauthorized Practice of Law;
Multijurisdictional Practice of Law
X. Judges
E. Duties to the Profession
Rule 5.4: Professional Independence of a Lawyer
Rule 8.3: Reporting Professional Misconduct
58
(4) arise out of or are reasonably related to the lawyer’s practice in a
jurisdiction in which the lawyer is admitted to practice.
EXAMPLE: Gretchen approaches her friend, Cecilia, an attorney
admitted in the state of New York, and asks Cecilia to file a lawsuit
for her in the state of Ohio. Cecilia is not admitted in Ohio. Inasmuch
as none of the exceptional circumstances stated above exist, unless
Cecilia associates with a lawyer admitted in Ohio or obtains admission pro hac vice for this case, Cecilia may not file the lawsuit.
d. A lawyer admitted and in good standing in another U.S. jurisdiction or
in a foreign jurisdiction, and not disbarred or suspended from practice
in any jurisdiction or the equivalent thereof, may provide legal services
through an office or other systematic and continuous presence in this
jurisdiction that [MR 5.5(d)]:
(1) are provided to the lawyer’s employer or its organization affiliates;
are not services for which the permission of a tribunal to appear
pro hac vice is required; and, when performed by a foreign lawyer
and requires advice on the law of another U.S. jurisdiction or the
United States, such advice shall be based upon the advice of a
lawyer who is duly licensed and authorized by the jurisdiction to
provide such advice; or
(2) are services that the lawyer is authorized to provide by federal
law or the law of the jurisdiction.
e. As of August 2012, the ABA has approved the ABA Model Rule on
Practice Pending Admission. The Model Rule provides that a lawyer
currently holding an active license to practice law in another U.S.
jurisdiction and who has been engaged in the active practice of law for
three of the last five years, may provide legal services in this jurisdiction through an office or other systematic and continuous presence for
no more than 365 days provided certain requirements are met and the
lawyer is diligently seeking admission to this jurisdiction [ABA Model
Rule on Practice Pending Admission].
f. Assisting Non-Lawyers
(1) A lawyer may not assist another person in the unauthorized practice of law [MR 5.5, cmt. [1]].
(2) A lawyer may employ the services of paraprofessionals and
delegate functions to them, as long as the lawyer supervises and
retains responsibility for their work [MR 5.5, cmt. [2]].
(3) A lawyer may delegate tasks to those who are non-lawyers without
being in violation of the Rules so long as the lawyer maintains a
direct relationship with the client, supervises the delegated work,
and retains complete professional responsibility for the work.
(a) For example:
1) a law student employee may interview witnesses, make
collections, and examine court documents;
59
OUTLINE
I.Regulation
of Lawyers
A. Becoming a Lawyer
Rule 8.1: Bar Admission and
Disciplinary Matters
ABA Model Rule for Admission by Motion
II. Getting Clients
III. Client-Lawyer Basics
B. Losing the Right
to Be a Lawyer
Rule 8.4: Misconduct
Rule 8.5: Disciplinary Authority; Choice of Law
IV. Duties to Clients
V. Client Confidentiality
VI. Conflicts of Interest
C. Restricting the Right
to Practice Law
VII.Duties to Tribunal
and Opposing Parties
VIII.Duties to Non-Clients
Rule 5.6: Restrictions on Rights to Practice
Rule 5.1: Responsibilities of a Partner
or Supervisory Lawyer
D. Forms of Practice
Rule 5.3: Responsibilities Regarding
Nonlawyer Assistance
Rule 5.2: Responsibilities of a Subordinate Lawyer
Rule 5.7: Responsibilities Regarding
Law-Related Services
IX. Professional and
Public Duties
Rule 5.5: Unauthorized Practice of Law;
Multijurisdictional Practice of Law
X. Judges
E. Duties to the Profession
Rule 5.4: Professional Independence of a Lawyer
Rule 8.3: Reporting Professional Misconduct
60
2) a layperson may conduct an initial interview with a client
as long as no service or advice is provided, and the
layperson reports back to a lawyer; and
3) an insurance adjuster may negotiate a settlement if the
attorney received the case before a final settlement
was approved.
(b) However, ultimately, the lawyer is responsible for the negligence or malfeasance of any non-lawyer employee that the
lawyer knew or should have known about and monitored.
(c) A lawyer may provide professional advice and instruction to
a non-lawyer whose employment requires knowledge of law
(e.g., claims adjusters, employees of financial or commercial institutions, social workers, accountants, and persons
employed in government agencies) [MR 5.5, cmt. [3]].
(d) In addition, a lawyer may counsel non-lawyers who wish to
proceed pro se [Id.].
(e) However, a non-lawyer cannot appear in court for a lawyer.
g. Law Students and Graduates
(1) Each state has specific rules permitting limited practice by a law
student that is supervised by a licensed lawyer.
(2) A law school graduate who has not passed the bar or who has
not been admitted to practice in any jurisdiction, however, may be
guilty of the unauthorized practice of law if he gives legal advice
or holds himself out as a member of a bar [MR 5.5(b)(2)].
h. Suspended Lawyers
(1) Likewise, a lawyer may be guilty of the unauthorized practice of
law if he continues to practice law while on suspended status for
non-payment of bar dues or non-compliance with continuing legal
education requirements.
(2) A lawyer may work as a paralegal or law clerk during such period.
(3) The nature and extent of activities in which a suspended or
disbarred lawyer may engage, however, depends on state law.
2. Professional Independence of Lawyer
a. Fee-Splitting
(1) A lawyer or law firm may not share fees with non-lawyers, except
that [MR 5.4(a)]:
(a) an agreement by a lawyer with the lawyer’s firm, partner,
or associate may provide for the payment of money to the
lawyer’s estate over a reasonable period of time after the
lawyer’s death;
(b) a lawyer who buys a practice from a deceased, disabled,
or disappeared lawyer may pay the purchase price to the
lawyer’s estate or to another representative of the lawyer;
61
OUTLINE
I.Regulation
of Lawyers
A. Becoming a Lawyer
Rule 8.1: Bar Admission and
Disciplinary Matters
ABA Model Rule for Admission by Motion
II. Getting Clients
III. Client-Lawyer Basics
B. Losing the Right
to Be a Lawyer
Rule 8.4: Misconduct
Rule 8.5: Disciplinary Authority; Choice of Law
IV. Duties to Clients
V. Client Confidentiality
VI. Conflicts of Interest
C. Restricting the Right
to Practice Law
VII.Duties to Tribunal
and Opposing Parties
VIII.Duties to Non-Clients
Rule 5.6: Restrictions on Rights to Practice
Rule 5.1: Responsibilities of a Partner
or Supervisory Lawyer
D. Forms of Practice
Rule 5.3: Responsibilities Regarding
Nonlawyer Assistance
Rule 5.2: Responsibilities of a Subordinate Lawyer
Rule 5.7: Responsibilities Regarding
Law-Related Services
IX. Professional and
Public Duties
Rule 5.5: Unauthorized Practice of Law;
Multijurisdictional Practice of Law
X. Judges
E. Duties to the Profession
Rule 5.4: Professional Independence of a Lawyer
Rule 8.3: Reporting Professional Misconduct
62
(c) a lawyer or firm may include non-lawyer employees in a
compensation or retirement plan, even if based on a profitsharing arrangement; and
(d) a lawyer may share court-awarded legal fees with a nonprofit
organization that employed, retained, or recommended
employment of the lawyer in the matter.
EXAMPLE: Kate, Bonnie, and Sally work together. Kate is
a lawyer, and Bonnie and Sally are real estate agents. Kate
handles all of the closings for the homes that Bonnie and
Sally sell. Kate may not give Bonnie and Sally a portion of
the fees she earns for performing legal work, even if the fees
are earned from homes that Bonnie and Sally sold or from
clients Bonnie and Sally referred to Kate.
b. Associating with Non-Lawyers
(1) A lawyer may not:
(a) form a partnership or other business entity with a non-lawyer
if any of the business’s activities consist of the practice of
law [MR 5.4(b)];
(b) allow a person who recommends, employs, or pays the lawyer
to render legal services for another to direct or regulate his
professional judgment in rendering legal services [MR 5.4(c)]; or
(c) practice with or in the form of a professional corporation or
association authorized to practice law for a profit, if [MR 5.4(d)]:
1) a non-lawyer owns an interest therein, except that a
fiduciary representative of the estate of a lawyer may
hold the stock or interest of the lawyer for a reasonable
time during administration;
2) a non-lawyer is a corporate director or officer or occupies a position of similar responsibility in any form of
association other than a corporation; or
3) a non-lawyer has the right to direct or control the professional judgment of a lawyer.
3. Reporting Professional Misconduct
a. A lawyer who has knowledge of a violation of the Rules that raises a
question as to any lawyer’s honesty, trustworthiness, or fitness as a
lawyer must inform the appropriate professional authority [MR 8.3(a)].
(1) The Rule requires the self-reporting of disciplinary violations.
(2) The obligation to report another lawyer exists regardless of any
supervisory authority over the offending lawyer.
EXAMPLE: A junior lawyer in a firm must report a senior lawyer’s
violation of which the junior lawyer has unprivileged knowledge.
Similarly, a lawyer who takes over a case for another lawyer must
report ethics violations discovered in the files.
63
OUTLINE
I.Regulation
of Lawyers
A. Becoming a Lawyer
Rule 8.1: Bar Admission and
Disciplinary Matters
ABA Model Rule for Admission by Motion
II. Getting Clients
III. Client-Lawyer Basics
B. Losing the Right
to Be a Lawyer
Rule 8.4: Misconduct
Rule 8.5: Disciplinary Authority; Choice of Law
IV. Duties to Clients
V. Client Confidentiality
VI. Conflicts of Interest
C. Restricting the Right
to Practice Law
VII.Duties to Tribunal
and Opposing Parties
VIII.Duties to Non-Clients
Rule 5.6: Restrictions on Rights to Practice
Rule 5.1: Responsibilities of a Partner
or Supervisory Lawyer
D. Forms of Practice
Rule 5.3: Responsibilities Regarding
Nonlawyer Assistance
Rule 5.2: Responsibilities of a Subordinate Lawyer
Rule 5.7: Responsibilities Regarding
Law-Related Services
IX. Professional and
Public Duties
Rule 5.5: Unauthorized Practice of Law;
Multijurisdictional Practice of Law
X. Judges
E. Duties to the Profession
Rule 5.4: Professional Independence of a Lawyer
Rule 8.3: Reporting Professional Misconduct
64
b. A lawyer must inform the appropriate authority when the lawyer has knowledge that a judge has violated the applicable rules of judicial conduct, thus
raising a question as to the judge’s fitness for office [MR 8.3(b)].
c. Exceptions to the Reporting Requirement
(1) Lawyer Assistance Programs
(a) Disclosure of information learned while serving as a
member of a lawyer assistance program, including
programs for substance abuse or mental health problems,
is not required [MR 8.3(c)].
1) Without such confidentiality, lawyers and judges may hesitate to seek assistance from these programs, which may
then result in additional harm to their professional careers
and injury to their clients and the public [MR 8.3, cmt. [5]].
2) The Rules do not otherwise address the confidentiality
of information received by a lawyer or judge participating in an approved lawyer assistance program; such
an obligation, however, may be imposed by the Rules of
the program or other law [Id.].
(2) Disclosure Involving Confidential Information
(a) A report is not required where it would involve disclosure
of confidential information otherwise protected by Rule 1.6
[MR 8.3, cmt. [2]].
(b) However, a lawyer should encourage a client to consent to
disclosure where doing so would not substantially prejudice
the client’s interests [Id.].
(3) Past Professional Misconduct
(a) Similarly, the duty to report past professional misconduct
does not apply to a lawyer retained to represent another
lawyer whose professional conduct is in question. Such a
situation is governed by the Rules applicable to the clientlawyer relationship [MR 8.3, cmt. [4]].
65
OUTLINE
I.Regulation
of Lawyers
A.Advertising
Rule 7.1: Communication Concerning
a Lawyer’s Services
B.Solicitation
Rule 7.3: Solicitation of Clients
C.Specialization
Rule 7.4: Communication of Fields of
Practice and Specialization
D.Referrals
Rule 7.2: Advertising
E. Naming of Law Practice
Rule 7.5: Firm Names and Letterhead
II. Getting Clients
III. Client-Lawyer Basics
IV. Duties to Clients
V. Client Confidentiality
VI. Conflicts of Interest
VII.Duties to Tribunal
and Opposing Parties
VIII.Duties to Non-Clients
IX. Professional and
Public Duties
X. Judges
66
II. GETTING CLIENTS
A. Advertising
1. In broad terms, advertising is the communication of information about the
availability of a lawyer’s services in a general way that does not personally target any specific individual who might be put on the spot to accept or
decline employing the lawyer.
2. Advertising is permitted, as long as the communication is not misleading
and is in accordance with the standards of Rule 7.1 [MR 7.2(a)].
3. Rule 7.1 permits a lawyer to use any form of public communication about
the lawyer’s services that is not false or misleading [MR 7.1].
a. A statement is misleading if it contains a material misrepresentation of
fact or law, or if it omits facts that are necessary to make the statement,
considered as a whole, not materially misleading [Id.].
b. A truthful statement is also misleading if there is a substantial likelihood
that it will lead a reasonable person to formulate a specific conclusion
about the lawyer or the lawyer’s services for which there is no reasonable foundation [MR 7.1, cmt. [2]].
c. Regardless of the means used to make a lawyer’s services known, any
statements about them should be truthful [MR 7.1, cmt. [1]].
EXAMPLE: An advertisement that no fee would be charged unless a
successful result was obtained was found misleading because it failed
to mention that the client would be liable for expenses and costs of
litigation in any event.
EXAMPLE: If a lawyer advertised “Wills for $100” and charged that
amount only for simple wills, the statement would be misleading because
it does not say that larger amounts would be charged for complex wills.
d. An advertisement that truthfully reports a lawyer’s achievements on
behalf of clients or former clients may be misleading if presented so
as to lead a reasonable person to form an unjustified expectation that
the same results could be obtained for other clients in similar matters
without reference to the specific factual and legal circumstances of
each client’s case [MR 7.1, cmt. [3]].
(1) The inclusion of an appropriate disclaimer or qualifying language
may preclude a finding that a statement is likely to create unjustified expectations or otherwise mislead the public [Id.].
e. 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 so as to lead a reasonable person to conclude that
the comparison can be substantiated [Id.].
EXAMPLE: A lawyer cannot advertise that she is the best plaintiff’s
malpractice lawyer in town because that statement involves a subjective judgment that cannot be substantiated.
67
OUTLINE
I.Regulation
of Lawyers
A.Advertising
Rule 7.1: Communication Concerning
a Lawyer’s Services
B.Solicitation
Rule 7.3: Solicitation of Clients
C.Specialization
Rule 7.4: Communication of Fields of
Practice and Specialization
D.Referrals
Rule 7.2: Advertising
E. Naming of Law Practice
Rule 7.5: Firm Names and Letterhead
II. Getting Clients
III. Client-Lawyer Basics
IV. Duties to Clients
V. Client Confidentiality
VI. Conflicts of Interest
VII.Duties to Tribunal
and Opposing Parties
VIII.Duties to Non-Clients
IX. Professional and
Public Duties
X. Judges
68
f.
A lawyer may advertise through written, recorded, or electronic
communication, including public media [MR 7.2(a)].
g. All ads must include the name and office address of at least one
attorney or law firm [MR 7.2(c)].
B. Solicitation
1. A solicitation is a targeted communication initiated by the lawyer that is directed
to a specific person and that offers to provide legal services [MR 7.3, cmt. [1]].
a. Rule 7.3 distinguishes between advertising and solicitation by focusing
on personal contact.
b. Many states have upheld rules that prohibit lawyers from sending
targeted direct mail solicitations to victims and their relatives for 30
days following an accident or disaster.
c. Under federal law, lawyers cannot solicit victims of airline accidents and
their families for 45 days following the accident [49 U.S.C. § 1136(g)(2)].
2. A lawyer cannot solicit fee-generating employment by in-person, live telephone, or real-time electronic contact, when the lawyer’s significant reason
for doing so is pecuniary gain, unless the person solicited [MR 7.3(a)]:
a. is a lawyer; or
b. has a family, close personal, or prior professional relationship with
the lawyer.
3. A lawyer may not solicit employment from anyone who has made it known to
the lawyer that he does not want to be solicited, nor may a lawyer engage in
solicitation involving coercion, duress, or harassment [MR 7.3(b)].
EXAMPLE: Lisa is an attorney who specializes in personal injury cases.
While driving home, she sees a major accident on the highway. She can
tell that this accident will yield major damages. She is subject to discipline if
she stops and offers her card to the accident victims.
a. Electronic real-time communications are analogous to live phone calls.
They are believed to have a coercive effect because of their immediacy.
4. Advertising circulars sent in the mail targeted to those known to be in need
of particular legal services are allowed, but the outside envelope must
include the words “Advertising Material” [MR 7.3(c)].
a. The words “Advertising Material” must also be used at the beginning
and end of any recorded or electronic communication [Id.].
EXAMPLE: John, a bankruptcy lawyer, legally obtains listings of
individuals who have filed for bankruptcy pro se (without a lawyer) in
his jurisdiction from the bankruptcy court. He mails them his brochure,
which identifies himself and his office address, and truthfully states, “I
offer bankruptcy-related legal representation to low-income individuals at rates below those charged by large law firms. Contact me at the
toll-free number below for a free consultation to determine whether you
wish to hire me.” The words “Attorney Advertisement” appear on the
69
OUTLINE
I.Regulation
of Lawyers
A.Advertising
Rule 7.1: Communication Concerning
a Lawyer’s Services
B.Solicitation
Rule 7.3: Solicitation of Clients
C.Specialization
Rule 7.4: Communication of Fields of
Practice and Specialization
D.Referrals
Rule 7.2: Advertising
E. Naming of Law Practice
Rule 7.5: Firm Names and Letterhead
II. Getting Clients
III. Client-Lawyer Basics
IV. Duties to Clients
V. Client Confidentiality
VI. Conflicts of Interest
VII.Duties to Tribunal
and Opposing Parties
VIII.Duties to Non-Clients
IX. Professional and
Public Duties
X. Judges
70
envelope in which the brochure is mailed. John will not be subject to
discipline for sending out this mailing.
5. There are constitutional limits to a ban on in-person solicitation. These limits are
reflected in the exceptions contained in the Rule, which are described below.
a. Solicitation is permitted where the lawyer does not have a substantial
pecuniary motive.
(1) A lawyer has the right to approach persons in need of legal services,
to explain that need, and then to suggest that they obtain a lawyer or
obtain the services of the soliciting lawyer without charge.
b. A lawyer has the right to solicit former clients for additional legal services.
EXAMPLE: If a lawyer drew up a will for a client and tax law changes
made it advisable to change the will, the lawyer has the right to initiate
personal contact with the former client and suggest that they have a
conference about updating the will.
c. A lawyer has the right to solicit relatives and persons with whom he has
close personal relationships for legal services.
(1) The Rule is not specific as to what familial relationships are exempt—
relatives by marriage as well as blood relatives are included.
(2) The Rule does not define a “close personal relationship.”
d. A lawyer has the right to solicit business from other lawyers.
(1) There is less potential for abuse when the person contacted is
also a lawyer [MR 7.3, cmt. [5]].
e. A lawyer has the right to contact the representatives of organizations or
groups interested in establishing a group or prepaid legal services plan
for their members, beneficiaries, or other third persons [MR 7.3(d)].
(1) A lawyer may participate in a prepaid or group legal services
plan that uses personal solicitation to secure clients, as long as
[MR 7.3, cmt. [9]]:
(a) the lawyer is not personally involved in the solicitation;
(b) the organization is not owned or directed by the lawyer; and
(c) the persons solicited are not known to be in need of legal
services in a particular matter.
C. Specialization
1. In an advertisement, a lawyer may identify the area of law in which he does
or does not practice [MR 7.4(a)].
a. A lawyer admitted to engage in patent practice before the United States
Patent and Trademark Office can use the designation “Patent Attorney” or
another substantially similar designation in advertisements [MR 7.4(b)].
b. A lawyer engaged in admiralty law can use the designation “Admiralty,”
“Proctor in Admiralty,” or another substantially similar designation in
advertisements [MR 7.4(c)].
71
OUTLINE
I.Regulation
of Lawyers
A.Advertising
Rule 7.1: Communication Concerning
a Lawyer’s Services
B.Solicitation
Rule 7.3: Solicitation of Clients
C.Specialization
Rule 7.4: Communication of Fields of
Practice and Specialization
D.Referrals
Rule 7.2: Advertising
E. Naming of Law Practice
Rule 7.5: Firm Names and Letterhead
II. Getting Clients
III. Client-Lawyer Basics
IV. Duties to Clients
V. Client Confidentiality
VI. Conflicts of Interest
VII.Duties to Tribunal
and Opposing Parties
VIII.Duties to Non-Clients
IX. Professional and
Public Duties
X. Judges
72
c. A lawyer is generally permitted to state that the lawyer is a “specialist,”
practices a “specialty,” or “specializes in” particular fields, but the statement must be truthful, and not false and misleading [MR 7.4, cmt. [1]].
2. A lawyer may not state or imply that he is certified as a specialist in a
particular field of law, unless he is certified by an organization approved by
a state authority (such as the state bar) or accredited by the ABA, and the
name of the certifying organization is identified [MR 7.4(d)].
EXAMPLE: Jim, a lawyer, places an ad in his town newspaper. The ad
reads, “Jim is an attorney. He specializes in automobile ‘lemon-law’ cases
but also handles simple wills, divorces, business contracts, and residential
real estate.” This ad will not subject Jim to discipline.
EXAMPLE: An attorney who holds an active Certified Public Accountant (CPA)
license as well as a Certified Financial Planner (CFP) designation from the Certified Financial Planner Board of Standards may list both designations in her
listing in the yellow pages, and on her business cards and law office stationery.
a. However, a state could prohibit advertisement of certifications issued
by organizations that make no inquiry into a petitioner’s fitness, or
issue certificates indiscriminately for a fee.
D. Referrals
1. A lawyer cannot give anything of value for client referrals, except that the
lawyer may [MR 7.2(b)]:
a. pay the fees associated with being part of a legal service plan, or a
not-for-profit or qualified lawyer referral service; and
(1) A qualified lawyer referral service is a lawyer referral service that
has been approved by an appropriate regulatory authority [Id.].
b. refer clients to another lawyer or a non-lawyer professional pursuant to an
agreement that provides for referrals of clients or customers to the lawyer, if:
(1) the reciprocal referral agreement is not exclusive; and
(2) the client is informed of the existence and nature of the agreement.
E. Naming of Law Practice
1. A law firm’s name must not be misleading.
a. Trade names are permitted if they are not misleading and do not
imply a connection with a government or charitable legal services
organization [MR 7.5(a)].
2. Law firms with offices in more than one jurisdiction are permitted to use the same
name or designation in each jurisdiction, as long as their communications in each
state identify those partners not licensed to practice in the state [MR 7.5(b)].
3. The name of any lawyer holding public office cannot be used in the name
of the law firm, or in communications on its behalf, during any substantial
period when the lawyer is not regularly practicing with the firm [MR 7.5(c)].
a. The name cannot be used on the firm’s letterhead.
73
OUTLINE
I.Regulation
of Lawyers
A.Advertising
Rule 7.1: Communication Concerning
a Lawyer’s Services
B.Solicitation
Rule 7.3: Solicitation of Clients
C.Specialization
Rule 7.4: Communication of Fields of
Practice and Specialization
D.Referrals
Rule 7.2: Advertising
E. Naming of Law Practice
Rule 7.5: Firm Names and Letterhead
II. Getting Clients
III. Client-Lawyer Basics
IV. Duties to Clients
V. Client Confidentiality
VI. Conflicts of Interest
VII.Duties to Tribunal
and Opposing Parties
VIII.Duties to Non-Clients
IX. Professional and
Public Duties
X. Judges
74
b. A lawyer continuing to practice who holds a part-time government job
may continue to have his name used as part of the firm name. However,
a lawyer who holds a full-time governmental position for an indefinite
period of time may not do so, even if he has not retired from the firm.
4. Lawyers who are merely sharing office facilities, such as a secretary,
conference room, library, or the like, but who are not partners, cannot
denominate themselves a partnership or give themselves a name like
“Smith & Jones,” which implies a partnership [MR 7.5, cmt. [2]].
5. Lawyers may state or imply that they practice in a partnership or other organization only when that is the fact [MR 7.5(d)].
75
OUTLINE
I.Regulation
of Lawyers
Rule 1.2: Scope of Representation
and Allocation of Authority
II. Getting Clients
A. Defining the ClientLawyer Relationship
Rule 1.14:Client with Diminished Capacity
Rule 1.5: Fees
III. Client-Lawyer Basics
IV. Duties to Clients
V. Client Confidentiality
VI. Conflicts of Interest
VII.Duties to Tribunal
and Opposing Parties
VIII.Duties to Non-Clients
IX. Professional and
Public Duties
X. Judges
76
B. Terminating a ClientLawyer Relationship
Rule 1.16:Declining or Terminating
Representation
Rule 1.17:Sale of Law Practice
III. CLIENT-LAWYER BASICS
A. Defining the Client-Lawyer Relationship
1. Allocation of Authority between Client and Lawyer
a. The client-lawyer relationship is contractual in nature: the client is the
principal, and the attorney is the agent.
(1) Therefore, the client has the ultimate authority to determine the
purposes to be served by the representation.
b. The client decides the objectives of the representation. These may
include [MR 1.2(a)]:
(1) in a civil case, whether to settle the matter; and
(2) in a criminal case (after consulting with the lawyer), whether to enter
a plea, whether to waive a jury trial, and whether the client will testify.
EXAMPLE: Sara is on trial for attempted murder. Her lawyer,
Chris, feels that she will probably be acquitted if the case goes to
trial. Sara, however, is very nervous about going to trial. She is a
single mother and can’t afford to go to jail. If she pleads, she will
not go to jail. Against Chris’s advice, she instructs Chris to accept
the prosecution’s plea offer. Even though he does not agree with
Sara’s decision, Chris must accept the plea offer on Sara’s behalf.
c. The lawyer ordinarily has the right to determine the technical and
legal tactical means by which the objectives of the relationship will be
pursued, but he has the obligation to consult with the client concerning
those means [MR 1.2, cmt. [2]].
(1) Conversely, a lawyer will generally defer to the client questions
about the expense to be incurred and concern for third persons
who might be adversely affected [Id.].
EXAMPLE: If a lawyer believes it is beneficial to the case to hire an
expert witness, the client should be apprised of the belief but have
the right to veto that decision because of the expense involved.
d. Where a client and lawyer disagree, the lawyer should consult with the
client to seek a mutually acceptable resolution [Id.].
(1) The Rules do not specify how a conflict should be resolved if an
agreement cannot be reached.
(2) If resolution efforts are unavailing and the lawyer has a fundamental disagreement with the client, the lawyer may withdraw
from the representation, or the client may resolve the disagreement by discharging the lawyer [Id.].
2. Scope of Lawyer’s Representation
a. Representation Restricted by Contractual Agreement
(1) Because the client-lawyer relationship is a contractual relationship, it is consensual in nature, and the attorney, in consultation
77
OUTLINE
I.Regulation
of Lawyers
Rule 1.2: Scope of Representation
and Allocation of Authority
II. Getting Clients
A. Defining the ClientLawyer Relationship
Rule 1.14:Client with Diminished Capacity
Rule 1.5: Fees
III. Client-Lawyer Basics
IV. Duties to Clients
V. Client Confidentiality
VI. Conflicts of Interest
VII.Duties to Tribunal
and Opposing Parties
VIII.Duties to Non-Clients
IX. Professional and
Public Duties
X. Judges
78
B. Terminating a ClientLawyer Relationship
Rule 1.16:Declining or Terminating
Representation
Rule 1.17:Sale of Law Practice
with the client and with the client’s consent, can limit the scope of
the representation [MR 1.2(c)].
(2) A lawyer and a client may agree to limit the scope of the representation if the limitation is reasonable under the circumstances [Id.].
EXAMPLE: A client wishes to obtain a variance from the zoning
laws. The attorney and client agree that the attorney will only attempt to obtain the variance at the local board of zoning appeals
and that if she is unsuccessful, no court appeal will be taken.
Under those circumstances, the attorney would not be required
to continue the representation through a court appeal if the client
changed his mind and requested the attorney to take the appeal.
(3) A limitation on the scope of representation would not be considered reasonable if the time allotted by the lawyer to handle the
matter was not sufficient to yield advice upon which the client
could rely [MR 1.2, cmt. [7]].
(a) Although an agreement for a limited representation does not
exempt a lawyer from the duty to provide competent representation, the limitation is a factor to be considered when
determining the legal knowledge, skill, thoroughness, and
preparation reasonably necessary for the representation [Id.].
b. Representation within the Bounds of Law
(1) A lawyer may not counsel a client to engage, or assist a client to
engage, in criminal or fraudulent conduct [MR 1.2(d)].
(2) However, a lawyer may discuss the legal consequences of any
proposed course of conduct and may counsel or assist a client
to make a good-faith effort to determine the validity, scope,
meaning, or application of the law [Id.].
(a) The fact that the client uses the lawyer’s advice in a criminal or
fraudulent course of conduct does not make the lawyer a party
to the course of action, as long as the lawyer has not assisted
the client in committing the crime or fraud [MR 1.2, cmt. [9]].
EXAMPLE: Jacob is on trial for spousal battery. He asks his
lawyer, Sam, what would happen “hypothetically” if he were to
say (untruthfully) on the witness stand that he was out of town
when his wife was hurt. Sam should instruct Jacob that lying
on the stand would constitute the crime of perjury, which is a
felony. Sam cannot assist Jacob by allowing him to so testify.
(3)
If the lawyer becomes aware of the client’s fraudulent or criminal course
of action, the lawyer must avoid assisting the client [MR 1.2, cmt. [10]].
(4) A lawyer may not continue assisting a client in conduct that the
lawyer originally believed to be legally proper but then discovers
is criminal or fraudulent. The lawyer must withdraw from the
representation of the client [Id.].
79
OUTLINE
I.Regulation
of Lawyers
Rule 1.2: Scope of Representation
and Allocation of Authority
II. Getting Clients
A. Defining the ClientLawyer Relationship
Rule 1.14:Client with Diminished Capacity
Rule 1.5: Fees
III. Client-Lawyer Basics
IV. Duties to Clients
V. Client Confidentiality
VI. Conflicts of Interest
VII.Duties to Tribunal
and Opposing Parties
VIII.Duties to Non-Clients
IX. Professional and
Public Duties
X. Judges
80
B. Terminating a ClientLawyer Relationship
Rule 1.16:Declining or Terminating
Representation
Rule 1.17:Sale of Law Practice
(a) The lawyer is not permitted to reveal the client’s wrongdoing,
except where permitted by Rule 1.6. However, the lawyer
is required to avoid furthering the purpose, for example, by
suggesting how it might be concealed.
(b) It is possible that withdrawal alone may be insufficient. It may be
necessary for the lawyer to give notice of withdrawal and disaffirm
any opinion, document, or affirmation that was unknowingly put
forth by the lawyer in the belief that they were legally proper [Id.].
(c) In extreme cases, substantive law might require a lawyer to
disclose information relating to the representation to avoid
being deemed to have assisted the client’s crime or fraud.
(d) When a lawyer knows that a client expects assistance not
permitted by the Rules or other law, the lawyer must consult
with the client regarding the relevant limitations on the
lawyer’s conduct [MR 1.2, cmt. [13]].
3. Client with Diminished Capacity
a. When a client has diminished capacity to make decisions regarding
the representation because of minority, mental impairment, or other
reason, the lawyer should strive to maintain a normal client-lawyer relationship with the client as far as reasonably possible [MR 1.14(a)].
(1) The lawyer has the same obligation to treat the client with attention and respect and should, as far as possible, accord the
represented person the status of client, particularly in maintaining
communication [MR 1.14, cmt. [2]].
(2) If the person has no guardian or legal representative, the lawyer
often must act de facto as guardian.
(3) When a legal representative has been appointed by the client, the
lawyer will ordinarily look to the representative for decisions on
behalf of the client [MR 1.14, cmt. [4]]. If a legal representative has
not been appointed, the lawyer should see to such an appointment
where it would serve the client’s best interests [MR 1.14, cmt. [7]].
EXAMPLE: If a disabled client has substantial property that should
be sold for the client’s benefit, effective completion of the transaction ordinarily requires appointment of a legal representative [Id.].
(4)
In many circumstances, however, appointment of a legal representative
may be expensive or traumatic for the client. Evaluation of these considerations is a matter of professional judgment on the lawyer’s part [Id.].
(5) If the lawyer represents the guardian as distinct from the ward,
and learns that the guardian is acting adversely to the ward’s
interests, the lawyer may have an obligation to prevent or rectify
the misconduct [MR 1.14, cmt. [4]].
b. Taking Protective Action
(1) The lawyer may take reasonably necessary protective action,
including consulting with others who have the ability to take
81
OUTLINE
I.Regulation
of Lawyers
Rule 1.2: Scope of Representation
and Allocation of Authority
II. Getting Clients
A. Defining the ClientLawyer Relationship
Rule 1.14:Client with Diminished Capacity
Rule 1.5: Fees
III. Client-Lawyer Basics
IV. Duties to Clients
V. Client Confidentiality
VI. Conflicts of Interest
VII.Duties to Tribunal
and Opposing Parties
VIII.Duties to Non-Clients
IX. Professional and
Public Duties
X. Judges
82
B. Terminating a ClientLawyer Relationship
Rule 1.16:Declining or Terminating
Representation
Rule 1.17:Sale of Law Practice
action to protect the client or seeking the appointment of a
guardian ad litem, conservator, or guardian, when the lawyer
reasonably believes that the client has diminished capacity and
cannot adequately act in the client’s own interests [MR 1.14(b)].
(2) If the lawyer seeks the appointment of a legal representative for
the client, the lawyer is impliedly authorized to make the necessary disclosures, even when the client directs the lawyer to the
contrary [MR 1.14(c)].
(a) Nevertheless, given the risks of disclosure, the lawyer may
only disclose information about the client to the extent
reasonably necessary to protect the client’s interests when
consulting with other individuals or entities or seeking the
appointment of a legal representative [MR 1.14, cmt. [8]].
(3) The lawyer should determine whether it is likely that the person or
entity consulted will act adversely to the client’s interests before
discussing matters related to the client [Id.].
c. Disclosure of the Client’s Condition
(1) Rules of procedure in litigation generally provide that minors or persons
suffering mental disability must be represented by a guardian or next
friend if they do not have a general guardian [MR 1.14, cmt. [7]].
(2) However, disclosure of the client’s disability can adversely affect
the client’s interests [MR 1.14, cmt. [8]].
(3) For example, raising the question of diminished capacity could, in some
circumstances, lead to proceedings for involuntary commitment [Id.].
4. Reasonable Fee Arrangements
a. A lawyer cannot charge unreasonable fees. Rule 1.5(a) sets forth
eight factors to consider in determining whether a fee is reasonable,
including [MR 1.5(a)]:
(1) the time and labor required, the novelty and difficulty of the questions
involved, and the skill requisite to perform the legal service properly;
(2) the likelihood that acceptance of this representation will preclude
the lawyer from accepting other employment;
(3) the customary fee in the locale for this kind of work;
(4) the amount involved and results obtained;
(5) the time limitations imposed by the client or by the circumstances;
(6) the nature and length of the professional relationship with the client;
(7) the lawyer’s experience, reputation, and ability; and
(8) whether the fee is fixed or contingent.
b. Contingent Fees
(1) A contingent fee requires the client to pay a fee (or a bonus)
only if there is a favorable outcome [MR 1.5(c)].
(2) A contingent fee agreement must be in writing and must state the
method by which the fee is to be determined [Id.].
83
OUTLINE
I.Regulation
of Lawyers
Rule 1.2: Scope of Representation
and Allocation of Authority
II. Getting Clients
A. Defining the ClientLawyer Relationship
Rule 1.14:Client with Diminished Capacity
Rule 1.5: Fees
III. Client-Lawyer Basics
IV. Duties to Clients
V. Client Confidentiality
VI. Conflicts of Interest
VII.Duties to Tribunal
and Opposing Parties
VIII.Duties to Non-Clients
IX. Professional and
Public Duties
X. Judges
84
B. Terminating a ClientLawyer Relationship
Rule 1.16:Declining or Terminating
Representation
Rule 1.17:Sale of Law Practice
(a) The writing must include the method of fee calculation, and indicate court fees and other costs to be paid by the client [Id.].
(3) Advancing Court Costs
(a) A lawyer may advance court costs and other expenses of
litigation, the repayment of which may be contingent on the
outcome of the matter [MR 1.8(e)(1)].
1) Under such an arrangement, if the client loses the case,
the lawyer absorbs the costs and expenses.
(b) A lawyer representing an indigent client may pay court costs
and expenses of litigation on behalf of the client [MR 1.8(e)(2)].
(4) Upon conclusion of a contingent fee matter, the lawyer must
provide the client with a written statement stating the outcome of
the matter and, if there is a recovery, showing the remittance to
the client and the method of its determination [MR 1.5(c)].
(5) Contingent fees are not permitted in domestic relations matters
where the payment, or amount thereof, is contingent upon the
securing of a divorce, or upon the amount of alimony, support,
or a property settlement. Contingent fees are also prohibited
when representing a defendant in a criminal case [MR 1.5(d)].
c. Division of Fees Between Lawyers
(1) A fee can be divided between lawyers who are not in the same
firm only if [MR 1.5(e)]:
(a) the division is in proportion to the services performed by
each lawyer or each lawyer assumes joint responsibility for
the representation;
(b) the client agrees to the arrangement in writing; and
(c) the total fee is reasonable.
(2) This arrangement facilitates the association of more than one lawyer in
a matter in which neither alone could serve the client [MR 1.5, cmt. [7]].
(a) The division of fees is most often used in contingent fee
cases in which the division is between a referring lawyer and
a trial specialist [Id.].
(3) The lawyers are jointly responsible for financial and ethical
responsibility for the representation as if the lawyers were associated in a partnership [Id.].
d. Fee Agreements
(1) A lawyer must explain to new clients the fee and how it will be
calculated, preferably in writing, before or within a reasonable
time after the representation begins [MR 1.5(b)].
(a) The lawyer must also promptly communicate any fee
changes to the client [Id.].
(2) Any expenses for which the client will be charged must also be
reasonable [MR 1.5(a)].
85
OUTLINE
I.Regulation
of Lawyers
Rule 1.2: Scope of Representation
and Allocation of Authority
II. Getting Clients
A. Defining the ClientLawyer Relationship
Rule 1.14:Client with Diminished Capacity
Rule 1.5: Fees
III. Client-Lawyer Basics
IV. Duties to Clients
V. Client Confidentiality
VI. Conflicts of Interest
VII.Duties to Tribunal
and Opposing Parties
VIII.Duties to Non-Clients
IX. Professional and
Public Duties
X. Judges
86
B. Terminating a ClientLawyer Relationship
Rule 1.16:Declining or Terminating
Representation
Rule 1.17:Sale of Law Practice
(a) A lawyer can seek reimbursement for the cost of services
or expenses, such as copying or telephone charges,
either by charging a reasonable amount to which the
client has agreed to in advance, or by charging an amount
that reasonably reflects the cost incurred by the lawyer
[MR 1.5, cmt. [1]].
(3) When developments occur during the representation that render
an earlier estimate substantially inaccurate, such as changed
circumstances or other good cause, a revised estimate should be
provided to the client.
(4) 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 would likely be required, unless
he adequately explains the situation to the client. Otherwise, the
client would have to bargain for further assistance in the midst of
a proceeding or transaction [MR 1.5, cmt. [5]].
(5) A lawyer should not establish a fee arrangement that may put
the client at a disadvantage if circumstances change during the
course of the representation.
(a) A modification of a fee agreement during the course of the
representation presumptively shows fraud by the attorney,
unless the client consents to the change based on full disclosure and adequate consideration.
e. Retainers
(1) A lawyer may collect a fee in advance in the form of a retainer, but
unless the advance payment is a true retainer to reserve services,
the lawyer must return any unearned portion [MR 1.5, cmt. [4]].
(a) If a lawyer, by agreeing to represent a client, has foreclosed
himself from other valuable legal work, then he has the right
to ask for a nonrefundable retainer.
1) This arrangement is reasonable as long as the attorney
clearly explains to the client that the retainer is nonrefundable.
(b) Courts are increasingly invalidating nonrefundable retainers
as violative of public policy and Rule 1.16(d), which
requires the lawyer, upon termination of representation,
to refund any advance payment of fee that has not been
earned [MR 1.16(d)].
1) The concern is that a nonrefundable retainer may interfere with the client’s right to discharge the lawyer.
f. A lawyer may collect a fee through a credit card or by arranging a bank
loan for a client.
(1) The lawyer may take an interest-bearing promissory note for a fee.
(2) If local law permits, a lawyer may obtain a lien upon a potential
recovery to secure the payment of a fee.
87
OUTLINE
I.Regulation
of Lawyers
Rule 1.2: Scope of Representation
and Allocation of Authority
II. Getting Clients
A. Defining the ClientLawyer Relationship
Rule 1.14:Client with Diminished Capacity
Rule 1.5: Fees
III. Client-Lawyer Basics
IV. Duties to Clients
V. Client Confidentiality
VI. Conflicts of Interest
VII.Duties to Tribunal
and Opposing Parties
VIII.Duties to Non-Clients
IX. Professional and
Public Duties
X. Judges
88
B. Terminating a ClientLawyer Relationship
Rule 1.16:Declining or Terminating
Representation
Rule 1.17:Sale of Law Practice
g. A lawyer may receive property as a payment for services, as long as
the payment does not involve acquisition of a proprietary interest in the
cause of action or subject matter of the litigation.
(1) However, a fee paid in property may be subject to additional scrutiny because such fees have the essential qualities of a business
transaction with the client [MR 1.5, cmt. [4]].
EXAMPLE: Susan needs help with a real estate transaction. She
is buying a large farm and needs a lawyer to handle the closing.
However, she is using all of her money to buy the property. Albert
Attorney may accept an acre of the land she is buying as payment for his services.
h. Fee Disputes
(1) In the event of a fee dispute, a lawyer should consider submitting to
mediation or an established fee arbitration service [MR 1.5, cmt. [9]].
(2) The law may also prescribe a procedure for determining a
lawyer’s fee [Id.].
EXAMPLE: In representation of an executor or administrator, a
class or a person is entitled to a reasonable fee as part of the
measure of damages [Id.].
(a) The lawyer entitled to the fee and the lawyer representing
the other party concerned with the fee should comply with
the prescribed procedure [Id.].
B. Terminating a Client-Lawyer Relationship
1. In General
a. A lawyer’s representation of a client ordinarily continues until the
completion of the matter [MR 1.16, cmt. [1]].
b. However, there are two types of premature termination of the relationship: mandatory withdrawal and optional withdrawal.
c. Even if there is good cause to terminate the representation, the lawyer
may have to continue representing a client if ordered to do so by a
court [MR 1.16(c)].
(1) The court’s approval or notice will likely be required if the lawyer
is representing the client in pending litigation.
d. Upon terminating representation, the lawyer must take steps to protect
the client’s interests [MR 1.16(d)].
(1) The lawyer must give the client reasonable notice and time to
retain other counsel [Id.].
(2) The lawyer must also return client papers and any unearned
portion of prepaid fees [Id.].
(a) However, the lawyer may retain papers as security for a fee
only to the extent permitted by law [Id.].
89
OUTLINE
I.Regulation
of Lawyers
Rule 1.2: Scope of Representation
and Allocation of Authority
II. Getting Clients
A. Defining the ClientLawyer Relationship
Rule 1.14:Client with Diminished Capacity
Rule 1.5: Fees
III. Client-Lawyer Basics
IV. Duties to Clients
V. Client Confidentiality
VI. Conflicts of Interest
VII.Duties to Tribunal
and Opposing Parties
VIII.Duties to Non-Clients
IX. Professional and
Public Duties
X. Judges
90
B. Terminating a ClientLawyer Relationship
Rule 1.16:Declining or Terminating
Representation
Rule 1.17:Sale of Law Practice
(3) The lawyer’s duty of confidentiality continues after withdrawal
[MR 1.6, cmt. [20]].
(a) If a lawyer is asked by the court to explain a withdrawal that is
based on the client’s insistence on the performance of fraudulent conduct, the lawyer should merely state that professional
considerations or an irreconcilable conflict with the client
requires termination of employment [MR 1.16, cmt. [3]].
2. Mandatory Withdrawal
a. Withdrawal is mandated when [MR 1.16(a)]:
(1) the representation will result in violation of the law or the Rules;
(a) This most commonly occurs when the client insists upon
the lawyer’s participation in a course of fraudulent conduct.
(b) However, the client’s mere suggestion of fraudulent conduct
is not sufficient grounds for mandatory withdrawal because
the lawyer may be able to explain the ethical violation and
dissuade the client from his suggested course of conduct
[MR 1.16, cmt. [2]].
EXAMPLE: Clara orders Sharon to hide evidence from the
prosecution. Sharon refuses, but Clara insists. Sharon must withdraw in order to avoid violating both the Rules and criminal law.
(2) the lawyer’s physical or mental condition materially impairs his
ability to represent the client; or
(a) This ground for withdrawal may include problems with drugs,
alcohol, or depression.
(3) the lawyer is discharged.
(a) The attorney-client relationship is terminable at will by the
client, with or without cause, subject to liability for payment
for the lawyer’s services [MR 1.16, cmt. [4]].
EXAMPLE: Sharon represents Clara, a woman who has trouble getting along with people. One day, after Clara thinks Sharon looked at her in a funny way, Clara tells Sharon, “You’re
fired!” Even if she does not want to, Sharon must withdraw.
1) If the termination results in breach of contract, then the
attorney may be entitled to recover damages.
(b) If a client discharges appointed counsel, the appointing
authority may decide that a successor appointment is unjustified, leaving the client to represent himself. The client
should be warned of this potential consequence before
appointed counsel is discharged [MR 1.16, cmt. [5]].
3. Optional Withdrawal
a. A lawyer may withdraw from representation if [MR 1.16(b)]:
(1) withdrawal can be accomplished without material adverse effect
on the interests of the client;
91
OUTLINE
I.Regulation
of Lawyers
Rule 1.2: Scope of Representation
and Allocation of Authority
II. Getting Clients
A. Defining the ClientLawyer Relationship
Rule 1.14:Client with Diminished Capacity
Rule 1.5: Fees
III. Client-Lawyer Basics
IV. Duties to Clients
V. Client Confidentiality
VI. Conflicts of Interest
VII.Duties to Tribunal
and Opposing Parties
VIII.Duties to Non-Clients
IX. Professional and
Public Duties
X. Judges
92
B. Terminating a ClientLawyer Relationship
Rule 1.16:Declining or Terminating
Representation
Rule 1.17:Sale of Law Practice
(2) the client persists in a course of action involving the lawyer’s
services that the lawyer reasonably believes is a criminal or
fraudulent course of action;
(a) Note that this is different from when a lawyer furthers his
client’s crime or fraud, in which case withdrawal is mandatory.
(3) the client has used the lawyer’s services to perpetrate a crime or fraud;
(4) the client insists upon taking action that the lawyer considers
repugnant or with which the lawyer fundamentally disagrees;
(5) the client fails substantially to fulfill an obligation to the lawyer
regarding the lawyer’s services (e.g., fees) and has been given
reasonable warning that the lawyer will withdraw unless the obligation is fulfilled;
(6) the representation will result in an unreasonable financial
burden on the lawyer or has been rendered unreasonably difficult by the client; or
(a) The client’s refusal to accept the lawyer’s advice on questions,
such as whether the client should testify at trial or whether a
particular settlement offer should be accepted, is not a sufficient
ground for withdrawal when the withdrawal would harm the client.
(b) However, the client’s refusal to accept advice coupled with
threats and accusations against the lawyer may render the
representation “unreasonably difficult.”
(7) other good cause for withdrawal exists.
EXAMPLE: Jessica has represented Jonathan throughout his
civil case. The trial is a month away. She has not been paid for
months, and she has warned Jonathan she would withdraw if he
failed to bring his account current. She may withdraw, but must
seek permission of the tribunal to do so. She will be permitted
to withdraw only if Jonathan has adequate time to find another
lawyer to prepare for and represent him at trial.
4. Sale of Law Practice
a. A lawyer or a law firm may sell or buy a law practice, or an area of a
law practice, including goodwill, if the following conditions are satisfied
[MR 1.17(a)–(c)]:
(1) the seller ceases all private practice of law, or will no longer practice law in the same geographical and/or substantive area;
(2) the entire practice, or an entire area of the practice, is sold to one
or more lawyer(s) or group(s); and
(3) the seller notifies all clients in a writing that includes the
following information:
(a) the proposed sale;
(b) the client’s right to obtain other counsel or take possession
of his file; and
93
OUTLINE
I.Regulation
of Lawyers
Rule 1.2: Scope of Representation
and Allocation of Authority
II. Getting Clients
A. Defining the ClientLawyer Relationship
Rule 1.14:Client with Diminished Capacity
Rule 1.5: Fees
III. Client-Lawyer Basics
IV. Duties to Clients
V. Client Confidentiality
VI. Conflicts of Interest
VII.Duties to Tribunal
and Opposing Parties
VIII.Duties to Non-Clients
IX. Professional and
Public Duties
X. Judges
94
B. Terminating a ClientLawyer Relationship
Rule 1.16:Declining or Terminating
Representation
Rule 1.17:Sale of Law Practice
(c) notice that the client’s consent to the transfer of representation will be presumed if the client does not take any action or
object within 90 days of receipt of the notice.
1) If a client cannot be notified, his case will not be transferred to the new owner without a court order.
b. The fees charged to the clients cannot increase as a result of the
sale [MR 1.17(d)].
95
OUTLINE
I.Regulation
of Lawyers
Rule 1.1: Competence
A. Duty of Competence
Scope of Model Rules
Rule 1.8(h):Conflict of Interest:
Current Clients:
Specific Rules
II. Getting Clients
III. Client-Lawyer Basics
B. Duty of Diligence
Rule 1.3: Diligence
C. Duty of Communication
Rule 1.4: Communications
D. Safekeeping Client
Funds and Property
Rule 1.15:Safekeeping Property
IV. Duties to Clients
V. Client Confidentiality
VI. Conflicts of Interest
VII.Duties to Tribunal
and Opposing Parties
VIII.Duties to Non-Clients
IX. Professional and
Public Duties
Rule 1.13:Organization as Client
X. Judges
E. Special Cases
Rule 2.1: Advisor
Rule 2.3: Evaluation for Use
by Third Persons
96
IV. DUTIES TO CLIENTS
A. Duty of Competence
1. The Rules require a lawyer to provide competent representation to a
client [MR 1.1].
a. Competent representation requires the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation [Id.].
(1) In order to be competent, a lawyer must do factual and legal
research into a client’s problem [MR 1.1, cmt. [5]].
b. Fundamental skills necessary for competence include the ability to
analyze precedent, evaluate evidence, draft legal documents, and
identify legal issues and problems [MR 1.1, cmt. [2]].
c. Even newly admitted attorneys should have these skills.
d. A lawyer should always keep up-to-date about changes in the law
through continuing legal education and self-education [MR 1.1, cmt. [8]].
2. Sufficiency of a Lawyer’s Knowledge and Skills
a. Factors used to assess the sufficiency of a lawyer’s knowledge and
skill include [MR 1.1, cmt. [1]]:
(1) the relative complexity and specialized nature of the matter;
(2) the lawyer’s general experience;
(3) the lawyer’s training and experience in the field in question;
(4) the preparation and study the lawyer is able to give the matter; and
(5) whether it is feasible to refer the matter to, or associate or consult
with, a lawyer of established competence in the field.
b. In some cases, a lawyer need only have the knowledge of a general
practitioner in order to be competent [Id.].
c. A lawyer can provide adequate representation in a wholly novel field
through necessary study [MR 1.1, cmt. [2]].
3. In an emergency, a lawyer may give advice or assistance to a client in
need, even if he lacks the skill or knowledge ordinarily required, and referral
to or consultation with another lawyer is impractical [MR 1.1, cmt. [3]].
a. The lawyer should limit his emergency assistance to that reasonably
necessary under the circumstances [Id.].
4. If the lawyer is not competent to handle the representation, he may:
a. decline or withdraw from the representation;
b. take action to make himself competent to handle the representation; or
c. associate with competent counsel.
5. 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 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 [MR 1.1, cmt. [6]].
97
OUTLINE
I.Regulation
of Lawyers
Rule 1.1: Competence
A. Duty of Competence
Scope of Model Rules
Rule 1.8(h):Conflict of Interest:
Current Clients:
Specific Rules
II. Getting Clients
III. Client-Lawyer Basics
B. Duty of Diligence
Rule 1.3: Diligence
C. Duty of Communication
Rule 1.4: Communications
D. Safekeeping Client
Funds and Property
Rule 1.15:Safekeeping Property
IV. Duties to Clients
V. Client Confidentiality
VI. Conflicts of Interest
VII.Duties to Tribunal
and Opposing Parties
VIII.Duties to Non-Clients
IX. Professional and
Public Duties
Rule 1.13:Organization as Client
X. Judges
E. Special Cases
Rule 2.1: Advisor
Rule 2.3: Evaluation for Use
by Third Persons
98
6. The client’s consent to representation when an attorney is not competent
does not release the attorney from the duty of competence.
7. Civil Liability for Malpractice
a. A competent lawyer may nevertheless act incompetently in his representation of a client and be subject to civil liability for malpractice.
b. However, violation of a Rule does not automatically give rise to a cause
of action against a lawyer, nor does it create a presumption that a legal
duty has been breached [MR, Scope [20]].
c. Plaintiffs generally cannot base a cause of action on a lawyer’s violation of an ethical rule.
d. Although a violation of the Rules is not a basis for civil liability per
se, a violation may nonetheless be some evidence of an attorney’s
negligence in a malpractice suit brought under tort law principles
[MR, Scope [20]].
e. Even if the violation of a Rule is not negligence per se, courts may
allow expert testimony regarding the standards established by the
Rules in formulating the standard of care relevant to a particular
cause of action.
f. Attempts to Limit Malpractice Liability
(1) A lawyer cannot make an agreement prospectively limiting his
liability to a client for malpractice unless the client is independently represented in making the agreement [MR 1.8(h)(1)].
(2) The lawyer cannot settle a claim or potential claim for such
liability with an unrepresented client or former client unless that
person is advised in writing of the desirability of seeking, and is
given a reasonable opportunity to seek, the advice of independent legal counsel in connection with the matter [MR 1.8(h)(2)].
EXAMPLE: Frank needs a lawyer to help him in his custody
battle with his ex-wife, but all the family law lawyers in his locale
charge more than he can afford. Maria, fresh out of law school,
offers to help him for a very low price, but in exchange, she requires him to agree not to sue her for malpractice if she makes a
mistake. Frank must retain another lawyer to advise him whether
to accept Maria’s offer.
g. Malpractice Insurance
(1) Legal malpractice actions are now standard throughout the
profession; therefore, many lawyers carry malpractice insurance.
(2) In 2004, the ABA adopted a model court rule regarding insurance
disclosure, suggesting that lawyers engaged in private practice
of law certify to the highest court in the jurisdiction whether the
lawyer is currently covered by professional liability insurance and
whether the lawyer intends to maintain carrying the insurance
during the period of time the lawyer is engaged in the private
practice of law [ABA Model Court Rule on Insurance Disclosure].
99
OUTLINE
I.Regulation
of Lawyers
Rule 1.1: Competence
A. Duty of Competence
Scope of Model Rules
Rule 1.8(h):Conflict of Interest:
Current Clients:
Specific Rules
II. Getting Clients
III. Client-Lawyer Basics
B. Duty of Diligence
Rule 1.3: Diligence
C. Duty of Communication
Rule 1.4: Communications
D. Safekeeping Client
Funds and Property
Rule 1.15:Safekeeping Property
IV. Duties to Clients
V. Client Confidentiality
VI. Conflicts of Interest
VII.Duties to Tribunal
and Opposing Parties
VIII.Duties to Non-Clients
IX. Professional and
Public Duties
Rule 1.13:Organization as Client
X. Judges
E. Special Cases
Rule 2.1: Advisor
Rule 2.3: Evaluation for Use
by Third Persons
100
(3) Although Oregon is the only state that requires lawyers to have
malpractice insurance, a number of states require a lawyer to
disclose their insurance status (insured or uninsured) to the state
bar, the highest court in the jurisdiction, or directly to the client.
Currently, only seven states (Alaska, California, New Hampshire,
New Mexico, Ohio, Pennsylvania and South Dakota) require
disclosure of a lawyer’s insurance status directly to the client
[ABA Standing Committee on Client Protection, 2011].
B. Duty of Diligence (Zealous Representation)
1. A lawyer must act with reasonable diligence and promptness in representing a client [MR 1.3].
a. A lawyer should act with commitment and dedication to the interests of the client and with zeal in advocacy upon the client’s behalf
[MR 1.3, cmt. [1]].
b. However, a lawyer is not bound to press for every advantage that might
be realized for a client and will have discretion regarding the means by
which a matter should be pursued [Id.].
c. A lawyer’s duty to act with reasonable promptness, however, does not
preclude the lawyer from agreeing to a reasonable request for a postponement that will not prejudice his client [MR 1.3, cmt. [3]].
2. A lawyer should especially attend to [MR 1.3, cmts. [2]-[4]]:
a. controlling his workload;
b. avoiding unreasonable delay and procrastination;
c. filing within the statutes of limitations; and
d. carrying representation through to completion and ensuring clients
know when representation has ended.
C. Duty of Communication
1. In communicating with clients, lawyers must [MR 1.4(a)]:
a. keep the client promptly informed of any decision or circumstance to
which the client must provide informed consent;
b. reasonably consult with the client about means by which to accomplish
the client’s objectives;
c. keep the client reasonably informed about the status of the matter;
d. promptly comply with reasonable requests for information; and
e. consult with the client about any limitations of the lawyer’s conduct
when the lawyer is aware that the client expects assistance not authorized by the Rules.
EXAMPLE: Sydney’s divorce has been pending in family court for
many months. Sydney calls her lawyer, James, to ask what is happening with the case. James should investigate (e.g., call the court, communicate with opposing counsel) and promptly return Sydney’s call.
101
OUTLINE
I.Regulation
of Lawyers
Rule 1.1: Competence
A. Duty of Competence
Scope of Model Rules
Rule 1.8(h):Conflict of Interest:
Current Clients:
Specific Rules
II. Getting Clients
III. Client-Lawyer Basics
B. Duty of Diligence
Rule 1.3: Diligence
C. Duty of Communication
Rule 1.4: Communications
D. Safekeeping Client
Funds and Property
Rule 1.15:Safekeeping Property
IV. Duties to Clients
V. Client Confidentiality
VI. Conflicts of Interest
VII.Duties to Tribunal
and Opposing Parties
VIII.Duties to Non-Clients
IX. Professional and
Public Duties
Rule 1.13:Organization as Client
X. Judges
E. Special Cases
Rule 2.1: Advisor
Rule 2.3: Evaluation for Use
by Third Persons
102
2. A lawyer must explain a matter to the extent reasonably necessary to permit
the client to make informed decisions about the representation [MR 1.4(b)].
3. In some circumstances, a lawyer may be justified in delaying transmission
of information when the client would be likely to react imprudently to an
immediate communication (e.g., when disclosing a psychiatric diagnosis of
a client would harm the client) [MR 1.4, cmt. [7]].
a. However, a lawyer may not withhold information to serve the interest or
convenience of the lawyer [Id.].
D. Safekeeping Client Funds and Property
1. Establishing and Maintaining Client Trust Accounts
a. In general, a lawyer must hold funds and property of clients or third
persons separate from the lawyer’s own property [MR 1.15(a)].
(1) However, a lawyer may deposit his own funds in a client trust
account, but only up to the amount necessary to pay bank service
charges [MR 1.15(b)].
b. Complete records of all account funds and property must be kept by
the lawyer for five years after representation [MR 1.15(a)].
c. A lawyer must deposit into the client trust account all prepaid legal fees
and expenses that have been paid in advance [MR 1.15(c)].
d. The lawyer may withdraw from the client trust account only fees earned
or expenses incurred [Id.].
e. Generally, a lawyer is under no duty to place client funds in an interestbearing account, but if a client account earns interest, the lawyer may not
retain the amount earned in interest without the client’s informed consent.
(1) If the funds are to be held in trust, then fiduciary management
principles apply.
(a) If the trust funds are to be kept for a very short time, the
funds may be placed in a non-interest-bearing account.
(b) If the funds are to be kept for a longer period, then the funds
should be placed in an interest-bearing account with the
client receiving the interest.
f. To avoid difficulties in accounting for small amounts of interest on
interest-bearing accounts, states have established Interest on Lawyer
Trust Account (“IOLTA”) plans, whereby the interest on clients’
accounts is paid into a special fund that uses the money for purposes
such as the provision of legal services to low-income recipients.
2. Safekeeping Property of Clients and Third Persons
a. Upon receiving funds or other property in which a client or third person has an
interest, the lawyer must promptly notify the client or third person [MR 1.15(d)].
(1) A lawyer must promptly deliver to the client or third person any
funds or other property that the client or third person is entitled
to receive and, upon request by the client or third person, must
promptly render a full accounting regarding such property [Id.].
103
OUTLINE
I.Regulation
of Lawyers
Rule 1.1: Competence
A. Duty of Competence
Scope of Model Rules
Rule 1.8(h):Conflict of Interest:
Current Clients:
Specific Rules
II. Getting Clients
III. Client-Lawyer Basics
B. Duty of Diligence
Rule 1.3: Diligence
C. Duty of Communication
Rule 1.4: Communications
D. Safekeeping Client
Funds and Property
Rule 1.15:Safekeeping Property
IV. Duties to Clients
V. Client Confidentiality
VI. Conflicts of Interest
VII.Duties to Tribunal
and Opposing Parties
VIII.Duties to Non-Clients
IX. Professional and
Public Duties
Rule 1.13:Organization as Client
X. Judges
E. Special Cases
Rule 2.1: Advisor
Rule 2.3: Evaluation for Use
by Third Persons
104
b. The lawyer must also safeguard, and account for, client property that
is not cash.
(1) Property must be kept safe.
(2) Securities should be kept in a safe-deposit box.
(3) When a lawyer receives property belonging to others, he must
promptly notify the client or the third person. Unless permitted by
the Rules or by agreement, the lawyer must promptly deliver the
property to the person entitled to receive it [Id.].
3. Disputed Claims to Client’s Funds or Property
a. When two or more persons (one of whom may be the lawyer) claim
interest in the client’s property, the lawyer must keep it separate until
the dispute is resolved [MR 1.15(e)].
(1) However, the lawyer must promptly distribute all portions of the
property that are not in dispute [Id.].
EXAMPLE: Patrick’s lawyer, Susan, received a settlement check
for $100,000 in Patrick’s case and deposited it in the trust account. Their fee agreement provided that she would get 45% of
any recovery. Susan tells Patrick she’s sending him a check for
$55,000. Patrick replies that she fraudulently induced him to sign
the agreement and told him he’d never have to pay 45%. He says
she should get no more than 25%. Susan must promptly send
Patrick $55,000; take $25,000 out of the trust account and deposit it in her personal account; and leave the remaining $20,000
in the trust account, as that amount is in dispute.
b. A lawyer owes a duty not only to the client, but also to third parties with legitimate interests, such as a client’s creditor who has a lien on funds recovered
in a personal injury action and placed in the lawyer’s trust account. A lawyer
should protect third-party claims against wrongful interference by the client
and not disburse money to the client unless sufficient funds remain to satisfy
the lien claim. Under such circumstances, when the third person’s claim is
not frivolous under applicable law, the lawyer must refuse to surrender the
property to the client until the claims are resolved [MR 1.15, cmt. [4]].
E. Special Cases
1. The Business Organization as the Client
a. A lawyer employed or retained by an organization represents the organization as distinct from its directors, officers, employees, members,
shareholders, or other constituents [MR 1.13(a)].
(1) Other constituents means the positions equivalent to officers,
directors, employees, and shareholders held by persons acting for
organizational clients that are not corporations [MR 1.13, cmt. [1]].
(2) In transactions between an organization and its lawyer, the
client-lawyer relationship is maintained through the constituents
of the organization.
105
OUTLINE
I.Regulation
of Lawyers
Rule 1.1: Competence
A. Duty of Competence
Scope of Model Rules
Rule 1.8(h):Conflict of Interest:
Current Clients:
Specific Rules
II. Getting Clients
III. Client-Lawyer Basics
B. Duty of Diligence
Rule 1.3: Diligence
C. Duty of Communication
Rule 1.4: Communications
D. Safekeeping Client
Funds and Property
Rule 1.15:Safekeeping Property
IV. Duties to Clients
V. Client Confidentiality
VI. Conflicts of Interest
VII.Duties to Tribunal
and Opposing Parties
VIII.Duties to Non-Clients
IX. Professional and
Public Duties
Rule 1.13:Organization as Client
X. Judges
E. Special Cases
Rule 2.1: Advisor
Rule 2.3: Evaluation for Use
by Third Persons
106
b. Illegal or Injurious Conduct
NOTE Rules 1.13 and 1.6(b), as discussed below, reflect changes adopted by the
ABA after the Sarbanes-Oxley Act was enacted in 2002.
(1) When the lawyer knows that the organization is likely to be substantially injured by an action of an officer or other constituent that violates
a legal obligation to the organization or is in violation of law and might
be imputed to the organization, the lawyer must proceed as is reasonably necessary in the best interests of the organization [MR 1.13(b)].
(2) Knowledge can be inferred from circumstances, and a lawyer
cannot ignore the obvious [MR 1.13, cmt. [3]].
(3) In determining how to proceed, the lawyer must give due consideration to the seriousness of the violation and its consequences, the
scope and nature of the lawyer’s representation, the responsibility
in the organization, the apparent motivation of the person involved,
the policies of the organization concerning such matters, and any
other relevant considerations [MR 1.13, cmt. [4]].
(4) Any measures taken must be designed to minimize the risk of
revealing information relating to the representation to persons
outside the organization [Id.].
(5) Such measures may include, among others [Id.]:
(a) requesting reconsideration of the matter; and
(b) referring the matter to higher authority in the organization.
(6) If, despite the attorney’s reporting “up the ladder,” the highest authority
that can act on behalf of the organization insists upon action that is
clearly illegal and reasonably certain to result in substantial injury to
the organization, fails to address the matter in a timely and appropriate
manner, or refuses to act, the lawyer may take further remedial action
that is reasonably believed to be in the organization’s best interests.
(a) Such action may include revealing information relating to the
representation, whether or not Rule 1.6 permits such disclosure, but only if and to the extent the lawyer reasonably
believes that [MR 1.13(c)]:
1) despite the lawyer’s efforts, the highest authority insists
upon or fails to address in a timely and appropriate
manner an action, or a refusal to act, that is clearly a
violation of law, and
2) the violation is reasonably certain to result in substantial
injury to the organization.
(b) If a lawyer is discharged because of the lawyer’s actions
taken pursuant to the Rules, or if the lawyer withdraws under
circumstances that require or permit him to take action, the
lawyer should inform the organization’s highest authority of
the lawyer’s discharge or withdrawal [MR 1.13(e)].
107
OUTLINE
I.Regulation
of Lawyers
Rule 1.1: Competence
A. Duty of Competence
Scope of Model Rules
Rule 1.8(h):Conflict of Interest:
Current Clients:
Specific Rules
II. Getting Clients
III. Client-Lawyer Basics
B. Duty of Diligence
Rule 1.3: Diligence
C. Duty of Communication
Rule 1.4: Communications
D. Safekeeping Client
Funds and Property
Rule 1.15:Safekeeping Property
IV. Duties to Clients
V. Client Confidentiality
VI. Conflicts of Interest
VII.Duties to Tribunal
and Opposing Parties
VIII.Duties to Non-Clients
IX. Professional and
Public Duties
Rule 1.13:Organization as Client
X. Judges
E. Special Cases
Rule 2.1: Advisor
Rule 2.3: Evaluation for Use
by Third Persons
108
c. Representation of Organization’s Other Employees
(1) A lawyer for an organization may also represent any of its directors, officers, employees, members, shareholders or other
constituents if there is no conflict of interest [MR 1.13(g)].
(2) If the organization’s consent to the dual representation is required
by Rule 1.7, the consent must be given by an appropriate official
of the organization other than the individual who is to be represented, or by the shareholders [Id.].
EXAMPLE: Jennifer represents BigCorp, a software manufacturer, on various corporate and litigation matters. Jason, a
software engineer at BigCorp, approaches Jennifer and asks
her to represent him in an action against his former wife for
child custody. If she is competent to handle such a matter and
an appropriate official (other than Jason) or the shareholders approve the dual representation, Jennifer may accept the
representation.
d. Derivative Actions
(1) The shareholders or members of a corporation may bring suit
to compel the directors to perform their legal obligations in the
supervision of the organization [MR 1.13, cmt. [13]].
(2) Members of unincorporated associations have the same right [Id.].
(3) Such an action may be brought nominally by the organization, but
usually is, in fact, a legal controversy over management of the
organization [Id.].
(4) Typically, an organization’s lawyer will defend a derivative action
like any other suit [MR 1.13, cmt. [14]].
(5) However, when the claim involves serious charges of wrongdoing
by those in control of the organization, there may be a conflict
between the lawyer’s duty to the organization and his relationship with the board. In this case, Rule 1.7 will govern who should
represent the directors and the organization [Id.].
e. Adversity of Interest Between Organization and Constituent
(1) In case of any misunderstanding when dealing with an organization’s directors, officers, employees, members, shareholders, or
other constituents, the lawyer must explain that the organization
itself is the client [MR 1.13(f)].
(2) The lawyer should take steps necessary to ensure that the individual understands that, when there is such adversity of interest,
the lawyer for the organization cannot provide legal representation for that constituent individual, and that discussions between
the lawyer for the organization and the individual may not be
privileged [MR 1.13, cmt. [10]].
(3) Whether or not the lawyer for an organization must issue this warning
depends on the facts of the particular case [MR 1.13, cmt. [11]].
109
OUTLINE
I.Regulation
of Lawyers
Rule 1.1: Competence
A. Duty of Competence
Scope of Model Rules
Rule 1.8(h):Conflict of Interest:
Current Clients:
Specific Rules
II. Getting Clients
III. Client-Lawyer Basics
B. Duty of Diligence
Rule 1.3: Diligence
C. Duty of Communication
Rule 1.4: Communications
D. Safekeeping Client
Funds and Property
Rule 1.15:Safekeeping Property
IV. Duties to Clients
V. Client Confidentiality
VI. Conflicts of Interest
VII.Duties to Tribunal
and Opposing Parties
VIII.Duties to Non-Clients
IX. Professional and
Public Duties
Rule 1.13:Organization as Client
X. Judges
E. Special Cases
Rule 2.1: Advisor
Rule 2.3: Evaluation for Use
by Third Persons
110
2. Lawyer as Advisor
a. A client is entitled to straightforward, honest advice, even if such advice
involves unpleasant facts and alternatives that a client may not want to
confront [MR 2.1, cmt. [1]].
EXAMPLE: A lawyer might be forced to advise a client that her business is hopelessly insolvent and that she should file for protection of
the bankruptcy court.
b. In representing a client, a lawyer must exercise independent professional judgment and render candid advice. In rendering advice, a
lawyer may refer not only to law but also to other considerations such
as moral, economic, social, and political factors that may be relevant to
the client’s situation [MR 2.1].
(1) Purely technical legal advice may, at times, be inadequate.
Therefore, it is appropriate for a lawyer to refer to relevant moral
and ethical considerations in giving advice [MR 2.1, cmt. [2]].
(2) However, if the client expressly or impliedly asks for purely technical advice, and the client is experienced in legal matters, the
lawyer may accept it at face value [MR 2.1, cmt. [3]].
(3) When the client is inexperienced, the lawyer may need to
indicate that more may be involved than strictly legal considerations [Id.].
c. If the advice of a professional in another field is required, the lawyer
should advise the client to seek such other advice. If the other professionals provide conflicting recommendations, the lawyer will often provide
a final recommendation as to a course of action [MR 2.1, cmt. [4]].
d. While a lawyer is generally not expected to give advice until asked by
the client, the lawyer may initiate advice when doing so appears to be
in the client’s best interests [MR 2.1, cmt. [5]].
3. Lawyer as Evaluator
a. A lawyer may provide an evaluation of a matter affecting a client for the
use of a third person if the lawyer reasonably believes that making the
evaluation is compatible with other aspects of the lawyer’s relationship
with the client [MR 2.3(a)].
(1) The lawyer must be satisfied as a matter of professional judgment that making the evaluation is compatible with other functions undertaken on behalf of the client [MR 2.3, cmt. [3]].
(2) Assuming there is no incompatibility, the lawyer should advise the
client of the implications of the evaluation, including the lawyer’s
duty to third persons [Id.].
b. When the lawyer knows or reasonably should know that the evaluation is likely to affect the client’s interests materially and adversely, the
lawyer may not provide the evaluation unless the client gives informed
consent [MR 2.3(b)].
111
OUTLINE
I.Regulation
of Lawyers
Rule 1.1: Competence
A. Duty of Competence
Scope of Model Rules
Rule 1.8(h):Conflict of Interest:
Current Clients:
Specific Rules
II. Getting Clients
III. Client-Lawyer Basics
B. Duty of Diligence
Rule 1.3: Diligence
C. Duty of Communication
Rule 1.4: Communications
D. Safekeeping Client
Funds and Property
Rule 1.15:Safekeeping Property
IV. Duties to Clients
V. Client Confidentiality
VI. Conflicts of Interest
VII.Duties to Tribunal
and Opposing Parties
VIII.Duties to Non-Clients
IX. Professional and
Public Duties
Rule 1.13:Organization as Client
X. Judges
E. Special Cases
Rule 2.1: Advisor
Rule 2.3: Evaluation for Use
by Third Persons
112
c. Except as disclosure is required in connection with a report of an
evaluation, information relating to the evaluation is otherwise protected
by the duty of confidentiality [MR 2.3(c)].
(1) In many cases, providing an evaluation to a third party poses no
significant risk to the client, and the lawyer is impliedly authorized
to disclose information as necessary to carry out the representation [MR 2.3, cmt. [5]].
(2) Where, however, it is reasonably likely that providing the evaluation will affect the client’s interests materially and adversely, the
lawyer must first obtain the client’s consent after the client has
been adequately informed concerning the important possible
effects on the client’s interests [Id.].
(3) A lawyer should also advise the client if the rendering of such an evaluation will create a duty for the lawyer to a third party [MR 2.3, cmt. [3]].
d. Common examples of an evaluation made for a third party include
[MR 2.3, cmt. [1]]:
(1) an opinion concerning the title of property rendered at the behest
of a vendor or borrower for the information of a prospective
purchaser or lender; or
(2) an opinion concerning the legality of securities registered for sale
under the securities laws.
e. When the lawyer is retained by the person whose affairs are being
examined, the general Rules concerning client loyalty and confidences
apply [MR 2.3, cmt. [2]].
(1) However, when a lawyer is retained by someone else, no clientlawyer relationship is formed with the person whose affairs are
being examined, and the Rules regarding client loyalty and confidences do not apply [Id.].
f. When a client’s financial auditor contacts the lawyer regarding the
client’s legal situation, the lawyer may respond in accordance with
procedures recognized in the legal profession (e.g., the applicable ABA
policy statement) [MR 2.3, cmt. [6]].
113
OUTLINE
I.Regulation
of Lawyers
II. Getting Clients
III. Client-Lawyer Basics
A. Duty of Confidentiality
Rule 1.6: Confidentiality of Information
Rule 1.9: Duties to Former Clients
IV. Duties to Clients
V. Client Confidentiality
B. Attorney-Client Privilege
Attorney-Client Evidentiary Privilege
C. Work-Product Doctrine
Federal Rules of Civil Procedure
VI. Conflicts of Interest
VII.Duties to Tribunal
and Opposing Parties
VIII.Duties to Non-Clients
IX. Professional and
Public Duties
X. Judges
114
V. CLIENT CONFIDENTIALITY
A. Duty of Confidentiality
1. Generally, a lawyer cannot reveal information relating to the representation of
a client, including information protected by the attorney-client privilege under
applicable law, unless the client gives informed consent or the disclosure is
impliedly authorized in order to carry out the representation [MR 1.6(a)].
a. This obligation includes disclosures that do not in themselves reveal
protected information but could reasonably lead to the discovery of
such information by a third person [MR 1.6, cmt. [4]].
2. The purpose of this Rule is to contribute to the trust that is the hallmark of
the lawyer-client relationship, which encourages clients to seek legal assistance and to communicate openly with their lawyers [MR 1.6, cmt. [2]].
3. The duty of confidentiality differs from the attorney-client privilege in that it
applies not only to matters communicated in confidence by the client, but also to
all information relating to the representation from any source [MR 1.6, cmt. [3]].
a. This also includes information acquired before the lawyer was retained
that relates to the representation.
4. The duty of confidentiality continues after the termination of the lawyerclient relationship [MR 1.6, cmt. [20]].
5. Disclosure Impliedly Authorized
a. In the course of the representation, a lawyer is impliedly authorized to
make certain disclosures about a client (e.g., to discuss information so
widely available or generally known that it need not be treated as confidential) unless the client specifically instructs otherwise [MR 1.6, cmt. [5]].
b. A lawyer may also reveal matters to opposing counsel and to the court
if those revelations will further the client’s case (e.g., to admit a fact
that cannot properly be disputed or to make a disclosure that facilitates
a satisfactory conclusion to a matter) [Id.].
EXAMPLE: In the course of settlement negotiations, Lawyer may want
to furnish opposing counsel with a full statement of Client’s injuries. Alternatively, in a pretrial conference, Lawyer may make a number of admissions that the other side will eventually be able to prove conclusively.
c. Moreover, a lawyer may communicate confidential information to other
lawyers in the firm, unless the client specifically instructs otherwise [Id.].
EXAMPLE: Evan, a corporate attorney, wants advice from Larry, a
partner in his firm who handles litigation matters, about a corporate
client’s potential exposure to litigation. Unless the client has instructed
Evan to confine the information to specified lawyers in the firm, Evan
may share pertinent confidential information about the client with Larry.
EXAMPLE: A prominent client was arrested for possession of cocaine.
The client asked the lawyer to represent him and to handle the entire
matter personally, without making any disclosures to anyone. The
115
OUTLINE
I.Regulation
of Lawyers
II. Getting Clients
III. Client-Lawyer Basics
A. Duty of Confidentiality
Rule 1.6: Confidentiality of Information
Rule 1.9: Duties to Former Clients
IV. Duties to Clients
V. Client Confidentiality
B. Attorney-Client Privilege
Attorney-Client Evidentiary Privilege
C. Work-Product Doctrine
Federal Rules of Civil Procedure
VI. Conflicts of Interest
VII.Duties to Tribunal
and Opposing Parties
VIII.Duties to Non-Clients
IX. Professional and
Public Duties
X. Judges
116
lawyer, under these circumstances, would be required to do even the
photocopying and legal research.
6. Disclosure is permitted—but not required—in the following situations:
a. to prevent reasonably certain death or substantial bodily harm [MR 1.6(b)(1)];
(1) Death or substantial bodily harm is reasonably certain to occur
if it will be suffered imminently or if there is a present and
substantial threat that a person will suffer such harm at a later
date if the lawyer fails to take action necessary to eliminate the
threat [MR 1.6, cmt. [6]].
EXAMPLE: A lawyer who knows that a client has accidently
discharged toxic waste into a town’s water supply may reveal
this information to the authorities if there is a present and substantial risk that a person who drinks the water will contract a
life-threatening or debilitating disease and the lawyer’s disclosure is necessary to eliminate the threat or reduce the number
of victims [Id.].
b. in order to prevent, mitigate, or rectify substantial injury to the financial interests or property of another when a client uses the lawyer’s
services in furtherance of a crime or fraud [MR 1.6(b)(2), (3)];
(1) Although this provision does not require the lawyer to reveal the
client’s misconduct, the lawyer may not counsel or assist the client in
conduct the lawyer knows is criminal or fraudulent [MR 1.6, cmt. [7]].
(2) This provision does not apply when a person is accused of or has
committed an illegal or fraudulent act and thereafter employs a
lawyer for representation concerning that conduct [MR 1.6, cmt. [8]].
c. to secure legal advice about the lawyer’s compliance with these
Rules [MR 1.6(b)(4)];
d. to protect the lawyer’s ability to assert claims and defenses on his own
behalf [MR 1.6(b)(5)];
(1) Where a legal claim or disciplinary charge alleges complicity of the
lawyer in the conduct of a client or a former client or other misconduct of the lawyer involving representation of the client or a former
client, the lawyer may respond to the extent the lawyer reasonably
believes necessary to establish a defense [MR 1.6, cmt. [10]].
(2) Such a charge can arise in a civil, criminal, disciplinary, or other
proceeding and can be based on a wrong allegedly committed
by the lawyer against the client or on a wrong alleged by a third
person (e.g., a person claiming to have been defrauded by the
lawyer and client acting together) [Id.].
(3) The lawyer’s right to respond arises when an assertion of such
complicity has been made. The lawyer is not required to await
the commencement of an action or proceeding that charges such
complicity. The right to defend also applies where a proceeding
has commenced [Id.].
117
OUTLINE
I.Regulation
of Lawyers
II. Getting Clients
III. Client-Lawyer Basics
A. Duty of Confidentiality
Rule 1.6: Confidentiality of Information
Rule 1.9: Duties to Former Clients
IV. Duties to Clients
V. Client Confidentiality
B. Attorney-Client Privilege
Attorney-Client Evidentiary Privilege
C. Work-Product Doctrine
Federal Rules of Civil Procedure
VI. Conflicts of Interest
VII.Duties to Tribunal
and Opposing Parties
VIII.Duties to Non-Clients
IX. Professional and
Public Duties
X. Judges
118
(4) A lawyer entitled to a fee is permitted to prove the services rendered
in an action to collect it. This aspect of the Rule expresses the
principle that the beneficiary of a fiduciary relationship may not
exploit it to the detriment of the fiduciary [MR 1.6, cmt. [11]].
e. to comply with other law or a court order [MR 1.6(b)(6)]; or
(1) Other law(s) may require that a lawyer disclose information about
a client. Whether such a law supersedes this Rule is a question of law beyond the scope of these Rules. When disclosure of
information relating to the representation appears to be required
by other law, the lawyer must discuss the matter with the client
[MR 1.6, cmt. [12]].
(2) If, however, the other law supersedes this Rule and requires
disclosure, this Rule permits the lawyer to make such disclosures
as are necessary to comply with the law [Id.].
(3) A lawyer may be ordered 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. Absent informed consent of the client to
do otherwise, the lawyer should assert on behalf of the client
all non-frivolous 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
[MR 1.6, cmt. [15]].
(4) In the event of an adverse ruling, the lawyer must consult
with the client about the possibility of appeal. Unless review is
sought, however, this Rule permits the lawyer to comply with the
court’s order [Id.].
EXAMPLE: Olivia is on trial for murdering three patients at the
nursing home where she works. Olivia admits to Gary, her lawyer, that she did kill the patients. Furthermore, she tells Gary that
she plans to kill another patient as soon as he is moved onto
her floor. Gary cannot reveal the fact that Olivia has killed three
people but may reveal that she plans to kill in the future, though
he is not required to do so.
f.
to detect and resolve conflicts of interest arising from the lawyer’s
change of employment or from changes in the composition or
ownership of a firm, but only if the revealed information would not
compromise the attorney-client privilege or otherwise prejudice the
client [MR 1.6(b)(7)].
(1) This provision recognizes that lawyers in different firms may need
to disclose limited information to each other to detect and resolve
conflicts of interest, such as when a lawyer is considering an
association with another firm, or two or more firms are considering a merger [MR 1.6, cmt. [13]].
119
OUTLINE
I.Regulation
of Lawyers
II. Getting Clients
III. Client-Lawyer Basics
A. Duty of Confidentiality
Rule 1.6: Confidentiality of Information
Rule 1.9: Duties to Former Clients
IV. Duties to Clients
V. Client Confidentiality
B. Attorney-Client Privilege
Attorney-Client Evidentiary Privilege
C. Work-Product Doctrine
Federal Rules of Civil Procedure
VI. Conflicts of Interest
VII.Duties to Tribunal
and Opposing Parties
VIII.Duties to Non-Clients
IX. Professional and
Public Duties
X. Judges
120
(2) Under these circumstances, lawyers and law firms are permitted
to disclose limited information, but only once substantive discussions regarding the new relationship have occurred [Id.].
7. A lawyer must also make reasonable efforts to prevent the inadvertent or
unauthorized disclosure of, or unauthorized access to, information relating
to the representation of a client [MR 1.6(c)].
a. This provision requires a lawyer to act competently to safeguard information
relating to the representation of a client against unauthorized access by third
parties and against inadvertent or unauthorized disclosure by the lawyer or
other persons who are subject to the lawyer’s supervision [MR 1.6, cmt. [18]].
b. The unauthorized access to, or the inadvertent disclosure of, information relating to the representation of a client does not constitute a violation of Rule 1.6(c) if the lawyer has made reasonable efforts to prevent
the access or disclosure [Id.].
c. Factors to be considered in determining the reasonableness of the
lawyer’s efforts include, but are not limited to [Id.]:
(1) the sensitivity of the information;
(2) the likelihood of disclosure if additional safeguards are not employed;
(3) the cost of employing additional safeguards;
(4) the difficulty of implementing the safeguards; and
(5) the extent to which the safeguards adversely affect the lawyer’s
ability to represent clients.
8. Former Clients
a. The duty of confidentiality survives the lawyer-client relationship. Unless
the former client consents after consultation, a lawyer who has formerly
represented a client, or whose present or former firm has formerly represented a client, in a matter must not thereafter [MR 1.9(c)]:
(1) use confidential information relating to the representation to the
disadvantage of the former client, except as the Rules would
permit or require with respect to a client; or
(a) However, 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 [MR 1.9, cmt. [8]]. Thus, regardless of how the information became generally known, it is no longer protected by
the attorney-client privilege or the duty of confidentiality.
(2) reveal confidential information relating to the representation except
as the Rules would permit or require with respect to a client.
b. The duty of confidentiality also survives the death of the client.
(1) Thus, the executor or administrator possesses the consent and
waiver rights formerly vested in the client.
(2) It is assumed that disclosure to the personal representative
designated by the client is impliedly authorized.
121
OUTLINE
I.Regulation
of Lawyers
II. Getting Clients
III. Client-Lawyer Basics
A. Duty of Confidentiality
Rule 1.6: Confidentiality of Information
Rule 1.9: Duties to Former Clients
IV. Duties to Clients
V. Client Confidentiality
B. Attorney-Client Privilege
Attorney-Client Evidentiary Privilege
C. Work-Product Doctrine
Federal Rules of Civil Procedure
VI. Conflicts of Interest
VII.Duties to Tribunal
and Opposing Parties
VIII.Duties to Non-Clients
IX. Professional and
Public Duties
X. Judges
122
B. Attorney-Client Privilege
1. In General
a. The attorney-client privilege, sometimes referred to as the testimonial
privilege, is a concept from the law of evidence.
b. The attorney-client privilege applies in judicial and other proceedings
in which a lawyer may be called as a witness or otherwise required to
produce evidence concerning a client [MR 1.6, cmt. [3]].
c. The general rule is that where matters are communicated by a client
to his attorney in professional confidence, the attorney may not at any
time afterwards be called upon or permitted to disclose the communications in testimony.
2. Elements of the Attorney-Client Privilege
a. The attorney-client privilege only applies in the context of an adjudication and protects confidential communications between the client,
his representatives, the client’s attorney, and the attorney’s representatives when those communications are made for the purpose of
obtaining legal advice or legal services and when the client has not
waived the privilege.
(1) Confidential Communications
(a) The communication must be intended to be confidential. If
the communication was knowingly made in the presence of
third parties, it is not covered by the privilege.
(b) On the other hand, if the communication was not intended to
be disclosed to third persons other than those to whom the
disclosure is made, or those reasonably necessary for the
transmission of the communication, then it is confidential.
1) Thus, if the communication goes astray or is overheard
by an eavesdropper, the communication is still confidential because it was not intended to be disclosed.
(c) The privilege extends to communications made in the presence of individuals who work for the lawyer, such as law
clerks, paralegals, and secretaries, whose work is necessary
to allow the lawyer to perform his duties.
(d) Communications include spoken and written words as well
as acts or gestures to call the attorney’s attention to some
physical object.
(2) Communications between the Client, His Representatives,
the Client’s Attorney, and the Attorney’s Representatives
(a) The privilege does not extend to information obtained
by a lawyer from witnesses or third parties unless those
witnesses or third parties are representatives of the client.
However, such communications are still protected from
pretrial discovery.
123
OUTLINE
I.Regulation
of Lawyers
II. Getting Clients
III. Client-Lawyer Basics
A. Duty of Confidentiality
Rule 1.6: Confidentiality of Information
Rule 1.9: Duties to Former Clients
IV. Duties to Clients
V. Client Confidentiality
B. Attorney-Client Privilege
Attorney-Client Evidentiary Privilege
C. Work-Product Doctrine
Federal Rules of Civil Procedure
VI. Conflicts of Interest
VII.Duties to Tribunal
and Opposing Parties
VIII.Duties to Non-Clients
IX. Professional and
Public Duties
X. Judges
124
(3) Communications Made for the Purpose of Obtaining Legal
Advice or Legal Services
(a) Consultation of a lawyer in the role of business advisor,
friend, or confidant, or for some purpose other than legal
advice, is not within the privilege.
(b) Preexisting written documents, such as contracts, leases,
or intercompany memos, do not become privileged merely
because they are handed over to a lawyer.
(c) Even if the lawyer is consulted in his professional capacity,
statements made to him that are not related to legal advice
or legal services are not protected by the privilege.
(4) Lack of Waiver of the Privilege
(a) Finally, the client must not have waived the attorneyclient privilege.
3. Holder of the Privilege
a. The client is the holder of the privilege and thus may assert the privilege to refuse to disclose attorney-client communications, thereby
preventing his attorney from disclosing any information relating to the
protected communications.
