Test
Supplement Questions 1-200 (Lauren)
Preguntas del test (200)
1An attorney sued Giant Company on behalf of a client in a personal injury matter. During the protracted litigation that ensued, Conglomerate bought Giant Company. The attorney was already representing Conglomerate in a regulatory compliance matter before a federal administrative agency. Assuming this development was unforeseeable at the outset of representing the client against Giant Company, will the attorney have the option to withdraw from one of the representations to avoid the conflict?
- AYes, because one matter is in state court and the other matter is a completely unrelated federal administrative proceeding.
- BYes, but the attorney must seek court approval where necessary and take steps to minimize harm to the clients, and he must continue to protect the confidences of the client from whose representation the lawyer has withdrawn.
- CNo, if a conflict arises after representation is underway, the lawyer ordinarily must withdraw from the representation of both clients, unless the lawyer has obtained the informed consent of each client at the outset of the representation.
- DNo, because the federal administrative matter would preempt state tort law under the Supremacy Clause.
2Big Firm represents hundreds of corporate clients out of a dozen offices in different states. The firm has no formal procedures in place to check for conflicts at the outset of representation for new clients, but the managing partner of the firm has an incredible memory and has never failed to spot a potential conflict of interest in the past. An attorney agrees to represent a new corporate client that owns many subsidiaries, and checks with the managing partner, who assured Attorney there are no potential conflicts. After the new corporate client had disclosed a substantial amount of confidential information, it emerged that some of its subsidiaries were directly adverse to other clients of Big Firm. The attorney was completely unaware of the potential conflicts at the time he agreed to the representation, despite asking the corporate client a few questions about the opposing parties in pending litigation it might have. Will the attorney be subject to discipline for not declining representation in this case?
- AYes, because ignorance caused by a failure to institute reasonable procedures, appropriate for the size and type of firm and practice, will not excuse a lawyer's violation of the Rules regarding conflicts of interest.
- BYes, because there is a presumption that a company owning several subsidiaries will have at least one adverse interest to other clients of a Big Firm.
- CNo, as he was unaware of the conflict at the time, but now that the conflict is apparent, Attorney must withdraw from representation
- DNo, because the attorney at least partly relied upon the managing partner’s prowess in identifying conflicts, given that the managing partner had never before made a mistake.
3A husband and wife decide to divorce and reach an agreement to share the same lawyer in hopes of saving money. They hire an attorney to represent each of them in Family Court for the dissolution of marriage. The attorney explains that there is an obvious conflict of interest here, but the husband and wife insist, and sign informed consent forms waiving the conflict and their rights to assert any future claims related to the conflict. The husband and wife have no children, and they have always kept separate bank accounts. Each purchased their own car from the money in their own bank account and each car’s title is in only one name. They live in an apartment whose lease is expiring soon, so there is no real property to divide. Would it be proper for the attorney to represent both in the divorce?
- AYes, because it appears on these facts that there will be no assets in dispute at all, so the theoretical conflict of interest would have no bearing on their case.
- BYes, because both clients consented in writing, the dual representation does not violate law, and the attorney could have a reasonable belief that he will be able to provide competent and diligent representation to each affected client.
- CNo, because contingent fees are not permissible in divorce cases, and the husband and wife’s sole motivation in sharing a lawyer was to save money.
- DNo, because the representation involves the assertion of a claim by one client against another client represented by the lawyer in the same litigation or other proceeding before a tribunal.
4Three individuals plan to form a joint venture and ask an attorney to represent them in drafting the necessary documents and making the necessary filings with government agencies. They have already agreed that everyone will contribute exactly one-third of the startup funds for the venture, each will own a one-third share, each will have equal control over the Board, and each agrees to indemnify the others for a one-third share of any personal liability related to the joint venture. They have also agreed that they will have no non-compete agreements. The joint venture will hire managers, marketers, and other employees to operate the business. The three individuals are co-owners of a patent that could potentially be very lucrative when they bring it to market, and they have known each other and worked together for a long time. The attorney cannot find any current areas of conflict between them, though he knows that it is technically possible that some unforeseen conflict could arise in the future. The shared objectives and goals of the group lead the attorney to conclude that no conflicts of interest are present and that it would be counterproductive to try to convince each member of the group to sign an informed consent form acknowledging that conflicts of interest exist and that the attorney may still represent everyone at once. May the attorney trust his professional judgment and proceed without obtaining separate consent forms from each person in the joint venture?
- AYes, if the attorney has a reasonable belief that he will be able to provide competent and diligent representation to each client, because the representation does not involve the assertion of a claim by one client against another client represented by the lawyer in the same litigation or other proceeding before a tribunal.
- BYes, because the mere possibility of subsequent harm does not itself require disclosure and consent.
- CNo, the situation is likely to limit materially the attorney’s ability to recommend or advocate all potential positions that each might take because of his duty of loyalty to the others; representing the group’s overall interests in effect forecloses alternatives that would otherwise be available to the client.
- DNo, because the fact that the individuals already decided to create a joint venture, and sought representation together from a single lawyer, constitutes implied consent to the common representation despite any potential conflicts of interest involved.
5A client owns a partnership share of a closely held business, and the other partners vote to impose an involuntary buy-out of the client to remove him from the firm. The client is clearly upset about this, but the partnership agreement clearly permits involuntary buyouts by a majority vote of the other shareholders. Then the client hires an attorney to represent him in the buyout transaction, to review the necessary documents and provide legal counsel about it. No litigation is under consideration yet. The attorney’s sister is also a lawyer in that city, at another firm, and the sister represents the other shareholders in the partnership. Nevertheless, the attorney did not disclose that her sister represented the other partners, as she and her sister are not close and rarely speak, and the matter is unlikely to turn into litigation. Is the attorney, or the other lawyers in her firm, subject to disqualification in this matter?
- ANo, because the attorney and her sister are not close enough for there to be a substantial risk that they will share confidential information, and the matter seemed unlikely to turn into litigation.
- BNo, so long as both sisters give informed consent in writing, and each believes that she will be able to provide competent and diligent representation to her client
- CBoth the attorney and her firm would be subject to disqualification, because the client did not give written informed consent.
- DThe attorney would be subject to disqualification, but ordinarily the other lawyers in her firm would not be subject to disqualification.
6An attorney has applied to make a lateral move from her firm to Big Firm, and she has already gone through the first two of three rounds of interviews for the position. Then the attorney agrees to represent a client in filing a breach of contract claim against Construction Company over a commercial development project. Big Firm is representing Construction Company, and the firm’s lawyers drafted the contract that forms the basis of the client’s complaint. The client claims that Construction Company breached a certain provision of the contract that is ambiguous; Construction Company is confident that its conduct falls within the contractual language in that provision. Is it proper for the attorney to undertake representation of the client in this case?
- AYes, assuming the client gives informed consent to the representation despite the conflict of interest here.
- BYes, because there is no clear conflict of interest here, because the attorney has not yet started working at Big Firm and could not have participated at all in drafting the contract provision that is now in dispute.
- CNo, as during the previous interviews, the attorney was likely to have gleaned some confidential information about Construction Company from Big Firm.
- DNo, because when a lawyer has discussions concerning potential employment with an opponent of the lawyer's client, or with a law firm representing the opponent, such discussions could materially limit the lawyer's representation of the client.
7A group of several individuals seeking to form a joint venture asked an attorney to represent them in drafting the necessary documents and making the necessary filings with government agencies. Two of the individuals were to provide most of the initial funds for the startup; two others were experienced inventors who were to provide new product designs; two others had expertise in business management and were to serve as managers; and two had proven records in high-end sales and marketing. They have not yet resolved the allocation of ownership shares, bonuses for managers, whether to have anti-compete agreements for each participant, whether patents will belong solely to the joint venture or partly to the inventors themselves, and whether sales reps will work on salary or commissions. Everyone says that she wants whatever terms would be best for the joint venture overall, rather than what would be most beneficial for each one individually. The shared objectives and goals of the group lead the attorney to conclude that no conflicts of interest are present and that it would be counterproductive to try to convince each member of the group to sign an informed consent form acknowledging that conflicts of interest exist, and that the attorney may still represent everyone at once. May the attorney trust his professional judgment and proceed without obtaining separate consent forms from each person in the joint venture?
- AYes, because the mere possibility of subsequent harm does not itself require disclosure and consent.