(1) The lawyer is also presumed to have authority to claim the privilege on his client’s behalf and, in fact, must claim the privilege
unless the client has waived it and authorized disclosure.
(2) If the client is not competent to claim the privilege, it may be
claimed or waived by a guardian or conservator if the client is
alive, or by his personal representative if he is deceased.
4. Duration of the Privilege
a. The privilege continues indefinitely (unless waived by the client), even
after the lawyer-client relationship is terminated or after the client’s death.
5. Exceptions
a. The privilege does not protect communications under the circumstances described below.
(1) Furtherance of Crime or Fraud
(a) When the purpose of the communication is to plan or perpetrate
a future crime or fraudulent act, the privilege will not arise.
(b) However, communications regarding past crimes or frauds made
for the purpose of defending a client are within the privilege.
(2) Claimants Through the Same Deceased Client
(a) The executor, administrator, or personal representative
possesses the consent and waiver rights formerly vested in
the client.
(b) In a will contest, however, the testimony of the lawyer who
drew up the will is not privileged—no person can claim
the privilege on the testator’s behalf, and it is unlikely that
125
OUTLINE
I.Regulation
of Lawyers
II. Getting Clients
III. Client-Lawyer Basics
A. Duty of Confidentiality
Rule 1.6: Confidentiality of Information
Rule 1.9: Duties to Former Clients
IV. Duties to Clients
V. Client Confidentiality
B. Attorney-Client Privilege
Attorney-Client Evidentiary Privilege
C. Work-Product Doctrine
Federal Rules of Civil Procedure
VI. Conflicts of Interest
VII.Duties to Tribunal
and Opposing Parties
VIII.Duties to Non-Clients
IX. Professional and
Public Duties
X. Judges
126
the testator intended his instructions concerning his will to
remain confidential after his death.
(3) Documents Attested to by the Lawyer
(a) The privilege does not apply when the lawyer authenticates a document, because the lawyer is acting more like
a witness than a lawyer, and the client is presumed to have
waived any privilege.
(4) Joint Clients
(a) When more than one client consults with a lawyer regarding
a common legal problem, statements made among the
clients and lawyer are privileged, except where a later
dispute arises between the clients. In that case, the
communications are no longer privileged, and the lawyer is
permitted to disclose the communications.
C. Work-Product Doctrine
1. The work product doctrine generally protects from discovery any records of statements or interviews, and other tangible items prepared in anticipation of litigation.
2. Materials prepared in anticipation of litigation or for trial may be obtained
only upon a showing that the party seeking discovery has substantial need
of the materials in the preparation of the case and is unable to obtain their
substantial equivalent without undue hardship [Fed. R. Civ. P. 26(b)(3)(A)].
3. Even if disclosure of work product is ordered, documents reflecting the
lawyer’s mental impressions, conclusions, opinions, or legal theories are
not discoverable without some exceptional circumstance requiring their
production [Fed. R. Civ. P. 26(b)(3)(B)].
4. Work product protection is waived when it is disclosed in a manner that materially increases the likelihood that an adversary will obtain the information.
a. While an inadvertent production of a privileged work product document
generally does not waive the privilege, there is an exception to that rule if
the producing party’s conduct was so careless as to suggest that he was
not concerned with the protection of the privilege. Courts will examine the
reasonableness of the precautions taken to prevent inadvertent disclosure.
127
OUTLINE
I.Regulation
of Lawyers
II. Getting Clients
III. Client-Lawyer Basics
Rule 1.16:Declining or Terminating
Representation
IV. Duties to Clients
V. Client Confidentiality
Rule 1.8(a)–(d),(g),(i),(j): Conflict of Interest:
Current Clients: Specific Rules
A. Ethical Prerequisites
to Forming the ClientLawyer Relationship
Rule 1.7: Conflict of Interest: Current Clients
Rule 1.18:Duties to Prospective Client
Rule 1.9: Duties to Former Clients
VI. Conflicts of Interest
VII.Duties to Tribunal
and Opposing Parties
VIII.Duties to Non-Clients
IX. Professional and
Public Duties
X. Judges
128
Rule 1.8(f):Conflict of Interest: Current Clients:
Specific Rules
Rule 1.10: Imputation of Conflicts of Interest:
General Rule
B. Disqualification
from Representation
Rule 1.11:Special Conflicts of Interest for
Former and Current Government
Officers and Employees
Rule 1.12: Former Judge, Arbitrator, Mediator
or Other Third-Party Neutral
VI. CONFLICTS OF INTEREST
A. Ethical Prerequisites to Forming the Client-Lawyer Relationship
1. In General
a. When forming a client-lawyer relationship, there is no prerequisite that
a lawyer share or endorse the client’s political, economic, social, or
moral views or activities [MR 1.2(b)].
b. However, a lawyer may not represent a client if [MR 1.16(a)]:
(1) the representation would violate the Rules or other law; or
(2) the lawyer’s physical or mental condition would materially impair
the lawyer’s ability to represent the client.
c. A lawyer should not accept representation in a matter unless it can be
performed competently, promptly, without improper conflict of interest,
and to completion [MR 1.16, cmt. [1]].
d. Ordinarily, a lawyer may take inconsistent legal positions in different tribunals at different times on behalf of different clients [MR 1.7, cmt. [24]].
EXAMPLE: John is an attorney who handles mostly mass tort actions.
In 1994, he represented a large class of plaintiffs who sued an asbestos manufacturer for damages. In that case he asserted that the asbestos manufacturer knowingly and illegally withheld information from the
plaintiffs that asbestos was harmful if inhaled. In 2001, John represented a different asbestos manufacturer and argued to the court that the
manufacturer had no duty to reveal the risks of asbestos to the plaintiff.
John’s advocacy, although contradictory, is acceptable in both cases.
2. Conflict between Client and Lawyer
a. Business Transactions
(1) A lawyer must not enter into a business transaction with a client
or knowingly acquire an ownership, possessory, security or other
pecuniary interest adverse to a client unless [MR 1.8(a)]:
(a) the transaction and terms must be fair and reasonable to the
client and fully disclosed in writing in a manner reasonably
understandable by the client;
(b) the client must be given a reasonable opportunity to seek the
independent advice of another lawyer; and
(c) the client must give informed consent in writing.
b. Use of Confidential Information
(1) A lawyer must not use confidential information obtained from a client
to the disadvantage of that client unless the client gives informed
consent, or as permitted elsewhere in the Rules [MR 1.8(b)].
(a) This Rule applies when the confidential information obtained
from the client is used to benefit either the lawyer or a third
party, such as another client or business associate of the
lawyer [MR 1.8(b), cmt. [5]].
129
OUTLINE
I.Regulation
of Lawyers
II. Getting Clients
III. Client-Lawyer Basics
Rule 1.16:Declining or Terminating
Representation
IV. Duties to Clients
V. Client Confidentiality
Rule 1.8(a)–(d),(g),(i),(j): Conflict of Interest:
Current Clients: Specific Rules
A. Ethical Prerequisites
to Forming the ClientLawyer Relationship
Rule 1.7: Conflict of Interest: Current Clients
Rule 1.18:Duties to Prospective Client
Rule 1.9: Duties to Former Clients
VI. Conflicts of Interest
VII.Duties to Tribunal
and Opposing Parties
VIII.Duties to Non-Clients
IX. Professional and
Public Duties
X. Judges
130
Rule 1.8(f):Conflict of Interest: Current Clients:
Specific Rules
Rule 1.10: Imputation of Conflicts of Interest:
General Rule
B. Disqualification
from Representation
Rule 1.11:Special Conflicts of Interest for
Former and Current Government
Officers and Employees
Rule 1.12: Former Judge, Arbitrator, Mediator
or Other Third-Party Neutral
c. Aggregate Settlements
(1) Before any settlement offer or plea bargain is made or accepted
on behalf of multiple clients, the lawyer must inform each client
about all the material terms of the settlement, including what the
other clients will receive or pay if the settlement or plea offer is
accepted [MR 1.8(g)].
d. Gifts to Lawyers
(1) A lawyer shall not solicit any substantial gift from a client [MR 1.8(c)].
(2) A lawyer cannot prepare the instrument giving himself or his relative a
substantial gift from a client, including a testamentary gift, unless the
lawyer or other recipient is related to the client [Id.].
(3) This Rule does not prohibit a lawyer from accepting an unsolicited gift from a client if the transaction meets general standards of
fairness [MR 1.8, cmt. [6]].
EXAMPLE: A simple gift, such as a present given at a holiday or
as a token of appreciation, is permitted.
e. Literary or Media Rights
(1) A lawyer may not obtain or negotiate literary or media rights to a
portrayal or account regarding a pending representation prior to
the conclusion of the representation [MR 1.8(d)].
(a) However, it is permissible to obtain as a fee a percentage of
independent literary material that is the subject of the representation [MR 1.8, cmt. [9]].
f. Proprietary Interests
(1) Except for a lien (authorized by law) to collect his fee or a reasonable contingency fee (in a civil case), a lawyer may not obtain a
proprietary interest in the subject matter of litigation [MR 1.8(i)].
g. Sexual Relations
(1) A lawyer may not have sexual relations with a client unless a
consensual sexual relationship existed between them when the
client-lawyer relationship commenced [MR 1.8(j)].
h. When Opposing Counsel Is a Family Relative
(1) If opposing counsel is a close relative, the lawyer may not take the
case unless each client gives informed consent [MR 1.7, cmt. [11]].
(2) However, if the lawyer is disqualified because of a familial relationship with opposing counsel, another lawyer in the disqualified
lawyer’s firm may still take the case [Id.].
3. Conflict between Client and Another Client
a. Conflicts between Present Clients
(1) A lawyer must not represent a client if the representation is
directly adverse to another client or materially limited by the
responsibilities to another client, a former client, a third party, or
by the lawyer’s own interests, unless [MR 1.7]:
131
OUTLINE
I.Regulation
of Lawyers
II. Getting Clients
III. Client-Lawyer Basics
Rule 1.16:Declining or Terminating
Representation
IV. Duties to Clients
V. Client Confidentiality
Rule 1.8(a)–(d),(g),(i),(j): Conflict of Interest:
Current Clients: Specific Rules
A. Ethical Prerequisites
to Forming the ClientLawyer Relationship
Rule 1.7: Conflict of Interest: Current Clients
Rule 1.18:Duties to Prospective Client
Rule 1.9: Duties to Former Clients
VI. Conflicts of Interest
VII.Duties to Tribunal
and Opposing Parties
VIII.Duties to Non-Clients
IX. Professional and
Public Duties
X. Judges
132
Rule 1.8(f):Conflict of Interest: Current Clients:
Specific Rules
Rule 1.10: Imputation of Conflicts of Interest:
General Rule
B. Disqualification
from Representation
Rule 1.11:Special Conflicts of Interest for
Former and Current Government
Officers and Employees
Rule 1.12: Former Judge, Arbitrator, Mediator
or Other Third-Party Neutral
(a) the lawyer reasonably believes he will be able to provide
competent and diligent representation to each affected client;
1) Reasonably believes denotes that the lawyer believes the
matter in question and that the circumstances are such
that the belief is reasonable [MR 1.0(i)].
2) Reasonable when used in relation to conduct by a
lawyer denotes the conduct of a reasonably prudent and
competent lawyer [MR 1.0(h)].
(b) the representation is not prohibited by law;
(c) the representation does not involve the assertion of a
claim by one client against another client represented by
the same lawyer in the same litigation or other proceeding
before a tribunal; and
(d) each client gives informed consent in writing.
1) When representation of multiple clients in a single matter
is undertaken, the consultation shall include explanation
of the implications of the common representation and the
advantages and risks involved [MR 1.7, cmt. [18]].
2) In some cases, the lawyer’s duty of confidentiality may
make it impossible for the lawyer to make the disclosures
necessary for one of the clients to make an informed
decision, and so the lawyer may be unable to obtain a
valid consent [MR 1.7, cmt. [19]].
3) A lawyer may ask a client to waive conflicts in advance
if the client is an experienced user of the legal services
involved and is reasonably informed of the risks
[MR 1.7, cmt. [22]].
(2) A lawyer may not represent opposing parties in the same litigation, regardless of the clients’ consent [MR 1.7, cmt. [23]].
(3) Because of the grave potential for a conflict when a lawyer represents
multiple defendants in a criminal case, a lawyer should ordinarily
decline to represent more than one co-defendant [Id.].
(4) Common representation of persons having similar interests is
proper if the lawyer reasonably believes that the risk of adverse
effect is minimal, and all persons have given their informed
consent to the multiple representations.
(5) Where a lawyer represents two or more clients, the lawyer may
not make an aggregate settlement of the claims of or against the
clients or, in a criminal case, make an aggregated agreement as
to guilty or nolo contendere pleas, unless each client consents in
writing after consultation [MR 1.8(g)].
(a) The lawyer’s disclosure to the clients must include the
existence and nature of all claims or pleas involved, and the
participation of each person in the settlement [Id.].
133
OUTLINE
I.Regulation
of Lawyers
II. Getting Clients
III. Client-Lawyer Basics
Rule 1.16:Declining or Terminating
Representation
IV. Duties to Clients
V. Client Confidentiality
Rule 1.8(a)–(d),(g),(i),(j): Conflict of Interest:
Current Clients: Specific Rules
A. Ethical Prerequisites
to Forming the ClientLawyer Relationship
Rule 1.7: Conflict of Interest: Current Clients
Rule 1.18:Duties to Prospective Client
Rule 1.9: Duties to Former Clients
VI. Conflicts of Interest
VII.Duties to Tribunal
and Opposing Parties
VIII.Duties to Non-Clients
IX. Professional and
Public Duties
X. Judges
134
Rule 1.8(f):Conflict of Interest: Current Clients:
Specific Rules
Rule 1.10: Imputation of Conflicts of Interest:
General Rule
B. Disqualification
from Representation
Rule 1.11:Special Conflicts of Interest for
Former and Current Government
Officers and Employees
Rule 1.12: Former Judge, Arbitrator, Mediator
or Other Third-Party Neutral
b. Conflicts between a Present Client and a Prospective Client
(1) A person who consults with a lawyer about the possibility of
forming a client-lawyer relationship with respect to a matter is a
prospective client [MR 1.18(a)].
(a) Not all persons who communicate information to a lawyer
are entitled to protection under this rule. A person who
communicates information unilaterally to a lawyer, without
any reasonable expectation that the lawyer is willing to
discuss the possibility of forming a client-lawyer relationship,
is not a “prospective client” [MR 1.18, cmt. [2]].
(2) Even when no client-lawyer relationship ensues, a lawyer who
has learned information from a prospective client may not use
or reveal that information, except as Rule 1.9 would permit with
respect to information of a former client [MR 1.18(b)].
(a) Such an attorney may not represent a client with interests
adverse to those of a prospective client in the same or a
substantially related matter if the lawyer received information
from the prospective client that could be significantly harmful
to that person in the matter, except if either of the following
applies [MR 1.18(c), (d)]:
1) both the affected client and the prospective client have
given informed consent, confirmed in writing; or
2) the lawyer who received the information took reasonable measures to avoid exposure to more disqualifying
information than was reasonably necessary to determine whether to represent the prospective client, and
both of the following apply:
a) the disqualified lawyer is timely screened from any
participation in the matter and is apportioned no
part of the fee; and
b) written notice is promptly given to the prospective client.
(b) This also applies to any lawyer in a firm with which that
lawyer is associated [MR 1.18, cmt. [7]].
(3) In order to avoid acquiring disqualifying information from a prospective client, a lawyer considering whether to undertake a new matter
should limit the initial consultation to only such information as
reasonably appears necessary for that purpose [MR 1.18, cmt. [4]].
(a) The lawyer may also condition a consultation with a prospective client on the person’s informed consent that no information
disclosed during the consultation will prohibit the lawyer from
representing a different client in the matter [MR 1.18, cmt. [5]].
(b) Even in the absence of such agreement, the lawyer is not
prohibited from representing a client with interests adverse to
those of the prospective client in the same or a substantially
135
OUTLINE
I.Regulation
of Lawyers
II. Getting Clients
III. Client-Lawyer Basics
Rule 1.16:Declining or Terminating
Representation
IV. Duties to Clients
V. Client Confidentiality
Rule 1.8(a)–(d),(g),(i),(j): Conflict of Interest:
Current Clients: Specific Rules
A. Ethical Prerequisites
to Forming the ClientLawyer Relationship
Rule 1.7: Conflict of Interest: Current Clients
Rule 1.18:Duties to Prospective Client
Rule 1.9: Duties to Former Clients
VI. Conflicts of Interest
VII.Duties to Tribunal
and Opposing Parties
VIII.Duties to Non-Clients
IX. Professional and
Public Duties
X. Judges
136
Rule 1.8(f):Conflict of Interest: Current Clients:
Specific Rules
Rule 1.10: Imputation of Conflicts of Interest:
General Rule
B. Disqualification
from Representation
Rule 1.11:Special Conflicts of Interest for
Former and Current Government
Officers and Employees
Rule 1.12: Former Judge, Arbitrator, Mediator
or Other Third-Party Neutral
related matter unless the lawyer has received from the
prospective client information that could be significantly
harmful if used in the matter [MR 1.18, cmt. [6]].
c. Conflicts between a Present Client and a Former Client
(1) A lawyer who has formerly represented a client in a matter may
not thereafter represent another person in the same or a substantially related matter in which that person’s interests are materially
adverse to the interests of the former client unless the former
client consents in writing after consultation [MR 1.9(a)].
(2) Unless the former client consents after consultation, a lawyer
may not knowingly represent a person in the same or a substantially related matter in which a firm with which the lawyer formerly
was associated has previously represented a client [MR 1.9(b)]:
(a) whose interests are materially adverse to that person; and
(b) about whom the lawyer had acquired information protected
by Rules 1.6 and 1.9(c) that is material to the matter.
EXAMPLE: In 1991, Loretta represented Fran in an action
for encroachment against Fran’s next-door neighbor, Paul.
In 1993, Paul approached Loretta and asked her to sue Fran
for trespass, because he still feels that the property she
claims as her own actually belongs to him. Loretta may not
accept Paul’s case unless Fran consents.
EXAMPLE: Sally Lawyer could not properly seek to rescind
on behalf of a new client, Nancy, a contract that Sally had
drafted on behalf of a former client, Frank.
(3) A lawyer who has formerly represented a client in a matter or
whose present or former firm has formerly represented a client in
a matter may not thereafter [MR 1.9(c)]:
(a) use information relating to the representation to the disadvantage of the former client except as the Rules permit or
require with respect to a client, or when the information has
become generally known; or
(b) reveal information relating to the representation except as
the Rules permit or require with respect to a client.
(4) Definition of Matter
(a) The scope of a matter for purposes of this Rule may depend
on the facts of a particular situation or transaction. When a
lawyer has been directly involved in a specific transaction,
subsequent representation of other clients with materially
adverse interests clearly is prohibited [MR 1.9, cmt. [2]].
(b) On the other hand, a lawyer who recurrently handled a
type of problem for a former client is not precluded from
later representing another client in a wholly distinct problem
137
OUTLINE
I.Regulation
of Lawyers
II. Getting Clients
III. Client-Lawyer Basics
Rule 1.16:Declining or Terminating
Representation
IV. Duties to Clients
V. Client Confidentiality
Rule 1.8(a)–(d),(g),(i),(j): Conflict of Interest:
Current Clients: Specific Rules
A. Ethical Prerequisites
to Forming the ClientLawyer Relationship
Rule 1.7: Conflict of Interest: Current Clients
Rule 1.18:Duties to Prospective Client
Rule 1.9: Duties to Former Clients
VI. Conflicts of Interest
VII.Duties to Tribunal
and Opposing Parties
VIII.Duties to Non-Clients
IX. Professional and
Public Duties
X. Judges
138
Rule 1.8(f):Conflict of Interest: Current Clients:
Specific Rules
Rule 1.10: Imputation of Conflicts of Interest:
General Rule
B. Disqualification
from Representation
Rule 1.11:Special Conflicts of Interest for
Former and Current Government
Officers and Employees
Rule 1.12: Former Judge, Arbitrator, Mediator
or Other Third-Party Neutral
of that type even though the subsequent representation
involves a position adverse to the prior client [Id.].
(c) The underlying question is whether the lawyer was so involved
in the matter that the subsequent representation can be justly
regarded as a changing of sides in the matter in question [Id.].
4. Conflict between Client and Third Party
a. Rule 1.7 prohibits a lawyer from representing a client if the representation might be materially limited because of the lawyer’s responsibilities
to a third person, unless [MR 1.7]:
(1) the lawyer reasonably believes that he will be able to provide
competent and diligent representation to each affected client;
(2) the representation is not prohibited by law;
(3) 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; and
(4) each affected client gives informed consent, confirmed in writing.
b. Many third-party conflicts occur when the third party pays the lawyer to
represent the client. Rule 1.8(f) provides a specific rule on this type of
conflict. A third party may pay for a client’s representation only if [MR 1.8(f)]:
(1) the client gives informed consent;
(2) there is no interference with the lawyer’s independent professional judgment or with the client-lawyer relationship; and
(3) confidentiality is preserved.
c. In a business context, conflicts under this Rule arise in insurance
liability cases, where the company pays for defense of the client.
(1) If a conflict arises between the interest of the company and the interest
of the client because a claim is made for damages over the policy
limits or because one theory for liability is not covered by the policy,
the company must advise the insured to obtain independent counsel.
(2) Likewise, if a corporation provides counsel for an officer accused of
wrongdoing, the attorney must be able to represent the interests of
the officer independently, regardless of the interests of the company.
d. In the family context, a parent often pays for the representation of a
minor child accused of a crime.
(1) The lawyer must independently represent the child and not defer
to the parent.
EXAMPLE: The lawyer cannot accept the suggestion of a parent
that an “alternative” school would be good for the child and that
the child should plead guilty and accept the punishment unless,
in the lawyer’s independent judgment in this case, that would be
the best result for the child.
(2) Likewise, unless the client consents, the lawyer cannot reveal to
the parents protected information involved in the representation.
139
OUTLINE
I.Regulation
of Lawyers
II. Getting Clients
III. Client-Lawyer Basics
Rule 1.16:Declining or Terminating
Representation
IV. Duties to Clients
V. Client Confidentiality
Rule 1.8(a)–(d),(g),(i),(j): Conflict of Interest:
Current Clients: Specific Rules
A. Ethical Prerequisites
to Forming the ClientLawyer Relationship
Rule 1.7: Conflict of Interest: Current Clients
Rule 1.18:Duties to Prospective Client
Rule 1.9: Duties to Former Clients
VI. Conflicts of Interest
VII.Duties to Tribunal
and Opposing Parties
VIII.Duties to Non-Clients
IX. Professional and
Public Duties
X. Judges
140
Rule 1.8(f):Conflict of Interest: Current Clients:
Specific Rules
Rule 1.10: Imputation of Conflicts of Interest:
General Rule
B. Disqualification
from Representation
Rule 1.11:Special Conflicts of Interest for
Former and Current Government
Officers and Employees
Rule 1.12: Former Judge, Arbitrator, Mediator
or Other Third-Party Neutral
B. Disqualification from Representation
1. Disqualification is necessary where there is either an actual conflict of interest
regarding the lawyer’s duty of loyalty to the client or where there is a potential
conflict, and the client, after being so informed, does not accept the arrangement.
2. Imputed (or Vicarious) Disqualification
a. As a general rule, when one attorney is disqualified, the whole firm is
also disqualified. This is called imputed disqualification [MR 1.10(a)].
b. Key to Analyzing a Possible “Imputed Disqualification” Scenario
(1) Imputed disqualification is based on a presumption that all partners and associates in a firm know about all cases. The knowledge of one lawyer working on a case is “imputed” to all the
others while that lawyer is at the firm [MR 1.10, cmt. [2]].
(2) When a lawyer leaves or joins a firm, the key to analyzing
whether a firm is disqualified because of a conflict of interest is
to determine who knows what. Think of knowledge as a contaminant. Lawyers in firms are presumed to have contaminated each
other with their knowledge.
(3) Thus, when a lawyer leaves a firm, the question is whether he
took all of the contaminant with him, or whether other lawyers are
actually contaminated with the departing lawyer’s knowledge.
c. Imputed disqualification does not apply under certain circumstances.
(1) If the prohibition is based on a personal interest of the disqualified lawyer and does not present a significant risk of materially
limiting the representation of the client by the remaining lawyers
in the firm, other lawyers in the firm will not be precluded from
representing the client [MR 1.10(a)(1)].
(2) Nor will imputed disqualification apply where the prohibition is
based upon Rules 1.9(a) or (b) and arises out of the disqualified lawyer’s association with a prior firm, provided the following
measures are promptly taken [MR 1.10(a)(2)]:
(a) the disqualified lawyer must be timely screened from any
participation in the matter;
(b) the screened lawyer must not be apportioned any part of the fee;
(c) written notice must be given to any affected former client
to enable the former client to ascertain compliance with the
provisions of this Rule; and
(d) the screened lawyer and a partner of the firm must provide
to the former client certifications of compliance with these
Rules and with the screening procedures, at reasonable
intervals upon the former client’s written request, and upon
termination of the screening procedures.
(3) When a lawyer has terminated an association with a firm, the
firm is not prohibited from representing a person with interests materially adverse to those of a client represented by the
141
OUTLINE
I.Regulation
of Lawyers
II. Getting Clients
III. Client-Lawyer Basics
Rule 1.16:Declining or Terminating
Representation
IV. Duties to Clients
V. Client Confidentiality
Rule 1.8(a)–(d),(g),(i),(j): Conflict of Interest:
Current Clients: Specific Rules
A. Ethical Prerequisites
to Forming the ClientLawyer Relationship
Rule 1.7: Conflict of Interest: Current Clients
Rule 1.18:Duties to Prospective Client
Rule 1.9: Duties to Former Clients
VI. Conflicts of Interest
VII.Duties to Tribunal
and Opposing Parties
VIII.Duties to Non-Clients
IX. Professional and
Public Duties
X. Judges
142
Rule 1.8(f):Conflict of Interest: Current Clients:
Specific Rules
Rule 1.10: Imputation of Conflicts of Interest:
General Rule
B. Disqualification
from Representation
Rule 1.11:Special Conflicts of Interest for
Former and Current Government
Officers and Employees
Rule 1.12: Former Judge, Arbitrator, Mediator
or Other Third-Party Neutral
formerly associated lawyer and not currently represented by the
firm, unless [MR 1.10(b)]:
(a) the matter is the same or substantially related to that in which
the formerly associated lawyer represented the client; and
(b) any lawyer remaining in the firm possesses protected confidential information that is material to the matter.
(4) Imputed disqualification does not apply if the lawyer is being
disqualified because he is a necessary witness unless the testifying lawyer would also be disqualified from the representation
due to a conflict of interest [MR 3.7, cmt. [7]].
(5) The affected client may waive the disqualification under the
conditions stated in Rule 1.7 [MR 1.10(c)].
(a) Such circumstances are rare because few clients are willing
to let their former lawyer now represent their adversary.
3. Disqualification Issues and Lawyers Formerly Employed by the Government
a. A former government lawyer can join a firm that has clients with direct
conflicts with the government agency, and about which the attorney
possesses protected information. However, the lawyer is prohibited from
representing a client in connection with a matter in which the lawyer has
personally and substantially participated as a public officer or employee
unless the government agency gives written informed consent [MR 1.11(a)].
(1) A lawyer who had such personal involvement will be disqualified
even if the new representation is not adverse to the government
[MR 1.11, cmt. [3]].
(2) Personal involvement does not include general supervisory
authority over the matter; for example, a district attorney who
supervises an office of 50 lawyers would be disqualified only with
respect to those cases the district attorney handled personally.
(3) As used in this Rule, the term matter includes [MR 1.11(e)]:
(a) any judicial or other proceeding, application, request for a
ruling or other determination, contract, claim, controversy,
investigation, charge, accusation, arrest, or other particular
matter involving a specific party or parties; and
(b) any other matter covered by the conflict of interest rules of
the appropriate government agency.
b. Other lawyers in the former government lawyer’s new firm may handle
matters the former government lawyer participated in while in public
service. The only restrictions are that [MR 1.11(b)]:
(1) the former government lawyer must be effectively screened from
any participation in the matter;
(a) The lawyer must not communicate any confidential government
information to the lawyers working on the case.
1) Confidential government information means information
that has been obtained under governmental authority
143
OUTLINE
I.Regulation
of Lawyers
II. Getting Clients
III. Client-Lawyer Basics
Rule 1.16:Declining or Terminating
Representation
IV. Duties to Clients
V. Client Confidentiality
Rule 1.8(a)–(d),(g),(i),(j): Conflict of Interest:
Current Clients: Specific Rules
A. Ethical Prerequisites
to Forming the ClientLawyer Relationship
Rule 1.7: Conflict of Interest: Current Clients
Rule 1.18:Duties to Prospective Client
Rule 1.9: Duties to Former Clients
VI. Conflicts of Interest
VII.Duties to Tribunal
and Opposing Parties
VIII.Duties to Non-Clients
IX. Professional and
Public Duties
X. Judges
144
Rule 1.8(f):Conflict of Interest: Current Clients:
Specific Rules
Rule 1.10: Imputation of Conflicts of Interest:
General Rule
B. Disqualification
from Representation
Rule 1.11:Special Conflicts of Interest for
Former and Current Government
Officers and Employees
Rule 1.12: Former Judge, Arbitrator, Mediator
or Other Third-Party Neutral
and which the government is prohibited by law from
disclosing to the public or has a legal privilege not to
disclose, and which is not otherwise available to the
public [MR 1.11(c)].
(b) This Rule operates only when the lawyer has actual knowledge of the information. The Rule does not operate with
respect to information that merely could be imputed to the
lawyer [MR 1.11, cmt. [8]].
(2) the former government lawyer must not be apportioned any part
of the fee; and
(a) The lawyer is not prohibited from receiving a salary or
partnership share established by prior independent agreement, but he may not receive compensation directly relating
to the fee in the matter in which the lawyer is disqualified
[MR 1.11, cmt. [6]].
(3) written notice must be promptly given to the appropriate government agency to enable it to ascertain compliance with the provision of this Rule.
(a) This notice must be given as soon as practicable after the
need for screening becomes apparent but need not be given
prematurely so that the client might be injured or the lawyer
might lose the job offer [MR 1.11, cmt. [7]].
c. If the lawyer is switching from one government agency to another
government agency, the new agency is treated like a client for the
purposes of the Rule [MR 1.11, cmt. [5]].
EXAMPLE: If a lawyer left the Environmental Protection Agency for a
similar position in state government, the state agency would be treated
like a private firm.
d. A lawyer currently serving as government attorney may not participate
in a matter in which he was personally and substantially involved while
in the private sector [MR 1.11(d)(2)].
e. Nor can the lawyer negotiate for private employment with anyone in
whose matter he is presently personally and substantially involved,
except that a law clerk to a judge, other adjudicative officer, or arbitrator may negotiate for private employment, but only after notifying the
judge or other adjudicative officer [Id.].
EXAMPLE: When Jonathan was an attorney with Hail & Farewell, he
represented Tommy. Jonathan is now a district attorney and has been
assigned to prosecute Tommy for bank fraud. Jonathan should decline
to prosecute Tommy.
EXAMPLE: Alan is a district attorney prosecuting National, Inc. While handling that case, he cannot negotiate with National, Inc. for a position as its
general counsel when he leaves the district attorney’s office.
145
OUTLINE
I.Regulation
of Lawyers
II. Getting Clients
III. Client-Lawyer Basics
Rule 1.16:Declining or Terminating
Representation
IV. Duties to Clients
V. Client Confidentiality
Rule 1.8(a)–(d),(g),(i),(j): Conflict of Interest:
Current Clients: Specific Rules
A. Ethical Prerequisites
to Forming the ClientLawyer Relationship
Rule 1.7: Conflict of Interest: Current Clients
Rule 1.18:Duties to Prospective Client
Rule 1.9: Duties to Former Clients
VI. Conflicts of Interest
VII.Duties to Tribunal
and Opposing Parties
VIII.Duties to Non-Clients
IX. Professional and
Public Duties
X. Judges
146
Rule 1.8(f):Conflict of Interest: Current Clients:
Specific Rules
Rule 1.10: Imputation of Conflicts of Interest:
General Rule
B. Disqualification
from Representation
Rule 1.11:Special Conflicts of Interest for
Former and Current Government
Officers and Employees
Rule 1.12: Former Judge, Arbitrator, Mediator
or Other Third-Party Neutral
4. Later Representation of Clients
a. A lawyer may not represent anyone in connection with a matter in
which the lawyer participated personally and substantially as a judge
or other adjudicative officer or as a law clerk to such a person, or as an
arbitrator, mediator, or other third-party neutral, unless all parties give
informed consent, confirmed in writing [MR 1.12(a)].
b. A lawyer may not negotiate for employment with any person who is
involved as a party or lawyer for a party in a matter in which the lawyer
is participating personally and substantially as a judge, other adjudicative officer, arbitrator, or mediator [MR 1.12(b)].
(1) However, a lawyer serving as a law clerk to a judge, other adjudicative officer, arbitrator, or mediator may negotiate for such
employment, but only after the lawyer has notified the judge or
other adjudicative officer [Id.].
c. No lawyer in a firm associated with a lawyer disqualified from a representation under this Rule can undertake or continue representation in
the matter unless [MR 1.12(c)]:
(1) the disqualified lawyer is screened from any participation in the
matter and is apportioned no part of the fee; and
(2) written notice is promptly given to the parties and any appropriate
tribunal so that it may ensure compliance with the provisions of
this Rule.
d. This Rule does not prevent an arbitrator selected as a partisan of a
party in a multimember arbitration panel from subsequently representing the party [MR 1.12(d)].
147
OUTLINE
I.Regulation
of Lawyers
II. Getting Clients
III. Client-Lawyer Basics
IV. Duties to Clients
Rule 3.1: Meritorious Claims and Contentions
V. Client Confidentiality
Rule 3.3: Candor toward the Tribunal
Rule 3.4: Fairness to Opposing Party and Counsel
VI. Conflicts of Interest
A. Duties to Tribunal
and Court System
Rule 3.2: Expediting Litigation
Rule 3.5: Impartiality and Decorum of the Tribunal
Rule 3.6: Trial Publicity
VII.Duties to Tribunal
and Opposing Parties
Rule 3.7: Lawyer as Witness
Rule 3.8: Special Responsibilities of a Prosecutor
VIII.Duties to Non-Clients
IX. Professional and
Public Duties
X. Judges
148
B. Appearances in
Nonadjudicative
Proceedings
Rule 3.9: Advocate in Nonadjudicative Proceedings
VII. DUTIES TO TRIBUNAL AND OPPOSING PARTIES
A. Duties to Tribunal and Court System
1. Duty to Avoid Frivolous Claims
a. A lawyer may not bring or defend a proceeding, or assert or controvert
an issue, unless there is a basis in law or fact for doing so that is not
frivolous [MR 3.1].
b. Determining a “Frivolous” Claim
(1) An action is frivolous if the lawyer is unable to either make a
good-faith argument on the merits of the action taken or support
the action taken by a good-faith argument for an extension, modification, or reversal of existing law [MR 3.1, cmt. [2]].
(2) Even if the lawyer believes that the client will not ultimately
prevail, a claim is not frivolous as long as the lawyer is informed
about the facts of his client’s case and the applicable law, and
is able to make good-faith arguments in support of his client’s
position [Id.].
(3) Filing an action or asserting a defense on behalf of a client is not
frivolous merely because the facts have not yet been fully substantiated or because discovery is needed to develop evidence [Id.].
EXAMPLE: David does not like his co-worker, Ryan. David asks
his lawyer, Samantha, to bring a sexual harassment claim against
Ryan, claiming that Ryan laughed at David in a funny way that
made David feel sexually intimidated. In this jurisdiction, laughing at someone is not considered sexual harassment. Unless
Samantha can make a good-faith argument that laughing constitutes sexual harassment, she should not accept the case.
c. Criminal Cases
(1) It is not frivolous for the defendant’s lawyer in a criminal case, or
in a case that could result in incarceration, to require the prosecution to establish every element of the case [MR 3.1].
(2) A lawyer’s obligations under this Rule are subordinate to federal
or state constitutional law that entitles a defendant in a criminal
matter to the assistance of counsel in presenting a claim that
would otherwise be prohibited by this Rule [MR 3.1, cmt. [3]].
EXAMPLE: Ella has been convicted of larceny. Her lawyer, Christopher, wants to appeal the conviction. Christopher may argue
that Ella was actually sleepwalking (and, therefore, incapacitated)
when she stole a radio if he has a non-frivolous basis in fact for it,
even if this defense is not promising.
2. Duty of Candor to the Court
a. A lawyer may not knowingly [MR 3.3(a)]:
149
OUTLINE
I.Regulation
of Lawyers
II. Getting Clients
III. Client-Lawyer Basics
IV. Duties to Clients
Rule 3.1: Meritorious Claims and Contentions
V. Client Confidentiality
Rule 3.3: Candor toward the Tribunal
Rule 3.4: Fairness to Opposing Party and Counsel
VI. Conflicts of Interest
A. Duties to Tribunal
and Court System
Rule 3.2: Expediting Litigation
Rule 3.5: Impartiality and Decorum of the Tribunal
Rule 3.6: Trial Publicity
VII.Duties to Tribunal
and Opposing Parties
Rule 3.7: Lawyer as Witness
Rule 3.8: Special Responsibilities of a Prosecutor
VIII.Duties to Non-Clients
IX. Professional and
Public Duties
X. Judges
150
B. Appearances in
Nonadjudicative
Proceedings
Rule 3.9: Advocate in Nonadjudicative Proceedings
(1) make a false statement of material fact or law to a tribunal or
fail to correct a false statement of material fact or law previously
made to the tribunal by the lawyer;
(a) Although a lawyer in an adversary proceeding is not required
to present an impartial exposition of the law or to vouch for
the evidence submitted in a cause, the lawyer must not allow
the tribunal to be misled by false statements of law, fact, or
evidence that the lawyer knows to be false [MR 3.3, cmt. [2]].
(2) fail to disclose to a tribunal controlling legal authority known to
the lawyer to be directly adverse to the client’s position and not
disclosed by opposing counsel; or
(a) The legal authority must be controlling in the jurisdiction
[MR 3.3, cmt. [4]].
(b) The authority must be directly adverse [Id.]. A case that is adverse
on a closely related issue need not be cited under this Rule.
1) Moreover, this Rule does not prevent a lawyer from
arguing that the adverse precedent should be overruled.
(c) The duty does not arise until opposing counsel has failed to
cite the authority [Id.].
1) If a lawyer argues first or submits briefs simultaneously with
opposing counsel, she has no obligation at that time to cite
the adverse precedent. The duty only arises after she has
seen that it has not been cited by opposing counsel.
EXAMPLE: Greg brings a case against Sarah for stalking. His lawyer, Fred, writes a brief in support of his motion for a preliminary injunction, citing old cases that held
that following someone home from work could, by itself,
constitute stalking. Fred must also cite a recent precedential case in the jurisdiction that holds that essential
elements of stalking are threats and intimidation, even if
citing the case would hurt Greg’s chances of prevailing.
EXAMPLE: Greg’s stalking case against Sarah is in
state M. The night before the hearing on Fred’s motion,
Sarah’s lawyer, Nadia, discovers two appellate cases not
cited in Fred’s brief. One is from state M with a holding by
analogy against Sarah, and the other is from state X with
a holding directly against her. Nadia need not present either case to the court. The one from M, while it is from the
controlling jurisdiction, is not directly adverse; it is only
adverse by analogy. The one from X, while it is directly
adverse, is not from the controlling jurisdiction.
(3) offer evidence that the lawyer knows to be false.
(a) If a lawyer has offered material evidence and the lawyer
comes to know of its falsity, the lawyer must take reasonable
151
OUTLINE
I.Regulation
of Lawyers
II. Getting Clients
III. Client-Lawyer Basics
IV. Duties to Clients
Rule 3.1: Meritorious Claims and Contentions
V. Client Confidentiality
Rule 3.3: Candor toward the Tribunal
Rule 3.4: Fairness to Opposing Party and Counsel
VI. Conflicts of Interest
A. Duties to Tribunal
and Court System
Rule 3.2: Expediting Litigation
Rule 3.5: Impartiality and Decorum of the Tribunal
Rule 3.6: Trial Publicity
VII.Duties to Tribunal
and Opposing Parties
Rule 3.7: Lawyer as Witness
Rule 3.8: Special Responsibilities of a Prosecutor
VIII.Duties to Non-Clients
IX. Professional and
Public Duties
X. Judges
152
B. Appearances in
Nonadjudicative
Proceedings
Rule 3.9: Advocate in Nonadjudicative Proceedings
remedial measures, including, if necessary, disclosure to the
tribunal [MR 3.3(a)(3)].
(b) If a lawyer knows that the client intends to testify falsely or
wants the lawyer to introduce false evidence, the lawyer
should seek to persuade the client that the evidence should
not be offered [MR 3.3, cmt. [6]].
1) If the lawyer’s statements are ineffective and the lawyer
continues to represent the client, the lawyer must refuse
to offer the false evidence [Id.].
2) If only a portion of a witness’s testimony will be false,
the lawyer may call the witness to testify but may not
elicit or otherwise permit the witness to present the testimony that the lawyer knows is false [Id.].
3) A lawyer’s knowledge that the evidence is false can be
inferred from the circumstances [MR 3.3, cmt. [8]].
4) Thus, although a lawyer should resolve doubts about
the veracity of testimony or other evidence in favor of the
client, the lawyer cannot ignore an obvious falsehood [Id.].
EXAMPLE: Bully is Sissy’s lawyer in a case against
Rocky. Sissy claims that Rocky beat her up. Sissy
confides to Bully that Rocky did not actually beat her
up, but that she wants to collect damages from him
because he is very rich and can afford to pay. She says
that she plans to testify that Rocky broke her nose. Bully
must not ask her questions on the witness stand about
Rocky’s conduct and may refuse to put her on the stand
if he knows that she is going to perjure herself.
b. These duties terminate at the conclusion of the proceeding, and
apply even if compliance requires disclosure of information otherwise
protected by Rule 1.6 [MR 3.3(c)].
c. If a lawyer knows that the lawyer’s client or other person intends to
engage, is engaging, or has engaged in criminal or fraudulent conduct
related to an adjudicative proceeding involving the client, the lawyer
must take reasonable remedial measures, including, if necessary,
disclosure to the tribunal [MR 3.3(b)].
(1) This duty also continues to the conclusion of the proceeding,
and applies even if compliance requires disclosure of information
otherwise protected by Rule 1.6 [MR 3.3(c)].
d. In an ex parte proceeding, a lawyer must inform the tribunal of all material
facts that are known to the lawyer and that will enable the tribunal to make
an informed decision, whether or not the facts are adverse [MR 3.3(d)].
e. Remedial Measures
(1) Having offered material evidence in the belief that it was true,
a lawyer may subsequently come to know that the evidence is
153
OUTLINE
I.Regulation
of Lawyers
II. Getting Clients
III. Client-Lawyer Basics
IV. Duties to Clients
Rule 3.1: Meritorious Claims and Contentions
V. Client Confidentiality
Rule 3.3: Candor toward the Tribunal
Rule 3.4: Fairness to Opposing Party and Counsel
VI. Conflicts of Interest
A. Duties to Tribunal
and Court System
Rule 3.2: Expediting Litigation
Rule 3.5: Impartiality and Decorum of the Tribunal
Rule 3.6: Trial Publicity
VII.Duties to Tribunal
and Opposing Parties
Rule 3.7: Lawyer as Witness
Rule 3.8: Special Responsibilities of a Prosecutor
VIII.Duties to Non-Clients
IX. Professional and
Public Duties
X. Judges
154
B. Appearances in
Nonadjudicative
Proceedings
Rule 3.9: Advocate in Nonadjudicative Proceedings
false; or a lawyer may be surprised when the lawyer’s client, or
another witness called by the lawyer, offers testimony the lawyer
knows to be false, either during the lawyer’s direct examination
or in response to cross-examination by the opposing lawyer. In
such situations, or if the lawyer knows of the falsity of testimony
elicited from the client during a deposition, the lawyer must take
reasonable remedial measures [MR 3.3, cmt. [10]].
(2) When false evidence is offered, a conflict may arise between the
lawyer’s duty to keep the client’s revelations confidential and the
duty of candor to the court [MR 3.3, cmt. [10]].
(a) Upon ascertaining that material evidence is false, the lawyer
should seek to persuade the client that the evidence should
not be offered or, if it has been offered, that its false character should immediately be disclosed [Id.].
(b) If the persuasion is ineffective, the lawyer must take reasonable remedial measures [Id.].
(c) The advocate should seek to withdraw if that will remedy
the situation.
(d) If withdrawal from the representation is not permitted or will not
remedy the effect of the false evidence, the lawyer must make
such disclosure to the tribunal as is reasonably necessary to
remedy the situation, even if doing so requires the lawyer to reveal
information that otherwise would be protected by Rule 1.6 [Id.].
f. Criminal Matters
(1) In a criminal matter, a defendant has a constitutional right to
testify on his own behalf.
(a) If a defendant offers false testimony despite the lawyer’s
remonstrations, the lawyer may seek the judge’s permission
to withdraw in order to avoid assisting the client in committing a fraud on the court.
1) The lawyer may reveal only as much confidential information as is necessary to make the withdrawal request.
(b) Often a trial has progressed to the point where the court will
refuse a lawyer’s request to withdraw from representation.
(c) In some jurisdictions, courts have required counsel to
[MR 3.3, cmt. [7]]:
1) present the accused as a witness; or
2) allow the accused to give a “narrative” statement if the
accused so desires, even if counsel knows that the testimony or statement will be false.
3. Duty of Fairness to Opposing Party and Counsel
a. A lawyer cannot [MR 3.4]:
(1) unlawfully obstruct another party’s access to evidence (or
counsel or assist another person to do so);
155
OUTLINE
I.Regulation
of Lawyers
II. Getting Clients
III. Client-Lawyer Basics
IV. Duties to Clients
Rule 3.1: Meritorious Claims and Contentions
V. Client Confidentiality
Rule 3.3: Candor toward the Tribunal
Rule 3.4: Fairness to Opposing Party and Counsel
VI. Conflicts of Interest
A. Duties to Tribunal
and Court System
Rule 3.2: Expediting Litigation
Rule 3.5: Impartiality and Decorum of the Tribunal
Rule 3.6: Trial Publicity
VII.Duties to Tribunal
and Opposing Parties
Rule 3.7: Lawyer as Witness
Rule 3.8: Special Responsibilities of a Prosecutor
VIII.Duties to Non-Clients
IX. Professional and
Public Duties
X. Judges
156
B. Appearances in
Nonadjudicative
Proceedings
Rule 3.9: Advocate in Nonadjudicative Proceedings
(2) unlawfully alter, destroy, or conceal a document with potential
evidentiary value (or counsel or assist another person to do so);
(3) falsify evidence;
(a) A lawyer may not advise or assist any witness to give false
testimony. A lawyer must be aware of this ethical limit when
preparing witnesses for a deposition or trial. A lawyer can help
a witness testify coherently and completely. A lawyer can try
to refresh a witness’s memory by referring to the testimony of
other witnesses and by referring to documentary evidence.
(b) A lawyer may, however, pay a witness’s reasonably
incurred expenses, reasonable compensation to a witness
for loss of time for attending or testifying in a case, or a
reasonable fee for the professional services of an expert
witness [MR 3.4, cmt. [3]].
1) The fee to an expert witness cannot be contingent upon
the outcome of the litigation or the testimony that the
witness will give [Id.].
(4) knowingly disobey an obligation under the rules of a tribunal except for
an open refusal based on an assertion that no valid obligation exists;
EXAMPLE: If a lawyer is ordered to comply with a discovery request
that the lawyer believes is invalid on the grounds that it is protected
work product, the lawyer can refuse to produce the material so that
the issue of the scope of the work product rule can be litigated.
(5) in a pretrial procedure, make a frivolous discovery request or
fail to make a reasonably diligent effort to comply with a legally
proper discovery request by an opposing party;
(a) A lawyer must make a reasonably diligent effort to search for
any requested documentary evidence and must not frustrate
the taking of depositions of witnesses, including clients and
employees of clients.
(b) A lawyer cannot make frivolous or unduly burdensome
discovery requests as a tactic to interpose delay and additional expense on other parties.
(6) during trial, allude to an irrelevant matter or one that is unsupported by admissible evidence, assert personal knowledge of facts
in issue other than when testifying as a witness, or state a personal
opinion as to the justness of a cause, the witness’s credibility, a
civil litigant’s liability, or a defendant’s guilt or innocence; or
(7) request a person other than a client to refrain from voluntarily
giving relevant information to another party unless:
(a) the person is a relative or an employee or other agent of a
client; and
(b) the lawyer reasonably believes that the person’s interests will not
be adversely affected by refraining from giving such information.
157
OUTLINE
I.Regulation
of Lawyers
II. Getting Clients
III. Client-Lawyer Basics
IV. Duties to Clients
Rule 3.1: Meritorious Claims and Contentions
V. Client Confidentiality
Rule 3.3: Candor toward the Tribunal
Rule 3.4: Fairness to Opposing Party and Counsel
VI. Conflicts of Interest
A. Duties to Tribunal
and Court System
Rule 3.2: Expediting Litigation
Rule 3.5: Impartiality and Decorum of the Tribunal
Rule 3.6: Trial Publicity
VII.Duties to Tribunal
and Opposing Parties
Rule 3.7: Lawyer as Witness
Rule 3.8: Special Responsibilities of a Prosecutor
VIII.Duties to Non-Clients
IX. Professional and
Public Duties
X. Judges
158
B. Appearances in
Nonadjudicative
Proceedings
Rule 3.9: Advocate in Nonadjudicative Proceedings
b. This rule applies in the context of adversarial litigation.
(1) Fair competition in the adversary system is secured by prohibitions against destruction or concealment of evidence, improperly
influencing witnesses, and obstructive tactics in discovery procedure [MR 3.4, cmt. [1]].
4. Duty to Expedite Litigation
a. A lawyer must make a reasonable effort to expedite litigation consistent
with his client’s interests [MR 3.2].
(1) A lawyer must not delay litigation to frustrate an opposing party’s
attempt to obtain rightful redress [MR 3.2, cmt. [1]].
b. The standard for determining the reasonableness of a lawyer’s efforts is
whether a competent lawyer acting in good faith would regard the course
of action as having some substantial purpose other than delay [Id.].
(1) Realizing a financial or other benefit from an otherwise improper
delay in litigation is not a legitimate interest of the client [Id.].
c. While there may be occasions when it is proper for a lawyer to seek
a postponement for personal reasons, delay should not be permitted
merely for the convenience of the advocates [Id.].
5. Duty to Maintain the Impartiality of the Tribunal
a. In order to preserve the impartiality of judicial officers and the court, and
to give all parties equal access to the judicial system, limitations are
placed upon lawyers in their contact with judicial officials and jurors.
b. Judges and Judicial Officials
(1) A lawyer may not [MR 3.5(a), (b)]:
(a) seek to influence a judge or other official by means prohibited by law; or
(b) communicate ex parte about an adversary proceeding with
the judge or other official before whom the proceeding is
pending, unless authorized to do so by law or court order.
(2) To protect the integrity of the judiciary, a lawyer is specifically prohibited from making a statement that he knows to be false or with reckless disregard as to its truth or falsity, concerning the qualifications or
integrity of a judge, adjudicative officer, public legal officer, or candidate for appointment to judicial or legal office [MR 8.2(a)].
c. Jurors
(1) A lawyer may not [Id.]:
(a) seek to illegally influence a juror or prospective juror; or
(b) communicate ex parte about an adversary proceeding with a juror
or prospective juror, except as permitted by law or court order.
(2) Before trial, a lawyer connected with a case, the lawyer’s client,
and persons working for the lawyer are prohibited from communicating with anyone they know to be a member of the venire from
which the jury will be chosen.
159
OUTLINE
I.Regulation
of Lawyers
II. Getting Clients
III. Client-Lawyer Basics
IV. Duties to Clients
Rule 3.1: Meritorious Claims and Contentions
V. Client Confidentiality
Rule 3.3: Candor toward the Tribunal
Rule 3.4: Fairness to Opposing Party and Counsel
VI. Conflicts of Interest
A. Duties to Tribunal
and Court System
Rule 3.2: Expediting Litigation
Rule 3.5: Impartiality and Decorum of the Tribunal
Rule 3.6: Trial Publicity
VII.Duties to Tribunal
and Opposing Parties
Rule 3.7: Lawyer as Witness
Rule 3.8: Special Responsibilities of a Prosecutor
VIII.Duties to Non-Clients
IX. Professional and
Public Duties
X. Judges
160
B. Appearances in
Nonadjudicative
Proceedings
Rule 3.9: Advocate in Nonadjudicative Proceedings
(3)
A lawyer has a right to investigate potential jurors for possible bias
and to learn about their backgrounds. The investigation must not,
however, be vexatious or harassing.
(4) Except during official proceedings, lawyers connected with the
case, their clients, and employees may not communicate with the
jurors or their families in any way, including socializing or sitting
with jurors at a restaurant.
(5) A lawyer may communicate with a juror or prospective juror after
the jury has been discharged unless the communication is prohibited by law or a court order, but must respect the desire of the juror
not to talk with the lawyer. The communication must not constitute
misrepresentation, coercion, duress, or harassment [MR 3.5(c)].
d. The Tribunal
(1) A lawyer must not engage in undignified or discourteous conduct
intended to disrupt a tribunal [MR 3.5(d)].
(2) Refraining from abusive or obstreperous conduct is a corollary of
the advocate’s right to speak on behalf of litigants. 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 [MR 3.5, cmt. [4]].
6. Trial Publicity—Extrajudicial Statements Prejudicial to the Proceedings
a. A lawyer, or any other lawyer that is associated with his firm or government agency, who is participating or has participated in the investigation or litigation of a matter, must not make an extrajudicial statement
that the lawyer knows or reasonably should know will be disseminated
by public communication and will have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter [MR 3.6(a)].
b. A statement is likely to have a material prejudicial effect on an adjudicative proceeding when it refers to a civil matter triable to a jury, a
criminal matter, or any other proceeding that could result in incarceration, and the statement relates to [MRCP 3.6, cmt. [5]]:
(1) the character, credibility, reputation, or criminal record of a party,
suspect, or witness;
(2) the identity of a witness;
(3) the expected testimony of a party or witness;
(4) the possibility of a guilty plea;
(5) the existence or contents of any confession, admission, or statement by a criminal defendant or suspect, or that person’s refusal
or failure to make such a statement;
(6) the performance or results of any examination or test, or failure to
submit to such a test;
(7) the identity or nature of physical evidence expected to be presented;
(8) an opinion regarding guilt or innocence of a criminal defendant or
suspect that could result in incarceration;
161
OUTLINE
I.Regulation
of Lawyers
II. Getting Clients
III. Client-Lawyer Basics
IV. Duties to Clients
Rule 3.1: Meritorious Claims and Contentions
V. Client Confidentiality
Rule 3.3: Candor toward the Tribunal
Rule 3.4: Fairness to Opposing Party and Counsel
VI. Conflicts of Interest
A. Duties to Tribunal
and Court System
Rule 3.2: Expediting Litigation
Rule 3.5: Impartiality and Decorum of the Tribunal
Rule 3.6: Trial Publicity
VII.Duties to Tribunal
and Opposing Parties
Rule 3.7: Lawyer as Witness
Rule 3.8: Special Responsibilities of a Prosecutor
VIII.Duties to Non-Clients
IX. Professional and
Public Duties
X. Judges
162
B. Appearances in
Nonadjudicative
Proceedings
Rule 3.9: Advocate in Nonadjudicative Proceedings
(9) information that is likely to be inadmissible, disclosure of which
would create a substantial risk of prejudice; or
EXAMPLE: A prosecutor may not tell the press that the defendant has been convicted on similar charges in the past if such
information is likely to be excluded at trial.
(10) the fact that a defendant has been charged with a crime, unless
it is also stated that the defendant is presumed innocent until and
unless proven guilty.
EXAMPLE: A prosecutor may state that the defendant “allegedly trespassed” on his neighbor’s lawn or that a defendant is
charged with criminal trespass. He may not state that the defendant “trespassed.”
c. Despite the general prohibition, a lawyer may state [MR 3.6(b)(1)-(6)]:
(1) the claim, offense, or defense involved;
(2) information contained in a public record;
(3) the fact that an investigation is in progress;
(4) the scheduling or result of a step in litigation;
(5) a request for assistance in obtaining evidence and necessary
information; and
EXAMPLE: Pauline Prosecutor may ask the public for help
in locating a witness who may provide crucial evidence in a
murder trial.
(6) a warning of danger concerning the behavior of a person
involved, if there is reason to believe there is a likelihood of
substantial harm to an individual or to the public.
d. In a criminal case, in addition to the above, a lawyer may also state
[MR 3.6(b)(7)]:
(1) the identity, residence, occupation, and family status of the accused;
(2) information necessary to help apprehend the accused, if not
already in custody;
(3) the fact, time, and place of the arrest;
(4) the identity of investigating and arresting officers or agencies; and
(5) the length of the investigation.
7. Lawyer as Witness
a. A lawyer must not serve as an advocate at a trial in which the lawyer is
likely to be a necessary witness, unless [MR 3.7(a)]:
(1) the testimony relates to an uncontested issue;
(2) the testimony relates to the nature and value of legal services
rendered in the case; or
(3) disqualification of the lawyer would create substantial hardship on
the client.
163
OUTLINE
I.Regulation
of Lawyers
II. Getting Clients
III. Client-Lawyer Basics
IV. Duties to Clients
Rule 3.1: Meritorious Claims and Contentions
V. Client Confidentiality
Rule 3.3: Candor toward the Tribunal
Rule 3.4: Fairness to Opposing Party and Counsel
VI. Conflicts of Interest
A. Duties to Tribunal
and Court System
Rule 3.2: Expediting Litigation
Rule 3.5: Impartiality and Decorum of the Tribunal
Rule 3.6: Trial Publicity
VII.Duties to Tribunal
and Opposing Parties
Rule 3.7: Lawyer as Witness
Rule 3.8: Special Responsibilities of a Prosecutor
VIII.Duties to Non-Clients
IX. Professional and
Public Duties
X. Judges
164
B. Appearances in
Nonadjudicative
Proceedings
Rule 3.9: Advocate in Nonadjudicative Proceedings
EXAMPLE: If a matter involves a dispute about the cost of preparing a will, an attorney may testify as to her typical hourly rate to
perform this service even if she acts as an advocate in the matter.
b. If there is likely to be a substantial conflict between the testimony of
the client and that of the lawyer or a member of the lawyer’s firm, the
representation would be improper. The problem can arise whether the
lawyer is called as a witness on behalf of the client or is called by the
opposing party [MR 3.7, cmt. [6]].
c. Determining whether or not such a conflict exists is primarily the
responsibility of the lawyer involved [Id.].
d. A lawyer may act as an advocate in a trial in which another lawyer in his
firm is likely to be called as a witness unless the testifying lawyer would
also be disqualified from the representation due to a conflict [MR 3.7(b)].
(1) If a lawyer who is a member of a firm cannot act as both advocate and witness due to a conflict of interest, Rule 1.10 disqualifies the firm as well [MR 3.7, cmt. [7]].
8. Special Duties of Prosecutors
a. In addition to the general prohibition against extrajudicial statements
that have a substantial likelihood of prejudicing an adjudicatory
proceeding, a prosecutor has special duties.
b. Prosecutors must [MR 3.8(a)-(e)]:
(1) refrain from prosecuting a charge that the prosecutor knows is
not supported by probable cause;
(2) make reasonable efforts to assure that the accused has been
advised of his right to, and the procedure for, obtaining counsel
and that he has been given reasonable opportunity to do so;
(3) not seek to obtain a waiver of important pretrial rights from an
unrepresented accused;
(4) make timely disclosure of all exculpatory and mitigating evidence
(absent a contrary protective order); and
(5) not subpoena a lawyer in a grand jury or criminal proceeding to
present evidence about a past or present client unless:
(a) the information sought is not protected from disclosure by
any applicable privilege;
(b) the evidence sought is essential to the successful completion
of an ongoing investigation or prosecution; and
(c) there is no other feasible alternative to obtain the information.
c. Similarly, prosecutors must use reasonable care to prevent investigators, law enforcement personnel, employees, and others assisting the
prosecutor from making extrajudicial statements that the prosecutor
would be prohibited from making [MR 3.8(f)].
d. When a prosecutor knows of new evidence likely proving that a
convicted defendant is innocent, the prosecutor must promptly disclose
165
OUTLINE
I.Regulation
of Lawyers
II. Getting Clients
III. Client-Lawyer Basics
IV. Duties to Clients
Rule 3.1: Meritorious Claims and Contentions
V. Client Confidentiality
Rule 3.3: Candor toward the Tribunal
Rule 3.4: Fairness to Opposing Party and Counsel
VI. Conflicts of Interest
A. Duties to Tribunal
and Court System
Rule 3.2: Expediting Litigation
Rule 3.5: Impartiality and Decorum of the Tribunal
Rule 3.6: Trial Publicity
VII.Duties to Tribunal
and Opposing Parties
Rule 3.7: Lawyer as Witness
Rule 3.8: Special Responsibilities of a Prosecutor
VIII.Duties to Non-Clients
IX. Professional and
Public Duties
X. Judges
166
B. Appearances in
Nonadjudicative
Proceedings
Rule 3.9: Advocate in Nonadjudicative Proceedings
that evidence to the authorities and, if the conviction was obtained in
the prosecutor’s jurisdiction, to the defendant. In addition, the prosecutor must undertake further investigation to determine if the defendant
was wrongly convicted [MR 3.8(g)].
e. 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 must
seek to remedy the conviction [MR 3.8(h)].
B. Appearances in Nonadjudicative Proceedings
1. Lawyers regularly appear before governmental bodies such as legislative
committees, administrative agencies, and municipal councils that perform
legislative, policy, and rule-making functions.
2. A lawyer representing a client before a legislative or administrative tribunal
in a nonadjudicative proceeding must disclose to the tribunal that his
appearance is in a representative capacity [MR 3.9].
3. A lawyer must conform to the same obligations of candor as to both law and fact
imposed by Rule 3.3(a), the obligation to not unlawfully obstruct access, destroy,
conceal, or falsify evidence imposed by Rule 3.4(a) and (b), the obligation to
obey the rules of the tribunal imposed by Rule 3.4(c), and the Rules designed to
secure the impartiality and decorum of the tribunal imposed by Rule 3.5 [Id.].
4. Lawyers have no exclusive right to appear before nonadjudicative bodies,
as they do before a court [MR 3.9, cmt. [2]]. Therefore, the requirements of
this Rule may subject lawyers to regulations inapplicable to advocates who
are not lawyers [Id].
5. However, legislatures and administrative agencies have a right to expect
lawyers to deal with them as they deal with courts [Id.].
6. The Rules pertaining to dealings with persons other than clients (Rules
4.1 through 4.4) are substituted for Rule 3.9 when a lawyer engages in a
negotiation or bilateral transaction with a government agency, or in connection with an application for a license or other privilege or the client’s compliance with generally applicable reporting requirements, such as the filing of
income tax returns [MR 3.9, cmt. [3]].
a. This Rule also does not apply to the representation of a client in
connection with an investigation or examination of the client’s affairs
conducted by government investigators or examiners [Id.].
167
OUTLINE
I.Regulation
of Lawyers
A. Statements to Third Parties
Rule 4.1: Truthfulness in
Statements to Others
II. Getting Clients
III. Client-Lawyer Basics
B. Communication with Persons
Represented by Counsel
Rule 4.2: Communication with Person
Represented by Counsel
IV. Duties to Clients
V. Client Confidentiality
VI. Conflicts of Interest
C. Communication with
Unrepresented Persons
Rule 4.3: Dealing with
Unrepresented Person
VII.Duties to Tribunal
and Opposing Parties
VIII.Duties to Non-Clients
D. Respecting the Rights
of Third Parties
Rule 4.4: Respect for Rights
of Third Persons
IX. Professional and
Public Duties
X. Judges
168
E. Duties as a Third-Party Neutral
Rule 2.4: Lawyer Serving as
Third-Party Neutral
VIII. DUTIES TO NON-CLIENTS
A. Statements to Third Parties
1. When dealing with third parties in the course of representing a client, lawyers
must not knowingly make a false statement of material fact or law [MR 4.1(a)].
a. A misrepresentation can occur if the lawyer incorporates or affirms
a statement of another person that the lawyer knows is false.
Misrepresentations can also occur by partially true but misleading
statements or omissions that are the equivalent of affirmative false
statements [MR 4.1, cmt. [1]].
2. When dealing with third parties in the course of representing a client,
lawyers must not knowingly fail to disclose a material fact when disclosure
is necessary to avoid assisting an illegal or fraudulent act by a client, unless
disclosure is prohibited by the Rules [MR 4.1(b)].
a. A lawyer must disclose a material fact, including one that may be
protected by the attorney-client privilege, when the disclosure is necessary
to avoid the lawyer’s assistance in the client’s illegal or fraudulent act [Id.].
b. Ordinarily, a lawyer can avoid assisting a client’s crime or fraud by
withdrawing from the representation [MR 4.1, cmt. [3]].
c. Sometimes the lawyer must give notice of withdrawal to third parties
and disaffirm an opinion, document, or affirmation, or even disclose
information (as permitted by Rule 1.6) to avoid being deemed to have
assisted the client’s crime or fraud [Id.].
d. Disclosure is not required unless the lawyer is unable to withdraw or
the client is using the lawyer’s work product to assist the client’s illegal
or fraudulent act.
B. Communication with Persons Represented by Counsel
1. General Prohibition
a. In the course of a representation, a lawyer must not communicate
about the subject of the representation with a person (whether or not
a party to the proceeding) that the lawyer knows is represented by
another lawyer in the matter, unless the lawyer [MR 4.2]:
(1) has the consent of the other lawyer; or
(2) is authorized to do so by law or a court order.
EXAMPLE: Scott is a witness in a criminal trial. Although he has
been granted immunity, he was also involved in the crime in question and is represented by counsel. Defense counsel for another
defendant may not contact Scott without his lawyer’s permission.
b. This prohibition on communications with a represented person only
applies in circumstances where the lawyer knows that the person
is represented. However, such knowledge may be inferred from the
circumstances where there is substantial reason to believe that the
169
OUTLINE
I.Regulation
of Lawyers
A. Statements to Third Parties
Rule 4.1: Truthfulness in
Statements to Others
II. Getting Clients
III. Client-Lawyer Basics
B. Communication with Persons
Represented by Counsel
Rule 4.2: Communication with Person
Represented by Counsel
IV. Duties to Clients
V. Client Confidentiality
VI. Conflicts of Interest
C. Communication with
Unrepresented Persons
Rule 4.3: Dealing with
Unrepresented Person
VII.Duties to Tribunal
and Opposing Parties
VIII.Duties to Non-Clients
D. Respecting the Rights
of Third Parties
Rule 4.4: Respect for Rights
of Third Persons
IX. Professional and
Public Duties
X. Judges
170
E. Duties as a Third-Party Neutral
Rule 2.4: Lawyer Serving as
Third-Party Neutral
person with whom communication is sought is represented in the
matter. A lawyer cannot evade the requirement by simply closing his
eyes to the obvious [MR 4.2, cmt. [8]].
c. The Rule applies even though the represented person initiates or
consents to the communication. A lawyer must immediately terminate
communication with a person if, after commencing communication, the
lawyer learns that the person is one with whom communication is not
permitted by this Rule [MR 4.2, cmt. [3]].
d. This Rule does not prevent a lawyer from encouraging his client to
discuss the matter with the opposing party in a good faith attempt to
settle the matter. Parties to a matter may communicate directly with
each other [MR 4.2, cmt. [4]].
e. Likewise, communications with a represented person, or an employee
or agent of such a person, concerning matters outside the representation are not prohibited [Id.].
f. A lawyer not associated with a matter may communicate with a person
who is represented but may be seeking a second legal opinion.
g. A lawyer may not make a communication prohibited by this rule
through the acts of another [Id.].
2. Opposing Party Is an Organization
a. If the opposing party is an organization, this Rule prohibits communications with a constituent of the organization who supervises, directs, or
regularly consults with the organization’s lawyer concerning the matter
or has authority to obligate the organization with respect to the matter or
whose act or omission in connection with the matter may be imputed to
the organization for purposes of civil or criminal liability [MR 4.2, cmt. [7]].
(1) Consent of the organization’s lawyer is not required for communication with a former constituent [Id.].
(2) If a constituent of the organization is represented in the matter by
his own counsel, the consent by that counsel to a communication
will be sufficient for purposes of this Rule [Id.].
(3) In communicating with a current or former constituent of an organization, a lawyer must not use methods of obtaining evidence
that violate the legal rights of the organization [Id.].
3. Dispute with Government Agency or Body
a. Communications authorized by law include communications by a
lawyer on behalf of a client who is exercising a constitutional or other
legal right to communicate with the government [MR 4.2, cmt [5]].
b. Communications authorized by law also include investigative activities of lawyers representing governmental entities, directly or through
investigative agents, prior to the commencement of criminal or civil
enforcement proceedings [Id.].
c. Moreover, the existence of a controversy between a government agency and a private party does not prohibit a lawyer from
171
OUTLINE
I.Regulation
of Lawyers
A. Statements to Third Parties
Rule 4.1: Truthfulness in
Statements to Others
II. Getting Clients
III. Client-Lawyer Basics
B. Communication with Persons
Represented by Counsel
Rule 4.2: Communication with Person
Represented by Counsel
IV. Duties to Clients
V. Client Confidentiality
VI. Conflicts of Interest
C. Communication with
Unrepresented Persons
Rule 4.3: Dealing with
Unrepresented Person
VII.Duties to Tribunal
and Opposing Parties
VIII.Duties to Non-Clients
D. Respecting the Rights
of Third Parties
Rule 4.4: Respect for Rights
of Third Persons
IX. Professional and
Public Duties
X. Judges
172
E. Duties as a Third-Party Neutral
Rule 2.4: Lawyer Serving as
Third-Party Neutral
communicating with non-lawyer representatives regarding a separate
matter [MR 4.2, cmt. [4]].
4. Parties to a matter may also communicate directly with a lawyer having
independent justification or legal authorization for communicating with a
represented person [Id.].
C. Communication with Unrepresented Persons
1. When dealing on behalf of a client with unrepresented persons, the lawyer
must not state or imply that the lawyer is disinterested [MR 4.3].
2. When the lawyer knows or reasonably should know that the unrepresented
person misunderstands the lawyer’s role in the matter, the lawyer must
make reasonable efforts to correct the misunderstanding [Id.].
3. A lawyer should not give legal advice to an unrepresented person, other than
the advice to secure counsel, if the interests of such a person are or have a
reasonable possibility of being in conflict with the interests of the client [Id.].
a. Whether a lawyer is giving impermissible advice may depend on the
experience and sophistication of the unrepresented person, as well as
the setting in which the behavior and comments occur [MR 4.3, cmt. [2]].
4. Negotiations and Settlements
a. This Rule does not prohibit a lawyer from negotiating the terms of a
transaction or settling a dispute with an unrepresented person. As long
as the lawyer has explained that the lawyer represents an adverse party
and is not representing the person, the lawyer may inform the person
of the terms on which the lawyer’s client will enter into an agreement or
settle a matter, prepare documents that require the person’s signature,
and explain the lawyer’s own view of the meaning of the document or
the lawyer’s view of the underlying legal obligations [Id.].
D. Respecting the Rights of Third Parties
1. In representing a client, a lawyer must not use means that have no substantial
purpose other than to embarrass, harass, delay, or burden a third person, or use
methods of obtaining evidence that violate such a person’s legal rights [MR 4.4(a)].
a. Responsibility to a client requires a lawyer to subordinate the interests of
others to those of the client, but that responsibility does not imply that a
lawyer may disregard the rights of third persons [MR 4.4, cmt. [1]].
b. It is impractical to catalogue all such rights, but they include legal restrictions
on methods of obtaining evidence from third persons and unwarranted intrusions into privileged relationships, such as the client-lawyer relationship [Id.].
2. A lawyer who receives a document or electronically stored information
relating to the representation of the lawyer’s client and knows or reasonably should know that the document or electronically stored information was
inadvertently sent must promptly notify the sender [MR 4.4(b)].
a. Document or electronically stored information includes, in addition
to paper documents, e-mail and other forms of electronically stored
173
OUTLINE
I.Regulation
of Lawyers
A. Statements to Third Parties
Rule 4.1: Truthfulness in
Statements to Others
II. Getting Clients
III. Client-Lawyer Basics
B. Communication with Persons
Represented by Counsel
Rule 4.2: Communication with Person
Represented by Counsel
IV. Duties to Clients
V. Client Confidentiality
VI. Conflicts of Interest
C. Communication with
Unrepresented Persons
Rule 4.3: Dealing with
Unrepresented Person
VII.Duties to Tribunal
and Opposing Parties
VIII.Duties to Non-Clients
D. Respecting the Rights
of Third Parties
Rule 4.4: Respect for Rights
of Third Persons
IX. Professional and
Public Duties
X. Judges
174
E. Duties as a Third-Party Neutral
Rule 2.4: Lawyer Serving as
Third-Party Neutral
information, including embedded data or “metadata” that is subject to
being read or put into readable form [MR 4.4, cmt. [2]].
E. Duties as a Third-Party Neutral
1. A lawyer acts as a third-party neutral when he assists two or more nonclients to reach a resolution of a dispute. Examples include service as an
arbitrator or mediator [MR 2.4(a)].
2. The lawyer must inform unrepresented parties that the lawyer is not representing them [MR 2.4(b)].
3. Furthermore, when the lawyer knows or reasonably should know that
a party does not understand the lawyer’s role, the lawyer must explain
the difference between the lawyer’s role as a third-party neutral and a
lawyer’s role as one representing a client, including the inapplicability of the
attorney-client evidentiary privilege [MR 2.4(b); MR 2.4, cmt. [3]].
175
OUTLINE
I.Regulation
of Lawyers
A. Voluntary Pro
Bono Publico Work
Rule 6.1: Voluntary Pro Bono
Publico Service
II. Getting Clients
III. Client-Lawyer Basics
B.Accepting
Appointments
by the Court
Rule 6.2: Accepting Appointments
IV. Duties to Clients
V. Client Confidentiality
VI. Conflicts of Interest
C. Service as Director,
Officer, or Member
of an Organization
Rule 6.5: Nonprofit and Court
Annexed Limited Legal
Services Programs
Rule 6.3: Membership in Legal
Services Organization
VII.Duties to Tribunal
and Opposing Parties
VIII.Duties to Non-Clients
Rule 6.4: Law Reform Activities
Affecting Client Interests
D. Commenting on Judges
and Judicial Candidates
Rule 8.2: Judicial and Legal Officials
IX. Professional and
Public Duties
X. Judges
176
E. Political Contributions
Rule 7.6: Political Contributions to
Obtain Legal Engagements
or Appointments by Judges
IX. PROFESSIONAL AND PUBLIC DUTIES
A. Voluntary Pro Bono Publico Work
1. Every lawyer has a professional responsibility to provide legal services to
those unable to pay [MR 6.1].
2. A lawyer should aspire to render at least 50 hours of pro bono publico legal
services per year [MR 6.1]. This is not mandatory, but strongly recommended.
a. Each state may decide to choose a higher or lower number of hours
of annual service (which may be expressed as a percentage of a
lawyer’s professional time) depending upon local needs and conditions [MR 6.1, cmt. [1]].
3. A substantial portion of the 50 hours of pro bono publico legal services
should be provided without fee or expectation of fee to [MR 6.1(a)]:
a. persons of limited means; or
b. charitable, religious, civic, community, governmental, and educational
organizations in matters that are designed primarily to address the
needs of persons of limited means.
4. Any additional legal services should be provided by [MR 6.1(b)]:
a. delivery of legal services at no fee or substantially reduced fee to
individuals, groups, or organizations seeking to secure or protect
civil rights, civil liberties or public rights, or charitable, religious, civic,
community, governmental, and educational organizations in matters
in furtherance of their organizational purposes, where the payment
of standard legal fees would significantly deplete the organization’s
economic resources or would be otherwise inappropriate;
b. delivery of legal services at a substantially reduced fee to persons of
limited means; or
c. participation in activities for improving the law, the legal system, or the
legal profession.
5. Lawyers may aggregate to satisfy the pro bono requirements collectively (e.g., a
40-lawyer firm may assign one lawyer to full-time pro bono work) [MR 6.1, cmt. [9]].
6. However, because this Rule establishes only an aspirational standard,
there is no enforcement through a disciplinary process [MR 6.1, cmt. [12]].
B. Accepting Appointments by the Court
1. Where a lawyer is appointed to represent a client, he should accept the
appointment except for good cause, such as, if [MR 6.2]:
a. representing the client is likely to result in a violation of the Rules or
other law;
b. representing the client is likely to result in an unreasonable financial
burden on the lawyer; or
c. the client or the cause is so repugnant to the lawyer as to be likely to impair
the client-lawyer relationship or the lawyer’s ability to represent the client.
177
OUTLINE
I.Regulation
of Lawyers
A. Voluntary Pro
Bono Publico Work
Rule 6.1: Voluntary Pro Bono
Publico Service
II. Getting Clients
III. Client-Lawyer Basics
B.Accepting
Appointments
by the Court
Rule 6.2: Accepting Appointments
IV. Duties to Clients
V. Client Confidentiality
VI. Conflicts of Interest
C. Service as Director,
Officer, or Member
of an Organization
Rule 6.5: Nonprofit and Court
Annexed Limited Legal
Services Programs
Rule 6.3: Membership in Legal
Services Organization
VII.Duties to Tribunal
and Opposing Parties
VIII.Duties to Non-Clients
Rule 6.4: Law Reform Activities
Affecting Client Interests
D. Commenting on Judges
and Judicial Candidates
Rule 8.2: Judicial and Legal Officials
IX. Professional and
Public Duties
X. Judges
178
E. Political Contributions
Rule 7.6: Political Contributions to
Obtain Legal Engagements
or Appointments by Judges
2. An appointed lawyer has the same obligations to the client as retained counsel,
including the obligations of loyalty and confidentiality, and is subject to the
same limitations on the client-lawyer relationship, such as the obligation to
refrain from assisting the client in violation of the Rules [MR 6.2, cmt. [3]].
C. Service as Director, Officer, or Member of an Organization
1. Law-Reform Organization
a. A lawyer may serve as a director, officer, or member of a law-reform
organization, even if the reform may affect the interests of a client of
the lawyer [MR 6.4].
(1) However, when the lawyer knows that a client’s interests will be
materially benefited by a decision in which the lawyer participates,
the lawyer must disclose that fact but not the client’s identity [Id.].
EXAMPLE: Paul, an attorney who sues landlords on behalf of
indigent clients, is asked to serve on the state housing commission, a volunteer organization committed to improving housing in
the state. If he participates in a decision by the commission that
helps one of his clients, Paul must disclose that one of his clients
was helped, but need not provide the client’s identity.
(2) Lawyers involved in organizations seeking law reform generally
do not have a client-lawyer relationship with the organization
[MR 6.4, cmt. [1]].
2. Short-Term Services
a. A lawyer may provide short-term limited legal services for a client
through a nonprofit organization or court (e.g., a legal-advice hotline or
an advice-only legal aid clinic for indigents) where neither lawyer nor
client expects continuing representation.
(1) The lawyer may not be able to systematically screen for conflicts
of interest in these situations [MR 6.5, cmt. [1]].
(2) Thus, the lawyer is subject to the conflict of interest rules (Rules
1.7 and 1.9(a)) only if the lawyer knows that the representation
involves a conflict of interest [MR 6.5(a)(1)].
(3) Moreover, the lawyer may be subject to disqualification under
Rule 1.10 (imputation of conflicts of interest) only if the lawyer
knows that another lawyer in his law firm is disqualified by a
conflict of interest [MR 6.5(a)(2)].
(4) In all other circumstances, Rule 1.10 is inapplicable to such
representations [MR 6.5(b)].
3. Legal Services Organization
a. A lawyer may serve as a director, officer, or member of a legal services
organization, even if the organization serves persons having interests
adverse to a client of the lawyer [MR 6.3].
b. The lawyer should not knowingly participate in a decision or action of
the organization if [Id.]:
179
OUTLINE
I.Regulation
of Lawyers
A. Voluntary Pro
Bono Publico Work
Rule 6.1: Voluntary Pro Bono
Publico Service
II. Getting Clients
III. Client-Lawyer Basics
B.Accepting
Appointments
by the Court
Rule 6.2: Accepting Appointments
IV. Duties to Clients
V. Client Confidentiality
VI. Conflicts of Interest
C. Service as Director,
Officer, or Member
of an Organization
Rule 6.5: Nonprofit and Court
Annexed Limited Legal
Services Programs
Rule 6.3: Membership in Legal
Services Organization
VII.Duties to Tribunal
and Opposing Parties
VIII.Duties to Non-Clients
Rule 6.4: Law Reform Activities
Affecting Client Interests
D. Commenting on Judges
and Judicial Candidates
Rule 8.2: Judicial and Legal Officials
IX. Professional and
Public Duties
X. Judges
180
E. Political Contributions
Rule 7.6: Political Contributions to
Obtain Legal Engagements
or Appointments by Judges
(1) participating in the decision would be incompatible with the
lawyer’s obligation to the client; or
(2) the decision or action could have a material adverse effect on the
representation of a client of the organization whose interests are
adverse to a client of the lawyer.
c. Lawyers should be encouraged to support and participate in legal
service organizations. A lawyer who is an officer or a member of such
an organization does not thereby have a client-lawyer relationship with
persons served by the organization [MR 6.3, cmt. [1]].
(1) However, there is potential for conflict between the interests of such
persons and the interests of the lawyer’s clients [Id.]. If the possibility
of such conflict disqualified a lawyer from serving on the board of a
legal services organization, the profession’s involvement in such
organizations would be severely curtailed [Id.].
D. Commenting on Judges and Judicial Candidates
1. A lawyer must 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, adjudicatory officer or public legal officer, or of a
candidate for election or appointment to judicial office [MR 8.2(a)].
2. A lawyer’s assessment of judges and judicial candidates is relied upon in
evaluating such candidates’ professional or personal fitness for judicial or
legal office. For this reason, it is important that lawyers express honest and
candid opinions on such matters [MR 8.2, cmt. [1]].
a. A false statement by a lawyer can unfairly undermine public confidence
in the administration of justice [Id.].
E. Political Contributions
1. A lawyer or law firm must not accept an engagement for legal work offered
by the government or an appointment by a judge if the lawyer or law firm
makes or solicits political contributions for the purpose of obtaining or being
considered for that type of legal engagement or appointment [MR 7.6].
181
OUTLINE
I.Regulation
of Lawyers
II. Getting Clients
III. Client-Lawyer Basics
IV. Duties to Clients
A. Canon 1
Uphold the independence,
integrity, and impartiality of the
judiciary and avoid impropriety
B. Canon 2
Perform the duties of judicial office
impartially, competently, and diligently
C. Canon 3
Minimize the risk of conflicts between
the judge’s personal activities and the
obligations of judicial office
D. Canon 4
Political and campaign activity must
be consistent with the integrity and
impartiality of the judiciary
V. Client Confidentiality
VI. Conflicts of Interest
VII.Duties to Tribunal
and Opposing Parties
VIII.Duties to Non-Clients
IX. Professional and
Public Duties
X. Judges
182
X. JUDGES
A. Canon 1: Integrity and Independence of the Judiciary
1. A judge must uphold and promote the independence, integrity, and impartiality of the judiciary, and avoid impropriety, including the appearance of
impropriety [CJC Canon 1].
2. General Precepts
a. A judge must at all times comply with the law and this Code [CJC 1.1].
b. A judge must act at all times in a manner that promotes public confidence in the independence, integrity, and impartiality of the judiciary, and
must avoid impropriety and the appearance of impropriety [CJC 1.2].
3. Avoidance of Impropriety
a. A judge must avoid all impropriety and appearance of impropriety
because he must expect to be the subject of constant public scrutiny
[CJC 1.2, cmt. [2]].
b. The test for appearance of impropriety is whether the conduct would
create in reasonable minds a perception that the judge violated this
Code, or engaged in other conduct that reflects adversely on the
judge’s honesty, impartiality, temperament, or fitness to serve as a
judge [CJC 1.2, cmt. [5]].
EXAMPLE: Judge X has been ticketed for driving under the influence
of alcohol. She struck a motorcyclist in a car accident and had a blood
alcohol level over the legal limit. She is subject to discipline.
4. A judge should not allow his family, social, political, financial, or other
interests or relationships to influence his judicial conduct or judgment
[CJC 2.4(B)].
5. A judge should not abuse the prestige of his office to advance the personal or
economic interests of the judge or others, or allow others to do so [CJC 1.3].
6. A judge should not convey or permit others to convey the impression that
they are in a special position to influence the judge [CJC 2.4(C)].
EXAMPLE: In the above example, when a police officer arrived at the
scene, Judge X told the officer, “The motorcyclist looks fine to me. How
about giving me a break and not ticketing me? I’ve seen you in my courtroom. We’re both officers of the court. We can help each other out.” She is
subject to discipline.
7. A judge should not testify voluntarily as a character witness [CJC 3.3].
8. A judge may serve as a personal reference or provide a letter of recommendation based on personal knowledge [CJC 1.3, cmt. [2]].
a. The judge may use official letterhead if the judge indicates that the
reference is personal and if there is no likelihood that the use of the
letterhead would reasonably be perceived as an attempt to exert pressure by reason of the judicial office [Id.].
183
OUTLINE
I.Regulation
of Lawyers
II. Getting Clients
III. Client-Lawyer Basics
IV. Duties to Clients
A. Canon 1
Uphold the independence,
integrity, and impartiality of the
judiciary and avoid impropriety
B. Canon 2
Perform the duties of judicial office
impartially, competently, and diligently
C. Canon 3
Minimize the risk of conflicts between
the judge’s personal activities and the
obligations of judicial office
D. Canon 4
Political and campaign activity must
be consistent with the integrity and
impartiality of the judiciary
V. Client Confidentiality
VI. Conflicts of Interest
VII.Duties to Tribunal
and Opposing Parties
VIII.Duties to Non-Clients
IX. Professional and
Public Duties
X. Judges
184
EXAMPLE: Allison currently works as a clerk for Judge Judy. Allison
is seeking new employment as a clerk for Judge Smith. Allison asks
Judge Judy to provide a reference letter. Judge Judy is not subject to
discipline for writing the letter on court stationery.
9. A judge should not be a member of any organization that practices invidious
discrimination on the basis of race, sex, gender, religion, national origin,
ethnicity, or sexual orientation [CJC 3.6(A)].
a. Whether an organization practices invidious discrimination is a complex
question to which judges should be attentive. The answer cannot
be determined from a mere examination of an organization’s current
membership rolls, but rather depends upon how the organization selects
members, as well as other relevant factors, such as whether the organization is dedicated to the preservation of religious, ethnic, or cultural
values of legitimate common interest to its members, or whether it is an
intimate, purely private organization whose membership limitations could
not constitutionally be prohibited [CJC 3.6, cmt. [2]].
b. A judge’s membership in a religious organization is a lawful exercise of the
freedom of religion, and is not a violation of this Rule [CJC 3.6, cmt. [4]].
c. This Rule does not apply to national or state military service. [CJC
3.6, cmt. [5]].
B. Canon 2: Impartiality, Competence, and Diligence
1. A judge must perform the duties of judicial office impartially, competently,
and diligently [CJC Canon 2].
a. Upholding and applying the law with fairness and impartiality is paramount to a judge’s duties [CJC 2.2].
2. A judge’s judicial duties take precedence over all of the judge’s other
activities [CJC 2.1].
3. Adjudicative Responsibilities
a. A judge should hear and decide matters assigned to him except those
in which he is disqualified [CJC 2.7].
b. A judge should be unswayed by public clamor, or fear of criticism
[CJC 2.4(A)].
c. A judge should require order and decorum in his courtroom [CJC 2.8(A)].
d. A judge should be patient, courteous, and dignified to litigants, jurors,
witnesses, lawyers, court officials, court staff, and others with whom
the judge deals in his official capacity. The judge should require similar
conduct of court personnel and others [CJC 2.8B].
e. A judge should perform judicial duties without bias or prejudice
[CJC 2.3(A)].
(1) The judge should not, in the performance of judicial duties,
by words or conduct, manifest bias or prejudice, or engage in
harassment, based upon race, sex, gender, religion, national
origin, ethnicity, disability, age, sexual orientation, marital status,
185
OUTLINE
I.Regulation
of Lawyers
II. Getting Clients
III. Client-Lawyer Basics
IV. Duties to Clients
A. Canon 1
Uphold the independence,
integrity, and impartiality of the
judiciary and avoid impropriety
B. Canon 2
Perform the duties of judicial office
impartially, competently, and diligently
C. Canon 3
Minimize the risk of conflicts between
the judge’s personal activities and the
obligations of judicial office
D. Canon 4
Political and campaign activity must
be consistent with the integrity and
impartiality of the judiciary
V. Client Confidentiality
VI. Conflicts of Interest
VII.Duties to Tribunal
and Opposing Parties
VIII.Duties to Non-Clients
IX. Professional and
Public Duties
X. Judges
186
socioeconomic status, or political affiliation, and should require
court personnel and others not to do so [CJC 2.3(B)].
(2) Oral communications, and even facial expressions and body
language, can convey an appearance of judicial bias or prejudice
to parties or lawyers in the proceeding, jurors, the media, and
others [CJC 2.3, cmt. [2]].
EXAMPLE: Nancy has a case before Judge John Jones. The
judge in open court refers to Nancy as “sweetheart” and “little
miss” and speaks especially slowly when addressing Nancy’s
elderly client, though the client has indicated no trouble hearing.
The judge is subject to discipline.
f.
A judge should require lawyers in proceedings before him to refrain
from manifesting, by words or conduct, bias or prejudice, or engaging
in harassment, based upon race, sex, religion, national origin,
ethnicity, disability, age, sexual orientation, marital status, socioeconomic status, or political affiliation, against parties, witnesses,
lawyers, or others [CJC 2.3(C)].
g. A judge should accord to every person who has a legal interest in a
proceeding, or that person’s lawyer, the right to be heard according to
law [CJC 2.6(A)].
h. Ex Parte Communications
(1) A judge must not initiate, permit, or consider ex parte communications concerning a pending or impending proceeding [CJC 2.9(A)].
(a) Ex parte communication means a communication,
concerning a pending or impending matter, between counsel
or an unrepresented party and the court when opposing
counsel or an unrepresented party is not present, or any
other communication made to the judge outside the presence of the parties or their lawyers.
(2) A judge must make reasonable efforts, including the provision
of appropriate supervision, to ensure that the general prohibition against ex parte communications is not violated through law
clerks and other court personnel [CJC 2.9(D)].
(3) Ex parte communications that relate to scheduling, administrative purposes, or emergencies, and not to substantive matters or
issues, are authorized, if [CJC 2.9(A)(1)]:
(a) the judge reasonably believes that no party will gain a procedural or tactical advantage as a result; and
(b) the judge takes steps to promptly notify all of the other
parties of the substance of the ex parte communication, and
to give the parties a chance to respond.
(4) A judge may consult with court personnel whose function is to aid
the judge in carrying out the judge’s adjudicative responsibilities,
or with other judges, provided that the judge makes all reasonable
187
OUTLINE
I.Regulation
of Lawyers
II. Getting Clients
III. Client-Lawyer Basics
IV. Duties to Clients
A. Canon 1
Uphold the independence,
integrity, and impartiality of the
judiciary and avoid impropriety
B. Canon 2
Perform the duties of judicial office
impartially, competently, and diligently
C. Canon 3
Minimize the risk of conflicts between
the judge’s personal activities and the
obligations of judicial office
D. Canon 4
Political and campaign activity must
be consistent with the integrity and
impartiality of the judiciary
V. Client Confidentiality
VI. Conflicts of Interest
VII.Duties to Tribunal
and Opposing Parties
VIII.Duties to Non-Clients
IX. Professional and
Public Duties
X. Judges
188
i.
efforts to avoid receiving from court personnel or other judges factual
information that is not part of the case record [CJC 2.9(A)(3)].
(a) A judge may consult with other judges on pending matters,
but must avoid ex parte discussions of a case with judges
who have previously been disqualified from hearing the
matter and with judges who have appellate jurisdiction over
the matter [CJC 2.9, cmt. [5]].
(5) A judge may obtain the advice of a disinterested expert on the
law applicable to a proceeding before the judge if the judge gives
advance notice to the parties of the person consulted and the
subject matter of the advice solicited, and affords the parties
a reasonable opportunity to object or respond to the advice
received [CJC 2.9(A)(2)].
(6) A judge may initiate, receive, permit, or consider an ex parte
communication when serving on therapeutic or problem-solving
courts, mental health courts, or drug courts [CJC 2.9, cmt. [4]].
(a) In this capacity, a judge may assume a more interactive role
with parties, treatment providers, probation officers, social
workers, and others [Id.].
(7) A judge may, with the consent of the parties, confer separately
with the parties and their lawyers in an effort to mediate or settle
civil matters pending before the judge [CJC 2.9(A)(4)].
(8) A judge may initiate, permit, or consider any ex parte communication when authorized by law to do so [CJC 2.9(A)(5)].
(9) If a judge receives an unauthorized ex parte communication
bearing upon the substance of a matter, the judge must make
provision promptly to notify the parties of the substance of the
communication and provide the parties with an opportunity to
respond [CJC 2.9(B)].
(10) A judge may not investigate facts in a matter independently, and
may consider only the evidence presented and any facts that
may properly be judicially noticed [CJC 2.9(C)].
Public Comments
(1) A judge should not make any public statement that might reasonably be expected to affect the outcome or impair the fairness of a
matter pending or impending in any court, or make any nonpublic
statement that might substantially interfere with a fair trial or
hearing [CJC 2.10(A)].
(2) A judge should require similar abstention on the part of his staff
[CJC 2.10(C)].
(a) This rule does not apply to any oral or written statement
made by a judge in the course of his adjudicative duties.
(b) A judge is permitted to make public statements in the course of
official duties and may explain court procedures [CJC 2.10(D)].
189
OUTLINE
I.Regulation
of Lawyers
II. Getting Clients
III. Client-Lawyer Basics
IV. Duties to Clients
A. Canon 1
Uphold the independence,
integrity, and impartiality of the
judiciary and avoid impropriety
B. Canon 2
Perform the duties of judicial office
impartially, competently, and diligently
C. Canon 3
Minimize the risk of conflicts between
the judge’s personal activities and the
obligations of judicial office
D. Canon 4
Political and campaign activity must
be consistent with the integrity and
impartiality of the judiciary
V. Client Confidentiality
VI. Conflicts of Interest
VII.Duties to Tribunal
and Opposing Parties
VIII.Duties to Non-Clients
IX. Professional and
Public Duties
X. Judges
190
(c) A judge is permitted to respond directly or through a third
party to allegations in the media or elsewhere concerning the
judge’s conduct in a matter [CJC 2.10(E)].
(d) This rule does not apply to proceedings in which a judge is a
litigant in a personal capacity [CJC 2.10(D)].
(3) A judge should not commend or criticize jurors for their verdict
other than in a court order or opinion [CJC 2.8(C)].
(4) A judge should not knowingly disclose or use, for any purpose
unrelated to judicial duties, information acquired in a judicial
capacity that is not available to the public [CJC 3.5].
(a) In the course of performing judicial duties, a judge may
acquire information of commercial or other value that is
unavailable to the public. The judge must not reveal or use
such information for personal gain or for any purpose unrelated to his or her judicial duties [CJC 3.5, cmt. [1]].
4. Administrative Responsibilities
a. A judge must perform judicial and administrative duties competently
and diligently [CJC 2.5(A)].
b. A judge must cooperate with other judges and court officials in the
administration of court business [CJC 2.5(B)].
c. A judge must require court staff, court officials, and others subject to
the judge’s direction and control to act in a manner consistent with the
judge’s obligations under this Code [CJC 2.12(A)].
d. A judge with supervisory authority for the judicial performance of other
judges should take reasonable measures to ensure that those judges
properly discharge their judicial responsibilities, including the prompt
disposition of matters before them [CJC 2.12(B)].
e. In making administrative appointments, a judge [CJC 2.13(A)]:
(1) should exercise the power of appointment impartially and on the
basis of merit; and
(2) should avoid nepotism, favoritism, and unnecessary appointments.
5. Disciplinary Responsibilities
a. A judge having knowledge that another judge has committed a violation
of this Code that raises a substantial question regarding the judge’s
honesty, trustworthiness, or fitness as a judge in other respects must
inform the appropriate authority [CJC 2.15(A)].
b. A judge having knowledge that a lawyer has committed a violation of
the Rules of Professional Conduct that raises a substantial question
regarding the lawyer’s honesty, trustworthiness, or fitness as a lawyer
in other respects must inform the appropriate authority [CJC 2.15(B)].
c. A judge who does not have actual knowledge, but who receives
information indicating a substantial likelihood that another judge or
a lawyer has committed misconduct, should take appropriate action
[CJC 2.15(C), (D)].
191
OUTLINE
I.Regulation
of Lawyers
II. Getting Clients
III. Client-Lawyer Basics
IV. Duties to Clients
A. Canon 1
Uphold the independence,
integrity, and impartiality of the
judiciary and avoid impropriety
B. Canon 2
Perform the duties of judicial office
impartially, competently, and diligently
C. Canon 3
Minimize the risk of conflicts between
the judge’s personal activities and the
obligations of judicial office
D. Canon 4
Political and campaign activity must
be consistent with the integrity and
impartiality of the judiciary
V. Client Confidentiality
VI. Conflicts of Interest
VII.Duties to Tribunal
and Opposing Parties
VIII.Duties to Non-Clients
IX. Professional and
Public Duties
X. Judges
192
d. Appropriate action may include, but is not limited to, communicating
directly with the judge or lawyer involved, communicating with a supervising judge, or reporting the suspected violation to the appropriate
disciplinary authority [CJC 2.15, cmt. [2]].
6. Disqualification
a. A judge may recuse himself from a proceeding on his own initiative.
b. A judge must disqualify himself in a proceeding in which his impartiality
may reasonably be questioned, including where [CJC 2.11(A)]:
(1) the judge has a personal bias or prejudice concerning a party or
a party’s lawyer;
(2) the judge has personal knowledge of the disputed facts in controversy;
(3) the judge knows that the judge, the judge’s spouse or domestic
partner, or a person within the third degree of relationship to either
of them, or the spouse or domestic partner of such a person:
(a) is a party to the proceeding, or an officer, director, general
partner, managing member, or trustee of a party;
(b) is acting as a lawyer in the proceeding;
(c) has more than a de minimis interest that could be substantially affected by the proceeding; or
(d) is likely to be a material witness in the proceeding;
(4) the judge knows that he, individually or as a fiduciary, or the
judge’s spouse, domestic partner, parent, or child, or any other
member of the judge’s family residing in the judge’s household,
has an economic interest in the subject matter in controversy or
in a party to the proceeding;
(5) the judge knows or learns by means of a timely motion that a
party, a party’s lawyer, or the law firm of the party’s lawyer has
made contributions to the judge’s campaign in an amount that is
not reasonable or appropriate;
(6) the judge, while a judge or a judicial candidate, has made a
public statement, other than in a court proceeding, judicial decision, or opinion, that commits or appears to commit the judge
to reach a particular result or rule in a particular way in the
proceeding or controversy; or
(7) the judge meets any of the following criteria:
(a) the judge served as a lawyer in the matter in controversy or
was associated with a lawyer who participated substantially
as a lawyer in the matter during such association;
(b) the judge served in governmental employment, and in such
capacity participated personally and substantially as a lawyer
or public official concerning the particular matter, or has
publicly expressed in such capacity an opinion concerning
the merits of the particular matter in controversy;
193
OUTLINE
I.Regulation
of Lawyers
II. Getting Clients
III. Client-Lawyer Basics
IV. Duties to Clients
A. Canon 1
Uphold the independence,
integrity, and impartiality of the
judiciary and avoid impropriety
B. Canon 2
Perform the duties of judicial office
impartially, competently, and diligently
C. Canon 3
Minimize the risk of conflicts between
the judge’s personal activities and the
obligations of judicial office
D. Canon 4
Political and campaign activity must
be consistent with the integrity and
impartiality of the judiciary
V. Client Confidentiality
VI. Conflicts of Interest
VII.Duties to Tribunal
and Opposing Parties
VIII.Duties to Non-Clients
IX. Professional and
Public Duties
X. Judges
194
(c) the judge was a material witness concerning the matter; or
(d) the judge previously presided as a judge over the matter in
another court.
c. Even if the judge believes there is no real basis for disqualification,
a judge may, but is not required to, disclose on the record information that the judge believes the parties or their lawyers might consider
relevant to the question of disqualification [CJC 2.11, cmt. [5]].
d. A judge should keep himself informed about his personal and fiduciary economic interests, and should make a reasonable effort to
inform himself about the personal economic interests of his spouse
or domestic partner and minor children residing in his household
[CJC 2.11(B)].
EXAMPLE: Judge Salcido regularly reviews her retirement fund securities portfolio. She discovers she holds $50,000 worth of stock in XYZ
Inc., a party in a case that has just been assigned to her. She disqualifies herself from participation in the case and asks that it be transferred
to another judge. She is not subject to discipline.
EXAMPLE: Judge Salcido’s domestic partner is an active day trader in
the public securities market, buying and selling a wide range of securities each day. The judge regularly asks her partner what securities are
in her partner’s portfolio. However, her partner innocently misidentifies
to the judge a company in which the partner holds $50,000 worth of
stock as WXY Inc., when in fact the company is XYZ Inc., the party in
the previous example. When assigned to the XYZ Inc. case, the judge
does not disqualify herself. She is not subject to discipline.
(1) An economic interest is ownership of more than a de minimis
legal or equitable interest [CJC Terminology]. However, the
following interests do not constitute economic interests [Id.]:
(a) an interest in the individual holdings within a mutual or
common investment fund;
(b) an interest in securities held by an educational, religious,
charitable, fraternal, or civic organization in which the judge or
the judge’s spouse, domestic partner, parent, or child serves
as a director, an officer, an adviser, or other participant;
(c) a deposit in a financial institution, or deposits or proprietary interests the judge may maintain as a member of a mutual savings
association or credit union, or similar proprietary interests; or
EXAMPLE: Judge Winter has a $100,000 Certificate of Deposit
(CD) held in the Federal Credit Union, which is a plaintiff in a
case assigned to her, the outcome of which will not substantially
affect the value of the CD. The judge would not be disqualified.
(d) an interest in the issuer of government securities held by
the judge.
195
OUTLINE
I.Regulation
of Lawyers
II. Getting Clients
III. Client-Lawyer Basics
IV. Duties to Clients
A. Canon 1
Uphold the independence,
integrity, and impartiality of the
judiciary and avoid impropriety
B. Canon 2
Perform the duties of judicial office
impartially, competently, and diligently
C. Canon 3
Minimize the risk of conflicts between
the judge’s personal activities and the
obligations of judicial office
D. Canon 4
Political and campaign activity must
be consistent with the integrity and
impartiality of the judiciary
V. Client Confidentiality
VI. Conflicts of Interest
VII.Duties to Tribunal
and Opposing Parties
VIII.Duties to Non-Clients
IX. Professional and
Public Duties
X. Judges
196
EXAMPLE: Judge Winter’s personal 401(k) retirement plan
includes ownership of 200 shares of FidelityFund, a portfolio
of various stocks, including JetDyne. The judge does not
participate in management of FidelityFund. JetDyne is the
plaintiff in a case before the judge, the outcome of which will
not substantially affect the value of FidelityFund. The judge
would not be disqualified.
EXAMPLE: Judge Winter and her daughter are directors of
the United Way charity. United Way owns 1,000 shares of
Petrol, Inc., a defendant in a case assigned to the judge. The
judge is not involved in managing Petrol, Inc., and the outcome of the case will not substantially affect its value. The
judge would not be disqualified.
EXAMPLE: Judge Winter’s personal 401(k) retirement plan
is invested substantially in municipal bonds issued by the city
of Columbia, which is in dire financial trouble. Q, one of Columbia’s creditors, has filed a suit assigned to the judge seeking to accelerate Columbia’s multimillion-dollar debt to Q. If Q
prevails, the value of the bonds will fall dramatically because
Columbia may not be able to pay the interest due on them. The
judge would be disqualified.
e. A judge is not necessarily disqualified if a lawyer in the proceeding is
affiliated with a law firm with which the spouse or a relative of the judge
is affiliated [CJC 2.11, cmt. [4]].
(1) Disqualification may be required in appropriate circumstances
where the judge’s impartiality might reasonably be questioned [Id.].
(2) Disqualification may also be required where the judge knows
that his spouse or relative has an interest in a legal organization
and that the organization could be substantially affected by the
outcome of the proceeding [Id.].
7. Remittal of Disqualification
a. Instead of withdrawing, a judge who might be disqualified for a reason
other than bias or prejudice may disclose on the record the basis of the
potential disqualification [CJC 2.11(C)].
b. The judge may ask the parties and their lawyers to consider, out of the
presence of the judge, whether to waive disqualification [Id.].
c. If, following disclosure of any basis for disqualification the parties and
lawyers—independent of the judge’s participation—all agree that the judge
should not be disqualified, the judge may participate in the proceeding [Id.].
d. The agreement must be incorporated into the record of the proceeding [Id.].
EXCEPTION: The parties cannot agree to waive a judge’s disqualification
based on personal bias or prejudice concerning a party. If either of these
situations exists, the judge must disqualify himself [Id.].
197
OUTLINE
I.Regulation
of Lawyers
II. Getting Clients
III. Client-Lawyer Basics
IV. Duties to Clients
A. Canon 1
Uphold the independence,
integrity, and impartiality of the
judiciary and avoid impropriety
B. Canon 2
Perform the duties of judicial office
impartially, competently, and diligently
C. Canon 3
Minimize the risk of conflicts between
the judge’s personal activities and the
obligations of judicial office
D. Canon 4
Political and campaign activity must
be consistent with the integrity and
impartiality of the judiciary
V. Client Confidentiality
VI. Conflicts of Interest
VII.Duties to Tribunal
and Opposing Parties
VIII.Duties to Non-Clients
IX. Professional and
Public Duties
X. Judges
198
(1) By decisional law, the rule of necessity may override the rule of
disqualification, thereby requiring a judge to participate in a matter
because no other non-disqualified judge is available. For example,
a judge might be required to participate in judicial review of a judicial salary statute, or might be the only judge available in a matter
requiring immediate judicial action, such as a hearing on probable
cause or a temporary restraining order [CJC 2.11, cmt. [3]].
(2) In the latter case, the judge must disclose on the record the basis
for possible disqualification and, unless remittal is available, use
reasonable efforts to transfer the matter to another judge as soon
as possible [Id.].
8. Performance-Impaired
a. If a judge believes a lawyer or another judge is performance-impaired
by drugs or alcohol or a mental, emotional, or physical condition, he
must take appropriate action, including a confidential referral to a
lawyer or judicial assistance program [CJC 2.14].
(1) In some situations, the judge may be required to take other
action, such as reporting the impaired person to the appropriate
authority [CJC 2.15, cmt. [2]].
9. Responding to Judicial and Lawyer Misconduct
a. A judge who knows that another judge or a lawyer has committed a
violation that raises a substantial question regarding his honesty, trustworthiness, or fitness in other respects must inform the appropriate
authority [CJC 2.15(A), (B)].
b. A judge who receives information indicating a substantial likelihood
that another judge or lawyer has committed such a violation must take
appropriate action [CJC 2.15(C), (D)].
(1) Appropriate action may include communicating directly with
the person involved or a supervising judge, or reporting the
suspected violation [CJC 2.15, cmt. [2]].
c. A judge must cooperate candidly and honestly with disciplinary agencies
and must not retaliate against a person known or suspected of having
cooperated with an investigation of a judge or a lawyer [CJC 2.16].
C. Canon 3: Extrajudicial Activities
1. Extrajudicial Activities in General
a. A judge must conduct the judge’s personal and extrajudicial activities so as to minimize the risk of conflict with the obligations of judicial
office [CJC Canon 3].
b. A judge must conduct all extrajudicial activities so that [CJC 3.1]:
(1) they do not cast reasonable doubt on the judge’s capacity to act
impartially as a judge;
(2) they do not interfere with the proper performance of judicial duties;
(3) they do not lead to frequent disqualification of the judge;
199
OUTLINE
I.Regulation
of Lawyers
II. Getting Clients
III. Client-Lawyer Basics
IV. Duties to Clients
A. Canon 1
Uphold the independence,
integrity, and impartiality of the
judiciary and avoid impropriety
B. Canon 2
Perform the duties of judicial office
impartially, competently, and diligently
C. Canon 3
Minimize the risk of conflicts between
the judge’s personal activities and the
obligations of judicial office
D. Canon 4
Political and campaign activity must
be consistent with the integrity and
impartiality of the judiciary
V. Client Confidentiality
VI. Conflicts of Interest
VII.Duties to Tribunal
and Opposing Parties
VIII.Duties to Non-Clients
IX. Professional and
Public Duties
X. Judges
200
(4) they do not appear to a reasonable person to undermine the
judge’s independence, integrity, or impartiality;
(5) he does not engage in conduct that would appear to a reasonable person to be coercive; and
(6) he does not make use of court premises, staff, stationery, equipment, or other resources, except for incidental use for extrajudicial activities permitted by law.
c. Expressions of bias or prejudice by a judge, even outside his judicial
activities, may cast reasonable doubt on his capacity to act impartially
as a judge [CJC 3.1, cmt. [3]].
EXAMPLE: Jokes or other remarks made in a public setting that
demean individuals on the basis of their race, sex, religion, national
origin, disability, age, sexual orientation, or socioeconomic status may
cast reasonable doubt on a judge’s capacity to act impartially [Id.].
2. Advocational Activities
a. To the extent that time permits and judicial independence and impartiality are not compromised, judges are encouraged to engage in
appropriate extrajudicial activities [CJC 3.1, cmt. [1]].
b. Judges are uniquely qualified to engage in extrajudicial activities that
concern the law, the legal system, and the administration of justice, by:
(1) speaking, writing, teaching, or participating in scholarly research projects;
(2) participating in judicial or bar association activities; or
(3) serving on a board, commission, committee, or task force established by the Supreme Court or a judicial or bar association.
c. In addition, judges are permitted and encouraged to engage in educational, religious, charitable, fraternal, or civic extrajudicial activities not
conducted for profit, even when the activities do not involve the law [Id.].
3. Civic, Charitable, and Governmental Activities
a. A judge must not appear at a public hearing before, or consult with, an
executive or legislative body or official, except [CJC 3.2]:
(1) on matters concerning the law, the administration of justice, or
the legal system;
(2) in matters in which the judge has acquired knowledge or expertise; or
(3) when acting pro se.
b. A judge may not accept appointment to a governmental commission or
other governmental position that is concerned with matters other than
the law, the legal system, or the administration of justice [CJC 3.4)].
(1) A judge may, however, represent a country, state, or locality on
ceremonial occasions or in connection with historical, educational, or cultural activities [CJC 3.4, cmt. [2]].
(2) A judge may not accept a governmental appointment that is likely
to interfere with the independence and impartiality of the judiciary
[CJC 3.4, cmt. [1]].
201
OUTLINE
I.Regulation
of Lawyers
II. Getting Clients
III. Client-Lawyer Basics
IV. Duties to Clients
A. Canon 1
Uphold the independence,
integrity, and impartiality of the
judiciary and avoid impropriety
B. Canon 2
Perform the duties of judicial office
impartially, competently, and diligently
C. Canon 3
Minimize the risk of conflicts between
the judge’s personal activities and the
obligations of judicial office
D. Canon 4
Political and campaign activity must
be consistent with the integrity and
impartiality of the judiciary
V. Client Confidentiality
VI. Conflicts of Interest
VII.Duties to Tribunal
and Opposing Parties
VIII.Duties to Non-Clients
IX. Professional and
Public Duties
X. Judges
202
4. Participation in Educational, Religious, Charitable, Fraternal, or Civic
Organizations and Activities
a. A judge may participate in activities sponsored by organizations or governmental entities concerned with the law, the legal system, or the administration of justice, and those sponsored by or on behalf of educational,
religious, charitable, fraternal, or civic organizations not conducted for
profit, including, but not limited to, the following activities [CJC 3.7(A)]:
(1) assisting such an organization or entity in planning related to
fundraising, and participating in the management and investment
of the organization’s or entity’s funds;
(2) soliciting contributions for such an organization or entity, but only
from members of the judge’s family or from judges over whom the
judge does not exercise supervisory or appellate authority;
(a) While engaged in permitted extrajudicial activities, judges must not
coerce others or take action that would reasonably be perceived
as coercive. For example, depending upon the circumstances, a
judge’s solicitation of contributions or memberships for an organization, even as permitted by this Rule, might create the risk that
the person solicited would feel obligated to respond favorably,
or would do so to curry favor with the judge [CJC 3.1, cmt. [4]].
(3) soliciting membership for such an organization or entity, even
though the membership dues or fees generated may be used to
support the objectives of the organization or entity, but only if the
organization or entity is concerned with the law, the legal system,
or the administration of justice;
(4) appearing or speaking at, receiving an award or other recognition at, being featured on the program of, and permitting his title
to be used in connection with an event of such an organization or
entity, provided that the participation does not reflect adversely on
the judge’s independence, integrity, or impartiality;
(a) Mere attendance at an event, whether or not the event serves a
fundraising purpose, does not constitute a violation of this Rule.
It is also generally permissible for a judge to serve as an usher
or a food server or preparer, or to perform similar functions, at
fundraising events sponsored by educational, religious, charitable, fraternal, or civic organizations. Such activities are not
solicitation and do not present an element of coercion or abuse
the prestige of judicial office [CJC 3.7, cmt. [3]].
(b) Identification of a judge’s position in educational, religious, charitable, fraternal, or civic organizations on letterhead used for fundraising or membership solicitation does not violate this Rule. The
letterhead may list the judge’s title or judicial office if comparable
designations are used for other persons [CJC 3.7, cmt. [4]].
(5) making recommendations to such a public or private fundgranting organization or entity in connection with its programs
203
OUTLINE
I.Regulation
of Lawyers
II. Getting Clients
III. Client-Lawyer Basics
IV. Duties to Clients
A. Canon 1
Uphold the independence,
integrity, and impartiality of the
judiciary and avoid impropriety
B. Canon 2
Perform the duties of judicial office
impartially, competently, and diligently
C. Canon 3
Minimize the risk of conflicts between
the judge’s personal activities and the
obligations of judicial office
D. Canon 4
Political and campaign activity must
be consistent with the integrity and
impartiality of the judiciary
V. Client Confidentiality
VI. Conflicts of Interest
VII.Duties to Tribunal
and Opposing Parties
VIII.Duties to Non-Clients
IX. Professional and
Public Duties
X. Judges
204
and activities, but only if the organization or entity is concerned
with the law, the legal system, or the administration of justice; and
(6) serving as an officer, director, trustee, or nonlegal adviser of such
an organization or entity, unless it is likely that the organization or
entity will be engaged in:
(a) proceedings that would ordinarily come before the judge; or
(b) frequent adversary proceedings in the court of which the
judge is a member, or in any court subject to the appellate
jurisdiction of the court of which the judge is a member.
b. Pro Bono Publico Services
(1) A judge may encourage lawyers to provide pro bono publico legal
services [CJC 3.7(B)].
5. Financial Activities
a. A judge may hold and manage investments of the judge and members
of the judge’s family [CJC 3.11(A)].
b. A judge may not serve as an officer, director, manager, general partner,
adviser, or employee of or independent contractor for any business
entity, except that a judge may do any of the following [CJC 3.11(B)]:
(1) manage or participate in a business closely held by the judge or
members of the judge’s family; or
(2) manage or participate in a business entity primarily engaged in
investment of the financial resources of the judge or members of
the judge’s family.
c. A judge may not engage in otherwise permitted financial activities if
they will do any of the following [CJC 3.11(C)]:
(1) interfere with the proper performance of judicial duties;
(2) lead to frequent disqualification of the judge;
(3) involve the judge in frequent transactions or continuing business
relationships with lawyers or other persons likely to come before
the court on which the judge serves; or
(4) result in violation of other provisions of this Code.
d. As soon as practicable without serious financial detriment, the judge must
divest himself of investments and other financial interests that might require
frequent disqualification or otherwise violate this Rule [CJC 3.11, cmt. [2]].
e. Gifts
(1) A judge may not accept any gifts, loans, bequests, benefits, or
other things of value, if acceptance would appear to a reasonable person to undermine the judge’s independence, integrity, or
impartiality, except as follows [CJC 3.13(A), (B)]:
(a) items with little intrinsic value, such as plaques, certificates,
trophies, and greeting cards;
(b) gifts, loans, bequests, benefits, or other things of value from
friends, relatives, or other persons, including lawyers, whose
205
OUTLINE
I.Regulation
of Lawyers
II. Getting Clients
III. Client-Lawyer Basics
IV. Duties to Clients
A. Canon 1
Uphold the independence,
integrity, and impartiality of the
judiciary and avoid impropriety
B. Canon 2
Perform the duties of judicial office
impartially, competently, and diligently
C. Canon 3
Minimize the risk of conflicts between
the judge’s personal activities and the
obligations of judicial office
D. Canon 4
Political and campaign activity must
be consistent with the integrity and
impartiality of the judiciary
V. Client Confidentiality
VI. Conflicts of Interest
VII.Duties to Tribunal
and Opposing Parties
VIII.Duties to Non-Clients
IX. Professional and
Public Duties
X. Judges
206
(2)
appearance or interest in a proceeding pending or impending
before the judge would in any event require disqualification
of the judge under Rule 2.11;
(c) ordinary social hospitality;
(d) commercial or financial opportunities and benefits, including
special pricing and discounts, and loans from lending institutions in their regular course of business, if the same opportunities and benefits or loans are made available on the same
terms to similarly situated persons who are not judges;
(e) rewards and prizes given to competitors or participants in
random drawings, contests, or other events that are open to
persons who are not judges;
(f) scholarships, fellowships, and similar benefits or awards, if
they are available to similarly situated persons who are not
judges, based upon the same terms and criteria;
(g) books, magazines, journals, audiovisual materials, and other
resource materials supplied by publishers on a complimentary basis for official use; or
(h) gifts, awards, or benefits associated with the business,
profession, or other separate activity of a spouse, a domestic
partner, or other member of the judge’s family residing in the
judge’s household, but that incidentally benefit the judge.
1) Domestic partner means a person with whom another
person maintains a household and an intimate relationship, other than a person to whom he is legally married
[CJC Terminology].
2) A member of the judge’s family residing in the judge’s
household means any relative of a judge by blood or
marriage, or a person treated by a judge as a member of
the judge’s family, who resides in the judge’s household [Id.].
Subject to the restriction against receipt of gifts that would appear to a
reasonable person to undermine the judge’s independence, integrity, or
impartiality, a judge may also accept the following gifts, but must report
their acceptance to the extent required by Rule 3.15 [CJC 3.11(C)]:
(a) a gift incident to a public testimonial;
(b) an invitation to the judge and the judge’s spouse, domestic
partner, or guest to attend without charge either of the following:
1) an event associated with a bar-related function or
other activity related to the law, the legal system, or the
administration of justice; or
2) an event associated with any of the judge’s educational, religious, charitable, fraternal, or civic activities permitted by this
Code, if the same invitation is offered to non-judges who are
engaged in similar ways in the activity as is the judge; and
207
OUTLINE
I.Regulation
of Lawyers
II. Getting Clients
III. Client-Lawyer Basics
IV. Duties to Clients
A. Canon 1
Uphold the independence,
integrity, and impartiality of the
judiciary and avoid impropriety
B. Canon 2
Perform the duties of judicial office
impartially, competently, and diligently
C. Canon 3
Minimize the risk of conflicts between
the judge’s personal activities and the
obligations of judicial office
D. Canon 4
Political and campaign activity must
be consistent with the integrity and
impartiality of the judiciary
V. Client Confidentiality
VI. Conflicts of Interest
VII.Duties to Tribunal
and Opposing Parties
VIII.Duties to Non-Clients
IX. Professional and
Public Duties
X. Judges
208
(c) any other thing of value, if the donor is neither of the following:
1) a party or other person who has come or is likely to
come or whose interests have come or are likely to
come before the judge; or
2) a person who is doing or seeking to do business with
the court.
f. Reimbursements and Waivers of Fees
(1) A judge may accept reimbursement of necessary and reasonable
expenses for travel, food, lodging, or other incidental expenses,
or a waiver or partial waiver of fees or charges for registration,
tuition, and similar items, from sources other than the judge’s
employing entity, if the expenses or charges are associated with
the judge’s participation in extrajudicial activities permitted by this
Code [CJC 3.14(A)].
(a) Reimbursements are limited to the actual costs reasonably
incurred by the judge and, when appropriate, by the judge’s
spouse, domestic partner, or guest [CJC 3.14(B)].
(b) Such reimbursements and waivers or partial waivers of fees
or charges must be publicly reported as required by Rule
3.15 [CJC 3.14(C)].
g. Reporting Requirements
(1) A judge must publicly report the amount or value of [CJC 3.15(A)]:
(a) compensation received for extrajudicial activities;
(b) gifts and other things of value; and
(c) reimbursement of expenses and waiver of fees or charges.
(2) Certain jurisdictions may provide a minimum dollar amount for
compensation, gifts, reimbursements, and waivers of fees or
charges, below which a judge need not report [Id.].
(3) A judge required to report must include in his report [CJC 3.15(B)]:
(a) the date, place, and nature of the activity for which he
received any compensation;
(b) a description of any gift, loan, bequest, benefit, or other thing
of value accepted; and
(c) the source of reimbursement of expenses or waiver or partial
waiver of fees or charges.
(4) The report must be made at least annually, except that for reimbursement of expenses and waiver or partial waiver of fees or
charges, the report must be made within 30 days following the
conclusion of the event or program [CJC 3.15(C)].
(5) Reports made in compliance with this Rule must be filed as public
documents in the office of the clerk of the court on which the
judge serves or other office designated by law, and, when technically feasible, posted on the court’s website [CJC 3.15(D)].
209
OUTLINE
I.Regulation
of Lawyers
II. Getting Clients
III. Client-Lawyer Basics
IV. Duties to Clients
A. Canon 1
Uphold the independence,
integrity, and impartiality of the
judiciary and avoid impropriety
B. Canon 2
Perform the duties of judicial office
impartially, competently, and diligently
C. Canon 3
Minimize the risk of conflicts between
the judge’s personal activities and the
obligations of judicial office
D. Canon 4
Political and campaign activity must
be consistent with the integrity and
impartiality of the judiciary
V. Client Confidentiality
VI. Conflicts of Interest
VII.Duties to Tribunal
and Opposing Parties
VIII.Duties to Non-Clients
IX. Professional and
Public Duties
X. Judges
210
6. Fiduciary Activities
a. A judge may not accept appointment to serve in a fiduciary position,
such as executor, administrator, trustee, guardian, attorney in fact, or
other personal representative, except for the estate, trust, or person of
a member of the judge’s family, and then only if such service will not
interfere with the proper performance of judicial duties [CJC 3.8(A)].
b. A judge may not serve in a fiduciary position if the judge as fiduciary
will likely be engaged in proceedings that would ordinarily come before
the judge, or if the estate, trust, or ward becomes involved in adversary
proceedings in the court on which the judge serves or one under its
appellate jurisdiction [CJC 3.8(B)].
c. A judge acting in a fiduciary capacity will be subject to the same
restrictions on engaging in financial activities that apply to a judge
personally [CJC 3.8(C)].
d. If a person who is serving in a fiduciary position becomes a judge, he
must comply with this rule as soon as reasonably practicable, but in no
event later than one year after becoming a judge [CJC 3.8(D)].
7. Arbitration or Mediation
a. A judge should not act as an arbitrator or mediator or perform other
judicial functions apart from the judge’s official duties unless expressly
authorized by law [CJC 3.9].
8. Practice of Law
a. A judge should not practice law [CJC 3.10].
b. Notwithstanding this prohibition, a judge may act pro se [Id.].
(1) A judge may act for himself in all legal matters, including matters
involving litigation and appearances before, or other dealings with,
legislative and other governmental bodies [CJC 3.10, cmt. [1]].
(2) In acting pro se, a judge must not abuse the prestige of office to
advance his interests [Id.].
EXAMPLE: Appearing before a local zoning board in a matter
relating to the judge’s property and referring to his judicial capacity would constitute such an abuse.
9. Compensation, Reimbursement, and Reporting
a. A judge may receive reasonable compensation for extrajudicial activities permitted by law unless such acceptance would appear to a
reasonable person to undermine the judge’s independence, integrity, or
impartiality [CJC 3.12].
b. A judge is permitted to accept honoraria, stipends, fees, wages, salaries,
royalties, or other compensation for speaking, teaching, writing, and
other extrajudicial activities, provided that the compensation is reasonable and commensurate with the task performed [CJC 3.12, cmt. [1]].
c. Compensation derived from extrajudicial activities is subject to public
reporting [CJC 3.12, cmt. [2]].
211
OUTLINE
I.Regulation
of Lawyers
II. Getting Clients
III. Client-Lawyer Basics
IV. Duties to Clients
A. Canon 1
Uphold the independence,
integrity, and impartiality of the
judiciary and avoid impropriety
B. Canon 2
Perform the duties of judicial office
impartially, competently, and diligently
C. Canon 3
Minimize the risk of conflicts between
the judge’s personal activities and the
obligations of judicial office
D. Canon 4
Political and campaign activity must
be consistent with the integrity and
impartiality of the judiciary
V. Client Confidentiality
VI. Conflicts of Interest
VII.Duties to Tribunal
and Opposing Parties
VIII.Duties to Non-Clients
IX. Professional and
Public Duties
X. Judges
212
D. Canon 4: Political and Campaign Activities
1. Canon 4 governs a judge’s political activity. This canon is designed to strike
a balance between the need for an impartial and independent judiciary
and the right of judicial candidates to engage in constitutionally protected
political activity.
2. A judge or candidate for judicial office may not engage in political or
campaign activity that is inconsistent with the independence, integrity, or
impartiality of the judiciary [CJC Canon 4].
3. Campaign Activities of Judicial Candidates
a. A judicial candidate will be responsible for all of the following [CJC 4.2(A)]:
(1) acting at all times in a manner consistent with the independence,
integrity, and impartiality of the judiciary;
(2) complying with election, election campaign, and election
campaign fund-raising laws and regulations;
(3) reviewing and approving the content of all campaign statements
and materials produced by the judicial candidate or his campaign
committee before their dissemination; and
(4) taking reasonable measures to ensure that other persons do
not undertake on behalf of the candidate activities, other than
those described in Rule 4.4, that the candidate is prohibited from
engaging in under Rule 4.1.
b. A candidate for an elective judicial office may engage in any of the
following campaign-related activities [CJC 4.2(B)]:
(1) establish a campaign committee pursuant to the provisions of
Rule 4.4;
(2) speak on behalf of his candidacy through advertisements,
websites, or other literature;
(3) publicly endorse or oppose candidates for the same judicial office
for which he is running;
(4) attend or purchase tickets for dinners or other events sponsored
by a political organization or a candidate for public office;
(5) seek, accept, or use endorsements from any person or organization other than a partisan political organization; and
(6) contribute a limited amount of financial support to a political organization or candidate for public office.
c. A judicial candidate in a partisan public election may [CJC 4.2(C)]:
(1) identify himself as a candidate of a political organization; and
(2) seek, accept, and use endorsements of a political organization.
(a) A judicial candidate’s relationship with a political organization may be maintained throughout the period of the public
campaign, and may include use of political party or similar
designations on campaign literature and on the ballot
[CJC 4.2, cmt. [3]].
213
OUTLINE
I.Regulation
of Lawyers
II. Getting Clients
III. Client-Lawyer Basics
IV. Duties to Clients
A. Canon 1
Uphold the independence,
integrity, and impartiality of the
judiciary and avoid impropriety
B. Canon 2
Perform the duties of judicial office
impartially, competently, and diligently
C. Canon 3
Minimize the risk of conflicts between
the judge’s personal activities and the
obligations of judicial office
D. Canon 4
Political and campaign activity must
be consistent with the integrity and
impartiality of the judiciary
V. Client Confidentiality
VI. Conflicts of Interest
VII.Duties to Tribunal
and Opposing Parties
VIII.Duties to Non-Clients
IX. Professional and
Public Duties
X. Judges
214
d. A candidate for appointment to a judicial office may [CJC 4.3]:
(1) communicate with the appointing or confirming authority, including any
selection, screening, or nominating commission or similar agency; and
(2) seek endorsements for the appointment from any person or organization other than a partisan political organization.
4. Campaign Solicitations and Contributions
a. A judicial candidate may not personally solicit campaign contributions, except as expressly authorized, and may not personally accept
campaign contributions [CJC 4.4, cmt. [1]].
b. A judicial candidate may establish a campaign committee to manage
and conduct a campaign for the candidate, subject to the provisions
of this Code. The judicial candidate is responsible for ensuring that his
campaign committee complies with applicable provisions of this Code
and other applicable law [CJC 4.4(A)].
5. Political and Campaign Activities of Judges
a. A judge or judicial candidate may not [CJC 4.1(A)]:
(1) act as a leader of, or hold any office in, a political party;
EXAMPLE: Judge James is a member of the state Democratic
Party. If the party wants to name him Parliamentarian, however,
he must decline.
(2) make speeches for a political party or candidate or publicly
endorse or oppose a candidate for public office;
EXAMPLE: Alice, a candidate for the school board, asks Lori, her
friend who is a judge, to endorse her candidacy. While Lori may
vote for Alice, she must not publicly endorse her.
(3) solicit funds for or make a contribution or expenditure of
campaign funds to a political party or candidate;
(4) attend or purchase tickets for dinners or other events sponsored
by a political organization or a candidate for public office;
(5) publicly identify himself as a candidate of a political organization;
(6) seek, accept, or use endorsements from a political organization;
(7) personally solicit or accept campaign contributions other than
through a campaign committee as authorized by Rule 4.4;
(8) use or permit the use of campaign contributions for the private
benefit of the judge, the candidate, or others;
(9) use court staff, facilities, or other court resources in a campaign
for judicial office;
(10) knowingly, or with reckless disregard for the truth, make a false or
misleading statement;
(11) make any statement that would reasonably be expected to
affect the outcome or impair the fairness of a matter pending or
impending in any court; or
215
OUTLINE
I.Regulation
of Lawyers
II. Getting Clients
III. Client-Lawyer Basics
IV. Duties to Clients
A. Canon 1
Uphold the independence,
integrity, and impartiality of the
judiciary and avoid impropriety
B. Canon 2
Perform the duties of judicial office
impartially, competently, and diligently
C. Canon 3
Minimize the risk of conflicts between
the judge’s personal activities and the
obligations of judicial office
D. Canon 4
Political and campaign activity must
be consistent with the integrity and
impartiality of the judiciary
V. Client Confidentiality
VI. Conflicts of Interest
VII.Duties to Tribunal
and Opposing Parties
VIII.Duties to Non-Clients
IX. Professional and
Public Duties
X. Judges
216
(12) in connection with cases, controversies, or issues that are likely
to come before the court, make pledges, promises, or commitments that are inconsistent with the impartial performance of the
adjudicative duties of judicial office.
EXAMPLE: Sara is a candidate for a position as judge on the Utopia District Court. She tells a reporter that she is against the death
penalty and pledges that, if elected, she would not instruct a jury to
consider it. Sara is subject to discipline for making this statement.
b. A judge or judicial candidate should take reasonable measures to ensure
that other persons do not undertake, on behalf of the judge or judicial
candidate, any of the prohibited activities listed above [CJC 4.1(B)].
c. A judge may engage in activity concerning the law, the legal system, or
the administration of justice [CJC 3.1, cmt. [1]].
6. Activities of Judges Who Become Candidates for Nonjudicial Office
a. A judge must resign from the judicial position held when he becomes a
candidate either in a primary or general election for a nonjudicial elective office [CJC 4.5(A)].
b. A judge is not required to resign from a judicial position upon becoming
a candidate for a nonjudicial appointive office [CJC 4.5(B)].
217
218
Practice Test 1
Questions
PRACTICE TEST 1
Answer Grid
220
1
A
B
C
D
31 A B C D
2
A
B
C
D
32 A B C D
3
A
B
C
D
33 A B C D
4
A
B
C
D
34 A B C D
5
A
B
C
D
35 A B C D
6
A
B
C
D
36 A B C D
7
A
B
C
D
37 A B C D
8
A
B
C
D
38 A B C D
9
A
B
C
D
39 A B C D
10 A B C D
40 A B C D
11 A B C D
41 A B C D
12 A B C D
42 A B C D
13 A B C D
43 A B C D
14 A B C D
44 A B C D
15 A B C D
45 A B C D
16 A B C D
46 A B C D
17 A
47 A B C D
B
C
D
18 A B C D
48 A B C D
19 A B C D
49 A B C D
20 A B C D
50 A B C D
21 A B C D
51 A B C D
22 A B C D
52 A B C D
23 A B C D
53 A B C D
24 A B C D
54 A B C D
25 A B C D
55 A B C D
26 A B C D
56 A B C D
27 A B C D
57 A B C D
28 A
58 A B C D
B
C
D
29 A B C D
59 A B C D
30 A B C D
60 A B C D
QUESTIONS
Question 1
Question 2
Lawyers A and B work for the same law firm
representing personal injury plaintiffs. A tells B
one night after work that she is having a romantic
relationship with a man who regularly supplies her
with cocaine. When B replied that it was wrong to take
cocaine during business hours, A laughed and said that
the cocaine helps her put in long hours of work without
the need to sleep and helps her to give more time to her
clients and their problems. B recommends that A put
herself into rehabilitation. A explodes: “This is none
of your business! Check out my new car. I didn’t get
money for that by losing cases. The cocaine doesn’t
affect my ability to practice law. Why don’t you mind
your own business?” Neither of them takes any further
action on the issue.
Right before killing his wife, a man called his lawyer and
asked to meet with him for advice. They met for a beer
in a booth at a local bar, which was empty except for the
bartender. The man appeared upset, and the lawyer tried to
calm him down. In hushed tones, the man told the lawyer
that his wife made him confused and angry and that he
had just bought a handgun. The lawyer advised the man
not to do anything rash and told him to seek psychiatric
help. The man returned home and shot his wife.
Are either of them subject to discipline under the
Model Rules?
(A) A is not subject to discipline because the cocaine
has not affected her ability to practice law.
After the man was taken into custody, he called the
lawyer and said, “I told my friend about your advice
to me in the bar, and he said what you know about
the law would fit in a shot glass. You’re fired.” The
man then hired a different lawyer to defend him. The
prosecutor subpoenaed the first lawyer to testify at
the man’s trial, and asked him what the man had said
about his wife in the bar. The first lawyer objected to
answering on the basis of attorney-client privilege.
Is it proper for the first lawyer to testify?
(B) A is subject to discipline for failing to report
her own drug use.
(A) Yes, because the man had discharged the first
lawyer, waiving the attorney-client privilege.
(C) B is not subject to discipline for failing to
report A’s illegal drug use to the bar because
she never personally saw A use the drugs.
(B) Yes, because the man waived the protection
of the privilege by talking to his friend about
the conversation.
(D) A may be subject to discipline for her
cocaine use, and B may be subject to
discipline if B does not report A to the Bar.
(C) No, because no one overheard the statement
when the man made it.
(D) No, because the man did not use the lawyer’s
services in committing the crime.
Question 3
A lawyer handles plaintiff’s mass tort cases. When he wants
to make a settlement offer, he always does so in writing
and sends a copy to opposing counsel and to the defendant.
His letters generally state that the plaintiff will consent to
a dismissal of the lawsuit if the defendant agrees to pay a
stated sum of money and to reform its business practices.
Should the lawyer be subject to discipline for this practice?
(A) No, because he has an ethical duty to try to
settle cases.
(B) No, because a copy was also sent to
opposing counsel.
(C) Yes, unless opposing counsel knows that
he is sending the letter to the defendant and
consents to his doing so.
(D) Yes, unless he keeps a copy of the settlement
letter to show that he made a settlement offer.
221
PRACTICE TEST 1
Question 4
Question 5
A celebrity was recently bound over for trial on highly
publicized charges that he murdered his ex-wife with
a handgun. Prior to his arrest, he spent several hours
riding around in his car, which was driven by his close
friend. In the car, the celebrity confessed the murder
to his friend. The celebrity’s lawyer publicly denies
the charges. The friend is charged with a felony for
aiding the celebrity’s flight from arrest. The friend
hires a different lawyer to defend him on the flightaiding charge. Thereafter, the two lawyers and the
two defendants have a conference pursuant to a joint
defense agreement, at which time the celebrity repeats
his confession that he earlier made to his friend.
The friend later decides to plead guilty. To help his
client get a more lenient sentence, the friend’s lawyer
repeats the celebrity’s confession given at the joint
defense meeting to prosecutors.
A successful investor wants his lawyer to file suit
against a competing investment broker. The investor
is a sophisticated litigant and tells the lawyer to allege
four separate claims: restraint of trade, unfair business
competition, stealing of trade secrets, and interference
with customers. He also demands the lawyer make
a claim for punitive damages. The investor signs the
lawyer’s retainer agreement and gives him a $50,000
cashier’s check as a retainer. While investigating the
facts in preparation for drafting the complaint, the
lawyer discovers conclusively that the restraint and
competition claims are weak but at least arguably
meritorious, and the trade secrets and interference
claims have no basis in fact and will not be supported
by any evidence. He also discovers that any claim
for punitive damages would be frivolous. The lawyer
warns the investor that a court will find the trade
secrets and interference claims and the demand for
punitive damages frivolous. “Frivolous?” the investor
shouts. “I’m telling you I believe they stole my secret
investment formula for derivatives and tried to steal
my customers. How dare you tell me I’m frivolous?”
The investor insists that the lawyer bring all four
claims and demand punitive damages. The lawyer
brings the action as directed.
Is the friend’s lawyer subject to discipline?
(A) No, because the celebrity’s statements to
the friend’s lawyer are not protected from
disclosure since the friend has pleaded guilty.
(B) No, because the celebrity’s statements to
the friend’s lawyer are not protected from
disclosure insofar as the friend’s lawyer is
not the celebrity’s lawyer.
(C) Yes, because the celebrity’s statements to
the friend’s lawyer are absolutely privileged
from disclosure.
(D) Yes, because the celebrity’s confession to
the friend’s lawyer in the friend’s presence
renders the celebrity’s prior statements to the
friend privileged and confidential.
Will the lawyer be subject to discipline and/or
litigation sanctions?
(A) No, because even though the attorney
may decide strategic matters in certain
circumstances, the client controls all major
decisions in the litigation and the lawyer must
include all claims as directed by the investor.
(B) No, because the lawyer must zealously
represent his client and may rely upon the
client’s characterization of the evidence.
(C) Yes, because he asserted frivolous claims and
damage demands and will therefore be subject
to sanctions by both the bar and the court.
(D) Yes, however, the lawyer cannot receive both
discipline from the state ethics commission and
litigation sanctions because this would violate
the Double Jeopardy clause of the Constitution.
222
QUESTIONS
Question 6
Question 8
A client retained a lawyer to appeal his criminal
conviction and to seek bail pending appeal. They
agreed on a fee of $200 an hour for the appearance on
the bail hearing. The client paid the lawyer $2,000,
$500 of which was for bail costs if the lawyer could
obtain bail. The lawyer maintained two office bank
accounts: a “Fee Account” in which all fees were
deposited and from which all office expenses were
paid, and a “Clients’ Fund Account.” The lawyer
deposited the $2,000 in the Clients’ Fund Account the
week before the bail hearing. She spent six hours on
the bail hearing, but did not succeed in obtaining bail.
Dissatisfied, the client immediately demanded that
the lawyer return the $2000. The lawyer left the entire
$2000 in the Clients’ Fund Account due to the dispute.
Due to an economic slump, a midsized law firm has
decided to do some cost-cutting. The managing partner
authorizes the office manager to make whatever
decisions are necessary to reduce overhead by
$200,000 per year. The office manager eliminates the
coffee service, restricts all members of the firm to two
hours of paid online research per month, sells off the
firm’s law library, and eliminates the firm’s mentorship
program for new associates. Several months later,
having failed to perform legal research because she had
already used her permitted online research time, one of
the associates fails to cite an important precedent in one
of her briefs. After losing the case, her client finds out
about the error and threatens to report the associate to
the disciplinary authorities.
Is the lawyer’s conduct proper?
Will the associate be subject to discipline?
(A) Yes, because she cannot touch the money
until the dispute is resolved.
(B) Yes, because she cannot comingle her own
money with the client’s money.
(C) No, because she should write the client a
$1200 check and keep $800 in the Clients’
Fund Account until the dispute is resolved.
(D) No, because she should write the client an
$800 check and keep $1200 in the Clients’
Fund Account until the dispute is resolved.
Question 7
A lawyer worked for the Environmental Protection
Agency (EPA) for several years. While employed
there, she was the lead counsel on a Clean Air Act
case against a local conglomerate. She then left the
EPA and opened a private law practice. The following
year, a local environmental group asked her to bring
a lawsuit against the conglomerate. The facts and
allegations they are making are very similar to those
in the case the lawyer worked on for the EPA.
May she properly accept the case?
(A) Yes, because her legal arguments in this case
would be the same as her legal arguments in
the EPA case.
(B) Yes, if the conglomerate consents to her
representing the local environmental group.
(C) No, because the conglomerate’s interests
would be prejudiced.
(D) No, unless the lawyer has the EPA’s consent.
(A) Yes, because the associate did not have the
appropriate resources and did not seek to
remedy the problem.
(B) Yes, because the associate alone is solely
responsible for her work.
(C) No, because the partner was responsible for
the associate not having the resources to do
her job.
(D) No, because the client will not be able to
show that the failure to cite the case was a
but-for cause of her losing.
Question 9
A lawyer sees opposing counsel pay a judge $1,000
in cash before their trial. She is convinced that the
payment is a bribe and confronts the judge, who
denies the allegation. The jury finds in favor of the
lawyer’s client, not opposing counsel’s. Happy with
the result, she then moves on to other cases.
Is the lawyer subject to discipline?
(A) Yes, because she did not report the judge
and opposing counsel to the appropriate
authority.
(B) Yes, because she did not report the
judge’s conduct.
(C) No, because the judge denied the accusation
of bribery.
(D) No, because she does not have a duty to
report judicial misconduct, only misconduct
by attorneys.
223
PRACTICE TEST 1
Question 10
Question 11
Being the only lawyer in town, Halley takes out a
small ad in the phone book that reads: “Madison
Town Legal Clinic…operated by Halley, your
hometown private attorney.”
In a medical malpractice trial, a woman’s estate alleges
that the defendant surgeon negligently failed to remove a
cancerous tumor. The estate’s lawyer will be calling three
witnesses to testify on the estate’s behalf. Witness A, a
trained and licensed nurse with 20 years of experience,
will testify that she was in the operating room assisting
in the operation and heard the defendant state that he
was in a hurry to complete the woman’s operation
because he had an important meeting with a business
partner. Witness B will testify that the woman suffered
a slow, lingering death following the operation. Witness
C is a surgeon who will testify that based on his expert
opinion, a competent surgeon would have discovered
and removed the woman’s tumor. The lawyer reimburses
Witnesses A and B for the travel and hotel costs incurred
as a result of their trial testimony. He makes an agreement
with Witness C to pay a $5,000 fee if the estate prevails in
the suit and no fee if the estate is unsuccessful.
Has Halley’s advertisement violated the Model Rules?
(A) No, she may not be subject to discipline because
lawyers are allowed to advertise in phone books.
(B) No, she may not be subject to discipline
because the solicitation is not misleading.
(C) Yes, she may be subject to discipline for
making a false statement.
(D) Yes, she may be subject to discipline for failing
to include a disclaimer that her firm is not
connected with a government agency or public
or charitable legal services organization.
Is the lawyer’s conduct proper?
(A) Yes, because it is proper to pay the
reasonable travel and hotel expenses incurred
by fact witnesses and to pay a contingency
fee to an expert witness.
(B) Yes, because the Model Rules allow an
expert to be paid under any fee arrangement
to which he agrees.
(C) No, because testifying is a civic duty and
fact witnesses should not be reimbursed for
their expenses.
(D) No, because it is improper to make a contingency
fee arrangement with an expert witness.
224
QUESTIONS
Question 12
Question 13
A lawyer hired a paralegal to prepare documents.
They had worked together for three years, and the
lawyer has carefully reviewed all of the paralegal’s
work before submitting it to a client or the court. The
lawyer recently left the paralegal a client’s document
with specific written instructions to file it in Court
A. The paralegal misread the instructions and filed
the document in Court B instead. Court B had no
jurisdiction to review the document, and the statute of
limitations expired before the lawyer discovered the
misfiling. Court A refused to allow the attorney to file
the client’s document.
A prosecutor has a high-profile case against two
defendants accused of killing their wealthy aunt
and uncle, with whom the defendants lived since
childhood. The defendants are the only known living
relatives of the victims and stand to inherit a great
deal of money. Autopsies revealed severe bacterial
infection, but the State will argue that the defendants
introduced the substance into their relatives’ food.
The State plans to charge the defendants with
manslaughter only, as they are claiming imperfect
self-defense because the aunt and uncle allegedly
abused them when they were children. The prosecutor
knows it will be difficult to get a conviction even
for manslaughter given the evidence of the relatives’
abuse of the defendants likely to be admitted at
trial. Without the knowledge of defense counsel,
the prosecutor visits the defendants at the jail where
they are in custody, and says, “Mind if we talk for a
minute?” The defendants nod their heads yes. With
their consent, he makes one last try at obtaining
either an admission from them or a plea to a lesser
charge. They say they can’t agree to anything because
their lawyer told them he is going to win. Then the
prosecutor says, “Well, if that’s how you want it, tell
that sleazy lawyer of yours that I’m going for Murder
One—the death penalty.” The women then confess to
the killings and agree to plead guilty to manslaughter.
Is the lawyer subject to discipline under the Model Rules?
(A) Yes, because the resulting failure to file by the
deadline is cause for discipline and makes him
subject to liability for malpractice.
(B) Yes, because his failure to recheck
immediately after the filing is cause for
discipline even though it does not subject
him to malpractice liability.
(C) No, because he did not fail to supervise the
paralegal. However, he may be subject to
liability for malpractice.
(D) No, because his good faith and adequate
supervision of the paralegal protects him
from both discipline and malpractice liability.
Is the prosecutor subject to discipline?
(A) Yes, because he attempted to extort a plea by
threatening to seek additional charges simply to
coerce the defendants into pleading guilty to an
offense that they may not have committed.
(B) Yes, because he visited the defendants in jail.
(C) No, because he obtained the knowing and
voluntary consent of the defendants before
speaking with them.
(D) No, because even though visiting two
criminal defendants in custody without their
attorney present is improper, they confessed
to the crime.
225
PRACTICE TEST 1
Question 14
Question 15
A lawyer is representing the defendant in a personal
injury case in state court. The plaintiff claimed he was
hit by the defendant’s bus when crossing the street in
a crosswalk, resulting in permanent paralysis. Several
years before the accident, the plaintiff’s lawyer and
the judge assigned to hear the case worked together
as prosecutors and were trial partners in many cases.
They were also golf buddies and their families
vacationed together for many years, including six
months before the personal injury case went to trial.
The judge does not disclose the personal relationship
to the defendant because he believes that he can
approach the case in a fair and impartial way.
In a civil trial, the defendant’s lawyer had a sense that
the plaintiff was being evasive and lying. During a
break, he had his paralegal run the plaintiff’s name
through the court’s database of decided cases. The
paralegal found a case in which the plaintiff was
convicted of perjury for giving false testimony in a
trade-secrets case several years earlier.
Is the judge’s conduct proper?
(A) Yes, because the plaintiff’s lawyer was not
working on the personal injury case when he
and the judge worked together as prosecutors.
(B) Yes, because judges formerly employed by
governmental agencies need not disqualify
themselves even if their impartiality might
reasonably be questioned.
(C) No, because the judge had an affirmative
obligation to disclose the prior business
and social relationship between the parties
even though the judge did not believe it was
grounds for disqualification.
(D) No, because the judge’s impartiality is
automatically subject to question and raises
the appearance of impropriety.
Although the defendant’s lawyer was excited to have
found this potentially devastating fact, he began
questioning the plaintiff gently on cross-examination
to get him to let his guard down. Then, when the
plaintiff least expected it, he thundered, “Isn’t it true
that you were convicted of perjury in a trade-secrets
case you brought several years ago?” The defendant’s
lawyer had not turned over the damaging evidence
before the cross-examination. Opposing counsel leapt
to his feet crying, “Objection! We never received
this evidence in discovery!” The defendant’s lawyer
noticed with satisfaction the disapproving looks on
the faces of the jury, and quickly said, “I’ll withdraw
the question, Your Honor,” before the judge had time
to rule on the objection.
Is the defendant’s lawyer subject to discipline?
(A) No, because he did not violate a rule of
professional conduct.
(B) No, because the plaintiff could have found
the evidence himself through due diligence.
(C) Yes, because his question was designed
solely to embarrass, degrade, or humiliate
the witness.
(D) Yes, because he alluded to a matter that he
did not reasonably believe was relevant or
supported by admissible evidence.
226
QUESTIONS
Question 16
Question 17
A large law firm was disqualified from a corporate
case because of a conflict of interest. A third-year
associate then left the firm and went to work at a small
firm in the same city. The corporate president knew
the associate and asked the small firm to take the case.
The associate had no involvement with the corporate
case and no involvement with the matter giving rise
to the conflict of interest while at the large firm, but
the court ruled in disqualifying the large firm that the
conflict of interest was imputed to the entire firm.
A Superior Court judge has a large family and needs
a bigger house. He finds the perfect house, but needs
a large loan. He makes an appointment with a loan
officer at a bank that he heard gives judges a good
deal. After some investigation, the loan officer says in
confidential tones, “Not to worry, Your Honor. Your
income is fine. We have a specially priced loan for
you. It’s only offered to professionals such as judges,
accountants, lawyers, doctors, and dentists. You can
borrow up to $400,000.” Overjoyed, the judge is
about to sign the papers when he suddenly realizes
he has seen the loan officer before in the hallways of
his courthouse. He remembers that the bank appeared
before him in two mortgage foreclosure actions within
the past year and may do so in the coming year.
Will lawyers at the small firm be subject to discipline
for taking the case?
(A) Yes, because the connection-by-associate
between the two firms causes them to constitute
one “firm” as defined by the ethics rules.
(B) Yes, because the court’s prior order
continued to disqualify the associate from
representing the corporation in the case.
(C) No, because the prior disqualification of
the large firm only applies to attorneys who
continue to work at that firm.
(D) No, because the imputed conflict of interest
no longer applies to the associate.
Will the judge’s acceptance of this loan subject him
to discipline?
(A) No, because a judge is free to accept a loan
from anyone.
(B) No, because a judge may accept a loan from
a lending institution in its regular course
of business on the same terms generally
available to people who are not judges.
(C) Yes, because a judge may not accept loans
from parties who have appeared before him.
(D) Yes, because a judge’s duty to avoid the
appearance of impropriety extends to
rejecting loans that are not available to any
member of the general public.
227
PRACTICE TEST 1
Question 18
Question 19
Two law school friends who just passed the bar exam
want to go into practice together. They don’t recall
much about business organizations, so they ask their
former business law professor to provide joint legal
representation to them in forming their new firm.
A, although just an average law student, will invest
more money in the firm than will B. B, who was a
top law student, will take on extra duties. They aren’t
sure whether one of them should be in charge or they
should equally manage the firm. B believes that she
should receive a greater interest in the profits. A thinks
profits should be split evenly, but wants a 51 percent
interest in voting control in the event of a dispute
between the parties. B thinks the professor should list
himself as the paid arbitrator in the agreement in the
event of an irreconcilable dispute between the parties.
A might agree to arbitration, but not to naming the
professor as the arbitrator.
A lawyer prepares a contract for a client. Many
months later, the lawyer learns that the contract
was based on fraudulent information. He tells the
client to rectify the problem. The client refuses to
do so on the basis that he believes the information is
unimportant to the contract. The lawyer disagrees, and
is convinced that the other party will lose a substantial
amount of money if he is not advised of the fraud.
Without the client’s consent or permission, the lawyer
writes the other party and reveals that the contract was
based on fraudulent information.
Is the professor’s joint representation of the partners
ethically proper?
(A) Yes, because the client could foresee that the
lawyer would reveal the information to the
other party.
(B) Yes, because disclosure was necessary to
mitigate injury to the other party’s financial
interests which resulted from the client’s use
of the lawyer’s services to commit fraud.
(A) Yes, if it is obvious that he can settle the
disputed terms through negotiations and
without conflict, and if both partners consent
after disclosure.
(C) No, because the attorney revealed
information which the client divulged to
him in confidence and the revelation was
disadvantageous to his client.
(B) Yes, if he reasonably believes he can provide
competent and diligent representation to
both, and if he obtains their informed consent
confirmed in writing.
(D) No, because the disclosure was not necessary
to the attorney’s continued representation of
the client.
(C) No, unless he structures their firm with
equal management, control, and equal
compensation, despite the fact that A’s
financial investment is more than B’s.
(D) No, because there is a concurrent conflict
of interest that is directly adverse to the
interests of the parties.
228
Was the lawyer’s action proper?
QUESTIONS
Question 20
Question 21
A famous white-collar criminal defense lawyer is
retained by an executive of an insurance company,
who is charged with having bilked investors out of
their life savings. The executive is released on bond
and meets with the lawyer at his office. After looking
at the evidence obtained in discovery, the lawyer tells
the executive that he is probably going to lose at trial
and go to jail. The executive says, “I wish I knew
which countries did not have extradition treaties with
the United States. That would sure be a good way for
me to get out of this mess.” The lawyer goes over to
his bookshelf and opens an international law treatise
to the page showing countries having no extradition
treaties with the United States, hands the book to the
client, and walks out of the room. When the lawyer
returns, he tells the executive that his bail conditions
would be violated and that the executive could be
subject to a second charge of bail jumping if he fled
the country to avoid trial.
A businessman known for his hot temper asks
a lawyer to negotiate a contract between the
businessman and a supplier. During negotiations,
the lawyer becomes frustrated with the supplier’s
recalcitrance and says, while standing very close to
the supplier’s president, “If we can’t work this out,
my client is liable to do something crazy to you.”
Is the lawyer subject to discipline?
(A) Yes, because he provided his client with the
information needed to help him succeed in
fleeing the country.
(B) Yes, because he had an obligation to
immediately withdraw from his client’s case
when the executive expressed his intention to
flee the country.
(C) No, because he has the right to discuss the
legal consequences of any proposed course
of conduct with a client even if the conduct
is illegal.
(D) No, because he expressly advised his client
that the law prohibited his conduct.
Is the lawyer subject to discipline?
(A) Yes, provided that his sole purpose was to
embarrass or harass the supplier’s president.
(B) Yes, provided that he is licensed to practice
law in the state and negotiated the contract in
the state.
(C) No, because negotiating a contract is not
considered practicing law.
(D) No, because his actions are not unethical.
Question 22
A lawyer has been practicing criminal law for 20
years. His local bar association voted him the best
criminal lawyer in the city last year. The local
district court recently called the lawyer, who is gay,
and asked him to represent, pro bono, a young man
who has been accused of beating a gay man with a
bat while yelling homophobic slurs. The lawyer’s
friend was killed in a similar incident, and the lawyer
has devoted himself to strengthening hate crime
legislation in his state.
Is it proper for the lawyer to decline the court appointment?
(A) Yes, because a lawyer need not accept all
court appointments.
(B) Yes, because he is entitled to decline
representation if his strong feelings about the
issue would make it difficult for him to carry
out the representation.
(C) No, because lawyers may not seek to avoid
court appointments.
(D) No, because every lawyer is required to
complete a certain amount of pro bono work
per year.
229
PRACTICE TEST 1
Question 23
Question 24
A client retains counsel to get legal advice about how
to deal with her previous lawyer, who stole $15,000
from her. She says, “Please do not tell anyone about
my previous lawyer’s actions.” She explains that the
previous lawyer is married to the client’s sister, who is
dying of cancer and has never been able to see him for
who he truly is. The lawyer explains to the client that
he can’t help her unless he can reveal that information,
but promises to keep it secret nonetheless.
A longtime employee of a company sues the human
resources director, claiming that she terminated
him because of his age and because she could pay
a younger employee less. The director meets with
the company president to ask whether the company
will provide her with a lawyer and a defense. The
president assures the director that the company
defends its employees against frivolous lawsuits and
pays their legal fees. The president asks a lawyer
he knows to represent the director. During their
conversation, he says to the lawyer, “Thanks so much
for helping us out again. Let me know if I can assist in
any way, and please keep me posted on any significant
developments.” The director later comments to the
lawyer, “That employee was a typical old man. These
oldsters are not grateful for what we’ve done for them
all these years, and they don’t understand we can get
their jobs done more cheaply by younger workers.
I’ve documented my file about it.” The lawyer
immediately contacts the president, pursuant to the
president’s request to keep him informed, and tells
him the substance and potential problems with the
director’s comment.
Is the lawyer subject to discipline if he doesn’t report
the previous lawyer’s misconduct?
(A) No, because the information is protected by
attorney-client privilege.
(B) No, because the first lawyer is related to the
client by marriage.
(C) Yes, because the previous lawyer stole more
than $10,000 from the client.
(D) Yes, because he is ethically required to report
attorney misconduct to the disciplinary authorities.
Is the lawyer subject to discipline?
(A) Yes, because the director is the lawyer’s client.
(B) Yes, because the lawyer cannot represent the
director and be paid by the company where
a potential conflict of interest exists between
the director and the company.
(C) No, because a lawyer must keep clients
advised of all significant developments.
(D) No, because the lawyer had the option
of contacting the president as long as the
lawyer exercised reasonable discretion
under the circumstances.
230
QUESTIONS
Question 25
Question 26
A lawyer specializes in high-profile criminal defense
representation and has earned a reputation for winning
difficult cases. One of his clients is accused of
importing large amounts of cocaine and ordering the
murder of a rival smuggler and his family. Prosecutors
are seeking the death penalty. The client’s accused
co-conspirator has turned in evidence to the state in
exchange for a non-death penalty plea agreement and
is hidden in a witness protection program. The client
tells her lawyer that she has people who can “find” the
co-conspirator and asks the lawyer to take a message
to them. The lawyer declines and tells his client that
if something happens to the co-conspirator and it can
be traced back to her, it will make matters worse. The
client says, “How can things be any worse? They’re
going for the death penalty.” When the lawyer says
nothing, she says, “All right, then it’s on you to think
of a better idea.” The lawyer tells his partner about this
conversation, and his partner says they must withdraw
from representing the client immediately. The lawyer
replies, “Have you any idea how much money she is
paying us? No way are we withdrawing.”
Smith, well known in the local community for his
extravagant lifestyle, buys and sells expensive classic
cars. Recently, he sold several vintage Bentleys to
Jones on the representation that they were entirely
original equipment. Smith later meets with Olivia,
his lawyer, and says he fears Jones is going to sue
him. Smith admits to Olivia that Brown, the Bentleys’
previous owner, had told him the engines had been
restored with new equipment, greatly reducing the
car’s value.
Is the lawyer subject to discipline for continuing to
represent the client?
(A) Yes, because a lawyer must decline or
withdraw from representation if the client
demands that the lawyer engage in conduct
that is illegal and/or violates the Rules of
Professional Conduct.
(B) Yes, because a lawyer must withdraw if a client
persists in a course of action that the lawyer
reasonably believes is criminal or fraudulent.
(C) No, because a lawyer may balance his
legitimate pecuniary interests against a
client’s demand that the lawyer engage in
conduct that is illegal or violates the Rules of
Professional Conduct.
(D) No, because a lawyer need not decline or
withdraw from representation when the
client suggests an illegal or unethical course
of conduct.
Olivia meets with Brown, who is very old and has
memory problems. During that meeting, Brown
rambles and confuses dates, but says he told Smith
the Bentleys were not entirely original equipment.
Olivia takes notes during the meeting and writes
down her impression of Brown’s believability. Shortly
thereafter, Brown dies.
A month later Jones sues Smith, alleging that Smith
defrauded him about the originality of the car’s
equipment. Olivia receives valid discovery requests
from Jones’s lawyer, seeking the following: copies of
all written or electronic information relevant to the
issue of whether the cars’ equipment was original, as
well as a written statement of what Brown told Smith
about the cars’ equipment. Olivia tells Smith that untrue
responses to discovery requests constitute perjury.
Does Olivia have a valid basis on which to refuse
to provide a copy of the notes she took during her
meeting with Brown?
(A) Yes, because Brown’s statement that he told
Smith the cars’ equipment was not entirely
original is protected from disclosure by the
attorney-client privilege.
(B) Yes, because her notes constitute opinion
work product.
(C) No, because Brown’s statement that he told
Smith the car’s equipment was not entirely
original is not protected by the attorneyclient privilege.
(D) No, because her notes constitute ordinary work
product, which is not immune from discovery.
231
PRACTICE TEST 1
Question 27
Question 28
An engineer was injured while operating heavy
machinery. As a result of the injury, he often
experiences an unpredictable loss of consciousness.
He hired a lawyer, who sued the manufacturer and
negotiated a settlement of the engineer’s medical bills
and loss of future wages.
An expert in securities law has been representing an
electric utility for eight years. Every time the utility
issues a new debenture, the securities expert writes an
opinion letter on whether the debenture issue requires
prior approval by the state public utilities commission.
The utility asks the securities expert to write an opinion
letter for a new debenture issue of $10,000,000. In
doing so, she spends about 25 minutes checking to
make sure the law had not changed since her last
opinion letter and five minutes dictating to her secretary
some minor changes from her last opinion letter for
the utility. The securities expert’s normal hourly billing
rate for handling any securities matter is $300 per hour,
which is the hourly rate customarily charged in the
locality for similar services.
Three years later, the engineer lost consciousness while
driving and struck a pedestrian. The pedestrian consulted
the same lawyer about bringing a personal injury suit
against the engineer. The lawyer reasonably determines
that the suit against the engineer would substantially
involve facts about the engineer’s medical condition that
the lawyer learned about during confidential attorneyclient discussions with the engineer, but ultimately
decides to accept the representation.
Is it proper for the lawyer to represent the pedestrian?
(A) Yes, but only if he fully discloses all relevant
facts to the pedestrian and the engineer.
(B) Yes, but only if the pedestrian and the
engineer give written informed consent.
(C) No, because there is an unwaivable conflict
of interest.
(D) No, but the lawyer may refer the case to
another firm in exchange for a referral fee.
In arriving at a fee of $1,500 for the opinion letter,
which of the following is it not proper for the
securities expert to consider?
(A) Most lawyers in the area would charge a fee
of $2,000 for such an opinion letter.
(B) The amount of the debentures involved in
this issuance.
(C) The securities expert has represented the
utility for a long time and is familiar with the
governmental regulations applicable to it.
(D) The fee the securities expert charged another
client for writing a similar letter.
232
QUESTIONS
Question 29
Question 30
A lawyer approaches his client, a wealthy
businesswoman involved in many complex business
transactions, with an opportunity involving syndicated
LLC ownership of several real estate parcels.
Although the businesswoman is sophisticated, the
lawyer meets with her at his office to explain the
transaction. He warns her that while the investors
anticipate a high return rate, it is a very risky
investment. He summarizes the LLC syndication
in simple terms. He notes that while he will have
a majority of units, giving him voting control, she
will be on equal footing with all other investors on
terms that the government agency that reviews such
transactions has deemed fair and reasonable. He
recommends that she take a few days before signing
the documents to consult with another lawyer about it.
A lawyer was representing a corporation that was the
named defendant in a lawsuit arising from an industrial
accident at the corporation’s plant. The lawyer feared
that a former employee of the corporation might tell the
plaintiff’s lawyers about some safety problems at the
plant that preceded the accident. The former employee
no longer had any relationship to the corporation. The
lawyer contacted the former employee and requested
that she not speak to the plaintiff’s lawyers.
The businesswoman returns several days later. She
tells the lawyer that she understands the transaction
and the lawyer’s role as majority owner with power
over minority interests such as hers, and that she
consents to the risks. She signs the syndication
documents and invests a considerable amount of
money. However, after six months, the real estate
market collapses, and she loses her entire investment.
Is the lawyer subject to discipline?
(A) Yes, because lawyers may not ask witnesses
to refrain from speaking with attorneys for
an opposing party.
(B) Yes, because the witness no longer worked
for the lawyer’s client.
(C) No, because the plaintiff’s lawyer was
permitted to speak with the former employee
without the lawyer’s permission.
(D) No, because lawyers are permitted to request
that witnesses refrain from speaking to
lawyers for an opposing party.
Is the lawyer subject to discipline?
(A) Yes, because the lawyer did not confirm the
arrangement in writing.
(B) Yes, because a lawyer may not enter into a
high-risk business transaction with a client.
(C) No, because he advised the businesswoman
to seek the advice of independent legal
counsel, gave her a reasonable opportunity
to obtain such advice, and did not need to
confirm the arrangement in writing.
(D) No, because the businesswoman understood
and consented to the essential terms of the
transaction and the lawyer’s role.
233
PRACTICE TEST 1
Question 31
Question 32
GreenCorp makes an “environmentally friendly and
safe” shampoo that it sells nationwide. A customer has
sued GreenCorp, saying that the shampoo burned his
scalp. Initially, a large New York law firm represented
GreenCorp in this case, the only matter it handled
for GreenCorp. Lorena and Craig are the firm’s only
lawyers assigned to this case. During discovery,
they found a memo from GreenCorp’s marketing
department saying GreenCorp knew of defects in its
shampoo, but decided to sell it anyway to cash in
on the current interest in environmentally friendly
products and to fix it later.
A man, arrested on charges of participating in
terrorist activities, belongs to a religious order
that openly advocates using violence to further its
social and political objectives. While he agrees
with his religion’s position and would participate in
such activities if asked, he has never done so. The
government is seeking the death penalty for him.
His appointed public defender is female. The client
tells her that his religion is opposed to women being
lawyers. She explains that the court appointed her, and
his only other option is to represent himself. He does
not speak English fluently and is unfamiliar with the
American legal system. The public defender explains
that the government has the burden of proof, and his
best strategy is not to testify because the government
will use his religious beliefs against him.
Lorena moves to another law firm, and GreenCorp
sends its case with her. Meanwhile, the first firm
takes on the representation of a nationwide class of
plaintiffs alleging they were injured by GreenCorp’s
shampoos and assigns it to Renzo, a partner who
just joined the firm. When GreenCorp learns of the
firm’s representation of plaintiffs in the class action,
GreenCorp asks Lorena to move to disqualify her old
firm from representing the plaintiffs.
Is the first law firm subject to disqualification?
(A) Yes, because a firm may not represent
plaintiffs in a matter substantially related to
one in which it represented the defendant
if any lawyer formerly at the firm knows
confidential information of the defendant that
could be used against it.
(B) Yes, because a firm may not represent
plaintiffs in a matter substantially related to
one in which it represented the defendant
if any lawyer currently at the firm knows
confidential information of the defendant that
could be used against it.
(C) No, because Lorena and Craig were the only
lawyers representing GreenCorp, and Renzo
just joined the firm.
(D) No, because a firm is subject to
disqualification only if a lawyer at the firm
has represented a client in one matter and
then attempts to represent an adversary in a
substantially related matter.
234
The client wants to take the stand to say the
government is evil, its members deserve to die,
and, though he did not do what he is charged with,
he would gladly do so if asked. He tells the public
defender that he does not want her advice, that women
should not be lawyers, and to mind her own business.
She insists on explaining that if he says what he
wants, the jury will probably convict him. He tells her
he finds her opinions offensive and yells for the guard
to take her out of his cell.
Was the public defender’s conduct proper?
(A) Yes, because an indigent criminal defendant
in a capital crime is entitled to courtappointed counsel, but cannot choose among
counsel due to his religious beliefs.
(B) Yes, because a lawyer’s advice may refer
to relevant moral, economic, social, and
political factors.
(C) No, because a lawyer may not refer to
considerations other than the law.
(D) No, because a client has the right not to have
his religious beliefs infringed upon by being
forced to accept a female lawyer.
QUESTIONS
Question 33
Question 34
A lawyer runs a television ad. In the ad, he appears
in an expensive suit which he otherwise never wears,
and is surrounded by law books which he does not
own or use since he does all of his legal research
online. In the advertisement the attorney says: “My
name is ______. I’m a licensed attorney. I believe my
fees are fair and very low. In addition, almost all of
my clients are satisfied with my work. I am a member
of the Massachusetts and U.S. Supreme Court bars.”
A retired couple seeks to hire a well-known attorney
to help them recover their expensive home, which
they lost through what they claim was an illegal bank
foreclosure. They are currently living in a rented
room. They have little cash but insist on hiring this
lawyer because of her great reputation. The lawyer
sends the couple a letter that says: “I will take the case
on a contingency basis, and if I win, you will pay me
one-third the value of the house and give me a written
lien on it to secure that obligation. If you don’t pay
within six months, I have the right to foreclose on
the lien and have the house sold to pay it. If I lose,
you won’t owe me anything. I strongly recommend
you take a week to seek the advice of another lawyer
before agreeing. A one-third fee has been held fair in
this jurisdiction.”
In fact, his fees are low, and based on client
questionnaires, most of his clients are pleased with
his work. Moreover, he is admitted to practice in
Massachusetts and before the U.S Supreme Court.
Does the advertisement violate the applicable
ethical standards?
(A) Yes, by indicating that almost all of his
clients are satisfied.
(B) Yes, by misleading the public.
(C) No, because the advertisement was truthful
and not misleading.
(D) No, because advertising is unrestricted.
The couple argues with the lawyer about the terms,
but when the lawyer replies, “Take it or leave it.
There are other lawyers in town,” the couple accepts
in writing. The lawyer wins the case and the house
is returned. The couple moves back in and gives the
lawyer a written lien to secure her fee. Six months
later, the housing market collapses, and the couple
cannot get a loan against their house sufficient to
cover the lawyer’s fee. The lawyer forecloses on the
lien, the lawyer gets her fee, and the couple moves
back to a rented room.
Is the lawyer subject to discipline?
(A) Yes, because the agreement constituted an
impermissible business transaction with a client.
(B) Yes, because a lawyer cannot take a
contingency fee secured by property that is
the subject matter of the litigation.
(C) No, because the agreed upon one-third
contingency fee is less than the limit in the
Model Rules for contingency fees.
(D) No, because a lawyer may secure her fee or
expenses with an appropriate lien.
235
PRACTICE TEST 1
Question 35
Question 36
A law professor occasionally takes on cases of worthy
clients. One of her former students, who is an honor
student and member of the law review, comes to her
office to speak with her. After asking the professor to
close the door, the student says nervously, “Professor,
I’m not sure about the moral character portion of the
bar application. It asks some pretty personal questions.”
He pauses, and the professor, thinking that this could
only mean trouble for the law school, but not wanting
to be rude, says “Go on.” “Okay,” he says. “I’d like you
to represent me in connection with my application.”
The professor replies, “Well, you seem a little upset,
what is this about?” The student says, “I was once
addicted to heroin. Like most addicts, I did some
crime, and I did the time. As you can see, I’m past all
that. So, I want to know if I can avoid reporting this
in response to the bar question inquiring if I have ever
been arrested or in jail.” The professor decides not to
represent the student. The bar examiners contact her the
following week and ask her to give an opinion about
the student’s character and fitness. She tells the bar
examiners what the student said.
A lawyer regularly tries cases before a particular judge
and often disagrees with him. She has heard rumors
around the courthouse that the judge is taking bribes. She
is aware of no evidence as to whether or not the judge
takes bribes, but she feels the rumors are consistent with
her opinion of the judge and believes the rumors to be
true. When interviewed by the press after a recent trial
before the judge in which the judge repeatedly ruled
against her client, she told the reporter, “This judge
cannot be trusted because he is taking bribes.” Based
on her statement, the FBI began an investigation of the
judge that later revealed he was taking bribes.
Is the professor’s conduct proper under the Model Rules?
(A) Yes, because bar admission issues are an
exception to the usual rules of attorneyclient relationships.
(B) Yes, because no attorney-client relationship
exists unless the client signs a retainer
agreement and pays a retainer fee.
(C) No, because the student had not asked the
professor to write him a recommendation for
bar admission.
(D) No, because the student was a prospective
client even though the professor decided not
to represent him.
Should the lawyer be subject to discipline for her
statement to the press about the judge?
(A) Yes, because she did not know when she
spoke that the judge was taking bribes.
(B) Yes, because the judge is currently on the bench.
(C) No, because the lawyer believed her
statement to be true.
(D) No, unless the lawyer bases her right to make
the statement on the First Amendment.
Question 37
A lawyer is representing a client in a personal injury
case. The lawyer misses a deadline imposed by the
court to reveal expert witnesses. As a result, the court
grants summary judgment for the defendant. The
lawyer knows that she has committed malpractice.
She advises her client by letter that the client should
seek independent counsel regarding the malpractice
claim and gives the client a reasonable opportunity to
do so. The client does not obtain independent counsel.
The lawyer settles the malpractice claim with the
client and does not reveal it to anyone else.
Is the lawyer subject to discipline?
(A) Yes, because the client was not
independently represented in the settlement
of the malpractice claim.
(B) Yes, because the lawyer was required to
report her own malpractice to the state bar.
(C) No, because the lawyer fulfilled her duty
of communication when she told her client
about the malpractice claim.
(D) No, because the client was advised in writing
of the desirability of obtaining independent
counsel and was given an opportunity to do so.
236
QUESTIONS
Question 38
Question 39
A prosecutor was gathering evidence which she hoped
to use to convict an alleged terrorist. The defendant
had, at one time, been represented by a local defense
lawyer. The prosecutor had excellent reason to believe
that the defense lawyer had in his files essential and
non-privileged evidence of the defendant’s crimes.
The prosecutor could feasibly obtain the same
evidence elsewhere but wished to save public money
by getting this evidence from the defense lawyer. The
prosecutor arranged for a subpoena to be issued to the
defense lawyer for the evidence.
A man is arrested for murder and calls his cousin, a
personal injury lawyer, from jail asking for her help.
She refuses to help him unless he signs an agreement
waiving any future claims for malpractice against
her. Before signing, the personal injury lawyer fully
informed her cousin of all of the increased risks of the
representation and admitted that she knows nothing
about criminal law. The man signed the agreement
alone in his jail cell. After a jury trial, he was
convicted. On appeal, the personal injury lawyer’s
research and arguments were found to prejudice the
man’s case by falling below reasonably prevailing
norms. As a result, his conviction was overturned,
and he was awarded a new trial. The man now wants
to file a civil malpractice lawsuit against the personal
injury lawyer.
Is the prosecutor subject to discipline?
(A) Yes, because there was a feasible alternative
way to obtain the information.
(B) Yes, because prosecutors may not subpoena
defense lawyers to obtain evidence about the
defense lawyers’ present or former clients.
(C) No, because the evidence sought by the
prosecutor was not privileged.
(D) No, because the evidence sought by the
prosecutor was essential to the successful
completion of the prosecution.
Did the personal injury lawyer act properly by having
the man sign the malpractice waiver?
(A) Yes, because the man was fully advised of
the risks by the personal injury lawyer before
he signed the agreement.
(B) Yes, because a lawyer is not necessarily
incompetent in a field of law in which she
does not regularly practice.
(C) No, because representing one’s cousin in this
situation gives an appearance of bias.
(D) No, because such agreements are prohibited
unless the client is independently represented
at the time the agreement is signed.
237
PRACTICE TEST 1
Question 40
Question 41
Tom is a tax lawyer whose practice is limited to
defending individuals and entities against delinquency
and tax evasion claims by the IRS. Although he has a
large and thriving practice, many potential clients are
still unaware of him. Tom knows that some people
with IRS problems want to keep their problems
private, and they would also be embarrassed to learn
that he knew about it. He also knows how to identify
those with tax matters pending against them from
public records and filings. Every month, he locates
addresses for such potential clients and sends them the
following e-mail:
A trial judge has a great reputation in her small town,
and many people have suggested that she run for
mayor. Her friends convinced her to run for mayor
by pointing out that it would give her even more of
an opportunity to serve the public. On becoming a
candidate for mayor, she prepared campaign literature
that read, “Although I cannot make pledges, promises,
or commitments about how I will vote on particular
issues as mayor, I can assure you that I will continue
the tradition you have known me to represent as
a judge. In addition, unlike the other candidates, I
am registered to vote as, and I am running as, an
independent. So you will not hear partisan political
statements from me.” Nonetheless, after a long day
on the bench, the judge made a speech in which she
said if she is elected, she would sign pending local
ordinances prohibiting the sale of alcohol on Sunday,
instituting a 10 p.m. weekend curfew on minors,
and officially proclaiming the town’s support of the
federal government’s recent military action overseas.
“Advertising Material: Do you have big-time
tax problems? I have specialized in defending
individuals and entities against delinquency and tax
evasion claims by the IRS for many years. For free
information, visit my Web site at www.tomtaxlawyer.
com or reply to this e-mail. Advertising Material.”
Is Tom subject to discipline for his e-mail?
(A) No, because a lawyer may identify potential
clients from public records and filings and
contact them, even if they have made it
known to the lawyer that they desire not to
be solicited by him.
(B) No, because a lawyer may communicate the
fact that the lawyer does or does not practice
in particular fields of law.
(C) Yes, 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.
(D) Yes, because Tom cannot solicit professional
employment from a prospective client using
real-time electronic contact unless the person
contacted is a lawyer or has a family, close
personal, or prior professional relationship
with Tom.
238
Is the judge subject to discipline?
(A) Yes, because she didn’t resign from judicial
office upon becoming a candidate for a nonjudicial elective office.
(B) Yes, because she made pledges, promises, or
commitments about how she would vote on
political issues as mayor.
(C) No, because she disassociated herself from
the two major political parties and decided to
run as an independent.
(D) No, because a judge may not register to vote
as a member of a political party.
QUESTIONS
Question 42
Question 43
A well-known antitrust litigator’s partners have been
encouraging her to volunteer for the Bar’s antitrust
law reform committee. She has always considered
such committees to be mere excuses to socialize, but
when she learns that the committee will be drafting
proposed revisions of antitrust rules that might
indirectly affect her clients, she decides to join. After
a few meetings, the other members recognize her
expertise and nominate her as chairperson. Reluctant
to take up even more time that she could use to bill
clients, but realizing how much power she will have
to set the agenda and influence votes, she agrees.
She then meets privately with her partners to draft
a proposal to revise an old antitrust rule that will
materially benefit three of her clients.
A lawyer sends an instant message to a potential client:
“You do not know me, but I am a lawyer interested in
representing you in your divorce action, if you are able
to afford my fee. My name is John Smith, my address
is 123 Main Street. This is advertising material. Sorry
to bother you if you are not interested—I will not write
again.”
She puts the proposal on the agenda, and it comes up
for a vote. Just before the vote she has a pang of guilt
and says, “By the way, this is going to help some of
my computer clients.” Another member asks angrily,
“Really? Which ones?” The antitrust litigator doesn’t
answer, but immediately calls the question, and puts it
to a vote. The proposal passes.
Is the antitrust lawyer subject to discipline?
(A) No, because a lawyer may belong to a law
reform organization even if the reforms may
benefit the lawyer’s clients.
(B) No, because a lawyer may belong to a law
reform organization even if the reforms may
benefit the lawyer’s clients and the lawyer
discloses that fact.
(C) Yes, because a lawyer may belong to a law
reform organization even if the reforms may
benefit the lawyer’s clients, but the lawyer
must disclose the clients’ identities.
(D) Yes, because a lawyer may not belong to a
law reform organization if the reforms may
benefit the lawyer’s clients.
Is the lawyer’s conduct proper?
(A) Yes, because he used the words “advertising
material” in the solicitation.
(B) Yes, because electronic advertising is permissible.