- BYes, assuming the attorney has a reasonable belief that he will be able to provide competent and diligent representation to each client, because the representation does not involve the assertion of a claim by one client against another client represented by the lawyer in the same litigation or other proceeding before a tribunal.
- CNo, the situation is likely to limit materially the attorney’s ability to recommend or advocate all potential positions that each might take because of his duty of loyalty to the others; representing the group’s overall interests in effect forecloses alternatives that would otherwise be available to the client.
- DNo, because the fact that the individuals already decided to create a joint venture, and sought representation together from a single lawyer, constitutes implied consent to the common representation despite any potential conflicts of interest involved.
8Three individuals hire an attorney to represent them as co-defendants in a tort action. At the outset, the attorney tells them that there could be a potential conflict of interest if he represents all three of them, and that they will need to sign informed consent forms, which they do. The three individuals have common goals and interests in the litigation, so they do not hesitate to sign the forms or inquire further about the implications of the potential conflicts. No further discussion occurs about the issue, and the attorney proceeds with the representation. Could the attorney end up having a duty to withdraw from representation later in the litigation, if the clients gave written consent to the shared representation at the outset?
- AYes, when undertaking representation of multiple clients in a single matter, the information must include the implications of the common representation, including potential effects on loyalty, confidentiality and the attorney-client privilege and the advantages and risks involved.
- BYes, if the liability insurers for the three co-defendants disagree on the terms of settlement and were unincluded in the original written consent.
- CNo, because the attorney dutifully obtained written consent from each client, as required by the Rules of Professional Conduct.
- DNo, assuming no situations arise where the lawyer obtains confidential information from one client that he could use to harm the interests of another client, and none of the clients file a crossclaim against another co-defendant.
9Husband and Wife wanted to hire a certain attorney to prepare their wills. Before the formalities of representation were final, husband spoke with the attorney privately by phone and disclosed that Husband had been having an affair, and that his lover might be pregnant. Husband forbids the attorney to tell Wife about this. Then the attorney realizes there could be potential conflicts of interest between husband and wife about the wills, distribution of assets, potential challenges to the will by offspring from outside the marriage, and potential claims for child support against Husband’s estate. Would it be proper for the attorney to proceed with representing Husband and Wife in preparing their wills?
- AYes, assuming each provides written consent after receiving warnings about the potential conflicts that often emerge in dual representation.
- BYes, because this is a transactional matter, not litigation in which adverse claims could arise.
- CNo, because the attorney cannot violate the duty of confidentiality to Husband, which would be necessary to obtain informed consent from Wife.
- DNo, because it would be improper to prepare a will for Husband under such circumstances.
10Business Manager and Shift Supervisor, who worked at a customer service call-center, became co-defendants in a lawsuit by a disgruntled former employee. The plaintiff claimed to have been the victim of gender discrimination in the form of a hostile work environment, as well as intentional and negligent infliction of emotional distress related to the same factual allegations about her treatment at the workplace. Business Manager hired a certain attorney to represent both himself and the Shift Supervisor, who had been the plaintiff’s direct superior. Based on Business Manager’s initial investigation and review of the personnel files of the plaintiff and the Shift Manager, he believes the allegations are baseless and that the suit will end in a dismissal or summary judgment before trial. Shift Supervisor had a spotless work history, but the plaintiff had numerous interpersonal conflicts with her peers, was frequently late for work or missed work completely, and was the subject of several customer complaints. From his consultations with the defendants, the attorney understood that the complaints targeted the Business Manager and Shift Supervisor equally. Business Manager and Shift Supervisor both gave the attorney written informed consent to the potential conflicts of interest in having the attorney represent both. Business Manager obtained tentative permission to have the business cover the legal fees for the attorney. Near the end of the discovery phase, however, plaintiff produced numerous inappropriate love letters to her from Shift Supervisor, many with explicit sexual overtures, and a few that sounded threatening based on her lack of response to previous letters. In addition, several co-workers of plaintiff gave depositions explaining that they had witnessed Shift Supervisor engaging in inappropriate and unwanted touching of plaintiff on many occasions. Several also testified that Shift Supervisor would often accost her for ten or fifteen minutes outside, before she could reach her workstation, and that this was the cause of her tardiness for work. Business Manager had never heard about any of these problems before. Moreover, during depositions the plaintiff explained that she always had little contact with Business Manager and had no direct complaints about his treatment of her, and she acknowledged that she had never complained to Business Manager about Shift Supervisor’s harassment of her. She disclosed that Business Manager was a co-defendant only because her attorney believed it was necessary to name someone from upper management in the lawsuit to trigger the legal protections of Title VII and other antidiscrimination laws. Business Manager then revoked his consent to the conflict of interest, explaining that he wanted separate representation from Shift Supervisor. Trial was due to begin two weeks later. Would it be proper for the attorney to continue representing either Shift Supervisor or Business Manager, but withdraw from representing the other?
- AYes, the attorney can potentially continue to represent Business Manager but not Shift Supervisor, because Shift Supervisor engaged in misconduct that was unknown to Business Manager, and Business Manager is the one who arranged for the payment of the legal fees.
- BYes, the attorney can potentially continue representing Shift Supervisor but not Business Manager, given the nature of the conflict, the fact that Business Manager revoked consent because of a material change in circumstances, the expectations of Shift Supervisor, and so on.
- CNo, the attorney must petition the court to withdraw from representing both clients, as he has now obtained confidential information about each of them, and one is unwilling to consent to the continued common representation.
- DNo, the attorney must continue to represent both clients, because it is the eve of trial and withdrawing would be prejudicial to them, and both consented in writing to the potential conflicts involved with using the same lawyer.
11An attorney has a private practice in a large rural township, and she specializes in commercial real estate transactions, such as the sale and lease of farmland, stables, granaries, and mills. As the only lawyer in the township with expertise in this area, she has represented most of the parties who buy and sell commercial real estate there. As a result, most of her clients pose potential conflicts of interest with other current, former, or future clients, so the attorney has a standard “waiver of future conflicts” form that explains conflicts of interest that typically arise in commercial real estate transactions, and she asks every client to sign it at the commencement of representation. The client is a major landholder in the township, who inherited extensive tracts of farmland from his family, who in previous generations were some of the original settlers in the area. Over the years, the client has sold off dozens of small parcels of farmland to neighboring farmers or small businesses such as honey processors, taxidermists, a hardware store, and a veterinarian. The client has also bought properties at times that were adjacent to his existing landholdings. The client has always used other lawyers for these transactions in the past, and in each previous instance, the other party had separate counsel. The client now wants to hire the attorney to sell a parcel to a real estate developer. Buyer (the developer) is also a client of the attorney on unrelated matters, but the Buyer has hired another lawyer to handle this certain matter. The client and Buyer have had a good working relationship in the past and have consummated a few transactions that went smoothly. When the client meets with the attorney to review and sign a retainer for this representation, the attorney includes with the retainer her standard “waiver of future conflicts” form, without additional oral explanation except to mention that she represents Buyer in an unrelated matter. The client reads the form and signs it. As the negotiations for the sale to the developer proceed, a new conflict arises between the client’s interests and the unrelated matters for which the attorney has represented the developer, as one will significantly affect the road traffic for the other. This was an unexpected development, though not unusual – such situations were familiar and routine for the attorney and the parties. Is the attorney’s standardized “waiver of future conflicts,” signed by the client, likely to be effective in this situation?
- AYes, if the client agrees to consent to a specific type of conflict with which the client is already familiar, then the consent ordinarily will be effective regarding that type of conflict.
- BYes, because the conflict of interest was unforeseeable at the time the representation began, and the client was aware that the attorney represented the Buyer.
- CNo, because it violates the Rules of Professional Conduct for a lawyer to ask a client to waive future claims such as a conflict of interest, unless the client has representation by outside counsel in deciding whether to sign the waiver.
- DNo, because it violates the Rules of Professional Conduct for a lawyer to use a standard, one-size-fits-all consent form without additional oral explanation.
12An attorney represented a client in a residential real estate transaction. At the same time, the attorney agreed to represent the defendant in a large class-action lawsuit, an alcoholic beverage maker that understated the alcohol content of its products on its labels, leading to numerous cases of inadvertent intoxication, liver damage from continuous consumption, and a few deaths from overconsumption that led to alcohol poisoning. The client was an unnamed member of the plaintiff class in the class-action lawsuit against the alcohol producer. The attorney did not inform the client that he was representing the defendant in the class-action lawsuit or seek consent from the client or from the alcohol producer. Plaintiffs’ counsel in the class action lawsuit discovered this situation, and he asked the court to disqualify the attorney from representing the defendant. Should the attorney be subject to disqualification under such circumstances?