(C) No, because lawyers may not use realtime electronic communication under
any circumstance.
(D) No, because lawyers may generally
not solicit employment using real-time
electronic communication when the motive
is pecuniary gain.
Question 44
A lawyer charges the client a “non-refundable $5,000
fee” to put together five revocable trust documents,
which would each cost $1,000 if written separately.
After receiving the first trust document, the client
decides he is unhappy with the lawyer’s services, and
discharges him. The lawyer, who has not yet started
work on the other four documents, refuses to pay back
any of the money, saying that the client knew the fee
was non-refundable.
Is the lawyer’s conduct proper?
(A) Yes, because the fee was non-refundable.
(B) Yes, because the client discharged the
lawyer, as opposed to the lawyer voluntarily
removing himself.
(C) No, because the lawyer must return any
unearned portion of the fee.
(D) No, because advance fees are disallowed
under the Model Rules.
239
PRACTICE TEST 1
Question 45
Question 47
A lawyer is employed full-time as a public defender.
Because of an excessive caseload, the lawyer concludes
that she cannot render competent representation to her
newest client, for whom the court has just appointed the
lawyer as counsel. The lawyer brings the matter to the
attention of her supervisor. The supervisor instructs the
lawyer to represent the client because there are no funds
to provide representation through an additional public
defender or private counsel. Based upon that instruction,
the lawyer does not seek permission to withdraw. The
lawyer represents the client, who is convicted.
A lawyer seeks to increase her business. She is
approached by Lawyer’s Internet Referral Service,
Inc. (LIRSI). LIRSI offers to help the lawyer attract
more clients. For a fee, LIRSI will add the lawyer
to the roster of lawyers listed on LIRSI’s web site.
The lawyer will pay LIRSI a set amount every time
someone visits LIRSI’s site and “clicks” on a link to
the lawyer’s internet home page. The lawyer agrees to
the arrangement and pays LIRSI’s charges for several
months. Numerous prospective clients contact the
lawyer because of the arrangement and the lawyer’s
business is increased just as she had initially hoped.
Is the lawyer subject to discipline?
(A) Yes, because the lawyer was under a duty to
seek to withdraw as counsel.
(B) Yes, because the lawyer is not permitted to
rely upon the resolution of an ethical issue by
her supervisor.
(C) No, because the lawyer’s supervisor resolved
the ethical issue that the lawyer presented.
(D) No, because the lawyer’s duty of competent
representation is subordinate to the economic
reality that no other counsel could be provided.
Question 46
A judge is presiding in a bench trial over a product
liability case involving a type of microwave oven
that allegedly emits dangerous radiation. In the
evening, the judge conducts research on the Internet
about microwave ovens and radiation in order to
have a better understanding of the expert testimony
being offered by both sides. The judge orally notifies
counsel for all sides the next day about the judge’s
research and gives all parties an opportunity to
comment on it.
Has the judge violated the rules of judicial conduct?
(A) Yes, because the judge did not reduce the
results of his research to writing so that the
record would be complete and all parties
could respond and object to the information
that the judge gathered.
(B) Yes, because judges are not permitted to
investigate matters independently.
(C) No, because the judge promptly notified the
parties of what the judge learned in his research.
(D) No, because the investigation conducted by
the judge was limited to electronic resources.
240
Is the lawyer subject to discipline?
(A) Yes, because the lawyer paid someone for
referring business to the lawyer.
(B) Yes, unless LIRSI is a not-for-profit entity.
(C) No, if LIRSI is a qualified lawyer referral
service approved by a state agency.
(D) No, because the prospective clients rather
than the lawyer initiated the contacts.
Question 48
A lawyer jointly represents several students who are
accused of participating in criminal activity relating
to a hazing incident at their college fraternity. The
lawyer obtains informed consent of each client to the
joint representation. The lawyer reaches an agreement
with the prosecutor under which the students will
each plead guilty to offenses that reflect their degree
of personal involvement in the incident. The lawyer
explains to each student the rationale for that student’s
plea but does not discuss with any student the pleas of
the other students.
Is the lawyer subject to discipline?
(A) Yes, because the lawyer jointly represented
criminal defendants.
(B) Yes, because the lawyer did not explain to
each client the pleas of all the clients.
(C) No, because the plea of each client was
confidential and could not be explained to
other clients.
(D) No, because the attorney had obtained
the informed consent of each client to the
joint representation.
QUESTIONS
Question 49
Question 51
A prosecutor meets with a college student who is accused
of running a drug distribution conspiracy on campus.
The student is not represented. The student is advised
of his right to obtain counsel and given a reasonable
opportunity to do so. The student does not seek to obtain
a lawyer and does not insist on his right to one or on his
right to remain silent, about which the student has also
been advised. In the meeting, the prosecutor persuades
the student to waive his right to a preliminary hearing.
A man who is seeking to divorce his wife, an heiress,
does not want his wife to have access to the best-known
divorce lawyers in their small city. He asks a friend, a
partner at a law firm, to make him a list of the twenty
best divorce lawyers in the city. He then writes to each
of the lawyers on the list at their direct office email
addresses, giving them the details of his situation and
including some of his confidential financial information.
Is the prosecutor subject to discipline?
(A) Yes, because the prosecutor met directly with
an unrepresented defendant.
(B) Yes, because prosecutors may not seek to
obtain waivers of important pretrial rights
from unrepresented persons.
(C) No, unless the prosecutor knew or reasonably
should have known that the student
misunderstood the prosecutor’s role in the matter.
(D) No, because the student was given the opportunity
to obtain counsel and declined to do so.
Will a lawyer who received an email from the man be
subject to discipline if she takes the wife’s case?
(A) Yes, because the emails formed attorneyclient relationships with the lawyers who
received them.
(B) Yes, because the emails formed prospective
client relationships with the lawyers who
received them.
(C) No, because the lawyer did not solicit the emails.
(D) No, because the man did not have a
reasonable expectation that the lawyer was
willing to form an attorney-client relationship.
Question 50
Question 52
A lawyer represents a client in a lengthy, difficult divorce.
The client is difficult and demanding and frequently
complains to the lawyer about the lawyer’s responsiveness
and fees. Part of the reason why the fees are high is that
the client is so demanding of the lawyer’s time. To ensure
that he gets paid, the lawyer regularly requires the client
to make an advance deposit to cover the next month’s
legal fees. When the case ends, the client has a $20,000
deposit with the lawyer, who claims that the client owes
$15,000 in fees. The client disputes that the lawyer is
entitled to any additional fee in excess of $10,000. The
lawyer suggests to the client that they resolve their dispute
promptly through arbitration and keeps the $20,000 in his
trust account while he seeks to resolve the dispute.
A lawyer is admitted to practice in state A. A few months
after becoming a member of the bar, the lawyer’s
supervisor instructs the lawyer to go into state B to take
witness statements for a civil case that the supervisor
plans on filing in state B in the near future. Neither the
lawyer nor her supervisor are licensed in state B.
Is the lawyer subject to discipline?
(A) Yes, because the lawyer did not promptly
deliver $5,000 to the client.
(B) Yes, because the lawyer did not promptly
deliver $10,000 to the client.
(C) No, because the lawyer suggested a prompt
means of resolving the dispute.
May the lawyer follow her supervisor’s instructions
without violating the Professional Rules of Conduct?
(A) Yes, if the supervisor reasonably expects to
be authorized to appear pro hac vice in the
civil case.
(B) Yes, because the lawyer is licensed in state A.
(C) No, unless the lawyer associates with a
lawyer licensed in state B to actively assist
her in the witness interviews.
(D) No, because taking witness statements in
preparation for a civil case is the practice of
law, and the lawyer is not licensed to practice
law in state B.
(D) No, because the lawyer withheld funds that
the lawyer believed represented legal fees
that were owed by the client.
241
PRACTICE TEST 1
Question 53
Question 55
A lawyer represents the owner of an office building. The
bank that holds the mortgage on the office building is
seeking to foreclose. On the morning of the day set for
the foreclosure, the lawyer files suit and finds a judge
to whom the lawyer presents a petition for a temporary
restraining order to prevent the foreclosure sale. The
lawyer presents the petition to the judge without giving
notice to the bank or to the bank’s counsel. The lawyer
argues that the notice of the sale was defective. The
lawyer does not reveal to the judge that the bank sent
a second notice that arguably cured the defect in the
notice. The judge grants the temporary restraining order.
During jury selection in a civil case, the lawyer comes
to know that one prospective juror misrepresented
information that would have resulted in the juror
being struck for cause. Such a misrepresentation is a
criminal act. The lawyer also comes to know that the
prospective juror made the misrepresentation because
the prospective juror wanted to be on the jury and
wanted to ensure that the lawyer’s client would prevail.
The lawyer uses one of his peremptory strikes to
remove the prospective juror and does not disclose the
prospective juror’s misrepresentation to the tribunal.
Is the lawyer subject to discipline?
(A) Yes, because the lawyer had ex parte contact
with the judge.
(B) Yes, because the lawyer did not inform the judge
of all material facts that would enable the judge
to make an informed decision on the petition.
(C) No, because the lawyer had no responsibility
to present to the judge arguments that helped
the lawyer’s client’s adversary.
(D) No, if the lawyer was permitted by law
to present the petition for a temporary
restraining order ex parte.
Question 54
A lawyer keeps his personal funds at one bank and his
client funds at a separate bank. While reviewing the
account statements, he realizes that the client account
is earning 3% interest while his personal account is
only earning 0.5%. Because of this, he decides to
move his personal funds into the client account until
he has the time to find a higher-earning account for
his personal funds. He keeps careful records and does
not withdraw any money that belongs to clients.
Is the lawyer subject to disciplinary action?
(A) Yes, because a lawyer must hold property of
clients separate from the lawyer’s own property.
(B) Yes, because a lawyer may not place client
funds in an interest-bearing account.
(C) No, because the lawyer keeps careful records
and does not withdraw any client funds.
(D) No, because the lawyer is under no
obligation to hold client property separate
from his own except that he may choose to
do so for his own convenience.
242
Is the lawyer subject to discipline?
(A) Yes, because the lawyer knew that the
prospective juror engaged in a criminal act
related to the proceeding, and the lawyer was
obliged to disclose that fact to the tribunal.
(B) Yes, because the juror’s criminal act was
intended to benefit the client represented by
the lawyer in the adjudicative proceeding,
and the lawyer was therefore obliged to
disclose it to the tribunal.
(C) No, because the lawyer took reasonable remedial
measures in response to the prospective juror’s
misrepresentation when the lawyer struck the
prospective juror peremptorily.
(D) No, because the criminal act was committed
by someone other than the lawyer’s client.
QUESTIONS
Question 56
Question 57
A managing partner of a major law firm believes
that, after 30 years as an international tax lawyer, he
would be worse than useless at the local legal aid
clinic. However, he knows that the ethics rules say he
“should aspire” to render a certain number of hours of
pro bono services.
A lawyer is in-house counsel to Gamma Corporation.
A male employee of Gamma comes to the lawyer
and tells the lawyer that he has something he needs to
confess, and that he needs legal help with something
relating to his job at Gamma. The lawyer tells the
employee to go ahead, and the employee tells the
lawyer that he has been sexually harassing a female
employee of the corporation under his supervision. The
lawyer then tells the employee that she cannot represent
him with respect to that matter and promptly reports
the sexual harassment to senior management. Gamma
Corporation then fires the male employee for violating
company policy relating to sexual harassment.
His firm attracts many excellent law graduates.
However, when business slows down, there isn’t
enough work to keep them all busy. The partner
realizes that, if he lets the new associates volunteer on
some pro bono cases, they will get valuable training
in courtroom procedure. The thought of getting
good training for his junior associates at the public’s
expense without exposing his corporate clients to any
risk of loss appeals to him. He figures that if he adds
up the hours they spend doing pro bono work and
the amount of the fee calculation attributable to those
hours and turns them into the bar association, the total
contributed fees for services will more than cover the
hours the bar association recommends that he and the
other senior partners should contribute, leaving them
more time to bill at their higher hourly rates.
Is the partner’s plan a proper way for him to satisfy
the suggested pro bono work?
(A) Yes, because, a lawyer who finds it not
feasible to perform pro bono work can pay
money instead
Is the lawyer subject to discipline?
(A) Yes, because the lawyer revealed a client’s
confidential information to senior management.
(B) Yes, because the lawyer did not explain to the
employee that she represented the corporation.
(C) No, because the employee was not a client of
the lawyer.
(D) No, because the lawyer was under a duty
once she learned about the sexual harassment
to proceed as reasonably necessary in the
best interest of the corporation.
(B) Yes, because the rules encourage taxdeductible contributions in lieu of services
if the lawyer is manifestly incompetent to
provide such services.
(C) No, because the provision of pro bono services
is a professional responsibility that is the
individual ethical commitment of each lawyer.
(D) No, because the services are being provided
by attorneys who are less experienced than the
senior partners and thus may be of lower quality.
243
PRACTICE TEST 1
Question 58
Question 59
A lawyer is representing a client in a personal
injury action. The client alleges that he suffered a
serious back injury when he slipped and fell in the
defendant’s grocery store. The client discloses to
his lawyer that he had previously injured his back
in an automobile accident and had retained another
lawyer to pursue that claim. He tells his lawyer that
the previous lawyer failed to file the claim before the
statute of limitations had run, but kept his unused
retainer. The client asks the lawyer not to reveal any
of this information, because he does not want the
grocer to find out about the prior accident or that
he had foolishly trusted the previous lawyer. The
lawyer tells the client that she will have to reveal the
existence of any pre-existing back injury to the grocer,
but that she can only reveal the information about the
previous lawyer’s misconduct if the client agrees.
A lawyer has several good clients, including a
successful importer of fashions aimed at the profitable
but volatile teenage casual clothing market. Often,
the first supplier to market with a new idea makes a
financial killing, while later imitators are stuck with
unsalable inventory when the fad passes. The lawyer
assists in the importer’s highly confidential plan to
invest in something called junk jewelry, which the
importer believes will be the next youth fashion trend.
The importer plans to invest in distributing a line of
such jewelry in California only, because she believes
it has the most forward-looking youth market. She
has conclusively eliminated other states from her
business plan. Her successful pattern is to start trends
in California and leave to others the riskier business
of selling elsewhere.
If the client refuses to let the lawyer reveal the
previous lawyer’s misconduct, should the lawyer be
subject to discipline for not revealing the misconduct
to the disciplinary authorities?
(A) No, because the previous lawyer’s
misconduct fails to raise a substantial
question as to whether or not she is fit to
practice law.
(B) No, because if the lawyer reveals the
previous lawyer’s misconduct without her
client’s permission, she would be violating
her duty of confidentiality to the client.
(C) Yes, because revealing the previous lawyer’s
misconduct would not harm the client.
(D) Yes, because a lawyer having knowledge that
another lawyer has committed a violation of
the rules that raises a substantial question as to
that lawyer’s fitness as a lawyer must report it
to the appropriate professional authority.
244
The lawyer happens to know the owner of a chain
of clothing stores for teens in New York. The lawyer
uses the confidential information she has gained from
representing the importer to invest her own money in
junk jewelry for the New York market. The lawyer
doesn’t tell the importer that she is doing so.
Is the lawyer’s conduct proper?
(A) Yes, because such a use involves the
attorney’s mental impressions, entitling the
information to protection under the workproduct doctrine.
(B) Yes, because her actions will not
disadvantage her client.
(C) No, because it would be a breach of the
attorney-client privilege.
(D) No, because she obtained the information in
the course of representing her client and thus
it is confidential client information.
QUESTIONS
Question 60
A lawyer practiced for many years in a law firm
organized as a professional corporation. She held
a substantial percentage of the firm’s shares. Her
husband worked at the firm as administrative director.
A few years later, the lawyer died. Her husband
inherited her shares in the firm. The husband appeared
at the firm’s annual shareholders’ meeting, since he
was now shareholder in the firm. The firm’s majority
shareholder spoke about the husband’s importance
to the firm, for both his administrative skills and his
substantial shareholdings.
The majority shareholder voted his shares to give the
husband a position on the board of directors and a
generous compensation plan based on a profit-sharing
arrangement in which the husband would get a
percentage of the legal fees collected by the firm.
Is the majority shareholder subject to discipline?
(A) No, because a lawyer or law firm may include
non-lawyer employees in a compensation
or retirement plan, even one that is based in
whole or in part on profit-sharing.
(B) No, because a non-lawyer may own an
interest in a law firm and be a corporate
director as long as his ownership interest is
received through inheritance and he is elected
as a director while employed by the firm.
(C) Yes, because a lawyer shall not practice in
the form of a professional corporation or
association authorized to practice law for profit
if a non-lawyer owns any interest therein.
(D) Yes, because a lawyer or law firm shall not
share legal fees with a non-lawyer.
245
246
Practice Test 1
Answers and Answer Explanations
PRACTICE TEST 1
Answer Key
248
1
A
B
C
D
31 A B C D
2
A
B
C
D
32 A B C D
3
A
B
C
D
33 A B C D
4
A
B
C
D
34 A B C D
5
A
B
C
D
35 A B C D
6
A
B
C
D
36 A B C D
7
A
B
C
D
37 A B C D
8
A
B
C
D
38 A B C D
9
A
B
C
D
39 A B C D
10 A B C D
40 A B C D
11 A B C D
41 A B C D
12 A B C D
42 A B C D
13 A B C D
43 A B C D
14 A B C D
44 A B C D
15 A B C D
45 A B C D
16 A B C D
46 A B C D
17 A
47 A B C D
B
C
D
18 A B C D
48 A B C D
19 A B C D
49 A B C D
20 A B C D
50 A B C D
21 A B C D
51 A B C D
22 A B C D
52 A B C D
23 A B C D
53 A B C D
24 A B C D
54 A B C D
25 A B C D
55 A B C D
26 A B C D
56 A B C D
27 A B C D
57 A B C D
28 A
58 A B C D
B
C
D
29 A B C D
59 A B C D
30 A B C D
60 A B C D
ANSWERS AND ANSWER EXPLANATIONS
Explanation: Question 1
The correct answer is: (D) A may be subject to discipline for her cocaine use, and B may be subject to
discipline if B does not report A to the Bar.
An attorney is subject to discipline for committing criminal acts that reflect adversely on her honesty, trustworthiness, or fitness as a lawyer in other respects. A’s use of cocaine is likely to be such an act, especially since it is
clear on these facts that A is not in an approved lawyer assistance program and A has no apparent intention of
ceasing her use of cocaine. A lawyer is obliged to report another lawyer’s violation of the Rules of Professional
Conduct if the violation “raises a substantial question” about that lawyer’s honesty, trustworthiness, or fitness as a
lawyer [MR 8.3]. B knows of A’s heavy cocaine use even if she did not witness it because A told her about it. If it is
a criminal act that reflects adversely on A’s honesty, trustworthiness, or fitness as a lawyer, and B does not report
A to the authorities, then B herself is subject to discipline. Note that the comment to Model Rule 8.3 provides that
such disclosure is not required if the information comes out while the lawyer is participating in an approved lawyer
assistance program. Otherwise, lawyers might hesitate to participate in them, making matters even worse.
(A) Incorrect. A is not subject to discipline because the cocaine has not affected her ability to practice law.
The fact that A’s clients may benefit from A’s ability to work longer hours on their cases does not
keep the drug use from being an ethical violation. Moreover, the fact that A’s drug use has not presently affected her ability to practice law does not mean that it will not do so in the future. Competence
is not the only requirement in the rules. If A is engaging in activity that reflects adversely on her honesty, trustworthiness, or fitness as a lawyer in other respects, she is subject to discipline.
(B) Incorrect. A is subject to discipline for failing to report her own drug use.
The Model Rules provide that a lawyer is obliged to report another lawyer’s violation of the Rules of
Professional Conduct if the violation raises a substantial question about that lawyer’s honesty, trustworthiness, or fitness as a lawyer in other respects. The key here is that it must be another lawyer’s
violation. Since A is under no duty to report her own misconduct, this is an incorrect answer.
(C) Incorrect. B is not subject to discipline for failing to report A’s illegal drug use to the bar because she
never personally saw A use the drugs.
A lawyer whose conduct reflects adversely on the lawyer’s honesty, trustworthiness, or fitness as a
lawyer in other respects is subject to discipline. Lawyers must report a violation of the rules by another lawyer when they know about it or they may be subject to discipline themselves. The system
depends on self-regulation and self-reporting. While the Rule does not require absolute certainty of
the ethical violation, it does require more than a suspicion. However, it is immaterial that B did not
actually see A use the drugs, since A said that she did.
Explanation: Question 2
The correct answer is: (B) Yes, because the man waived the protection of the privilege by talking to his
friend about the conversation.
By revealing to his friend the contents of his otherwise privileged communication to the first lawyer, the
man waived the protection of the privilege. Although the prosecutor could subpoena the friend to testify,
the first lawyer could also testify in this situation. Therefore, this is the correct answer.
(A) Incorrect. Yes, because the man had discharged the first lawyer, waiving the attorney-client privilege.
The client’s voluntary termination of the attorney-client relationship does not waive the protection of the privilege which in fact often continues even beyond the client’s death. It is important to remember that the privilege
belongs to the client and not the lawyer. Except for a few narrow exceptions, the client must waive it or give
his attorney permission to disclose confidential communications. Also, the fact that the attorney no longer represents the client is not controlling. The attorney-client relationship may be implied, even if no money is paid
or retainer agreement signed, if both parties reasonably believe that legal advice is being sought and given.
249
PRACTICE TEST 1
(C) Incorrect. No, because no one overheard the statement when the man made it.
While the man made the statements to the first lawyer in a public place, they were in a booth, the
bar was empty except for the bartender, the man spoke in hushed tones, and no facts indicate he
intended to be or was overheard. Therefore, his statements were covered by the attorney-client
privilege. Thus, this answer is incorrect.
(D) Incorrect. No, because the man did not use the lawyer’s services in committing the crime.
While a lawyer can reveal otherwise privileged information to rectify a crime or fraud that used the
lawyer’s services that is not the applicable rule here. Rather, it is proper for the first lawyer to testify
because the man waived the protection of the privilege by telling his friend the contents of his otherwise privileged communication to the first lawyer. Therefore, this answer is incorrect.
Explanation: Question 3
The correct answer is: (C) Yes, unless opposing counsel knows that he is sending the letter to the defendant and consents to his doing so.
Once a lawyer knows that an opposing party has counsel, it is no longer appropriate for the lawyer to
communicate with the opposing party directly unless opposing counsel consents or a court order or law
authorizes it [MR 4.2]. The reason is that someone who has retained counsel has chosen to have information presented by his own lawyer, and this rule avoids overreaching or interference in that relationship.
Therefore, even if the lawyer has good intentions, this is inappropriate and violates the Rules.
(A) Incorrect. No, because he has an ethical duty to try to settle cases.
The Model Rules discuss a lawyer’s duty not to delay cases unnecessarily and to expedite cases
consistent with his client’s needs [MR 3.2]. However, that does not give a lawyer permission to override other parties’ attorney-client relationships. Once a lawyer knows that an opposing party has
counsel, it is no longer appropriate for the lawyer to communicate with the opposing party directly
unless opposing counsel consents or a court order or law authorizes it [MR 4.2]. Therefore, this is
not a correct answer.
(B) Incorrect. No, because a copy was also sent to opposing counsel.
Lawyers should not communicate with a represented opposing party directly unless opposing counsel consents or a court order or law authorizes it [MR 4.2]. The fact that a copy was sent to opposing
counsel is irrelevant. Thus, this answer is incorrect.
(D) Incorrect. Yes, unless he keeps a copy of the settlement letter to show that he made a settlement offer.
Keeping copies of the settlement letters is not relevant and does not justify a lawyer’s inappropriate
contact with a represented defendant. Therefore, this answer is incorrect.
Explanation: Question 4
The correct answer is: (C) Yes, because the celebrity’s statements to the friend’s lawyer are absolutely
privileged from disclosure.
The celebrity’s statements to the friend’s lawyer are absolutely protected from disclosure under the common interest doctrine. The statement was made for the purpose of communicating with a privileged person during a joint defense meeting. Therefore, this is the correct answer to this question.
(A) Incorrect. No, because the celebrity’s statements to the friend’s lawyer are not protected from disclosure since the friend has pleaded guilty.
The subsequent guilty plea of a co-defendant does not waive the privilege. Even if the friend later
testifies against the celebrity at the celebrity’s subsequent trial, that proceeding is not deemed to be an
250
ANSWERS AND ANSWER EXPLANATIONS
action between the parties that would waive the privilege. The friend, however, is not precluded from
testifying about matters not covered under the scope of a common interest or joint defense agreement.
(B) Incorrect. No, because the celebrity’s statements to the friend’s lawyer are not protected from disclosure insofar as the friend’s lawyer is not the celebrity’s lawyer.
This is incorrect. While it is true that the friend’s lawyer is not the celebrity’s lawyer, statements the celebrity
makes to the friend’s lawyer are nevertheless protected from disclosure due to the joint defense agreement.
(D) Incorrect. Yes, because the celebrity’s confession to the friend’s lawyer in the friend’s presence renders the celebrity’s prior statements to the friend privileged and confidential.
The celebrity’s statements to the friend before the joint defense agreement was entered into cannot
be protected from disclosure by the attorney-client privilege because no attorneys were present and
the celebrity and his friend are merely co-defendants. Therefore, the subsequent privileged confession does not make the earlier confession privileged.
Explanation: Question 5
The correct answer is: (C) Yes, because he asserted frivolous claims and damage demands and will
therefore be subject to sanctions by both the bar and the court.
In addition to litigation sanctions under the Federal Rules of Civil Procedure and equivalent state court codes,
a lawyer may be liable under Model Rule 3.1 for bringing a frivolous cause of action or defense. Each claim or
defense must have a non-frivolous basis in law and fact or must include a good-faith argument for an extension,
modification, or reversal of existing law. In this instance, the lawyer informed himself of the facts, as the Rules require, and found them and the law lacking in support for the client’s claims. He therefore cannot bring those claims.
(A) Incorrect. No, because even though the attorney may decide strategic matters in certain circumstances, the client controls all major decisions in the litigation and the lawyer must include all claims
as directed by the investor.
The client controls the overall objectives of the representation and is specifically in charge of certain
decisions, such as whether to accept a settlement or plea offer. However, the client does not get sole
control of strategy. It would not be a defense to a bar sanction or litigation sanction for a lawyer to
claim that he was only doing as his client asked. Therefore, this is not the best answer.
(B) Incorrect. No, because the lawyer must zealously represent his client and may rely upon the client’s
characterization of the evidence.
The Preamble to the Model Rules provides that the attorney is only required to zealously represent
the “legitimate interests” of the client “within the bounds of the law.” Zeal does not require the advancing of frivolous claims, and the attorney may not rely upon the client’s characterization of the
evidence when his independent investigation shows the client’s claim to be legally frivolous.
(D) Incorrect. Yes, however, the lawyer cannot receive both discipline from the state ethics commission
and litigation sanctions because this would violate the Double Jeopardy clause of the Constitution.
It is not true that discipline from the state ethics commission and litigation sanctions for the same
incident would violate the Double Jeopardy clause. Disciplinary and non-disciplinary litigation sanctions are different enough that both are allowed. Therefore, this answer is incorrect.
Explanation: Question 6
The correct answer is: (D) No, because she should write the client an $800 check and keep $1200 in the
Clients’ Fund Account until the dispute is resolved.
A lawyer who receives funds in which a client has an interest must promptly notify the client and promptly
deliver to the client any funds that the client is entitled to receive [MR 1.15]. However, if there is a dispute over
251
PRACTICE TEST 1
the distribution of the funds, the lawyer must keep the funds involved in the dispute separate from the lawyer’s
funds until the dispute is resolved. In addition, the lawyer shall promptly distribute any portion of the funds that
is not in dispute. The client here has demanded that the lawyer return the entire $2,000, $500 of which was for
bail costs in the event that bail was obtained. Since bail was not obtained, he is clearly entitled to at least $500.
There is also $300 of the retainer that the lawyer had not yet earned. Because that $800 ($500 in unobtained
bail and $300 in unearned fees) is not in dispute, the lawyer must promptly send it to the client. The lawyer
believes she has earned $1,200, per the agreement, because she spent six hours attempting to obtain bail for
the client. However, the client disputes the lawyer’s right to her fee, so the disputed $1,200 should remain in
the Clients’ Fund Account until the dispute is resolved. Therefore, this answer is correct.
(A) Incorrect. Yes, because she cannot touch the money until the dispute is resolved.
This is not the correct answer under the Model Rules. A lawyer who receives funds in which a client has
an interest must promptly notify the client and promptly deliver to the client any funds that the client is
entitled to receive [MR 1.15]. Therefore, the disputed $1,200 must remain in the Clients’ Fund Account
until the dispute is resolved, and the undisputed $800 (the $500 not needed for bail costs and the $300
not earned in fees) must be promptly sent to the client. Therefore, this answer choice is incorrect.
(B) Incorrect. Yes, because she cannot comingle her own money with the client’s money.
While it is true that a lawyer should not comingle the client’s money and her own, that is not the issue here. Rather, a lawyer who receives funds in which a client has an interest must promptly notify
the client and deliver to the client any funds that the client is entitled to receive [MR 1.15]. While the
lawyer should leave the disputed $1200 in the Clients’ Fund Account, she must also send the client
a check for the undisputed $800. Therefore, this answer choice is incorrect.
(C) Incorrect. No, because she should write the client a $1200 check and keep $800 in the Clients’ Fund
Account until the dispute is resolved.
This answer simply reflects a mathematical error. The lawyer should actually send the client an $800
check. The undisputed $800 is the $500 not used for bail and the $300 that the lawyer did not earn.
However, the disputed $1200 should stay in the Clients’ Fund Account until the dispute is resolved.
Thus, this answer is incorrect.
Explanation: Question 7
The correct answer is: (D) No, unless the lawyer has the EPA’s consent.
Under the Model Rules, a lawyer cannot represent a client in a case in which she substantially participated as a
government employee unless the government agency gives its written informed consent. There is no exception
based on whether the lawyer was on the “same side” as she previously was in the government representation.
Here, the lawyer was the lead attorney in the EPA case and thus participated personally and substantially. She
cannot represent the environmental group without the EPA’s consent. Therefore, this answer is correct.
(A) Incorrect. Yes, because her legal arguments in this case would be the same as her legal arguments
in the EPA case.
As mentioned above, there is no exception for conflicts involving former government lawyers based
on whether the lawyer is on the “same side” as she previously was in the government representation, nor on whether the arguments would be the same. Here, the lawyer was the lead attorney in
the EPA case and thus participated personally and substantially, so she needs the EPA’s consent to
represent the environmental group. Thus, this answer is incorrect.
(B) Incorrect. Yes, if the conglomerate consents to her representing the local environmental group.
Without the government agency’s written informed consent, a lawyer cannot represent a client in
a case in which she substantially participated as a government employee [MR 1.11]. It does not
require the consent of the opposing party, which in this case is the same for both cases. The com252
ANSWERS AND ANSWER EXPLANATIONS
ments note that this is both to protect the former client and to prevent a lawyer from using her former
public office to the advantage of a later client. Therefore, this answer is incorrect.
(C) Incorrect. No, because the conglomerate’s interests would be prejudiced.
This is not correct under the Model Rules. A lawyer cannot represent a client in a case in which
she substantially participated as a government employee without the government agency’s written
informed consent [MR 1.11]. The rule is not for the benefit of the opposing party, but rather to protect
the former client and to prevent a lawyer from using her former public office to the advantage of a
later client. Thus, this answer is incorrect.
Explanation: Question 8
The correct answer is: (A) Yes, because the associate did not have the appropriate resources and did not
seek to remedy the problem.
Even a new associate has a duty of competence to her clients [MR 1.1]. The Model Rules require lawyers
to assess their own competence and to either remedy any issues that interfere with their representation
or decline the representation. The associate knew that she did not have appropriate resources to perform
the necessary legal research on her case and did not take action to do the research another way, and so
she violated her duty of competence. Therefore, this answer is correct.
(B) Incorrect. Yes, because the associate alone is solely responsible for her work.
It is true that each lawyer, even a recently admitted one, has a duty of competence to her clients under Model
Rule 1.1. She must also overcome inconvenience, which, in this case, might have meant a trip to a wellstocked law library. While it is true that the associate here did not live up to her duty of competence, it is not
correct to say that she alone is responsible. The managing lawyer also had a duty to the client to make reasonable efforts to see that the associate was able to live up to the Rules [MR 5.1] and to supervise the appropriateness of cost-cutting measures by his nonlawyer personnel [MR 5.3]. Therefore, this answer is incorrect.
(C) Incorrect. No, because the partner was responsible for the associate not having the resources to do her job.
Although a supervising lawyer does have a responsibility under the Rules for helping a subordinate
lawyer comply with the Rules [MR 5.1], the subordinate lawyer also has her own independent duty of
competence [MR 1.1]. The managing lawyer may have violated the Rules by not correctly supervising the cost-cutting measures of his nonlawyer personnel and not seeing to it that the subordinate
lawyer was able to perform competently. However, that would not mean that the associate did not
violate her duty of competence. Thus, this answer is incorrect.
(D) Incorrect. No, because the client will not be able to show that the failure to cite the case was a but-for
cause of her losing.
This is not the correct standard for determining whether the associate violated a rule of professional
conduct. It is instead part of the standard for civil malpractice. Therefore, this is not the best answer.
Explanation: Question 9
The correct answer is: (A) Yes, because she did not report the judge and opposing counsel to the appropriate authority.
A lawyer with knowledge that a judge has committed a violation of the applicable rules of judicial conduct that
raises a substantial question as to the judge’s fitness for office must inform the appropriate authority [MR 8.3].
A judge’s acceptance of a sizable cash payment from a lawyer prior to the start of a trial in which the lawyer is
participating violates the applicable rules of judicial conduct and raises a substantial question as to the judge’s
fitness for office. The same rule also imposes a reporting requirement when a lawyer knows that another lawyer has committed a serious ethical violation. The lawyer should have reported both the judge’s and opposing
counsel’s involvement in this transaction. Therefore, this is the correct answer to this question.
253
PRACTICE TEST 1
(B) Incorrect. Yes, because she did not report the judge’s conduct.
It is true that the lawyer should have reported the judge’s involvement in this transaction. However,
this choice neglects to mention that lawyers also have a duty to report other lawyers’ serious ethical
violations, and so the lawyer here should have reported both opposing counsel and the judge. Thus,
this answer is incorrect.
(C) Incorrect. No, because the judge denied the accusation of bribery.
The judge’s denial is both predictable and irrelevant. A lawyer who knows that a judge has committed a violation of applicable rules of judicial conduct that raises a substantial question as to the
judge’s fitness for office must inform the appropriate authority [MR 8.3]. Therefore, once the lawyer
observed the misconduct, she had a duty to report it despite the judge’s denial. Thus, this answer
is incorrect.
(D) Incorrect. No, because she does not have a duty to report judicial misconduct, only misconduct by attorneys.
It is incorrect that lawyers do not have a duty to report judicial misconduct, as Model Rule 8.3 clearly
outlines the reporting requirements for lawyers. In fact, the lawyer also should have reported opposing counsel to the disciplinary authority for bribing a judge. Thus, this answer is incorrect.
Explanation: Question 10
The correct answer is: (D) Yes, she may be subject to discipline for failing to include a disclaimer that her
firm is not connected with a government agency or public or charitable legal services organization.
A lawyer can use a trade name as long as it is not misleading [MR 7.5(a)]. However, if a private firm uses
a trade name that includes a geographical name, such as “Springfield Legal Clinic,” it may be required to
use an express disclaimer that it is not a public legal aid agency in order to avoid a misleading implication.
Therefore, Halley may be subject to discipline for failing to use a disclaimer.
(A) Incorrect. No, she may not be subject to discipline because lawyers are allowed to advertise in
phone books.
This answer choice is true, but misses the main issue, therefore making it incorrect. Lawyers are
allowed to advertise in phone books, subject to certain requirements. The problem is that Halley’s
ad falls afoul of Model Rule 7.5, which states that a lawyer is permitted to use a trade name as long
as it is not misleading. However, if a private firm uses a trade name that includes a geographical
name, such as “Springfield Legal Clinic,” it may be required to use an express disclaimer that it is
not a public legal aid agency to avoid a misleading implication.
(B) Incorrect. No, she may not be subject to discipline because the solicitation is not misleading.
The model rules do not state that it is per se misleading to use a trade name. However, Model Rule
7.5 requires that, if a private firm uses a trade name that includes a geographical name, such as
“Springfield Legal Clinic,” it may be required to use an express disclaimer that it is not a public legal
aid agency to avoid a misleading implication. Therefore, Halley may be subject to discipline because
of her failure to disclaim the ad’s misleading implication. Thus, this answer is incorrect.
(C) Incorrect. Yes, she may be subject to discipline for making a false statement.
This answer choice is true, but beside the point, therefore making it incorrect. The fact that Halley
advertised in a phone book is not the issue. The issue is that by using the trade name “Madison
Town Legal Clinic,” she may have misled potential clients into thinking that her office was a legal aid
office or governmental entity. Model Rule 7.5(a) states that if a private firm uses a trade name that
includes a geographical name, such as “Springfield Legal Clinic,” it may be required to use an express disclaimer that it is not a public legal aid agency to avoid a misleading implication. Therefore,
this answer is incorrect.
254
ANSWERS AND ANSWER EXPLANATIONS
Explanation: Question 11
The correct answer is: (D) No, because it is improper to make a contingency fee arrangement with an
expert witness.
Although a lawyer cannot give an “inducement” to a witness, she can reimburse witnesses’ expenses,
including reasonable costs associated with traveling and appearing and testifying at trial [MR 3.4]. The
Model Rules allow expert witnesses to be paid a fee for their time and expertise, but not a contingency
fee. Therefore, the lawyer can pay reasonable travel and hotel expenses for Witnesses A and B and a flat
fee to Witness C. Therefore, this answer is correct.
(A) Incorrect. Yes, because it is proper to pay the reasonable travel and hotel expenses incurred by fact
witnesses and to pay a contingency fee to an expert witness.
A lawyer can reimburse witnesses’ expenses, including reasonable costs associated with traveling and
appearing and testifying at trial. However, the Model Rules provide that it is improper to pay an expert
witness a fee contingent on his testimony or the outcome of the case. Therefore, this choice is incorrect.
(B) Incorrect. Yes, because the Model Rules allow an expert to be paid under any fee arrangement to
which he agrees.
This answer choice is incorrect because it is overly broad and not in accord with the rules. Under the
Model Rules, witnesses cannot be paid a fee contingent on their testimony or on the outcome of the
case. Therefore, this is not a correct answer.
(C) Incorrect. No, because testifying is a civic duty and fact witnesses should not be reimbursed for
their expenses.
Lawyers may reimburse witnesses’ expenses, including reasonable costs associated with traveling
and appearing and testifying at trial. However, it is not proper in most jurisdictions to pay an expert
witness a fee contingent on the outcome of the case. Therefore, this is not the best choice.
Explanation: Question 12
The correct answer is: (C) No, because he did not fail to supervise the paralegal. However, he may be
subject to liability for malpractice.
The lawyer may be subject to liability for malpractice because the paralegal is the lawyer’s agent, so
any negligence by the paralegal will be imputed to the lawyer under the doctrine of respondeat superior.
However, the standard for professional discipline is different. Lawyers who directly supervise nonlawyers
must make reasonable efforts to ensure that the person’s conduct is compatible with the professional
obligations of the lawyer [MR 5.3]. Therefore, the lawyer is subject to discipline only if it was determined
that he failed to reasonably supervise the paralegal. Thus, this answer is correct.
(A) Incorrect. Yes, because the resulting failure to file by the deadline is cause for discipline and makes
him subject to liability for malpractice.
This is not the best answer because the lawyer will not be subject to discipline under the Model
Rules, unless he is determined to have failed to reasonably supervise the paralegal. However, the
common law of malpractice holds the lawyer completely responsible for the negligence of his agent
under the doctrine of respondeat superior. Therefore, this answer is incorrect.
(B) Incorrect. Yes, because his failure to recheck immediately after the filing is cause for discipline even
though it does not subject him to malpractice liability.
Lawyers who directly supervise non-lawyers must make reasonable efforts to ensure that the person’s conduct is compatible with the professional obligations of the lawyer [MR 5.3]. Therefore, the
lawyer is subject to discipline only if it was determined that he failed to reasonably supervise the
paralegal. However, even if the lawyer properly supervised the paralegal, under the tort law concept
255
PRACTICE TEST 1
of respondeat superior, a lawyer may be liable for malpractice if the negligence of one of the lawyer’s
employees results in harm to a client’s case. Therefore, this answer is incorrect.
(D) Incorrect. No, because his good faith and adequate supervision of the paralegal protects him from
both discipline and malpractice liability.
Good faith is not a recognized defense to either professional malpractice or a violation of Model Rule
5.3. Therefore, this is not the correct choice.
Explanation: Question 13
The correct answer is: (B) Yes, because he visited the defendants in jail.
The Model Rules forbid a lawyer from discussing the subject of the representation with a person the lawyer
knows to be represented without first obtaining the other lawyer’s consent or a court order [MR 4.2]. The comments to the rule state that this applies to prosecutors. Thus, the prosecutor violated the rule by visiting the defendants in jail. Nothing in the facts indicates that the defendants’ lawyer agreed to the visit. Rather, their lawyer
did not know of the visit beforehand, and had told them not to agree to anything. Therefore, this answer is correct.
(A) Incorrect. Yes, because he attempted to extort a plea by threatening to seek additional charges simply to coerce the defendants into pleading guilty to an offense that they may not have committed.
An attempt to encourage a plea by threatening to seek additional charges is not extortion. The
problem here is that the Model Rules forbid a lawyer from discussing the subject of the representation with a person the lawyer knows to be represented without the other lawyer’s consent or a court
order [MR 4.2]. The prosecutor here did not have opposing counsel’s consent or a court order, so
this conversation was improper and will subject the prosecutor to discipline.
(C) Incorrect. No, because he obtained the knowing and voluntary consent of the defendants before
speaking with them.
Where parties are represented by counsel, the rule requires the prosecutor to first obtain consent from their
counsel before attempting to speak to the defendants or to obtain a waiver. The fact that the prosecutor
“asked” the defendants whether he could speak to them is irrelevant. Therefore, this answer is incorrect.
(D) Incorrect. No, because even though visiting two criminal defendants in custody without their attorney
present is improper, they confessed to the crime.
Visiting two criminal defendants in custody without their attorney present and without permission is
improper. Their admission of culpability does not excuse it. Therefore, this answer is incorrect.
Explanation: Question 14
The correct answer is: (C) No, because the judge had an affirmative obligation to disclose the prior business and
social relationship between the parties even though the judge did not believe it was grounds for disqualification.
The Code of Judicial Conduct requires a judge to recuse himself when his “impartiality might reasonably
be questioned” [CJC 2.11]. The Comments to the CJC also require a judge to disclose information on the
record that the judge believes the parties might reasonably consider relevant to a motion for disqualification, even if the judge does not think he should be disqualified. In this instance, the judge violated the rule,
so his conduct was not proper. Therefore, this answer is correct.
(A) Incorrect. Yes, because the plaintiff’s lawyer was not working on the personal injury case when he
and the judge worked together as prosecutors.
It is true that, if the plaintiff’s lawyer had been working on the personal injury case when he and
the judge were prosecutors together, the judge would have needed to recuse himself [CJC 2.11].
However, the examples given in the CJC are not exclusive. A judge must disqualify himself when his
impartiality might reasonably be questioned. A judge must also disclose information on the record
256
ANSWERS AND ANSWER EXPLANATIONS
that the judge believes the parties might reasonably consider relevant to a motion for disqualification, even if the judge does not think he should be disqualified. The judge failed to disqualify himself
and disclose the relevant information, so the motion should be granted.
(B) Incorrect. Yes, because judges formerly employed by governmental agencies need not disqualify
themselves even if their impartiality might reasonably be questioned.
This choice states a nonexistent rule. Disqualification in some cases might be proper if the judge’s
impartiality might reasonably be questioned. The fact that they were formerly employed by governmental agencies does not necessarily excuse impartiality if it exists.
(D) Incorrect. No, because the judge’s impartiality is automatically subject to question and raises the
appearance of impropriety.
Impartiality is not automatically questioned. Instead, the Code of Judicial Conduct requires disqualification where impartiality might reasonably be questioned. The Comments to the CJC also
require a judge to disclose information on the record that the judge believes the parties might
reasonably consider relevant to a motion for disqualification, even if the judge does not think he
should be disqualified.
Explanation: Question 15
The correct answer is: (A) No, because he did not violate a rule of professional conduct.
Model Rule 3.4 discusses fairness to the opposing party and counsel. Among other things, it forbids a
lawyer from referring to matters that he does not reasonably believe are relevant or that will not be supported by admissible evidence, from asserting personal knowledge of facts in issue except when testifying as a witness, or stating personal opinions as to the justness of a cause, the credibility of a witness, the
culpability of a civil litigant, or the guilt or innocence of an accused. Here, the defendant’s lawyer did not
do any of these things. The truthfulness of a party is relevant in any lawsuit. In this case, it was not a matter of rumor or opinion, because it was part of the court’s records. It would also likely be admissible under
the public records hearsay exception. Additionally, evidence used during cross-examination to impeach
the opposing party need not be turned over in discovery unless state law requires otherwise. Therefore,
this answer is correct.
(B) Incorrect. No, because the plaintiff could have found the evidence himself through due diligence.
This choice is incorrect, because the due diligence of an opposing counsel is not relevant to whether
counsel has violated Model Rule 3.4 regarding fairness to the opposing party and counsel. If the
defendant’s counsel had violated the rule, he would not be excused by the lack of the plaintiff’s due
diligence.
(C) Incorrect. Yes, because his question was designed solely to embarrass, degrade, or humiliate the witness.
This is not the best choice, because credibility is always relevant, particularly where the witness was
convicted of perjury in a similar case. While he may have asked the question to embarrass, degrade,
or humiliate the witness, he had a legitimate purpose in challenging the witness’s credibility by alluding to admissible evidence. He was, therefore, also not required to withdraw the question.
(D) Incorrect. Yes, because he alluded to a matter that he did not reasonably believe was relevant or
supported by admissible evidence.
The defendant’s lawyer did not allude to a matter that he did not reasonably believe was relevant
or supported by admissible evidence. Rather, credibility is always relevant, and there is no indication that the defendant’s lawyer did not reasonably believe that the prior conviction was irrelevant or
unsupported by admissible evidence. The conviction was relevant, and information about a criminal
conviction in a public record in the court’s database would be admissible, even if it were hearsay,
under several exceptions to that rule.
257
PRACTICE TEST 1
Explanation: Question 16
The correct answer is: (D) No, because the imputed conflict of interest no longer applies to the associate.
This is a correct statement about imputation of conflicts under Model Rule 1.10. Here the associate
worked at the big firm that was disqualified based upon a conflict of interest. The fact that the conflict
was imputed to the entire firm meant only that lawyers from that firm could not represent the corporation. Whether the associate’s new firm is disqualified turns on whether the associate has disqualifying
knowledge about the corporate case. In this case, the associate had nothing to do with the large firm’s
representation of the corporation and nothing to do with the large firm’s representation that gave rise to
the conflict of interest, so the small firm may represent the corporation in the litigation.
(A) Incorrect. Yes, because the connection-by-associate between the two firms causes them to constitute one “firm” as defined by the ethics rules.
The mere fact that an attorney has transferred his employment from one firm to another does not
render the two firms “one firm” for purposes of applying ethical rules. This is true even if the two firms
have represented the same clients in different matters. Thus, this answer is incorrect.
(B) Incorrect. Yes, because the court’s prior order continued to disqualify the associate from representing the corporation in the case.
Disqualification does not necessarily continue when a disqualified lawyer changes firms. The essential legal test is whether the associate knows disqualifying information about the case. Model
Rule 1.10 presumes that information is shared, and the burden of proof to show that information
sharing didn’t happen falls on the firm seeking to avoid disqualification. While this is a heavy burden
because it requires proof of a negative (the associate must prove he knew nothing disqualifying), the
associate should be able to carry that burden in this case.
(C) Incorrect. No, because the prior disqualification of the large firm only applies to attorneys who continue to work at that firm.
Under the Model Rules, the associate is presumed to have disqualifying information. The small firm
will be disqualified unless the associate carries his burden of proving he knew nothing disqualifying
about the case. Therefore, this is not a correct answer.
Explanation: Question 17
The correct answer is: (B) No, because a judge may accept a loan from a lending institution in its regular
course of business on the same terms generally available to people who are not judges.
Judges are permitted to take advantage of financial opportunities, including loans and discounts, if the
same opportunities are available on the same terms to similarly situated people who are not judges [CJC
3.13]. This balances the need for an impartial judiciary with a judge’s need to buy a house and conduct
other financial business like everyone else. In this case, the terms are available to non-judges, making it
acceptable for the judge to receive the loan. Therefore, this answer choice is correct.
(A) Incorrect. No, because a judge is free to accept a loan from anyone.
This choice is incorrect because it is overly broad. A judge is not free to accept all loans. According
to the disqualification rules, anything that would cause a judge’s impartiality to be reasonably questioned is prohibited. However, a bank loan on terms offered to other professionals would not, so it is
permissible. Therefore, this answer choice is incorrect.
(C) Incorrect. Yes, because a judge may not accept loans from parties who have appeared before him.
This choice is overbroad and thus incorrect. No rule prohibits a judge from accepting loans from
parties who have, or may in the future, appear before him. Loans from such parties may cause disqualification under Rule 2.11 if the judge’s impartiality might reasonably be questioned, but bank loans
258
ANSWERS AND ANSWER EXPLANATIONS
such as this one are specifically permitted under Rule 3.13, which allows judges to take advantage of
financial opportunities, including loans and discounts, if the same opportunities are available on the
same terms to similarly situated people who are not judges. Therefore, this answer choice is incorrect.
(D) Incorrect. Yes, because a judge’s duty to avoid the appearance of impropriety extends to rejecting
loans that are not available to any member of the general public.
This choice is overbroad and thus incorrect. While the Code of Judicial Conduct allows judges to
take advantage of financial opportunities that are available on the same terms to similarly situated
people who are not judges, the opportunities need not be available to every member of the general
public. For instance, it need not be available to people who have poor credit ratings. This balances
the need for an impartial judiciary with a judge’s need to buy a house and conduct other financial
business like everyone else. Therefore, this answer choice is incorrect.
Explanation: Question 18
The correct answer is: (B) Yes, if he reasonably believes he can provide competent and diligent representation to both, and if he obtains their informed consent confirmed in writing.
This choice accurately states the requirements of the Model Rules. The professor may represent both
parties if he reasonably believes he can provide competent and diligent representation to both of them
and obtains their informed consent in writing. This is true even if the clients take initially conflicting positions with respect to the formation of their law firm. Because of their high level of sophistication, A and B
should be more able than most to give informed consent. Therefore, this answer is correct.
(A) Incorrect. Yes, if it is obvious that he can settle the disputed terms through negotiations and without
conflict, and if both partners consent after disclosure.
This choice is incorrect because it misstates the rule. The old Model Code made it arguably more
difficult for a lawyer to represent two clients in this situation because it had to be “obvious” that he
could do so without conflict. Now the lawyer must only “reasonably believe” he can do so without
conflict, which is a more permissive standard. Thus, this answer is incorrect.
(C) Incorrect. No, unless he structures their firm with equal management, control, and equal compensation, despite the fact that A’s financial investment is more than B’s.
This answer does not provide an ethical rule. No business law requires the parties to structure their
law firm with equal management and control, particularly where one participant invests more money
in the firm than the other. Therefore, this answer is incorrect.
(D) Incorrect. No, because there is a concurrent conflict of interest that is directly adverse to the interests of the parties.
No “concurrent conflict of interest” is clear from these facts. A concurrent conflict of interest exists
if (1) the representation is directly adverse between the two clients; or (2) there is a significant risk
that the representation of multiple clients will be materially limited by the lawyer’s responsibilities to
one or more of the clients [MR 1.7]. The rule specifically contemplates allowing lawyers to represent
multiple clients in this kind of business situation, as such an arrangement is more cost-effective for
the clients. Thus, this answer is incorrect.
Explanation: Question 19
The correct answer is: (B) Yes, because disclosure was necessary to mitigate injury to the other party’s
financial interests which resulted from the client’s use of the lawyer’s services to commit fraud.
A lawyer is allowed to reveal information relating to the representation of a client to the extent the lawyer
reasonably believes necessary to mitigate or rectify substantial injury to another’s financial interests or
property that has resulted from the client’s commission of a crime or fraud when the client has used the
259
PRACTICE TEST 1
lawyer’s services to further the crime or fraud [MR 1.6]. Therefore, the lawyer’s disclosure of the fraudulent contract was permissible, and this is the correct answer.
(A) Incorrect. Yes, because the client could foresee that the lawyer would reveal the information to the other party.
This is not the best answer because the propriety of the disclosure is not governed by whether it was foreseeable. Rather, this situation is covered by Model Rule 1.6, which allows disclosure of client information to
rectify a fraud that the client committed with the use of the lawyer’s services. Thus, this answer is incorrect.
(C) Incorrect. No, because the attorney revealed information which the client divulged to him in confidence and the revelation was disadvantageous to his client.
In general, a lawyer may not reveal a client’s confidential information. However, Model Rule 1.6 allows a lawyer to reveal information relating to the representation of a client to the extent the lawyer
reasonably believes necessary to mitigate or rectify substantial injury to another’s financial interests
or property that has resulted from the client’s using the lawyer’s services to commit a crime or fraud.
Therefore, his actions were permissible and accordingly, this answer is incorrect.
(D) Incorrect. No, because the disclosure was not necessary to the attorney’s continued representation
of the client.
It is true that the disclosure was not necessary to the attorney’s continued representation of the client. However, the more important issue is whether the disclosure was appropriate under the Model
Rules. Therefore, this is not the best answer choice.
Explanation: Question 20
The correct answer is: (A) Yes, because he provided his client with the information needed to help him
succeed in fleeing the country.
The Model Rules forbid a lawyer from counseling or assisting a client to engage in criminal or fraudulent
behavior [MR 1.2]. This is not limited to verbal assistance. Giving the client a list of countries that do
not have extradition treaties with the United States was a critical piece of information that the executive
needed to know in order to plan his escape and avoid later extradition. Therefore, even though the lawyer’s words were appropriate, his actions will subject him to discipline.
(B) Incorrect. Yes, because he had an obligation to immediately withdraw from his client’s case when
the executive expressed his intention to flee the country.
The obligation to withdraw from representation is not automatically triggered when a client suggests illegal conduct. Often, the more appropriate course is to discuss the ramifications of the proposed course
of conduct, as the lawyer in this instance did verbally. The only times that withdrawal is required are when
the client dismisses the lawyer, when continued representation will cause the lawyer to violate the law or
the Rules of Professional Conduct, or when the lawyer is impaired and therefore unable to represent the
client competently. None of those situations is present here. Thus, this answer is incorrect.
(C) Incorrect. No, because he has the right to discuss the legal consequences of any proposed course
of conduct with a client even if the conduct is illegal.
This is not a good answer for two reasons. First, the lawyer did not just discuss the executive’s proposed conduct. He affirmatively helped the client engage in an illegal course of conduct. Second,
the client was not asking for advice about a future course of conduct. He was asking for help to commit a crime. Therefore, this answer is incorrect.
(D) Incorrect. No, because he expressly advised his client that the law prohibited his conduct.
This is not a good choice because the lawyer contradicted his verbal advice by intentionally supplying the executive with the information that the client needed to violate the law. This was not a situation where the client had his plan in place and asked the attorney about the possible future legal
260
ANSWERS AND ANSWER EXPLANATIONS
consequences of the client’s proposed action, but one where the lawyer’s action actually furthered
the crime. Therefore, this answer is incorrect.
Explanation: Question 21
The correct answer is: (A) Yes, provided that his sole purpose was to embarrass or harass the supplier’s president.
The lawyer’s veiled threat to an opposing party violates Model Rule 4.4, which forbids conduct that has
no substantial purpose other than to embarrass or harass third persons. As such, the lawyer’s comment
subjects him to discipline in any state in which he is licensed. Thus, this answer is correct.
(B) Incorrect. Yes, provided that he is licensed to practice law in the state and negotiated the contract in the state.
When a lawyer violates an ethics rule, where he was when he engaged in that conduct is irrelevant. A
lawyer admitted to practice in a jurisdiction is subject to the disciplinary authority of that jurisdiction regardless of where the lawyer’s conduct occurs [MR 8.5]. Therefore, this is not the best answer choice.
(C) Incorrect. No, because negotiating a contract is not considered practicing law.
This answer is incorrect because negotiating a contract is actually considered practicing law. For instance, the Preamble to the Model Rules says: “As negotiator, a lawyer seeks a result advantageous to
the client but consistent with requirements of honest dealings with others.” Thus, negotiation is considered to be part of the practice of law, and a lawyer who is involved in negotiation must behave ethically.
(D) Incorrect. No, because his actions are not unethical.
The lawyer’s statement arguably violates two ethics rules. First, a lawyer is not permitted to knowingly make a false statement of material fact or law to a third party while representing a client [MR
4.1]. Second, a lawyer is forbidden from harassing or embarrassing third parties [MR 4.4]. Therefore, this is not a correct answer.
Explanation: Question 22
The correct answer is: (B) Yes, because he is entitled to decline representation if his strong feelings about
the issue would make it difficult for him to carry out the representation.
Lawyers should not try to avoid court appointments except for good cause [MR 6.2]. One good cause, however, is if the lawyer is so repulsed by the client or the cause that it is likely to impair the lawyer’s representation. Given the lawyer’s experiences, that is likely to be the case here, and it would be entirely appropriate
under the Model Rules if he declined the representation for that reason. Therefore, this is the best answer.
(A) Incorrect. Yes, because a lawyer need not accept all court appointments.
It is true that it is appropriate for lawyers to decline court appointments under limited circumstances
[MR 6.2]. Those include when there is an unreasonable financial burden on the lawyer, the representation is likely to result in a violation of the Rules or the law, or when the lawyer is so repulsed by
the client or the cause that it is likely to impair the lawyer’s representation. Because this is not the
most specific answer, it is not the best answer choice.
(C) Incorrect. No, because lawyers may not seek to avoid court appointments.
This is not a correct statement of the law under the Model Rules. It is appropriate for lawyers to decline some
court appointments, including when there is an unreasonable financial burden on the lawyer, the representation will likely result in a violation of the Rules or the law, or when the lawyer is so repulsed by the client or the
cause that it is likely to impair the lawyer’s representation [MR 6.2]. Therefore, this answer choice is incorrect.
(D) Incorrect. No, because every lawyer is required to complete a certain amount of pro bono work per year.
A lawyer should try to donate at least 50 hours of work per year to those who cannot afford legal
services [MR 6.1]. However, this is an aspiration and not a requirement. Besides, if the lawyer feels
261
PRACTICE TEST 1
so repulsed by the client as to be unable to represent the client competently, the proper approach
would be to refuse the appointment for this case but let the court know that he is available to take
another pro bono case. Thus, this answer is incorrect.
Explanation: Question 23
The correct answer is: (A) No, because the information is protected by attorney-client privilege.
A lawyer who knows that another lawyer has committed a violation of the Rules of Professional Conduct
that raises a substantial question as to that lawyer’s honesty, trustworthiness or fitness as a lawyer in other
respects, shall inform the appropriate professional authority [MR 8.3(a)]. However, the comments to this rule
qualify this duty, noting that a report about misconduct is not required where it would violate Model Rule 1.6,
dealing with confidentiality of information. A lawyer may not reveal information relating to the representation
of a client unless the client gives informed consent, the disclosure is implicitly authorized to carry out the
representation, or the disclosure is otherwise permitted [MR 1.6(a)]. In other words, a lawyer has a duty
to report misconduct by another lawyer unless his knowledge of the misconduct is based on privileged
information. Here, the client informed her lawyer about the previous lawyer’s actions in the context of the
attorney-client relationship, rendering the information privileged. Not only did she not consent to disclosure,
she explicitly told the lawyer not to disclose it. Disclosure of the information is not otherwise permitted by the
rules. Therefore, the lawyer will not be disciplined for failing to report the previous lawyer.
(B) Incorrect. No, because the first lawyer is related to the client by marriage.
This is incorrect because the lawyer is not barred from revealing the information by virtue of the
previous lawyer’s familial relationship with the client. He is barred from revealing the information
because it is protected by the attorney-client privilege.
(C) Incorrect. Yes, because the previous lawyer stole more than $10,000 from the client.
The amount of money stolen is irrelevant. Lawyers are bound to report other lawyers’ rule violations
that raise substantial questions about the lawyers’ honesty or fitness. However, the term “substantial” refers to the seriousness of the possible offense. The fact of stealing money, whether $100 or
$100,000, raises a substantial question as to his honesty, trustworthiness, and fitness as a lawyer.
Thus, this answer is incorrect.
(D) Incorrect. Yes, because he is ethically required to report attorney misconduct to the disciplinary authorities.
The comments to Model Rule 8.3 qualify a lawyer’s general duty to report, noting that a report about
misconduct is not required where it would violate Model Rule 1.6, which deals with confidentiality of
information. A lawyer may not reveal information relating to the representation of a client unless the
client gives informed consent, the disclosure is implicitly authorized in order to carry out the representation, or the disclosure is otherwise permitted [MR 1.6]. In other words, a lawyer has a duty to
report misconduct by another lawyer unless his knowledge of the misconduct is based on privileged
information. In this case, the client told her lawyer specifically not to disclose the information, so it is
clear that she is not consenting to disclosure. Thus, this answer is incorrect.
Explanation: Question 24
The correct answer is: (A) Yes, because the director is the lawyer’s client.
The Model Rules address the situation where the client is not the same person as the payor. The payor, if
not the client, shall not influence or direct the lawyer’s professional judgment [MR 5.4]. Model Rule 1.8 also
states that the client’s information is subject to normal confidentiality precautions and is not to be shared
with the payor. Therefore, the lawyer should not have informed the president of the director’s comment.
(B) Incorrect. Yes, because the lawyer cannot represent the director and be paid by the company where
a potential conflict of interest exists between the director and the company.
262
ANSWERS AND ANSWER EXPLANATIONS
This choice addresses a different case than the one presented here. In this case, the director is the client,
not the company. There is no conflict of interest per se in the director’s having done something illegal or tortious. Even if the company were also the lawyer’s client and a conflict arose, the lawyer could still represent
the director and be paid by the company if the conflict is consentable under Model Rule 1.7 and the parties
confirm their consent in writing. However, those facts are not presented here. Thus, this answer is incorrect.
(C) Incorrect. No, because a lawyer must keep clients advised of all significant developments.
This is not the best choice because it confuses who the lawyer’s client is. Because the director is the
client, the lawyer was not even permitted, much less required, to contact the president. It is true that a
lawyer must keep clients advised of all significant developments, and that the comment revealing the
director’s discrimination was significant, but neither the company nor the president is the lawyer’s client.
(D) Incorrect. No, because the lawyer had the option of contacting the president as long as the lawyer
exercised reasonable discretion under the circumstances.
This is not a good choice because no rule of ethics gives the lawyer the option of contacting the president
without the consent of his client. “Exercising reasonable discretion under the circumstances in handling
client confidences and conflicts of interests” is not an ethics rule. Thus, this answer is incorrect.
Explanation: Question 25
The correct answer is: (D) No, because a lawyer need not decline or withdraw from representation when
the client suggests an illegal or unethical course of conduct.
A lawyer is not obliged to decline or withdraw simply because the client suggests a course of conduct that is
illegal or violates the Rules of Professional Conduct. Just because a client makes such a suggestion does not
mean that the lawyer is required to follow it. In this case, the client abandoned her idea of using her lawyer as
a messenger to harm a witness when he refused. Model Rule 1.16 requires a lawyer to decline or withdraw
from representation if the client demands that the lawyer engage in illegal or unethical behavior, but specifically
distinguishes between demanding and suggesting. Thus, this is the correct answer to this question.
(A) Incorrect. Yes, because a lawyer must decline or withdraw from representation if the client demands
that the lawyer engage in conduct that is illegal and/or violates the Rules of Professional Conduct.
A lawyer must decline or withdraw from representation if the client demands that the lawyer engage
in illegal or unethical behavior [MR 1.16]. This answer is correct on the law, but incorrect on the facts
of this case. In this case, the client abandoned her idea of using her lawyer as a messenger to harm
a witness when he refused. Since the client abandoned this course of conduct, withdrawal was not
mandatory and the lawyer will not be subject to discipline. Therefore, this answer is incorrect.
(B) Incorrect. Yes, because a lawyer must withdraw if a client persists in a course of action that the lawyer reasonably believes is criminal or fraudulent.
A lawyer is justified in withdrawing if the client continues in a course of criminal and fraudulent
behavior, even if the lawyer is not involved in it [MR 1.16 [cmt. 7]]. Although this answer choice is
correct on the law, it is not directly on point. In this case, the client abandoned her idea of using her
lawyer as a messenger to harm a witness when he refused. There is no indication that the client was
continuing on any criminal or fraudulent course. Therefore, this is not the best answer.
(C) Incorrect. No, because a lawyer may balance his legitimate pecuniary interests against a client’s demand that the lawyer engage in conduct that is illegal or violates the Rules of Professional Conduct.
There is no such rule of ethics. A lawyer cannot weigh his pecuniary interests when a client demands
that he engage in conduct that is illegal or violates the Rules of Professional Conduct or other law.
In such a situation, the lawyer must withdraw. However, that situation is not presented here, where
the client only suggested that the lawyer engage in witness tampering and withdrew the suggestion
when her lawyer disagreed. Thus, this answer is incorrect.
263
PRACTICE TEST 1
Explanation: Question 26
The correct answer is: (B) Yes, because her notes constitute opinion work product.
Olivia’s notes containing her mental impressions of the witness’s believability are opinion work product.
Therefore, they are immune from disclosure absent extraordinary circumstances. The Federal Rules
of Evidence provide that a party seeking discovery of opinion work product must show that it is unable,
without undue hardship, to obtain the substantial equivalent of the material by other means. Jones cannot
make that showing because all he needs to do to get Brown’s statement to Smith is ask Smith what Brown
said. The law proceeds on the assumption that witnesses will not perjure themselves. While Jones might
like independent corroboration of Brown’s statement to impeach Smith if he lies, that is not the same thing
as saying the evidence is unavailable without undue hardship to Jones. Jones can take Smith’s deposition and ask Smith to answer under oath the following question: “What did Brown say to you?” Alternatively, Jones can do what he has already done, namely, to ask Smith that question in written discovery.
Thus, Olivia need not produce her notes.
(A) Incorrect. Yes, because Brown’s statement that he told Smith the cars’ equipment was not entirely
original is protected from disclosure by the attorney-client privilege.
Because Brown was not Olivia’s client, Brown’s statement that he told Smith the cars’ equipment
was not entirely original is not protected from disclosure by the attorney-client privilege, even though
Smith’s communication to Olivia regarding what Brown had told him (Smith) would be protected by
the attorney-client privilege. Thus, the attorney-client privilege would not provide Olivia with a basis
on which to decline to produce her notes, and this answer is incorrect.
(C) Incorrect. No, because Brown’s statement that he told Smith the car’s equipment was not entirely
original is not protected by the attorney-client privilege.
While this answer choice is a true statement of the law (Brown’s statement to Olivia is not protected
by the attorney-client privilege), that fact is insufficient to determine whether or not Olivia has a valid
basis on which to refuse to produce her notes from her conversation with Brown. Thus, this answer
choice is incorrect.
(D) Incorrect. No, because her notes constitute ordinary work product, which is not immune from discovery.
It is not true that Olivia’s notes are “ordinary” work product. They contain her mental impressions and
thus constitute opinion work product. Also, even if her notes were ordinary work product, they would
be generally immune from discovery absent compelling reasons to disclose. Because Jones may
obtain Smith’s testimony regarding what Brown told Smith when he purchased the cars from Brown,
there is no compelling reason to require Olivia to produce her notes.
Explanation: Question 27
The correct answer is: (B) Yes, but only if the pedestrian and the engineer give written informed consent.
A lawyer who has formerly represented a client shall not later use information relating to that representation to the former client’s disadvantage [MR 1.9]. It seems quite likely that, in the course of representing
the pedestrian, the lawyer would remember confidential medical information from the engineer. Therefore, it would violate the Rule for him to accept representation of the pedestrian unless both the pedestrian and the engineer give informed consent in writing. Therefore, this answer is correct.
(A) Incorrect. Yes, but only if he fully discloses all relevant facts to the pedestrian and the engineer.
A lawyer who has formerly represented a client is prohibited from later using information relating
to that representation to the former client’s disadvantage [MR 1.9]. While disclosure of the conflict
would be beneficial, this alone would not be enough. It would violate the Rule for the lawyer to
accept representation of the pedestrian unless he fully disclosed the situation to both parties and
obtained their informed consent in writing. Therefore, this answer is incorrect.
264
ANSWERS AND ANSWER EXPLANATIONS
(C) Incorrect. No, because there is an unwaivable conflict of interest.
This choice is too broad. Although a conflict of interest may exist, it doesn’t necessarily mean that it
is unwaivable. Because the later action is likely to involve the medical condition that was the subject
of the first action, the lawyer may only accept the representation if he can obtain the written informed
consent of both the pedestrian and the engineer. Therefore, this answer choice is incorrect because
informed consent can still be obtained.
(D) Incorrect. No, but the lawyer may refer the case to another firm in exchange for a referral fee.
The problem with this choice is not the referral, but the fee. Model Rule 7.2 bars lawyers from paying
a referral fee in this instance. Lawyers may have reciprocal referral arrangements without payment
or may split fees with client consent when they are both working on a case, but they may not engage
in referrals for cash as suggested here. Thus, this answer is not the best choice.
Explanation: Question 28
The correct answer is: (D) The fee the securities expert charged another client for writing a similar letter.
The threshold requirement for a legal fee is that it must be reasonable. Model Rule 1.5 spells out the factors to be considered in determining the reasonableness of a fee. This list is not exhaustive, and every
factor is not necessarily relevant in each case. However, it would not be appropriate for the securities
expert to consider the fee she charged another client for writing a similar letter. Of course, it is appropriate
for her to have a standard hourly billing rate, but ultimately, she must determine a reasonable fee for each
client and for each service performed for a particular client.
(A) Incorrect. Most lawyers in the area would charge a fee of $2,000 for such an opinion letter.
Model Rule 1.5 lists several factors to consider in deciding whether a fee is reasonable. One of those factors
is how much similar practitioners in the area charge for similar work. The security expert’s $1,500 fee for
the opinion letter is in line with the $2,000 fee customarily charged in the locality for such a letter. Therefore,
this is an appropriate factor. The question asks for an inappropriate factor, so this is not the best answer.
(B) Incorrect. The amount of the debentures involved in this issuance.
Model Rule 1.5 lists several factors to consider in deciding whether a fee is reasonable. One of the
factors listed is the amount of money involved. The question asks for an inappropriate factor, so this
is not the best answer. Therefore, this is an appropriate factor.
(C) Incorrect. The securities expert has represented the utility for a long time and is familiar with the
governmental regulations applicable to it.
Factors to be considered in determining whether a fee is reasonable include the nature and length
of the professional relationship with the client, as well as the lawyer’s experience, reputation, and
ability in performing the services requested. Here, the securities expert has represented the utility
for a long time, is familiar with the governmental regulations applicable to issuing new debentures,
and has previously provided it with such opinion letters. Therefore, she has a high level of skill in
the area and thus can complete the work much more quickly than other attorneys can. This is an
appropriate factor, and the question asks for an inappropriate factor, so this is not the best answer.
Explanation: Question 29
The correct answer is: (A) Yes, because the lawyer did not confirm the arrangement in writing.
Model Rule 1.8 provides specific rules for a lawyer entering into a business transaction with a client or knowingly acquiring a pecuniary interest adverse to a client. It requires that: (1) the transaction and terms be fair
and reasonable to the client and fully and comprehensibly disclosed in writing; (2) the lawyer advise the
client in writing that she may want to seek independent counsel and give the client time to do so; and (3) the
265
PRACTICE TEST 1
client gives informed consent in a signed writing to the essential terms of the transaction and the lawyer’s
role in it. In this case, the lawyer said the right things but did not commit them to writing, nor did he get the
businesswoman’s informed consent in writing. Thus, the lawyer may be subject to professional discipline.
(B) Incorrect. Yes, because a lawyer may not enter into a high-risk business transaction with a client.
A lawyer may certainly enter into a high-risk business transaction with a client, particularly a sophisticated one. The problem here is that while the lawyer appropriately gave the caveats he was
supposed to, he did not put them in writing and did not obtain written informed consent from the
businesswoman. Thus, this answer is incorrect.
(C) Incorrect. No, because he advised the businesswoman to seek the advice of independent legal counsel, gave
her a reasonable opportunity to obtain such advice, and did not need to confirm the arrangement in writing.
Model Rule 1.8 requires that when a lawyer enters into a business transaction with a client: (1) the
transaction and terms be fair and reasonable to the client and fully and comprehensibly disclosed
in writing; (2) the lawyer advise the client in writing that she may want to seek independent counsel
and give the client time to do so; and (3) the client gives informed consent in a signed writing to the
essential terms of the transaction and the lawyer’s role in it. Here, none of the writing requirements
were satisfied. Thus, this is an incorrect answer choice.
(D) Incorrect. No, because the businesswoman understood and consented to the essential terms of the
transaction and the lawyer’s role.
It seems that the businesswoman had the transaction and the lawyer’s role in it explained in detail, and
that she completely understood it. However, the lawyer still violated the Model Rule, because he did not
put the information in writing and did not obtain written informed consent. Thus, this answer is incorrect.
Explanation: Question 30
The correct answer is: (B) Yes, because the witness no longer worked for the lawyer’s client.
Under the Model Rules, lawyers are permitted to request that others refrain from speaking with an opposing party’s lawyers only under certain limited circumstances. The general premise is that everyone
should have equal access to relevant evidence. Lawyers are permitted to request that someone other
than a client refrain from giving information to another party only if that person is a relative, employee, or
other agent of the lawyer’s client, and the lawyer reasonably believes that the person’s interests will not
be adversely affected by refraining from giving such information. Here, the former employee is not a relative, employee, or other agent of the corporation that is the lawyer’s client. Therefore, the lawyer may not
ask the former employee to refrain from speaking with the plaintiff’s lawyers.
(A) Incorrect. Yes, because lawyers may not ask witnesses to refrain from speaking with attorneys for
an opposing party.
It is not true that lawyers are entirely barred from asking witnesses to refrain from speaking with attorneys for an opposing party. Lawyers may ask relatives, employees, or other agents of the lawyer’s
client from voluntarily giving information to an opposing party. As such, this answer is overly broad.
(C) Incorrect. No, because the plaintiff’s lawyer was permitted to speak with the former employee without the lawyer’s permission.
This answer confuses the “no-contact” rule with the applicable Model Rule. Regardless of whether
the plaintiff’s lawyer would be permitted to talk to the former employee without the defense lawyer’s
permission, the defense lawyer may request that a witness refrain from voluntarily giving information
only under limited circumstances.
(D) Incorrect. No, because lawyers are permitted to request that witnesses refrain from speaking to
lawyers for an opposing party.
266
ANSWERS AND ANSWER EXPLANATIONS
While lawyers are not entirely barred from asking witnesses to refrain from speaking with attorneys
for an opposing party, lawyers may do so only under certain limited circumstances. Namely, lawyers
may ask relatives, employees, or other agents of the lawyer’s client from voluntarily giving information to an opposing party. As such, this answer is overly broad.
Explanation: Question 31
The correct answer is: (B) Yes, because a firm may not represent plaintiffs in a matter substantially related to one in which it represented the defendant if any lawyer currently at the firm knows confidential
information of the defendant that could be used against it.
Model Rule 1.9 bars a lawyer from representing a client and then representing another person with materially adverse interests in a substantially related matter unless the former client gives written consent.
Even if the lawyer leaves the firm, Model Rule 1.10 imputes the conflict of interest to the firm if the matters
are substantially related and any remaining lawyer at the firm has relevant confidential information about
the matter. Therefore, Renzo cannot represent the class action against GreenCorp because Craig, who
worked on the earlier GreenCorp case, has read confidential information vital to the case and remains at
the firm. There is no possibility that GreenCorp would waive the conflict, because they are asking for the
first firm to be disqualified. Therefore, this answer is correct.
(A) Incorrect. Yes, because a firm may not represent plaintiffs in a matter substantially related to one in
which it represented the defendant if any lawyer formerly at the firm knows confidential information
of the defendant that could be used against it.
This answer choice is overbroad. Model Rule 1.9 bars a lawyer from representing a client and then
representing another person with materially adverse interests in a substantially related matter unless the former client gives written consent. Even if the lawyer leaves the firm, Model Rule 1.10
imputes the conflict of interest to the firm if the matters are substantially related and any remaining
lawyer at the firm has relevant confidential information about the matter. Renzo cannot represent
the class action against GreenCorp because Craig, who worked on the earlier GreenCorp case, has
read confidential information vital to the case and remains at the firm. If Lorena, who has left the
firm, had been the only lawyer there involved with the earlier case, the firm would not be disqualified.
(C) Incorrect. No, because Lorena and Craig were the only lawyers representing GreenCorp, and Renzo just joined the firm.
This choice is incorrect because it fails to address the issue that the knowledge of a lawyer currently with
the firm is imputed to the firm. Renzo cannot represent the class action against GreenCorp because Craig,
who worked on the earlier GreenCorp case, has read confidential information vital to the case and remains
at the firm. The fact that Renzo has just joined the firm is irrelevant. Thus, this answer is incorrect.
(D) Incorrect. No, because a firm is subject to disqualification only if a lawyer at the firm has represented
a client in one matter and then attempts to represent an adversary in a substantially related matter.
This choice is incorrect because it does not adequately address the rule that the knowledge of a lawyer
currently with the firm is imputed to the firm. Renzo cannot represent the class action against GreenCorp
because Craig, who worked on the earlier GreenCorp case, has read confidential information vital to the
case and remains at the firm. It does not matter that Craig is not involved with the plaintiffs’ class action.
Explanation: Question 32
The correct answer is: (B) Yes, because a lawyer’s advice may refer to relevant moral, economic, social,
and political factors.
It is part of a lawyer’s duty under Model Rule 2.1 to “exercise independent professional judgment and
render candid advice.” This advice can include relevant nonlegal factors, including moral, economic, social, and political considerations. It can also (and sometimes must) include things the client does not want
267
PRACTICE TEST 1
to hear. These facts present a good example of why that is so. The moral, social, and political factors in
an emotionally charged situation such as the one described may overwhelm a trier of fact’s objectivity
and, in this case, could lead to the conviction and execution of an innocent defendant unless taken into
account by the client, reluctant though he may be to face or accept them. The public defender’s actions
here were entirely proper.
(A) Incorrect. Yes, because an indigent criminal defendant in a capital crime is entitled to court-appointed counsel, but cannot choose among counsel due to his religious beliefs.
It is true that criminal defendants are not entitled to appointment of counsel of their choice. They
can hire counsel from their own funds, accept a public defender, or seek to represent themselves. However, this is not the most relevant answer choice, as it does not squarely address
the public defender’s conduct.
(C) Incorrect. No, because a lawyer may not refer to considerations other than the law.
Lawyers have a duty under Model Rule 2.1 to “exercise independent professional judgment and
render candid advice.” This advice can include relevant nonlegal factors, including moral, economic,
social, and political considerations. In this case, it was entirely relevant to the man’s case that making the pronouncements he wanted to make would seriously prejudice his case. The public defender
was correct in trying to apprise him of that fact despite his not wanting to talk with her. Thus, this
answer is incorrect.
(D) Incorrect. No, because a client has the right not to have his religious beliefs infringed upon by being
forced to accept a female lawyer.
A criminal defendant in a capital crime is not entitled to counsel of his choice. He can hire a lawyer
that he can afford, accept a public defender, or seek to represent himself pro se. It is true that he
cannot have a female lawyer forced upon him, but that did not happen here--he was able to have
the public defender removed from his cell. Thus, this answer is incorrect.
Explanation: Question 33
The correct answer is: (C) No, because the advertisement was truthful and not misleading.
An ad for a lawyer’s services must be truthful and not misleading [MR 7.1]. Although the lawyer in this
instance was uncharacteristically dressed for the ad and surrounded himself with books that he does
not use, these trappings are akin to wearing makeup for a TV appearance. They are not misleading. His
statements about his low fees and clients’ general satisfaction are also truthful. In fact, he can substantiate his claims. Although he stated that almost all of his clients are satisfied with his work, he did not promise the same results to prospective clients. Moreover, a lawyer may list, in advertising, the jurisdictions in
which he is licensed to practice. Therefore, this answer choice is correct.
(A) Incorrect. Yes, by indicating that almost all of his clients are satisfied.
The advertisement makes no promises regarding the results the lawyer is likely to obtain on behalf
of his clients. Rather, the advertisement makes the truthful claim that most clients are satisfied with
the lawyer’s services. Therefore, this choice is incorrect.
(B) Incorrect. Yes, by misleading the public.
Advertisements for a lawyer’s services must be truthful and not misleading [MR 7.1]. Although the lawyer in this instance was uncharacteristically dressed for the ad and surrounded himself with books he
did not use, these trappings are akin to wearing makeup for a TV appearance. They are not misleading. His statements about his low fees and clients’ general satisfaction are also truthful. In fact, he can
substantiate his claims. Although he stated that almost all of his clients are satisfied with his work, he
did not promise the same results to prospective clients. Moreover, a lawyer may list, in advertising, the
jurisdictions in which he is licensed to practice. Therefore, this answer choice is correct.
268
ANSWERS AND ANSWER EXPLANATIONS
(D) Incorrect. No, because advertising is unrestricted.
It is not correct to say that lawyer advertising is unrestricted. As indicated above, advertisements for a
lawyer’s services must be truthful and not misleading, and the rule and its comments give various examples of what is considered truthful and not misleading [MR 7.1]. Therefore, this choice is not correct.
Explanation: Question 34
The correct answer is: (D) No, because a lawyer may secure her fee or expenses with an appropriate lien.
Model Rule 1.8 limits a lawyer’s ability to enter into a business transaction with a client, including setting
parameters for informed consent. It specifically states that a lawyer may acquire a lien authorized by law
to secure her lawyer’s fee or expenses. Although this case was not a business transaction per se, the
lawyer does seem to have followed the rules through (1) fair and reasonable terms disclosed to the client
in an understandable writing; (2) advising and leaving time for the client to seek other counsel; and (3)
the client gave informed consent to the essential terms in a signed writing. Moreover, although a lawyer
is generally prohibited from obtaining a proprietary interest in the subject matter of litigation, there is an
exception that permits an attorney to obtain a lien on such property to secure the collection of her fees.
Therefore, the lawyer should not be subject to discipline.
(A) Incorrect. Yes, because the agreement constituted an impermissible business transaction with a client.
This answer choice is wrong for two reasons. First, the agreement did not constitute a business transaction in which the lawyer knowingly acquired an ownership, possessory, security, or other pecuniary interest adverse to her client. When a lawyer acquires, by contract, a security interest in property other than
that recovered through the lawyer’s efforts in the litigation, such an acquisition is a business or financial
transaction with a client and is governed by the requirements of Model Rule 1.8 [MR 1.8 cmt. [16]]. Here,
the house was the very property recovered by the lawyer’s efforts in the litigation. This is therefore a
simple contingency fee governed by Model Rule 1.5. The one-third amount the lawyer charged was
reasonable in the jurisdiction. Also, even if it had been a business transaction, the lawyer complied with
the disclosure and informed-consent elements of Model Rule 1.8. Therefore, this answer is incorrect.
(B) Incorrect. Yes, because a lawyer cannot take a contingency fee secured by property that is the subject matter of the litigation.
A lawyer certainly can take a fee contingent solely on winning the case secured by property that is
the subject matter of the litigation and recovered through the lawyer’s efforts. That is the definition of
a contingency-fee case, as permitted by Model Rule 1.8. With that being said, the lawyer’s contingency fee must still comply with the mandates of Model Rule 1.8. The rules require that a contingent
fee agreement must be in writing signed by the client, and state the method by which the fee is to be
determined, including the percentage or percentages that shall accrue to the lawyer in the event of
settlement, trial, or appeal [MR 1.8]. The contingent fee agreement must also make clear provisions
for certain litigation related expenses, and most importantly, the lawyer’s fee must be reasonable.
(C) Incorrect. No, because the agreed upon one-third contingency fee is less than the limit in the Model
Rules for contingency fees.
This is not a correct answer because the Model Rules do not specify a limit for contingency fees,
although Model Rule 1.5 does list several factors to consider in judging whether a fee is reasonable. Therefore, this answer is incorrect.
Explanation: Question 35
The correct answer is: (D) No, because the student was a prospective client even though the professor
decided not to represent him.
The professor’s duty of confidentiality does not depend on an attorney-client relationship having
been formed. A lawyer cannot use or reveal information she received when talking with a prospec269
PRACTICE TEST 1
tive client, even if they do not form an attorney-client relationship [MR 1.18]. The rules concerning
bar admission specifically exempt attorney-client privileged information from disclosure [MR 8.1].
Therefore, this answer is correct.
(A) Incorrect. Yes, because bar admission issues are an exception to the usual rules of attorneyclient relationships.
This is not a correct statement. In fact, Model Rule 8.1, which concerns bar admission, specifically exempts attorney-client privileged information from disclosure. Therefore, this answer
choice is incorrect.
(B) Incorrect. Yes, because no attorney-client relationship exists unless the client signs a retainer agreement and pays a retainer fee.
Although the student and professor did not form an attorney-client relationship, that fact alone does
not end the inquiry. A lawyer cannot use or reveal information she received when talking with a prospective client, even if they do not form an attorney-client relationship [MR 1.18]. Thus, this answer
choice is incorrect.
(C) Incorrect. No, because the student had not asked the professor to write him a recommendation for
bar admission.
It is correct that the professor’s disclosure of the student’s information was improper. However, that
is because the student was a prospective client of the professor under Model Rule 1.18 and was
owed a duty of confidentiality. The professor would otherwise have been free to respond to inquiries
about a student’s character regardless of whether she had been asked to write a letter of recommendation to the bar examiners. Thus, this answer is incorrect.
Explanation: Question 36
The correct answer is: (A) Yes, because she did not know when she spoke that the judge was taking bribes.
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 [MR 8.2(a)]. Here, the lawyer made
a statement in reckless disregard of its truth or falsity. Importantly, her statement was only subsequently
revealed to be true. The fact that it later turned out to be a true statement does not shield her from discipline. Therefore, this answer choice is correct.
(B) Incorrect. Yes, because the judge is currently on the bench.
The Model Rules aim to protect the integrity of the judiciary by barring lawyers from making statements about judges, legal officials, and candidates for those jobs that the lawyer knows to be false,
or with a reckless disregard for the truth [MR 8.2]. It does not specifically protect former judges and
officials, so it is somewhat relevant that the judge in question is on the bench. However, this answer
does not focus on the most important aspect: that the lawyer recklessly disregarded truth or falsity
in her statement about the judge. Thus, this answer is incorrect.
(C) Incorrect. No, because the lawyer believed her statement to be true.
The sincerity of the lawyer’s belief is not the most important issue here. 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 [MR 8.2(a)]. Here, the lawyer made a statement in reckless disregard
of its truth or falsity, knowing that her belief was based only on gossip. Thus, this answer is incorrect.
(D) Incorrect. No, unless the lawyer bases her right to make the statement on the First Amendment.
Although attorneys have a right to free speech under the First Amendment, they are still subject to
discipline for false statements about a judge’s integrity, as well as such statements made in reckless
disregard of the truth under the Model Rules. Therefore, this answer is incorrect.
270
ANSWERS AND ANSWER EXPLANATIONS
Explanation: Question 37
The correct answer is: (D) No, because the client was advised in writing of the desirability of obtaining
independent counsel and was given an opportunity to do so.
In settling a malpractice claim that has already arisen (as opposed to an agreement to limit malpractice
liability prospectively), it is enough for the client to be advised of the desirability of obtaining independent
counsel and to be given an opportunity to do so. The client need not actually be independently represented. The lawyer complied with the Model Rules.
(A) Incorrect. Yes, because the client was not independently represented in the settlement of the malpractice claim.
Agreements to limit malpractice claims that may arise in the future require independent representation. Agreements to settle malpractice claims that have already arisen do not. The lawyer fulfilled her
obligation when she advised the client of the desirability of obtaining independent counsel and gave
the client an opportunity to do so. Thus, this answer is incorrect.
(B) Incorrect. Yes, because the lawyer was required to report her own malpractice to the state bar.
The lawyer’s duty to report misconduct does not include her own misconduct. It is a duty to report
the actions of “another lawyer.” Thus, this answer is incorrect.
(C) Incorrect. No, because the lawyer fulfilled her duty of communication when she told her client about
the malpractice claim.
The lawyer did fulfill her duty of communication when she told her client about the malpractice. The client
needed that information in order to make an informed decision about what steps, if any, to take against the
lawyer. That communication is not enough, however. The lawyer also must advise the client of the desirability
of obtaining independent counsel and give the client the opportunity to do that. Thus, this answer is incorrect.
Explanation: Question 38
The correct answer is: (A) Yes, because there was a feasible alternative way to obtain the information.
The Model Rules limit the circumstances under which prosecutors may subpoena evidence from criminal defense
lawyers, allowing them to do so only if they reasonably believe that the information is not privileged, that it is essential to the successful completion of an ongoing investigation or prosecution, and that there is no other feasible
alternative to obtain the information. This rule is intended to protect the attorney-client relationship between a
defendant or a target in a criminal investigation and his or her lawyer. The rule also puts the burden on law enforcement to make its own case, without relying on an ability to gather evidence from the defendant’s lawyer, much
like the work product doctrine creates the same incentives in civil cases. Here, given that there was a feasible
alternative means by which the prosecutor could obtain the information, the prosecutor’s conduct was improper.
(B) Incorrect. Yes, because prosecutors may not subpoena defense lawyers to obtain evidence about
the defense lawyers’ present or former clients.
This answer is overly broad. If certain conditions are satisfied, prosecutors may subpoena defense
lawyers about their present or former clients. The prosecutor’s ability to issue such a subpoena is
severely limited, but the tactic is not entirely prohibited.
(C) Incorrect. No, because the evidence sought by the prosecutor was not privileged.
This answer addresses only one of the conditions that must be satisfied in order for a prosecutor to
subpoena information from a defendant’s attorney. In addition to the requirement that the evidence
sought must be unprivileged, it must also be true that the information sought is essential to the successful completion of the prosecution and there is no feasible alternative for getting it. Here, the
prosecutor did have an alternative means of obtaining the evidence. Therefore, it was improper for
the prosecutor to subpoena the information from the defendant’s attorney.
271
PRACTICE TEST 1
(D) Incorrect. No, because the evidence sought by the prosecutor was essential to the successful completion of the prosecution.
The essential nature of evidence sought by a prosecutor is only one of the conditions that must be satisfied in order for a prosecutor to subpoena information from a defendant’s attorney. In addition, there
must be no feasible alternative means of obtaining the evidence, and the information sought must not
be privileged. Given that the prosecutor in this case did have an alternative means of obtaining the
information sought, it was improper to subpoena the information from the defendant’s attorney.
Explanation: Question 39
The correct answer is: (D) No, because such agreements are prohibited unless the client is independently
represented at the time the agreement is signed.
A lawyer is prohibited from prospectively limiting malpractice liability to a client unless the client is independently
represented in making the agreement [MR 1.8]. One reason for this rule is that prospective malpractice waivers
may undermine the diligence of representation. The comments to this rule point out that many clients are unable
to evaluate the desirability of making such an agreement before a dispute has arisen, particularly if they are then
represented by the lawyer seeking the agreement. Here, the man was unrepresented when he agreed to limit
the personal injury lawyer’s malpractice, so the waiver will not stand. Therefore, this answer choice is correct.
(A) Incorrect. Yes, because the man was fully advised of the risks by the personal injury lawyer before
he signed the agreement.
It is not enough that a lawyer advise a client of the risks of representation before signing an agreement
prospectively limiting the lawyer’s liability for malpractice. A lawyer is forbidden from prospectively
limiting the lawyer’s malpractice liability to a client unless the client is independently represented in
making the agreement [MR 1.8]. The client in this case was not independently represented, so the
malpractice waiver was not valid under the Model Rules. Therefore, this answer choice is incorrect.
(B) Incorrect. Yes, because a lawyer is not necessarily incompetent in a field of law in which she does
not regularly practice.
While it is true that a lawyer is not necessarily incompetent in a field in which she does not usually
practice, the facts here show that the lawyer did not meet the prevailing norms for practicing criminal
law and that this prejudiced the man’s case. Moreover, this answer choice fails to consider the fact
that the lawyer violated the Model Rules by prospectively limiting her malpractice liability without first
having the client obtain independent representation. Thus, this answer is incorrect.
(C) Incorrect. No, because representing one’s cousin in this situation gives an appearance of bias.
While it is true that the personal injury lawyer’s actions were not proper, the impropriety was in no
way caused by her representation of a relative. Under the Model Rules, it is perfectly appropriate
for a lawyer to represent a relative, although there are restrictions on a lawyer taking a case where
opposing counsel is a relative [MR 1.7]. The issue here is that the Model Rules prohibit a lawyer
from prospectively limiting her malpractice liability to a client unless the client is independently represented in making the agreement. Therefore, this answer choice is incorrect.
Explanation: Question 40
The correct answer is: (B) No, because a lawyer may communicate the fact that the lawyer does or does
not practice in particular fields of law.
Tom is not subject to discipline because a lawyer may communicate the fact that the lawyer does or does
not practice in particular fields of law, as Tom did when he said he specializes in defending individuals and
entities against delinquency and tax evasion claims by the IRS. It is even acceptable for the lawyer to use
the words “specialize” or “specialist,” as long as he does not state or imply that he has a certification in a
specialty that he does not [MR 7.4(d)].
272
ANSWERS AND ANSWER EXPLANATIONS
(A) Incorrect. No, because a lawyer may identify potential clients from public records and filings and contact them, even if they have made it known to the lawyer that they desire not to be solicited by him.
While a lawyer may identify potential clients from public records and filings and contact them, he
cannot do so if they have made it known to him that they do not want him to solicit them [MR 7.3].
However, this rule is not relevant in this case because no potential client has made it known to Tom
that he or she does not want to be solicited. Therefore, this answer is incorrect.
(C) Incorrect. Yes, 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.
It is true that a lawyer cannot say or imply that he is a certified specialist in a particular field if he is
not. That is not relevant here, though because Tom did not state or imply that he is certified as a
specialist. A lawyer may communicate the fact that the lawyer does or does not practice in particular
fields of law, as Tom did when he said he specializes in defending individuals and entities against
delinquency and tax evasion claims by the IRS. It is even acceptable for the lawyer to use the words
“specialize” or “specialist,” as long as he does not state or imply that he has a certification in a specialty in which he does not [MR 7.4(d)]. Thus, this answer is incorrect.
(D) Incorrect. Yes, because Tom cannot solicit professional employment from a prospective client using
real-time electronic contact unless the person contacted is a lawyer or has a family, close personal,
or prior professional relationship with Tom.
It is true that Tom cannot solicit professional employment from a prospective client using real-time electronic contact unless the person contacted is a lawyer or has a family, close personal, or prior professional
relationship with Tom. However, an e-mail is not a real-time electronic contact, as is a phone call, instant
message, or contact through a chat room [MR 7.3]. It is an electronic communication, which is treated like a
targeted direct mail advertisement letter or a recorded message [MR 7.3(c)]. Thus, this answer is incorrect.
Explanation: Question 41
The correct answer is: (A) Yes, because she didn’t resign from judicial office upon becoming a candidate
for a non-judicial elective office.
The Code of Judicial Conduct requires that a judge resign her judgeship when becoming a candidate
for non-judicial elective office. This is because candidates cannot effectively run while refraining from
all pledges, promises, or commitments to political positions. This manner of campaigning is inconsistent
with a judge’s fairness and impartiality. This also avoids the issue of real or perceived “payback” from the
bench if the judge is not elected to the non-judicial office. Therefore, this answer is correct.
(B) Incorrect. Yes, because she made pledges, promises, or commitments about how she would vote
on political issues as mayor.
The issue here is not that the judge made pledges, promises, or commitments, but that she did not resign
her judgeship before doing so. The Code of Judicial Conduct requires that a judge resign her judgeship
when becoming a candidate for non-judicial elective office because candidates cannot effectively run
for non-judicial offices while refraining from all pledges, promises, or commitments to political positions.
Note that the Code does not require judges to resign when seeking appointive nonjudicial office or if state
law specifically permits them to retain their judgeships. Thus, this answer is incorrect.
(C) Incorrect. No, because she disassociated herself from the two major political parties and decided to
run as an independent.
The fact that the judge ran as an independent is irrelevant. The Code of Judicial Conduct requires
that a judge resign her judgeship when becoming a candidate for nonjudicial elective office because
candidates cannot effectively run for non-judicial offices while refraining from all pledges, promises,
273
PRACTICE TEST 1
or commitments to political positions. This is so even if they do not run on major party tickets. Thus,
this answer is incorrect.
(D) Incorrect. No, because a judge may not register to vote as a member of a political party.
This is incorrect. Nothing in the Code of Judicial Conduct bars a judge from registering as a party
member. In fact, the Code of Judicial Conduct specifically allows it [CJC 4.1 [cmt. 3]].
Explanation: Question 42
The correct answer is: (B) No, because a lawyer may belong to a law reform organization even if the
reforms may benefit the lawyer’s clients and the lawyer discloses that fact.
A lawyer is permitted to serve as a director, officer, or member of an organization involved in reforming
the law, even though the reforms may affect her clients’ interests [MR 6.4]. When a lawyer knows that
a client’s interests may be materially benefited by a decision in which she is involved, the lawyer shall
disclose that fact but need not identify the client. This is a compromise for the public good in that it would
not benefit society for all lawyers having major experience in an area to be disqualified from legal reform
efforts. Therefore, the antitrust lawyer was correct to disclose that she had clients standing to benefit from
the rule change, and she was not obligated to identify the clients. Therefore, this answer is correct.
(A) Incorrect. No, because a lawyer may belong to a law reform organization even if the reforms may
benefit the lawyer’s clients.
This choice is incorrect because it does not address the applicable disclosure requirement. A lawyer may
serve as a director, officer, or member of an organization involved in reforming the law, even though the
reforms may affect her clients’ interests [MR 6.4]. When a lawyer knows that a client’s interests may be
materially benefited by a decision in which she is involved, the lawyer shall disclose that fact, but need not
identify the client. The disclosure requirement protects lawyer-client confidentiality while allowing other committee members to weigh the lawyer’s potential bias. Therefore, this is not the best answer to this question.
(C) Incorrect. Yes, because a lawyer may belong to a law reform organization even if the reforms may
benefit the lawyer’s clients, but the lawyer must disclose the clients’ identities.
When a lawyer knows that a client’s interests may be materially benefited by a decision in which
she is involved, the lawyer shall disclose that fact, but need not identify the client. The disclosure
requirement protects lawyer-client confidentiality while allowing other committee members to weigh
the lawyer’s potential bias. Thus, this answer is incorrect.
(D) Incorrect. Yes, because a lawyer may not belong to a law reform organization if the reforms may
benefit the lawyer’s clients.
This choice incorrectly prohibits a lawyer from belonging to a law reform organization if the reforms may
benefit a lawyer’s clients’ interests. Because all reforms may benefit some client or another, the result
would be that only those lawyers who have no interest or knowledge in the subject matter could participate without fear of violating the rule. If this were the case, it would be hard to imagine any lawyers serving on committees, and those who did would be ill-informed. Therefore, this answer choice is incorrect.
Explanation: Question 43
The correct answer is: (D) No, because lawyers may generally not solicit employment using real-time
electronic communication when the motive is pecuniary gain.
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, unless the person
contacted is a lawyer or has a family, close personal, or prior professional relationship with the lawyer [MR
7.3]. Real-time electronic contact is treated like telephone contact, not like e-mail.
274
ANSWERS AND ANSWER EXPLANATIONS
(A) Incorrect. Yes, because he used the words “advertising material” in the solicitation.
While the words “advertising material” are required in many cases, the use of these words does not
excuse contact that is otherwise disallowed, as in this situation.
(B) Incorrect. Yes, because electronic advertising is permissible.
Electronic advertising may be permissible, but real-time electronic communication under the circumstances here is not.
(C) Incorrect. No, because lawyers may not use real-time electronic communication under any circumstance.
This is not true. There are limits on the use of real-time electronic communication to solicit clients,
but it is not entirely disallowed under all circumstances.
Explanation: Question 44
The correct answer is: (C) No, because the lawyer must return any unearned portion of the fee.
Upon termination of representation, a lawyer shall refund any advance payment of fee or expense that
has not been earned or incurred. The lawyer must return any unearned portion of the retainer, which in
this case is $4,000 [MR 1.16].
(A) Incorrect. Yes, because the fee was non-refundable.
It does not matter if the fee is labeled as non-refundable. Portions unearned must be returned to the client.
(B) Incorrect. Yes, because the client discharged the lawyer, as opposed to the lawyer voluntarily removing himself.
This does not matter in this situation. Any portion of a paid fee that has not been earned must be
returned to the client.
(D) Incorrect. No, because advance fees are disallowed under the Model Rules.
Advance fees are allowed under the Model Rules, but a lawyer must refund any advance payment
of fee or expense that has not been earned or incurred.
Explanation: Question 45
The correct answer is: (A) Yes, because the lawyer was under a duty to seek to withdraw as counsel.
The lawyer was counsel in a situation in which continuing as the lawyer would cause her to violate the rules of
professional conduct. In particular, she would violate her duty of competence since she would not be able to adequately represent her client. A lawyer is required to seek the court’s permission to withdraw if the representation
will cause the lawyer to commit professional misconduct. Therefore, this is the correct answer to this question.
(B) Incorrect. Yes, because the lawyer is not permitted to rely upon the resolution of an ethical issue by
her supervisor.
This answer choice is incorrect because it is overbroad. In many situations, subordinate lawyers like this
one may rely on the resolution of ethical issues by their supervisors. As long as that resolution is the reasonable resolution of an arguable question of professional duty, the subordinate lawyer may rely upon it.
(C) Incorrect. No, because the lawyer’s supervisor resolved the ethical issue that the lawyer presented.
This is not a reasonable resolution of an arguable question of professional duty. The lawyer will be
incompetent if she does not withdraw and that is clear from the facts. To say that there is no money
to fund an alternative does not resolve the ethical dilemma. That conclusion is simply that the rules
of professional conduct give way when compliance is too expensive. That is not the law and therefore, this answer is incorrect.
275
PRACTICE TEST 1
(D) Incorrect. No, because the lawyer’s duty of competent representation is subordinate to the economic reality that no other counsel could be provided.
This is an understandable response by a supervisor who is faced with an intractable problem. However, it is incorrect to say that the rules of conduct are subordinate to practical realities. The opposite
is true. Thus, this answer is incorrect.
Explanation: Question 46
The correct answer is: (B) Yes, because judges are not permitted to investigate matters independently.
Judges must decide matters based upon the evidence and on any matters of which the judge takes judicial notice. Judges are not permitted to go beyond the evidence and conduct their own research regarding their cases.
(A) Incorrect. Yes, because the judge did not reduce the results of his research to writing so that the record
would be complete and all parties could respond and object to the information that the judge gathered.
Judges may obtain the disinterested advice of an expert on the law under certain conditions, which
include advice in writing. However, this is something different. The judge is independently investigating facts relevant to one of his cases, and that is something that the judge is not permitted to do,
whether or not the judge reduces the results to writing. Thus, this answer is incorrect.
(C) Incorrect. No, because the judge promptly notified the parties of what the judge learned in his research.
Informing the parties is insufficient. Judges are supposed to decide cases on the evidence and not
undertake their own investigations. The problem is not one of notice. Rather, the problem is that the
judge should not have conducted the research at all. Thus, this answer is incorrect.
(D) Incorrect. No, because the investigation conducted by the judge was limited to electronic resources.
The comments to the Model Code of Judicial Conduct are explicit on this point. The prohibition on
judges’ investigating matters includes electronic investigations. Thus, this answer is incorrect.
Explanation: Question 47
The correct answer is: (C) No, if LIRSI is a qualified lawyer referral service approved by a state agency.
Lawyers generally may not pay anyone for referrals. There are, however, exceptions to this general rule.
One of them is that a lawyer may pay a qualified lawyer referral service that has been approved by a state
agency. Thus, if LIRSI is a qualified lawyer referral service that has been approved by a state agency,
then the lawyer’s conduct will be ethically permissible.
(A) Incorrect. Yes, because the lawyer paid someone for referring business to the lawyer.
The lawyer did pay LIRSI on the basis of contacts made through LIRSI. Paying someone for referrals is generally not permitted, but there are exceptions. It is overbroad to say that a lawyer is subject
to discipline just because he pays someone for referrals. Thus, this answer is incorrect.
(B) Incorrect. Yes, unless LIRSI is a not-for-profit entity.
If LIRSI was a non-profit lawyer referral service, then the lawyer could pay LIRSI for the referrals. However, it is not necessary that the referral agency be nonprofit. If the agency is for profit, but authorized by an
appropriate state agency, then the lawyer may pay LIRSI for the referrals. Thus, this answer is incorrect.
(D) Incorrect. No, because the prospective clients rather than the lawyer initiated the contacts.
The clients initiated the contacts, and that eliminates any risk for the lawyer of being accused of
solicitation. However, apart from solicitation, there are limits on the stratagems that lawyers may
employ to get clients. Another tactic that is not allowed generally is paying someone for referrals,
even if the client then makes the initial contact with the lawyer.
276
ANSWERS AND ANSWER EXPLANATIONS
Explanation: Question 48
The correct answer is: (B) Yes, because the lawyer did not explain to each client the pleas of all the clients.
The lawyer made an aggregate settlement of the criminal charges against the clients. He was, therefore, obliged to
disclose to each client the existence and nature of the agreement reached with all the clients. As jointly represented
clients who have given informed consent to the joint representation, the clients would have consented to the lawyer
sharing the confidential information of each with the others. Thus, this is the correct answer to this question.
(A) Incorrect. Yes, because the lawyer jointly represented criminal defendants.
Lawyers are discouraged from jointly representing criminal defendants, but the practice is not prohibited.
Under some circumstances, with informed consent, a lawyer may do so. Therefore, this answer is incorrect.
(C) Incorrect. No, because the plea of each client was confidential and could not be explained to
other clients.
Part of informed consent for jointly represented clients is the understanding that the confidential
information of one client will be shared with the others. Therefore, the lawyer, who had each client’s
informed consent to the joint representation, had authority to explain to each the plea deals reached
on behalf of the others. For that reason, this answer is incorrect.
(D) Incorrect. No, because the attorney had obtained the informed consent of each client to the
joint representation.
The informed consent was necessary, but not sufficient to make the lawyer’s actions permissible. In
addition, the lawyer was required to explain to each client the deals of the other clients, because the
lawyer was attempting an aggregate resolution of all the criminal charges.
Explanation: Question 49
The correct answer is: (B) Yes, because prosecutors may not seek to obtain waivers of important pretrial
rights from unrepresented persons.
The Model Rules contain some specific rules for prosecutors. One of them is that the prosecutor may
not engage in the type of conduct that this prosecutor did. Prosecutors are not allowed to seek to obtain
from an unrepresented person a waiver of an important pretrial right. The right to a preliminary hearing
is specifically mentioned in the Rules as one such right. Thus, this is the correct answer to this question.
(A) Incorrect. Yes, because the prosecutor met directly with an unrepresented defendant.
Prosecutors can meet with defendants if the defendants decline to employ counsel and do not invoke their right to remain silent. Even in a meeting that the prosecutor is allowed to have, however,
there are things that the prosecutor may not do. Seeking to obtain a waiver of the preliminary hearing is one of them. Therefore, this answer is incorrect.
(C) Incorrect. No, unless the prosecutor knew or reasonably should have known that the student misunderstood the prosecutor’s role in the matter.
Generally, lawyers who represent a party and meet with an unrepresented party must be alert to any
signs that the unrepresented party misunderstands the lawyer’s role. It would be hard to imagine
how a defendant could misunderstand the prosecutor’s role, but ultimately the defendant’s understanding does not matter to this question. This prosecutor did something that is specifically forbidden, regardless of the defendant’s understanding of the prosecutor’s role.
(D) Incorrect. No, because the student was given the opportunity to obtain counsel and declined to do so.
Defendants who decline representation still have some protections from overreaching prosecutors.
One of them is that prosecutors may not seek to obtain a waiver from an unrepresented defendant
of any of the defendant’s important pretrial rights. Thus, this answer is incorrect.
277
PRACTICE TEST 1
Explanation: Question 50
The correct answer is: (A) Yes, because the lawyer did not promptly deliver $5,000 to the client.
The lawyer must promptly deliver to the client the funds that the lawyer agrees belong to the client. Here,
the lawyer claims only $15,000 of the $20,000 in dispute. The lawyer may not keep the $5,000 that is
not in dispute in order to coerce the client into accepting the lawyer’s contention that $15,000 is owed.
Because the lawyer did not promptly deliver $5,000, the lawyer is subject to discipline.
(B) Incorrect. Yes, because the lawyer did not promptly deliver $10,000 to the client.
The lawyer may withhold money that is in dispute. Here, the client agrees that $10,000 is a reasonable fee, and the lawyer claims that the fee should be $15,000. The lawyer may withhold the
disputed $5,000 while the claim is resolved and pay himself the $10,000 that the client agrees is
reasonable. Thus, this answer is incorrect.
(C) Incorrect. No, because the lawyer suggested a prompt means of resolving the dispute.
The lawyer should suggest prompt a means for resolving the dispute, but that is not the only obligation the lawyer has. The lawyer must also promptly deliver to the client the funds that are not in
dispute. Thus, this answer is incorrect.
(D) Incorrect. No, because the lawyer withheld funds that the lawyer believed represented legal fees
that were owed by the client.
The lawyer correctly withheld funds that are in dispute, but the lawyer held on to too much money.
The lawyer may retain the disputed $5,000 but must promptly deliver the $5,000 that indisputably
belongs to the client. Thus, this answer is incorrect.
Explanation: Question 51
The correct answer is: (D) No, because the man did not have a reasonable expectation that the lawyer
was willing to form an attorney-client relationship.
Generally, a person who talks with a lawyer about forming a lawyer-client relationship is a prospective
client under Model Rule 1.18. The lawyer cannot use or reveal information obtained in the consultation.
However, there is no prospective client relationship when the lawyer has not given the person a reasonable expectation that the lawyer is willing to discuss forming a client-lawyer relationship. In this case, the
lawyers that the man emailed had not communicated with him at all, so it is not reasonable for the man to
claim that he deserves the protections accorded to a prospective client.
(A) Incorrect. Yes, because the emails formed attorney-client relationships with the lawyers who received them.
This is not a correct answer because someone seeking legal services cannot form attorneyclient relationships unilaterally by sending unsolicited information to lawyers. Nor is the man
entitled to the protections accorded a prospective client, because the man did not have a reasonable expectation that the lawyer was willing to discuss forming a client-lawyer relationship.
Thus, this answer is incorrect.
(B) Incorrect. Yes, because the emails formed prospective client relationships with the lawyers who
received them.
The Model Rules protect prospective clients [MR 1.18]. Generally, a person who talks with a lawyer
about forming a lawyer-client relationship is a prospective client, and the lawyer cannot use or reveal
information obtained in the consultation. However, there is no prospective client relationship when
the lawyer has not given the person a reasonable expectation that the lawyer is willing to discuss
forming a client-lawyer relationship. Because the lawyers had no contact with the man prior to his
unsolicited email, he did not form a prospective client relationship with any of them.
278
ANSWERS AND ANSWER EXPLANATIONS
(C) Incorrect. No, because the lawyer did not solicit the emails.
This is not the best answer to this question. Usually, a person who talks with a lawyer about forming a
lawyer-client relationship is a prospective client under Model Rule 1.18. This means that the lawyer cannot use or reveal information obtained in the consultation. However, the key to becoming a prospective
client is that one have a reasonable expectation that the lawyer was willing to discuss forming a clientlawyer relationship, and not necessarily whether it was the lawyer who solicited the relationship. The
man had no such reasonable expectation in this situation and therefore, this answer is incorrect.
Explanation: Question 52
The correct answer is: (A) Yes, if the supervisor reasonably expects to be authorized to appear pro hac
vice in the civil case.
The lawyer is not licensed in state B, and taking witness statements in preparation to file a civil case is
the practice of law. Therefore, the lawyer must find some authority to engage in the multijurisdictional
practice of law. One authorized activity is to practice temporarily in another state if the activity is reasonably related to a potential proceeding in that jurisdiction (the potential case to be filed in state B) and if the
lawyer reasonably expects a person the lawyer is assisting (her supervisor) to be authorized to appear in
that proceeding (here, by pro hac vice admission).
(B) Incorrect. Yes, because the lawyer is licensed in state A.
A license in one state does not generally authorize the lawyer to practice in another state. There are
exceptions, but the general rule is that a lawyer may practice only in states in which she is licensed
to do so. Thus, this answer is incorrect.
(C) Incorrect. No, unless the lawyer associates with a lawyer licensed in state B to actively assist her in
the witness interviews.
One of the exceptions for temporary activities in another state is to engage the active assistance of
a local lawyer. There are, however, other exceptions, so it would be incorrect to say that the lawyer
will violate the rules unless she takes this step. Thus, this answer is incorrect.
(D) Incorrect. No, because taking witness statements in preparation for a civil case is the practice of law,
and the lawyer is not licensed to practice law in state B.
Taking these witness statements does constitute the practice of law. However, there are provisions for lawyers licensed in one state to practice temporarily in another state. It is, therefore, too broad to say that the
lawyer may not engage in this activity at all without a license from state B. Thus, this answer is incorrect.
Explanation: Question 53
The correct answer is: (B) Yes, because the lawyer did not inform the judge of all material facts that would
enable the judge to make an informed decision on the petition.
In an ex parte proceeding, the lawyer’s duty of candor to the court includes the duty to reveal all facts
known to the lawyer that will enable the tribunal to make an informed decision. This duty includes adverse
facts like the sending of the second notice. Usually the adversary process relies on opposing parties to
make the tribunal aware of all relevant facts, but when only one side is represented it is deemed necessary to require the lawyer to present adverse facts so that the tribunal can reach a just decision.
(A) Incorrect. Yes, because the lawyer had ex parte contact with the judge.
Lawyers generally are not allowed to have ex parte contacts with judges. Under some circumstances, however, such contacts are authorized by law and therefore do not constitute misconduct by the
lawyer. An application for a temporary restraining order would be a common situation in which ex
parte contacts might be allowed.
279
PRACTICE TEST 1
(C) Incorrect. No, because the lawyer had no responsibility to present to the judge arguments that
helped the lawyer’s client’s adversary.
The lawyer usually has no such responsibility. In an ex parte proceeding, however, the lawyer’s responsibility is broader to ensure that the judge has the information the judge needs to reach a just result.
(D) Incorrect. No, if the lawyer was permitted by law to present the petition for a temporary restraining
order ex parte.
Even if the ex parte presentation itself was permitted, the lawyer still had the responsibility to tell the
judge about the second notice. Although that fact was adverse to the lawyer’s client, the judge needs
to know it in order to do justice, and the bank’s lawyer is not present to tell the court.
Explanation: Question 54
The correct answer is: (A) Yes, because a lawyer must hold property of clients separate from the lawyer’s
own property.
A 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. A 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, but only in
an amount necessary for that purpose [MR 1.15].
(B) Incorrect. Yes, because a lawyer may not place client funds in an interest-bearing account.
A lawyer may place client funds in an interest-bearing account, but may only retain the interest if the
client gives informed consent. Therefore, this answer is incorrect.
(C) Incorrect. No, because the lawyer keeps careful records and does not withdraw any client funds.
The lawyer must always keep careful records, but it is impermissible to comingle client funds and
his own personal funds. Thus, it does not matter if the records are detailed or that no client funds are
withdrawn; the comingling of funds is simply prohibited. Therefore, this answer is incorrect.
(D) Incorrect. No, because the lawyer is under no obligation to hold client property separate from his
own except that he may choose to do so for his own convenience.
This is not true. The Model Rules specifically require that property is held separately. Therefore, this
answer is incorrect.
Explanation: Question 55
The correct answer is: (C) No, because the lawyer took reasonable remedial measures in response to the
prospective juror’s misrepresentation when the lawyer struck the prospective juror peremptorily.
Lawyers who know that any person has engaged, is engaging, or intends to engage in a criminal or
fraudulent act related to an adjudicative proceeding in which the lawyer represents a client must take
reasonable remedial measures. These measures can, if necessary, include disclosure to the tribunal.
Here, however, the use of a peremptory strike to keep the prospective juror off the case prevented any
harm that otherwise would have resulted from the prospective juror’s criminal act. A reasonable remedial
measure may, but need not, involve disclosure to the tribunal.
(A) Incorrect. Yes, because the lawyer knew that the prospective juror engaged in a criminal act related
to the proceeding, and the lawyer was obliged to disclose that fact to the tribunal.
The lawyer’s obligation is to take reasonable remedial measures. The lawyer does not have the
obligation to disclose the criminal act to the tribunal if some action short of such disclosure is a
reasonable remedial measure. The peremptory strike that kept this prospective juror off the case is
such a measure.
280
ANSWERS AND ANSWER EXPLANATIONS
(B) Incorrect. Yes, because the juror’s criminal act was intended to benefit the client represented by
the lawyer in the adjudicative proceeding, and the lawyer was therefore obliged to disclose it to
the tribunal.
The lawyer’s obligation to take reasonable remedial measures applies to all criminal or fraudulent
activity related to the proceeding, regardless of which party is the intended beneficiary of the activity.
Furthermore, the obligation is not limited to disclosure to the tribunal but rather, the lawyer must take
reasonable remedial measures, which may or may not include such disclosure.
(D) Incorrect. No, because the criminal act was committed by someone other than the lawyer’s client.
It does not matter that the criminal act related to the proceeding was committed by someone other
than the lawyer’s client. The lawyer has an obligation to take reasonable remedial measures when
the lawyer knows that any person has committed, is committing, or intends to commit a criminal or
fraudulent act related to the proceeding.
Explanation: Question 56
The correct answer is: (A) Yes, because, a lawyer who finds it not feasible to perform pro bono work can
pay money instead
Model Rule 6.1 encourages lawyers to provide legal services to those unable to pay. A comment to the
Rule also provides that, if it is not feasible for a lawyer to perform the service, he should financially support
organizations providing free legal services to poor people, giving about the same amount as the value of
the services he could not provide. The comment also notes that it sometimes makes more sense for a
firm to provide the services collectively. Therefore, the partner’s plan is acceptable under the ethics rules,
regardless of his motives.
(B) Incorrect. Yes, because the rules encourage tax-deductible contributions in lieu of services if the
lawyer is manifestly incompetent to provide such services.
Tax-deductible contributions are not mentioned in the Model Rules, and money in lieu of services is a second choice reserved for those situations where it is not “feasible” for the lawyer
to do the work. Here, the partner is incompetent to provide such services, so the equivalent
financial support option better serves the purposes of the rule, regardless of his motives. Thus,
this answer is incorrect.
(C) Incorrect. No, because the provision of pro bono services is a professional responsibility that is the
individual ethical commitment of each lawyer.
While the Model Rules do state that the provision of pro bono services is a professional responsibility that is the individual ethical commitment of each lawyer, its emphasis is on getting
the services provided for indigent people, rather than on a moral test for individual lawyers.
Therefore, the comments to Rule 6.1 state that when it is not “feasible” for lawyers to donate
the services, they should donate cash equivalent to the value of the services not donated. Thus,
this answer is incorrect.
(D) Incorrect. No, because the services are being provided by attorneys who are less experienced than
the senior partners and thus may be of lower quality.
While Model Rule 6.1 encourages lawyers to provide legal services to those unable to pay, a
comment to the rule encourages lawyers to donate the equivalent amount in cash if it is “not
feasible” to perform the service. The comment notes that it sometimes makes more sense for
a firm to provide the services collectively. Therefore, the partner’s plan is acceptable under
the ethics rules, and the fact that the associates are less experienced is irrelevant; in fact, the
managing partner’s experience is likely irrelevant to most pro bono services. Thus, this answer
is incorrect.
281
PRACTICE TEST 1
Explanation: Question 57
The correct answer is: (B) Yes, because the lawyer did not explain to the employee that she represented
the corporation.
This lawyer represented an entity and had a reasonable basis to believe that the employee’s interests
were adverse to the entity. She was under an obligation at that point to warn the employee by explaining
her role. The employee presumably would not have shared the information about his actions, and might
not have been fired, if the employee had fair notice about the lawyer’s role.
(A) Incorrect. Yes, because the lawyer revealed a client’s confidential information to senior management.
The employee never became a client. The corporation was the client, and at most, the employee
might be seen as a prospective client. Thus, this answer is incorrect.
(C) Incorrect. No, because the employee was not a client of the lawyer.
The employee was not a client, but the lawyer nevertheless owed him at least one duty. That duty
was a duty to explain the lawyer’s role, so that the employee knows that his conversation will not be
confidential. Thus, this answer is incorrect.
(D) Incorrect. No, because the lawyer was under a duty once she learned about the sexual harassment
to proceed as reasonably necessary in the best interest of the corporation.
The lawyer had a duty to report, in the best interest of the corporation, in order to mitigate the liability
that the corporation might have for the employee’s sexual harassment. The lawyer also had a duty,
however, to warn the employee by explaining the lawyer’s role as counsel to the entity and not to
him personally. Thus, this answer is incorrect.
Explanation: Question 58
The correct answer is: (B) No, because if the lawyer reveals the previous lawyer’s misconduct without her
client’s permission, she would be violating her duty of confidentiality to the client.
The previous lawyer failed to file the client’s claim before the statute of limitations ran out and kept the
unearned retainer. Such conduct raises serious questions as to her fitness as a lawyer. Normally, lawyers
are required to report serious misconduct, but there is an exception to the rule for confidential information
otherwise protected by Rule 1.6. One of the comments to that rule adds that a lawyer should encourage a
client to consent to disclosure of confidential information where doing so would not substantially prejudice
the client’s interests. Nonetheless, without the client’s consent, a lawyer may not report misconduct if the
information about that misconduct is confidential.
(A) Incorrect. No, because the previous lawyer’s misconduct fails to raise a substantial question as to
whether or not she is fit to practice law.
This question does name the correct standard. A lawyer who knows of another lawyer’s Rule violation that
raises a substantial question as to that lawyer’s honesty, trustworthiness, or fitness as a lawyer is required
to inform the appropriate professional authority. However, missing a statute of limitations and keeping an
unearned retainer is exactly the kind of violation that a lawyer should report. The problem here is that the
client does not want it reported, and a lawyer’s duty to report another lawyer’s misconduct is trumped by
the client’s request to keep the information confidential. Therefore, this is not the best answer.
(C) Incorrect. Yes, because revealing the previous lawyer’s misconduct would not harm the client.
Although revealing the previous lawyer’s misconduct would not prejudice the client’s interests (and
might even bring about restitution for the client), the lawyer still may not reveal such information if it
is protected by the attorney-client privilege and the client does not want it revealed. Therefore, this
is not the best answer.
282
ANSWERS AND ANSWER EXPLANATIONS
(D) Incorrect. Yes, because a lawyer having knowledge that another lawyer has committed a violation
of the rules that raises a substantial question as to that lawyer’s fitness as a lawyer must report it to
the appropriate professional authority.
Although this answer contains a correct statement of the rule, it is incorrect because it fails to consider
the fact that lawyers are not permitted to disclose information that is otherwise protected by Rule 1.6.
Since this information was learned in the course of representing a client, it is protected by Rule 1.6.
Therefore, this answer is incorrect.
Explanation: Question 59
The correct answer is: (B) Yes, because her actions will not disadvantage her client.
The rule on conflicts of interest with current clients forbids a lawyer from using information “relating to the
representation” to the disadvantage of the client without consent [MR 1.8]. However, the lawyer’s use of
her client’s information to invest in New York distribution of junk jewelry will not disadvantage her client.
The facts state that the importer will market in “California only” and has “conclusively eliminated other
states from her business plan.” Therefore, this is the correct answer to this question.
(A) Incorrect. Yes, because such a use involves the attorney’s mental impressions, entitling the information to protection under the work-product doctrine.
While it is correct that the lawyer can take advantage of the information learned from her client, the
work-product doctrine is not the reason she can do so. The rule on conflicts of interest with current
clients forbids a lawyer from using client information to the client’s disadvantage without consent
[MR 1.8]. However, the lawyer can use the information learned from her client during the representation and invest in New York distribution of junk jewelry. Doing so will not disadvantage her client
because the importer will only market the jewelry in California. Thus, this answer is incorrect.
(C) Incorrect. No, because it would be a breach of the attorney-client privilege.
Using the information learned from her client during representation to invest in New York distribution
of junk jewelry would not breach the attorney-client privilege. Nothing in the facts indicates that the
lawyer will tell the owner of the chain of stores in New York what the importer said. Also, the rule
does not prohibit lawyers from taking advantage of information learned from clients. It only prohibits
them from using information to the disadvantage of the client. Thus, this answer is incorrect.
(D) Incorrect. No, because she obtained the information in the course of representing her client and thus
it is confidential client information.
The lawyer can take advantage of the information learned from her client, even though it relates to the representation and is confidential, as long as her use of that information does not disadvantage the client [MR 1.8].
In this case, it will not disadvantage the client because the facts state that the importer will market in “California
only” and has “conclusively eliminated other states from her business plan.” Thus, this answer is incorrect.
Explanation: Question 60
The correct answer is: (C) Yes, because a lawyer shall not practice in the form of a professional corporation or association authorized to practice law for profit if a non-lawyer owns any interest therein.
This choice is correct because a lawyer may not practice in a professional corporation or association authorized to practice law for profit if a non-lawyer owns any interest in it. The primary policy underlying this
area of ethics is to protect the lawyer’s professional independence of judgment. A shareholder has the right
to vote on matters in a corporation. Non-lawyer shareholders holding a majority of the shares would have
the right to control the running of the law firm. By permitting the non-lawyer husband to retain the shares
inherited from his wife (as opposed to purchasing the shares from the husband), the majority shareholder
(and all other attorneys at the firm) become subject to discipline. Therefore, this answer is correct.
283
PRACTICE TEST 1
(A) Incorrect. No, because a lawyer or law firm may include non-lawyer employees in a compensation
or retirement plan, even one that is based in whole or in part on profit-sharing.
This choice is only half correct. It is true that a lawyer or law firm may include non-lawyer employees
in a compensation or retirement plan, even one that is based in whole or in part on a profit-sharing arrangement. This policy is a compromise between the rule prohibiting lawyers from sharing fees with nonlawyers and the law firms’ need to include non-lawyers in profit-sharing plans to keep good non-lawyer
employees. However, the majority shareholder is subject to discipline because he violated Model Rule
5.4 by voting his shares to give the husband the directorship and continued shareholding, which would
give a non-lawyer director the potential power to control the lawyers. Therefore, this answer is incorrect.
(B) Incorrect. No, because a non-lawyer may own an interest in a law firm and be a corporate director as
long as his ownership interest is received through inheritance and he is elected as a director while
employed by the firm.
The only time a non-lawyer can hold an interest in a law firm is when the shares are inherited. A fiduciary representative of the estate of a lawyer is permitted to hold the stock or interest of the lawyer,
but only for a reasonable time during administration [MR 5.4]. Therefore, the husband cannot retain
his deceased wife’s shareholder interest in the law firm. There is no circumstance under which a
non-lawyer can be a corporate director of a law firm. Thus, this answer is incorrect.
(D) Incorrect. Yes, because a lawyer or law firm shall not share legal fees with a non-lawyer.
While it is generally true that a lawyer or law firm shall not share legal fees with a non-lawyer, profitsharing plans are permitted as an exception to this general rule. The exception exists to allow firms
to provide incentive plans to good non-lawyer employees. Firms have no other options for offering
such incentives for non-lawyer employees because generally all law firm income is generated from
legal fees. Therefore, this choice is too broad to be correct.
284
Practice Test 2
Questions
PRACTICE TEST 2
Answer Grid
286
1
A
B
C
D
31 A B C D
2
A
B
C
D
32 A B C D
3
A
B
C
D
33 A B C D
4
A
B
C
D
34 A B C D
5
A
B
C
D
35 A B C D
6
A
B
C
D
36 A B C D
7
A
B
C
D
37 A B C D
8
A
B
C
D
38 A B C D
9
A
B
C
D
39 A B C D
10 A B C D
40 A B C D
11 A B C D
41 A B C D
12 A B C D
42 A B C D
13 A B C D
43 A B C D
14 A B C D
44 A B C D
15 A B C D
45 A B C D
16 A B C D
46 A B C D
17 A
47 A B C D
B
C
D
18 A B C D
48 A B C D
19 A B C D
49 A B C D
20 A B C D
50 A B C D
21 A B C D
51 A B C D
22 A B C D
52 A B C D
23 A B C D
53 A B C D
24 A B C D
54 A B C D
25 A B C D
55 A B C D
26 A B C D
56 A B C D
27 A B C D
57 A B C D
28 A
58 A B C D
B
C
D
29 A B C D
59 A B C D
30 A B C D
60 A B C D
QUESTIONS
Question 1
Question 2
A lawyer agrees to represent a husband and a wife
who want the lawyer to draft wills in which each
client would leave his or her estate entirely to the
other client. The lawyer believes that there is a
concurrent conflict of interest anytime he represents
spouses in the simultaneous creation of their wills, but
the lawyer obtains informed consent to the conflict.
As he is drafting the wills, the lawyer receives a
telephone call in which the wife tells the lawyer
to leave one-half of her estate to her child from a
previous marriage. She instructs the lawyer not to tell
her husband about the change to her will. The lawyer
does as she has instructed him.
A judge is elected to the trial bench at the end of a bitter
campaign. Early in his term, the judge is assigned to a case
in which the judge’s campaign opponent is the plaintiff’s
counsel. The experience of the campaign left the judge
with a deep and abiding loathing for his adversary. The
judge does not believe he can be fair to the plaintiff under
these circumstances. Nevertheless, the judge is reluctant to
disqualify himself because he does not want to impose a
burden on his fellow judges. Therefore, at the first hearing
of this new case the judge discloses on the record the
basis of the judge’s potential disqualification and asks
the parties and their lawyers to consider, outside the
presence of the court and court personnel, whether to
waive disqualification. To his great surprise, the parties
and all counsel agree to waive disqualification.
Is the lawyer subject to discipline?
(A) Yes, because the lawyer undertook the
representation knowing that there was a
conflict of interest.
(B) Yes, because the lawyer violated his duty of
communication with the husband.
(C) No, because the lawyer obtained informed
consent to the conflict of interest.
(D) No, because the lawyer owed a duty of
confidentiality to the wife.
Is the judge subject to discipline if he hears the case?
(A) No, because all parties and their counsel
have waived the basis for disqualification.
(B) No, because opinions about lawyers formed
outside the confines of the case are not
relevant to the judge’s disqualification.
(C) Yes, because disqualification for personal
prejudice against a party’s lawyer is not waivable.
(D) Yes, because the judge did not follow the
proper procedures for obtaining a waiver of
the basis for his disqualification.
Question 3
A lawyer specializes in representing plaintiffs in automobile
accident cases. The lawyer advertises his services in
television commercials that feature actual former clients of
the lawyer holding oversized cardboard checks that show
large dollar amounts. The former clients all say, “Thanks!”
Is the lawyer subject to discipline?
(A) Yes, if the commercial does not also include
a disclaimer that the results for these clients
might not be typical and every case must be
evaluated on its own merits.
(B) Yes, if the commercial would cause a
reasonable person to form an unjustified
expectation of similar results.
(C) No, because questions of taste in advertising are
matters of speculation and subjective judgment.
(D) No, as long as the amounts on the checks
accurately reflect the net proceeds that went to
the clients as the result of the lawyer’s services.
287
PRACTICE TEST 2
Question 4
Question 5
Despite a direct question that should have elicited
the information, an applicant for admission to law
school does not reveal that, when she was a college
student, she was arrested and convicted of the crime
of being drunk in public. The applicant is admitted
to law school and, several years later, is applying
for admission to the bar. The bar’s application asks
whether there were any material misstatements or
omissions on the applicant’s law school application.
The applicant remembers that she omitted the
conviction from her law school application.
Nevertheless, she responds that there were no material
omissions on her law school application and is
admitted to the bar.
A lawyer represents a local insurance agent who is
being investigated for running an illegal gambling
operation. The client steadfastly denies any
involvement but brings the lawyer a box of documents
and asks the lawyer to hold them “until this all
blows over.” The lawyer opens the box and finds a
set of hand-written ledgers that record several years
of illegal wagers on sporting events. The lawyer
complies with his client’s request, and eventually the
investigation ends with no action being taken against
the lawyer’s client.
Is the newly-admitted lawyer subject to discipline?
(A) Yes, because the lawyer was convicted of a
crime that demeans the public image of the
legal profession.
(B) Yes, because the lawyer knowingly made
a false statement of material fact in the bar
admissions process.
(C) No, because the lawyer was not a member
of the bar at the time the law school and bar
applications were completed.
(D) No, because the omission and conviction do
not reflect adversely on the lawyer’s honesty,
trustworthiness, or fitness to practice law.
288
Is the lawyer subject to discipline?
(A) Yes, if other law makes the attorney’s
actions unlawful.
(B) Yes, because the lawyer was required to
reveal the books in order to mitigate or
rectify substantial injury to the financial
interests of another resulting from the client’s
commission of a crime or fraud.
(C) No, because the books were subject to the
attorney-client privilege.
(D) No, because the lawyer did not alter or
destroy the evidence.
QUESTIONS
Question 6
Question 7
An attorney represents an elderly man who suffers a
severe stroke after the representation has begun. The
client’s behavior and disposition change dramatically
after the stroke. When the client instructs the lawyer
to prepare the papers necessary to transfer all of the
client’s property to the client’s young caregiver, the
lawyer counsels the client that the client’s children
would be hurt if the client disposed of property that
the children would otherwise inherit. The client
flies into a rage and fires the attorney. Under these
circumstances, the attorney concludes that the client
has severely diminished capacity, is unable to protect
himself from the influence of the caregiver, and will
likely suffer enormous financial harm if actions are
not taken to protect him. The lawyer consults with the
client’s children about taking measures to protect the
client from the undue influence of his caregiver.
A junior associate in a large law firm receives an
assignment from a senior partner. The assignment is
to prepare a memorandum that would guide the vice
president of one of the firm’s corporate clients on the
proper legal procedures to resign from the corporate
client and solicit all the customers of the corporate
client to do business with a new entity that the law
firm would help the vice president form. The associate
suspects that assisting the vice president in this
way is a conflict of interest for the firm. The junior
associate takes her concerns to the senior partner.
The senior partner tells the junior associate that there
is no conflict of interest, that the vice president is a
new individual client of the firm, and to have that
memorandum ready for the vice president and the
senior partner the next day. The junior associate does
what she is told, and the vice president follows the
advice in the memorandum, successfully solicits all
the customers of the corporate client, and with the
firm’s help, establishes an entity that economically
destroys the firm’s corporate client.
Is the attorney subject to discipline?
(A) Yes, because the attorney revealed
confidential information relating to the
representation of his client.
(B) Yes, because the attorney was required to
withdraw immediately upon being fired by
his client.
(C) No, because the lawyer had discretion under
these circumstances to take reasonably
necessary protective action to help his client.
(D) No, because the participation of the client’s
children was necessary to assist the lawyer in
the representation of the client.
Is the junior associate subject to discipline?
(A) Yes, because she personally represented a client
despite the existence of a conflict between that
client and another client of the firm.
(B) Yes, because the junior associate is
vicariously liable for the senior partner’s
violation of the conflict of interest rules.
(C) No, because the junior associate followed the
senior partner’s instructions.
(D) No, because the senior partner’s decision that
the firm could represent the vice president
and the existing corporate client was a
reasonable resolution of an arguable question
of professional duty.
289
PRACTICE TEST 2
Question 8
Question 10
A lawyer represents a client in a state trial court and
suspects that the judge is biased in favor of the other
party’s lawyer, who is in a position to raise substantial
funds for the judge’s reelection campaign. The
suspicious lawyer posts publicly-available comments
on the internet that the judge is ruling against her
client because the judge will be receiving campaign
contributions solicited by her adversary.
A lawyer has a thriving criminal defense practice.
Because the lawyer is so frequently successful in
defending high-profile drug cases, the local prosecutor
begins an investigation into allegations that the lawyer
uses the legal fees he charges to launder drug profits
for his clients. The lawyer learns of the investigation
before the prosecutor takes the evidence to the grand
jury. The lawyer knows that any formal charge or
indictment would be devastating to his family and
his practice. The lawyer therefore meets with the
prosecutor and attempts to convince the prosecutor
that the lawyer has done nothing wrong. The
presentation to the prosecutor involves the revelation
of information relating to the representation of several
of the lawyer’s clients, although the information used
was gathered from third parties.
Is the attorney subject to discipline?
(A) Yes, because she has impugned the integrity
of the judge with reckless disregard for the
truth of her allegations.
(B) Yes, because the comments undermine public
faith in the administration of justice.
(C) No, because the rules of conduct only regulate
commercial speech and do not regulate lawyer
speech about the judicial system.
(D) No, because a lawyer’s honest and candid
opinions about judges contribute to
improving the administration of justice.
Question 9
A local bank asks a lawyer to represent it in
connection with the bankruptcy of a prominent local
citizen. The bank has reason to believe that the debtor
has fraudulently transferred assets and not been
truthful in the bankruptcy about the existence and
location of assets. The lawyer previously represented
this prominent local citizen in the preparation of his
will and other estate-planning matters.
Is it proper for the lawyer to represent the bank in
this proceeding?
(A) Yes, because bankruptcy and estate planning
are not substantially related matters.
(B) Yes, unless the former client can demonstrate
that the lawyer learned in the prior
representation specific information that would
be relevant to the bankruptcy proceeding.
(C) No, because the lawyer formerly represented
the debtor.
(D) No, unless the former client gives informed
written consent to the new representation.
290
Is the lawyer subject to discipline?
(A) Yes, because the lawyer revealed confidential
client information to the potential detriment
of his clients.
(B) Yes, because the lawyer did not wait for the
grand jury to indict him before using confidential
client information to defend himself.
(C) No, because the particular information that
the lawyer revealed came from third parties
and therefore was not protected by the
attorney-client privilege.
(D) No, because the attorney was permitted to
reveal the information in order to defend
himself against the possibility of an
indictment for money laundering.
QUESTIONS
Question 11
Question 12
A lawyer is representing a client who is being tried
for murder. During the trial, the prosecution calls the
client’s ex-wife as a witness. To the lawyer’s surprise,
the prosecutor asks the ex-wife whether the defendant
ever admitted to her that he had committed the
murder. The lawyer must decide immediately whether
to object on the basis of the marital communication
privilege. However, the lawyer previously interviewed
the ex-wife, who told the lawyer that the client never
admitted to her that he had committed the murder.
The lawyer makes the judgment call not to make the
objection. The ex-wife testifies that the defendant
admitted to her numerous times that he had committed
the murder, all while the two of them were married.
The client is convicted.
A judge is invited to write an article about recent
changes to the rules of civil procedure for his alma
mater’s law review and to give the keynote address,
based upon his article, at a symposium that the law
school is hosting at a luxurious resort. The law school
has offered to pay the judge a $500 honorarium and
to pay all the judge’s expenses for traveling to and
from and staying at the resort for the symposium. The
symposium will include remarks about the new rules
from all sectors of the bar and from academics and
other judges.
Is the attorney subject to discipline?
(A) Yes, because a lawyer is obligated to consult
with the client about the means to be used in
achieving the client’s objectives.
(B) Yes, because the lawyer’s decision not to
object led to the client’s conviction.
(C) No, because a lawyer is not required to
consult with the client about the means
that the lawyer will utilize in the course of
representing the client.
(D) No, because there was no time to consult
with the client about whether or not to object
to the ex-wife’s testimony.
Is it proper for the judge to accept the law school’s offer?
(A) Yes, because judges are uniquely qualified
to write and speak about the administration
of justice and are therefore encouraged to
participate in such activities.
(B) Yes, because the reimbursement and
honorarium would not appear to a
reasonable person to undermine the judge’s
independence, integrity, or impartiality.
(C) No, because judges are permitted to accept
reimbursement of reasonable expenses but
may not be paid for extrajudicial activities.
(D) No, because the judge’s acceptance of
reimbursement of expenses for staying at a luxury
resort would create an appearance of impropriety.
291
PRACTICE TEST 2
Question 13
Question 14
A lawyer represents a plaintiff in a personal injury
matter. The client’s insurance company pays $15,000
to have the client’s car repaired and notifies the
lawyer that it claims a right of reimbursement if the
client obtains a recovery that in part is attributable
to the damage to the client’s vehicle. A chiropractor
treats the client for his injuries and serves notice on
the lawyer that he, too, claims a right to payment of
his fee of $7500 out of any recovery that the plaintiff
receives. The lawyer reviews these notices and
concludes that they are not frivolous but are probably
invalid. The lawyer’s agreement with the client is
for a thirty percent contingent fee. With the client’s
consent, the lawyer settles the case for $100,000
and deposits the funds from the settlement into the
lawyer’s trust account. The client notifies the lawyer
that the client disputes both the chiropractor’s bill
and the alleged reimbursement due to the insurance
company. The client also states that he will file
a grievance against the lawyer for charging an
unreasonable fee unless the lawyer agrees to reduce
the lawyer’s fee to 10% of the recovery. The lawyer
remits $47,500 to the client, puts $10,000 into his
personal account, and leaves the remainder of the
$100,000 in the lawyer’s trust account.
A lawyer represents a client who has been sued
for causing the plaintiff significant injuries in an
automobile accident. The lawyer believes that it is
essential for the preparation of the case to take the
depositions of ten eyewitnesses, some of whom
now live far away. In the lawyer’s jurisdiction, the
insurance company who pays for the representation of
its insured is not a client of the lawyer. The insurance
company is attempting to control costs, and the
adjuster assigned to this matter tells the lawyer that
the insurance company will not pay the lawyer to take
the ten depositions. The lawyer takes the depositions
anyway and eventually settles the case.
Is the lawyer subject to discipline?
(A) Yes, because the lawyer transferred money
from his trust account to himself when the
reasonableness of his fee was in dispute.
(B) Yes, because the lawyer was in a position
to make a good faith determination that the
client was entitled to the $22,500 claimed by
the insurance company and the chiropractor.
(C) No, because the lawyer only paid himself the
10% fee that the client agreed was reasonable.
(D) No, because the lawyer paid the monies that
were not in dispute and kept the remainder in
his trust account.
292
Is the lawyer subject to discipline?
(A) Yes, because the lawyer refused to follow the
instructions of the insurance company.
(B) Yes, because the lawyer exploited a fee
arrangement based upon hourly billing by
using wasteful procedures.
(C) No, because the lawyer had professional
discretion to decide how many depositions
need to be taken and what expenses needed
to be incurred.
(D) No, because the lawyer did not violate any
rule of professional conduct.
QUESTIONS
Question 15
Question 16
A lawyer is representing an employer who has
been sued for allegedly firing an employee because
of the employee’s age, in violation of the Age
Discrimination in Employment Act. In preparation
for trial, the client tells the lawyer that the client
discussed the plaintiff’s age with his human resources
director as part of the decision to fire the plaintiff
but that, in the end, the decision to fire the plaintiff
was made for reasons that had absolutely nothing to
do with the plaintiff’s age. At trial, the lawyer asks
his client about the conversations with the human
resources director. To the lawyer’s surprise, the client
testifies that he never discussed the plaintiff’s age
with the human resources director. During a break, the
lawyer confronts his client about the discrepancy. The
client admits that he lied but states, “Look, if I tell
them we so much as mentioned age, I’m dead.”
As a substantial part of his practice, a lawyer files
collection suits for banks. The lawyer has a brother
who is a vice president of a local bank, and the lawyer
has asked many times for his brother to hire the
lawyer to represent the bank in its collection matters.
The brother responded to a recent request by saying,
“The answer is no, and I want you to stop bothering
me about it.” As a result of a recent economic
downturn, the bank now has many more collection
suits that need to be filed. The lawyer is exchanging
a series of instant messages with his brother about
family matters over the internet, and the lawyer uses
the opportunity to send a message in which the lawyer
asks his brother for the opportunity to represent the
bank in the new collection suits.
Which of the following actions in response to
this statement would comply with the lawyer’s
professional responsibilities?
(A) The lawyer immediately seeks to withdraw
from the representation.
(B) The lawyer immediately seeks the client’s
cooperation in setting the record straight.
(C) The lawyer immediately informs the judge of
the client’s perjury.
(D) The lawyer proceeds with the case without
taking any special steps related to the
client’s testimony.
Is the lawyer subject to discipline?
(A) Yes, because the brother has made it known
to the lawyer that the brother does not wish
to be solicited.
(B) Yes, because the lawyer is soliciting
professional employment from a prospective
client for pecuniary gain.
(C) No, because the solicitation was made to a
close family member.
(D) No, because sending an instant message is
not solicitation.
293
PRACTICE TEST 2
Question 17
Question 19
A lawyer represents a young man who suffered a
traumatic brain injury several years ago. As a result,
the client has diminished capacity. The client has
numerous legal issues with which he needs help, such
as his eligibility for disability payments, food stamps,
and subsidized health care. The lawyer does not believe
that at this time the client is at risk of substantial harm
in connection with any of these or other circumstances,
although that certainly could change.
An attorney is a director of The Legal River Keepers,
a legal services organization that provides volunteer
attorneys and coordinates litigation strategy to protect
rivers from pollution or diversion caused by large
industrial projects. The lawyer represents a tannery
that seeks to establish a new processing facility on a
local river. At the monthly meeting of the Legal River
Keepers, another director moves for the adoption of
a “zero-growth policy” that would direct the staff
of the organization to mount legal challenges to any
and all new commercial uses of the river. The lawyer
personally favors such a policy, but finds that his
personal views create a risk of a material limitation on
his representation of the tannery.
Is it proper for the lawyer to represent the young man
without taking special precautions?
(A) Yes, because the lawyer may make decisions
and take actions that are in the best interests
of the client.
(B) Yes, because the lawyer must maintain a
normal client-lawyer relationship as far as
reasonably possible.
(C) No, because a court has not determined that
the young man is competent to engage his
own attorney.
(D) No, because the circumstances require the
lawyer to take reasonable protective action,
such as seeking the appointment of a guardian.
Question 18
A lawyer seeks to attract more business. She makes
an agreement with a successful local realtor under
which the lawyer will refer clients who need a realtor
to the realtor and the realtor will refer clients who
need a lawyer to the lawyer. The lawyer informs
all her clients about the existence and nature of her
agreement with the realtor. The agreement works well
for both parties.
Is the lawyer subject to discipline?
(A) Yes, because the lawyer gave something
of value to the realtor in exchange for
recommending the lawyer’s services.
(B) Yes, because the realtor is not a qualified
lawyer referral service.
(C) No, because the lawyer properly informed all
of her clients about the arrangement.
(D) No, as long as the agreement was not exclusive.
Is it proper for the lawyer to participate in the vote?
(A) Yes, but he must reveal that he has a client
whose material interests will be affected by
the vote and identify the client.
(B) Yes, provided that he reveals that he has
a client whose material interests will be
affected by the vote.
(C) No, because it would violate his duty of
loyalty to a client.
(D) No, because he must resign from the board of the
organization due to the conflict of interest between
the client and the legal services organization.
Question 20
A lawyer meets privately with a client who requests
assistance in preparing for an appearance before a
grand jury. The client reluctantly admits that he has
been engaged, without the assistance of the lawyer,
in the perpetration of a highly successful “Ponzi”
scheme to defraud investors.
Is it proper for the lawyer to report the scheme to
the authorities?
(A) Yes, because the crime-fraud exception to the
attorney-client privilege voids any protection that
the client’s statements would otherwise have had.
(B) Yes, because doing so is necessary to
mitigate the financial harm that will
otherwise befall the investors in the scheme.
(C) No, because he continues to represent the client.
(D) No, because it is protected by the confidentiality
provisions of the rules of professional conduct
and the attorney-client privilege.
294
QUESTIONS
Question 21
Question 23
A plaintiffs’ attorney is well-known for his aggressive
style. In a hard-fought civil case, the parties and
lawyers convene in the lawyer’s conference room
for the deposition of the plaintiff. During the
questioning, the plaintiff’s counsel engages in a series
of belligerent and theatrical tactics to try to protect his
client and to distract and confound his adversaries.
A lawyer is representing a famous singer in a case
in which the client is accused of murdering a young
woman. During the trial, the lawyer learns that
some business associates of the singer “paid a visit”
to one of the jurors and let the juror know that a
verdict of guilty would not be in the interest of the
juror’s continued ability to use his knees. The lawyer
reasonably believes that the client had no knowledge
of these actions and did not encourage them in any
way. The juror has not revealed the threats to the
judge. The lawyer is convinced that the trial is going
well and that a verdict of not guilty is likely, based
upon the evidence that has been presented in the case.
The lawyer nevertheless reveals the threats to the
judge, who promptly orders a mistrial in the case, to
the detriment of the client.
Is the lawyer subject to discipline?
(A) Yes, because the lawyer engaged in conduct
intended to disrupt a tribunal.
(B) Yes, because the lawyer violated the civility
requirement of the rules of professional conduct.
(C) No, because a deposition in a lawyer’s
conference room is not a proceeding before
a tribunal.
(D) No, because the lawyer was zealously
representing his client within the bounds of
the law.
Question 22
An attorney is notified by a judge that the judge
intends to appoint the attorney to represent a criminal
defendant. This particular defendant has become
notorious because the crimes he allegedly committed
were particularly heinous. The lawyer wishes to seek
to avoid the appointment to represent this defendant.
Which of the following claims would not justify the
lawyer’s attempt to avoid the appointment to represent
this defendant?
Is the lawyer subject to discipline?
(A) Yes, because the illegal actions were
undertaken by others without the client’s
knowledge or encouragement.
(B) Yes, because the lawyer revealed information
relating to the representation of his client
without authority to do so.
(C) No, because the lawyer is an officer of the
court with the duty to see that justice is done.
(D) No, because the lawyer was taking
reasonable remedial measures to counter
criminal activity related to the proceeding.
(A) The lawyer is incompetent to defend a client
who is accused of serious criminal charges.
(B) The lawyer’s practice would suffer if
potential clients knew that he was the lawyer
who represented this defendant.
(C) The lawyer is so repulsed by the client’s
alleged deeds that the lawyer’s ability to
represent the client would be impaired.
(D) The lawyer is a solo practitioner who would
suffer an unreasonable financial burden if he
had to represent this defendant rather than
paying clients.
295
PRACTICE TEST 2
Question 24
Question 26
A lawyer is representing a wife in her divorce from her
husband. The client’s husband is a lawyer, and the wife
tells her lawyer that her husband financed his alcohol
and drug addiction by regularly taking money from his
firm’s trust account. The lawyer verifies that the wife’s
statements are true. The husband entered treatment
recommended by the state bar’s lawyer assistance
program. The lawyer concludes the representation of the
wife and does not report her husband to the state bar.
An attorney is employed by Big Corp. One of the
officers of Big Corp. is suspected of bribing foreign
officials to obtain business. Such actions are illegal
under U.S. law and subject the company to serious
consequences. The lawyer is assigned to investigate
the allegations and discovers that they are true. The
lawyer reports his findings to the Board of Directors
and expects the Board to take action. Instead, the
Board votes to do nothing and explicitly instructs the
lawyer not to disclose the lawyer’s findings to anyone
outside the company. The lawyer nevertheless tells the
local paper about his findings, in order to protect the
company from itself.
Is the lawyer subject to discipline?
(A) Yes, because the lawyer was obligated to
report a fellow lawyer to the bar when the
lawyer knew that the husband had committed
a criminal act that reflected adversely on the
lawyer’s fitness as a lawyer.
(B) Yes, because the lawyer was obligated to
report a fellow lawyer to the bar when the
lawyer knew that the husband had engaged
in conduct involving dishonesty.
(C) No, because the information about
the husband’s actions as a lawyer was
confidential in that it related to the
representation of the wife.
(D) No, because the other lawyer had entered a
lawyer’s assistance program.
Question 25
A young associate in a law firm is assigned, by her
supervising partner, a trademark infringement case
on behalf of a multinational hamburger restaurant
chain. The associate is a life-long vegetarian who has
strong personal beliefs that animals should not be
killed to produce food for humans. The associate, in
good conscience, does not believe that she can render
diligent representation for this client.
Which of the following is a permissible option for the firm?
(A) Obtain the informed consent of the client and
allow the associate to continue handling the case.
(B) Remove the young lawyer from the case and
assign it to other lawyers in the firm.
(C) Instruct the young lawyer to continue
handling the case because her conflict is
merely with her personal beliefs.
(D) Allow the young lawyer to continue to
represent the client but screen her from any part
of the case that violates her personal beliefs.
296
Is the lawyer subject to discipline?
(A) Yes, because the lawyer gathered the
information as part of an investigation of an
alleged violation of the law.
(B) Yes, because the lawyer’s services were not
used in the commission of the officer’s crimes.
(C) No, because the lawyer reported the illegal
activities for the purpose of protecting his client.
(D) No, because the lawyer was required to do
so in order to avoid assisting in the officer’s
past illegal activity.
QUESTIONS
Question 27
Question 29
A law firm maintains offices in many states. Because
of the potential for conflicts of interest, the firm has a
regular practice of requiring new corporate clients to
waive, in advance, any conflicts of interest that would
arise if an attorney in another office is asked to undertake
an unrelated matter that is adverse to the new client. New
client Mega, Inc. is an experienced consumer of legal
services. Based upon the advice of its in-house counsel,
Mega agrees to the law firm’s advance waiver. During
the firm’s representation of Mega, a lawyer in another
one of the firm’s offices files a suit against a subsidiary
of Mega. The suit is unrelated to the matter that the firm
is handling for Mega. The subsidiary files a motion to
disqualify the firm in the new matter.
A lawyer works as a public defender. She is assigned
to represent a client who tells the lawyer that he is
afraid to go to prison because a few years earlier, the
client murdered a leader of a gang that has members
in prison. The lawyer knows that another man has
been convicted of the murder to which her client
has just confessed. That other man has consistently
maintained his innocence but has been sentenced
to life in prison for the murder. The lawyer asks her
client for permission to reveal that the client murdered
the gang leader, but the client refuses. The lawyer
nevertheless reveals the client’s confession, and the
man convicted of the murder is exonerated and freed.
Is the lawyer subject to discipline?
Should the court grant the motion to disqualify?
(A) Yes, because conflicts in one office of a
multi-state firm are imputed to lawyers in
other offices of the same firm.
(B) Yes, because a corporate parent and
subsidiary can be considered to be the same
“client” for conflict of interest purposes.
(C) No, because the two matters are unrelated.
(D) No, because Mega waived the conflict in advance.
Question 28
(A) Yes, because the lawyer revealed confidential
client information without client permission.
(B) Yes, because the client revealed information that
was covered by the attorney-client privilege.
(C) No, if the lawyer reasonably believed that
the convicted man faced reasonably certain
death or substantial bodily harm if he went to
prison for murdering the gang leader.
(D) No, because revealing the client’s confession
was necessary to avoid a fundamental
miscarriage of justice.
A lawyer represents a contractor who has filed for
bankruptcy. One of the client’s creditors (who is
unrepresented) calls the attorney and asks about filing
a claim against the bankruptcy estate. The lawyer
tells the creditor that, under the Bankruptcy Code, the
creditor has 90 days to file such a claim. The lawyer
knows, however, that the deadline under the Code
expires in 60 days. The creditor’s claim is deemed to be
untimely when the creditor files his claim on the 75th
day after the creditor’s conversation with the attorney.
Is the attorney subject to discipline?
(A) Yes, because the attorney did not
immediately terminate the conversation with
an unrepresented party.
(B) Yes, because the attorney knowingly
misrepresented the law to the third party.
(C) No, because the attorney owed no duty to a
third party whose claim was adverse to his
client’s interests.
(D) No, because the attorney was free to speak
directly to an adverse unrepresented party.
297
PRACTICE TEST 2
Question 30
Question 31
A lawyer in Law Firm A represents the Widget
Corporation in all of Widget’s transactions. While
the lawyer is handling Widget’s acquisition of the
assets of the Doodad Corporation, the lawyer becomes
dissatisfied with his compensation at the firm and
leaves the firm to become a partner at Law Firm B.
The lawyer takes all of Widget’s business with him.
The lawyer also takes with him to Law Firm B all of
the lawyers, except one junior associate, who worked
on Widget’s matters. Soon thereafter, Doodad asks
Law Firm A to represent Doodad in the sale of its
assets to Widget.
A lawyer represents a client in the sale of an office
building. The lawyer receives a text message from the
client in which the client instructs the lawyer not to
disclose to the buyer the presence of asbestos in the
building. The lawyer has no idea that there is asbestos
in the building. Failure to disclose the asbestos would
be fraudulent in this jurisdiction. The lawyer discloses
the asbestos to the potential buyer, and as a result the
buyer refuses to purchase the property.
Is it improper for Law Firm A to represent Doodad?
(A) Yes, because Law Firm A once represented
Widget in this same transaction.
(B) Yes, because a lawyer with knowledge of
Widget’s confidential information about this
matter is still with Law Firm A.
(C) No, because Law Firm A can screen the
junior associate from any involvement in
the representation of Doodad, not apportion
him any compensation from the Doodad
representation, and give written notice of the
screening procedures to Widget.
(D) No, because Law Firm A no longer
represents the Widget Corporation.
298
Is the lawyer subject to discipline?
(A) Yes, because the lawyer is required to consult
with the client when the lawyer knows that
the client expects assistance not permitted by
the rules of professional conduct.
(B) Yes, because the lawyer assisted a client in a
fraudulent transaction.
(C) No, because the lawyer was required,
without any further communication with the
client, to disclose the information in order to
avoid assisting the client in the perpetration
of a fraud.
(D) No, because the lawyer was permitted to
disclose the information in order to prevent
the client from causing substantial financial
injury to the buyer.
QUESTIONS
Question 32
Question 33
A prosecutor is prosecuting a defendant for the
late-night robbery of a convenience store. During
the investigation, the lawyer receives the statement
of one of the witnesses who saw the perpetrator of
the robbery, from a great distance, as the robber was
leaving the convenience store. The description that
this witness gave to the prosecutor differs slightly
from the actual appearance of the defendant on the
night of the robbery. The prosecutor has several
other witnesses who were closer to the defendant and
positively identified the defendant as the perpetrator
of the robbery. She decides not to give the defense the
statement of the witness who saw the perpetrator from
a great distance.
A criminal defense lawyer is a member of her
state bar’s advisory board, which writes opinions
interpreting its rules of professional conduct. The
advisory board is asked to write an opinion about
whether two public defenders in the same office
may represent co-defendants in a criminal case. The
attorney is currently representing a client who claims
that he received ineffective assistance of counsel
under precisely those circumstances. The attorney
knows that if the advisory board concludes that such
a practice is impermissible, the client who is claiming
ineffective assistance will benefit because the opinion
will give them additional authority to cite.
Is the prosecutor’s conduct proper?
(A) Yes, because she need not hand over the
statement unless the defense counsel requests
discovery of exculpatory evidence.
(B) Yes, because there is no reasonable
probability that the evidence would affect the
outcome of the trial.
(C) No, because the prosecutor must maintain an
open file in criminal cases.
(D) No, because the evidence tends to negate the
guilt of the defendant.
Is it proper for the attorney to vote on the proposed opinion?
(A) Yes, but the other board members must agree
that she has the right to vote on the issue.
(B) Yes, but she must disclose that the fact that
she has a client who would benefit from the
adoption of the opinion.
(C) No, because a client’s interests will be affected.
(D) No, because she should not be serving on
the advisory board when her practice poses
potential conflicts of interest.
Question 34
A lawyer establishes a trust account for his practice.
He regularly deposits funds that belong to clients,
including deposits for future legal fees, into that trust
account. The lawyer occasionally deposits relatively
small amounts of his own money into the account, but
the lawyer never withdraws any money for his own
use that does not rightfully belong to him.
Is the lawyer subject to discipline?
(A) Yes, because the lawyer commingled
personal funds and client funds.
(B) Yes, because the lawyer did not obtain the
informed written consent of the clients
whose money was in the trust account.
(C) No, as long as the personal funds deposited
into the trust account were only in amounts
necessary to pay bank service charges.
(D) No, because the lawyer never withdrew
money from the trust account that did not
rightfully belong to him.
299
PRACTICE TEST 2
Question 35
Question 36
A lawyer represents a client as plaintiff in litigation
against the client’s former business partner, who
is represented in the case by a local lawyer with a
well-earned reputation for being uncommunicative.
The plaintiff’s lawyer has sent the defendant’s lawyer
a written offer to settle the case and has repeatedly
attempted, without success, to reach the defendant’s
lawyer to discuss the settlement offer. The plaintiff’s
lawyer believes that the defendant’s lawyer has
not conveyed the settlement offer to his client. The
plaintiff asks his lawyer whether she can just contact
the defendant directly and ask about the settlement.
The plaintiff’s lawyer tells his client that she may do
so, and the plaintiff calls the defendant directly.
A lawyer is representing a defendant in a products
liability case. The plaintiff’s counsel requests from the
defendant all documents that relate to claims against
the defendant that are similar to the claims brought
by the plaintiff. The defense lawyer knows about
such similar claims and knows that all are subject to
confidentiality agreements. The lawyer also knows
that, under the applicable rules of civil procedure, he
must either produce the documents or object to their
production. He reasonably believes that his objections
would be sustained, but at a substantial cost to his
client. The lawyer does not produce the documents,
nor does the lawyer object to their production.
Is the plaintiff’s lawyer subject to discipline?
(A) Yes, because the attorney has committed
misconduct by violating the rules of professional
conduct through the acts of another.
(B) Yes, because the lawyer assisted the client in
the circumvention of the other party’s lawyer.
Is the defense lawyer subject to discipline?
(A) Yes, because the lawyer did not produce
the documents.
(B) Yes, because the lawyer knowingly
disobeyed an obligation under the rules of
the tribunal.
(C) No, because the plaintiff’s lawyer did not
personally have contact with the defendant.
(C) No, although the lawyer is subject to
litigation sanctions for not abiding by the
applicable rules of civil procedure.
(D) No, because the plaintiff is entitled to contact
the opposing party directly, and the attorney did
nothing wrong in giving his client that advice.
(D) No, because the lawyer made a good faith
determination that no valid obligation to
produce the documents existed.
Question 37
A lawyer is the trustee of a trust that was set up to
benefit the lawyer’s elderly uncle. The lawyer does
not represent the uncle or the trust as an attorney.
The lawyer misappropriates a substantial amount
of money from the trust and uses it for his own
benefit. When his actions are discovered, the lawyer
immediately replaces the money. No criminal charges
are ever filed.
Is the attorney subject to discipline?
(A) Yes, because he engaged in conduct that
involved dishonesty.
(B) Yes, because stealing is a criminal act, and
attorneys are subject to professional discipline
whenever they commit criminal acts.
(C) No, because no criminal charges were ever
filed and therefore the attorney was not
convicted of a crime of moral turpitude.
(D) No, because the lawyer’s actions did not
relate to the practice of law.
300
QUESTIONS
Question 38
Question 39
A solo practitioner lawyer learns that a good friend has
been injured in a bad motorcycle accident. The solo
practitioner does not handle such matters, but is familiar
with a local law firm that specializes in them. The solo
practitioner wants to refer the case to the law firm, but he
would like to receive a part of the fee that the firm will
inevitably earn. The lawyers agree to split the fee 50-50,
and the client consents to this arrangement in writing.
The total fee to be paid is reasonable.
A lawyer specializes in estate planning. He meets
with a client who made his will several years ago and
left his estate in equal shares to his five children. The
father reports that one of the children has since “come
out of the closet” and announced her homosexuality.
The client expresses disgust at the sexual preference
of his daughter and uses several distasteful epithets
to describe her. The client wants to know whether
he can disinherit his daughter because of her sexual
preference. This client also finds it very unpalatable to
talk about what events will happen when he is dead.
The lawyer finds the client’s views objectionable,
and he believes that the plan is unwise because it will
likely result in litigation among his children.
Is the solo practitioner subject to discipline?
(A) Yes, because referral fees for lawyers are not
allowed.
(B) Yes, unless each attorney assumed joint
responsibility for the matter or each did onehalf of the work.
(C) No, because the client gave informed consent to
the arrangement and it was confirmed in writing.
(D) No, as long as each attorney assumed joint
responsibility for the matter.
Which of the following actions, if taken by the
lawyer, would be improper?
(A) Withdrawing from the representation because
the lawyer finds the client’s views on
homosexuality repugnant.
(B) Counseling the client that discriminating
among his children on the basis of their
sexual preference is legal but morally wrong.
(C) Advising the client only that it would be
legal to disinherit his daughter because of her
sexual preference.
(D) Advising the client not to go through with the
plan because it will cause the children to fight
among themselves after the client’s death.
301
PRACTICE TEST 2
Question 40
Question 41
A lawyer represents a plaintiff in a personal injury
case. After extensive discovery, the lawyer advises
her client that any settlement above $200,000 would
be a good result. The lawyer’s client has nevertheless
told the lawyer that the client will not accept any
amount less than $300,000 to settle the case. The
lawyer receives a written offer from the defendant to
settle the case for $250,000. The lawyer rejects the
settlement offer without consulting her client.
A managing partner of a large law firm finds that her
client and managerial responsibilities do not leave
her sufficient time to represent clients on a pro bono
basis. The lawyer attempts to have her firm adopt a
carefully crafted pro bono policy in which the firm
would assign pro bono matters to lawyers who are not
meeting their regular billable-hour expectations. The
policy is designed so that, as a whole, the firm would
be rendering pro bono services equal to the number of
attorneys multiplied by 50 hours. The firm’s Executive
Committee rejects the plan, and the managing partner
renders no pro bono service that year.
Is the lawyer subject to discipline?
(A) Yes, because lawyers are obligated to convey
all settlement offers to their clients.
(B) Yes, because the attorney owes a duty of
candid advice, and the lawyer believes that it
would be in the client’s best interest to accept
the settlement.
(C) No, because the client previously told the
lawyer that anything less than $300,000
would be unacceptable.
(D) No, because the attorney has professional
discretion to conduct the negotiations.
Is the managing partner subject to discipline?
(A) Yes, because the managing partner did not
personally render 50 hours of pro bono
service that year.
(B) Yes, because the managing partner did not
ensure that her firm had in effect measures
giving reasonable assurance that the lawyers
in the firm would meet their pro bono
obligations collectively.
(C) No, because attorneys are not required to
render pro bono service.
(D) No, because the managing partner exercised
reasonable care to ensure that her firm had in
effect measures giving reasonable assurance
that the lawyers in the firm would meet their
pro bono obligations collectively.
302
QUESTIONS
Question 42
Question 43
A lawyer represents a grandmother who is seeking
court-ordered visitation with her granddaughter. The
court orders a psychological evaluation to determine
whether it would be in the granddaughter’s best
interest to have visitation with the grandmother.
The lawyer has just received the report from
the court-appointed psychologist who evaluated
the grandmother. The report concludes that the
grandmother should not have visitation with the
granddaughter because the grandmother expresses
persistent suicidal thoughts at the prospect of not
seeing her granddaughter.
An attorney and a client make an agreement that the
lawyer will represent the client in a personal injury
matter in return for a contingency fee of 30% of the
plaintiff’s recovery and that the lawyer will advance
to the client the expenses of the litigation. Repayment
of the expenses is to be made at the end of the case
out of the judgment if there is one but, if there is no
recovery, the client is responsible to reimburse the
attorney for expenses. The attorney recovers $100,000
for the client and spends $10,000 on the expenses
of the litigation. The attorney remits $60,000 to the
client, reimburses himself for the $10,000 expenses,
and keeps $30,000 as his attorney’s fee.
Is it proper for the lawyer to delay telling the grandmother
about the results of the psychologist’s report?
(A) Yes, because the client is likely to
react imprudently to any immediate
communication.
(B) Yes, because the client has diminished
capacity and is in sufficient danger that the
lawyer must take protective action.
(C) No, because the lawyer must explain the
matter sufficiently for the client to make an
informed decision about what to do next.
(D) No, because the lawyer is required to keep the
client reasonably informed about the status of
the matter that he is handling for the client.
Has the attorney violated the Model Rules of
Professional Conduct?
(A) Yes, because the attorney calculated the
attorney’s fee on the gross amount of the
recovery rather than the gross amount minus
the expenses.
(B) Yes, because the attorney advanced the
expenses of the litigation and repayment of
the expenses was not contingent upon the
outcome of the case.
(C) No, because a 30% contingent fee in a
personal injury matter is not unreasonable,
and the client agreed to repay the expenses
out of the recovery.
(D) No, as long as the client signed a written
contract with the lawyer in which the client
agreed to the calculation of the client’s
recovery in this way and the $30,000 fee is
not unreasonable.
303
PRACTICE TEST 2
Question 44
Question 46
A trial judge presides over a child molestation case.
The defendant had been arrested on several previous
occasions for having inappropriate contact with
children, but each time some problem prevented his
prosecution. Despite his belief, based upon the record
in the case, that the defendant was a serial child
molester, the judge suppressed the evidence about the
previous accusations and strictly enforced an order that
they not be mentioned during trial. Nevertheless, at the
end of the trial the defendant was convicted. After the
verdict, the judge met with and thanked the members
of the jury for their service and commended them for
ridding the community of a serial child molester.
An attorney specializes in defending clients in traffic
court. The lawyer decides to employ an advertising
campaign that promotes him as “The Fixer.” His print
advertisements truthfully state that he is a former police
officer, law clerk, and traffic court prosecutor who
“knows everyone at the courthouse.” They depict the
lawyer standing in a hallway next to an actor who is
wearing judicial robes and shaking hands with the lawyer.
Did the judge violate the code of judicial conduct?
(A) Yes, because the judge commended the
jurors for their verdict.
(B) Yes, because the judge met with the jury
after the trial.
(C) No, because the judge did not allow the evidence
of the previous accusations into evidence.
(D) No, because the judge’s comments
encouraged jury service and public respect
for the judicial system.
Question 45
A lawyer is representing a woman who is divorcing her
husband. The lawyer and his client fall in love, and they
commence a sexual relationship. The lawyer believes
that the sexual relationship presents a concurrent conflict
of interest, but he obtains informed consent from his
client to continue to represent her in the divorce. The
divorce proceedings run their course, and soon after the
client’s divorce is final, the lawyer and his client marry.
Is the attorney subject to discipline?
(A) Yes, because the advertisements demean the
public image of the legal profession.
(B) Yes, because the advertisements imply an
ability to achieve results by means that
violate the rules of professional conduct or
other law.
(C) No, because the advertisements truthfully
describe the lawyer’s experience.
(D) No, because lawyers are not subject to discipline
for undignified or tasteless advertising.
Question 47
A lawyer enters into a contract to represent an aging
film star in negotiations over the client’s contract
to appear in a series of werewolf movies. Because
the client does not have money with which to pay
the lawyer, the lawyer and the client agree that the
lawyer’s compensation will be the client’s Academy
Award statuette from 1964.
Is the attorney subject to discipline?
(A) Yes, because lawyers may not receive legal
fees in the form of property.
(B) Yes, because the fee arrangement is, in
essence, a business transaction with a client.
(A) Yes, because the attorney did not withdraw
from representation before he entered into a
sexual relationship with his client.
(C) No, if the lawyer complied with the
applicable rules of conduct regarding a
business transaction with a client.
(B) Yes, because the lawyer sought informed
consent without considering whether he
could provide competent and diligent
representation despite the conflict of interest.
(D) No, as long as the client has given informed
consent to the arrangement and that consent
has been confirmed in writing.
(C) No, because the attorney obtained the
informed consent of his client after the
commencement of the sexual relationship.
(D) No, because the personal interests of the
lawyer and the interests of the client in
obtaining a divorce were not in conflict.
304
Is the lawyer subject to discipline?
QUESTIONS
Question 48
Question 50
A young lawyer secretly becomes romantically and
sexually involved with a trial judge who is, and has been
for some time, presiding over one of the lawyer’s cases.
The lawyer suggests to the judge that the judge should
disqualify himself from the case, but the judge refuses to
do so because such action would at least raise suspicion
about the judge’s secret relationship with the lawyer. The
judge continues to preside over the case, and the lawyer
wins the case on summary judgment. The lawyer does not
report the judge to the appropriate professional authority.
A lawyer is representing a man who is accused in
the kidnapping of a celebrity’s young child. The
prosecutor in the case is in the midst of a tight
re-election campaign. The prosecutor calls a news
conference about the kidnapping cases, and among
other statements, tells the public that the accused
refused to take a polygraph test concerning the
accused’s involvement in the crime and his alleged
alibi. The defense lawyer calls a news conference the
next day to tell the press that in fact his client did take
a privately administered polygraph test and that the
client “passed with flying colors.” The defense lawyer
also described the results of the lawyer’s investigation
into the character of the celebrity, who will be a
witness in the case, and revealed that the celebrity
had conducted a large number of secret extramarital
affairs, “all of which involved people who may have
had a motive to commit the crime of which my client
is accused.”
Is the attorney subject to discipline?
(A) Yes, because the lawyer had a sexual
relationship with a judge who was presiding
over one of the lawyer’s cases, and the
sexual relationship began after the judge
began presiding over that case.
(B) Yes, because the lawyer had a duty to report
the judge’s failure to disqualify himself to
the appropriate professional authority.
(C) No, because the lawyer had no duty to report the
judge’s violation of the code of judicial conduct.
(D) No, because the judge did not violate the
code of judicial conduct.
Question 49
A lawyer has an angry client who instructs the lawyer
to file a suit against the client’s former business partner.
The lawyer reviews the underlying facts and concludes
that the client will almost certainly lose the case because
of the enactment of a recent statute. Nevertheless, the
client’s instructions were clear, and the lawyer files the
case without further consultation with the client. The
lawyer makes a good-faith argument that the statute is
unconstitutional. As expected, the client loses the case on
a motion for summary judgment.
Is the defense lawyer subject to discipline for the
remarks he made at the press conference?
(A) Yes, because the lawyer revealed the results
of the client’s polygraph examination.
(B) Yes because the lawyer’s comments were
not limited to mitigating the effects of the
prosecutor’s press conference.
(C) No, because the lawyer’s statements were
intended to protect the client from the
substantial and undue prejudicial effects of
the prosecutor’s news conference.
(D) No, because lawyers have a First
Amendment right to speak about the cases in
which they are involved.
Is the lawyer subject to discipline?
(A) Yes, because the lawyer filed a case that the
lawyer expected to lose.
(B) Yes, because the lawyer did not candidly
advise the client that the client would almost
certainly lose the case.
(C) No, because the lawyer followed his
client’s instructions.
(D) No, because the lawyer made a goodfaith argument that the recent statute was
unconstitutional.
305
PRACTICE TEST 2
Question 51
Question 53
An attorney represented a criminal defendant one year ago.
During that representation, the client confessed to the lawyer
that the client had committed a murder for which someone
else had been convicted. The client refused to allow the
lawyer to reveal the information, even though the other
person was scheduled to be executed for the murder. The
lawyer did not reveal the information, and the other person
was executed. Now, the lawyer’s former client has died in
prison. In order to clear her conscience, the lawyer reveals
to the public that her former client actually committed
the murder for which another person was executed.
A lawyer for the Securities and Exchange
Commission is lead counsel in a suit that alleges
that Mammoth Corp. violated the securities laws
in connection with an initial public offering. While
that case is pending, the lawyer leaves government
practice and joins a small firm that specializes in
class action cases involving the securities laws. The
law firm has the opportunity to file such a case for a
representative plaintiff and a class against Mammoth
Corp. The allegations of the private case would mirror
the claims brought by the Commission in the pending
case in which the lawyer represented the Commission.
Is the attorney subject to discipline?
(A) Yes, because the lawyer revealed information
relating to the representation of her former client.
(B) Yes, because the lawyer failed to reveal the
information in time to save the life of the person
who was wrongfully convicted of the crime.
(C) No, because the attorney’s client was
deceased at the time of the disclosure.
(D) No, because the disclosure related to the
death or substantial bodily harm of another.
Question 52
A second-year associate is helping a law firm partner on
a complex case. In the course of reviewing documents,
he finds that the Chief Financial Officer of the mid-size
corporation they are representing is planning to commit
perjury when testifying at trial. When the associate tells
the partner what he has found, the partner says, “I’m
sure that looks bad to you but, believe me, I’m on top
of the situation and it’s nothing to worry about. Don’t
mention it to anyone.”
When the partner is conducting direct examination of the
CFO at trial, the CFO does in fact perjure himself. Neither
the partner nor the associate takes any action to remediate
the perjury. Ultimately, the corporation loses at trial.
Is the associate subject to discipline?
(A) Yes, because the partner’s directions do not
override the associate’s ethical duties.
(B) Yes, because the associate should have
resigned from the case when the partner told
him not to worry about it.
(C) No, because the perjury did not cause the
corporation to prevail at trial.
(D) No, because the associate could reasonably
assume that the partner knew more about the
situation than the associate did.
306
Is it proper for the law firm to take the case against
Mammoth?
(A) Yes, because the firm is essentially on the
same side as the Commission in seeking to
hold Mammoth accountable for its violations
of the securities laws.
(B) Yes, but the attorney must be screened from
participation in the case, cannot receive
any portion of the fee therefrom, and the
Commission must receive written notice of
the situation.
(C) No, unless the firm obtains the informed
written consent of the Securities and
Exchange Commission to its participation in
the case.
(D) No, because an attorney in the firm
participated personally and substantially in the
government’s case involving the same matter.
QUESTIONS
Question 54
Question 56
A woman who believes her roommate is the owner
of a legitimate small business wakes one morning
to police knocking on her door, asking to search the
house. The woman texts her cousin, a real estate
lawyer, for advice. The cousin texts back, “Let them
search anywhere they want. Call me later if there is
a problem - will help you find criminal lawyer.” The
woman gives the police consent to search anywhere in
the house, and they find bags of heroin the roommate
has hidden in the living room sofa cushions. The
woman and the roommate are convicted of drug
trafficking and sent to prison.
A lawyer is a member of the Climate Change Alliance
(CCA), an organization devoted to using the courts
to prevent activities that cause harm by contributing
to global warming. The lawyer holds a town hall
meeting in a community that abuts property where
a coal-fired power plant is planned. The lawyer
approaches a local resident at the meeting and asks
her to let the lawyer sue the power company on her
behalf to stop the construction of the plant, with the
understanding that the lawyer would work for free and
all the expenses would be paid by CCA.
Has the cousin violated the Model Rules?
(A) Yes, because the cousin should not have
advised someone who was not her client.
(B) Yes, because the cousin should have advised
the woman to ask for a warrant.
(C) No, because the cousin did not exceed the
emergency assistance exception.
(D) No, because the cousin did not have bad intent.
Is the lawyer subject to discipline?
(A) Yes, because the lawyer engaged in a direct, faceto-face solicitation of professional employment.
(B) Yes, unless the local resident was a lawyer.
(C) No, because the lawyer did not solicit the
local resident with a motive of pecuniary gain.
(D) No, if the lawyer knew the local resident
personally.
Question 55
A lawyer who represents a plaintiff responds to a
motion to dismiss filed on behalf of the defendant,
the local sheriff. To the lawyer’s surprise, the motion
to dismiss did not cite the most recent authority that
supports the argument that the sheriff is entitled to
immunity from this suit. The case is exactly on point
and comes from the well-respected supreme court
of a neighboring state. The lawyer does not cite the
authority to the court in her response to the motion to
dismiss.
Is the lawyer subject to discipline?
(A) Yes, because her opposition did not cite the case.
(B) Yes, because the case is exactly on point.
(C) No, because the lawyer’s duty of zealous
advocacy requires that she only cite cases
that help her client win.