- AYes, because the attorney represents clients whose interests are directly adverse, and he did not seek or obtain written informed consent to the conflict of interest.
- BYes, because the client will obviously feel betrayed when she learns that the attorney is representing the defendant in the class action lawsuit, and the attorney might have confidential information from representing a client in the real estate transaction that would be prejudicial in the class action lawsuit.
- CNo, because a lawyer seeking to represent an opponent in a class action does not typically need the consent of an unnamed member of the class whom the lawyer represents in an unrelated matter.
- DNo, because the interests of the client and the alcohol producer are not adverse, as the client merely hired the attorney to handle a residential real estate matter
13Two separate clients hired the same attorney, signing their retainer agreements one week apart, on unrelated matters, though both involve property owners’ rights under the state’s common law doctrine of public trust for beaches, which guarantees public access to beaches up to the vegetation line on the shore. In one case, erosion has moved the boundary back on the property owner’s lot to the point where his house is now clearly on the public access portion, and he seeks a declaratory judgment that erosion cannot jeopardize the private ownership of a building and its curtilage. Current public trust doctrine in the state would suggest that the property owner has lost all the value in his property, so he needs to seek a change or exception to the current law. The other case involves a property owner whose lots had always been separated from the beach by a small public park, but erosion has eliminated the park and given him water access from his property, which has doubled the value of his land under current public trust doctrine. The state government, however, is seeking a declaratory judgment in his case, arguing for an exception or change to the current law that would rob the owner of the windfall he received due to the erosion. Does this situation present a conflict of interest that would require the attorney to obtain informed consent, in writing, from both clients, before proceeding with the representation?
- ANo, the mere fact that advocating a legal position on behalf of one client might create precedent adverse to the interests of a client represented by the lawyer in an unrelated matter does not create a conflict of interest.
- BNo, given that both are declaratory judgment actions, it is not possible that one client’s interests could be adverse to the other’s.
- CYes, a conflict of interest exists if there is a significant risk that a lawyer's action on behalf of one client will materially limit the lawyer's effectiveness in representing another client in a different case, as when a decision favoring one client will create a precedent likely to seriously weaken the position taken on behalf of the other client.
- DYes, but this type of conflict involves a question of law, so it is nonconsentable by the two clients.
14An experienced attorney handles claims against banks for many clients for issues regarding the failure of banks to investigate in a timely manner claims of fraud or unauthorized use of bankcards. Most of the attorney’s work consists of sending demand letters, and most cases never actually result in the filing of a suit. Bank, a small local bank, retains the attorney to handle a certain claim against a customer for non-payment of a loan. The attorney has not represented any clients against Bank. Even so, the attorney includes in his contract for services a clause in which Bank waives any conflicts that may arise in the future - conflicts that involve the attorney representing clients against Bank for issues regarding failure to investigate claims of fraud or unauthorized use of bankcards. Is the attorney’s conduct proper?
- AYes, attorneys may include waivers of future conflicts assuming clients are aware of the waiver.
- BYes, attorneys can include waiver clauses for specific future conflicts in their contracts, if the clients are aware of the waiver, and if the contract delineates the types of future representations that may arise.
- CNo, attorneys cannot ever include waivers of future conflicts in contracts.
- DNo, attorneys cannot include waivers of future conflicts in contracts specifically for financial claims.
15A certain attorney represents Conglomerate Corporation in a regulatory compliance matter, drafting documents for Conglomerate to file with the Securities and Exchange Commission and the Federal Trade Commission regarding executive salaries (for the SEC) and product market share (for the FTC’s antitrust inquiry). Conglomerate Corporation owns or co-owns numerous subsidiaries and affiliates in unrelated industries. This attorney’s retainer agreement limits his representation exclusively to the SEC and FTC regulatory matters. Victim hires the attorney to represent him in a personal injury suit against Subsidiary Corporation, partly owned by Conglomerate Corporation, over a slip and fall accident in Subsidiary’s parking lot. Is it proper for the attorney to represent Victim in a tort action against an affiliate or subsidiary of his other client, Conglomerate Corporation?
- AYes, a lawyer who represents a corporation or other organization does not, by virtue of that representation, necessarily represent any constituent or affiliated organization, such as a parent or subsidiary, and the lawyer for an organization may provide representation adverse to an affiliate in an unrelated matter.
- BYes, so long as the attorney obtains written informed consent from both Victim and the legal representative of Conglomerate Corporation, after explaining the conflict of interest fully to each client.
- CNo, unless the attorney obtains written informed consent from both Victim and the corporate director of Conglomerate.
- DNo, because the parties are directly adverse in litigation, and therefore the conflict of interest described here is nonconsentable under the Rules of Professional Conduct.
16The Workers’ Union at a manufacturing plant is having annual collective bargaining negotiations with the Management. Wages and benefits are not in dispute this year, as the parties reached an agreement in the previous year’s collective bargaining about a five-year schedule for wages and benefits that was acceptable to both the Union and Management. The sole issue in dispute this year is about hiring. The Workers’ Union wants the plant to hire five or six new assembly line workers so that there will be more efficiency and more flexibility for workers requesting days off or changes in their shifts. The Management wants to hire fewer new workers, potentially two at most, to keep payroll costs down and their stock share prices high. The Union and Management agree to hire a certain attorney, an experienced labor lawyer at an outside firm, to facilitate the collective bargaining negotiations. Neither side is currently expecting a breakdown in bargaining that would lead to litigation. Would it be proper for the attorney to have both the Union and the Management as clients while facilitating the negotiations?
- AYes, assuming both clients provide written informed consent, common representation is permissible where the clients’ interests mostly align, even though there is some difference in interest among them, so a lawyer may seek an agreement between them on an amicable and mutually advantageous basis
- BYes, because conflicts of interest rules do not apply outside the litigation arena, and the parties here are not litigating and do not expect to litigate, but instead are merely hiring the attorney to facilitate negotiations of an issue where the two sides are not far apart.
- CNo, because the parties’ interests are directly adverse, and a lawyer may not seek to establish or adjust a relationship between clients on an amicable and mutually advantageous basis.
- DNo, because conflicts of interest in a negotiation situation are nonconsentable, as no lawyer would be reasonable to believe that the conflict of interest would not materially limit his ability to represent both sides; this is especially true of collective bargaining in the employment context.
17Two brothers work together in a family landscaping business, and each is a named defendant in a lawsuit over a broken sewage pipe on a client’s property where the brothers were digging holes to plant new trees. The two brothers hire their family’s attorney to represent them. Though the brothers get along reasonably well, there are several topics they avoid discussing, especially related to family matters and the inheritance, and who is to blame for some lost clients and damaged equipment in the recent past. Then the attorney explains the potential for conflicts of interest in the common representation and asks if they are willing to sign a waiver to the conflicts. One asks the lawyer privately about the issue of confidentiality and privileged information, because it is possible that litigation could emerge within the family later over various issues – the inheritance, control of the business, liability for business losses, and even a marital dispute. Does the common representation have implications for the attorney-client privilege?
- AYes, regarding the attorney-client privilege, the prevailing rule is that, as between jointly represented clients, the privilege does not attach, and lawyers should assume that if litigation eventuates between the clients, the privilege will not protect any such communications.
- BYes, regarding the attorney-client privilege, the prevailing rule is that, as between jointly represented clients, common representation provides extra protections for privileged information, and this is one of the main benefits of sharing the same lawyer.
- CNo, regarding the attorney-client privilege, the prevailing rule is that, as between jointly represented clients, attorney-client privilege still applies to all communications between each client and the lawyer, so clients sharing a lawyer should know that the lawyer may not disclose to them confidential information from the other clients.
- DNo, regarding the attorney-client privilege, the prevailing rule is that, as between jointly represented clients, the lawyer may not have ex parte communications with any of the clients, but all communications must occur when all clients are present, to safeguard the privilege.