(D) No, because the case does not come from a
court whose decisions are controlling.
307
PRACTICE TEST 2
Question 57
Question 58
A lawyer in private practice becomes dissatisfied
with the high cost of malpractice insurance. The
lawyer decides to cancel her insurance and instead
adopts a policy under which she will not undertake
a new matter for a client unless the client agrees
in advance to waive any malpractice claim that the
client may later have against the attorney. In return,
the lawyer believes that she can charge clients lower
fees. The lawyer implements the policy with several
new clients. The lawyer believes that the deal is fair
and reasonable to the clients, and she fully discloses
and explains the arrangement in writing, in easily
understood language that her clients can understand.
In that writing, the lawyer advises the clients of the
desirability of obtaining independent counsel before
agreeing to the arrangement, and the clients are given
a reasonable opportunity to do so. All of the clients
give informed consent, in writing, to the arrangement.
An attorney specializes in elder law. A new client
meets with the lawyer to discuss an estate plan, a
power of attorney, and other related matters. The
client’s age makes it difficult for her to communicate
clearly or to easily understand what she is being
told, although with the trusted assistance of her son
she is able to understand the lawyer and give clear
instructions. The lawyer allows his paralegal to sit in
on the meeting to assist him. A year later, the client
becomes mentally disabled and enters a nursing
home, and her daughter sues to invalidate the power
of attorney that the client granted to her son with the
lawyer’s assistance. The daughter seeks to compel the
lawyer to testify about what the client told him in their
meeting about the estate plan. The lawyer asserts the
attorney-client privilege.
Is the lawyer subject to discipline?
(A) Yes, because the lawyer obtained a waiver
from her clients of the lawyer’s potential
malpractice liability.
(B) Yes, because the clients were not independently
represented in making the agreements.
(C) No, because the lawyer obtained informed
written consent from the clients.
(D) No, because the lawyer advised the clients
of the desirability of obtaining independent
counsel before entering into the agreement
and gave the clients a reasonable opportunity
to do so.
308
Should the judge overrule the objection?
(A) Yes, because the paralegal was in the room
during the conversation.
(B) Yes, because the son was in the room during
the conversations with the lawyer and was
not a client of the lawyer.
(C) No, because the presence of the son
and paralegal facilitated the lawyer’s
representation of the client.
(D) No, because the client consented to the
presence of her son and the paralegal during
the meeting with the lawyer.
QUESTIONS
Question 59
Question 60
A lawyer with a struggling private practice is
approached by Big Mart, Inc. about a new venture
for the delivery of legal services. Big Mart is a local,
low-cost retailer. Under the arrangement, Big Mart
and the lawyer form a partnership, and Big Mart gives
the lawyer free rent to have his law office in the store.
The lawyer maintains professional independence to
handle the cases as the lawyer sees fit. The lawyer
obtains a steady stream of clients, and Big Mart has
an additional enticement for customers to come to
the store. The lawyer agrees to the arrangement and
begins practice.
An attorney and a client enter into a contingency
fee contract under which the lawyer will receive a
percentage of any amount that the lawyer recovers for
the client in a suit against the client’s ex-husband. The
suit will seek to recover alimony that was awarded
to the client in the parties’ divorce, but never paid by
the husband. The lawyer has the client sign a written
contingency fee contract. The contract specifies
the percentage that will accrue to the lawyer in the
event of settlement, trial, or appeal, and it specifies
other expenses to be deducted from the recovery and
states that repayment of expenses is contingent upon
recovery in the suit. The contract also states that the
percentage will be calculated on the amount of the
recovery before deducting any expenses.
Is the lawyer subject to discipline?
(A) Yes, if the lawyer shared legal fees with Big Mart.
(B) Yes, because the lawyer entered into a
partnership with a nonlawyer and the
activities of the partnership include the
practice of law.
(C) No, because the lawyer maintained
professional independence to represent the
clients as he saw fit.
(D) No, because the lawyer did not work directly
for Big Mart.
Is the attorney subject to discipline?
(A) Yes, because it is not permissible to make
repayment of expenses contingent upon recovery.
(B) Yes, because contingency fees are not
permitted in matters such as this one.
(C) No, because the contingency fee contract
meets all the necessary specifications of the
rules of professional conduct.
(D) No, because contingency fee agreements facilitate
access to the courts by parties who would
otherwise be unable to pay for representation.
309
310
Practice Test 2
Answers and Answer Explanations
PRACTICE TEST 2
Answer Key
312
1
A
B
C
D
31 A B C D
2
A
B
C
D
32 A B C D
3
A
B
C
D
33 A B C D
4
A
B
C
D
34 A B C D
5
A
B
C
D
35 A B C D
6
A
B
C
D
36 A B C D
7
A
B
C
D
37 A B C D
8
A
B
C
D
38 A B C D
9
A
B
C
D
39 A B C D
10 A B C D
40 A B C D
11 A B C D
41 A B C D
12 A B C D
42 A B C D
13 A B C D
43 A B C D
14 A B C D
44 A B C D
15 A B C D
45 A B C D
16 A B C D
46 A B C D
17 A
47 A B C D
B
C
D
18 A B C D
48 A B C D
19 A B C D
49 A B C D
20 A B C D
50 A B C D
21 A B C D
51 A B C D
22 A B C D
52 A B C D
23 A B C D
53 A B C D
24 A B C D
54 A B C D
25 A B C D
55 A B C D
26 A B C D
56 A B C D
27 A B C D
57 A B C D
28 A
58 A B C D
B
C
D
29 A B C D
59 A B C D
30 A B C D
60 A B C D
ANSWERS AND ANSWER EXPLANATIONS
Explanation: Question 1
The correct answer is: (B) Yes, because the lawyer violated his duty of communication with the husband.
The lawyer obtained informed consent to this conflict. As part of doing so, he must have explained to the
clients that information from one client would be shared with the other, and no duty of confidentiality would
prevent the lawyer from doing that. Because the lawyer therefore had no duty to keep the wife’s statement
confidential from the husband, the lawyer was free to share the information. Furthermore, he was under
a duty to do so. This information would be important to the husband in deciding how to instruct the lawyer
to prepare the husband’s will, and therefore the client was entitled to know what the lawyer knew.
(A) Incorrect. Yes, because the lawyer undertook the representation knowing that there was a conflict
of interest.
Lawyers are not subject to discipline every time they undertake a representation that involves a
conflict of interest. Here, the lawyer presumably concluded that the conflict was consentable, that
the lawyer would be able to provide competent and diligent representation to both clients despite
the conflict. One would expect that would usually be the case with joint representation of spouses,
whose interests surely almost always are aligned. The lawyer obtained informed consent to a consentable conflict, and therefore the lawyer is not subject to discipline merely because he represented both parties.
(C) Incorrect. No, because the lawyer obtained informed consent to the conflict of interest.
The fact that the lawyer obtained informed consent to the conflict does not relieve him of his duty to
communicate with the husband. The lawyer still must communicate information that the client needs
in order to make informed decisions regarding the representation.
(D) Incorrect. No, because the lawyer owed a duty of confidentiality to the wife.
The lawyer generally owed a duty of confidentiality to the wife, but the question states that the
lawyer obtained informed consent to the joint representation. Part of obtaining such consent is to
explain that the lawyer will not keep confidential from one client information that comes from the
other client. In other words, the lawyer obtains consent to disclose to the other client the confidential
information from either client. Because the lawyer had that authority, as part of the informed consent
that he secured, the lawyer had no duty to keep the wife’s information confidential from the husband.
Explanation: Question 2
The correct answer is: (C) Yes, because disqualification for personal prejudice against a party’s lawyer
is not waivable.
The Code of Judicial Conduct establishes a procedure for the parties to consider and decide whether or
not to waive a basis for disqualification of the judge. That procedure does not apply, however, if the basis
of the disqualification is personal bias or prejudice concerning a party or a party’s lawyer [CJC 2.11]. Here,
disqualification because of the judge’s loathing for one of the lawyers is not something that the parties
can waive.
(A) Incorrect. No, because all parties and their counsel have waived the basis for disqualification.
The parties have waived the basis of disqualification, but some grounds are not waivable. The
judge’s personal prejudice against the plaintiff’s counsel is such a circumstance.
(B) Incorrect. No, because opinions about lawyers formed outside the confines of the case are not relevant to the judge’s disqualification.
Regardless of the source of the judge’s feelings, a deep and abiding loathing for one of the lawyers
makes fair judgment impossible. As a result, the judge should not hear the case regardless of the
source of his feelings.
313
PRACTICE TEST 2
(D) Incorrect. Yes, because the judge did not follow the proper procedures for obtaining a waiver of the
basis for his disqualification.
The judge did follow the proper procedures. The problem is substantive rather than procedural. The
parties have waived a basis for disqualification that is not waivable (personal bias or prejudice concerning a party or a party’s lawyer).
Explanation: Question 3
The correct answer is: (B) Yes, if the commercial would cause a reasonable person to form an unjustified
expectation of similar results.
Lawyers are permitted to report truthfully about the results that they obtain for clients. However, even truthful
statements can be misleading. If the advertisement would cause a reasonable person to form an unjustified expectation of similar results, then the commercial is misleading and the lawyer is subject to discipline.
(A) Incorrect. Yes, if the commercial does not also include a disclaimer that the results for these clients
might not be typical and every case must be evaluated on its own merits.
Disclaimers are helpful because they can preclude a finding that a lawyer’s advertising is likely to
cause a reasonable person to form an unjustified expectation of future results. Disclaimers are not,
however, required every time the lawyer truthfully reports results for clients.
(C) Incorrect. No, because questions of taste in advertising are matters of speculation and subjective judgment.
It is true that the rules of professional conduct do not regulate taste. These commercials may be
tasteless, but the problem under the rules is whether they are misleading. If a reasonable person
would form an unjustified expectation of similar results as a result of seeing one of these commercials, the lawyer can be disciplined—not for being tasteless, but for being misleading.
(D) Incorrect. No, as long as the amounts on the checks accurately reflect the net proceeds that went to
the clients as the result of the lawyer’s services.
Lawyer advertising must be truthful, but that is not enough. Even truthful advertising can lead to
discipline if it is misleading. These commercials would be misleading if they caused a reasonable
person to form an unjustified expectation of similar results.
Explanation: Question 4
The correct answer is: (B) Yes, because the lawyer knowingly made a false statement of material fact in
the bar admissions process.
Model Rule 8.1 forbids applicants for admission to the bar from knowingly making false statements of material fact. This lawyer knew that she had misrepresented her criminal history when she was admitted to law
school, and then as an applicant she misrepresented the truthfulness of her law school application. Now,
as a member of the bar, she is subject to discipline for her false statement in the bar admission process.
(A) Incorrect. Yes, because the lawyer was convicted of a crime that demeans the public image of the
legal profession.
Commission of some crimes is a basis for discipline, but there is no general rule that states that
conviction for crimes that demean the profession is a basis for discipline. Furthermore, it is the commission of the crime rather than the conviction that matters.
(C) Incorrect. No, because the lawyer was not a member of the bar at the time the law school and bar
applications were completed.
Lawyers are subject to discipline for some actions they take before they become members of the
bar. In particular, material misrepresentation in a bar application subjects the applicant to later discipline if the applicant is admitted to the bar.
314
ANSWERS AND ANSWER EXPLANATIONS
(D) Incorrect. No, because the omission and conviction do not reflect adversely on the lawyer’s honesty,
trustworthiness, or fitness to practice law.
The disciplinary issue is the misrepresentation that the law school application was truthful. The lawyer is not subject to discipline for being drunk in public as a college student. The lawyer is subject
to discipline for lying about whether she revealed that fact in her law school application. Moreover,
by misrepresenting the truthfulness of her law school application on her bar application, the lawyer
is not giving the admissions board the opportunity to conclude on their own whether being drunk in
public as a college student actually does reflect adversely on the lawyer’s honesty, trustworthiness,
or fitness to practice law.
Explanation: Question 5
The correct answer is: (A) Yes, if other law makes the attorney’s actions unlawful.
Lawyers are not permitted unlawfully to obstruct another’s access to evidence or to conceal unlawfully
material having potential evidentiary value. By the use of the word “unlawfully,” the rules of conduct incorporate standards that come from elsewhere, such as statutes relating to obstruction of justice. Although
the conduct described probably would be unlawful, it is proper to say that the lawyer’s conduct subjects
him to discipline only if other law makes what he did unlawful.
(B) Incorrect. Yes, because the lawyer was required to reveal the books in order to mitigate or rectify
substantial injury to the financial interests of another resulting from the client’s commission of a
crime or fraud.
Model Rule 1.6 permits a lawyer to reveal information relating to the representation of a client to the
extent the lawyer reasonably believes necessary to prevent, mitigate, or rectify substantial injury to
the financial interests of another that is reasonably certain to result or has resulted from the client’s
commission of a crime or fraud in furtherance of which the client has used the lawyer’s services.
However revealing confidential information in such circumstances is not mandated by this rule but
is merely permitted. The lawyer will not be subject to discipline for something over which he has
discretion over.
(C) Incorrect. No, because the books were subject to the attorney-client privilege.
The books are not subject to the attorney-client privilege. The privilege protects communications between lawyers and clients, not the physical evidence of crime. The client might assert that the material was privileged in the client’s possession, perhaps by the privilege against self-incrimination, but
delivering the material to the lawyer will not make it privileged. Otherwise, lawyers would frequently
become the repositories for the fruits, instrumentalities and evidence of client crime.
(D) Incorrect. No, because the lawyer did not alter or destroy the evidence.
If it is done unlawfully, concealing evidence is just as much a violation as destroying or altering it.
The central question is whether what the lawyer did was unlawful under other law.
Explanation: Question 6
The correct answer is: (C) No, because the lawyer had discretion under these circumstances to take
reasonably necessary protective action to help his client.
Attorneys are empowered to take protective action under some special circumstances when the
client has diminished capacity [MR 1.14]. Those circumstances are present here because the client not only has such diminished capacity, but in the view of the lawyer, is at risk of substantial
financial harm if no action is taken and cannot adequately protect himself. The protective action
that the lawyer is permitted to take includes consulting with family members. Thus, the lawyer’s
action was appropriate.
315
PRACTICE TEST 2
(A) Incorrect. Yes, because the attorney revealed confidential information relating to the representation
of his client.
Usually, lawyers may not reveal information relating to the representation of clients to others, including to family members. However, under these special circumstances the attorney is taking authorized protective action to protect a client with diminished capacity. The lawyer is impliedly authorized
to make the disclosures necessary to the protective action that the lawyer is taking.
(B) Incorrect. Yes, because the attorney was required to withdraw immediately upon being fired by his client.
The general rule is that lawyers must withdraw when the client fires them. Here, however, the client’s
decision to fire the lawyer comes after the stroke, at a time when the client has severely diminished
capacity. The lawyer is permitted to take protective action for the client, despite the client’s wishes,
when a client lacks the mental capacity to discharge the lawyer. Thus, this answer is incorrect.
(D) Incorrect. No, because the participation of the client’s children was necessary to assist the lawyer in
the representation of the client.
Clients with diminished capacity, such as elderly clients, often involve their children in the client’s
interactions with the lawyer. When such assistance is necessary to the representation, the presence
of the children generally does not affect the attorney-client privilege. Here, however, the lawyer, rather than the client, is the one who involved the children. That decision is justified under the extreme
circumstances described in the question, but it is not generally true that a lawyer may reveal confidential information to the children of a client with diminished capacity without the client’s permission.
Explanation: Question 7
The correct answer is: (A) Yes, because she personally represented a client despite the existence of a
conflict between that client and another client of the firm.
The junior associate rendered legal services to the vice president at a time when the interests of the vice president and an existing client of the firm were directly adverse. The lawyer, therefore, undertook a representation
when there was a conflict of interest. Although often junior lawyers can rely upon their senior colleagues to
resolve difficult questions of professional responsibility, this is not one of those situations. The junior lawyer
can rely on the senior partner only if the senior partner reaches a reasonable resolution of an arguable question of professional duty. This is a clear conflict, and to conclude that it is permissible to represent a new client
with interests that are diametrically opposed to the interests of an existing client is not a reasonable resolution
of what is actually a clear question of professional duty. Therefore, this is the correct answer to this question.
(B) Incorrect. Yes, because the junior associate is vicariously liable for the senior partner’s violation of
the conflict of interest rules.
More senior lawyers can, in some circumstances, be vicariously liable for the transgressions of lawyers that they supervise or direct. Junior lawyers, however, are not vicariously liable for the professional misconduct of their seniors. Therefore, this is not a correct answer choice.
(C) Incorrect. No, because the junior associate followed the senior partner’s instructions.
Junior lawyers are bound by the rules of professional conduct. They can follow instructions from
senior lawyers on questions of professional responsibility without risking discipline only if the senior
lawyer’s instructions involve a reasonable resolution of an arguable question of professional duty.
This is not such a situation, and therefore, this answer choice is incorrect.
(D) Incorrect. No, because the senior partner’s decision that the firm could represent the vice president and
the existing corporate client was a reasonable resolution of an arguable question of professional duty.
If the senior lawyer’s instructions were a reasonable resolution of an arguable question of professional duty, then the junior lawyer would not be subject to discipline. However, the senior lawyer has
316
ANSWERS AND ANSWER EXPLANATIONS
undertaken, with the assistance of the junior lawyer, to help a new client economically destroy an
existing client. The interests of the new client and the existing client are directly adverse, and therefore the firm should not have undertaken the new representation. This is not a close call.
Explanation: Question 8
The correct answer is: (A) Yes, because she has impugned the integrity of the judge with reckless disregard for the truth of her allegations.
Model Rule 8.2 regulates what attorneys may say about judges. Although lawyers are in a unique position
to make the public aware about issues that relate to the performance of judges, that same position raises
the danger that a lawyer’s comments could unfairly undermine public confidence in the courts. Lawyers,
therefore, may make public comments about judges but may not make statements that they know to be
false or with reckless disregard as to their truthfulness. This lawyer has accused a judge of being corrupt
on the basis of nothing more than mere suspicion. The lawyer has spoken with reckless disregard as to
the truth of the allegations and is therefore subject to discipline.
(B) Incorrect. Yes, because the comments undermine public faith in the administration of justice.
This answer is overbroad. If the lawyer knew that the judge was in fact corrupt, and said so, then
surely the lawyer would undermine public confidence in the courts. The lawyer would not be subject
to discipline, however, because the lawyer’s statements would be true. The lawyer in fact would be
doing a public service by exposing corruption in the judicial system.
(C) Incorrect. No, because the rules of conduct only regulate commercial speech and do not regulate
lawyer speech about the judicial system.
The rules of conduct regulate both types of speech. The rules relating to advertising and solicitation
regulate commercial speech, while Model Rule 8.2 regulates attorneys’ speech about judges and
other public legal officers.
(D) Incorrect. No, because a lawyer’s honest and candid opinions about judges contribute to improving
the administration of justice.
It is true that a lawyer’s honest and candid opinions about judges can contribute to improvement of
the judicial system, but by the same token reckless statements can do great harm. If a lawyer makes
statements knowing they are false or, as here, with reckless disregard as to their truthfulness, the
lawyer unjustly undermines the legitimacy of the courts.
Explanation: Question 9
The correct answer is: (D) No, unless the former client gives informed written consent to the new representation.
The debtor is a former client of the lawyer, and therefore the lawyer may not represent the bank if its interests are materially adverse to the debtor and the bank’s matter is the same or substantially related to the
matter that the lawyer handled for the debtor. Matters will be deemed substantially related if in the usual
course of representing the client on such a matter, the lawyer would have learned specific confidential
information that would be useful in the new representation. A lawyer who does an estate plan for a client
usually would learn about all of the client’s assets, and that information would be useful to the bank in a
fraudulent conveyance matter. Therefore, the lawyer has a conflict of interest. The only cure would be
consent of the debtor, confirmed in writing.
(A) Incorrect. Yes, because bankruptcy and estate planning are not substantially related matters.
The two matters are substantially related because the estate planning lawyer normally would learn
specific confidential information that would be useful in the fraudulent conveyance action. The two
matters need not be similar types of matters. The key is what information the lawyer would normally
learn in the first matter and how useful it would be in the second.
317
PRACTICE TEST 2
(B) Incorrect. Yes, unless the former client can demonstrate that the lawyer learned in the prior representation specific information that would be relevant to the bankruptcy proceeding.
The former client is under no duty to establish that relevant confidential information was actually
conveyed to the lawyer. Such a duty would undermine the purpose of the rule, which is to protect the
client’s confidential information. The question is not what was actually transmitted but what information would a lawyer in such a matter have normally obtained.
(C) Incorrect. No, because the lawyer formerly represented the debtor.
It would not be enough simply to say that the lawyer formerly represented the debtor. If the matters
are not the same or substantially related, a lawyer is free to undertake a new representation adverse
to a former client. Also, consent of the former client, confirmed in writing, would cure the conflict.
Explanation: Question 10
The correct answer is: (D) No, because the attorney was permitted to reveal the information in order to
defend himself against the possibility of an indictment for money laundering.
The lawyer revealed confidential client information, but such revelation is permitted if the lawyer reasonably believes it to be necessary to defend the lawyer from the allegations of criminal conduct. The lawyer
need not wait for the indictment to reveal the information to defend himself.
(A) Incorrect. Yes, because the lawyer revealed confidential client information to the potential detriment
of his clients.
Generally, lawyers are not permitted to reveal confidential client information. However, this situation
involves an exception to that general rule. A lawyer may reveal confidential client information if the
lawyer reasonably believes it to be necessary to defend himself against a charge of criminal activity
involving the lawyer’s representation of the client.
(B) Incorrect. Yes, because the lawyer did not wait for the grand jury to indict him before using confidential client information to defend himself.
The lawyer’s right to use the client information arises when the charges are made and not when
proceeding begins or an indictment is handed down. The lawyer was under no obligation to wait.
(C) Incorrect. No, because the particular information that the lawyer revealed came from third parties
and therefore was not protected by the attorney-client privilege.
The principle at stake here is not the attorney-client privilege. It is instead the lawyer’s general
obligation to keep information relating to the representation, including information that comes from
third parties, confidential. The lawyer is permitted to reveal this information to defend himself, but it
is irrelevant that this confidential information would not be protected by the attorney client privilege.
Explanation: Question 11
The correct answer is: (D) No, because there was no time to consult with the client about whether or not
to object to the ex-wife’s testimony.
Lawyers must reasonably consult with their clients about the means to be used in accomplishing the client’s objectives. Here, however, there was no time in which the lawyer could have consulted the client.
The lawyer had no choice but to make a decision and act without consultation of the client.
(A) Incorrect. Yes, because a lawyer is obligated to consult with the client about the means to be used
in achieving the client’s objectives.
The lawyer’s general duty of consultation about means is a duty to reasonably consult. Under circumstances like those in the question, the lawyer must make a quick decision about means. Because there is no time to consult, the lawyer is under no duty to do so.
318
ANSWERS AND ANSWER EXPLANATIONS
(B) Incorrect. Yes, because the lawyer’s decision not to object led to the client’s conviction.
Lawyers are not subject to discipline merely because they make tactical decisions that do not work
out well for the client. The lawyer’s duty of competence is not a duty to be right in all of his judgment
calls or always to win.
(C) Incorrect. No, because a lawyer is not required to consult with the client about the means that the
lawyer will utilize in the course of representing the client.
This answer is too broad. A lawyer is required to reasonably consult with the client about the means
by which the client’s objectives are to be accomplished [MR 1.4]. In some situations, like in this fact
pattern, when an immediate decision must be made during a trial, the exigency of the situation may
require the lawyer to act without prior consultation with the client [MR 1.4, cmt. [3]]. However, this is
a small exception to the general rule that a lawyer must reasonably consult with the client about the
means by which the client’s objectives are to be pursued.
Explanation: Question 12
The correct answer is: (B) Yes, because the reimbursement and honorarium would not appear to a reasonable person to undermine the judge’s independence, integrity, or impartiality.
Judges are encouraged to engage in extrajudicial activities that concern the law and the judicial system.
A lecture and a law review article about new rules of civil procedure would therefore be an appropriate
activity for the judge. The honorarium and the reimbursement bear particular attention. Under the Code
of Judicial Conduct, a judge may accept reasonable compensation for a permitted extrajudicial activity
as long as the compensation is commensurate with the task performed. Five hundred dollars is a small
amount for the work required to prepare a law review article and to give a keynote address. As to the
expenses, judges may accept reasonable reimbursement so long as doing so does not to a reasonable
person raise a question about the judge’s independence, integrity or impartiality. Several factors in this
situation lead to the conclusion that the reimbursement would be permitted, including that the sponsor is
a law school and not a trade group and that many viewpoints will be represented. The judge may accept
reasonable reimbursement under such circumstances.
(A) Incorrect. Yes, because judges are uniquely qualified to write and speak about the administration of
justice and are therefore encouraged to participate in such activities.
Although it is true that judges are uniquely qualified to write and speak about the administration of
justice, and they are encouraged to do so, this answer is incomplete. Judges cannot in all circumstances publish or speak, even on legal topics. If the compensation was excessive, or the reimbursement was coming from a trade group, the judge’s impartiality might reasonably be questioned
and the judge could not undertake this extrajudicial activity.
(C) Incorrect. No, because judges are permitted to accept reimbursement of reasonable expenses but
may not be paid for extrajudicial activities.
Judges are permitted to be compensated for extrajudicial activities, as long as the compensation is reasonable and commensurate with the task the judge performed. Therefore, this is not
a correct answer.
(D) Incorrect. No, because the judge’s acceptance of reimbursement of expenses for staying at a luxury
resort would create an appearance of impropriety.
This answer is overbroad. There are many circumstances for the judge to consider. Although the
judge must not accept reimbursement if doing so would appear to a reasonable person to undermine the judge’s independence, impartiality or integrity, the judge is not automatically forbidden from
accepting reimbursement for any event at a luxury resort. This is a much more fact-specific inquiry,
and the code of judicial conduct lists a number of factors for the judge to consider.
319
PRACTICE TEST 2
Explanation: Question 13
The correct answer is: (D) No, because the lawyer paid the monies that were not in dispute and kept the
remainder in his trust account.
The lawyer was dealing with two types of disputes about the money. As to the attorney’s fee, the lawyer
and the client agreed that the lawyer was entitled to 10%, or $10,000. Therefore, the lawyer properly
transferred those funds to himself because they were not in dispute. The other disputes related to the
insurance company and the chiropractor. Even though the lawyer believed the claims were invalid, he
did not believe that they were frivolous. Under those circumstances, the lawyer was required to refuse to
release those funds as well. The remainder of the $100,000 indisputably belonged to the client, and the
lawyer properly distributed that $47,500 to the client.
(A) Incorrect. Yes, because the lawyer transferred money from his trust account to himself when the
reasonableness of his fee was in dispute.
The lawyer was entitled to transfer to himself that part of his fee that was not in dispute. Here, the
client agreed that 10% was a reasonable fee, and the lawyer only transferred that amount to himself.
The lawyer properly distributed the undisputed $10,000 promptly to himself.
(B) Incorrect. Yes, because the lawyer was in a position to make a good faith determination that the client was entitled to the $22,500 claimed by the insurance company and the chiropractor.
Lawyers are not supposed to unilaterally decide a dispute between a client and a third party. Under
circumstances like these, in which the claims of the third parties are not frivolous, the lawyer must
refuse to surrender the disputed property.
(C) Incorrect. No, because the lawyer only paid himself the 10% fee that the client agreed was reasonable.
This answer is only partly right. The lawyer correctly paid himself only the 10% fee that was not in
dispute. A complete answer to why the lawyer is not subject to discipline requires an explanation for
why the lawyer properly withheld not just the $20,000 of the legal fee that was in dispute but also the
combined $22,500 that the insurance company and the chiropractor claimed.
Explanation: Question 14
The correct answer is: (D) No, because the lawyer did not violate any rule of professional conduct.
The lawyer not only did not violate a rule of conduct; the lawyer would have been in violation of the rules
if he remained as counsel in the case and did not take the depositions. The lawyer believed that it was
essential for the preparation of the case to take the depositions. Part of the lawyer’s duty of competence
is a duty of adequate preparation. The lawyer would have violated this duty if he had allowed a third-party
payor like the insurance company to limit his actions. The lawyer likely will not receive payment for these
efforts, but they were required if he was going to stay in the case as the lawyer for the insured.
(A) Incorrect. Yes, because the lawyer refused to follow the instructions of the insurance company.
The insurance company is not the client. Lawyers are permitted to accept payment from third parties
under certain limited circumstances. Among those circumstances is that the lawyer must not permit
the third-party payor to interfere with the lawyer’s professional judgment. That is exactly what the
insurance company was trying to do here.
(B) Incorrect. Yes, because the lawyer exploited a fee arrangement based upon hourly billing by using
wasteful procedures.
Lawyers are not permitted to exploit an hourly billing arrangement by using wasteful procedures.
Here, however, the depositions are necessary rather than wasteful. Furthermore, the lawyer knows
when he takes the depositions that he probably will not be paid for his time. He undertakes these
actions to fulfill his duty of competence to his client rather than as a means of making more money.
320
ANSWERS AND ANSWER EXPLANATIONS
(C) Incorrect. No, because the lawyer had professional discretion to decide how many depositions need
to be taken and what expenses needed to be incurred.
Lawyers usually must consult with the client about the means to be used to fulfill the client’s objectives. In that consultation, usually the lawyer will defer to the client about expenses to be incurred. It
is thus not true to say that this decision is up to the lawyer’s professional discretion.
Explanation: Question 15
The correct answer is: (B) The lawyer immediately seeks the client’s cooperation in setting the record straight.
The lawyer has been surprised by testimony that the lawyer knows is false. Under these circumstances,
the lawyer must take reasonable remedial measures, but there is a particular order in which the lawyer
is to proceed. The first thing the lawyer is supposed to do is to remonstrate with the client and seek the
client’s cooperation to correct the testimony.
(A) Incorrect. The lawyer immediately seeks to withdraw from the representation.
The lawyer’s obligation is to take reasonable remedial measures. Although the lawyer may eventually have to seek to withdraw, that step is not to be taken immediately. The lawyer’s first step instead
is to attempt to secure the client’s cooperation in correcting the false testimony.
(C) Incorrect. The lawyer immediately informs the judge of the client’s perjury.
Informing the judge may become a necessity when a client gives false testimony, but the lawyer should not
immediately jump to this drastic step. The lawyer should seek to have the client correct the false testimony.
If the lawyer is successful in that endeavor, the lawyer will never reach the point of having to tell the judge.
(D) Incorrect. The lawyer proceeds with the case without taking any special steps related to the client’s testimony.
The lawyer has an obligation to undertake reasonable remedial measures when the lawyer knows
that his client has given false testimony. Doing nothing is not an option.
Explanation: Question 16
The correct answer is: (A) Yes, because the brother has made it known to the lawyer that the brother does
not wish to be solicited.
Model Rule 7.3 permits lawyers generally to solicit family members. However, that permission does not
apply to solicitation of a family member who has made it known to the lawyer that the family member
does not desire to be solicited. Here, that is exactly what the brother has done, and the lawyer’s real-time
electronic contact for the purpose of seeking employment for the lawyer’s pecuniary gain is not permitted.
(B) Incorrect. Yes, because the lawyer is soliciting professional employment from a prospective client for
pecuniary gain.
This answer is not sufficiently specific to these circumstances. But for the prior instruction by the
brother not to solicit him again, the lawyer would be permitted to solicit his brother for business. It
is the fact that the brother has made known his desire not to be solicited that makes the lawyer’s
conduct improper, not the mere act of solicitation itself.
(C) Incorrect. No, because the solicitation was made to a close family member.
Usually soliciting a close family member like a brother is permitted. However, once the brother has
made known his desire not to be solicited, the lawyer may not solicit the brother’s business, despite
the family relationship.
(D) Incorrect. No, because sending an instant message is not solicitation.
Solicitation can be in person, by live telephone contact, or by real-time electronic communication.
An instant message that is sent during a series of exchanges between the brothers is a real-time
321
PRACTICE TEST 2
electronic contact, much like a message sent to a prospective client in an internet chat room. The
instant message is solicitation.
Explanation: Question 17
The correct answer is: (B) Yes, because the lawyer must maintain a normal client-lawyer relationship as
far as reasonably possible.
A lawyer who has a client with diminished capacity must make a distinction between one who needs protection and one who does not. Here, because the lawyer does not believe that the client is in danger of
substantial harm, the lawyer does not have the option, much less the mandate, to take protective action.
The Model Rules simply direct the lawyer to have as normal a lawyer-client relationship as possible. This
might involve the assistance of family members, or dealing with the client only at certain times of day, or
other accommodations, but the goal is to come as close as possible to a normal relationship.
(A) Incorrect. Yes, because the lawyer may make decisions and take actions that are in the best interests of the client.
This is not a client for whom any guardian has been appointed. Nor are there circumstances here that
would justify the lawyer in taking protective action. By the lawyer’s own judgment, the client is not in
any danger. The lawyer, therefore, must maintain as normal an attorney-client relationship as possible
and look to the client for decisions. The lawyer may not appoint himself guardian of the client.
(C) Incorrect. No, because a court has not determined that the young man is competent to engage his
own attorney.
This is not the best answer because there is no reason that a court would need to determine the young
man to be competent to engage his own attorney. The lawyer may instead act on his own sense of
whether he and the client can work together unassisted or whether he should take protective action. The
lawyer does not believe that the diminished capacity of his client puts him at risk of any substantial harm.
(D) Incorrect. No, because the circumstances require the lawyer to take reasonable protective action,
such as seeking the appointment of a guardian.
The Model Rules never require a lawyer to take protective action. The lawyer has the option to do
so if certain conditions are met, but even those conditions are not present here. The lawyer does
not believe that the client is in any danger. Under these circumstances, the lawyer must maintain as
normal an attorney-client relationship as possible and look to the client for decisions.
Explanation: Question 18
The correct answer is: (D) No, as long as the agreement was not exclusive.
Lawyers generally may not give another person anything of value in exchange for that person recommending the lawyer’s services. One exception to that general rule is a reciprocal referral arrangement
like this one. The arrangement is permissible if the clients are informed of the existence and nature of the
agreement and the referral agreement is not exclusive. In this question, it is given that sufficient disclosures have been provided to the clients. Therefore, the only condition that needs to be fulfilled to make
the arrangement permissible is for the agreement not to be exclusive. Since this answer contemplates
that missing fact, it is the correct answer.
(A) Incorrect. Yes, because the lawyer gave something of value to the realtor in exchange for recommending the lawyer’s services.
The lawyer did give something of value in exchange for the realtor’s referrals. Although it is generally
impermissible to do that, there is an exception that may apply here. A reciprocal referral arrangement is permissible if it is not exclusive and the clients are informed of the existence and nature of
the agreement. Thus, this is not the best answer choice.
322
ANSWERS AND ANSWER EXPLANATIONS
(B) Incorrect. Yes, because the realtor is not a qualified lawyer referral service.
One exception to the general rule against giving a person something of value in exchange for referrals is that a lawyer may pay a qualified lawyer referral service. The realtor obviously is not such a
service, but the lawyer referral service is not the only exception to the general rule against giving
someone something of value in exchange for a referral. A proper reciprocal referral arrangement is
another exception to that general rule, and the agreement in the question will qualify as long as it is
not exclusive. Thus, this is not the best answer to this question.
(C) Incorrect. No, because the lawyer properly informed all of her clients about the arrangement.
Informing the clients about the existence and nature of the agreement is only one of the requirements for a reciprocal referral arrangement to be permissible. The agreement must also not be
exclusive. This answer, therefore, is incomplete.
Explanation: Question 19
The correct answer is: (C) No, because it would violate his duty of loyalty to a client.
Lawyers are encouraged to participate in legal services organizations, even ones that have interests that
may diverge from their client’s interests [MR 6.3]. Here, the organization is contemplating an action that
would adversely affect the lawyer’s client. The lawyer favors it. However, for the lawyer to participate
directly in such an action would be incompatible with the lawyer’s duty of loyalty to the tannery, and therefore the lawyer may not do so.
(A) Incorrect. Yes, but he must reveal that he has a client whose material interests will be affected by the
vote and identify the client.
Knowledge by the other members of the organization of the client, or even the client’s identity, does
not address the underlying issue. The issue is that the lawyer must not act disloyally to the client
who wants to build a tannery on the river. To vote in favor of the zero-growth policy would be disloyal.
(B) Incorrect. Yes, provided that he reveals that he has a client whose material interests will be affected
by the vote.
The problem here is that the organization’s actions would harm the client by encouraging opposition to a project that the client seeks to undertake. The lawyer favors the policy but would be acting
disloyally to the client if he participates in a decision that may be detrimental to the client. That is true
whether or not the other members of the organization know that he has a client who will be affected.
Thus, this answer is incorrect.
(D) Incorrect. No, because he must resign from the board of the organization due to the conflict of interest between the client and the legal services organization.
Requiring resignation under these circumstances would discourage lawyers from being members
of such legal services organizations. The Model Rules seek instead to encourage such participation
[MR 6.3]. The lawyer’s duty of loyalty is sufficiently protected by forbidding the lawyer from participating in this decision, when the decision would be detrimental to the client’s interests. Thus, this
answer is incorrect.
Explanation: Question 20
The correct answer is: (D) No, because it is protected by the confidentiality provisions of the rules of professional conduct and the attorney-client privilege.
The lawyer learned about the client’s past deeds in a private conversation in which the client was seeking
legal assistance. The communication, therefore, would be protected by both the attorney-client privilege
and the attorney’s duty of confidentiality under the rules of conduct. No exception to the duty of confiden-
323
PRACTICE TEST 2
tiality applies, and the crime-fraud exception to the privilege does not apply to conversations about past
crimes in which the lawyer’s services were not used [MR 1.6]. The lawyer may not reveal the information.
(A) Incorrect. Yes, because the crime-fraud exception to the attorney-client privilege voids any protection that the client’s statements would otherwise have had.
The crime-fraud exception to the attorney-client privilege relates to communications in furtherance
of a future crime. This conversation was about a past crime that did not make use of the lawyer’s
services [MR 1.6]. Therefore, it does not fall within the crime-fraud exception.
(B) Incorrect. Yes, because doing so is necessary to mitigate the financial harm that will otherwise befall
the investors in the scheme.
Although there are exceptions to the duty of confidentiality relating to the prevention of financial
harm to others resulting from client crime or fraud, the exceptions both require that the crime or fraud
be perpetrated by the use of the lawyer’s services [MR 1.6]. Here, the lawyer did not assist the client
in the Ponzi scheme and thus, this is not the correct answer to this question.
(C) Incorrect. No, because he continues to represent the client.
It is irrelevant to this issue whether the lawyer continues to represent the client. The duty of confidentiality and the attorney-client privilege both survive the termination of the attorney-client relationship.
Therefore, this is not a correct answer.
Explanation: Question 21
The correct answer is: (A) Yes, because the lawyer engaged in conduct intended to disrupt a tribunal.
A lawyer is prohibited from engaging in conduct intended to disrupt a tribunal [MR 3.5]. The lawyer engaged
in his tactics for the purpose of distracting and confounding his adversaries. The theatrical and belligerent
antics were certainly designed to disrupt the proceeding. The only issue is whether a deposition in a conference room is a “tribunal” for purposes of the rule. It is clear under the comments that disrupting a deposition
constitutes disrupting a tribunal for purposes of Rule 3.5. Thus, this is the best answer to this question.
(B) Incorrect. Yes, because the lawyer violated the civility requirement of the rules of professional conduct.
Lawyers are encouraged in numerous ways, and for good reasons, to be civil with each other. There
is not, however, a general “civility requirement” in the Model Rules. Thus, this answer is incorrect.
(C) Incorrect. No, because a deposition in a lawyer’s conference room is not a proceeding before a tribunal.
The comments to Model Rule 3.5 state that a tribunal includes a deposition. Although this might
seem counterintuitive, it is important to remember that few cases reach a tribunal in the sense of
getting to trial in a courtroom. Discovery is the primary battleground in civil litigation, and to construe
a “tribunal” to include a deposition, and to forbid conduct intended to disrupt the tribunal, may help
make the discovery process proceed more smoothly. Therefore, this answer is incorrect.
(D) Incorrect. No, because the lawyer was zealously representing his client within the bounds of the law.
Lawyers are supposed to be zealous for their clients, but there are limits. Conduct that disrupts the
proceedings makes them last longer and makes them more expensive. The client’s right to a zealous champion does not include the kind of strategic incivility described in the question. Therefore,
this is not the best answer to this question.
Explanation: Question 22
The correct answer is: (B) The lawyer’s practice would suffer if potential clients knew that he was the
lawyer who represented this defendant.
Lawyers are permitted to seek to avoid a court appointment for good cause, and the rule sets forth a nonexclusive list of such circumstances [MR 6.2]. Although good cause would exist for a lawyer who would
324
ANSWERS AND ANSWER EXPLANATIONS
suffer an unreasonable financial burden, it is simply not enough to say that representing an unpopular
defendant would harm the client’s practice. Lawyers should accept a fair share of unpopular matters or
clients. If an attorney could seek to avoid an appointment just because his practice would suffer, it is likely
that unpopular clients would find it even harder to obtain representation than it is today. Therefore, this is
the correct answer to this question.
(A) Incorrect. The lawyer is incompetent to defend a client who is accused of serious criminal charges.
Good cause to seek to avoid a court appointment exists if the representation would result in a violation of the rules of conduct. Lawyers have an obligation under the rules to render competent representation, and if the lawyer cannot do that, even through study or the association of an experienced
lawyer, then the lawyer not only may, but should seek to avoid the appointment.
(C) Incorrect. The lawyer is so repulsed by the client’s alleged deeds that the lawyer’s ability to represent the client would be impaired.
Although attorneys are expected to represent unpopular clients, a lawyer’s repugnance for his own
client could be sufficiently deep enough that the lawyer just could not overcome it and be an effective
advocate. Under those circumstances, a lawyer may seek to avoid a court appointment.
(D) Incorrect. The lawyer is a solo practitioner who would suffer an unreasonable financial burden if he
had to represent this defendant rather than paying clients.
Taking any court appointments is likely to result in some financial burden for the lawyer, but the
lawyer may seek to avoid the appointment if that burden would be unreasonable. A solo practitioner
might find it particularly difficult to undertake a large appointed case simply because the lawyer has
no associate or partner to cover the regular clients while the lawyer represents the appointed client.
Explanation: Question 23
The correct answer is: (D) No, because the lawyer was taking reasonable remedial measures to counter
criminal activity related to the proceeding.
A lawyer in a case must take reasonable remedial measures when the lawyer knows that any person has
engaged in criminal conduct related to the proceeding. The threat to the juror is obviously criminal and
related to the proceeding. Reasonable remedial measures include revealing the conduct to the judge.
Indeed, it is hard to imagine any other course of action that could have remedied the situation. Thus, this
is the best answer to this question.
(A) Incorrect. Yes, because the illegal actions were undertaken by others without the client’s knowledge
or encouragement.
It does not matter that the client did not know or encourage the actions. If the lawyer knows that any
person has engaged in criminal conduct related to the proceeding, the lawyer must take reasonable
remedial measures. Thus, this answer choice is incorrect.
(B) Incorrect. Yes, because the lawyer revealed information relating to the representation of his client
without authority to do so.
When a lawyer in a case is required to take reasonable remedial measures to counteract criminal
behavior related to a proceeding, the lawyer is authorized by law to reveal confidential client information. Thus, there is no violation of the duty of confidentiality when the lawyer tells the judge. Accordingly, this answer is incorrect.
(C) Incorrect. No, because the lawyer is an officer of the court with the duty to see that justice is done.
In many senses, lawyers are officers of the court, but this answer overstates the lawyer’s obligation. This lawyer has a specific obligation to seek to remedy specific criminal conduct related to
the proceeding. There is no general duty for a criminal defense lawyer to see that justice is done.
325
PRACTICE TEST 2
Indeed, such a duty would often conflict directly with the lawyer’s duty to mount a vigorous defense for his or her client.
Explanation: Question 24
The correct answer is: (C) No, because the information about the husband’s actions as a lawyer was
confidential in that it related to the representation of the wife.
A lawyer is required to report another lawyer’s misconduct to the appropriate state authority when the lawyer
knows that the other lawyer has committed a violation of the rules that raises a substantial question as to the
other lawyer’s honesty, trustworthiness, or fitness as a lawyer in other respects [MR 8.3]. However, one exception
to the obligation to report is that the information about the other lawyer is information relating to the representation
of a client and thus confidential. Here, the lawyer learned about the husband in the course of representing the
wife, and therefore the lawyer was under no obligation to report this confidential information to the bar.
(A) Incorrect. Yes, because the lawyer was obligated to report a fellow lawyer to the bar when the lawyer knew
that the husband had committed a criminal act that reflected adversely on the lawyer’s fitness as a lawyer.
The other lawyer did commit such a criminal act, and that is misconduct under the Model Rules.
Knowledge of such a fellow lawyer’s conduct generally would give rise to a duty to report, but this
lawyer learned about the criminal activity in the course of representing the wife. Because the information relating to the representation of the wife is confidential, the lawyer is under no duty to report
his fellow lawyer’s crimes.
(B) Incorrect. Yes, because the lawyer was obligated to report a fellow lawyer to the bar when the lawyer
knew that the husband had engaged in conduct involving dishonesty.
Taking money from a firm trust account is dishonest, and it constitutes a violation of the rules of
conduct. Furthermore, it is the kind of violation that reflects adversely on that lawyer’s honesty,
trustworthiness or fitness, and therefore under other circumstances, it would have to be reported to
the bar. However, the lawyer has no duty to report such information if he learned it, as he did here,
in the course of representing a client. Therefore, this answer is incorrect.
(D) Incorrect. No, because the other lawyer had entered a lawyer’s assistance program.
Lawyers who gather information about another lawyer through participation in a lawyer’s assistance
program are under no obligation to report that other lawyer, even if they learn that the other lawyer
violated the rules of conduct in ways that reflect adversely on that other lawyer’s fitness. However,
entry into a lawyer’s assistance program does not give a lawyer immunity from being reported by
other lawyers who learn of the misconduct outside of participation in a lawyer’s assistance program.
The lawyer for the wife in this question was not participating in such a program when he learned
about the husband’s misconduct. But for the fact that the lawyer learned the information in the
course of representing a client, the lawyer would have had to report to the state bar, despite the husband’s entry into a lawyer’s assistance program. Thus, this is not the best answer to this question.
Explanation: Question 25
The correct answer is: (B) Remove the young lawyer from the case and assign it to other lawyers in the firm.
The lawyer has a conflict of interest between her personal beliefs and the representation of the client.
However, because the conflict is with the lawyer’s personal beliefs, it will not be imputed to other lawyers
in the firm. The firm may simply reassign the case internally.
(A) Incorrect. Obtain the informed consent of the client and allow the associate to continue handling the case.
Informed consent will not cure this problem because it is a nonconsentable conflict. The lawyer
believes that, no matter what, she will not be able to render diligent representation for the client.
Therefore, seeking consent for her continued participation is not an option.
326
ANSWERS AND ANSWER EXPLANATIONS
(C) Incorrect. Instruct the young lawyer to continue handling the case because her conflict is merely with
her personal beliefs.
A conflict with personal beliefs can still be a conflict of interest. The lawyer has a personal interest
in conforming her actions to her beliefs, and if the beliefs are strong enough, as they apparently are
here, that interest can interfere with the representation of certain clients. Thus, this is not the correct
answer to this question.
(D) Incorrect. Allow the young lawyer to continue to represent the client but screen her from any part of
the case that violates her personal beliefs.
The lawyer has concluded that she cannot provide diligent representation to this client. That presents a nonconsentable conflict and forbids her participation. Furthermore, screening is an option for
some kinds of conflicts, but a screen is used to keep a lawyer or staff person away from a matter
entirely, not away from parts of it. Thus, this is not the best answer to this question.
Explanation: Question 26
The correct answer is: (A) Yes, because the lawyer gathered the information as part of an investigation
of an alleged violation of the law.
A lawyer for an entity may disclose confidential client information to protect the client if the Board of Directors refuses to do so and other conditions are met [MR 1.13]. However, that authority does not extend to
information relating to the representation of an attorney who is investigating an alleged violation of law
by the entity. Because that is what this lawyer was doing, the exception does not apply, and the lawyer is
bound to keep the information confidential.
(B) Incorrect. Yes, because the lawyer’s services were not used in the commission of the officer’s crimes.
Two exceptions to the general rule of confidentiality require that the lawyer’s services have been
used before the lawyer may disclose. These exceptions do not apply to this question because the
lawyer revealed the confidential information not to protect third parties from a crime or a fraud but
rather to protect his own client. The only authority for such a revelation is Model Rule 1.13, and the
exception in that rule does not depend upon whether the lawyer’s services have been used.
(C) Incorrect. No, because the lawyer reported the illegal activities for the purpose of protecting his client.
Model Rule 1.13 permits disclosure for this purpose under certain circumstances. However, that
permission does not extend to information gathered in the course of an attorney’s investigation of
illegal activity by the client.
(D) Incorrect. No, because the lawyer was required to do so in order to avoid assisting in the officer’s
past illegal activity.
Model Rule 4.1(b) mandates that a lawyer reveal a client’s confidential information when doing so is
necessary to avoid assisting in a client crime or fraud. In this scenario, however, there is no indication that the lawyer assisted the client’s illegal activities in any way. It could not, therefore, have been
necessary to tell the newspaper in order to avoid rendering such assistance.
Explanation: Question 27
The correct answer is: (D) No, because Mega waived the conflict in advance.
Under some circumstances, an advance waiver of a conflict of interest will be effective. Here, the client,
an experienced consumer of legal services, agreed to the advance waiver after consultation with its inhouse counsel, and waived only conflicts arising from matters unrelated to the law firm’s representation
of the client. These are all circumstances that support the effectiveness of the advance waiver. Because
the conflict has been waived, the court should not grant the motion to disqualify the firm.
327
PRACTICE TEST 2
(A) Incorrect. Yes, because conflicts in one office of a multi-state firm are imputed to lawyers in other
offices of the same firm.
While it is true that conflicts in one office of a multi-state firm are imputed to lawyers in the firm’s other offices,
in this question the issue is the effectiveness of the waiver rather than the existence of the conflict. Because
the client waived the conflict in advance, the firm is not disqualified. Therefore, this answer is incorrect.
(B) Incorrect. Yes, because a corporate parent and subsidiary can be considered to be the same “client”
for conflict of interest purposes.
Corporations who are part of the same corporate “family” are sometimes treated as one entity for purposes of a conflict of interest analysis. The court would have to undertake a “facts and circumstances”
test to determine whether or not that should happen in this case. However, because the client waived
the conflict in advance, it does not matter whether Mega and the subsidiary are considered one and
the same for conflicts purposes. Even if they are, the court should not grant the motion to disqualify.
(C) Incorrect. No, because the two matters are unrelated.
The fact that these two matters are unrelated has no bearing on the analysis of the conflict of interest.
Lawyers are not permitted to undertake even unrelated litigation against a current client. The rationale for
this rule is that the client is likely to feel betrayed and the lawyer-client relationship is likely to be damaged
if a lawyer represents another party that is directly adverse to the client, even in an unrelated matter.
Explanation: Question 28
The correct answer is: (B) Yes, because the attorney knowingly misrepresented the law to the third party.
The lawyer was within his rights to speak directly to an unrepresented party. However, in the course of
representing a client, a lawyer is not permitted to make a false statement of material fact or law. Here, the
lawyer deliberately misled the unrepresented party about the deadline for filing the claim. The lawyer is
therefore subject to discipline.
(A) Incorrect. Yes, because the attorney did not immediately terminate the conversation with an unrepresented party.
Lawyers are required to immediately terminate conversations that are initiated by adverse parties
who are represented by counsel. In this case, however, the creditor was unrepresented, and the
lawyer was free to deal directly with the creditor. The lawyer need not have immediately terminated
the conversation. Therefore, this answer is incorrect.
(C) Incorrect. No, because the attorney owed no duty to a third party whose claim was adverse to his
client’s interests.
This answer is incorrect because lawyers do owe some duties to third parties. A lawyer may not
make a false statement of material fact or law to a third person in the course of representing a client
[MR 4.1]. This lawyer violated that particular duty by misrepresenting the time frame in which the
creditor could file a claim. Thus, this answer is incorrect.
(D) Incorrect. No, because the attorney was free to speak directly to an adverse unrepresented party.
The lawyer was free to speak directly to the unrepresented third party. The lawyer was not, however,
free to lie to the unrepresented third party about the deadline. The deliberately deceptive content of
the conversation is the problem and thus, this answer is incorrect.
Explanation: Question 29
The correct answer is: (C) No, if the lawyer reasonably believed that the convicted man faced reasonably
certain death or substantial bodily harm if he went to prison for murdering the gang leader.
328
ANSWERS AND ANSWER EXPLANATIONS
The information about the murder was information that related to the lawyer’s representation of her client. She therefore could not reveal it without authorization from her client, implied authorization, or an
exception. The client refused permission, and revealing the information to the client’s detriment would not
be impliedly authorized. The one exception upon which the lawyer might be able to rely concerns reasonably certain death or substantial bodily harm. The convicted man is about to go to prison for murdering
a gang leader, and members of the gang are in prison. If the lawyer reasonably believed under all the
circumstances that the convicted man faced reasonably certain death or substantial bodily harm in prison,
then she had the authority to reveal the information. Therefore, this is the correct answer to this question.
(A) Incorrect. Yes, because the lawyer revealed confidential client information without client permission.
Client permission is not the only circumstance under which the lawyer would have the authority to
reveal the confidential information. If one of the exceptions to confidentiality applies, then the lawyer
may reveal confidential client information without client permission. Thus, this answer is incorrect.
(B) Incorrect. Yes, because the client revealed information that was covered by the attorney-client privilege.
Because the information came to the lawyer as a communication from her client, it was covered by
the attorney-client privilege. Therefore, the lawyer could not have been compelled to testify to the
communication. However, the rules of professional conduct explicitly permit lawyers to reveal confidential information under certain circumstances. If an exception applied, the lawyer had the right to
reveal the privileged conversation.
(D) Incorrect. No, because revealing the client’s confession was necessary to avoid a fundamental miscarriage of justice.
It is true that revealing the client’s information prevented a fundamental miscarriage of justice. Such
a miscarriage, however, is not one of the exceptions to the general rule against revealing confidential client information. Unless one of the exceptions applies, the lawyer would have to remain silent
even if a miscarriage of justice occurs. Thus, this is not the best answer to this question.
Explanation: Question 30
The correct answer is: (B) Yes, because a lawyer with knowledge of Widget’s confidential information
about this matter is still with Law Firm A.
Law Firm A formerly represented Widget in the same matter, namely, the sale of Doodad’s assets. That normally would be enough to establish a conflict of interest. There is an exception to the former client conflict rules
when a lawyer leaves a firm and takes all of the client’s business with him or her. If that situation occurs, and no
lawyer is left in the firm with confidential information about the client that is material to a matter, then the firm is
free to undertake new representation adverse to the former client, even in the same or a substantially related
matter. Here, however, there is an associate left with Law Firm A who worked for Widget on this transaction, so
the firm has a conflict of interest that would keep it from representing Doodad in this deal.
(A) Incorrect. Yes, because Law Firm A once represented Widget in this same transaction.
Law Firm A did represent Widget in this deal, but that is not enough to establish that there is a conflict of interest in undertaking the representation of Doodad. If the lawyer who left and took Widget’s
business with him had taken all of the lawyers in the firm who had confidential information about
Widget related to this deal, then Law Firm A would not have a conflict of interest.
(C) Incorrect. No, because Law Firm A can screen the junior associate from any involvement in the representation of Doodad, not apportion him any compensation from the Doodad representation, and
give written notice of the screening procedures to Widget.
This is not one of the conflict issues that is solved by screening. The only way to undertake this representation would be to obtain the informed consent of Widget in writing [MR 1.7]. It is unlikely that
Widget would consent, and therefore, this answer is not the best answer to this question.
329
PRACTICE TEST 2
(D) Incorrect. No, because Law Firm A no longer represents the Widget Corporation.
Lawyers may have conflicts not just with the representation of current clients, but also with respect
to representation that is adverse to former clients. Generally, a lawyer has a conflict of interest in
representing a client whose interests are materially adverse to a former client in a matter that is the
same or substantially related to the matter that the lawyer handled for the former client. It is not true,
therefore, to say that there is no conflict of interest just because Widget is no longer a client of Law
Firm A. Therefore, this is not the best answer to this question.
Explanation: Question 31
The correct answer is: (A) Yes, because the lawyer is required to consult with the client when the lawyer
knows that the client expects assistance not permitted by the rules of professional conduct.
Part of the lawyer’s duty of communication with the client is to consult with the client about limitations on
the lawyer’s conduct when the lawyer knows that the client expects assistance that is not permitted by the
rules of professional conduct. Here, the client clearly expects the lawyer to assist in the perpetration of a
fraud, and the rules of professional conduct do not permit the lawyer to do so. The lawyer must explain
that to the client. That explanation may make further action by the lawyer unnecessary.
(B) Incorrect. Yes, because the lawyer assisted a client in a fraudulent transaction.
The lawyer is not permitted to assist a client in conduct that the lawyer knows is fraudulent. While the
lawyer was assisting this client, he had no idea about the asbestos. Therefore, although the lawyer
assisted in a transaction that would have been a fraud if it had been completed, the lawyer did not
knowingly render any such assistance. Thus, this is not the correct answer to this question.
(C) Incorrect. No, because the lawyer was required, without any further communication with the client,
to disclose the information in order to avoid assisting the client in the perpetration of a fraud.
It is true that the lawyer must not assist a client in the perpetration of a crime or a fraud, but the lawyer
is under a duty to reveal confidential information only if doing so is necessary to avoid assisting such
a crime or a fraud. Here, there were several steps that the lawyer could have taken that might have
rendered revelation of the information unnecessary. Simply consulting with the client about the limitations on the lawyer’s conduct, which the lawyer was required to do, might have dissuaded the client.
Lawyers are permitted to discuss with a client the legal consequences of any proposed course of
conduct. If that did not work, the lawyer could have tried a “noisy withdrawal” from the representation,
and the buyer might well not have gone through with the transaction. Revealing the client’s confidential
information was premature and therefore, this is not the best answer to this question.
(D) Incorrect. No, because the lawyer was permitted to disclose the information in order to prevent the
client from causing substantial financial injury to the buyer.
Lawyers are permitted to reveal confidential information if, as here, the client has used the lawyer’s
services in a fraudulent scheme that appears reasonably likely to result in substantial financial harm
to another. However, before a lawyer takes the drastic step of revealing confidential information, the
lawyer is under a duty, where practicable, to seek to dissuade the client from the action that is making
the disclosure necessary. Here, if the lawyer had complied with his duty to consult with the client about
limitations on the lawyer’s conduct, the client may have chosen not to go forward with the fraud, in
which case the lawyer’s revelation of confidential information would have been unnecessary.
Explanation: Question 32
The correct answer is: (D) No, because the evidence tends to negate the guilt of the defendant.
This evidence is not strong, and it would be possible to argue that there is no constitutional requirement
to disclose it. However, the Model Rules impose a broader duty [MR 3.8]. Because the evidence tends to
330
ANSWERS AND ANSWER EXPLANATIONS
negate the guilt of the defendant, even slightly, the prosecutor must disclose it to the defense. Thus, this
is the best answer to the question.
(A) Incorrect. Yes, because she need not hand over the statement unless the defense counsel requests
discovery of exculpatory evidence.
The duty to the prosecution with respect to exculpatory evidence is an affirmative duty of disclosure.
That duty exists whether or not the defense makes any request [MR 3.8]. Although most defense
lawyers will make a formal request, the failure of the defense counsel to do so does not eliminate
the prosecutor’s duty to disclose.
(B) Incorrect. Yes, because there is no reasonable probability that the evidence would affect the outcome of the trial.
Prosecutors are required to make timely disclosures of all evidence or information that tends to negate the guilt of the defendant [MR 3.8]. Although the evidence of the witness is not strong, it does
tend to negate the defendant’s guilt and must therefore be disclosed.
(C) Incorrect. No, because the prosecutor must maintain an open file in criminal cases.
Many prosecutors fulfill their disclosure obligations by maintaining an “open file” policy, but such a
policy is not required. The prosecutor’s duty is broad, but not unlimited. The prosecutor must disclose exculpatory information, but is not obligated to reveal everything that is in the prosecutor’s file.
Therefore, this answer is incorrect.
Explanation: Question 33
The correct answer is: (B) Yes, but she must disclose that the fact that she has a client who would benefit
from the adoption of the opinion.
Lawyers may serve as members of organizations, like the advisory opinion board, that are involved in
law reform or the administration of the law. If a situation arises in which a lawyer has a client who may
benefit from an action of the organization, she is permitted to participate in the decision. However, she
must disclose to the other members that she has a client who would benefit [MR 6.4]. Here, it would be
appropriate for the lawyer to vote on the proposed opinion, provided that she discloses the presence of
her client. Thus, this answer is correct.
(A) Incorrect. Yes, but the other board members must agree that she has the right to vote on the issue.
This is not a correct statement. Under the Model Rules, lawyers need not abstain from participating
in decisions that affect their clients. Instead, the lawyer’s obligation is merely to disclose to the other
members of the organization that the lawyer has a client whose interests may be affected [MR 6.4].
Thus, this answer is incorrect.
(C) Incorrect. No, because a client’s interests will be affected.
The Model Rules do allow the lawyer to vote on the proposed opinion. However, she must disclose
to the other members of the organization that she has a client whose interests may be affected [MR
6.4]. Since the fact that a client’s interest will be affected will not prevent the lawyer from voting on
the matter, this answer is incorrect.
(D) Incorrect. No, because she should not be serving on the advisory board when her practice poses
potential conflicts of interest.
This is not true under the Model Rules, which aim to create a balance between disqualifying many
members of the bar from serving in such a capacity, as opposed to undermining the work of an advisory board. If a situation arises in which the lawyer has a client who may benefit from an action of the
organization, she can participate in the decision. However, she must disclose to the other members
that she has a client who would benefit [MR 6.4].
331
PRACTICE TEST 2
Explanation: Question 34
The correct answer is: (C) No, as long as the personal funds deposited into the trust account were only in
amounts necessary to pay bank service charges.
The general rule is that lawyers must keep their property separate from property that belongs to others.
A lawyer may, however, deposit personal funds into a trust account solely for the purpose of paying bank
service charges. Thus, in this problem, if the lawyer’s deposits were only in amounts necessary to pay
bank service charges, his actions would be permissible.
(A) Incorrect. Yes, because the lawyer commingled personal funds and client funds.
It is true that, as a general rule, the commingling of personal funds and client funds is not permitted.
This answer, however, is too broad. Lawyers may deposit just enough personal funds into the trust
account to pay bank service charges. Thus, this answer is incorrect.
(B) Incorrect. Yes, because the lawyer did not obtain the informed written consent of the clients whose
money was in the trust account.
Informed written consent of clients can resolve many issues of a lawyer’s professional responsibility, but the commingling of client and personal funds is not one of them. The rules of professional
conduct strictly limit the circumstances under which a lawyer may deposit personal funds into a trust
account. Client consent, even informed consent, is not relevant. Thus, this is not the correct answer
to this question.
(D) Incorrect. No, because the lawyer never withdrew money from the trust account that did not rightfully
belong to him.
This answer would imply that lawyers may commingle personal and client funds as long as no clients are harmed. That is not the rule. Lawyers generally may not deposit personal funds into their
trust accounts, with the specific exception of depositing just enough money to cover bank service
charges. Thus, this answer is incorrect.
Explanation: Question 35
The correct answer is: (D) No, because the plaintiff is entitled to contact the opposing party directly, and
the attorney did nothing wrong in giving his client that advice.
Lawyers are not permitted to make direct contact with a party who is represented by an attorney without
the other attorney’s permission. However, the plaintiff asked her lawyer whether the plaintiff could make a
direct contact with the defendant. The answer to that question is yes, and the plaintiff’s lawyer fulfilled his
duty of rendering candid advice when he told his client that such contact was permissible.
(A) Incorrect. Yes, because the attorney has committed misconduct by violating the rules of professional
conduct through the acts of another.
Lawyers are not permitted to violate the rules of professional conduct through the acts of another.
The lawyer, therefore, could not approach the client and direct the client to make direct contact
with the defendant on the lawyer’s behalf. However, that is not what happened here. The client, not
the lawyer, suggested that the client make a direct contact with the defendant. The lawyer simply
gave honest advice that such a contact is permissible. The lawyer did not engage the plaintiff to do
something for the lawyer that the lawyer himself was forbidden from doing. Therefore, this answer
is incorrect.
(B) Incorrect. Yes, because the lawyer assisted the client in the circumvention of the other party’s lawyer.
The lawyer’s assistance was the provision of good, candid advice. The other lawyer was indeed
circumvented, but not wrongfully. Represented parties are allowed to have direct contact with each
other. Therefore, this answer is incorrect.
332
ANSWERS AND ANSWER EXPLANATIONS
(C) Incorrect. No, because the plaintiff’s lawyer did not personally have contact with the defendant.
It is not enough that the lawyer did not have direct personal contact. If the plaintiff had made the contact at the lawyer’s behest, as the lawyer’s agent, the lawyer would be subject to discipline for violating the rules of conduct through the acts of another. Thus, this is not a good answer to this question.
Explanation: Question 36
The correct answer is: (B) Yes, because the lawyer knowingly disobeyed an obligation under the rules of
the tribunal.
The rules of professional conduct require lawyers to abide by the rules of tribunals except when the lawyer makes an open refusal based upon an assertion that no valid obligation exists. This lawyer neither
complied, nor made an open refusal. The lawyer simply ignored his discovery obligations, and by doing
so he subjected himself to discipline under the rules of professional conduct, as well as litigation sanctions under the rules of civil procedure.
(A) Incorrect. Yes, because the lawyer did not produce the documents.
Nothing in the rules of professional conduct or the rules of civil procedure require a lawyer to produce documents when the lawyer has a valid objection to their production. The lawyer is required,
however, to notify the opposing counsel about the lawyer’s objection, so that one side or the other
can seek a judicial resolution of the dispute. It is the lawyer’s silence, rather than the failure to produce, that is the problem. Thus, this answer choice is incorrect.
(C) Incorrect. No, although the lawyer is subject to litigation sanctions for not abiding by the applicable
rules of civil procedure.
It is true that the lawyer will be subject to litigation sanctions for failing to abide by the rules of civil
procedure. However, it is also a violation of the rules of professional conduct for the lawyer to knowingly and secretly disobey the obligation under the rules of the tribunal to either produce the documents or object to their production. Therefore, this answer is incorrect.
(D) Incorrect. No, because the lawyer made a good faith determination that no valid obligation to produce the documents existed.
The lawyer is entitled to assert that no valid legal obligation to produce the documents exists, but the
lawyer must make that assertion openly. If the lawyer had simply objected to the production of the
documents, the lawyer would have complied with the rules of civil procedure and the rules of professional conduct. The lawyer cannot secretly decide to neither produce the documents nor object
to their production based upon the lawyer’s unilateral determination that the documents were not
discoverable. Therefore, this is not a viable answer to this question.
Explanation: Question 37
The correct answer is: (A) Yes, because he engaged in conduct that involved dishonesty.
Model Rule 8.4 sets forth the kinds of actions that are deemed to be attorney misconduct and which will
subject the lawyer to discipline. One such type of conduct is an activity that involves dishonesty. Taking
money from a trust for the lawyer’s own benefit is a dishonest act and therefore constitutes misconduct,
regardless of whether he was ever prosecuted. Thus, this is the correct answer to this question.
(B) Incorrect. Yes, because stealing is a criminal act, and attorneys are subject to professional discipline
whenever they commit criminal acts.
This answer is overbroad. Lawyers commit misconduct when they commit some criminal acts, but
not others. The criminal act must be one that reflects adversely on the lawyer’s honesty, trustworthiness, or fitness as a lawyer. Although this particular criminal act falls within that category, the answer
is too general. Thus, it is not the best answer to this question.
333
PRACTICE TEST 2
(C) Incorrect. No, because no criminal charges were ever filed and therefore the attorney was not convicted of a crime of moral turpitude.
The lawyer’s actions were dishonest; that is enough for them to constitute misconduct and subject
him to discipline. A criminal conviction is not necessary for the lawyer to be subject to discipline.
Therefore, this answer is incorrect.
(D) Incorrect. No, because the lawyer’s actions did not relate to the practice of law.
Lawyers can commit misconduct in activities that have nothing to do with the practice of law. Felonies that do not involve law practice, but that reflect adversely on the lawyer’s fitness, such as a
conviction for participation in a drug conspiracy, would subject the lawyer to discipline. Similarly, acts
of dishonesty in business dealings, or as here in a fiduciary role, constitute misconduct and can lead
to discipline. There need not be a connection to the lawyer’s practice.
Explanation: Question 38
The correct answer is: (B) Yes, unless each attorney assumed joint responsibility for the matter or each
did one-half of the work.
Lawyers who are not in the same firm may divide fees in accordance with Model Rule 1.5. The rule requires that the client agree to all such arrangements, and that agreement must include approval of the
share that each lawyer will receive. The agreement must be confirmed in writing, and the total fee must be
reasonable. In this question, all of those requirements are met. There is one additional requirement, however. One of two things must be true: either the division of the fee is in proportion to the work performed
by the lawyers who are sharing the fee, or the lawyers must assume joint responsibility for the case. This
answer correctly states that the arrangement is permissible if either of these conditions is met.
(A) Incorrect. Yes, because referral fees for lawyers are not allowed.
A referral fee usually refers to the sharing of a fee by a lawyer who is not in the same firm as the lawyer
who does all of the work on the case. At one time, such fees were generally not permitted, but the rules
of professional conduct now allow them, with certain safeguards. The client must agree to the arrangement, including the shares of all the lawyers, the agreement must be confirmed in writing, and the total
fee must be reasonable. Also, the referring lawyer must assume joint responsibility for the case. If
those conditions are met, the so-called referral fee is permissible. Since this answer choice states that
referral fees are entirely prohibited when that is not the case, it is an incorrect answer choice.
(C) Incorrect. No, because the client gave informed consent to the arrangement and it was confirmed in writing.
This answer is incomplete. It is not enough for the client to give informed consent, confirmed in writing. In addition, the division of the fee must be based on the actual work performed by the lawyers,
or the lawyers must assume joint responsibility for the case. Thus, it is an incorrect answer choice.
(D) Incorrect. No, as long as each attorney assumed joint responsibility for the matter.
This answer correctly states one of the circumstances that would make this arrangement permissible, but there is still another way in which this arrangement could be appropriate. If the fee is based
upon the actual work done by the lawyers, the division of the fee is allowed under the rules.
Explanation: Question 39
The correct answer is: (C) Advising the client only that it would be legal to disinherit his daughter because
of her sexual preference.
The lawyer owes the client a duty of candid advice, and under these circumstances, purely technical legal
advice would be inadequate. The practical effect of the decision to disinherit the daughter is something
that the client must consider, even if he does not want to. The lawyer should discuss the effects of the
proposed action [MR 2.1]. Thus, this is the best answer to this question.
334
ANSWERS AND ANSWER EXPLANATIONS
(A) Incorrect. Withdrawing from the representation because the lawyer finds the client’s views on homosexuality repugnant.
Attorneys may withdraw if the client insists on taking action that the lawyer finds repugnant. Because
the lawyer finds the client’s views on homosexuality very objectionable, it would not be improper for
the lawyer to withdraw.
(B) Incorrect. Counseling the client that discriminating among his children on the basis of their sexual
preference is legal but morally wrong.
Lawyers are permitted to counsel clients about ethical and moral questions even when they have only
been asked for legal advice [MR 2.1]. Although the lawyer need not do so, it is an option for the lawyer.
(D) Incorrect. Advising the client not to go through with the plan because it will cause the children to fight
among themselves after the client’s death.
The client finds talking about events after his death to be unpalatable. However, the lawyer must
not be deterred from raising the subject merely because the client does not want to talk about it.
Although the lawyer may express his advice in the most acceptable form he can, he is obliged to
counsel the client about the unpleasant topics that the representation involves [MR 2.1].
Explanation: Question 40
The correct answer is: (C) No, because the client previously told the lawyer that anything less than
$300,000 would be unacceptable.
Lawyers generally have a duty to communicate settlement offers to clients. However, if the client has
made it known that a particular settlement offer is unacceptable, the lawyer need not convey the offer.
Here, the client has made it clear that the $250,000 offer is unacceptable, and the lawyer had no obligation to convey it to his client before rejecting it. Thus, this is the correct answer to this question.
(A) Incorrect. Yes, because lawyers are obligated to convey all settlement offers to their clients.
Although lawyers generally have this duty to convey settlement offers, this question presents one
of the exceptions to that general rule. The client has made it known to the lawyer that anything less
than $300,000 is unacceptable. The lawyer need not convey an offer to settle when the client has already told the lawyer that such a settlement would not be acceptable. Thus, this answer is incorrect.
(B) Incorrect. Yes, because the attorney owes a duty of candid advice, and the lawyer believes that it
would be in the client’s best interest to accept the settlement.
Lawyers do owe clients a duty of candid advice, but this lawyer has already fulfilled that duty by telling the client that anything more than $200,000 would be a good result. It is the client’s decision to
accept or reject the $250,000 offer, and the lawyer may reject that offer without consulting the client
because the client has already told the lawyer that such an offer is unacceptable.
(D) Incorrect. No, because the attorney has professional discretion to conduct the negotiations.
It is true that the lawyer’s duty of communication usually does not require detailed discussion of negotiation
strategy. However, the lawyer does generally have a duty to convey settlement offers to the client. Here, it is
permissible to do so because the client has previously made it clear that this offer would not be acceptable.
Explanation: Question 41
The correct answer is: (C) No, because attorneys are not required to render pro bono service.
Model Rule 6.1 sets an aspirational goal that all lawyers should try to render at least fifty hours of pro bono
service every year. The rule, however, is purely aspirational, and lawyers may not be disciplined for their
failure to render pro bono service. Thus, this answer choice is correct.
335
PRACTICE TEST 2
(A) Incorrect. Yes, because the managing partner did not personally render 50 hours of pro bono service
that year.
The managing partner did not meet the goal of fifty hours of pro bono service for the year as set
forth in Model Rule 6.1, but that rule does not require lawyers to render any pro bono service at all.
The managing partner may not be disciplined for failure to fulfill a mere aspiration. Therefore, this
answer is incorrect.
(B) Incorrect. Yes, because the managing partner did not ensure that her firm had in effect measures giving
reasonable assurance that the lawyers in the firm would meet their pro bono obligations collectively.
While supervisory lawyers do have some responsibility with respect to policies that give reasonable assurance that lawyers in the firm will abide by the rules of professional conduct, this answer
is incorrect for two reasons. First, there is no pro bono obligation under the Model Rules. Second,
the answer misstates the managing partner’s responsibility with respect to firm policies. It is not her
responsibility to make sure such policies are actually in place, but rather merely to use reasonable
efforts to see that they are.
(D) Incorrect. No, because the managing partner exercised reasonable care to ensure that her firm had
in effect measures giving reasonable assurance that the lawyers in the firm would meet their pro
bono obligations collectively.
This answer correctly describes the partner’s duty to use reasonable care to see that the firm’s
policies give reasonable assurance that the lawyers in the firm abide by the rules of professional
conduct. The answer is incorrect because the lawyers have no pro bono obligations. The fifty hours
per year standard is merely aspirational. Thus, this is not a correct answer.
Explanation: Question 42
The correct answer is: (A) Yes, because the client is likely to react imprudently to any immediate communication.
Lawyers generally must communicate with clients about the status of the matters entrusted to the lawyer.
However, the lawyer may withhold information from a client under circumstances, like these, where it is
likely that the client would react imprudently [MR 1.4]. The lawyer is in possession of a professional opinion that the client is a danger to herself if she faces the prospect of not seeing her granddaughter. The
report itself makes it much less likely that the client will see the granddaughter, and therefore the lawyer
may trigger imprudent action by the client with an immediate communication about the report.
(B) Incorrect. Yes, because the client has diminished capacity and is in sufficient danger that the lawyer
must take protective action.
There is insufficient information in the question to definitively conclude that protective action is an
option. In any event, the exception that permits lawyers to withhold information when it is likely that
the client will act imprudently does not require that the client have diminished capacity [MR 1.4]. This
answer is also incorrect because it states that lawyers must take protective action when clients have
diminished capacity and are in danger. In fact, those circumstances give the lawyer the option, but
do not mandate taking protective action. Therefore, this answer is incorrect.
(C) Incorrect. No, because the lawyer must explain the matter sufficiently for the client to make an informed decision about what to do next.
Lawyers usually must explain matters sufficiently for clients to make informed decisions. That is
part of the lawyer’s duty of communication. There is an exception, however, that permits a lawyer
to delay transmission of information to the client when it is likely that the client will react imprudently
[MR 1.4]. Therefore, this answer is incorrect.
(D) Incorrect. No, because the lawyer is required to keep the client reasonably informed about the status
of the matter that he is handling for the client.
336
ANSWERS AND ANSWER EXPLANATIONS
Lawyers do have a general duty to keep clients reasonably informed about the status of matters.
However, lawyers are relieved of the duty to transmit information immediately when, as here, it is likely
that the client will react imprudently to the information [MR 1.4]. Thus, this answer choice is incorrect.
Explanation: Question 43
The correct answer is: (D) No, as long as the client signed a written contract with the lawyer in which the
client agreed to the calculation of the client’s recovery in this way and the $30,000 fee is not unreasonable.
The lawyer has done nothing that is impermissible as long as the client has agreed to the terms in writing
and the overall fee is reasonable. The lawyer and client may agree that the lawyer’s fee will be calculated
on the basis of the gross amount of the recovery rather than the amount that is net of expenses and the
parties may agree that the expenses will be paid out of the recovery. The lawyer would be in danger of
discipline if these terms were not spelled out in a written agreement signed by the client or if, for some
reason, $30,000 was unreasonable for this particular case.
(A) Incorrect. Yes, because the attorney calculated the attorney’s fee on the gross amount of the recovery rather than the gross amount minus the expenses.
The rules of professional conduct do not dictate how a contingency fee will be calculated. That is a
matter of contract between the lawyer and the client. As long as the client has agreed to this method
of calculation and signed a written contract to that effect, the attorney has done nothing wrong.
(B) Incorrect. Yes, because the attorney advanced the expenses of the litigation and repayment of the
expenses was not contingent upon the outcome of the case.
Attorneys are permitted to make repayment of expenses contingent upon recovery in a case and
routinely do so. However, they are not required to make such an agreement and instead may agree
with the client that expenses will be reimbursed by the client regardless of the outcome of the case.
(C) Incorrect. No, because a 30% contingent fee in a personal injury matter is not unreasonable, and the
client agreed to repay the expenses out of the recovery.
A 30% contingency fee is in the customary range, but that does not mean that it is automatically reasonable. There are a number of factors that go into the assessment of the reasonableness of a fee,
and the facts that a fee is contingent and that the fee is comparable to the usual fee are important
but not dispositive factors.
Explanation: Question 44
The correct answer is: (A) Yes, because the judge commended the jurors for their verdict.
Judges are not permitted to commend or criticize jurors for their verdicts [CJC 2.8]. The fear is that such comments by judges will make it more difficult for jurors to be fair next time that they serve, because the judge’s
comments convey what the judge expects of them as jurors. Thus, this is the best answer to this question.
(B) Incorrect. Yes, because the judge met with the jury after the trial.
Judges are permitted to meet with jurors, if local law allows it. The judge, however, is not supposed
to discuss the merits of the case. Since the judge was permitted to meet with the jury after the trial,
this answer is incorrect.
(C) Incorrect. No, because the judge did not allow the evidence of the previous accusations into evidence.
The judge was scrupulous about making sure that the jury was not prejudiced by the previous unproved accusations. Nevertheless, the judge commended the jurors for the conviction and thereby
may have conveyed to them an expectation of future convictions. That is unfair to future defendants
and therefore, this is not the best answer to this question.
337
PRACTICE TEST 2
(D) Incorrect. No, because the judge’s comments encouraged jury service and public respect for the
judicial system.
Unless local law prohibits the practice, judges may meet with jurors and thank them for their service. The
judge is not permitted, however, to discuss the merits of the case, and the judge is specifically prohibited from
commending the verdict, as the judge in this case did. Hence, this is not the best answer to this question.
Explanation: Question 45
The correct answer is: (A) Yes, because the attorney did not withdraw from representation before he
entered into a sexual relationship with his client.
An attorney is prohibited from having a sexual relationship with a client, unless the sexual relationship
predates the representation [MR 1.8(j)]. Here, the lawyer and the client commenced a sexual relationship
during the representation, and therefore the lawyer is subject to discipline.
(B) Incorrect. Yes, because the lawyer sought informed consent without considering whether he could
provide competent and diligent representation despite the conflict of interest.
The general rule on concurrent conflicts of interest requires lawyers to consider, before seeking
informed consent to the conflict, whether the lawyer can provide competent and diligent representation despite the conflict. This is, however, a special case that is covered specifically in the rules.
Even if the lawyer believed that he could provide competent and diligent representation, and even
if the client gave informed consent, the lawyer is subject to discipline for commencing a sexual relationship with a client. Therefore, this answer is incorrect.
(C) Incorrect. No, because the attorney obtained the informed consent of his client after the commencement of the sexual relationship.
Although informed consent often permits lawyers to represent clients despite conflicts of interest, the
rules categorically forbid sexual relationships with clients that begin during the representation, with or
without consent. The central rationale for prohibiting informed consent in this situation is that, given the
emotional nature of the involvement between the lawyer and the client, it is unlikely that any consent
would truly be informed consent. Therefore, this is not the correct answer to this question.
(D) Incorrect. No, because the personal interests of the lawyer and the interests of the client in obtaining
a divorce were not in conflict.
The general rule on concurrent conflicts of interest permits lawyers to make judgment calls about
whether their personal interests raise a significant risk of materially limiting their ability to represent
their clients. With respect to sexual relationships that begin during a representation, however, the
rules presume conclusively that such a relationship presents a significant danger to the lawyer’s
independent professional judgment.
Explanation: Question 46
The correct answer is: (B) Yes, because the advertisements imply an ability to achieve results by means
that violate the rules of professional conduct or other law.
Lawyers are allowed to advertise truthfully, with some exceptions. One of the exceptions is that a lawyer may not
state or imply an ability to achieve results by means that violate the rules of professional conduct or other law. It is
misconduct for a lawyer to make such a statement or implication. This lawyer’s advertisements imply that he can
“fix” tickets because of his relationships with court officials. Since the advertisements imply that he can achieve
results by means that violate the rules or professional conduct, this is the best answer to this question.
(A) Incorrect. Yes, because the advertisements demean the public image of the legal profession.
There is no general prohibition on advertisements that demean the public image of the legal profession. Indeed, many would conclude that much of the permitted advertising that lawyers do demeans
338
ANSWERS AND ANSWER EXPLANATIONS
the public image. This particular advertising is not permitted because of a specific prohibition embodied in the Model Rules, and not because of a general rule or prohibition against demeaning the
public image of the profession. Thus, this answer is incorrect.
(C) Incorrect. No, because the advertisements truthfully describe the lawyer’s experience.
Lawyer advertising needs to be truthful, but the lawyer nevertheless may not state or imply an ability
to achieve results through improper means. Even if the lawyer can achieve results through those
means, the lawyer is not permitted to advertise that fact.
(D) Incorrect. No, because lawyers are not subject to discipline for undignified or tasteless advertising.
It is true that the rules of conduct do not generally address matters of taste. However, this advertising is improper for a specific reason rather than for just being generally undignified. It implies an
ability to achieve results through violations of the rules of conduct or other law, and for that reason,
rather than its tastelessness, the advertisement is not allowed.
Explanation: Question 47
The correct answer is: (C) No, if the lawyer complied with the applicable rules of conduct regarding a
business transaction with a client.
Lawyers may receive property as their fee. It is possible, however, that the rules applicable to business
transactions with clients will apply, because such arrangements often have the essential characteristics
of such a transaction. If the lawyer complies with those rules, the arrangement is permissible. One of
the requirements of a business transaction with a client is that the terms of the agreement are fair and
reasonable to the client. If that is true, then the arrangement will also pass muster as a “reasonable” fee.
(A) Incorrect. Yes, because lawyers may not receive legal fees in the form of property.
Legal fees may be paid in the form of property, but they may be subject to special scrutiny because
such a transaction may, in essence, be a business transaction with the client. To say that it may be
scrutinized, however, is very different from saying that it is banned. Such arrangements are permitted under the right circumstances.
(B) Incorrect. Yes, because the fee arrangement is, in essence, a business transaction with a client.
This fee arrangement may be, in essence, a business transaction with a client, but such transactions
are not banned. They are regulated for the protection of the client, but this answer is incorrect when
it states that such transactions are per se improper.
(D) Incorrect. No, as long as the client has given informed consent to the arrangement and that consent
has been confirmed in writing.
Informed consent of the client, confirmed in writing, is one of the requirements that must be satisfied if this
arrangement is treated as a business transaction with a client. This answer, therefore, may state a necessary but not sufficient condition for the arrangement to be permissible. The other protections for business
transactions with clients must also be present, if the deal is treated as a business transaction, and at the
very least the fee will have to be fair and reasonable to the client. This answer, therefore, is incomplete.
Explanation: Question 48
The correct answer is: (B) Yes, because the lawyer had a duty to report the judge’s failure to disqualify
himself to the appropriate professional authority.
A lawyer must inform the appropriate professional authority if the lawyer knows that a judge has violated
the code of judicial conduct in a way that raises a substantial question as to the judge’s fitness for office.
To preside over a case, and decide it on the merits, when one of the lawyers is secretly the judge’s romantic and sexual partner, is a violation of the code of judicial conduct. The judge had a clear duty to disqualify
339
PRACTICE TEST 2
himself because he had a bias regarding one of the lawyers. It is a serious violation that calls into question
the judge’s fitness for office, and the lawyer is obligated by the rules of professional conduct to report it.
(A) Incorrect. Yes, because the lawyer had a sexual relationship with a judge who was presiding over one of
the lawyer’s cases, and the sexual relationship began after the judge began presiding over that case.
Lawyers are subject to discipline for having sexual relationships with clients that begin after the attorneyclient relationship begins. That rule, however, is about relationships with clients and not judges. The violation is the failure to report that the judge did not disqualify himself, rather than the sexual relationship itself.
(C) Incorrect. No, because the lawyer had no duty to report the judge’s violation of the code of judicial conduct.
Lawyers are obligated to report serious violations of the code of judicial conduct. Where, as here,
the judge’s misconduct calls into question the judge’s fitness for office, the lawyer must report the
conduct to the appropriate authority.
(D) Incorrect. No, because the judge did not violate the code of judicial conduct.
The judge has violated the code of judicial conduct. The judge has presided over a case in which
the judge has a bias regarding one of the lawyers. That is one of the specific circumstances in which
one can say definitively that the judge’s impartiality might reasonably be questioned, and the judge
was under a clear duty to disqualify himself.
Explanation: Question 49
The correct answer is: (B) Yes, because the lawyer did not candidly advise the client that the client would
almost certainly lose the case.
Lawyers owe clients the duty of candid advice. Here, the lawyer thought that the case was a loser. Even
if that advice would have been unpalatable for the client, the lawyer was obliged to say so. The lawyer
is subject to discipline for failing in his role as an advisor even if, as an advocate, he was able to make a
good-faith argument to escape the consequences of the new statute.
(A) Incorrect. Yes, because the lawyer filed a case that the lawyer expected to lose.
The lawyer’s personal expectation does not matter. Lawyers are permitted to file cases with the
expectation of losing, as long as the client is advised of that possibility and the lawyer makes a goodfaith argument under the law and facts that the client should prevail. Thus, this answer is incorrect.
(C) Incorrect. No, because the lawyer followed his client’s instructions.
Lawyers may not blindly follow all client instructions. For example, if the client instructed the lawyer
to file a case for which the lawyer did not have a good-faith argument to escape the consequences
of the new statute, the lawyer’s duty to the tribunal would preclude the lawyer from following the client’s instructions. Thus, this answer is incorrect.
(D) Incorrect. No, because the lawyer made a good-faith argument that the recent statute was unconstitutional.
The lawyer is not subject to discipline for filing a frivolous case. The lawyer was able to make a goodfaith argument under which the client would have prevailed. The lawyer’s failure was as an advisor,
not an advocate. The client was entitled to know the lawyer’s candid opinion before proceeding with
the case. Thus, this answer is incorrect.
Explanation: Question 50
The correct answer is: (B) Yes because the lawyer’s comments were not limited to mitigating the effects
of the prosecutor’s press conference.
The defense lawyer had a limited right to reply to the undue prejudicial effect of the prosecutor’s statements. Those statements related to the accused’s refusal to take a polygraph test. The public (including
340
ANSWERS AND ANSWER EXPLANATIONS
future potential jurors) might deduce from that refusal that the future defendant had something to hide.
The prosecutor violated the rules of professional conduct in making such a public comment about the
refusal of the accused to take the polygraph test. However, the defense lawyer may not make statements
that exceed the necessity to reply. Here, the lawyer went on to make improper statements about the character of the celebrity witness. By doing so, the lawyer subjected himself to discipline.
(A) Incorrect. Yes, because the lawyer revealed the results of the client’s polygraph examination.
But for the prosecutor having the first news conference, the defense lawyer would have been subject to discipline for making such a public statement about the results of his client’s polygraph examination. However,
the defense lawyer made the statement simply to try to mitigate the harm that the prosecutor caused by
making the improper public statement that the defendant had refused to take such an exam. Under the circumstances, this part of the defense lawyer’s press conference was proper. Thus, this answer is incorrect.
(C) Incorrect. No, because the lawyer’s statements were intended to protect the client from the substantial and undue prejudicial effects of the prosecutor’s news conference.
The defense lawyer was trying to protect the client from the effects of the prosecutor’s statements,
but the defense lawyer went too far. Although the defense lawyer’s statements about the accused’s
polygraph examination were necessary to mitigate the effects of the prosecutor’s news conference,
the statements about the character of the celebrity witness were not. Those are the statements that
subjected the defense lawyer to discipline. Therefore, this answer is incorrect.
(D) Incorrect. No, because lawyers have a First Amendment right to speak about the cases in which
they are involved.
Lawyers, like all citizens, have First Amendment rights. However, parties also have rights to fair trials, and to
protect those rights there must be some limitations on what lawyers can say publicly about the cases that the
lawyers are handling. The lawyer’s right of free expression is properly curtailed to protect the right to fair trials.
Explanation: Question 51
The correct answer is: (A) Yes, because the lawyer revealed information relating to the representation of
her former client.
The information from the client was confidential, and therefore the attorney had a general duty not to
reveal it without the client’s informed consent. Before the other person was executed, the lawyer could
have revealed the information if the lawyer reasonably believed that doing so was reasonably necessary
to prevent the death of that person. However, at the time of the revelation of the information, that person
was already dead. The duty of confidentiality survives the death of the client, and there is no exception
to the duty for the need to ease the attorney’s conscience. The lawyer violated her duty of confidentiality.
(B) Incorrect. Yes, because the lawyer failed to reveal the information in time to save the life of the person who was wrongfully convicted of the crime.
The lawyer had the option but not the obligation to reveal her client’s confidential information to prevent
the execution. Because there was no duty to do so, the attorney cannot be sanctioned for failing to do so.
(C) Incorrect. No, because the attorney’s client was deceased at the time of the disclosure.
The duty of confidentiality survives the death of the client. The lawyer therefore was bound not to
disclose the information in the absence of informed consent or an applicable exception. This attorney had neither and is therefore subject to discipline.
(D) Incorrect. No, because the disclosure related to the death or substantial bodily harm of another.
The disclosure related to the death of another, but the death had already occurred. The lawyer’s option to disclose relates to the prevention of death or substantial bodily harm. The option to disclose
on that basis ended when the death could no longer be prevented.
341
PRACTICE TEST 2
Explanation: Question 52
The correct answer is: (A) Yes, because the partner’s directions do not override the associate’s ethical duties.
The Model Rules do allow an associate to escape discipline for a rule violation if she follows a supervisory lawyer’s
reasonable interpretation of an unclear situation [MR 5.2]. In all other situations, the associate has ethical duties
independent of the legal supervisor’s. Here, the associate might rightly have believed the partner’s allegation that
the associate did not know the full situation at hand. Once the CFO committed perjury, however, he had a duty
to take action to remedy the fraud on the court. Because he did not do so, he is likely to be subject to discipline.
(B) Incorrect. Yes, because the associate should have resigned from the case when the partner told him
not to worry about it.
Lawyers do have ethical duties independent of the duties of their supervising lawyers, and they may
be subject to discipline even when they are following a supervising lawyer’s directions. However, the
associate here was not required to resign from the case when the partner told him not to worry about
it. At that point, it may have been reasonable for him to assume that the partner would stop the CFO
from lying during testimony. The associate’s duty to take remedial measures arose when he became
aware that the CFO had committed perjury and that the partner was not taking remedial action.
(C) Incorrect. No, because the perjury did not cause the corporation to prevail at trial.
This is not a correct answer because a lawyer should take remedial measures if a client commits
a fraud on the court such as perjury [MR 3.3]. Whether the fraud on the court has a “successful”
outcome for the client does not change the lawyer’s duty.
(D) Incorrect. No, because the associate could reasonably assume that the partner knew more about
the situation than the associate did.
When the partner told the associate not to worry about the situation, it may have been reasonable
to assume that the partner would talk the CFO out of perjuring himself. However, when the CFO
actually did commit perjury, the associate had an independent duty to take remedial measures [MR
3.3]. As a result, this is not the correct answer.
Explanation: Question 53
The correct answer is: (B) Yes, but the attorney must be screened from participation in the case, cannot
receive any portion of the fee therefrom, and the Commission must receive written notice of the situation.
The lawyer has moved from government service to private practice. The lawyer has a conflict of interest if
the lawyer represents a private client in a matter in which the lawyer participated personally and substantially as a government lawyer. This private lawsuit involves the same controversy as the government’s suit
and is therefore the same “matter.” It does not matter that the lawyer is “on the same side.” What matters
is that the lawyer participated personally and substantially. However, the firm can avoid imputed disqualification by screening the lawyer from participation, prohibiting him from receiving any portion of the fee,
and by giving written notice to the Commission [MR 1.18]. Thus, this is the correct answer to this question.
(A) Incorrect. Yes, because the firm is essentially on the same side as the Commission in seeking to
hold Mammoth accountable for its violations of the securities laws.
It does not matter that the private law firm and the Commission are essentially on the same side of
this matter. The lawyer who has joined the firm participated personally and substantially as a government lawyer in this matter, which is enough to create a conflict of interest [MR 1.18]. The reasoning
behind this rule is that it helps to prevent government lawyers from conducting government business
with an incentive to facilitate later private employment. Thus, this answer is incorrect.
(C) Incorrect. No, unless the firm obtains the informed written consent of the Securities and Exchange
Commission to its participation in the case.
342
ANSWERS AND ANSWER EXPLANATIONS
For the firm to undertake the representation, it can avoid imputed disqualification by screening the lawyer from participation, prohibiting him from receiving any portion of the fee, and by giving written notice
to the Commission [MR 1.18]. If these steps are taken, then no written informed consent is required.
(D) Incorrect. No, because an attorney in the firm participated personally and substantially in the government’s case involving the same matter.
It is true that the lawyer is disqualified from participating in the case (absent Commission consent) because
of his personal and substantial involvement in the case for the Commission. However, if the firm screens
the lawyer from participation in the case, awards him no part of the fee, and gives the Commission written
notice, the firm can undertake the case without suffering an imputed conflict of interest [MR 1.18].
Explanation: Question 54
The correct answer is: (C) No, because the cousin did not exceed the emergency assistance exception.
While the Model Rules require lawyers to be competent or take action to make themselves competent,
there is an emergency exception for situations in which referral to another lawyer would be impractical
[MR 1.1 [cmt 3]]. In such a case, the lawyer can give limited assistance in an area with which she is not
familiar, as long as she confines her advice to that reasonably necessary under the circumstances. Here,
the real estate lawyer/cousin knew she was not knowledgeable about criminal law and gave minimal advice addressing the emergency situation. She did not violate the Model Rules.
(A) Incorrect. Yes, because the cousin should not have advised someone who was not her client.
It certainly does make sense for a lawyer not to dispense advice without going over the terms of the
representation first. However, the Model Rules have an emergency exception for situations in which
referral to another lawyer would be impractical [MR 1.1 [cmt 3]]. Therefore, the cousin did not violate
the rules by giving limited advice in this situation.
(B) Incorrect. Yes, because the cousin should have advised the woman to ask for a warrant.
This answer choice goes to the quality of the cousin’s advice, which appears to have been bad. However,
the cousin did not violate the Model Rules by giving bad advice because of the Model Rules’ emergency
exception for situations in which referral to another lawyer would be impractical [MR 1.1 [cmt 3]].
(D) Incorrect. No, because the cousin did not have bad intent.
Although the cousin certainly did not seem to have bad intent in giving what was probably inappropriate advice outside her area of specialty, that does not determine whether she violated the Model
Rules. While the Model Rules require lawyers to be competent or take action to make themselves
competent, they contain an emergency exception for situations in which referral to another lawyer
would be impractical [MR 1.1 [cmt 3]]. The cousin’s limited advice seems to be within this exception.
Explanation: Question 55
The correct answer is: (D) No, because the case does not come from a court whose decisions are controlling.
The lawyer’s duty to be faithful to her client’s case is tempered by duties to the tribunal. It is not absolute.
There are circumstances under which the lawyer must disclose adverse authority. This question just does
not happen to satisfy all the necessary conditions. Specifically, because the case is not from a controlling
authority, the attorney is not required to disclose it.
(A) Incorrect. Yes, because her opposition did not cite the case.
The lawyer’s obligation with respect to the disclosure of authority is to disclose authority in the
controlling jurisdiction not cited by opposing counsel that is directly adverse to the client’s position.
Because this other case came from a neighboring state, it is not controlling, and the lawyer is under
no obligation to disclose it. Thus, this answer is incorrect.
343
PRACTICE TEST 2
(B) Incorrect. Yes, because the case is exactly on point.
The failure of opposing counsel to cite the case is just one of the conditions that must be satisfied
before a lawyer has a duty to disclose authority. It must also be directly adverse to the client’s position and come from a controlling authority. Thus, this answer is incorrect.
(C) Incorrect. No, because the lawyer’s duty of zealous advocacy requires that she only cite cases that
help her client win.
If the case is directly on point and decided against the position of the client, then it is directly adverse. By
itself, that fact does not impose on the lawyer the obligation to disclose the authority. It must also be from
a controlling court and must not have been cited by the lawyer’s adversary. Thus, this answer is incorrect.
Explanation: Question 56
The correct answer is: (C) No, because the lawyer did not solicit the local resident with a motive of pecuniary gain.
Lawyers generally may not solicit potential clients, other than lawyers, family members, and close friends,
through face-to-face, live telephone or real-time electronic communication. One exception to that general
rule, however, is solicitation by a lawyer who does not have a significant motive of pecuniary gain. There
is deemed to be less risk of overreaching when the lawyer is motivated by other concerns.
(A) Incorrect. Yes, because the lawyer engaged in a direct, face-to-face solicitation of professional employment.
The lawyer did engage in face-to-face solicitation. However, because it was not for pecuniary gain,
the solicitation does not subject the lawyer to discipline. Thus, this answer is incorrect.
(B) Incorrect. Yes, unless the local resident was a lawyer.
If the local resident were a lawyer, the face-to-face solicitation would be permitted, because the
Rules contemplate that a lawyer is much less likely to be victimized by an attorney trying to overreach in such a meeting. However, that is not the only circumstance in which the solicitation would
be permitted. Here, because the effort was not for pecuniary gain, it is not a violation even if the local
resident is not a lawyer. Thus, this answer is incorrect.
(D) Incorrect. No, if the lawyer knew the local resident personally.
It is true that lawyers may solicit close personal friends, even for pecuniary gain. After all, a close
personal friend is less likely to be victimized by the lawyer’s overreaching. However, merely knowing
someone personally is not enough to make the solicitation permissible. The relationship must be a
close one. Furthermore, the relationship between the lawyer and the potential client is not the only
circumstance that would render the solicitation proper. The fact that it was not for pecuniary gain
also makes it permissible. Thus, this answer is incorrect.
Explanation: Question 57
The correct answer is: (B) Yes, because the clients were not independently represented in making the agreements.
Agreements by clients to prospectively waive malpractice claims are strictly regulated under the Model
Rules. Unlike other types of transactions between lawyers and clients, such agreements require that the client actually be independently represented in making it. Under the Model Rules, a lawyer is prohibited from
making such an agreement unless the client is independently represented. This lawyer violated that rule
and therefore committed misconduct in making these agreements. Thus, the lawyer is subject to discipline.
(A) Incorrect. Yes, because the lawyer obtained a waiver from her clients of the lawyer’s potential malpractice liability.
Lawyers may enter into agreements that prospectively limit the attorney’s liability for malpractice. As
long as the client is independently represented in making that agreement, the lawyer is not subject
344
ANSWERS AND ANSWER EXPLANATIONS
to discipline for doing so. Here, the lawyer violated this rule because the clients were not actually
independently represented in making the agreement. Thus, this answer is incorrect.
(C) Incorrect. No, because the lawyer obtained informed written consent from the clients.
The clients’ informed written consent, and the other procedural safeguards that the lawyer followed,
are the types of things that lawyers must do before entering into a business transaction with a client.
An agreement prospectively limiting the lawyer’s liability for malpractice, however, requires instead
that the client actually be independently represented. Since that requirement was not followed in this
question, this answer is incorrect.
(D) Incorrect. No, because the lawyer advised the clients of the desirability of obtaining independent
counsel before entering into the agreement and gave the clients a reasonable opportunity to do so.
Before entering into a business transaction with a client, a lawyer must advise the client of the desirability of obtaining independent counsel and give the client a reasonable opportunity to seek such advice.
For agreements prospectively limiting the attorney’s malpractice, however, the client must actually be
independently represented. Since this answer recites an inapplicable standard, it is therefore incorrect.
Explanation: Question 58
The correct answer is: (C) No, because the presence of the son and paralegal facilitated the lawyer’s
representation of the client.
Although one usually thinks of privileged conversations as being solely between the lawyer and the client, the presence of some third parties does not invalidate the privilege. The lawyer’s paralegal is there
to assist the lawyer in the representation, and therefore the paralegal does not disturb the attorney-client
privilege. Similarly, the son’s presence is necessary to assist in the representation, so his presence does
not affect the privilege. The judge should sustain the objection.
(A) Incorrect. Yes, because the paralegal was in the room during the conversation.
The paralegal’s presence does not vitiate the privilege. Lawyers often use nonlawyer assistants in
meetings with clients, and those assistants facilitate the representation. Such people are “privileged
persons” for purposes of the attorney-client privilege. Therefore, this answer is incorrect.
(B) Incorrect. Yes, because the son was in the room during the conversations with the lawyer and was
not a client of the lawyer.
The son was not a client, but he was there to render necessary assistance to his elderly mother.
Conversations with him present, under those circumstances, are still protected by the attorney-client
privilege. Therefore, this is not a correct answer.
(D) Incorrect. No, because the client consented to the presence of her son and the paralegal during the
meeting with the lawyer.
Client consent is relevant to many issues of professional responsibility, but the attorney-client privilege is not one of them. For example, the client’s consent to the presence of a stranger would not
make conversations in the presence of that stranger privileged. It is the purpose of the attendance
of the paralegal and the son—facilitating the representation—that permits the privilege to attach
despite the presence of people other than the lawyer and the client.
Explanation: Question 59
The correct answer is: (B) Yes, because the lawyer entered into a partnership with a nonlawyer and the
activities of the partnership include the practice of law.
Lawyers may not form partnerships with nonlawyers, like Big Mart, if any of the partnership’s activities
include the practice of law. The reason for this absolute prohibition is to guard against nonlawyer partners
345
PRACTICE TEST 2
being in a position to compromise the lawyer’s independent judgment in representing clients. Therefore,
this is the correct answer to this question.
(A) Incorrect. Yes, if the lawyer shared legal fees with Big Mart.
It is true that lawyers may not share legal fees with nonlawyers, except under a few special circumstances not raised by the question. However, this answer is incorrect because it is not necessary
that the lawyer share fees with Big Mart for this arrangement to subject the lawyer to professional
discipline. Whether they share fees or not, the lawyer and Big Mart are partners in an enterprise that
practices law, which is forbidden, and by itself, enough to subject the lawyer to discipline.
(C) Incorrect. No, because the lawyer maintained professional independence to represent the clients as
he saw fit.
The lawyer is required to maintain professional independence in the representation of his clients,
but, even if he does, he may not form a partnership with Big Mart to practice law. The rule is a prophylactic one, to ensure the lawyer’s independence. The forming of the partnership that threatens
the independence, rather than the actual undermining of that independence, is the violation. Thus,
this answer is incorrect.
(D) Incorrect. No, because the lawyer did not work directly for Big Mart.
If the lawyer worked directly for Big Mart, there would be a risk of discipline for facilitating the practice of law by a non-lawyer. However, the lawyer is also subject to discipline for a more equal relationship, the partnership. Under the rules of professional conduct, the lawyer may not enter into a
partnership with a nonlawyer for the practice of law because the partnership is too much of a threat
to the lawyer’s independence. An employer-employee relationship might be worse, but the partnership is bad enough. Thus, this answer is incorrect.
Explanation: Question 60
The correct answer is: (C) No, because the contingency fee contract meets all the necessary specifications of the rules of professional conduct.
A contingency fee agreement is not prohibited in post-judgment matters relating to divorce. This particular
agreement is in writing and contains all of the provisions required by Model Rule 1.5. It was therefore
proper for the lawyer to have entered into such an arrangement.
(A) Incorrect. Yes, because it is not permissible to make repayment of expenses contingent upon recovery.
At one time lawyers were not allowed to make an agreement under which repayment of expenses
was contingent upon recovery. Today’s rules allow that arrangement as a permitted form of financial
assistance to a client. Therefore, this answer is incorrect.
(B) Incorrect. Yes, because contingency fees are not permitted in matters such as this one.
Contingency fees are not permitted in divorce cases, but this is not a divorce case; it is a postjudgment matter. The lawyer’s fee is contingent on the recovery of sums previously awarded, and
the parties are already divorced. Therefore, the policy concerns that lead to the prohibition of contingency fees in divorce cases are not present. As such, this answer is incorrect.
(D) Incorrect. No, because contingency fee agreements facilitate access to the courts by parties who
would otherwise be unable to pay for representation.
It is true that contingency fees facilitate access, but this answer is overbroad. Not all contingency
fee arrangements are permitted. A contingency fee in a criminal case, for example, might facilitate
access to high quality legal services, but due to policy reasons such fees are not permitted.
346
Practice Test 3
Questions
PRACTICE TEST 3
Answer Grid
348
1
A
B
C
D
31 A B C D
2
A
B
C
D
32 A B C D
3
A
B
C
D
33 A B C D
4
A
B
C
D
34 A B C D
5
A
B
C
D
35 A B C D
6
A
B
C
D
36 A B C D
7
A
B
C
D
37 A B C D
8
A
B
C
D
38 A B C D
9
A
B
C
D
39 A B C D
10 A B C D
40 A B C D
11 A B C D
41 A B C D
12 A B C D
42 A B C D
13 A B C D
43 A B C D
14 A B C D
44 A B C D
15 A B C D
45 A B C D
16 A B C D
46 A B C D
17 A
47 A B C D
B
C
D
18 A B C D
48 A B C D
19 A B C D
49 A B C D
20 A B C D
50 A B C D
21 A B C D
51 A B C D
22 A B C D
52 A B C D
23 A B C D
53 A B C D
24 A B C D
54 A B C D
25 A B C D
55 A B C D
26 A B C D
56 A B C D
27 A B C D
57 A B C D
28 A
58 A B C D
B
C
D
29 A B C D
59 A B C D
30 A B C D
60 A B C D
QUESTIONS
Question 1
Question 2
A well-known art dealer is also a practicing attorney.
The art dealer/attorney keeps the two businesses
completely separate and maintains two separate places
of operation. His law office is downtown, and his art
gallery is in a rundown part of the city frequented by
artists. The art dealer/attorney’s former law school
roommate, who is also a lawyer, hears from a third
party that the third party thinks he overheard a
conversation at the art gallery in which the art dealer/
attorney defrauded a customer by falsely stating that
the item the art dealer/attorney was selling to the
customer was one-of-a-kind when, in fact, it was a
reproduction available in the hundreds. The former
roommate wonders whether he should contact the
local bar authorities, and ultimately decides not to.
An attorney represented a client who has a long
criminal history and thus thinks he knows a lot
about criminal law. The client told the attorney to
let him testify in his latest criminal case and to call
his brother, who also has a long criminal history, as
a character witness. Worried that the client’s rough
demeanor and “sleazy” mannerisms would alienate
jurors and that the client would open the door to
questions about his prior convictions, the attorney
refused to allow the client to take the stand. The
attorney also refused to call the client’s brother
to testify on the client’s behalf. The client was
subsequently acquitted.
Is the former roommate’s conduct proper?
(A) Yes, because the former roommate has no
duty to report the art dealer/attorney based
on a rumor.
(B) Yes, because the art dealer/attorney keeps his
two businesses separate.
Should the attorney be subject to discipline?
(A) Yes, because he did not allow the client to testify.
(B) Yes, because he did not call the client’s
brother as a character witness.
(C) No, because an attorney can choose the
trial strategy.
(D) No, because the client was acquitted.
(C) No, because the former roommate reasonably
believes that the art dealer/attorney engaged
in conduct that raises a substantial question
as to the art dealer/attorney’s honesty,
trustworthiness, or fitness as a lawyer.
(D) No, because the former roommate has a
duty to report dishonest conduct by another
member of the bar.
349
PRACTICE TEST 3
Question 3
Question 4
An attorney was representing a client in a wrongful
termination suit against his former employer. The
employer claimed that it had to terminate the client
because of his increasingly erratic behavior. When the
client met with the attorney at her office to discuss his
responses to interrogatories, the client’s face became
flushed and his breathing became shallow. The client
then brought out a pharmacy vial of capsules, put
the vial on the attorney’s desk, and said, “I’ve been
seeing a psychiatrist for these anxiety attacks, and
she prescribed these pills for me. I want you to keep
some of them here for me in case I become anxious
while discussing my case. Please don’t tell my former
employer or anyone else about them.”
Two business partners went to their attorney’s office
to talk about how to end their business partnership.
They told the attorney that they both wanted to
dissolve the partnership but could not agree on the
terms and an equitable split of the partnership’s assets.
They asked the attorney to help resolve these issues
by mediating a discussion between them.
Later that day, the attorney interviewed a police
officer in her office on another client matter. It was a
very hot summer day, and rather than leave his drugsniffing dog in the police cruiser, the officer brought
the dog to the interview. The dog gave an alert on the
vial indicating the presence of drugs. The capsules
were tested and found to contain heroin. The attorney
was arrested and charged with knowingly possessing
an illegal controlled substance.
Would the attorney be subject to discipline if she
revealed that the client brought the vial to her office?
(A) Yes, because doing so would violate the
attorney’s duty of confidentiality to the client.
(B) Yes, because the client specifically requested
that the attorney not tell anyone about the pills.
(C) No, because the pills and all communications
related to them are protected from disclosure
by the attorney-client privilege.
(D) No, because the attorney needs to do so
to defend herself against the charge of
knowingly possessing heroin.
The three women sat down and talked for two hours.
At the end of that time, with their lawyer’s help, the
partners came to an agreement. The lawyer drew up a
document outlining the terms of the agreement, which
the partners signed.
Two months later, however, one of the partners
discovered what she believed were unfair aspects of
the way the agreement operated that remained hidden
until it had been in place for a while. She hired a
different lawyer to sue her past partner. The non-suing
partner called the attorney who helped the partners
mediate the agreement, and that attorney, without
asking the suing partner for her permission, filed an
answer on the non-suing partner’s behalf.
Was it proper for the lawyer who mediated the agreement
to file an answer on behalf of the non-suing partner?
(A) No, but the attorney is not subject to
discipline because while the Rules advise
against subsequent representation of one
party to a mediation if it appears improper,
the attorney did not overreach by merely
filing an answer.
(B) No, because the attorney had mediated the
original dispute between the partners.
(C) Yes, because the suing partner had hired a
new attorney, so the attorney’s representation
of the non-suing partner did not put the suing
partner at a disadvantage.
(D) Yes, because the attorney had already represented
the non-suing partner in the mediation.
350
QUESTIONS
Question 5
Question 6
A talk radio station hired an attorney who specialized
in corporate law to produce and host a one-hour
weekly radio program during which the attorney
would discuss legal topics and answer questions asked
by listeners. At the beginning of each program, an
announcer would introduce the attorney by name and
provide his office address and telephone number.
A real estate and trusts and estates lawyer wants to
provide a full range of legal and other services to her
clients. The lawyer therefore plans to enter into the
following arrangement with a licensed real estate broker
and a registered insurance agent, to form a partnership:
During one program, a caller asked whether she should
represent herself in an eviction proceeding brought
against her by her landlord. The attorney responded
that an eviction case might involve multiple legal issues
that could require the assistance of a lawyer to properly
protect the tenant’s legal rights.
The next day, the caller contacted the attorney at the
attorney’s office and asked if the attorney would defend
the caller in the eviction proceeding she had inquired
about during the program the day before. The attorney
said he would be glad to consider representing her and
invited her to his firm’s offices to discuss it.
Is the attorney subject to discipline?
(A) Yes, because the attorney is not permitted
to solicit professional employment from
a prospective client by in-person, live
telephone, or real-time electronic contact
when a significant motive for his doing
so is his pecuniary gain, unless the person
contacted is a lawyer or has a family, close
personal, or prior professional relationship
with him.
(B) Yes, because the attorney had no expertise in
landlord-tenant law or eviction proceedings
and thus no basis on which to accept the
representation.
(C) No, because the caller initiated the contact
with the attorney.
(D) No, because the attorney’s statement during
the radio broadcast, while it was a real-time
electronic contact soliciting professional
employment, was not false or misleading.
Each will practice her own professional specialty area
and refer clients to each other on a non-exclusive oneyear trial basis. For example, if the real estate broker
has a home buyer who needs real estate legal help, she
may refer the buyer to the lawyer. If the lawyer has a
trusts and estates client who would benefit from life
insurance, she may refer the client to the registered
insurance agent. All clients and customers would be
informed of the arrangement.
The three partners will share offices, secretaries,
phone lines, and necessary equipment. The lawyer
will have a separate client trust account for her law
client funds, but the three of them plan to share a
general business bank account for their other funds
and to split all professional revenues equally.
Is the lawyer subject to discipline if she enters into
this arrangement?
(A) Yes, because non-lawyer professionals and
lawyers are forbidden to enter into reciprocal
client-referral agreements.
(B) Yes, because while the partners’ reciprocal
client-referral agreement is proper, their feesplitting and partnership are not.
(C) No, because the lawyer can split fees with
non-lawyer members of a partnership.
(D) No, not if the lawyer stops splitting fees,
because lawyers can form partnerships with
non-lawyers as long as the non-lawyers are
members of a profession, and both the real
estate broker and the registered insurance
agent qualify.
351
PRACTICE TEST 3
Question 7
Question 8
A district attorney has political aspirations. He
knows of a reputed major drug smuggler who has
evaded arrest because of the police’s inability to find
sufficient evidence to prove his involvement in drug
smuggling. The district attorney believes convicting
the smuggler would rid society of a dangerous
criminal and would bring him favorable publicity.
An informant, who was out on bail, approached the
district attorney, offering to obtain evidence against
the reputed smuggler in exchange for leniency in the
informant’s case. The district attorney eagerly agreed.
A 22-year-old student is arrested. He calls his father
from jail and says, “Dad, I got busted for smoking
some pot. It’s just a misdemeanor. I’m out on my
own recognizance. Please come get me.” His father, a
personal injury lawyer, hires a law school classmate
who is a criminal defense expert to handle his son’s
case. When the father hires the attorney, he tells the
attorney that he knows the DA and that the DA is
a bluffer. He, therefore, guides the attorney to take
a hard line in defending the case, because the DA
will let his son go on an infraction with no jail time.
The father also asks the attorney to keep him posted
about what is going on so he can track the attorney’s
fees. When the criminal defense attorney receives
the police report, she realizes her client had lied to
his father. The student was arrested for possession
of a substantial quantity of drugs, which is a felony.
Apparently as a result of a mix-up at the local jail,
her client was released on his own recognizance by
mistake. When the attorney confronts her client, he
begs her not to tell his father.
After several weeks, the informant gave the district
attorney a videotape purporting to show the reputed
smuggler loading bags of cocaine into his car.
The district attorney immediately had the reputed
smuggler arrested to considerable fanfare in the
media. Soon after, the district attorney learned that
the person in the video was actually the informant in
disguise. He nonetheless brought charges against the
defendant. The district attorney knew that a skillful
defense attorney would probably discover that the
video was not genuine. However, the district attorney
had probable cause to believe the reputed smuggler
had committed other acts of smuggling, and he
honestly believed that the prosecution would cause
the reputed smuggler to take a plea bargain and spend
at least some time in prison, which would be better for
the community.
Will the district attorney be subject to discipline if he
proceeds with the case?
(A) Yes, because the district attorney was
motivated by personal ambition, as well as
public protection.
(B) Yes, because a prosecutor has special duties
to the justice system and the district attorney
did not have probable cause to charge the
reputed smuggler.
(C) No, because a prosecutor has a duty to
prosecute zealously, and the district attorney
honestly believed that the prosecution would
reduce local crime.
(D) No, because the district attorney had
probable cause to believe that the reputed
smuggler had committed other crimes.
352
Which of the following would be the proper course of
action for the criminal defense attorney?
(A) She should withdraw from representation because
an actual conflict of interest has developed.
(B) She should follow her client’s instructions
not to tell his father about the felony charge
and ignore the father’s instructions to take a
hard line with the DA if she disagrees with
that strategy.
(C) She should tell the father about the felony
charge, because a lawyer is required to
inform clients of all important developments
in a matter.
(D) She should obtain the father’s informed
written consent to take a different approach
with the DA and obtain her client’s informed
written consent to tell his father about the
felony charge.
QUESTIONS
Question 9
Question 10
During his first three years as an attorney, a
prestigious trial judge was a member of a civil law
firm that specialized in civil litigation. While working
at that law firm, the trial judge handled family law
cases exclusively.
A defendant has been charged with embezzling
$500,000 from his employer. He contacted an attorney
seeking representation. When he met with the
attorney, the defendant said that he made his employer
millions on a new product, and the employer
authorized him to take the money as a commission
on the profits he made for the company. When the
attorney asked for clarification, the defendant said,
“My employer didn’t actually authorize me in so
many words, but we had an understanding that the
money was mine.” The attorney replied that if that
was true, the defendant might want to think about
using the employer’s consent as an affirmative
defense. However, she ultimately decided she could
not represent the defendant and referred him to a
colleague who handles major white-collar felonies.
The defendant thanked the attorney and left. The
attorney never heard from the defendant again and did
not charge him a fee. When the case came to trial, the
prosecutor called the attorney as a witness.
One of the current cases on the trial judge’s docket
involves a securities law dispute between a corporation
and three disgruntled corporation shareholders that
had been filed when the trial judge worked for the civil
law firm. The lawyer, who was a partner at the civil
law firm while the trial judge was there, filed the case
on behalf of the disgruntled plaintiff shareholders and
remains lead counsel in the case.
The trial judge had never worked on any case
involving the corporation or the three disgruntled
corporation shareholders. However, one of the
shareholders had previously been a plaintiff in an
unrelated personal injury action handled by the civil
law firm, and was represented in that action by an
associate who had also practiced law with the trial
judge while both were at the civil law firm.
Is it proper for the trial judge to hear this case?
(A) No, because the trial judge practiced
law with the associate who previously
represented one of the shareholders in the
present case.
(B) No, because the trial judge practiced law with
the partner when the present case was filed.
(C) Yes, because the trial judge did not
personally and substantially participate in
any prior case involving the corporation or
the three shareholders.
(D) Yes, because the trial Judge worked
exclusively on family law cases while at the
civil law firm and so has no disqualifying
bias or prejudice concerning the subject
matter of the present case, which concerns
securities law.
Is it proper for the attorney to testify as to the
defendant’s statements?
(A) Yes, because the defendant was never the
attorney’s client and never paid the attorney
a retainer.
(B) Yes, because the attorney tried to assist
the defendant in a fraud on the court by
suggesting the employer’s consent as an
affirmative defense.
(C) No, because the defendant could have
believed that an attorney-client relationship
had been formed.
(D) No, because prospective clients are entitled
to confidentiality.
353
PRACTICE TEST 3
Question 11
Question 12
A plaintiff and a defendant are locked in a bitter
commercial dispute. A partner at a well-established law
firm is representing the plaintiff. A newly admitted attorney
is representing the defendant, who has filed a counterclaim
against the plaintiff, alleging that the plaintiff is the real
wrongdoer, having stolen the defendant’s trade secrets and
engaged in unfair competition. The defendant’s strategy is
to wage a war of attrition in the hopes that the plaintiff
will eventually abandon the battle due to the costs of
continuing the suit, irrespective of the merits.
A lawyer in the state of North practices landlord-tenant
law. She also belongs to a state bar commission that
works to improve upon statutory language and content.
Prior to litigation commencing, the plaintiff’s CEO, told the
partner to take a “scorched earth” approach to any requests
for continuances or extensions of time in the litigation:
“They have more money to fight this than we do, and
they know if they drag this out long enough we will be
driven out of business. They are going to seek seemingly
innocent extensions of time, but each day they prolong this
makes us bleed money we can’t afford to lose. The court
may order you to grant extensions, and even sanction us
for refusing to do so voluntarily. However, we have no
choice but to take that risk.” The partner then prepared a
legal services agreement for the plaintiff, entered into the
representation, and filed the lawsuit described above.
Later in the case, the newly admitted attorney e-mails
the partner to ask for a two-week extension of time
within which to respond to the plaintiff’s fifth request
for production of documents, because the newly
admitted attorney has a long-planned vacation and will
be unavailable to prepare the responses until he returns.
The partner refuses to grant the newly admitted attorney
the requested extension. The newly admitted attorney
then moves the court for the extension, which is granted,
resulting in a sanction against the plaintiff for $1,000.
Is the partner subject to discipline?
(A) Yes, because attorneys have an ethical obligation
to grant each other professional courtesies.
(B) Yes, because the court’s sanction is
conclusive evidence that the partner violated
his ethical obligation to agree to a reasonable
request for an extension.
(C) No, because as the plaintiff’s attorney,
the partner may make routine decisions
concerning the means by which to
accomplish the client’s objectives on matters
that do not affect the merits of the case.
(D) No, because the partner acted in a manner
consistent with his duty to represent his
client zealously within the bounds of the law.
354
A famous multi-millionaire tenant lives in a 10-room
penthouse apartment in an illustrious neighborhood that
has received attention in the media for its opulence and
cost. He asks the lawyer to represent him in an action
against his landlord. When the lawyer researches the
relevant law, she realizes that the relevant law for the
tenant’s action against the landlord is extremely biased
and unfair to all tenants, but particularly the poor. She
also finds that many experts in the field agree with her
assessment of the law.
The lawyer therefore asks the commission to
recommend to the state legislature that the law be
overturned. She explains to the commission that
through her representation of a client, she discovered
an unfair provision that hurts all tenants—but
particularly the poor—and that a change in the law
would help her client. The lawyer thinks it’s best not
to reveal who her client is.
Will the lawyer’s actions subject her to discipline?
(A) Yes, because not all experts feel that the law
is unfairly biased in favor of landlords, and
the lawyer failed to reveal that fact.
(B) Yes, because the lawyer used her position on
the commission to help a paying client and
did not state the tenant’s identity, which is a
material fact that could have influenced the
commission’s decision.
(C) No, because the lawyer disclosed that her
client would benefit from the recommended
change, and she was free to keep the client’s
identity secret.
(D) No, because the lawyer cannot be on
a commission charged with making
recommendations to the legislature on
matters that directly involve her clients.
QUESTIONS
Question 13
Question 14
While undergoing an internal audit, the chief financial
officer of a bank discovered several hundred savings
accounts that had been inactive for more than 10 years.
None of the accounts contained more than $1,000.
The CFO called its in-house attorney and asked him to
research the law and give the CFO a legal opinion as to
what to do with the inactive accounts.
A criminal defense attorney voluntarily submitted
his name for inclusion on a list of attorneys willing
to serve as appointed counsel for indigent criminal
defendants. The criminal defense attorney is also
quite active in local community efforts on behalf of
underprivileged and abused children, and he takes
on many cases on a pro bono basis for children
needing protection from abusive homes or help from
government social service agencies.
After some research, the attorney found that the
bank was not required to locate or notify the owners
of the inactive accounts and that after 10 years of
non-activity, a bank is entitled to close the accounts
and retain any funds. He did some other research and
determined that more than 90 percent of the account
owners could be located at minor expense.
In the in-house attorney’s judgment, it would be in
the interest of justice and could increase the bank’s
goodwill in the community if the bank would pay the
expenses to locate and contact the account owners
and ask them to close or reactivate their accounts with
the bank. He recommends to the CFO that the bank
do this follow-up, but the CFO decides that it would
not be worthwhile. The in-house attorney goes on to
another project that’s waiting for him.
Was the in-house attorney’s conduct proper?
(A) Yes, because in-house counsel have a
responsibility to consider extralegal factors
that other attorneys do not.
(B) Yes, because an attorney may refer to social
and economic factors when advising a client.
(C) No, because he should have contacted the
Bank president when the CFO went against
his recommendation.
(D) No, because he should have presented all of
the information without recommending what
the bank should do with its business.
The clerk of the local criminal court contacted the
criminal defense attorney and told him that his name
was next on the list for appointed counsel and that the
next case involved a particularly poor defendant. The
criminal defense attorney had read about the case in the
newspapers and believes that the defendant was guilty
of the crimes charged—that the defendant committed a
series of murders involving children and torture.
Personally revolted by the prospect of defending
someone who victimized innocent children, and
fearing that the negative publicity from the trial would
jeopardize his standing with the various community
groups he belonged to, the criminal defense attorney
falsely told the clerk that he was going on an extended
business trip and would be unable to represent any
new clients for the next two weeks. The criminal
defense attorney asked the clerk to skip over his name
for this appointment and stated truthfully that he
would be happy to take the next indigent defendant
case available upon his return.
Was it proper for the criminal defense attorney to seek
to avoid appointment to represent the defendant?
(A) Yes. An attorney should not agree to
represent a criminal defendant if the attorney
has already formed an opinion that the client
is guilty.
(B) Yes. An attorney should not take a case to
represent a client if the attorney’s personal
feelings are so strong that the representation
of the client is likely to be impaired.
(C) No. An attorney cannot make a false or
misleading statement to a clerk of court once
he is sought as appointed counsel for an
indigent criminal defendant.
(D) No. An attorney who asked to be on the list
to represent indigent criminal defendants
cannot refuse to take cases offered once he is
sought as appointed counsel for an indigent
criminal defendant.
355
PRACTICE TEST 3
Question 15
Question 16
A judge was appointed to the bench after a lengthy
career as a prosecutor in a small community. The
judge had little experience with civil cases and was
concerned that the issues in a wrongful termination
suit filed in her court would be novel and complex.
An attorney worked for the government as an assistant
district attorney for eight years. After she quit, she
started her own private criminal defense practice.
To announce the establishment of her practice, the
attorney placed an ad in the local newspaper with
the following headline: “Let a former prosecutor
with lots of ties to the DA’s office represent you in
your criminal case.” Most of the cases the attorney
eventually accepted were against former colleagues
from the district attorney’s office.
To gain further knowledge and expertise, the judge
called a well-respected employment law professor at
a local law school and asked for some assistance and
some guidance as to available literature on the topic
of wrongful termination. The law professor answered
all of the judge’s substantive questions and told her
about three law review articles relevant to the topic
and questions discussed.
After the judge read the law review articles, she
informed counsel for both parties of the wrongful
termination suit, about the communication with the
law professor, and about the citations for the three law
review articles consulted.
Has the judge acted in a proper manner?
(A) No, because a judge cannot initiate an ex
parte communication with respect to a
pending matter.
(B) No, because the judge did not tell the parties
she was going to call the law professor.
(C) Yes, because the judge is entitled to
communicate ex parte whenever it is justified
as here in the interests of justice.
(D) Yes, because the law professor was a
disinterested legal expert.
Should the attorney be subject to discipline?
(A) Yes, because she implied that she can
improperly influence members of the district
attorney’s office.
(B) Yes, because it is improper for her to take
cases that involve her former colleagues.
(C) No, because it is true that she is a former
prosecutor with ties to the DA’s office.
(D) No, because it is proper for a former prosecutor
to begin a criminal defense practice.
Question 17
A lawyer represents a plaintiff in a personal injury
case involving a serious car accident. Eleven people
witnessed the accident. The lawyer wants to call ten of
the witnesses to testify at the trial. She also wants to
retain an expert actuary to testify about the damages.
The lawyer’s retention agreement with the plaintiff
states that the plaintiff will reimburse the lawyer for
all reasonable expenses the lawyer advances on her
client’s behalf.
Will the lawyer be subject to discipline for paying
bonuses to these witnesses if her client prevails?
(A) No, because it is reasonable to reward
witnesses for going to the trouble of testifying.
(B) No, because payment of bonuses to both can
be structured so that they are not offered as
incentives for particular testimony.
(C) Yes, because a lawyer is prohibited from
offering inducements that could cause expert
or fact witnesses to vary their testimony.
(D) Yes, because it is not part of the agreement
with the client.
356
QUESTIONS
Question 18
Question 19
While representing a defendant last month, an
attorney argued to the appellate court that an arcane
aspect of the state’s laws should be overturned. The
appellate court has yet to issue its decision in that
case. When representing a plaintiff in an entirely
separate case today, the attorney argued the opposite
side of that legal question to the same appellate court.
A lawyer is a member of the Business Law Committee
of the state bar association. The Committee is
considering whether to recommend a change in the
state’s statutes to allow corporate board meetings to
be held via video conferencing. The lawyer represents
a corporation that manufactures cameras used in
video conferencing. One of the board members of this
company has a home in the city, but also lives outside
the United States for much of the year. If the law is
passed, the board member will have the advantage of
not having to return to the city several times a year
for board meetings. Moreover, the company will
likely have increased sales of its video-conferencing
cameras. The board member calls the lawyer and
says, “The next time you have a committee meeting,
be sure to support that recommendation to change the
law to allow video conferencing at corporate board
meetings!” The lawyer is in a quandary, but ultimately
decides to recommend the law change. When she
gives her recommendation, she mentions that she has
a client who will benefit from the change, but also
states that she thinks it is generally a good idea.
Is the attorney’s behavior proper under the Model Rules?
(A) Yes, because there is no evidence that
the attorney will not be able to provide
competent and diligent representation to both
the defendant and the plaintiff.
(B) Yes, because the attorney can get the written,
informed consent of the second client.
(C) No, because it would cause an appearance
of impropriety.
(D) No, because the first case is still pending in
the same court.
Was the lawyer’s conduct proper?
(A) Yes, because she disclosed to the bar
committee that she has clients who could
benefit from the change.
(B) Yes, because her fiduciary duty of loyalty requires
her to act in the best interests of her clients.
(C) No, because she should have withdrawn from
the bar committee due to her conflict of interest.
(D) No, because she should have abstained from
voting to avoid the appearance of impropriety.
357
PRACTICE TEST 3
Question 20
Question 21
Two next-door neighbors, a famous guitarist and a
salesman, live in a wealthy suburb with large estates.
They have fought for years, and neither remembers
what started it. Most recently, they have been fighting
over two things. The first is whether the salesman’s
new driveway encroaches on the guitar player’s
property. The encroachment, if any, is very slight, but
would be illegal. The second is that the guitarist has
been playing loud music late at night ever since the
salesman put in the driveway. The salesman believes
the loud music is retaliatory, but the guitarist insists
it’s due solely to his love of music.
A longtime state trial judge has many friends and
acquaintances in the local legal community, and she
believes her popularity will enable her to obtain high
elective office. After many years on the trial bench,
the judge decides to consider a run for state attorney
general. For financial reasons, the judge cannot afford
to immediately resign her judgeship. She wishes to
continue in her job for the first six months of her
attorney general campaign so that she will not have
to compromise her values by soliciting contributions
from the general public. Her opponent—a highprofile personal injury lawyer with a number of huge
“sympathy” verdicts under his belt—has no such
reservations about seeking money. He immediately
forms a campaign committee that launches an
aggressive media campaign touting his virtues and
making veiled accusations about “sitting judges who
would use their judicial office to obtain an unfair
advantage.” The judge hires a political consultant who
informs her that she is unlikely to mount a successful
campaign against her opponent unless she forms a
campaign committee to solicit contributions from the
general public. She plans to resign from her judgeship
at the time she wins the election for attorney general.
The guitarist says to an attorney: “I want to make the
salesman rip out that driveway. My surveyor says it
encroaches an inch onto my property. Spend whatever
it takes. I want to make the salesman get a lawyer
and spend a fortune defending himself.” The attorney
would love to have a wealthy client like the guitarist,
and an unlimited budget. However, she believes it
will be in the guitarist’s best interest not to sue. She
replies, “You have 10 acres. Is the driveway really a
problem? A court might feel that you are pursuing this
grudge frivolously, and the salesman may countersue
over your late-night music. Have you tried to resolve
this out of court?” The guitar player says, “Okay,
you’ve made your ethics speech. The salesman says
he’ll sue me for trespass if I step on his property, and
he won’t take my calls. If you won’t represent me, I’ll
call someone else.”
Is the attorney subject to discipline if she files the suit
against the salesman?
(A) Yes, because clients control the objectives of
representation but lawyers control the means.
(B) Yes, because she knows that the suit would
not serve the guitarist’s best interests.
(C) No, because she has a duty to zealously
represent her client and carry out his wishes
if there is a non-frivolous basis in law and
fact for filing the suit.
(D) No, because the guitar player is entitled to
access the courts under our legal system
regardless of his wealth, motive, intent, or
merits of the suit.
358
Is the judge’s conduct proper?
(A) Yes, because she need not resign her
judgeship until and unless she wins the
election for attorney general.
(B) Yes, because she is under no obligation to
resign her judgeship until just before she is
sworn in as attorney general.
(C) No, because the judge must resign her
judgeship immediately upon announcing her
candidacy for attorney general.
(D) No, because the judge must resign her
judgeship immediately upon forming
her own campaign committee to solicit
contributions from the general public.
QUESTIONS
Question 22
Question 24
An attorney practices as a junior partner in a private
firm whose senior partner recently died. During the
administration of the estate, the senior partner’s
widow acts as executor, and in that capacity she
owns the senior partner’s share of the firm. Under
the partnership agreement, she also has the right to
exercise all the rights that her deceased husband had,
including directing the professional judgment of
junior lawyers in the firm. The widow, who is not a
lawyer, instructs the junior partner not to file suit on
behalf of a client against a local businesswoman. The
junior partner believes that filing the suit would be in
the best interest of the client but nevertheless follows
the widow’s instructions and does not file the suit.
A lawyer represents the Acme Corporation, which has
been sued for discrimination in hiring. The director of
recruiting for the corporation has also been sued, in her
individual capacity, and she has asked the corporation’s
lawyer to represent her. The lawyer reasonably
believes that he can provide competent and diligent
representation to both clients, and the lawyer obtains
the informed consent of the corporation and the director
to the dual representation. The lawyer represents both
the corporation and the director in the case.
Is the attorney subject to discipline?
(A) Yes, because the lawyer is practicing in a
firm in which a nonlawyer owns an interest.
(B) Yes, because the lawyer is practicing in a firm
in which a nonlawyer has the right to direct or
control the lawyer’s professional judgment.
(C) No, because nonlawyers may own an interest in a
law firm during the administration of the estate of
a deceased lawyer who practiced with the firm.
(D) No, because the decision not to file the suit was a
question of judgment and a reasonable resolution
of an arguable question of professional duty.
Question 23
A vacancy recently occurred on a state supreme court.
A longtime state trial judge is interested in having the
governor appoint her to this esteemed position. She
plans to resign from her judgeship at the time of the
appointment if the governor appoints her.
Is the judge’s conduct proper?
(A) Yes, because she need not resign her
judgeship to seek appointment from the
governor to the state supreme court.
(B) Yes, because she must be a sitting judge at
the time of the appointment.
(C) No, because she must resign her judgeship and
publicly announce that she is not a candidate
for any public office when she formally seeks
appointment from the governor.
(D) No, because she must resign her judgeship
immediately upon seeking appointment
from the governor even if she makes no
announcement about it.
Is the lawyer subject to discipline?
(A) Yes, because the conflict was not consentable.
(B) Yes, because a lawyer may not represent an
entity and a constituent of that entity in the
same matter.
(C) No, unless the corporation’s consent was
given by the director.
(D) No, because the conflict was consentable and
the lawyer obtained informed consent from
both clients.
Question 25
A lawyer tries a products liability case for a plaintiff
to a jury. The jury returns a verdict for the defense.
The lawyer receives an anonymous letter stating that
one of the jurors violated the judge’s instructions by
doing internet research related to the product during
the trial. The letter states further that the juror used
that research in the deliberations to influence other
jurors to vote for a defense verdict. The lawyer
contacts the juror who allegedly violated the judge’s
instructions. The juror hangs up on the lawyer as soon
as the lawyer explains the purpose of the call. Hoping
to rectify the situation, the lawyer calls the juror back.
Is the lawyer subject to discipline?
(A) Yes, because the juror had made it known
to the lawyer that the juror did not wish to
communicate.
(B) Yes, because the lawyer made a post-trial
contact with a juror.
(C) No, unless the contact was prohibited by law
or by court order.
(D) No, because the lawyer was investigating
alleged juror misconduct.
359
PRACTICE TEST 3
Question 26
Question 28
An attorney hires an expert to analyze whether a
signature on a will is genuine. The expert judges that
the signature is forged. The attorney decides not to tell
her client about the expert’s determination because
she believes that the client would demand more
experts be hired, and that the situation would take up
hours of the attorney’s time that she would prefer to
spend on other matters.
A client has an expensive gold necklace that is the
subject of a legal family dispute. Accordingly, the
client hires an attorney to represent his interests in the
dispute. He asks his attorney to hold the necklace and
keep it safe on his behalf. The attorney keeps it under
his bed, in a locked box with his own jewelry and the
jewelry of some of his other clients.
Is the attorney’s conduct proper?
(A) Yes, because a lawyer may delay
communication in certain circumstances.
(B) Yes, because a lawyer may use her own
judgment to decide what information to share
with a client.
(C) No, because a lawyer should not withhold
information for her own convenience.
(D) No, because a lawyer never has a right to
withhold information from a client.
Question 27
A new lawyer enters into an agreement to purchase
the law practice of an older lawyer who is retiring.
Under the agreement, the new lawyer is to purchase
the entire practice and give notice to each of the
seller’s clients that the sale is proposed, that the client
has the right to retain other counsel or take possession
of his or her file, that consent to the transfer of the file
to the new lawyer will be presumed if the client does
not object within ninety days, and that the legal fees
charged to the client will increase only in an amount
sufficient to finance the purchase of the practice.
The new lawyer and the retiring lawyer make this
agreement and consummate the sale of the practice.
Is the new lawyer subject to discipline?
(A) Yes, because the fees charged to the clients
of the practice increased.
(B) Yes, because the sale of a law practice is
not permitted.
(C) No, because the lawyer purchased the practice
from a lawyer who retired and thereby ceased
to engage in the practice of law.
(D) No, unless the fee increases to the
clients would result in the charging of an
unreasonable fee.
360
Is the attorney’s conduct proper?
(A) Yes, because an attorney has no particular
obligation to safeguard his client’s property.
(B) Yes, because an attorney may keep a client’s
tangible property commingled with his own
in a place he deems safe.
(C) No, because an attorney must hold property
with the care of a fiduciary.
(D) No, because an attorney must not hold
tangible client property.
QUESTIONS
Question 29
Question 30
A lawyer represents a client in a suit under the state’s
deceptive trade practices statute. That statute allows
a prevailing plaintiff to recover his or her reasonable
attorney’s fees from the defendant. At trial, the lead
trial attorney for the plaintiff seeks to take the witness
stand to testify about the nature and value of the legal
services that he and his firm have rendered in the case.
The lawyer for the defense moves to disqualify the
plaintiff’s lead trial attorney and that attorney’s firm
from representing the plaintiff in the case because
the plaintiff’s lead trial attorney will be a necessary
witness in the case.
A lawyer is a recognized expert in questions relating
to land use and zoning. The state legislature is
considering legislation that would strip county zoning
boards of their autonomy and subject the boards’
decisions to a state-wide zoning agency. The lawyer
represents a client who believes that this legislation
would harm the client by slowing the pace of approval
of new commercial development. At the client’s
request, and to help the client, the lawyer makes it
known to the relevant state legislative committee that
the lawyer has views on the wisdom of the legislation.
The committee invites the lawyer to testify and the
lawyer does so. The lawyer truthfully testifies that,
in his opinion, the new legislation would be unwise
because the cumbersome bureaucracy that it would
create is unnecessary and would slow the pace of
approval of new commercial development.
How should the court rule on the motion to disqualify?
(A) The court should disqualify the lead trial
attorney for the plaintiff and that lawyer’s
law firm, because the lead trial attorney
would be acting as an advocate and a witness
in the same case.
(B) The court should disqualify the lead trial
attorney, but not the lead trial attorney’s
law firm, because it is unlikely that the jury
would be misled as to the role of the other
lawyers in the lead trial attorney’s law firm.
(C) The court should disqualify neither the lead
trial attorney nor that attorney’s law firm,
because the lead trial attorney is testifying
about the nature and value of legal services
rendered in the case.
(D) The court should disqualify neither the lead
trial attorney nor that attorney’s law firm,
because the lead trial attorney’s testimony
will be helpful to the plaintiff.
Is the lawyer subject to discipline?
(A) Yes, unless the lawyer identified the client on
whose behalf the lawyer was appearing.
(B) Yes, unless the lawyer revealed to the
committee that the lawyer was there in a
representative capacity.
(C) No, because the lawyer’s testimony was truthful.
(D) No, because lawyers are not subject
to bar discipline for appearances in
nonadjudicative proceedings.
Question 31
An attorney agrees to appear on a national television
news broadcast to discuss a notorious pending
criminal case involving a celebrity. The lawyer
expresses her opinion that the defendant is clearly
guilty because of the expected testimony of the
defendant’s nanny. The attorney notes for the audience
that the nanny passed a polygraph examination with
respect to the nanny’s expected testimony.
Is the attorney subject to discipline?
(A) Yes, because the lawyer discussed the
expected testimony of a witness.
(B) Yes, because the lawyer revealed the results
of the polygraph examination.
(C) No, as long as the lawyer was not involved in
the case.
(D) No, because lawyers have First Amendment
rights to speak about pending cases.
361
PRACTICE TEST 3
Question 32
Question 34
A judge tells an attorney that the judge intends to
appoint the attorney to represent a defendant who is
accused of drug trafficking. Although the appointment
would not impose a large financial burden on the
attorney, the attorney knows that court-appointed
work is much less remunerative than the work that
the attorney does for private clients. Accordingly, the
attorney decides that he would like to seek to avoid
the appointment so that he can focus his attention on
more profitable cases for private clients.
A lawyer works for the Department of Corrections
and in that capacity drafts legislation that permits
corrections officers to use deadly force whenever
the officer reasonably concludes that an inmate is
intentionally violating an order or direction of the
officer. The legislation is passed. The lawyer leaves
government service and goes to work for a private law
firm. The lawyer is asked to represent a corrections
officer in a civil suit in which the defense will invoke
as a defense the legislation that the lawyer drafted
while she was in government service.
Under the Model Rules of Professional Conduct, is it
proper for the attorney to seek to avoid the appointment?
(A) Yes, because the representation will impose a
financial burden on the lawyer.
(B) Yes, because lawyers are not obligated to
accept court appointments.
(C) No, because a financial burden must be
unreasonable in order to constitute good
cause to avoid a court appointment.
(D) No, because attorneys are obligated to accept
court-appointed cases.
(A) Yes, because the lawyer was personally and
substantially involved in drafting the legislation.
(B) Yes, unless the Department of Corrections
consents to her representation in writing.
(C) No, because the attorney will not be switching
sides on the matter of the legislation.
(D) No, because this is not the same matter on
which the lawyer worked for the government.
Question 33
Question 35
An attorney represents a client in a suit against the
client’s former employer, ModMart, Inc. (MMI).
The case alleges that MMI discriminated against the
plaintiff illegally on the basis of the plaintiff’s race.
As part of the preparation of the client’s case, the
attorney secretly sends the attorney’s investigator
to interview a former employee of MMI who
participated in the decision to fire the client.
An attorney realizes that he has committed a negligent
act in connection with a transaction that the attorney
documented for a client. The attorney continues to
represent the client in an attempt to rectify or mitigate
the consequences of the attorney’s negligent act
without telling the client about it.
Is the attorney subject to discipline?
(A) Yes, if the attorney knows that MMI is
represented by counsel in this matter.
(B) Yes, because MMI’s liability may arise from
the actions of the former employee.
(C) No, because the attorney did not personally
conduct the interview.
(D) No, because the former employee no longer
worked for MMI.
362
Is the lawyer subject to discipline if he undertakes
the representation?
Is the attorney subject to discipline?
(A) Yes, because the attorney continued to
represent the client when the attorney had a
conflict of interest.
(B) Yes, because the lawyer was obliged to tell
the client about the negligent act.
(C) No, because the client’s interest and the
lawyer’s interest were aligned.
(D) No, as long as the lawyer reasonably
believed that the lawyer could competently
and diligently continue to represent the client
in the matter.
QUESTIONS
Question 36
Question 38
An attorney formerly represented the state in its
prosecution of a criminal defendant. The defendant
was convicted but later exonerated on the basis
of DNA evidence. The lawyer is now in private
practice and is asked to represent the former
criminal defendant against the state in a suit that
seeks compensation for the wrongful conviction and
resulting incarceration.
A lawyer represents an elderly client who appears
to be displaying early signs of senile dementia. The
lawyer knows that he may have to decide whether
to take protective action for this client if he can
determine that the client has diminished capacity,
is in danger, and cannot protect himself. The
lawyer discusses the elderly client’s behavior and
conversations with a neighbor who is a gerontologist
in order to try to decide whether protective action is
an option.
Is it proper for the lawyer to represent the former
criminal defendant against the state?
(A) Yes, but only if the state gives informed
consent, confirmed in writing.
(B) Yes, as long as the attorney does not use any
confidential information that the attorney
learned while the attorney represented the state.
(C) No, because the civil suit and the prosecution
are substantially related matters.
(D) No, because in the civil case the attorney
would be attacking his own work on behalf
of the state in the criminal case.
Question 37
A lawyer wants to take on a very difficult medical
malpractice case for a client, but he has serious
concerns about potential malpractice liability
stemming from the case. Based on these concerns, the
lawyer makes an agreement with the client limiting
any malpractice liability that may stem from the
case. Pursuant to the lawyer’s advice, the client is
independently represented by another attorney in
making this agreement.
Is the lawyer subject to discipline?
(A) Yes, because the lawyer revealed confidential
information and no exception to the general
rule of confidentiality applies.
(B) Yes, because the lawyer may reveal the
confidential information of a client with
diminished capacity only when taking
protective action.
(C) No, because the lawyer was impliedly
authorized to disclose the information.
(D) No, provided that the lawyer obtained the
consent of his client’s next of kin before
revealing the information.
Question 39
(A) Yes, because a lawyer may not make an
agreement limiting her malpractice liability.
A lawyer represents a judge who fears a disciplinary
proceeding concerning the judge’s financial affairs.
No official proceeding is yet underway. The lawyer
then undertakes to represent a client whose case is
assigned to the judge’s court. The judge refuses to
allow the lawyer to reveal to the other client that the
lawyer represents the judge. The lawyer reasonably
believes that he can provide competent and diligent
representation to the new client despite the lawyer’s
representation of the judge.
(B) Yes, because clients may not be represented
by more than one attorney.
Is it proper for the lawyer to represent the new client
in the judge’s court?
Is the lawyer subject to discipline?
(C) No, because the client was independently
represented by another attorney.
(A) Yes, if the judge gives informed consent to
the lawyer’s representation of the new client.
(D) No, because lawyers may freely make
agreements limiting malpractice liability.
(B) Yes, because there is no direct adversity
between the new client and the judge.
(C) No, because the lawyer would have an
unconsentable conflict of interest in doing so.
(D) No, because the lawyer cannot obtain
informed consent of the new client.
363
PRACTICE TEST 3
Question 40
Question 42
A law firm uses the name “Oliver, Wendell &
Holmes” as its trade name. These are the last names of
the original founding partners of the firm, all of whom
have now been deceased for many years. Despite
the death of these founding partners, the law firm
continues using this name because of the reputation
that the firm has developed over the years.
A lawyer specializes in representing real estate
developers. A new client asks the lawyer for
assistance with a series of transactions that would
involve the rapid “flipping” of properties and would
use inflated appraisals of the properties to enable
the sales. The lawyer knows that such a series of
transactions would be criminal and fraudulent in her
jurisdiction. The lawyer counsels the client about the
legality of the proposed transactions and explains
the legal consequences that may follow if the client
engages in them.
Are the lawyers in the law firm subject to discipline?
(A) Yes, because law firms are not allowed to use
trade names.
(B) Yes, because none of the named partners in
the firm practices law with the firm anymore.
(C) No, because the name of the firm does not imply
a connection to a government agency or with a
public or charitable legal services organization.
(D) No, because Oliver, Wendell and Holmes all
once were partners in the firm.
Question 41
A young lawyer goes into practice on his own. He accepts
representation of a client in a complex transactional
matter. To make sure that he drafts the documents
correctly to accomplish the client’s objectives, the lawyer
consults with one of his former law professors, who
is also a member of the state bar. The lawyer tells the
professor the terms and proposed structure of the client’s
transaction, and tells the professor what the client has said
to the lawyer about the client’s objectives. The lawyer
does not reveal the identity of the client to the professor.
The professor makes a few suggestions about drafting the
documents to comply with all applicable law while also
achieving the client’s goals. The lawyer does not tell his
client about the conversations with the professor because
the lawyer wants the client to have confidence in the
lawyer’s abilities.
Is the lawyer subject to discipline?
(A) Yes, because the lawyer revealed confidential
information to the other lawyer.
(B) Yes, because the lawyer revealed information
protected by the attorney-client privilege.
(C) No, because the lawyer protected the identity
of the client.
(D) No, because the lawyer was impliedly
authorized to seek the assistance of the
professor and reveal the information
necessary to obtain that assistance.
364
Is the lawyer subject to discipline?
(A) Yes, because the lawyer was required to
withdraw as counsel once the criminal
and fraudulent nature of the proposed
transactions became apparent.
(B) Yes, because the lawyer’s analysis could be
used by the client to perpetrate the crimes
and fraud.
(C) No, unless the client uses the lawyer’s advice
to commit the crime and the fraud.
(D) No, because the lawyer has not assisted in
the perpetration of a crime or a fraud.
Question 43
A lawyer is licensed and practices in state A. The
lawyer receives an offer to become general counsel
for a corporation in state B. The lawyer is not licensed
in state B and does not intend to become licensed.
The lawyer would be required in his new job to live
and work in state B. None of the lawyer’s work would
involve appearances in court.
If the lawyer undertakes the new job, is the lawyer
subject to discipline?
(A) Yes, unless at least one member of the
lawyer’s staff is licensed in state B.
(B) Yes, because the lawyer would be practicing
law in a state in which he is not licensed.
(C) No, because in-house counsel are not
required to be licensed in the states where
they work.
(D) No, because the lawyer would not be
appearing in court.
QUESTIONS
Question 44
Question 46
Two years ago, a lawyer started a solo practice
representing people with serious and persistent mental
illness in commitment and guardianship hearings. She
has found that her state has several laws that could be
streamlined to serve her clients better, so she becomes
an advocate for improving those laws. She spends an
hour or two per week discussing the issues with state
legislators and suggesting changes to the law, as well
as meeting with advocates and therapists for people
with mental illness.
An attorney enters into a contract with a chiropractor.
The agreement specifies that the lawyer will pay the
chiropractor five hundred dollars ($500) for every patient
that the chiropractor refers to the lawyer and from whom
the lawyer receives a fee. The agreement also specifies
that the chiropractor may refer patients to other lawyers.
The attorney earns and receives fees from several clients
referred by the chiropractor. The lawyer informs each of
these clients of the contract with the chiropractor, and the
lawyer pays the chiropractor the agreed-upon $500 sum
per fee-paying client.
Is the lawyer’s method of fulfilling her suggested
responsibility to the public proper under the Model
Rules?
(A) Yes, because she has devoted more than 20
hours per year to unpaid legal work.
(B) Yes, because she has devoted 50 or more
hours per year toward improving the law.
(C) No, because this work has the effect of
improving the situation of her clients.
(D) No, because this work is not directed
specifically at financially disadvantaged people.
Question 45
A lawyer learns that a new local law school has
been denied accreditation. As a result, the students
at the law school will not be allowed to take the bar
examination in the lawyer’s state and be admitted to
the bar. The lawyer has a law clerk who is a student at
the school. The student provides the lawyer with the
e-mail addresses of all the students at the law school.
The lawyer sends an e-mail to all those students
and offers his services to sue the law school for
fraudulently inducing the students to enter the school
and pay tuition.
Is the lawyer subject to discipline?
(A) Yes, because the lawyer has engaged in realtime direct solicitation of prospective clients.
(B) Yes, because the lawyer has solicited
employment from people known to the
lawyer to be in need of legal services.
(C) No, because the recipients of the message
were law students.
Is the attorney subject to discipline?
(A) Yes, because the lawyer paid the chiropractor
to refer clients to the lawyer.
(B) Yes, because the lawyer paid the chiropractor
a contingency fee.
(C) No, because the arrangement with the
chiropractor was not exclusive.
(D) No, because the lawyer informed his clients
of the arrangement.
Question 47
A lawyer makes cash campaign contributions to a
state trial judge who is running for reelection. After
the judge’s reelection campaign is successful, the
lawyer is appointed by the judge to serve as a paid
special master in a large commercial case in which
the special master will oversee discovery. The lawyer
serves as special master and receives $30,000 in fees
paid by the parties for the special master’s services.
Is the lawyer subject to discipline?
(A) Yes, because accepting the appointment as a
special master after making political contributions
gives rise to an appearance of impropriety.
(B) Yes, because lawyers may not make
contributions to political campaigns of judges.
(C) No, because lawyers have a right to
participate in the political process.
(D) No, unless the political contributions were
made for the purpose of obtaining an
appointment by the judge.
(D) No, if the lawyer’s e-mail had the words
“Advertising Material” at the beginning and
end of the message.
365
PRACTICE TEST 3
Question 48
Question 50
A lawyer is representing an indigent client in a personal
injury matter. The damages in the case are significant,
and the chances of success are very high. The defendants
appear to be using every legitimate technique to delay
resolving the case. The client cannot afford to pay court
costs or the expert witnesses. The client is also about to be
evicted and needs help with living expenses. The lawyer
pays the court costs, the witness fees, and the client’s rent
in order to make sure that the case can proceed to a fair
resolution. The lawyer tells the client that the client need
not pay the lawyer back for any of these expenditures.
A lawyer, who previously had obtained a Masters
in Business Administration, decides to open up his
own law firm. The lawyer, hoping to capitalize on his
previous business education, decides to offer financial
planning services in addition to his legal services.
Although the law firm provides both financial planning
services and legal services, the law firm does not
adhere to the typical rules regarding confidentiality of
information with respect to those services. Moreover, to
the substantial majority of law firm’s clients, the legal
and financial planning services seem indistinguishable.
Is the lawyer subject to discipline?
Is the law firm’s conduct proper?
(A) Yes, because the lawyer paid the client’s rent.
(B) Yes, because the lawyer paid court costs and
witness fees on behalf of the client without
an agreement by the client to repay them.
(C) No, because the client was indigent.
(D) No, because the lawyer’s financial assistance
was reasonably necessary to ensure that the
client received substantial justice.
Question 49
A lawyer undertakes to represent a new client who is angry
about the incessant barking of his neighbor’s dogs. The
client tells the lawyer, “I don’t want you to do anything
other than just tell me what my legal rights are and how
to enforce them. I have had it with this neighbor and I
just need to know what to do to make him get rid of all
those dogs.” Unlike the client, the lawyer has experience
in nuisance complaints involving neighbors and dogs, and
in the lawyer’s experience formal proceedings merely run
up everyone’s costs and cause more ill will and, frequently,
retribution. In the lawyer’s experience, no one has ever
been forced to get rid of a dog because of barking.
Is it proper for the lawyer to advise the client about
the expense and other consequences of formal actions
against his neighbor?
366
(A) Yes, because the Rules of Professional
Conduct do not apply to the provision of
law-related services.
(B) Yes, because law firms are not typically
held to rules regarding confidentiality of
information, regardless of whether they are
performing law or law-related services.
(C) No, because law firms are not permitted to
provide financial planning services.
(D) No, because law-related services are subject to
the Rules of Professional Conduct unless certain
steps are taken to ensure that the client knows
that the normal protections will not apply.
Question 51
Lawyer is chatting online with a group of people in
her state who enjoy collecting classic hats. In the
course of the conversation, she learns that one of
them has a legal problem that Lawyer could address.
Lawyer posts a general message that says, “I don’t
know whether you know this, but I’m a lawyer. I
definitely think you need to consult with a lawyer
about your problem, and I’m available if you’d like a
consultation at my office.”
Is Lawyer subject to discipline under the Model Rules?
(A) Yes, because lawyers are required to
render candid advice even when it will be
unpalatable to the client.
(A) Yes, because a lawyer shall not solicit
fee-generating employment by real-time
electronic communication.
(B) Yes, because the client is inexperienced in
legal matters such as this one.
(B) Yes, because the communication was public.
(C) No, because the lawyer’s role is to advise
about the law and not about other matters.
(C) No, because real-time electronic
communications are not regulated like inperson solicitations under the Model Rules.
(D) No, because the client asked for purely
technical legal advice.
(D) No, because Lawyer was simply advising the
person that she needed a lawyer.
QUESTIONS
Question 52
Question 54
A lawyer represents a pharmaceutical company in the
defense of a class action that alleges the company sold
a drug that was unreasonably dangerous. The board of
directors of the company has authorized the lawyer to
engage in settlement negotiations with the lawyers for the
class. The board instructs the lawyer that he has authority
to settle the case for a maximum total payout of $20
million, but that he is to use his best efforts to pay as little
as possible. In the negotiations, the lawyer for the class
asks the defense lawyer what the limit of his settlement
authority is. The defense lawyer responds that he is not
authorized to settle for any more than $10 million.
A partner at a law firm represented the plaintiff in
an employment discrimination case that was about
to go to trial. The case has been hotly litigated, with
considerable acrimony on both sides. Shortly before
trial, the partner learned that his former associate had
been hired by the defendant’s firm. The associate had
worked on many cases with the partner, but a check of
the billing records shows that she had not worked on
this case, and the partner cannot recall ever discussing
it with her. The defense attorney wants the associate
to help prepare the defendant for trial.
Is the defense lawyer subject to discipline?
(A) Yes, because lawyers are required to tell the truth.
(B) Yes, because the lawyer made a material
misrepresentation of fact.
(C) No, because lawyers are not required to be
truthful in negotiations.
(D) No, because the lawyer has not made a
material misrepresentation of fact.
Question 53
A lawyer is representing a teenage client who has
been charged with felony drug trafficking. With the
teenager’s informed consent, the lawyer’s fees are
being paid by the teenager’s stepfather. The lawyer
learns from the teenager that the client’s drugrelated activities arose from the client’s own use of
methamphetamine. The teenager is no longer using
the drug. The lawyer receives a telephone call from
the stepfather, who asks the lawyer if his stepson was
using drugs himself. The lawyer tells the stepfather
about the client’s former drug use, and the stepfather
stages an “intervention” the next day.
Is the lawyer subject to discipline?
Is it proper for the associate to help prepare the
defendant for trial?
(A) Yes, because the associate is obligated to
zealously represent her new client.
(B) Yes, because the associate did not gain
confidential information about the case at her
previous firm.
(C) No, because the associate must be walled
off from any matter having to do with her
previous firm, even if she was not involved
in the particular matter.
(D) No, because the plaintiff has not consented
to the associate’s representation of the
defendant in the trial.
Question 55
An experienced attorney’s client tells the attorney
to settle the client’s large insurance claim against
a defendant insurance corporation if the defendant
offers $10,000. The defendant offers $15,000.
However, the attorney neither accepts the offer nor
tells the client about it. The case eventually goes to
trial and the client wins a $100,000 verdict.
Is the attorney subject to discipline?
(A) Yes, because the lawyer revealed confidential
information to the stepfather.
(A) Yes, because he should not have taken the
case to trial.
(B) Yes, because the lawyer accepted payment for
his services from someone other than the client.
(B) Yes, because he disobeyed the client’s
instructions as to settlement.
(C) No, because the lawyer may reveal
confidential information to someone paying
for the lawyer’s services.
(C) No, because the client did not suffer any
damages as a result of the attorney’s decision.
(D) No, because the lawyer had the client’s
informed consent to the stepfather paying for
the lawyer’s services.
(D) No, because the attorney has the right to
select the means by which the client’s
objectives will be achieved.
367
PRACTICE TEST 3
Question 56
Question 58
An attorney is representing an applicant for admission
to the bar. The lawyer reviews the material that the
applicant plans to submit to the board to evaluate the
applicant’s character and fitness. The lawyer knows that
the applicant is omitting disclosure of a conviction of a
crime as a juvenile, even though the fitness application
clearly calls for disclosure of such convictions. The
lawyer suggests a few changes to other parts of the
application and assists the client in filing it with the
board. The complete truth eventually emerges.
A lawyer is defending a corporation that manufactures
pharmaceuticals in a civil case in which the plaintiff
alleges that the defendant knew that a particular
drug was dangerous for certain types of patients and
deliberately withheld that information in order to boost
sales. A retired employee of the corporation knows about
certain meetings of the management of the company in
which the alleged side effects, and whether they should
be disclosed, were discussed. The defense lawyer tells
the former employee that the former employee need not
talk informally to the lawyers for the plaintiff, and the
defense lawyer asks the retired employee not to do so.
Is the attorney subject to discipline?
(A) Yes, because the lawyer had a general duty
to report all relevant information about a bar
applicant to the appropriate authorities.
(B) Yes, because the attorney assisted the client
in a fraudulent act.
(C) No, because the lawyer was under no duty
to disclose information relating to his
representation of the applicant.
(D) No, because the determination of the
applicant’s character and fitness is made by a
board and not a tribunal.
Question 57
New Lawyer just passed the bar and is trying to
present her brand new practice in a catchy way
that will encourage people to call her despite her
inexperience. She puts an advertisement on a local
website for people who work on classic cars, with a
photo of herself posed next to her restored Mustang,
stating, “New Lawyer can help you with many
kinds of legal problems, and she won’t “drive” you
insane! Call her at (888) 111-2222, email her at
newlawyer4U@newlawyer.com, or stop by her office
at 111 Main Street. Her prices are reasonable, and she
has never lost a case!”
Is New Lawyer subject to discipline?
(A) Yes, because a truthful but incomplete
statement can violate the Model Rules.
(B) Yes, because she may not classify her prices
as “reasonable” without giving more specifics.
(C) No, because she gave the appropriate contact
information as required by the Model Rules.
(D) No, because all of her statements were true.
368
Is the lawyer subject to discipline?
(A) Yes, because the former employee is not an
employee or agent of the client.
(B) Yes, because the defense lawyer misrepresented
the law to the former employee.
(C) No, because litigation is an adversary process
and the lawyers for each side may seek to
persuade witnesses not to speak informally
with lawyers for other parties.
(D) No, because the lawyer for the plaintiff is not
permitted to speak to the former employee
about the matter without the permission of
the lawyer for the defense.
Question 59
An attorney represents a client who has been accused of a
crime. The client instructs the attorney to call the client’s
brother to the stand to testify as to the defendant’s alibi.
The attorney reasonably believes, but does not know, that
the brother’s testimony would be false.
Which of the following statements most accurately
describes the lawyer’s options with respect to the
brother’s testimony?
(A) The lawyer must call the brother to the
witness stand because the lawyer does not
know that the testimony would be false and
the client insists on the brother testifying.
(B) The lawyer must consult with the client
about the brother’s testimony because this is
a question of means rather than objectives.
(C) The lawyer may refuse to offer the testimony
of the brother.
(D) The lawyer must refuse to offer the
testimony of the brother.
QUESTIONS
Question 60
An attorney in a large business-litigation firm
often represents a multinational conglomerate oil
company in cases against filling station owners who
owe the oil company for unpaid gasoline deliveries.
The oil company has publicly expressed support
for a new local income tax exemption pending
in the state legislature that favors big businesses
such as the oil company. The attorney is personally
opposed to the exemption, believing that it unfairly
allocates additional heavy tax burdens to the poorest
individuals in society. He feels so strongly about
this that he decides to express his personal views in
a signed letter to the editor of his local newspaper,
despite knowing the oil company executives who
learn of his letter will be displeased. His letter states
that this is his personal opinion as a citizen and that
he has great respect for those with differing opinions.
The newspaper is currently running pro-exemption
advertisements paid for by the oil company.
Has the attorney acted properly under the Model Rules?
(A) Yes, because the First Amendment protection
provided to political speech allows the
attorney to publicly take a personal position
on a matter of public interest contrary to the
stated position of his client without regard to
its effect on his client.
(B) Yes, because the attorney may openly take
a position on a matter of public interest
contrary to the stated position of his client,
but must present it in such a way as to not
prejudice his client.
(C) No, because the attorney must abstain from
openly taking a personal position on a matter
of public interest contrary to the stated
position of his client.
(D) No, because an attorney must obtain the
client’s informed consent before openly taking
a personal position on a matter of public
interest contrary to the client’s stated position.
369
370
Practice Test 3
Answers and Answer Explanations
PRACTICE TEST 3
Answer Key
372
1
A
B
C
D
31 A B C D
2
A
B
C
D
32 A B C D
3
A
B
C
D
33 A B C D
4
A
B
C
D
34 A B C D
5
A
B
C
D
35 A B C D
6
A
B
C
D
36 A B C D
7
A
B
C
D
37 A B C D
8
A
B
C
D
38 A B C D
9
A
B
C
D
39 A B C D
10 A B C D
40 A B C D
11 A B C D
41 A B C D
12 A B C D
42 A B C D
13 A B C D
43 A B C D
14 A B C D
44 A B C D
15 A B C D
45 A B C D
16 A B C D
46 A B C D
17 A
47 A B C D
B
C
D
18 A B C D
48 A B C D
19 A B C D
49 A B C D
20 A B C D
50 A B C D
21 A B C D
51 A B C D
22 A B C D
52 A B C D
23 A B C D
53 A B C D
24 A B C D
54 A B C D
25 A B C D
55 A B C D
26 A B C D
56 A B C D
27 A B C D
57 A B C D
28 A
58 A B C D
B
C
D
29 A B C D
59 A B C D
30 A B C D
60 A B C D
ANSWERS AND ANSWER EXPLANATIONS
Explanation: Question 1
The correct answer is: (A) Yes, because the former roommate has no duty to report the art dealer/attorney
based on a rumor.
In this fact pattern, the stringent requirements that place a duty on one lawyer to report another have not
been met. A lawyer must inform the appropriate authority if the lawyer knows another lawyer has committed a violation of the Rules of Professional Conduct in a way that raises a substantial question about
that lawyer’s honesty, trustworthiness, or fitness as a lawyer in other respects [MR 8.3 (a)]. However, the
Rules specify that the lawyer must know, not merely believe, that the misconduct has occurred. Thus,
the former roommate is under no duty to report the art dealer/attorney because he only has secondhand
information that the art dealer/attorney committed fraud, making this answer choice correct.
(B) Incorrect. Yes, because the art dealer/attorney keeps his two businesses separate.
The duty to report is not limited to misconduct taking place only in the course of a law practice. Rather, a
lawyer must inform the appropriate authority if the lawyer knows another lawyer has committed a violation of the Rules of Professional Conduct in a way that raises a substantial question about that lawyer’s
honesty, trustworthiness, or fitness as a lawyer in other respects [MR 8.3 (a)]. The issue in this case is
that the former roommate only had secondhand knowledge. Thus, this answer choice is incorrect.
(C) Incorrect. No, because the former roommate reasonably believes that the art dealer/attorney engaged in conduct that raises a substantial question as to the art dealer/attorney’s honesty, trustworthiness, or fitness as a lawyer.
This answer does not correctly reflect the stringent requirement that must be met before a lawyer is
under a duty to report another lawyer’s misconduct. A mere “reasonable belief” that misconduct has
been committed does not trigger a duty to report. Such reports have potentially devastating effects
on the lawyer who is reported. Bar investigations begin, investigatory bodies are under no duty to
withdraw a complaint if the reporter changes his or her mind, the investigated lawyer often must
retain counsel, and such investigations may drag on for long periods of time. Therefore, the legal
test is whether the reporting lawyer has actual knowledge that another lawyer has committed serious misconduct [MR 8.3]. Here, the former roommate merely received a hearsay report from a third
party who claims he overheard the art dealer/attorney defraud the customer. Such a report does
not satisfy the actual knowledge requirement stated in the Rule. Therefore, the former roommate is
under no duty to report the art dealer/attorney.
(D) Incorrect. No, because the former roommate has a duty to report dishonest conduct by another
member of the bar.
While it is true that a lawyer has a duty to report dishonest conduct by another lawyer, such a duty is
not triggered here. A lawyer must inform the appropriate authority if the lawyer knows another lawyer
has committed a violation of the Rules in a way that raises a substantial question about that lawyer’s
honesty, trustworthiness, or fitness as a lawyer in other respects [MR 8.3 (a)]. However, the roommate here does not know that the misconduct occurred. Rather, he only has a second-hand report
to go on. Thus, this answer is incorrect.
Explanation: Question 2
The correct answer is: (A) Yes, because he did not allow the client to testify.
Model Rule 1.2(a) states: “…the lawyer shall abide by a client’s decisions concerning the objectives of representation and, as required by Rule 1.4, shall consult with the client as to the means by which they are to be
pursued…In a criminal case, the lawyer shall abide by the client’s decision, after consultation with the lawyer,
as to a plea to be entered, whether to waive jury trial, and whether the client will testify.” Thus, this answer
choice is correct because the attorney should have let the client testify despite the attorney’s misgivings.
373
PRACTICE TEST 3
(B) Incorrect. Yes, because he did not call the client’s brother as a character witness.
The attorney should have let the client testify despite his misgivings. This answer choice is incorrect,
because the attorney’s refusal to call the client’s brother to testify was an appropriate tactical decision
and thus would not be the reason why the attorney would be subject to discipline. “A lawyer and a client may disagree about the means to be used to accomplish the client’s objectives. 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” [MR 1.2 [cmt 2]].
(C) Incorrect. No, because an attorney can choose the trial strategy.
This answer choice is only partially correct. “A lawyer and a client may disagree about the means to
be used to accomplish the client’s objectives. 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” [MR 1.2 [cmt 2]]. However, it is not the best
answer in this instance because there are specific strategic decisions over which the client in a
criminal case has control. For example, Model Rule 1.2(a) specifically states: “In a criminal case,
the lawyer shall abide by the client’s decision, after consultation with the lawyer, as to a plea to be
entered, whether to waive jury trial, and whether the client will testify.” Thus, the attorney was not
free to choose the trial strategy in this instance and should have let the client testify.
(D) Incorrect. No, because the client was acquitted.
This answer is incorrect because it is irrelevant. The issue here is the attorney’s compliance with the
standards of professional responsibility and respect for the client’s wishes. Regardless of the fact
that the client was ultimately acquitted, the attorney still had an obligation to let the client testify pursuant to Model Rule 1.2(a), which specifically states: “In a criminal case, the lawyer shall abide by
the client’s decision, after consultation with the lawyer, as to a plea to be entered, whether to waive
jury trial and whether the client will testify.”
Explanation: Question 3
The correct answer is: (D) No, because the attorney needs to do so to defend herself against the charge
of knowingly possessing heroin.
This is the correct answer choice because a lawyer may reveal otherwise confidential information to the
extent necessary to defend herself against a criminal charge against the lawyer that is based upon the
client’s conduct [MR 1.6]. Thus, the rule requiring a lawyer to keep a client’s confidences does not require
a lawyer to “take the fall” for a client. Model Rule 1.6 creates a specific exception to the lawyer’s duty of
loyalty and ethical duty of confidentiality in this instance.
(A) Incorrect. Yes, because doing so would violate the attorney’s duty of confidentiality to the client.
According to Model Rule 1.6, a lawyer is not permitted to reveal confidential client information unless
doing so is permitted under the narrow circumstances prescribed in the rule. One such recognized
circumstance provides that a lawyer may reveal otherwise confidential information to the extent necessary to establish a defense to a criminal charge against the lawyer that is based upon the client’s
conduct. The attorney’s ethical obligations do not require her to forgo her defense that she didn’t
know she possessed the heroin. Therefore, this is not the best answer.
(B) Incorrect. Yes, because the client specifically requested that the attorney not tell anyone about the pills.
Even though a lawyer has a duty to keep confidences in general, and even though a client may
specifically ask her to keep a confidence, she may reveal otherwise confidential information to
the extent necessary to defend herself against a criminal charge based upon the client’s conduct.
Therefore, the fact that the client specifically requested confidentiality does not resolve the issue.
374
ANSWERS AND ANSWER EXPLANATIONS
(C) Incorrect. No, because the pills and all communications related to them are protected from disclosure by the attorney-client privilege.
This answer choice is incorrect for two reasons. First, the attorney-client privilege is an evidentiary
rule limiting the compelled disclosure of communications between an attorney and client in litigation.
The pills themselves are not a communication, so they cannot be protected by the privilege covering
attorney-client communications. Second, no one seeks to compel the client or the attorney to disclose
their communications to each other. The attorney wishes to reveal the client’s behavior in bringing the
pills, not what he said to her. Thus, the attorney-client privilege is inapplicable to the instant facts.
Explanation: Question 4
The correct answer is: (B) No, because the attorney had mediated the original dispute between the partners.
A lawyer who mediates a matter cannot thereafter represent one of the parties in a subsequent dispute
with the any of the other parties unless all the parties consent in writing [MR 1.12(a)]. This reflects the
fact that, to satisfactorily resolve a dispute, an adjudicatory officer typically learns information revealed
in confidence. Although this information is not protected under the Rules, mediators typically owe the
parties to a mediation an obligation of confidentiality under law or codes of ethics governing third-party
neutrals [MR 1.12 [cmt. 3]]. In this case, the suing partner had not given written consent to the mediator’s
representation of her ex-partner, so the attorney may not represent the non-suing partner in this litigation.
Therefore, the attorney will be subject to discipline for filing the answer, making this the correct answer.
(A) Incorrect. No, but the attorney is not subject to discipline because while the Rules advise against
subsequent representation of one party to a mediation if it appears improper, the attorney did not
overreach by merely filing an answer.
Although this choice reaches the right conclusion, it does so for the wrong reason. A lawyer who mediates a dispute cannot represent one of the parties in a subsequent dispute with the any of the other
parties unless all the parties consent in writing [MR 1.12(a)]. This Rule is mandatory, not advisory,
and does not require a showing of “overreaching.” Its purpose is to prohibit overreaching before it
occurs. Because the attorney filed an answer on the non-suing partner’s behalf, she will be subject
to discipline, making this answer incorrect.
(C) Incorrect. Yes, because the suing partner had hired a new attorney, so the attorney’s representation
of the non-suing partner did not put the suing partner at a disadvantage.
Without the written consent of all the parties involved in a past mediation, a lawyer cannot represent
one of the parties in a subsequent dispute with any of the other parties [MR 1.12(a)]. This Rule is
mandatory, not advisory, and the relative disadvantage of the parties has no bearing on its applicability. Therefore, because the attorney filed an answer on the non-suing partner’s behalf, she will be
subject to discipline, making this answer incorrect.
(D) Incorrect. Yes, because the attorney had already represented the non-suing partner in the mediation.
The lawyer did not represent the non-suing partner in the mediation. A mediator does not “represent” any
party in a mediation. Instead, mediators are, by definition, third-party neutrals. Furthermore, the Model Rules
prohibit a lawyer who mediates a dispute from representing one of the parties in a subsequent dispute with
the other parties unless all the parties consent in writing [MR 1.12(a)]. Therefore, because the attorney filed
an answer on the non-suing partner’s behalf, she will be subject to discipline, making this answer incorrect.
Explanation: Question 5
The correct answer is: (C) No, because the caller initiated the contact with the attorney.
The lawyer’s participation in the radio show, taking calls from listeners, and agreement to see a potential
client with whom the lawyer talked on the show did not violate any of these rules. Thus, this answer choice
375
PRACTICE TEST 3
is correct. The caller initiated the contact with the attorney. The radio show was neither a solicitation for
clients, nor an advertisement for the attorney. The closest analogy is a seminar for the public where lawyers talk about matters of interest, which is permitted. Listeners are free to contact the lawyer thereafter,
which is what happened here.
(A) Incorrect. Yes, because the attorney is not permitted to solicit professional employment from a prospective client by in-person, live telephone, or real-time electronic contact when a significant motive
for his doing so is his pecuniary gain, unless the person contacted is a lawyer or has a family, close
personal, or prior professional relationship with him.
While this answer choice correctly states the rule against soliciting professional employment from
a prospective client by live telephone or real-time electronic contact, that rule does not apply. The
attorney did not solicit this client. The radio show, like informational seminars given by attorneys, is
permissible where the lawyer does not seek out clients. Nothing in the facts indicates that the lawyer
is asking people to contact him.
(B) Incorrect. Yes, because the attorney had no expertise in landlord-tenant law or eviction proceedings
and thus no basis on which to accept the representation.
This answer choice is incorrect because it is irrelevant to the question of whether the attorney would
be subject to discipline in this scenario. The attorney’s participation in the radio show, taking of calls
from listeners, and agreement to see a potential client with whom the lawyer talked on the show did
not violate the Rules. It is irrelevant whether or not the attorney specialized in landlord-tenant law or
eviction proceedings.
(D) Incorrect. No, because the attorney’s statement during the radio broadcast, while it was a real-time
electronic contact soliciting professional employment, was not false or misleading.
This answer choice is incorrect because the attorney’s statement during the radio broadcast was not a realtime electronic contact soliciting professional employment. The “false or misleading” test applies to advertising, and nothing in the facts indicates that this was an advertisement created or paid for by the attorney.
Explanation: Question 6
The correct answer is: (B) Yes, because while the partners’ reciprocal client-referral agreement is proper,
their fee-splitting and partnership are not.
Fee-splitting between a lawyer and a non-lawyer is prohibited, except under very limited circumstances,
such as paying death benefits to a lawyer’s estate, purchasing the law practice of a deceased, disabled, or
disappeared lawyer, employee compensation plans, and the like [MR 5.4(a)]. Similarly, there is a prohibition
against a lawyer entering into a partnership with a non-lawyer if any of the partnership’s business constitutes
the practice of law [MR 5.4(b)]. Moreover, a lawyer is generally prohibited from giving anything of value to
a non-lawyer for recommending the lawyer’s services [MR 7.2(b)]. However, that subsection contains a
limited exception permitting a lawyer to “refer clients to another lawyer or a non-lawyer professional pursuant to an agreement not otherwise prohibited under these Rules that provides for the other person to refer
clients or customers to the lawyer, if (i) the reciprocal referral agreement is not exclusive, and (ii) the client
is informed of the existence and nature of the agreement.” Thus, this answer choice is correct. As stated
in Model Rule 5.4(a), the lawyer cannot form a partnership with non-lawyers and, as stated in Model Rule
5.4(b), she cannot legally split fees with non-lawyers. Non-lawyer professionals and lawyers may enter into
reciprocal client-referral agreements under 7.2(b)(4), but the rest of their arrangement is improper.