18A producer of popular energy drinks and the owner of a popular chain of video-rental kiosks wanted to undertake a joint venture to distribute energy drinks and DVD rentals through the same kiosks. They approached a certain attorney to work out the details of the joint venture and draft the necessary legal documents. The attorney would provide common representation to both as clients in the matter. As part of obtaining informed consent from the clients regarding potential conflicts, the attorney explains that all information would be available to the other client, even information that otherwise would have been confidential information in a normal representation with a single client. Then the attorney explains he will have to withdraw if one client insists that the attorney keep certain information from the other, if the information was relevant and material to the representation. The energy drink maker, however, has a secret formula for the drinks, and the DVD kiosk owner has a trade-secret method of tracking the distribution and stocking of the DVDs in the kiosks minute-by-minute. Neither wanted the other to discover their trade secrets, but the attorney may eventually possess the secrets as part of his document review for the joint venture. Neither client clearly needs to know the trade secrets of the other, however, to proceed with the joint venture. Eventually, the attorney concludes that failure to disclose one client's trade secrets to another client would not adversely affect the representation in this case and agrees to keep that information confidential with the informed consent of both clients. Is the attorney’s conduct proper?
- AYes, in limited circumstances like this, it would be appropriate for the lawyer to proceed with the representation when the clients have agreed, after receiving adequate disclosures, that the lawyer will keep certain information confidential.
- BYes, because no litigation is pending between the clients and the lawyer has not represented them before in other matters, and both are willing to provide written informed consent to the conflicts inherent in common representation.
- CNo, continued common representation will certainly be inadequate if one client asks the lawyer not to disclose to the other client information relevant to the common representation.
- DNo, because the lawyer has an equal duty of loyalty to each client, and each client has the right to know about anything bearing on the representation that might affect that client's interests and the right to expect that the lawyer will use that information to that client's benefit.
19A certain attorney agrees to represent a group of three individuals in the same matter, a business transaction. Their interests are not directly adverse. This attorney has represented each of the clients in separate matters previously, and he is already working under a retainer to do legal work for each under the same hourly rates. Two of the clients are currently traveling overseas, but everyone agrees to the representation by conference call. The attorney explains potential conflicts of interest that could arise in common representation, and all clients consent orally to the common representation despite the potential conflicts. Then the attorney proceeds with working on their matter for three weeks until all the clients are back from traveling and can sign written consent forms. By that time, the attorney has completed 50 hours of work, and has acquired significant confidential information by and about each of the three clients. Would the attorney be subject to discipline for performing this legal work before obtaining written consent to the conflict by each conflict?
- AYes, because common representation requires informed consent in writing from each client at the outset of representation.
- BYes, because the fact that it was a transactional matter and not litigation means that the attorney could easily have waited three weeks until all clients could be present to sign written consent forms.
- CNo, it was not feasible to obtain or transmit the writing at the time the client gives informed consent, so the lawyer could obtain or transmit it within a reasonable time thereafter.
- DNo, because oral consent to a conflict of interest is enough when the parties are not directly adverse and each already has an established relationship with the attorney.
20An attorney serves as the lawyer for a corporation and is a member of its board of directors. Which of the following is true regarding this situation?
- AThe attorney is subject to discipline, because the responsibilities of the two roles may conflict, as when Attorney must advise the corporation in matters involving actions of the directors, and there is always a material risk that the dual role will compromise the lawyer's independence of professional judgment
- BThe attorney must limit his legal representation of the corporation to transactional and regulatory matters, and cannot represent the corporation in litigation against adverse parties, as there is always a material risk that the dual role will compromise the lawyer's independence of professional judgment
- CThe attorney must have the final word on decisions of the board when he is present as a director, because Attorney bears responsibility for the decisions in the form of potential legal malpractice liability, which does not apply to the other directors who are not lawyers.
- DThe attorney must advise the other board members that in some circumstances, matters they discuss at board meetings while the attorney is there as a fellow director would not be protected by the attorney-client privilege in later litigation; and that conflict of interest considerations might require the attorney’s recusal as a director, or might require the attorney to decline representation of the corporation in a matter.
21A municipal election for a seat on the city council was remarkably close one year, resulting in a run-off election that was ever closer. Both candidates claimed victory, and each accused the opposing candidate of voter fraud and violations of various election rules. There is potential for litigation if the two cannot agree as to a winner in the election, with one or the other conceding. A certain attorney is a prominent lawyer in the community and has previously represented each candidate in various legal matters. Both candidates would like to hire the attorney to represent them in negotiating a resolution to the election. Each candidate fully understands their adverse interests and the potential conflicts of interest for the attorney, but each is willing to provide written informed consent to have the attorney represent them both in facilitating the negotiations. May the attorney represent both candidates in this negotiation?
- AYes, common representation is permissible where the clients’ interests align overall, even though there is some difference in interest among them, so the attorney may pursue an agreement on an amicable and mutually advantageous basis.
- BYes, because conflicts of interest rules do not apply outside the litigation arena; the parties here are not litigating, and no litigation is pending, but instead are merely hiring the attorney to facilitate negotiations of an issue where the two sides are not far apart.
- CNo, a lawyer may not represent multiple parties to a negotiation whose interests are fundamentally antagonistic to each other, even in a negotiation.
- DNo, because the fact that the attorney has represented each of the parties in the past means that he would possess confidential information that would make mutual representation nonconsentable in this case.
22Two sisters are co-tenants of a house that they inherited from their father. They want to sell the house and hire an attorney to handle the real estate transaction. This attorney explains the potential for conflicts of interest in detail, and each sister readily agrees to provide written informed consent in the form of a waiver of future conflicts of interest. After a prolonged period, they finally find a buyer who is interested in the house, but the buyer wants to impose several onerous conditions on the purchase and engages in unreasonably protracted negotiations over the purchase price. The sisters themselves cannot agree on whether to accept any of the buyer’s proposals, further dooming the negotiations. Eventually, one sister becomes frustrated with the attorney over the prolonged, hitherto unsuccessful negotiations, and fires the attorney. The other sister wants the attorney to continue the representation. Regarding the sister who seeks to discharge the attorney, may she do so?
- AYes, but only if discharging the lawyer will not be prejudicial to the interests of the buyer, who has already invested a lot of time and energy in the negotiations to purchase the property.
- BYes, each client in the common representation has the right to discharge the lawyer as stated in Rules of Professional Conduct and the accompanying Comments.
- CNo, because she signed a waiver of future conflicts of interest, which is binding and safeguards the attorney against premature discharge.
- DNo, because by agreeing to common representation with her sister, she implicitly agreed that discharging the attorney would require assent of both sisters, as they are both clients.
23Three co-owners of a successful startup business hire a certain attorney to help with working out the financial reorganization of their enterprise. The attorney seeks to resolve potentially adverse interests by developing the parties' mutual interests. In assenting to represent all the parties as clients simultaneously, the attorney agrees to adjust the relationship between clients on an amicable and mutually advantageous basis. The clients each provide written consent to the potential conflicts of interest. Is it proper for the attorney to represent three clients with potentially adverse interests in a negotiated transaction?
- AYes, common representation is permissible where the clients’ interests mostly align, even though there is some difference in interest among them, so the attorney may pursue an agreement on an amicable and mutually advantageous basis.
- BYes, because conflicts of interest rules do not apply outside the litigation arena, and the parties here are not litigating and do not expect to litigate, but instead are merely hiring the attorney to facilitate negotiations of an issue where the two sides are not far apart.
- CNo, because the parties’ interests are directly adverse, and a lawyer may not seek to establish or adjust a relationship between clients on an amicable and mutually advantageous basis.
- DNo, because conflicts of interest in a negotiation situation are nonconsentable, as no reasonable lawyer would believe that the conflict of interest would not materially limit his ability to represent both sides; this is especially true of collective bargaining in the employment context.
24An experienced attorney practiced at a small firm in a rural area. The attorney regularly represented the county school district in employment discrimination matters. One day, a group of citizens asked the attorney to represent them before the county planning commission to oppose the widening of a county road. The school district had separate budgetary funding, and it had an elected governing Board with its own authority to hire legal counsel. In contrast, the members of the county planning commission were appointees by the County Executive, and lawyers at the County Solicitor’s office handled the legal work for the commission, though the commission and the County Solicitor’s office received their funding from separate line items in the county budget. Would it be proper, under these facts, for the attorney to agree to represent the citizens against the Commission, without informing them of her existing relationship with the School District, and without also securing the Board's consent?
- AThe attorney must obtain informed consent, confirmed in writing, from the school district and the citizen group regarding the conflict of interest.