(A) Incorrect. Yes, because non-lawyer professionals and lawyers are forbidden to enter into reciprocal
client-referral agreements.
This answer choice is wrong because non-lawyer professionals and lawyers are permitted to enter
into reciprocal client-referral agreements under Model Rule 7.2(b)(4), and theirs complies with all
terms in the rule. So, that is not the reason their arrangement is improper.
376
ANSWERS AND ANSWER EXPLANATIONS
(C) Incorrect. No, because the lawyer can split fees with non-lawyer members of a partnership.
This answer choice is wrong because, as stated in Model Rule 5.4(a), the lawyer cannot form a
partnership with non-lawyers and, as stated in Model Rule 5.4(b), she cannot legally split fees with
non-lawyers. Non-lawyer professionals and lawyers may enter into reciprocal client-referral agreements under 7.2(b)(4), but the rest of their arrangement is improper.
(D) Incorrect. No, not if the lawyer stops splitting fees, because lawyers can form partnerships with nonlawyers as long as the non-lawyers are members of a profession, and both the real estate broker
and the registered insurance agent qualify.
As stated in Model Rule 5.4(a), a lawyer cannot form a partnership with non-lawyers and, as stated in Model Rule 5.4(b), she cannot legally split fees with non-lawyers. Thus, this answer choice is wrong, because
merely stopping the fee-splitting will not cure the illegality of the lawyer’s partnership with non-lawyers.
Explanation: Question 7
The correct answer is: (B) Yes, because a prosecutor has special duties to the justice system and the
district attorney did not have probable cause to charge the reputed smuggler.
A prosecutor in a criminal case must not prosecute a charge unless the prosecutor knows the charge is supported by probable cause [MR 3.8]. Furthermore, a prosecutor is not simply an advocate with a duty to prosecute zealously. Rather, the prosecutor has the higher responsibility to prevent the conviction of innocent
people [MR 3.8 [cmt 1]]. Therefore, the district attorney will be subject to discipline because he did not have
probable cause to charge the defendant for the crime depicted on the video, making this answer correct.
(A) Incorrect. Yes, because the district attorney was motivated by personal ambition, as well as public protection.
While it was unwise for the district attorney to be motivated by personal ambitions, rather than protection of the public, that alone does not violate the Rules. However, a prosecutor must not bring
a charge unless the he knows it is supported by probable cause [MR 3.8]. Therefore, although the
district attorney will be subject to discipline, it is because he did not have probable cause to charge
the reputed smuggler with the crime captured in the video, making this answer incorrect.
(C) Incorrect. No, because a prosecutor has a duty to prosecute zealously, and the district attorney
honestly believed that the prosecution would reduce local crime.
Although a prosecutor has a duty to prosecute zealously, he must also act to prevent the conviction
of innocent people [MR 3.8 [cmt 1]]. Furthermore, a prosecutor must have probable cause to bring
a charge. In this case, the district attorney’s honest belief that prosecution and a plea bargain would
reduce local crime does not excuse a violation of Rule 3.8. Therefore, this answer is incorrect.
(D) Incorrect. No, because the district attorney had probable cause to believe that the reputed smuggler
had committed other crimes.
Prosecutors are required to have probable cause to bring a charge [MR 3.8]. While the district attorney had probable cause to believe the reputed smuggler had committed other acts of smuggling,
he had no probable cause to believe the defendant committed the crime with which he was charged.
Therefore, the district attorney will be subject to discipline, making this answer incorrect.
Explanation: Question 8
The correct answer is: (B) She should follow her client’s instructions not to tell his father about the felony
charge and ignore the father’s instructions to take a hard line with the DA if she disagrees with that strategy.
A lawyer cannot accept compensation from a third party to represent a client unless the client gives informed consent, the payor does not interfere with the representation, and the lawyer protects the information he or she acquires during the course of the representation [MR 1.8]. Here, the son is the attorney’s
377
PRACTICE TEST 3
client, so the attorney cannot let the obligation to the payor interfere with her ability to represent her client
as she sees fit or violate her client’s confidentiality in order to accommodate the payor. Therefore, the attorney must not tell the father about the felony charges and must ignore the father’s instructions to take a
hard line with the DA if she disagrees with that strategy, making this the correct answer.
(A) Incorrect. She should withdraw from representation because an actual conflict of interest has developed.
This answer is misleading because it states a correct rule but applies it to the wrong parties. The
Model Rules warn against allowing payors to unduly influence the independence of a lawyer’s representation [MR 1.8]. However, when a third party is paying for the attorney’s representation of a
client, there are steps an attorney can take to ensure that the attorney can continue to exercise
independent judgment on behalf of the client. Furthermore, in this case, an actual conflict of interest
has not developed between the client and his father. Therefore, the attorney need not withdraw from
representation, making this answer incorrect.
(C) Incorrect. She should tell the father about the felony charge, because a lawyer is required to inform
clients of all important developments in a matter.
This answer is tempting because it states a correct rule. Specifically, it is true that a lawyer is required
to inform clients of all important developments in a matter [MR 1.6]. However, in this case, the father
is not the attorney’s client. Therefore, because the Model Rules protect the confidentiality of clients’
information, the attorney cannot tell the father about the felony charge, making this answer incorrect.
(D) Incorrect. She should obtain the father’s informed written consent to take a different approach with
the DA and obtain her client’s informed written consent to tell his father about the felony charge.
It is true that a lawyer is required to inform clients of all important developments in a matter [MR
1.6]. However, in this case, the father is not the attorney’s client; he is merely a third-party payor.
Therefore, the attorney does not need to get the father’s written consent to handle the case in the
way she thinks is best for her client. If she wants to inform the father about the felony charges, she
must get her client’s informed consent. Therefore, because the attorney does not need to obtain the
father’s written consent, this answer is incorrect.
Explanation: Question 9
The correct answer is: (B) No, because the trial judge practiced law with the partner when the present
case was filed.
A judge shall disqualify himself or herself in any proceeding in which the judge’s impartiality might reasonably be questioned, including but not limited to when the judge: (a) served as a lawyer in the matter
in controversy, or was associated with a lawyer who participated substantially as a lawyer in the matter
during such association [CJC 2.11(A)(6)(a)]. This rule embodies a policy choice. Not every lawyer with
whom a judge was formerly associated now appearing before the judge automatically disqualifies the
judge from hearing the case being handled by that lawyer. That would result in numerous disqualifications
where the link between the judge and lawyer is not close enough reasonably to call the judge’s impartiality into question. Instead, disqualification is mandated where this degree of closeness is present: Where
the judge was associated with a lawyer who “participated substantially” in the present matter before the
judge during their association. This answer choice is correct, because this is the situation described in
the rule: the trial judge practiced with the partner who “participated substantially”—he filed the case and
was and is lead counsel.
(A) Incorrect. No, because the trial judge practiced law with the associate who previously represented
one of the shareholders in the present case.
This answer choice is incorrect because it includes the associate. The fact that the associate, with
whom the judge previously practiced, represented one of the disgruntled shareholders in an unrelated personal injury suit is not a close enough association to disqualify a judge.
378
ANSWERS AND ANSWER EXPLANATIONS
(C) Incorrect. Yes, because the trial judge did not personally and substantially participate in any prior
case involving the corporation or the three shareholders.
This answer choice is incorrect because the trial judge’s personal participation is not required to
cause disqualification. It is enough to disqualify if the trial judge was previously associated with a
lawyer who “participated substantially” in the case now before the trial judge. The fact that the trial
judge did not personally participate in any prior case involving the corporation or the three shareholders does not control this situation.
(D) Incorrect. Yes, because the trial Judge worked exclusively on family law cases while at the civil law
firm and so has no disqualifying bias or prejudice concerning the subject matter of the present case,
which concerns securities law.
This answer choice is incorrect, because no rule includes or excludes cases based on the “subject
matter” of the litigation. The fact that the trial judge worked only on family law matters at the civil law
firm and this case concerns securities regulation is irrelevant. Other rules disqualify judges if they
have personal knowledge of disputed facts, bias, or prejudice concerning a party or their lawyer, or
for other reasons. However, the subject matter of the case is not one of them.
Explanation: Question 10
The correct answer is: (D) No, because prospective clients are entitled to confidentiality.
The attorney cannot be compelled to testify as to the defendant’s statements because, even though no attorney-client relationship had ever been formed, information from prospective clients who do not go on to hire an
attorney are still subject to attorney-client privilege [MR 1.18]. Therefore, this answer choice is correct.
(A) Incorrect. Yes, because the defendant was never the attorney’s client and never paid the attorney a retainer.
Even though the defendant was never the attorney’s client, a discussion with a lawyer about possible representation prohibits the lawyer from using or revealing that information [MR 1.18]. The fact
that the defendant never paid the attorney a retainer or any money is irrelevant to confidentiality or
even to the formation of the relationship.
(B) Incorrect. Yes, because the attorney tried to assist the defendant in a fraud on the court by suggesting the employer’s consent as an affirmative defense.
This answer choice is wrong because the attorney did not attempt to assist the defendant in a fraud.
The attorney said that if what the defendant claimed about the employer’s understanding is true,
then the employer’s consent as an affirmative defense might be available.
(C) Incorrect. No, because the defendant could have believed that an attorney-client relationship had
been formed.
It is irrelevant to the outcome of this question whether the defendant reasonably or unreasonably
believed he had formed an attorney-client relationship. Information from prospective clients who do
not go on to hire an attorney is subject to attorney-client privilege [MR 1.18]. Because the defendant
here was certainly a prospective client, the attorney owes him a duty of confidentiality.
Explanation: Question 11
The correct answer is: (D) No, because the partner acted in a manner consistent with his duty to represent his client zealously within the bounds of the law.
The partner is not subject to discipline because he is obligated to respect his client’s lawful instructions
under his duty to represent his client zealously within the bounds of the law. Thus, this answer choice
states the correct rule of law. A lawyer should pursue a matter on behalf of a client despite opposition,
obstruction or personal inconvenience to the lawyer, and take whatever lawful and ethical measures are
379
PRACTICE TEST 3
required to vindicate a client’s cause or endeavor. A lawyer must also act with commitment and dedication
to the interests of the client and with zeal in advocacy upon the client’s behalf [MR 1.4 [cmt. 1]]. Thus, the
partner is not subject to discipline because he represented his client zealously within the bounds of the
law, and this answer choice is correct.
(A) Incorrect. Yes, because attorneys have an ethical obligation to grant each other professional courtesies.
This answer choice is incorrect because while the rules in several places encourage courtesy and
civility, no rule states an obligation to grant professional courtesies. For example, Model Rule 1.4,
Comment [1] states in part: “The 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.” This does not mandate courtesy. Thus, this answer is incorrect.
(B) Incorrect. Yes, because the court’s sanction is conclusive evidence that the partner violated his ethical obligation to agree to a reasonable request for an extension.
No rule obligates the partner to agree even to reasonable requests. Further, on these facts, the
request for extension is not a mere “reasonable request for a postponement that will not prejudice the lawyer’s client” [MR 1.3 [cmt. 3]]. It states in part: “A lawyer’s duty to act with reasonable
promptness, however, does not preclude the lawyer from agreeing to a reasonable request for a
postponement that will not prejudice the lawyer’s client.” Here, the plaintiff perceived any requests
for extensions as prejudicial to its economic survival and instructed the partner not to grant them.
If the partner disagreed with this strategy, his options were to refuse the representation, to limit its
scope, or to withdraw. The judge’s sanction is at worst evidence that the plaintiff’s refusal to allow
the partner to grant the newly admitted attorney’s request for an extension was unreasonable. It is
not conclusive evidence of any ethical violation by the partner.
(C) Incorrect. No, because as the plaintiff’s attorney, the partner may make routine decisions concerning the
means by which to accomplish the client’s objectives on matters that do not affect the merits of the case.
This answer choice is incorrect because the decision to deny the request for an extension is not a
routine decision concerning the means to accomplish the client’s objectives not affecting the merits
of the case. A lawyer does not have unlimited discretion to make even those decisions on his own.
With respect to the means by which the client’s objectives are to be pursued, the lawyer shall consult
with the client as required by Rule 1.4 (a)(2) (requiring consultation with the client about the means
by which the client’s objectives are to be accomplished) and may take such action as is impliedly
authorized to carry out the representation [MR 1.2 [cmt. 1]]. The plaintiff’s CEO made it clear that
she believed the defendant would use delay tactics, such as requests for extensions, to destroy
the plaintiff’s ability to obtain lawful redress for its injuries, and unequivocally instructed the partner
not to grant them. Such delay tactics on the defendant’s part themselves would violate the rules.
Although there will be occasions when a lawyer may properly seek a postponement for personal
reasons, it is not proper for a lawyer to routinely fail to expedite litigation solely for the convenience
of the advocates. Nor will a failure to expedite be reasonable if done for the purpose of frustrating an
opposing party’s attempt to obtain rightful redress or repose [MR 3.2 [cmt. 1]].
Explanation: Question 12
The correct answer is: (C) No, because the lawyer disclosed that her client would benefit from the recommended change, and she was free to keep the client’s identity secret.
The Model Rules allow a lawyer to work on law reform committees, provided that the lawyer discloses that
she has clients who stand to gain by a particular change [MR 6.4]. This balances the interests involved.
The lawyer disclosed to the commission that the interests of her client would be benefited by the change
in the law the lawyer recommended, and she was free to keep the client’s identity secret. Thus, the lawyer
will not be subject to discipline.
380
ANSWERS AND ANSWER EXPLANATIONS
(A) Incorrect. Yes, because not all experts feel that the law is unfairly biased in favor of landlords, and
the lawyer failed to reveal that fact.
Nothing in the Model Rules requires the lawyer to reveal the fact that not all experts feel that the law
is unfairly biased in favor of landlords or any other fact. As a result, this answer choice is incorrect.
(B) Incorrect. Yes, because the lawyer used her position on the commission to help a paying client and did not
state the tenant’s identity, which is a material fact that could have influenced the commission’s decision.
This answer choice is incorrect because nothing in the Model Rules prohibits the lawyer from taking
advantage of her position on the commission to help a paying client in her private practice. She is
not required to state the tenant’s identity, despite the fact that it might very well have influenced the
commission’s decision. Thus, this answer is incorrect.
(D) Incorrect. No, because the lawyer cannot be on a commission charged with making recommendations to the legislature on matters that directly involve her clients.
This answer choice is incorrect because the Model Rules seek to encourage, not prohibit, a lawyer’s
participation on such a commission where a lawyer’s practice is directly concerned with representing private clients concerning those matters. As long as the client’s interest is disclosed, the appropriate balance between public and private interests will be maintained.
Explanation: Question 13
The correct answer is: (B) Yes, because an attorney may refer to social and economic factors when advising a client.
The Model Rules do address the fact that extralegal factors often come into play when a lawyer advises a
client [MR 2.1]. In such a case, a lawyer can also refer to moral, social, economic, and political factors in
his advice. Here, the in-house counsel was asked to give a legal opinion, which he did. He also gave an
opinion on the course of action that he thinks would be best for the bank’s image, which is proper under
the Model Rules. However, when the CFO chose not to take the extralegal advice, the in-house counsel
had no further obligations on the issue.
(A) Incorrect. Yes, because in-house counsel have a responsibility to consider extralegal factors that
other attorneys do not.
The fact that the attorney in this situation is in-house counsel is not the reason why it was appropriate for him to address extralegal factors. The Model Rules state that any lawyer can refer to moral,
social, economic, and political factors in his advice [MR 2.1]. Therefore, this is not the best answer.
(C) Incorrect. No, because he should have contacted the Bank president when the CFO went against
his recommendation.
In-house counsel generally represent the corporation rather than individual people within it [MR
1.13]. Therefore, there are situations in which in-house counsel must report up the chain of command in the organization to prevent illegal acts that could harm the organization. However, this is
not such a situation. The in-house counsel offered two options to the CFO, both of which were legal,
and the CFO chose one of them. Therefore, the in-house counsel had no duty to inform higher-ups,
and this is not the best answer.
(D) Incorrect. No, because he should have presented all of the information without recommending what
the bank should do with its business.
Under the Model Rules, it is perfectly acceptable for a lawyer to refer to moral, social, economic, and
political factors when giving legal advice [MR 2.1]. Here, the in-house counsel was asked to give a
legal opinion, which he did. He also gave an opinion on the course of action that he thinks would be
best for the bank’s image, which is proper under the Model Rules.
381
PRACTICE TEST 3
Explanation: Question 14
The correct answer is: (B) Yes. An attorney should not take a case to represent a client if the attorney’s
personal feelings are so strong that the representation of the client is likely to be impaired.
This answer choice is correct because a lawyer may seek to avoid representation for good cause [MR
6.2]. An example of “good cause” includes where the client or cause is so repugnant to the lawyer as to
be likely to impair the client-lawyer relationship or the lawyer’s ability to represent the client [MR 6.2(c)].
(A) Incorrect. Yes. An attorney should not agree to represent a criminal defendant if the attorney has
already formed an opinion that the client is guilty.
This answer choice is incorrect, because there is no ethical or other rule that says an attorney
should not agree to represent a criminal defendant if the attorney has already formed an opinion
that the client is guilty. Defense counsel often concludes or is told by the defendant that the client is
guilty. That does not bar defense counsel from putting the prosecution to its proof, plea bargaining,
or any other aspect of defending the client.
(C) Incorrect. No. An attorney cannot make a false or misleading statement to a clerk of court once he
is sought as appointed counsel for an indigent criminal defendant.
This answer choice is incorrect, because it is irrelevant. The question asks if it was proper for the
criminal defense attorney to seek to avoid appointment to represent the defendant. The criminal
defense attorney should not have lied to the clerk of court, but that is irrelevant to whether he can
avoid taking a case under Model Rule 6.2(c).
(D) Incorrect. No. An attorney who asked to be on the list to represent indigent criminal defendants cannot
refuse to take cases offered once he is sought as appointed counsel for an indigent criminal defendant.
This answer choice is incorrect, because there is no ethical or other rule prohibiting a lawyer who
asked to be on the referral list from turning down a case he finds so repugnant that it will impair his
ability to represent the client.
Explanation: Question 15
The correct answer is: (B) No, because the judge did not tell the parties she was going to call the law professor.
A judge may obtain the written advice of a disinterested expert on the law applicable to a proceeding
before the judge, if the judge gives advance notice to the parties of the person to be consulted and the
subject matter of the advice to be solicited, and affords the parties a reasonable opportunity to object
and respond to the notice and to the advice received [CJC Rule 2.9(A)(2)]. This answer choice is correct
because the judge did not give the parties advance notice that she was going to call the law professor to
discuss the matter at hand. That is improper. The rule requires advance notice to the parties of the person
the judge plans to call and of what the judge wants to ask about so they can object and respond.
(A) Incorrect. No, because a judge cannot initiate an ex parte communication with respect to a pending matter.
This answer choice is incorrect because under the Code of Judicial Conduct, a judge is permitted
to initiate an ex parte communication with respect to a pending matter, as long as the judge first
provides advance notice to the parties of the person the judge plans to call and of what the judge
wants to ask about so that they can object and respond.
(C) Incorrect. Yes, because the judge is entitled to communicate ex parte whenever it is justified as here
in the interests of justice.
This answer choice is incorrect because a judge is not entitled to communicate ex parte whenever the judge feels it is justified, except as expressly permitted by Code of Judicial Conduct
Rule 2.9(A)(2).
382
ANSWERS AND ANSWER EXPLANATIONS
(D) Incorrect. Yes, because the law professor was a disinterested legal expert.
This answer choice is incorrect because the judge didn’t follow the notice procedure mandated by
Code of Judicial Conduct Rule 2.9(A)(2), and not because the law professor was a disinterested
legal expert, which is a permitted contact.
Explanation: Question 16
The correct answer is: (A) Yes, because she implied that she can improperly influence members of the
district attorney’s office.
It is professional misconduct for a lawyer to “state or imply an ability to influence improperly a government agency or official” [MR 8.4]. In this case, the statement in the attorney’s ad about being a former
prosecutor with ties to the DA’s office improperly implies that she has the ability to influence her former
colleagues. Thus, the attorney should be subject to discipline for this statement.
(B) Incorrect. Yes, because it is improper for her to take cases that involve her former colleagues.
A lawyer who has formerly served as a public officer or government employee must not represent
a client in connection with a matter in which the lawyer participated personally and substantially as
a public officer or employee, unless the appropriate government agency gives its informed written
consent. However, she can take cases that would pit her against former colleagues, making this
answer choice incorrect.
(C) Incorrect. No, because it is true that she is a former prosecutor with ties to the DA’s office.
It is professional misconduct for a lawyer to “state or imply an ability to influence improperly a government agency or official.” The statement in the attorney’s ad about being a former prosecutor with
ties to the DA’s office improperly implies that she can influence her former colleagues. She could
therefore be subject to discipline even though it is a true statement.
(D) Incorrect. No, because it is proper for a former prosecutor to begin a criminal defense practice.
It is true that a lawyer can ethically “switch sides,” including moving from being a prosecutor to a
criminal defense lawyer. However, it is professional misconduct for a lawyer to “state or imply an
ability to influence improperly a government agency or official” [MR 8.4]. In this case, the statement
in the attorney’s ad about being a former prosecutor with ties to the DA’s office improperly implies
that she has the ability to influence her former colleagues. Thus, the attorney should be subject to
discipline for this statement, making this answer choice incorrect.
Explanation: Question 17
The correct answer is: (C) Yes, because a lawyer is prohibited from offering inducements that could cause
expert or fact witnesses to vary their testimony.
A lawyer is prohibited from paying a witness based on the witness’s testimony [MR 3.4]. A lawyer may reimburse
a fact witness for expenses incurred in testifying, such as travel, hotel, and meals. The lawyer can also reimburse
a fact witness for losses incurred because the witness testified, such as lost wages or expenses paid to third
parties such as babysitters. A lawyer may pay an expert witness a fee for preparing to testify and for his time
spent testifying, in addition to offering reimbursement for expenses. However, no fee paid to a witness can be
contingent upon the outcome of the litigation or upon giving particular testimony. As such, this answer is correct.
(A) Incorrect. No, because it is reasonable to reward witnesses for going to the trouble of testifying.
This is not quite a true statement. A lawyer may pay a fact witness’ expenses and an expert witness
a fee for time spent preparing to testify and testifying, in addition to offering reimbursement for expenses. But this does not extend to paying witnesses based on the content of their testimony or the
outcome of the litigation.
383
PRACTICE TEST 3
(B) Incorrect. No, because payment of bonuses to both can be structured so that they are not offered as
incentives for particular testimony.
As indicated above, no fee paid to a witness can be contingent upon the outcome of the litigation or
upon giving particular testimony. To that end, there is no way to pay bonuses under the Model Rules.
As such, this answer choice is incorrect.
(D) Incorrect. Yes, because it is not part of the agreement with the client.
The expense agreement with the client in this instance would presumably have the client paying for the
lawyer’s payments to witnesses, which would include expenses and expert witness fees. The lawyer
could include any such expense in invoices to a client. However, the issue here is that no fee paid to a
witness can be contingent upon the outcome of the litigation or upon giving particular testimony [MR 3.4].
Explanation: Question 18
The correct answer is: (D) No, because the first case is still pending in the same court.
The Model Rules bar a lawyer from representing a client if the representation involves a concurrent conflict of interest — one in which the representation of one client will be directly adverse to the representation of another [MR 1.7]. While there is nothing wrong with a lawyer taking inconsistent legal positions in
different courts at different times, there is a problem in this instance with arguing two opposite positions
on pending cases before the same court. Invariably, one of the clients will prevail, and the one who does
not will have had his lawyer arguing against his position. While both clients could give informed consent
in writing, it is unlikely that they would. Thus, this answer choice is correct.
(A) Incorrect. Yes, because there is no evidence that the attorney will not be able to provide competent
and diligent representation to both the defendant and the plaintiff.
While it is true that the lawyer may be able to provide competent and diligent representation to both of these
parties, the attorney’s conduct is still not proper under the Model Rules. While there is nothing wrong with
a lawyer taking inconsistent legal positions in different courts at different times, there is a problem in this instance with arguing two opposite positions on pending cases before the same court. This violates Model Rule
1.7’s prohibition on concurrent conflicts of interest and would require written informed consent of both clients.
(B) Incorrect. Yes, because the attorney can get the written, informed consent of the second client.
Notwithstanding the existence of a concurrent conflict of interest, Model Rule 1.7 permits a lawyer to represent a client if four conditions are met. One of those conditions is that the lawyer must reasonably believe that he will be able to provide competent and diligent representation to each affected client. Another
condition that must be met when a concurrent conflict of interest exists in two cases a lawyer is handling
is that both affected clients must consent in writing to the mutual representation. Thus, this answer choice
is incorrect because both clients would have to consent in writing to the attorney’s mutual representation.
(C) Incorrect. No, because it would cause an appearance of impropriety.
The issue here is one more specific than an appearance of impropriety. Instead, the problem is the existence of a concurrent conflict of interest under Model Rule 1.7. To allow the lawyer to represent both of
these clients, he must reasonably believe that he will be able to provide competent and diligent representation to each affected client. Also, both affected clients must consent in writing to the mutual representation.
Explanation: Question 19
The correct answer is: (A) Yes, because she disclosed to the bar committee that she has clients who
could benefit from the change.
A lawyer may serve as a director, officer, or member of an organization involved in law reform even if the
reform may affect a client’s interests. However, if the lawyer knows the client may materially benefit from
384
ANSWERS AND ANSWER EXPLANATIONS
a decision in which the lawyer participates, the lawyer must disclose that fact to the organization, but need
not identify the client [MR 6.4]. Therefore, the lawyer acted properly when she supported the recommendation for video conferencing, but disclosed that she has an interested client.
(B) Incorrect. Yes, because her fiduciary duty of loyalty requires her to act in the best interests of her clients.
The Model Rules permit a lawyer to serve on a committee that is involved in law reform, and the
lawyer may carry out her duties to the committee even though the reform may affect a client’s interests (whether positively or negatively) [MR 6.4]. Therefore, in this case, the lawyer is not required
to protect her client’s interests when deciding on the proposed law, making this answer incorrect.
(C) Incorrect. No, because she should have withdrawn from the bar committee due to her conflict of interest.
A lawyer may serve on a committee involved in legal reforms that might affect her clients’ interests
without being deemed to have a conflict of interest [MR 6.4]. Accordingly, in this case, the lawyer
need not resign from the committee, making this answer choice incorrect.
(D) Incorrect. No, because she should have abstained from voting to avoid the appearance of impropriety.
“The appearance of impropriety” is not a legal standard that applies to lawyers. That standard applies only to members of the judiciary [CJC, Canon 1]. Therefore, this would not be a reason for the
lawyer to abstain from voting, making this answer incorrect.
Explanation: Question 20
The correct answer is: (C) No, because she has a duty to zealously represent her client and carry out his
wishes if there is a non-frivolous basis in law and fact for filing the suit.
The attorney must reject employment if she knows that the client wishes to institute a baseless lawsuit.
If she does file such a suit, she will be subject to discipline. However, the Model Rules give a very low
threshold for filing a suit or asserting a position. There must only be a “non-frivolous” basis in law and
fact for doing so [MR 3.1]. Here, the law entitles the guitar player to be free of encroachments, and the
driveway minimally encroaches on the guitar player’s land. So, there is at least a non-frivolous basis in
law and fact for the guitar player’s suit against the salesman, even if the attorney does not think the suit
is a good idea, and she would not be subject to discipline.
(A) Incorrect. Yes, because clients control the objectives of representation but lawyers control the means.
In this scenario, the attorney would not be violating Model Rule 1.2, which governs the objectives
and means of representation. Thus, this answer choice is incorrect. The guitar player’s objective—
making the salesman remove a driveway that is, in fact, on the guitar player’s property—is perfectly
legal. The attorney was required to consult with the guitar player concerning the means by which it
is to be pursued, and did so. No other means exist to accomplish that purpose: the salesman won’t
talk to the guitar player, so resolution short of litigation is not available. The attorney is free to refuse
the case or to later withdraw if she does not agree with the guitar player’s approach.
(B) Incorrect. Yes, because she knows that the suit would not serve the guitarist’s best interests.
An attorney must reject employment if she knows that the client wishes to institute a baseless lawsuit.
However, on these facts, the attorney would not be subject to discipline. The law entitles the guitarist to
be free of encroachments. The driveway is encroaching on the guitarist’s land. So, there is at least some
non-frivolous basis in law and fact for the guitarist’s suit against the salesman. The fact that the attorney
does not think that the suit would serve the guitarist’s interests well would not subject her to discipline.
(D) Incorrect. No, because the guitar player is entitled to access the courts under our legal system regardless of his wealth, motive, intent, or merits of the suit.
This answer choice is incorrect because it goes too far. While the guitar player’s wealth, unpleasant
motives, and mean-spirited intent are not relevant, the merits of his claim are. He is not entitled to file
385
PRACTICE TEST 3
a meritless suit—that is, one with no non-frivolous basis in law and fact. Filing an entirely meritless,
baseless suit would subject the attorney to discipline under the Model Rules.
Explanation: Question 21
The correct answer is: (C) No, because the judge must resign her judgeship immediately upon announcing her candidacy for attorney general.
Sitting judges occupy a high position of public trust. Therefore, allowing the judge to remain on the bench until
she is elected causes a risk that she will, even inadvertently, use her judicial office to promote her candidacy.
This is why the Code of Judicial Conduct Rule 4.5 requires judges, on becoming candidates for a non-judicial
elective office, to resign from judicial office unless otherwise permitted by law, making this answer incorrect.
(A) Incorrect. Yes, because she need not resign her judgeship until and unless she wins the election for
attorney general.
Upon becoming a candidate for a non-judicial elective office, a judge must resign from judicial office
unless otherwise permitted by law [CJC Rule 4.5]. This “resign to run” rule for elective office ensures
that a judge cannot use the judicial office to promote his or her candidacy and prevents post-campaign retaliation from the judge in the event he or she is defeated in the election. Attorneys general
are non-judicial elected officials. Therefore, the judge will be required to resign from her position as
a state trial judge as soon as she announces her candidacy, making this the correct answer.
(B) Incorrect. Yes, because she is under no obligation to resign her judgeship until just before she is
sworn in as attorney general.
The Model Code has a “resign to run” rule, which requires a judge to resign from judicial office upon
becoming a candidate for a non-judicial elective office [CJC Rule 4.5]. Waiting until she prevails in
the election runs the risk the rule is designed to avoid: using her judicial office to promote her candidacy. Thus, this answer is incorrect.
(D) Incorrect. No, because the judge must resign her judgeship immediately upon forming her own campaign committee to solicit contributions from the general public.
The risk of the judge using her judicial office to promote her candidacy begins as soon as she becomes a
candidate. Therefore, the Code has a “resign to run” rule, which requires a judge to resign from judicial office
upon becoming a candidate for a nonjudicial elective office [CJC Rule 4.5]. Therefore, this answer is incorrect.
Explanation: Question 22
The correct answer is: (B) Yes, because the lawyer is practicing in a firm in which a nonlawyer has the
right to direct or control the lawyer’s professional judgment.
Lawyers generally are not permitted to practice in a private firm in which a nonlawyer owns an interest. There is an
exception, however, for the kind of situation presented in this question. A fiduciary of the estate of a deceased lawyer may hold an interest in the firm for a reasonable time during administration of the estate. Even though the ownership by a nonlawyer is proper, the lawyer nevertheless may not practice in a firm in which a nonlawyer has the
right to direct or control the lawyer’s professional judgment. That is what is happening here, and it is not permitted.
(A) Incorrect. Yes, because the lawyer is practicing in a firm in which a nonlawyer owns an interest.
The junior partner may practice in a firm in which a nonlawyer owns an interest in the special circumstances that are present in this question. The widow is a fiduciary of the estate of a deceased lawyer,
and in that capacity she may hold an interest in the law firm, even as a nonlawyer, for a reasonable
period of time during the administration of the estate. Thus, this answer is incorrect.
(C) Incorrect. No, because nonlawyers may own an interest in a law firm during the administration of the
estate of a deceased lawyer who practiced with the firm.
386
ANSWERS AND ANSWER EXPLANATIONS
Nonlawyers may own an interest in a law firm under the enumerated circumstances. However, under no circumstances may a lawyer practice in a firm in which a nonlawyer has the right to direct or
control the lawyer’s independent professional judgment. Even though the widow’s ownership interest does not create a problem for the junior partner, he still is subject to discipline for practicing in a
firm in which a nonlawyer has the right to direct or control his independent professional judgment.
(D) Incorrect. No, because the decision not to file the suit was a question of judgment and a reasonable
resolution of an arguable question of professional duty.
The problem is not that this is a judgment call or even whether it is a reasonable judgment. The
problem is that the lawyer, rather than the nonlawyer widow, is the one who must exercise judgment.
The lawyer violates the rules of professional conduct by practicing in a firm in which the nonlawyer
has the right to direct or control the exercise of his professional judgment.
Explanation: Question 23
The correct answer is: (A) Yes, because she need not resign her judgeship to seek appointment from the
governor to the state supreme court.
Upon a judge becoming a candidate for a non-judicial office, the judge must resign, unless permitted by
law to remain in her judgeship [CJC 4.5]. However, in this case, the state supreme court is an appointed
judicial position. Therefore, the judge need not resign her judgeship to seek the appointment or publicly
announce she is seeking it, making this answer correct. Note that she is also not prohibited from resigning
from her current judgeship if she wants to for some reason.
(B) Incorrect. Yes, because she must be a sitting judge at the time of the appointment.
The Code of Judicial Conduct’s “resign to run” rule applies to elective non-judicial offices [CJC 4.5].
However, the CJC does not require a judge to resign while seeking an elected or appointed judicial
position. In this case, the state supreme court position is an appointed judicial office. Therefore, the
judge need not resign. According to the Model Code, as long as a judge complies with the Model
Code of Judicial Conduct, a judge may remain on the bench upon becoming a candidate for an appointive office. She need not be a sitting judge when appointed under the CJC, however.
(C) Incorrect. No, because she must resign her judgeship and publicly announce that she is not a candidate for any public office when she formally seeks appointment from the governor.
In this case, no law requires the judge to resign her judgeship in order to seek appointment or
publicly announce that she is seeking an appointment. Therefore, as long as the judge otherwise
complies with the Model Code of Judicial Conduct, she may remain on the bench upon becoming a
candidate for an appointed judicial office, but does not necessarily need to do so.
(D) Incorrect. No, because she must resign her judgeship immediately upon seeking appointment from
the governor even if she makes no announcement about it.
As indicated above, the judge is not required to resign from her judgeship in order to seek appointment or to publicly announce that she is seeking an appointment. Therefore, as long as the judge
otherwise complies with the Model Code of Judicial Conduct, she may remain on the bench upon
becoming a candidate for an appointed judicial office, but need not do so if she would like to resign.
Explanation: Question 24
The correct answer is: (C) No, unless the corporation’s consent was given by the director.
A lawyer may represent an entity and an employee of that entity, subject to the concurrent conflict of interest rules. Here, the lawyer reasonably believed that the conflict was consentable, and the lawyer obtained
informed consent. The only special rule in this situation is that the consent of the entity must come from
someone other than the affected individual. As long as the consent was given by someone other than the
director, then the attorney is not subject to discipline.
387
PRACTICE TEST 3
(A) Incorrect. Yes, because the conflict was not consentable.
The conflict was consentable because the lawyer reasonably believed that he could provide competent and diligent representation to both clients, and none of the other rules that make a conflict
unconsentable apply. There is no special rule on consentability for conflicts between entity clients
and clients who are constituents of that entity. Thus, this answer is incorrect.
(B) Incorrect. Yes, because a lawyer may not represent an entity and a constituent of that entity in the
same matter.
A lawyer may represent an entity and a constituent of that entity if the concurrent conflict of interest
rules are satisfied. There is no absolute rule against such representations. The only special rule
is that the consent of the entity must come from someone other than the represented constituent.
Thus, this answer is incorrect.
(D) Incorrect. No, because the conflict was consentable and the lawyer obtained informed consent from
both clients.
The lawyer followed all the usual right steps to undertake a joint representation, but there is a special
rule in this circumstance. The corporation’s consent may not come from the individual client. Therefore, this answer is incomplete. To be complete, it would need to also state that the corporation’s
informed consent came from someone other than the director. Thus, this answer is incorrect.
Explanation: Question 25
The correct answer is: (A) Yes, because the juror had made it known to the lawyer that the juror did not
wish to communicate.
The Model Rules regulate lawyers’ post-trial contacts with jurors. One circumstance under which a lawyer
may not make such contact is when the juror has made it known to the lawyer that the juror does not
wish to communicate. Here, the juror did so by hanging up. The lawyer has other remedies available to
him, such as a motion to the court to require the juror to testify about the alleged misconduct. To continue
direct, unsupervised contact with a juror after the juror has hung up is misconduct. Therefore, this is the
correct answer to this question.
(B) Incorrect. Yes, because the lawyer made a post-trial contact with a juror.
Some post-trial contacts are permitted by the rules of professional conduct. In fact, lawyers may
make such contacts unless they are prohibited by law or court order; if they involve misrepresentation, coercion, duress, or harassment; or as here, the juror has made it known that the juror does not
wish to communicate. Since not all forms of post-trial contact with jurors are prohibited, this answer
is incorrect.
(C) Incorrect. No, unless the contact was prohibited by law or by court order.
The lack of a law or court order to prohibit the contact is only one of the conditions that would make
a post-trial contact with a juror permissible. Even if there is no such law or order, the contact is impermissible when the juror has made it known that the juror does not wish to communicate with the
lawyer. Thus, this answer is incorrect.
(D) Incorrect. No, because the lawyer was investigating alleged juror misconduct.
The lawyer is investigating juror misconduct, but that is not an exception in the Model Rules to
the general rule against post-trial contacts with jurors when the juror has made it known that the
juror does not wish to communicate. The lawyer would need to interview other jurors and perhaps
invoke other remedies, such as a motion to the court for the court’s assistance, to obtain the information that the lawyer needs in order to know if juror misconduct occurred. Thus, this answer
is incorrect.
388
ANSWERS AND ANSWER EXPLANATIONS
Explanation: Question 26
The correct answer is: (C) No, because a lawyer should not withhold information for her own convenience.
In some circumstances, a lawyer may be justified in delaying transmission of information when the client would
be likely to react imprudently to an immediate communication, such as a psychiatric diagnosis of a client when
the examining psychiatrist indicates that disclosure would harm the client. A lawyer may not, however, withhold
information to serve the lawyer’s own interest or convenience. Here, the client’s reaction is not likely to rise
to the level of damage, thus the information should not be withheld merely for convenience [MR 1.4 [cmt. 7]].
(A) Incorrect. Yes, because a lawyer may delay communication in certain circumstances.
It is true that a lawyer may delay communication when it would harm the client. However, this does
not appear to be one of those circumstances since the lawyer would be withholding the information
merely for her own convenience. Thus, the lawyer should reveal the information.
(B) Incorrect. Yes, because a lawyer may use her own judgment to decide what information to share
with a client.
This is not true. A lawyer owes a duty of communication to the client and may not withhold information merely for his or her own inconvenience.
(D) Incorrect. No, because a lawyer never has a right to withhold information from a client.
This is not true. There are limited situations where it is permissible to withhold information from a
client, such as if it would harm the client. Thus, this answer is incorrect.
Explanation: Question 27
The correct answer is: (A) Yes, because the fees charged to the clients of the practice increased.
The sale of a law practice is permitted, and everything about this sale conforms to the rules except the
increase of the fees charged to the clients. The rules protect clients by forbidding a sale that causes the
clients’ fees to increase. Thus, the new lawyer is subject to discipline.
(B) Incorrect. Yes, because the sale of a law practice is not permitted.
The sale of a law practice is permitted, but it is also regulated. It can proceed only if all the conditions of the rule are met, and this sale is in compliance except for the increase in fees to the clients.
(C) Incorrect. No, because the lawyer purchased the practice from a lawyer who retired and thereby
ceased to engage in the practice of law.
One of the conditions for the sale of a law practice is met when the seller ceases altogether to
practice law, as this retiring lawyer did. However, there are other conditions, and one of those conditions—that the fees charged to the clients not increase—was not met here.
(D) Incorrect. No, unless the fee increases to the clients would result in the charging of an unreasonable fee.
Lawyers generally may not charge unreasonable fees, but the rule is even stricter in the sale of a
law practice. The fees charged to the clients may not increase at all as a result of the sale, even if
the new, higher fee would still be reasonable.
Explanation: Question 28
The correct answer is: (C) No, because an attorney must hold property with the care of a fiduciary.
A lawyer should hold property of others with the care required of a professional fiduciary. Securities
should be kept in a safe deposit box, except when some other form of safekeeping is warranted by special
circumstances. All property that is the property of clients or third persons, including prospective clients,
must be kept separate from the lawyer’s business and personal property. Here, mingling the client’s prop-
389
PRACTICE TEST 3
erty with his own and storing it under the bed is not appropriate conduct [MR 1.15]. Thus, the lawyer is
subject to professional discipline.
(A) Incorrect. Yes, because an attorney has no particular obligation to safeguard his client’s property.
This statement is not true. A lawyer should hold property of others with the care required of a professional fiduciary. In fact, the rules of professional conduct place specific limitations on how the
property may be stored. Thus, this answer is incorrect.
(B) Incorrect. Yes, because an attorney may keep a client’s tangible property commingled with his own
in a place he deems safe.
This is also an incorrect statement. All property that is the property of clients or third persons, including prospective clients, must be kept separate from the lawyer’s business and personal property.
Since the lawyer clearly mixed his own property with the property of clients, this answer is incorrect.
(D) Incorrect. No, because an attorney must not hold tangible client property.
Lawyers may hold client property, but they must hold it securely, with the care required of a professional fiduciary. This is an incorrect statement, and therefore, an incorrect answer choice.
Explanation: Question 29
The correct answer is: (C) The court should disqualify neither the lead trial attorney nor that attorney’s law firm,
because the lead trial attorney is testifying about the nature and value of legal services rendered in the case.
The rule on lawyers’ acting simultaneously as advocates and as witnesses has many elements. Here,
the lawyer is testifying about something that is within the lawyer’s personal knowledge and is ancillary to
the underlying dispute. Allowing the advocate to give this testimony without being disqualified makes the
trial more efficient, because the lawyer need not retain an expert to testify about the fees or find separate
counsel. This is a type of testimony that an advocate is permitted to give.
(A) Incorrect. The court should disqualify the lead trial attorney for the plaintiff and that lawyer’s law firm,
because the lead trial attorney would be acting as an advocate and a witness in the same case.
With certain exceptions, a lawyer may not be an advocate and a witness in the same proceeding.
However, unless that lawyer’s testimony would create a conflict of interest with the lawyer’s client
(such as when the testimony would undermine the client’s case), the conflict is personal to the
testifying lawyer and is not imputed to that lawyer’s firm. One reason for the general rule against
simultaneously being an advocate and a witness is to avoid jury confusion over the role the lawyer
is in when the lawyer speaks. The rule presumes that personal disqualification cures that problem
and that imputed disqualification of the firm of the lawyer-witness would not be necessary. Thus, this
answer is incorrect.
(B) Incorrect. The court should disqualify the lead trial attorney, but not the lead trial attorney’s law firm,
because it is unlikely that the jury would be misled as to the role of the other lawyers in the lead trial
attorney’s law firm.
There are certain exceptions to the need to disqualify even the particular lawyer who is testifying.
One of those exceptions applies here, because the lawyer-advocate is testifying only about the nature and value of legal services rendered to the client. Thus, this answer is incorrect.
(D) Incorrect. The court should disqualify neither the lead trial attorney nor that attorney’s law firm, because the lead trial attorney’s testimony will be helpful to the plaintiff.
The lawyer can be disqualified as an advocate even when the testimony is favorable to the client.
This is to avoid jury confusion about the lawyer’s role. Imputed disqualification is what is tied to the
possibility that the lawyer’s testimony would harm the client. If the testimony would be harmful to
the client, the lawyer and the firm would have a conflict of interest. Thus, this answer is incorrect.
390
ANSWERS AND ANSWER EXPLANATIONS
Explanation: Question 30
The correct answer is: (B) Yes, unless the lawyer revealed to the committee that the lawyer was there in
a representative capacity.
This lawyer was representing a client before a non-adjudicative body. To protect the integrity of such proceedings, the lawyer must reveal that he is there in a representative capacity. The legislators are entitled
to take that into account as they decide how much weight to give to his testimony in opposition to the
legislation. Thus, the lawyer will be subject to professional discipline, unless he revealed to the committee
that he was there in a representative capacity.
(A) Incorrect. Yes, unless the lawyer identified the client on whose behalf the lawyer was appearing.
The lawyer is obligated to tell the committee that he is there in a representative capacity, but the
lawyer is not required to identify the client. The committee members need to know that the lawyer is
not giving a disinterested opinion about the wisdom of the legislation, but, once they know that, they
can give the testimony whatever weight they deem appropriate. Revealing the identity of the client
is not necessary to protect the integrity of the proceedings.
(C) Incorrect. No, because the lawyer’s testimony was truthful.
Lawyers are required to be truthful in non-adjudicative proceedings. However, it is not enough to
be truthful when the lawyer appears in a representative capacity. The lawyer must also reveal that
capacity. Thus, this answer is incorrect.
(D) Incorrect. No, because lawyers are not subject to bar discipline for appearances in nonadjudicative proceedings.
The Model Rules do regulate lawyers in their appearance before non-adjudicative bodies like legislative committees. The reason is that such entities should have the right to expect lawyers to deal
with the entities in the same way in which the lawyers deal with courts.
Explanation: Question 31
The correct answer is: (C) No, as long as the lawyer was not involved in the case.
Lawyer speech regarding pending cases is regulated to ensure that cases are decided in courtrooms
rather than in the media. However, those regulations cover only lawyers who are or who have been involved in the matter. Other lawyers presumably do not have the incentive or the inside information to try
to manipulate a result by public extrajudicial comments. Thus, this is the best answer to this question.
(A) Incorrect. Yes, because the lawyer discussed the expected testimony of a witness.
In general, lawyers are not supposed to make extrajudicial comments about the expected testimony
of a witness. However, lawyers who are not and never have been involved in a case may make such
comments without fear of discipline. Thus, this answer is incorrect.
(B) Incorrect. Yes, because the lawyer revealed the results of the polygraph examination.
Lawyers generally may not comment on the results of any test or examination concerning evidence
or testimony in a case in which they are involved or in which they have been involved. However, a
lawyer with no past or present involvement in a case is free to comment on such tests or examinations. Therefore, this answer is incorrect.
(D) Incorrect. No, because lawyers have First Amendment rights to speak about pending cases.
This answer is overbroad. Lawyers do have First Amendment rights, but the rules of professional conduct
regulate lawyer speech about cases in which the lawyer is or has been involved in order to ensure another
constitutional right, the right of due process for the parties to the case. To make sure cases are decided
in courtrooms rather than in the media, lawyers’ First Amendment rights may be, and are, circumscribed.
391
PRACTICE TEST 3
Explanation: Question 32
The correct answer is: (C) No, because a financial burden must be unreasonable in order to constitute
good cause to avoid a court appointment.
Lawyers may seek to avoid a court appointment only for good cause. This attorney’s complaint is about the
financial impact the appointment will have. Financial sacrifice per se is not “good cause” to avoid a court
appointment. The financial burden must be an unreasonable one in order to constitute good cause. Since
the appointment would not impose a large financial burden on the attorney, and he only seeks to avoid the
appointment to increase his profit margins, it is not proper for the attorney to seek to avoid the appointment.
(A) Incorrect. Yes, because the representation will impose a financial burden on the lawyer.
Most court appointments will impose a financial burden on an attorney. Despite that burden, it is
expected that attorneys will accept court appointments as part of the lawyer’s broader duty of public
service. Only if the financial burden is unreasonable is the lawyer permitted to seek to avoid the appointment on financial grounds. Thus, this answer is incorrect.
(B) Incorrect. Yes, because lawyers are not obligated to accept court appointments.
Lawyers are obliged to accept court appointments unless good cause exists to seek to avoid the
appointment. This answer, therefore, is incorrect.
(D) Incorrect. No, because attorneys are obligated to accept court-appointed cases.
Attorneys have an obligation to accept court appointments, but this answer is too categorical. Lawyers may seek to avoid appointments if good cause exists to do so. To say that this attorney may not
seek to avoid the appointment ignores the lawyer’s right to seek to avoid a particular appointment
for good cause, such as a conflict of interest or the imposition of an unreasonable financial burden.
Thus, this answer is incorrect.
Explanation: Question 33
The correct answer is: (D) No, because the former employee no longer worked for MMI.
The no-contact rule does not apply to former employees of a represented organization. Subject to limits
on obtaining evidence in violation of the rights of MMI (such as by asking for privileged information from
the former employee), the lawyer could contact the former employee without the permission of MMI’s
counsel. Because the lawyer could do it, the lawyer’s agent, the investigator, can make the contact without subjecting the attorney to discipline.
(A) Incorrect. Yes, if the attorney knows that MMI is represented by counsel in this matter.
Even if MMI is represented by counsel in the matter, the attorney’s investigator is not making contact
with a current employee of MMI. Because former employees are fair game and outside the restrictions imposed by the no-contact rule, the lawyer and the lawyer’s investigator may contact the former employee without the permission of MMI’s counsel.
(B) Incorrect. Yes, because MMI’s liability may arise from the actions of the former employee.
Even if MMI’s liability may arise from the actions of the former employee, the lawyer and his investigator
may contact the former employee. If this person were still employed by MMI, then the fact that the person’s
actions may give rise to civil liability of the company would put the employee off limits without the permission
of MMI’s counsel. Because this person is a former employee, however, no such permission is necessary.
(C) Incorrect. No, because the attorney did not personally conduct the interview.
The fact that it was the investigator rather than the lawyer is irrelevant. If the contact violated the
rules of professional conduct, then it would be misconduct for the lawyer to contact the former
employee personally or through the acts of another. What matters is not who made the contact but
392
ANSWERS AND ANSWER EXPLANATIONS
rather that the person contacted no longer works for MMI. Former employees are fair game even
without the permission of the corporation’s counsel.
Explanation: Question 34
The correct answer is: (D) No, because this is not the same matter on which the lawyer worked for the government.
A government lawyer has a conflict when that lawyer leaves government service and represents a client in a
matter in which the lawyer was personally and substantially involved as a government lawyer. However, the
drafting of legislation is not a “matter” for these purposes because it does not involve specific parties. Thus,
there is no conflict of interest, and the lawyer will not be subject to discipline if he undertakes this representation.
(A) Incorrect. Yes, because the lawyer was personally and substantially involved in drafting the legislation.
The lawyer was involved personally and substantially as a government lawyer, and that would pose
a conflict if the case were the same “matter” as the drafting of the legislation. However, a matter for
these purposes must involve specific parties and thus does not include work on legislation such as
this. Thus, this answer is incorrect.
(B) Incorrect. Yes, unless the Department of Corrections consents to her representation in writing.
If the lawyer had a conflict, consent would not make the conflict go away. Consent would simply
allow the lawyer to proceed with the proposed representation. More importantly, consent is unnecessary here because there is no conflict. The legislation and the civil case are not the same “matter”
under the Model Rules. Thus, this answer is incorrect.
(C) Incorrect. No, because the attorney will not be switching sides on the matter of the legislation.
Switching sides is not a prerequisite for the existence of a conflict when a government lawyer leaves
for private practice. If the lawyer participated in a matter personally and substantially while she
worked for the government, then she has a conflict working as a private lawyer on that matter, even
if it is on the “same side.” Here, there is no conflict because the case and the legislation are not the
same “matter.” Thus, this answer is incorrect.
Explanation: Question 35
The correct answer is: (B) Yes, because the lawyer was obliged to tell the client about the negligent act.
Lawyers have a duty of communication, and that duty includes the obligation to explain a matter to the extent
reasonably necessary to permit the client to make informed decisions regarding the representation. The client
needs to make a decision about whether to continue to have this lawyer represent the client, in the attempt to
rectify or mitigate the harm caused by the lawyer’s negligence, or to fire the lawyer and have someone else
take action to protect the client’s interests. This lawyer’s failure to tell the client about the negligent act deprives
the client of the information needed for that decision and therefore violates the lawyer’s duty of communication.
(A) Incorrect. Yes, because the attorney continued to represent the client when the attorney had a conflict of interest.
The lawyer’s negligent act may or may not have created a conflict of interest between the lawyer
and the client. Even if a conflict was created, it is possible that the conflict could be consentable and
that the client would give informed consent, in which case the continued representation of the client
would not be misconduct. However, the client is entitled to know about the negligent act in order to
decide whether to discharge the lawyer, regardless of whether a conflict exists.
(C) Incorrect. No, because the client’s interest and the lawyer’s interest were aligned.
The lawyer’s interests and the client’s interests may well be aligned, because the client does not
want to suffer any harm as a result of the negligent act and the lawyer, who fears malpractice liability,
likewise wants the client to escape harm. That probable alignment of interest, however, does not
393
PRACTICE TEST 3
mean that the lawyer need not tell the client about the negligent act. The client might prefer to have a
different lawyer, one in whom the client has confidence, do the work necessary to rectify or mitigate
the consequences of the first lawyer’s negligence.
(D) Incorrect. No, as long as the lawyer reasonably believed that the lawyer could competently and
diligently continue to represent the client in the matter.
This answer states only one of the conditions that must be necessary for a lawyer to continue to represent a client despite a conflict of interest. In this situation, however, the lawyer is violating a duty
of communication with the client regardless of whether a conflict exists and regardless of whether
such a conflict would be consentable. The client is entitled to be informed about the negligent act.
Explanation: Question 36
The correct answer is: (A) Yes, but only if the state gives informed consent, confirmed in writing.
This is a former client conflict. Because the lawyer formerly represented the state and in that capacity
helped to obtain the conviction, the lawyer has a conflict of interest in representing a different client in
an action in which he attacks his own work in the prior representation. That is what he would be doing if
he represented a client who was contending that the conviction that the lawyer obtained in the criminal
case was wrongful. Former client conflicts, however, are waivable, so the lawyer could proceed with the
informed consent of the state as long as such consent was confirmed in writing.
(B) Incorrect. Yes, as long as the attorney does not use any confidential information that the attorney
learned while the attorney represented the state.
This is not a question of just using the state’s confidential information. Here, the lawyer would be
attacking his own work for the former client. Whether or not that would require the lawyer to use the
state’s confidential information, the lawyer has a conflict of interest in such a case. Thus, this is not
the best answer to this question.
(C) Incorrect. No, because the civil suit and the prosecution are substantially related matters.
These are substantially related matters, and therefore the lawyer has a conflict of interest. However,
such a conflict can be waived by the former client if the client gives informed consent, confirmed in
writing. Therefore, this answer is incorrect because it is overbroad.
(D) Incorrect. No, because in the civil case the attorney would be attacking his own work on behalf of
the state in the criminal case.
The lawyer would be attacking his own work product, and therefore he has a former client conflict of interest. However, the former client can waive such conflicts. Therefore, this answer is
too categorical.
Explanation: Question 37
The correct answer is: (C) No, because the client was independently represented by another attorney.
A lawyer shall not make an agreement prospectively limiting the lawyer’s liability to a client for malpractice
unless the client is independently represented in making the agreement [MR 1.8(h)]. Here, the client is
independently represented, so the agreement between the lawyer and client is permissible. Thus, this is
the best answer to this question.
(A) Incorrect. Yes, because a lawyer may not make an agreement limiting her malpractice liability.
This is an overbroad statement. Ordinarily, a lawyer is not permitted to make an agreement prospectively limiting the lawyer’s liability to a client for malpractice. However, if the client is independently
represented in making the agreement, as in this situation, the agreement is allowed. Therefore, this
answer is incorrect.
394
ANSWERS AND ANSWER EXPLANATIONS
(B) Incorrect. Yes, because clients may not be represented by more than one attorney.
This is not correct. Clients may be represented by multiple attorneys. There is no prohibition in the
rules of professional discipline that prevents an attorney from representing a client when another
attorney serves as co-counsel.
(D) Incorrect. No, because lawyers may freely make agreements limiting malpractice liability.
This answer is inaccurate because lawyers do have limitations on agreements pertaining to malpractice liability. A lawyer shall not make an agreement prospectively limiting the lawyer’s liability
to a client for malpractice unless the client is independently represented in making the agreement.
Thus, this overbroad answer is incorrect.
Explanation: Question 38
The correct answer is: (C) No, because the lawyer was impliedly authorized to disclose the information.
Lawyers may reveal confidential information when doing so is impliedly authorized in order to carry out the representation. In these circumstances, it has been determined that lawyers are impliedly authorized to consult
with an appropriate diagnostician in order to gather the information the lawyer needs to best serve the client.
(A) Incorrect. Yes, because the lawyer revealed confidential information and no exception to the general
rule of confidentiality applies.
The lawyer is not relying on an exception. Lawyers may reveal confidential information in a number of
circumstances. Among them are client consent, the existence of an exception to the general rule, and
implied authorization. Here, the lawyer is relying on implied authorization. Thus, this answer is incorrect.
(B) Incorrect. Yes, because the lawyer may reveal the confidential information of a client with diminished
capacity only when taking protective action.
Model Rule 1.14 does permit a lawyer to reveal confidential information while the lawyer takes protective
action. However, that option is not exclusive of the lawyer’s authority to reveal confidential information
while the lawyer decides whether protective action may be called for. Thus, this answer is incorrect.
(D) Incorrect. No, provided that the lawyer obtained the consent of his client’s next of kin before revealing the information.
The lawyer does not need anyone’s permission to reveal this information. The revelation is impliedly
authorized in order to help the client. In any event, the next of kin would have no authority to authorize the lawyer to reveal confidential information unless that person had been appointed guardian of
the client. Thus, this answer is incorrect.
Explanation: Question 39
The correct answer is: (D) No, because the lawyer cannot obtain informed consent of the new client.
The lawyer has a conflict of interest because there is a significant risk that his representation of the new
client will be materially limited by his relationship with the judge. Lawyers sometimes must assert themselves to judges on behalf of clients in ways that this lawyer might be reluctant to do because the judge
is his client. Lawyers sometimes must appeal a judge’s rulings and argue that the judge is wrong. Again,
this lawyer might be reluctant to do that because the judge is his client. Because the lawyer reasonably
believes that he can provide competent and diligent representation to the new client, all the lawyer needs
is informed consent. However, obtaining informed consent would require the lawyer to tell the new client
that the lawyer represents the judge. That is confidential information relating to the representation of the
judge, and the judge has refused to give the lawyer permission to reveal it. The lawyer, therefore, cannot
proceed to represent the new client because there is a conflict of interest and the lawyer cannot obtain
informed consent of the new client to proceed.
395
PRACTICE TEST 3
(A) Incorrect. Yes, if the judge gives informed consent to the lawyer’s representation of the new client.
The problem is the new client’s informed consent. Without that, the lawyer cannot proceed. The
lawyer cannot obtain the new client’s informed consent because the judge will not allow the lawyer
to reveal the lawyer’s representation of the judge. Thus, this answer is incorrect.
(B) Incorrect. Yes, because there is no direct adversity between the new client and the judge.
Although it is true that there is no direct adversity between the judge and the new client, that is
not the only kind of conflict. This presents a “material limitation” type of conflict, because there is a
significant risk that the lawyer’s representation of the new client would be materially limited by the
lawyer’s relationship with the judge. Thus, this answer is incorrect.
(C) Incorrect. No, because the lawyer would have an unconsentable conflict of interest in doing so.
The conflict is consentable. It is given in the question that the lawyer reasonably believes that he
can provide competent and diligent representation despite the conflict. There are no other factors
present that would make the conflict unconsentable. Thus, this answer is incorrect.
Explanation: Question 40
The correct answer is: (D) No, because Oliver, Wendell and Holmes all once were partners in the firm.
A law firm name that includes the names of deceased partners is a trade name, but such designations
are generally permitted. As long as the name is not misleading, the law firm may use it. Here, the name
would not be misleading because all three names refer to lawyers who were associated with the firm in
the past. Thus, the law firm is not subject to discipline.
(A) Incorrect. Yes, because law firms are not allowed to use trade names.
Law firms may use trade names with some exceptions. The Model Rules specifically prohibit trade
names that imply an association with a government agency or a public or charitable legal services
organization, and the Rules also generally prohibit trade names that are misleading. Thus, this answer choice is incorrect.
(B) Incorrect. Yes, because none of the named partners in the firm practices law with the firm anymore.
It is not necessary that the named partners still be alive and practicing. The Comments to the Model
Rules state that keeping the names of deceased in a firm name after their demise is a useful means
of identifying the firm. As long as there is nothing misleading about the name, it is permissible.
(C) Incorrect. No, because the name of the firm does not imply a connection to a government agency or
with a public or charitable legal services organization.
Although it is true that this name does not imply a connection to a government agency or a public or
charitable legal services organization, that is not the only set of criteria for judging the permissibility
of a trade name. The name also must not be misleading in any other way.
Explanation: Question 41
The correct answer is: (B) Yes, because the lawyer revealed information protected by the attorney-client privilege.
This is a lawyer-to-lawyer consultation. Revealing confidential information in order to obtain the guidance
of another lawyer in assisting the client is impliedly authorized, especially when the lawyer protects the
identity of the client. However, to reveal the client’s communications with someone outside the lawyer’s
firm is to waive the client’s attorney-client privilege, and this is something that the lawyer must not do
without client consent. Therefore, the lawyer will be subject to discipline.
(A) Incorrect. Yes, because the lawyer revealed confidential information to the other lawyer.
396
ANSWERS AND ANSWER EXPLANATIONS
The lawyer may reveal information relating to the representation, as long as it is not also privileged
information, under the implied authorization of the client to structure the deal to meet the client’s objectives. It is the privileged nature of the information rather than its confidentiality that causes the problem.
(C) Incorrect. No, because the lawyer protected the identity of the client.
Protecting the identity of the client is prudent under these circumstances. However, the fact that the
lawyer kept the client’s identity confidential does not change the fact that the lawyer revealed privileged information to a third party. That is the problem.
(D) Incorrect. No, because the lawyer was impliedly authorized to seek the assistance of the professor
and reveal the information necessary to obtain that assistance.
The lawyer was impliedly authorized to reveal some information, but not all. The lawyer did not have
implied authorization to waive the attorney-client privilege and thus should not have revealed what
the client had said to the lawyer about the client’s objectives in the transaction.
Explanation: Question 42
The correct answer is: (D) No, because the lawyer has not assisted in the perpetration of a crime or a fraud.
Lawyers are not permitted to assist clients in the perpetration of crimes or frauds. However, a lawyer may
discuss the legal consequences of a proposed course of action. Often, such a discussion will dissuade
the client from engaging in illegal activity. Since under these facts the lawyer has not assisted in the perpetration of a crime or a fraud, he will not be subject to discipline.
(A) Incorrect. Yes, because the lawyer was required to withdraw as counsel once the criminal and
fraudulent nature of the proposed transactions became apparent.
The lawyer must withdraw once it becomes apparent that continuing the representation would violate the rules of professional conduct. However, it is not inevitable that a client who proposes criminal or fraudulent activity will engage in it. The lawyer who explains the legal consequences of such
behavior is likely to convince the client not to go forward. Only when the client proceeds and seeks
to engage the lawyer’s assistance with such conduct is the lawyer required to withdraw.
(B) Incorrect. Yes, because the lawyer’s analysis could be used by the client to perpetrate the crimes
and fraud.
It is true that the client might later put the lawyer’s analysis to use in seeking to avoid detection or
punishment. That is not enough to make the lawyer a party to such conduct. To the contrary, the lawyer’s advice makes the conduct less likely, and the fact that the client proceeds despite the lawyer’s
advice should not and does not subject the lawyer to discipline.
(C) Incorrect. No, unless the client uses the lawyer’s advice to commit the crime and the fraud.
The lawyer’s advice may be useful to the client. However, giving advice about the legal consequences of a proposed course of conduct, even when the client uses the advice in ways that the lawyer
did not intend, does not constitute assistance by the lawyer in the scheme. The rules encourage,
rather than discourage, lawyers to discuss proposed crimes and frauds because lawyers can often
convince clients not to commit them. Thus, this answer is incorrect.
Explanation: Question 43
The correct answer is: (D) No, because the lawyer would not be appearing in court.
Although lawyers generally may not practice in states where they are not licensed, there is an exception
for in-house counsel. As long as they do not undertake activities for which the forum requires pro hac vice
admission—as long as they do not appear in court—the lawyer is authorized to practice with a license
from a different state. The rationale is that the employer of an in-house lawyer is likely to be a sophisti-
397
PRACTICE TEST 3
cated consumer of legal services and likely to know and voluntarily undertake the risks that come with
hiring a lawyer licensed in another jurisdiction.
(A) Incorrect. Yes, unless at least one member of the lawyer’s staff is licensed in state B.
An exception to the general rule against multijurisdictional practice is for a lawyer who is temporarily
practicing without a license in a state to associate with a lawyer from that state in the matter. However, an in-house counsel is practicing on a permanent, rather than a temporary, basis and in any
event may rely upon a separate exception to the general rule. Thus, this answer is incorrect.
(B) Incorrect. Yes, because the lawyer would be practicing law in a state in which he is not licensed.
The in-house lawyer would be practicing in a state in which he is not licensed, but he would be authorized to do so because he would be performing legal services only for his employer and would
not be appearing in court. Thus, this answer is incorrect.
(C) Incorrect. No, because in-house counsel are not required to be licensed in the states where they work.
This answer is overly broad. Lawyers who perform legal services for their employers need not be
licensed in the state in which they work, as long as none of their services require pro hac vice admission. If this lawyer was going to be appearing in court, the arrangement would subject him to
discipline. Thus, this answer is incorrect.
Explanation: Question 44
The correct answer is: (D) No, because this work is not directed specifically at financially disadvantaged
people.
The Model Rules ask lawyers to spend 50 hours a year on pro bono work [MR 6.1]. Although not stated
in the actual Rule, the comments clarify that the work need be directed specifically at people who qualify
for programs run by the Legal Services Corporation (which helps poor people) or people whose incomes
and financial resources are slightly above the guidelines but nevertheless cannot afford counsel. By giving an hour or two a week to working with legislators, advocates, and other concerned people to improve
the law, the lawyer has not fulfilled this responsibility.
(A) Incorrect. Yes, because she has devoted more than 20 hours per year to unpaid legal work.
This answer does not correctly state the pro bono responsibility under the Model Rules. Rather, the
Model Rules ask each lawyer to spend 50 hours a year on pro bono work [MR 6.1]. This includes
free legal services or lobbying for disadvantaged people, free or discounted services to organizations that seek to further civil rights and liberties, and activities to improve the legal system.
(B) Incorrect. Yes, because she has devoted 50 or more hours per year toward improving the law.
The Model Rules ask, but do not require, that each lawyer spend 50 hours a year on pro bono
work [MR 6.1]. This includes free legal services (including lobbying) for disadvantaged people, free
or discounted services to organizations that seek to further civil rights and liberties, and activities
to improve the legal system. However, persons eligible for legal services under this rule are poor
people or organizations that help poor people. By giving an hour or two a week to working with legislators, advocates, and other concerned people to improve the law, the lawyer has not fulfilled this
responsibility.
(C) Incorrect. No, because this work has the effect of improving the situation of her clients.
The lawyer has still made a contribution to the public in trying to improve specific laws, even if part
of her motivation is to make life better for her own clients. Therefore, this reasoning for why the lawyer’s methods do not fulfill her suggested responsibility to the public is incorrect.
398
ANSWERS AND ANSWER EXPLANATIONS
Explanation: Question 45
The correct answer is: (D) No, if the lawyer’s e-mail had the words “Advertising Material” at the beginning
and end of the message.
The e-mail is a solicitation of employment from persons known to the lawyer to be in need of legal services,
but it is not a real-time electronic contact. It is more like a letter than a phone call. If the lawyer included the
words “Advertising Material” at the beginning and end of the message, the communication is permitted.
(A) Incorrect. Yes, because the lawyer has engaged in real-time direct solicitation of prospective clients.
E-mail is not a real-time electronic contact under the Model Rules. Therefore, the message is regulated as targeted advertising rather than prohibited as solicitation.
(B) Incorrect. Yes, because the lawyer has solicited employment from people known to the lawyer to be
in need of legal services.
Lawyers are permitted to solicit employment from persons known to be in need of legal services.
They simply must not do so in person, by live telephone or by real-time electronic contact, and (with
some exceptions not applicable here) the lawyers must include the words “Advertising Material” at
the beginning and end of their messages or letters.
(C) Incorrect. No, because the recipients of the message were law students.
The lawyer could omit the words “Advertising Material” if the lawyer was soliciting lawyers. However, these are law students rather than lawyers and are therefore, deemed not to be a sufficiently
sophisticated audience to obviate the need for the written disclaimer at the beginning and end of the
message. Therefore, this answer is incorrect.
Explanation: Question 46
The correct answer is: (A) Yes, because the lawyer paid the chiropractor to refer clients to the lawyer.
Lawyers are not permitted generally to pay anyone to refer clients to them. The arrangement described in
the question does not fall into any of the exceptions to this general rule. It does not matter that the clients
know, or that the arrangement is not exclusive. These facts would matter if the lawyer and the chiropractor
were merely engaging in reciprocal referrals. Here, however, the lawyer is paying for the referrals in cash
and not in reciprocal referrals. That subjects the lawyer to discipline.
(B) Incorrect. Yes, because the lawyer paid the chiropractor a contingency fee.
Any payment for a referral, contingent or not, violates the rules of professional conduct unless the payment
fits into several narrow exceptions. This arrangement does not qualify as one of the exceptions. The fact
that the referral fee is contingent upon the lawyer earning a fee from the client is not what makes it improper.
(C) Incorrect. No, because the arrangement with the chiropractor was not exclusive.
Lawyers may enter into non-exclusive mutual referral arrangements with other professionals, but
that is not what this is. Here, the lawyer is paying the chiropractor for sending fee-paying clients to
the lawyer. That is prohibited even if the chiropractor sends patients to other lawyers as well.
(D) Incorrect. No, because the lawyer informed his clients of the arrangement.
Informing the clients does not cure the problem. That is one of the requirements for a mutual referral
arrangement between the lawyer and another professional to be permissible, but this is not a mutual
referral arrangement. This is an impermissible payment to someone for recommending the lawyer’s
services, and telling the client does not make it permissible.
399
PRACTICE TEST 3
Explanation: Question 47
The correct answer is: (D) No, unless the political contributions were made for the purpose of obtaining
an appointment by the judge.
The Model Rules forbid a lawyer’s participation in a “pay-to-play” arrangement. If the contributions were
made for the purpose of securing an appointment by the judge, the lawyer has committed misconduct. If
they did not have that purpose, then the lawyer is not subject to discipline.
(A) Incorrect. Yes, because accepting the appointment as a special master after making political contributions gives rise to an appearance of impropriety.
There is no Model Rule that subjects lawyers to discipline for appearances of impropriety. Discipline
is possible only if the lawyer made the political contributions for the purpose of securing an appointment by the judge.
(B) Incorrect. Yes, because lawyers may not make contributions to political campaigns of judges.
Lawyers may and often do make political contributions to judges who must run for reelection. The
political activities of lawyers are regulated in such a way that they may not make contributions for
the purpose of obtaining an appointment by a judge, but such contributions are not otherwise per se
banned. Thus, this answer is incorrect.
(C) Incorrect. No, because lawyers have a right to participate in the political process.
Lawyers do have a right to participate in the political process, but that right is subject to regulation.
To permit a lawyer to make cash contributions for the purpose of obtaining an appointment from the
judge would undermine the integrity of the profession. Therefore, this answer is incorrect.
Explanation: Question 48
The correct answer is: (A) Yes, because the lawyer paid the client’s rent.
Lawyers are not permitted to pay a client’s living expenses, even in the dire situation described in the
question. The lawyer could have, for example, helped the client obtain public assistance, but the rules
forbid lawyers from providing this type of assistance.
(B) Incorrect. Yes, because the lawyer paid court costs and witness fees on behalf of the client without
an agreement by the client to repay them.
Lawyers may pay court costs and expenses of litigation on behalf of indigent clients. Although the lawyer
would have been permitted to make an agreement under which the repayment of those funds was contingent upon the outcome of the case, such an agreement is not necessary. Thus, this answer is incorrect.
(C) Incorrect. No, because the client was indigent.
The lawyer is able to render more financial assistance to indigent clients than to solvent ones.
However, that assistance is limited to the payment of court costs and litigation expenses. It does not
include living expenses. Thus, this answer is incorrect.
(D) Incorrect. No, because the lawyer’s financial assistance was reasonably necessary to ensure that
the client received substantial justice.
The lawyer’s assistance may have been necessary to ensure that the client received substantial
justice. However, the rules forbid the lawyer from providing living expenses to the client, even under
these dire circumstances. Thus, this answer is incorrect.
400
ANSWERS AND ANSWER EXPLANATIONS
Explanation: Question 49
The correct answer is: (B) Yes, because the client is inexperienced in legal matters such as this one.
This client has asked for purely legal advice about a type of matter with which the client is inexperienced.
The lawyer, therefore, should not take the request for purely technical legal advice at face value. The
lawyer’s duty of candid advice here calls for the lawyer to explain the practical considerations that may
relate to the client’s decision, in addition to the purely legal ones [MR 2.1].
(A) Incorrect. Yes, because lawyers are required to render candid advice even when it will be unpalatable to the client.
It is true that lawyers must render candid advice, even when it may be unpalatable. What this question raises, however, is not reluctance to talk to the client about difficult things, but rather an affirmative obligation to go beyond what the client has asked for. That may be unpalatable or not, but the
lawyer should go beyond technical legal advice because the client is inexperienced in these matters.
Thus, this is not the best answer to this question.
(C) Incorrect. No, because the lawyer’s role is to advise about the law and not about other matters.
Lawyers are permitted to speak with clients not just about law, but about other considerations such
as moral, economic, social and political matters. Here, the lawyer certainly would be permitted to
speak, and should speak, about the practicalities involved in trying to enforce nuisance laws against
owners of domestic dogs [MR 2.1].
(D) Incorrect. No, because the client asked for purely technical legal advice.
The client did ask for purely technical legal advice, but the lawyer should go beyond that because
the client needs to know the practicalities of the situation. The client is inexperienced in these matters. Therefore, to be maximally useful, the lawyer’s advice should be broader than the letter of the
law of nuisance.
Explanation: Question 50
The correct answer is: (D) No, because law-related services are subject to the Rules of Professional
Conduct unless certain steps are taken to ensure that the client knows that the normal protections will
not apply.
A lawyer shall be subject to the Rules of Professional Conduct with respect to the provision of law-related
services if the law-related services are provided by the lawyer and if the lawyer fails to take reasonable
measures to assure that a person obtaining the law-related services knows that the services are not legal
services and that the protections of the client-lawyer relationship do not exist [MR 5.7]. Here, the substantial majority of the firm’s clients are unaware that there is a difference between the financial planning
services and the legal services. Thus, the law firm is subject to professional discipline.
(A) Incorrect. Yes, because the Rules of Professional Conduct do not apply to the provision of lawrelated services.
This is an incorrect statement. The Rules apply to law-related services unless steps are taken to
ensure the client is aware that normal protections will not apply. Since the law firm has failed to take
steps to ensure that the clients are aware that the normal protections of the attorney-client relationship will not apply, this answer is incorrect.
(B) Incorrect. Yes, because law firms are not typically held to rules regarding confidentiality of information, regardless of whether they are performing law or law-related services.
This is an inaccurate statement. Law firms are held to rules regarding the confidentiality of client
information. Thus, this answer is incorrect.
401
PRACTICE TEST 3
(C) Incorrect. No, because law firms are not permitted to provide financial planning services.
Law firms are permitted to provide specified law-related services, including financial planning. Since
there is no prohibition against this practice in the Model Rules, this answer is incorrect.
Explanation: Question 51
The correct answer is: (A) Yes, because a lawyer shall not solicit fee-generating employment by real-time
electronic communication.
The Model Rules do not allow lawyers to solicit fee-generating employment in person when the person
solicited is not an existing client, another lawyer, or a friend or family member [MR 7.3]. None of those
exceptions appears to apply here. Note also that the Model Rules consider solicitation by phone or by
“real-time electronic communication” to be the same as solicitation in person. Thus, Lawyer has violated
the Model Rules and will be subject to discipline.
(B) Incorrect. Yes, because the communication was public.
There does not appear to be a problem in this situation with the fact that Lawyer’s communication
was public, as it was a response to a public posting, and there would not have been any expectation
of a confidential relationship. This is therefore not the best answer.
(C) Incorrect. No, because real-time electronic communications are not regulated like in-person solicitations under the Model Rules.
This is an incorrect statement of the law. In fact, the Model Rules consider solicitation by phone or by
“real-time electronic communication” to be the same as solicitation in person. This communication
was therefore under the same restrictions as if it had been face to face.
(D) Incorrect. No, because Lawyer was simply advising the person that she needed a lawyer.
Lawyer did advise the person involved that she needed a lawyer. That itself is entirely permissible
under the Model Rules. However, Lawyer then violated the Rules when she stated that she was
available to be hired, which turned the communication into a solicitation [MR 7.3].
Explanation: Question 52
The correct answer is: (D) No, because the lawyer has not made a material misrepresentation of fact.
Lawyers generally may not make material misrepresentations of fact. However, some statements are
not treated as statements of fact because under generally accepted conventions of negotiation they are
not statements that people rely upon. A party’s intentions as to the acceptability of a settlement offer are
in that category. The lawyer may bluff about his settlement authority without fear of discipline because,
under the Model Rules, he has not made a misrepresentation of fact.
(A) Incorrect. Yes, because lawyers are required to tell the truth.
The Model Rules do not contain a general requirement that lawyers tell the truth. Although the Rules
do forbid lawyers from making material misrepresentations of fact, a statement about a party’s intentions as to a settlement is not treated as a statement of fact. Thus, this answer is incorrect.
(B) Incorrect. Yes, because the lawyer made a material misrepresentation of fact.
Specific types of statements are exempted from the general rule that lawyers may not make material
misrepresentations of fact. Under generally accepted conventions in negotiation, for example, negotiators “puff” and “bluff.” Because generally people know not to rely on such statements as the truth, they
are not treated as statements of fact under the rules. This statement, about the acceptability of a settlement in excess of $10 million, is in the category of statements that are not treated as statements of fact.
402
ANSWERS AND ANSWER EXPLANATIONS
(C) Incorrect. No, because lawyers are not required to be truthful in negotiations.
Lawyers generally are required to be truthful in negotiations, in that they may not make material misrepresentations of fact. However, some statements are not treated as statements of fact because
people do not rely on them. Statements about the limits of the lawyer’s authority are not treated as
statements of material fact.
Explanation: Question 53
The correct answer is: (A) Yes, because the lawyer revealed confidential information to the stepfather.
The client’s drug use was confidential information relating to the representation of the client. Although the
lawyer was permitted to accept payment form the stepfather with the client’s permission, one condition
of such acceptance is the protection of confidential information. The lawyer was not permitted to reveal
confidential information unless the client gave informed consent. The lawyer violated that condition and
is therefore subject to discipline.
(B) Incorrect. Yes, because the lawyer accepted payment for his services from someone other than the client.
Lawyers are permitted to accept payment from someone other than the client under certain conditions. The client must give informed consent, the lawyer must protect the client’s confidentiality,
and the lawyer must not allow the person paying for the services to direct the lawyer’s judgment on
behalf of the client. Since lawyers are permitted to accept payment for services from a third-party,
subject to the aforementioned conditions, this answer is incorrect.
(C) Incorrect. No, because the lawyer may reveal confidential information to someone paying for the
lawyer’s services.
Lawyers do not have permission to reveal confidential information to someone who is paying the
lawyer to represent someone else. To the contrary, the lawyer is required to maintain the client’s
confidentiality. Thus, this answer is incorrect.
(D) Incorrect. No, because the lawyer had the client’s informed consent to the stepfather paying for the
lawyer’s services.
The client’s consent was necessary in order for the representation to go forward with the stepfather
paying, but that consent was not consent to the sharing of confidential information. The lawyer is still
obligated to maintain the client’s confidentiality unless the client consents to the lawyer’s sharing of
information. Thus, this answer is incorrect.
Explanation: Question 54
The correct answer is: (B) Yes, because the associate did not gain confidential information about the case
at her previous firm.
Model Rule 1.9 states that a lawyer who has represented a client in a matter cannot represent an adverse
client in a substantially related matter without the former client’s written informed consent. This conflict
of interest is imputed to lawyers practicing together. Therefore, the associate could not properly work on
the case in the defendant’s firm if she had worked on the case at the plaintiff’s firm or otherwise received
confidential information about it, unless the plaintiff gave informed written consent. However, in this instance, the billing records show that the associate did not work on the case, and the partner representing
the plaintiff cannot recall ever discussing the case with her. Therefore, the associate may help her new
employer with the case.
(A) Incorrect. Yes, because the associate is obligated to zealously represent her new client.
The duty of zealous representation is not relevant to this question. Rather, the issue is that a lawyer
who has represented a client in a matter cannot represent an adverse client in a substantially related
403
PRACTICE TEST 3
matter without the former client’s written informed consent [MR 1.9]. This conflict of interest is also
imputed to lawyers practicing together. Because it is this confidentiality question that is at issue here,
this is not the best answer.
(C) Incorrect. No, because the associate must be walled off from any matter having to do with her previous firm, even if she was not involved in the particular matter.
This choice is too broad. Model Rule 1.9 states that a lawyer who has represented a client in a matter cannot represent an adverse client in a substantially related matter without the former client’s
written informed consent. Such a conflict of interest is also imputed to lawyers who practice with the
lawyer at the new employer. However, the new firm need not wall the associate off from matters with
which she was completely uninvolved at the old firm. Therefore, this is not the best answer.
(D) Incorrect. No, because the plaintiff has not consented to the associate’s representation of the defendant in the trial.
In this instance, the plaintiff need not consent to the associate’s representation of the defendant.
Model Rule 1.9 states that a lawyer who has represented a client in a matter cannot represent an
adverse client in a substantially related matter without the former client’s written informed consent.
Here, the associate did not work on the case at the firm representing the plaintiff, and she apparently
does not have any confidential information about the case. This is, therefore, not the correct answer.
Explanation: Question 55
The correct answer is: (B) Yes, because he disobeyed the client’s instructions as to settlement.
This answer choice is correct because Model Rule 1.2(a) specifically reserves to the client the right to
decide whether to settle. Here, the attorney unequivocally disobeyed the client’s instruction to settle. This
misconduct is even more egregious because the defendant offered more than the client’s expressed
minimum and because the attorney did not tell the client about the settlement offer. Thus, the attorney
would be subject to discipline.
(A) Incorrect. Yes, because he should not have taken the case to trial.
This answer choice is not correct because although the attorney would be subject to discipline, it
would be for disobeying the client’s instructions, rather than taking the case to trial. Model Rule
1.2(a) specifically states: “A lawyer shall abide by a client’s decision whether to settle a matter.”
Therefore, this would not be the best answer.
(C) Incorrect. No, because the client did not suffer any damages as a result of the attorney’s decision.
This answer choice is incorrect because the test for attorney discipline is not the ultimate outcome of
the attorney’s conduct, but rather whether the attorney contravened professional norms. Although the
client gained more money as a result of the attorney’s misconduct, the attorney’s error in disobeying an
express instruction to settle was totally improper and thus subjects the attorney to discipline.
(D) Incorrect. No, because the attorney has the right to select the means by which the client’s objectives
will be achieved.
This choice is correct in a general sense because many strategic decisions are the attorney’s to
make. However, it is not correct in this case because there are specific strategic decisions over
which a client has control, including the decision whether to settle a matter.
Explanation: Question 56
The correct answer is: (B) Yes, because the attorney assisted the client in a fraudulent act.
Although this question arises in the special context of a bar application, the answer comes from a general rule. Lawyers may not counsel or assist clients in the commission of criminal or fraudulent acts. The
404
ANSWERS AND ANSWER EXPLANATIONS
omission of the juvenile conviction, when the application clearly calls for its disclosure, is fraudulent. It is
given in the question that the lawyer assisted the client in the preparation of the fraudulent application.
Assistance with a fraudulent act subjects the lawyer to discipline, in this or in any other context.
(A) Incorrect. Yes, because the lawyer had a general duty to report all relevant information about a bar
applicant to the appropriate authorities.
Lawyers who are representing applicants to the bar do not have a general duty to report all relevant
information about the applicant to the bar. Such a rule would deprive the applicant of the benefit of
confidentiality in the attorney-client relationship. The lawyer assisting the bar applicant is governed
by the same rules of confidentiality that govern any other lawyer representing a client. Thus, this
answer is incorrect.
(C) Incorrect. No, because the lawyer was under no duty to disclose information relating to his representation of the applicant.
Although the lawyer was under no duty to come forward with the truth, the lawyer was under a duty not
to assist in perpetuating a fraud on the board evaluating the applicant’s character and fitness. The lawyer
is subject to discipline for that assistance, rather than for the failure to disclose confidential information.
(D) Incorrect. No, because the determination of the applicant’s character and fitness is made by a board
and not a tribunal.
The board investigating character and fitness might actually be considered a tribunal, if it derives its
power and status by a delegation of authority from the Supreme Court of the state. Even if it is not a
tribunal, however, the lawyer has behaved improperly by assisting the client in the commission of a
fraudulent act. The general prohibition on such assistance applies even when indisputably there is
no tribunal involved, such as in a business transaction.
Explanation: Question 57
The correct answer is: (A) Yes, because a truthful but incomplete statement can violate the Model Rules.
Generally, New Lawyer’s advertisement is acceptable. There is nothing to indicate that her photo was
undignified and she gave appropriate contact information [MR 7.2]. Nothing indicates that her fees are
not reasonable, and there is no attempt to compare her fees to those of other lawyers, or an attempt to
hide the fact that she will charge a fee. However, under the Model Rules, New Lawyer cannot say that she
“has never lost a case” because, in fact, she has also never won one. The Model Rules forbid truthful but
misleading statements like this and therefore New Lawyer is subject to discipline.
(B) Incorrect. Yes, because she may not classify her prices as “reasonable” without giving more specifics.
The Model Rules mention several situations in which it is inappropriate for a lawyer to mention fee
issues. For instance, a lawyer cannot state that she does “wills for $100” if the only wills she does
at that price are ones that are unusually simple. However, “reasonable” should not violate the Model
Rules—it does not make a specific enough claim to cause unjustified expectations so as to be misleading. Thus, this answer is incorrect.
(C) Incorrect. No, because she gave the appropriate contact information as required by the Model Rules.
It is true that the Model Rules require a legal advertisement to include the name and contact information of at least one lawyer in a firm [MR 7.2]. New Lawyer’s advertisement meets this standard.
However, there is another statement in the advertisement that may subject her to discipline. The
statement that she has never lost a case is misleading, because it implies that she has handled
several cases and has never lost before. Thus, even though the appropriate contact information
was provided, her advertisement contained misleading information, making this answer incorrect.
405
PRACTICE TEST 3
(D) Incorrect. No, because all of her statements were true.
Technically, there does not appear to be anything untrue about New Lawyer’s statements. However, the
Model Rules forbid the use of true statements that are misleading, which is where New Lawyer went wrong
in this question [MR 7.1]. Her statement that she has never lost a case is misleading because it implies that
she has handled at least a few cases and never lost, which is untrue. Therefore, this answer is incorrect.
Explanation: Question 58
The correct answer is: (A) Yes, because the former employee is not an employee or agent of the client.
To ensure fair access for all parties to witnesses, the rules of professional conduct limit the circumstances
under which a lawyer may request a witness not to speak to the lawyer for another party. That request is
proper only if the witness is a relative, employee, or other agent of the party. The former employee of the
company is none of these things, and so the request is improper.
(B) Incorrect. Yes, because the defense lawyer misrepresented the law to the former employee.
The defense lawyer did not misrepresent the law when he told the witness that the witness need not speak
informally with lawyers for the other party. The witness has the right to refuse to do so and thereby force
the other party to invoke formal processes to learn what the witness knows. Thus, this answer is incorrect.
(C) Incorrect. No, because litigation is an adversary process and the lawyers for each side may seek to
persuade witnesses not to speak informally with lawyers for other parties.
Litigation is an adversary process, but the rules of professional conduct impose limits on a lawyer’s
ability to request a witness not to speak informally with an adversary. The rule exists to ensure fair
access to evidence for all parties. Thus, this answer is incorrect.
(D) Incorrect. No, because the lawyer for the plaintiff is not permitted to speak to the former employee
about the matter without the permission of the lawyer for the defense.
The no-contact rule does not apply to former employees of a represented organization. The plaintiff’s lawyer would be doing nothing wrong to have an informal conversation with the former employee without the permission of the defense lawyer, as long as the plaintiff’s lawyer did not seek
to obtain information for which the company could claim a privilege. Thus, this answer is incorrect.
Explanation: Question 59
The correct answer is: (C) The lawyer may refuse to offer the testimony of the brother.
The Model Rules of Professional Conduct give the lawyer the discretion to decide whether to present
evidence, other than the testimony of a criminal defendant, that the lawyer reasonably believes is false.
The rationale for giving the lawyer this discretion is to preserve the lawyer’s credibility as an advocate, for
the client’s ultimate benefit.
(A) Incorrect. The lawyer must call the brother to the witness stand because the lawyer does not know
that the testimony would be false and the client insists on the brother testifying.
This is not the client’s call. The Rules explicitly provide that the lawyer may refuse to call a witness,
other than the defendant in a criminal case, that the lawyer reasonably believes will be presenting false
evidence. The lawyer has discretion to present or not present the witness, but there is no mandate to
present the evidence even when the lawyer does not know it is false and even when the client insists.
(B) Incorrect. The lawyer must consult with the client about the brother’s testimony because this is a
question of means rather than objectives.
The usual rule regarding means and objectives requires the lawyer to consult with the client, and it would
be appropriate for the lawyer to consult with the client about this decision. However, the general rule does
406
ANSWERS AND ANSWER EXPLANATIONS
not assign the ultimate right to make the decision to the lawyer or the client. For this specific decision,
however, the rules explicit