- BThe attorney cannot represent the citizens group against the county, because that would constitute a nonconsentable conflict of interest.
- CThe attorney would have no obligation under the ethical rules to inform the citizens group about her representation of the school district, or the school district about her representation of the citizens group against the county planning commission in the road-widening dispute.
- DThe attorney cannot provide representation to the citizen group against the county planning commission in the road-widening dispute, but another lawyer in the attorney’s firm could represent them.
25Conglomerate Corporation owns a little more than half the stock of Giant Company. Conglomerate’s stock, in turn, is public, available on the public stock exchange, as is the remainder of the stock in Giant Company. The president of Conglomerate Corporation has asked Attorney Stevenson to represent Giant Company in a deal by which Giant would make a proposed transfer of certain real property to Conglomerate Corporation. The property in question is unusual because it contains an underground particle collider used for scientific research, but also valuable farmland on the surface, as well as some valuable mineral rights in another part of the parcel. These factors make the property value difficult to assess by reference to the general real-estate market, which means it is difficult for anyone to determine the fairness of the transfer price in the proposed deal. Would it be proper for Attorney Stevenson to facilitate this property transfer at the behest of the president of Conglomerate, if Attorney Stevenson would be representing Giant as the client in this specific matter?
- AYes, because Conglomerate Corporation owns more than half of Giant Company, so the two corporate entities are one client for purposes of the rules regarding conflicts of interest.
- BYes, because the virtual impossibility of obtaining an appraisal of the fair market value of the property means that the lawyer does not have actual knowledge that the deal is unfair to either party.
- CNo, because the attorney would be unable to inform either client fully about whether the proposed transfer price would be in their best interest.
- DNo, not unless the attorney first obtains effective informed consent of the management of Giant Company, as well as that of Conglomerate, because the ownership of Conglomerate and Giant is not identical, and their interests materially differ in the proposed transaction.
26Mr. Burns, the chief executive officer of Conglomerate Corporation, now faces criminal charges of discussing prices with the president of a competing firm. If found guilty, both Mr. Burns and Conglomerate Corporation will be subject to civil and criminal penalties under state and federal antitrust laws. An attorney has been representing Conglomerate Corporation. She has conducted a thorough investigation of the matter, and she has personally concluded that no such pricing discussions occurred. Both Conglomerate Corporation and Mr. Burns plan to defend on that ground. Mr. Burns has asked the attorney to represent him, as well as Conglomerate Corporation, in the proceedings. The legal and factual defenses of Conglomerate Corporation and Mr. Burns seem completely consistent at the outset of the matter. Would the attorney need to obtain informed consent to a conflict of interest from both Mr. Burns and a separate corporate officer at Conglomerate Corporation before proceeding with this dual representation?
- AYes, the likelihood of conflicting positions in such matters as plea bargaining requires the attorney to obtain the informed consent of both clients before proceeding with the representation.
- BYes, because it will always be in the best interest of a corporation to blame the individual who acted in the situation, to avoid liability under a theory of respondeat superior.
- CNo, because their legal and factual assertions appear identical in this case, so the risk of contradiction or adverse positions in the litigation is de minimis.
- DNo, because no one else at Conglomerate Corporation would be able to provide effective consent to the potential conflict of interest on behalf of the organization, if the chief executive officer has required the dual representation to occur.
27An attorney meets with a potential client regarding representation in defense of a nuisance suit. Upon review of the original petition, the attorney realizes that she knows plaintiff’s lawyer. The attorney and plaintiff’s lawyer worked together as associates at the same law firm directly out of law school twenty years ago but have not practiced law together since the attorney started her own firm eleven years ago. The two lawyers do not regularly socialize together or otherwise encounter one another aside from occasionally crossing paths at the courthouse. From time to time, when they coincidentally come across one another at the courthouse, they have lunch together at a nearby café. The attorney discloses the nature of her relationship with the plaintiff’s lawyer. The potential client states that she still wants to retain the attorney, but the client does not provide written informed consent. Will the attorney be subject to discipline if she does not decline representation in this case?
- AYes, because the attorney’s relationship with opposing counsel is sufficiently close in nature that the potential client is not representable by the attorney regardless of disclosure or consent.
- BYes, because even though the attorney disclosed the relationship to the client, she failed to obtain a written informed consent from the client.
- CNo, because the attorney’s relationship with opposing counsel is too remote to pose a risk to representation of the client and the attorney does not need to disclose the relationship with opposing counsel to the client or to obtain the client’s written informed consent.
- DNo, if the attorney believes she can provide competent, diligent representation of the client, and she discloses the nature of the relationship with opposing counsel to the
client, the attorney may represent the client in the matter without obtaining written, informed consent from the client.
28An attorney agreed to represent a client in a litigation matter and had checked for conflicts of interest regarding the opposing party. Soon after agreeing to take the case, however, the attorney learned that opposing counsel was one of his closest friends. They gave each other gifts for their birthdays and celebrated special occasions together, socialized together regularly, and their children were friends and his children had gone for sleepover parties at the home of opposing counsel. The two families had even vacationed together on two occasions. In fact, opposing counsel was one of the few friends that the attorney felt he could talk to about his personal problems. Even so, the matter seemed straightforward and the positions of the two parties were close enough that a quick settlement seemed likely. Does the attorney have an obligation to inform the client about the nature of his friendship with opposing counsel and obtain written, informed consent from the client?
- AYes, any type of friendship between a lawyer and opposing counsel requires disclosure to the client and informed consent before proceeding with the representation.
- BYes, every affected client should be aware of this type of close friendship and must give consent to proceed with the representation.
- CNo, the attorney should inform of the client of this type of friendship but does not need to obtain informed consent.
- DNo, mere friendships between the lawyers on opposing sides of a case do not create the same type of conflict as family relationships or intimate romantic relationships.
29An attorney represented an indigent client in a civil rights claim matter on a pro bono basis. The client had trouble paying rent or affording basic living expenses. The attorney and the client had recurring disagreements about litigation strategy and tactics, and at one point the client informed the lawyer that he wanted to terminate the representation and find another lawyer to drop the matter. The attorney thought the client was feeling discouraged, so he offered to provide some financial assistant to the client – just enough to cover rent, food, and other basic living expenses until the case concluded. The client agreed to continue with the representation. Was the attorney’s conduct improper?
- AYes, lawyers may never subsidize lawsuits brought on behalf of their clients, including making loans to their clients for living expenses, because such assistance gives lawyers too great a financial stake in the litigation.
- BYes, even under the exception that allows lawyers to provide financial assistance to an indigent client in a pro bono matter, a lawyer may not promise, assure or imply the availability of such gifts prior to retention or as an inducement to continue the client-lawyer relationship after retention.
- CNo, financial assistance, including modest gifts for food, rent, transportation, medicine, and other basic living expenses, may be provided even if the representation is eligible for fees under a fee-shifting statute.
- DNo, the Model Rules permit lawyers to provide assistance in other contemplated or pending litigation in which the lawyer may eventually recover a fee, such as contingent-fee personal injury cases or cases in which fees may be available under a contractual fee-shifting provision.
30An attorney agreed to represent an indigent client pro bono in a litigation matter. The client had no money for food or medicines or other living expenses, so the attorney gave the client some money for food, transportation, medicine, and other basic living expenses. The representation was successful, and the client prevailed an recovered a modest amount of compensatory damages, so the representation concluded. During the representation, the attorney learned that the client had a wealthy brother with whom the client would not associate due to an offense that had occurred years before. A month after the representation ended, the client died, and the wealthy brother contacted the attorney to thank him for all he had done for the client and offered to reimburse the attorney for the financial assistance he had provided during the previous months, which over time added up to a few thousand dollars. The attorney did not ask for this, but he gladly accepted it. Did the attorney act properly, according to the Model Rules?
- AYes, modest gifts to indigent clients for living expenses are permissible in specific circumstances where the lawyer does not seek or receive reimbursement from the client, and in this case, the reimbursement did not come from the client.
- BYes, a lawyer representing an indigent client without fee may give the client modest contributions for food, rent, transportation, medicine, and similar basic necessities of life.
- CNo, lawyers may not provide any financial assistance to clients in litigation matters.
- DNo, if a lawyer representing a indigent client gives the client modest contributions for food and similar basic necessities of life, the lawyer may not seek or accept reimbursement from a relative of the client or anyone affiliated witht the client.
31An attorney agreed to represent an indigent client pro bono in a landlord-tenant dispute. The client had no money for food or medicines or other living expenses, so the attorney gave the client some money for food, transportation, medicine, and other basic living expenses. The representation was successful, and the client was able to stay in the apartment, so the representation concluded. The attorney represented other indigent clients on a pro bono basis and advertised this practice on his website, including a short video in which the attorney claimed he was always willing to help struggling clients in this way. Were the attorney’s actions permissible under the Model Rules?
- AYes, modest gifts to indigent clients for living expenses are permissible in specific circumstances where the lawyer does not seek or receive reimbursement from the client, so long as the lawyer receives no reimbursement from the clients or their families.
- BYes, a lawyer representing an indigent client without fee may give the client modest contributions for food, rent, transportation, medicine, and similar necessities of life.
- CNo, if a lawyer representing an indigent client gives the client modest contributions for food and similar basic necessities of life, the lawyer may not publicize or advertise a willingness to provide such a gifts to prospective clients.
- DNo, lawyers may not provide any financial assistance to clients in litigation matters.
32An attorney agreed to represent a new client in a potential litigation matter, but the client had insufficient funds to pay the attorney’s fees. Instead, the client asked the attorney to propose an amount that would be a reasonable fixed fee for the matter. The client then offered to sign over title to a small parcel of real estate worth about the same amount as the proposed fixed fee, and the attorney agreed. The value of the property, and the proposed fixed fee, were fair and reasonable, and the client agreed to these terms in writing. The attorney did not advise the client to seek the opinion of independent legal counsel for this transaction, and did not obtain signed, written consent from the client about the attorney’s role in the transaction. Based on these facts, could the attorney be subject to discipline for violating the provisions Model Rule 1.8 that govern business transactions with clients?
- AYes, because a lawyer must meet the written notice requirements of Model Rule 1.8 when the lawyer accepts an interest in the client's business or other nonmonetary property as payment of all or part of a fee.
- BYes, because an attorney may not accept an ownership interest in the client’s property as part of the fee for undertaking a representation in a litigation matter.
- CNo, because Rule 1.8 does not apply to ordinary fee arrangements between client and lawyer.
- DNo, because the fee was fair and reasonable, and the attorney provided the terms to the client in written form.
33An attorney represented a client who was a stockbroker in a boundary dispute with the client’s neighbor. Before the conclusion of the representation, the attorney also made some personal investments using the same client’s brokerage services, receiving the same terms, services, and fee waivers that other customers of the brokerage firm received. The attorney did not advise the client to seek the opinion of independent legal counsel for this transaction, and did not obtain signed, written consent from the client about the attorney’s role in the transaction. The terms of the brokerage services agreement were in writing, as usual. Based on these facts, were the attorney’s actions proper in this transaction?
- AYes, because the essential terms of the agreement were in writing, and it does not appear that the attorney charged the client any additional legal fees for this transaction.
- BYes, this is a standard commercial transaction between the attorney and the client for a service that the client normally would market to others.
- CNo, because the attorney did not advise the client in writing to seek the opinion of independent legal counsel for this transaction.
- DNo, the client did not provide signed, written consent regarding about the attorney’s role in the transaction.
34An attorney, a venture capitalist, and a land developer agreed to form a corporation to develop a new shopping mall. Their agreement allocates ownership shares based on the appraised value of the venture capitalist’s land, which he is contributing for this enterprise, the market value of the developer’s design and construction work, and the attorney’s regular fees for the hours contributed to the formation and ongoing representation as corporate counsel. The attorney was already representing both the venture capitalist and the developer as his clients in unrelated matters. Which of the following is NOT a duty of the attorney in this situation, if the attorney performs the others?
- AThe attorney must fully disclose in writing all the terms of the development corporation ownership agreement to the developer and the venture capitalist in language they understand, and the terms of the agreement are objectively fair and reasonable the two clients.
- BThe attorney must advise the developer and the venture capitalist in writing that they should obtain the advice of independent legal counsel on the transaction, and give them time to do so;
- CThe attorney must withdraw from representing the venture capitalist and the developer on the other matters, at least until the process of forming the corporation is complete, to avoid conflicts of interest.
- DThe venture capitalist and the developer give informed consent, in writing, to the terms of the transaction and the attorney’s role in the transaction, including whether the attorney is representing them in the transaction.
35An attorney made an agreement to borrow money from a client who had received a large inheritance. The attorney agreed to pay the client the same interest rate that banks in that area were charging for unsecured business loans, and she gave the client a detailed written disclosure of the terms and conditions of the loan, with phrasing that a nonlawyer could understand. The client gave written, signed consent to the essential terms of the loan, including the fact that the attorney was not representing the client in the transaction. During one of their conversations about the loan, the attorney also advised the client in writing that it would be prudent to obtain the advice of another lawyer about the transaction, and she offered to give the client time to find another lawyer, but the client did not want to do this. Upon consummation of the agreement, the client transferred the loan amount to the attorney, who made regular payments according to the terms of the agreement, eventually repaying the full amount with interest. Based on these facts, were the attorney’s actions proper in this transaction?
- AYes, because the attorney repaid the loan with interest, so the client suffered no adverse consequences.
- BYes, because the attorney complied with the requirements of the Model Rules for this type of transaction with a client.
- CNo, based on the facts here, the client did not sign the written advisement to seek the opinion of independent legal counsel.
- DNo, it was impermissible for the attorney to borrow money from a current client, even though the attorney fully repaid the loan.
36A transactional attorney agreed to represent a new client who already had representation by trial counsel on another matter. The client agreed to a complex fee arrangement, which included a fixed flat fee for the first phase of the transaction, a modest hourly rate for the remainder of the transaction, and a modest contingent fee in addition to these other fees, scaled to the outcome of the transaction – that is, a higher contingent fee for obtaining more favorable final terms in the transaction. The attorney did not advise the client to seek the opinion of independent legal counsel for this transaction, and did not obtain signed, written consent from the client about the attorney’s role in the transaction. The client’s other lawyer reviewed the terms of the fee agreement and advised the client to accept it. Based on these facts, could the attorney be subject to discipline for violating the provisions Model Rule 1.8 that govern business transactions with clients?
- AYes, because the attorney did not advise the client in writing to seek the opinion of independent legal counsel for this transaction.
- BYes, the client did not provide signed, written consent regarding about the attorney’s role in the transaction.
- CNo, because the client had representation by another lawyer in the transaction
- DNo, because Rule 1.8 does not apply to ordinary fee arrangements between client and lawyer.
37A certain attorney represents a client in a civil suit. The client and the attorney often discuss their hunting trips and have gone hunting together on several occasions. The client tells the attorney he is purchasing a piece of property for hunting with five other people and asks the attorney if he would like to go in on the purchase. The attorney tells the client he would like to join in the purchase and he provides the client with a check for his portion of the purchase price. Is the attorney subject to discipline?
- AYes, attorneys shall not enter into transactions with clients that result in joint ownership of property.
- BYes, attorneys shall not engage in social activities with current clients or enter into transactions that result in joint ownership of property.
- CNo, attorneys may enter into transactions with clients assuming the transactions are not related to the current representation of the client and the client gives informed consent.
- DNo, attorneys can enter into fair and reasonable business transactions with clients assuming the client receives an advisory in writing of the benefit of seeking advice from independent counsel and gives informed consent, in writing and signed by the client, of the transaction details.
38An attorney represented a client in a litigation matter, and while the matter was still pending, the attorney and the client also agreed to purchase an investment property together. The client had another lawyer who regularly represented the client in transactional matters, but not litigation. The litigation attorney and the client contributed equal amounts toward the purchase of the investment property, and each received an equal share. The attorney did not advise the client in writing of the desirability of obtaining the opinion of independent legal counsel in the transaction, but the client nevertheless asked his other lawyer, who handled the client’s transactional matters, to review the terms and render an opinion. The other lawyer provided the client with a written disclosure of the terms and conditions of the agreement and recommended that the client proceed. Did the litigation attorney act properly in this transaction, purchasing an investment property with the client?
- AYes, because the client had representation by another lawyer in the transaction.
- BYes, because the joint investment did not relate to the attorney’s representation of the client, which pertained to a litigation matter.
- CNo, because the attorney did not advise the client in writing to seek the opinion of independent legal counsel for this transaction.
- DNo, because the transaction was not fair and reasonable to the client.
39A certain client needed to sell a parcel of real estate to pay off a large amount of credit card debt. He brought this situation to the attention of his attorney, who was representing him in his interactions with collection agencies and credit bureaus. The attorney offered to purchase the property immediately for the full amount of the client’s outstanding credit card debt – just over a hundred thousand dollars – without delaying the matter by arranging a mortgage first, or having the property appraised. The client was disappointed, because he thought the property was worth more than that, but he agreed due to his dire financial circumstances. The attorney fully disclosed the terms of the purchase to the client, in understandable written form, and advised the client in writing that it would be prudent to consult with another lawyer about the transaction, which the client could not realistically afford to do. The client gave written, informed consent to the terms of the sale and the attorney’s role in the transaction. Two months later, the attorney sold the property to a developer for three times the amount he had paid for it. Did the attorney act within the requirements of the Model Rules?
- AYes, the lawyer complied with the Model Rules' notice requirements for business transactions with clients.
- BYes, because the client felt disappointed after the transaction, and the attorney should have given more consideration tot he client's feelings.
- CNo, because the client could not realistically afford to obtain the advice of independent legal counsel regarding the transaction.
- DNo, because the transaction was objectively unfair.
40An attorney has a successful blog about legal practice, and the blog generates substantial side income for the attorney. The attorney posts entertaining stories about his clients that attract the attention of his readers and make the blog successful and lucrative. He does not obtain client consent for these posts, but he is careful 1) not to post anything that would seriously injure the client’s reputation or legal interests, and 2) not to post information about individuals that is truly confidential, that is not part of the public record. On the other hand, he does post about his personal observations and opinions of clients and their lifestyles, and often shares generalizations based on confidential information of former clients, such as: “On three occasions I’ve had clients who lived a double life, maintaining separate families in separate cities, and their families never knew.” Another post recounted, “Last year I had a client who admitted after the case ended that he had been sleeping with one of the jurors.” Apart from potential violations of Rule 1.6 (client confidentiality), which of the following is true?
- AThe attorney may share non-confidential information and opinions about clients in a public forum that generates revenue for the lawyer.
- BThe attorney can share confidential information about clients on social media after the representation has ended, if the client has refused to pay the legal fees owed to the attorney.
- CThe attorney can share information on monetized social media about what transpired in the courtroom, except in cases with a sealed record, because normally courtroom proceedings are public.
- DThe attorney has a common-law fiduciary duty not to profit from using client information even if the use complies with the lawyer's ethical obligations, without accounting to the client for any profits made.
41Asylum Now is a nonprofit organization that advocates for refugees and immigrants from poor countries. The Board of Directors for Asylum Now wants to bring a test case in federal court to challenge the constitutionality of detaining refugees who enter the country under duress without a visa. Asylum Now has offered to pay an attorney to seek the release of a certain refugee currently in federal detention, and to use this case to challenge current federal laws and regulations that mandate such detentions. The refugee consents to the representation, as well as the payment of legal fees by Asylum Now, and agrees to have his case be the test case that might benefit others. During the representation, the attorney meets several times with the directors of Asylum Now to discuss how to frame their argument in the case in a way that would shape public policy in the right direction. Is it permissible for the attorney to undertake the representation, given this arrangement?
- AYes, the attorney may accept payment by Asylum Now and may agree to make contentions that Asylum Now wishes to have tested by the litigation.
- BYes, if the attorney agrees to prioritize the interests of Asylum Now as the payor over the personal wishes of the refugee, who is merely a representative of the larger class of victims that will benefit from the litigation.
- CNo, a lawyer may not accept compensation for representing a client from one other than the client.
- DNo, a lawyer may accept payment from a third party, but that party cannot ask the lawyer how the representation is progressing.
42An attorney was preparing a will for one of her wealthy elderly clients. The client had no surviving family members – her spouse had passed away years before, as had her siblings, and she had no children. The client asked the attorney for suggestions about potential beneficiaries of the estate, besides her favorite charities, and she offered to leave the attorney some items. The attorney replied, “Well, I’ve represented you on various matters over the years, and I have always looked out for your best interests, so I would not object if you included me in the will. I’ve always admired your collection of antique furniture and books.” The client was delighted by the idea and instructed the attorney to include a provision in the will bequeathing all the antique furniture and books in her large home to the attorney. The attorney prepared the will as instructed and the client executed it. Was the attorney’s conduct proper?
- AYes, because the client asked her for suggestions about potential heirs and was excited about leaving something in the will to the attorney.
- BYes, because the attorney was not depriving any other potential heirs of the specific items she requested, as the client had no surviving relatives.
- CNo, because the way the attorney suggested a specific bequest was manipulative and the elderly client was vulnerable to coercion or exploitation.
- DNo, because the attorney should not have prepared the will if the document made a significant bequest to the attorney.
43A certain attorney, a partner at a law firm, prepares a will for Sister. In the will, Sister directs the attorney to receive a substantial part of her estate. Then the attorney also recommends Sister appoint the attorney as the executor of the will because of his knowledge in this field. The attorney explains to Sister the role of the executor and the pay the executor of the estate will receive and discussed alternative executor choices with her. In addition, the attorney recommends Sister seek independent legal counsel regarding the issue of the executor. Sister does so, and then she asks the attorney to list him as executor in the will. Is the attorney subject to discipline?
- AYes, attorneys cannot include substantial gifts to themselves in legal instruments such as wills prepared by the attorney for the client.
- BYes, attorneys cannot recommend that a client appoint the attorney as the executor unless the client obtains the advice of independent legal counsel and gives informed consent confirmed in writing.
- CNo, attorneys may permissibly include gifts to themselves in a will prepared by an attorney for a person related to the attorney, even if the gift is substantial.
- DNo, an attorney may recommend the client appoint the attorney as executor assuming the client receives advice from independent legal counsel regarding the appointment of the attorney as executor prior to signing the will.
44A certain attorney obtained a successful outcome in a client’s matter, and the client was grateful. The client sent the attorney a gift basket that year as a holiday gift, containing high-quality fresh fruit, sample-size jars of gourmet fruit preserves, and a few other delicacies. The gift basket cost the client $50. Is it proper for the attorney to accept this gift, or must the attorney refuse it?
- AYes, because assuming a lawyer does not solicit the gift, there is no restriction on lawyers accepting unsolicited gifts from clients.
- BYes, a lawyer may accept a simple gift such as a present given at a holiday or as a token of appreciation.
- CNo, a lawyer shall not accept any substantial gift from a client, unless the lawyer or other recipient of the gift is a relative of the client.
- DNo, because the lawyer’s entire compensation for obtaining the favorable outcome should have been in the original retainer agreement and its schedule of fees, so any additional compensation or transfers from a client to a lawyer constitute an unwritten modification of the retainer agreement.
45A client hires an attorney to represent her in business litigation. Another lawyer in the firm, unknown to the attorney, approaches the client with a proposal for an unrelated business transaction, the sale of a parcel of real estate adjacent to the lawyer’s own land. The client agrees to sell the other lawyer in the firm the parcel of real estate for a reasonable price. The lawyer is not involved at all in the representation of the client and works exclusively in the estate-planning department of the firm, rather than in litigation. Must the lawyer nevertheless advise the client in writing of the desirability of seeking the advice of independent legal counsel, and obtain written informed consent from the client before proceeding with the purchase?
- AYes, because the fact that the lawyer owns the adjacent real estate to the client’s parcel of land means that he has a special conflict of interest with the client that would not necessarily apply to the other lawyers in the same firm.
- BYes, because a prohibition on conduct by an individual lawyer under the conflicts of interest rules would automatically apply to all lawyers associated in a firm with the personally prohibited lawyer, even if the first lawyer is not personally involved in the representation of the client.
- CNo, because the lawyer who is buying the real estate from the client is not involved in the representation of the client, and the Rules of Profession Conduct would not impute the attorney’s potential conflicts of interest to the other lawyers in the firm.
- DNo, because the lawyer is willing to pay a fair and reasonable price for the parcel of land, so there is no risk that the transaction will be to the disadvantage of the client.
46An attorney had his own firm specializing in small business transactions. The clients were small business owners who did not have in-house counsel or other legal representation. His representation agreements with clients included all necessary disclosures, fee schedules and rates, and a clause stipulating that all potential legal malpractice claims would go through binding arbitration. The attorney would explain this term fully to each client, but he would decline representation for any potential client who would not agree to binding arbitration. The attorney did this in hopes of limiting his future malpractice liability to clients. Was it permissible for the attorney to do this?
- AYes, because the clients gave informed consent, confirmed in writing.
- BYes, a lawyer may make an agreement with the client to arbitrate legal malpractice claims, provided such agreements are enforceable and the lawyer fully informs the client of the scope and effect of the agreement.
- CNo, a lawyer may not make an agreement prospectively limiting the lawyer's liability to a client for malpractice unless the client has independent legal representation in making the agreement.
- DNo, a lawyer cannot make a binding arbitration agreement with a client if the lawyer’s purpose in doing so is to limit the lawyer’s liability for future malpractice claims by the client.
47An attorney regularly represented clients in transactional matters. While she was representing a certain client in negotiating and drafting a contract, the client asked the attorney to represent her in a lawsuit as well. The attorney felt nervous because she rarely did litigation work, so she asked the client to sign a waiver of potential malpractice claims that could arise from the litigation work. She orally advised the client to talk to another lawyer about the waiver before signing it, but the client felt that she already had legal representation, as this attorney was handling her transactional matters. The client readily agreed to the waiver. The attorney competently handled the litigation matter, and the case settled before trial with a favorable result for the client. Could the attorney be subject to discipline for obtaining a malpractice waiver from the client?
- AYes, the attorney is making an agreement prospectively limiting the lawyer's liability to a client for malpractice, and the client does not have independent representation in making the agreement.
- BYes, because she did not advise the client in writing about the desirability of seeking independent legal counsel about the waiver, but merely gave an oral recommendation
- CNo, the client already had legal representation from the attorney on another matter, so is was permissible for the attorney to make an agreement limiting future malpractice claims.
- DNo, the waiver was moot because the attorney did not commit malpractice and the client obtained a favorable result.
48An attorney worked in the legal department of Conglomerate Corporation for a few years, then left there to start his own firm. His experience at Conglomerate proved useful, as he regularly represented some of Conglomerate’s newer industry rivals in their transactional and pre-litigation work – small startup businesses that did not have in-house counsel. Whenever a new client needed legal representation in a matter that could potentially be adverse to the legal interests of one of his other clients, the attorney would obtain informed consent, confirmed in writing to the potential conflict of interest. In such cases, the attorney would also ask new clients to sign a waiver of liability for all potential legal malpractice by the attorney. Attached to the waiver was a cover sheet explaining what the waiver entailed, the downsides for the client in signing a waiver, and recommending the client seek the advice of independent legal counsel in connection therewith. As with the consent to conflicts of interest, the clients normally gave informed consent, confirmed in writing, to the waiver of malpractice claims against the attorney. Could the attorney be subject to discipline, based on these facts?
- AYes, because the attorney is representing industry rivals or competitors of his former client and employer, Conglomerate Corporation, without obtaining Conglomerate’s consent.
- BYes, because the attorney is making an agreement prospectively limiting the lawyer's liability to a client for malpractice, and the client does not have independent representation in making the agreement
- CNo, the clients gave informed consent, confirmed in writing, to both the conflict of interest and the waiver of malpractice claims.
- DNo, the attorney advised the clients in writing of the desirability of seeking the advice of independent legal counsel in connection therewith.
49A plaintiff who had prevailed at trial needed representation for the appeal, because the defendant in the case appealed the verdict. Plaintiff’s counsel did only trial work, not appellate work, and referred the client to an appellate attorney nearby. The trial lawyer even offered to accompany the plaintiff to the initial consultation with the appellate attorney to help facilitate the transition and to safeguard his client’s interests in retaining new counsel. Instead, the plaintiff fired the trial lawyer, terminating the representation, and then went alone to the consultation with the appellate attorney. The appellate attorney asked the plaintiff to sign an agreement waiving potential malpractice claims against the appellate attorney, because the appellate attorney did not want to be responsible for the trial lawyer’s mistakes. The appellate attorney did not inform the plaintiff fully about the risks or downsides of waiving future malpractice claims, nor did he advise the plaintiff of the desirability of seeking the advice of independent legal counsel in connection therewith. Could the attorney be subject to discipline, based on these facts?
- AYes, because the plaintiff already had independent representation by counsel, so it was improper for the attorney to attempt to shift all potential liability onto another lawyer.
- BYes, the attorney made an agreement with an otherwise unrepresented client that prospectively limited his liability for malpractice.
- CNo, the plaintiff already had independent legal counsel in connection to the malpractice waiver.
- DNo, when a lawyer brings another attorney into the matter to assist with an appeal, the lawyers and the client must agree in writing about how they will allocate responsibility and legal fees for the representation.
50A plaintiff who had prevailed at trial needed representation for the appeal, because the defendant in the case appealed the verdict. Plaintiff’s counsel did only trial work, not appellate work, and referred the client to an appellate attorney nearby. The trial lawyer even accompanied the plaintiff to the initial consultation with the appellate attorney to help facilitate the transition and to safeguard his client’s interests in retaining new counsel. The appellate attorney asked the plaintiff to sign an agreement waiving potential malpractice claims against the appellate attorney, because the plaintiff had not yet terminated the representation with her trial lawyer, and the appellate attorney did not want to be responsible for the trial lawyer’s mistakes. The appellate attorney did not inform the plaintiff fully about the risks or downsides of waiving future malpractice claims, nor did he advise the plaintiff of the desirability of seeking the advice of independent legal counsel in connection therewith. Could the attorney be subject to discipline, based on these facts?
- AYes, because the plaintiff already had independent representation by counsel, so it was improper for the attorney to attempt to shift all potential liability onto another lawyer.
- BYes, the attorney made an agreement prospectively limiting his liability to a client for malpractice.
- CNo, when a lawyer brings another attorney into the matter to assist with an appeal, the lawyers and the client must agree in writing about how they will allocate responsibility and legal fees for the representation.
- DNo, the plaintiff already had independent legal counsel in connection to the malpractice waiver.
51An experienced attorney had his own solo law practice. The attorney agreed to provide representation to a certain client, which would entail researching and writing several legal opinions for the client pertaining to the client’s anticipated litigation, and the attorney’s usual hourly rate. The proposed research and writing would require a substantial amount of time, so their agreement stipulated that the attorney would bill the client every two months. The client paid the first bill and then stopped paying. After several months, the anticipated litigation began, and the client requested copies of all the remaining legal opinions that the attorney had agreed to write. The attorney had followed state laws to secure a lien on his work product for the client after the client stopped paying. Could the attorney be subject to discipline if he were to retain the documents that the client has not yet paid for?
- AYes, the attorney has now acquired an impermissible proprietary interest in the cause of action or subject matter of the client’s litigation.
- BYes, the Model Rules forbid a lawyer to acquire a lien merely to secure the lawyer's fee or expenses.
- CNo, if a client refuses to pay the fees that a lawyer has already earned, the lawyer owes no ethical duties to the client, because the client has nullified the client-lawyer relationship.
- DNo, a lawyer may acquire and act upon a lien authorized by law to secure the lawyer's fee or expenses.
52Attorney Stevenson did not know anything about the construction industry, but he thought he knew how to draft contracts. Giant Equipment Corporation manufactures cranes, bulldozers, and large backhoes used for building construction. These machines are pricey. Twenty-seven months ago, the manufacturer hired Attorney Stevenson to help with drafting Purchase and Sale Contracts for the manufacturer to use for all these items of heavy equipment. Attorney Stevenson advised the company on what provisions to include and some of the exact wording they should use in the Purchase and Sale Agreements. Then the representation ended, and the company has not contacted an attorney since. Last week, Ashby Building Construction retained Attorney Stevenson to handle a dispute with a manufacturer of one of its construction cranes. It soon becomes apparent learns that the piece of equipment came from Giant Equipment Corporation, and that the procurement officer for Ashby consummated the purchase by signing one of the contacts on which Attorney Stevenson had advised Giant. Now Ashby wants to rescind the contract and return the machine for a full or partial refund, because it used the crane for a week before it broke down. Would Attorney Stevenson be subject to disqualification in a such a latter, if litigation ensued?
- AYes, because the items are so expensive, and Ashby used the machine for only a week before it became unusable.
- BYes, Attorney Stevenson cannot seek to rescind on behalf of a new client a contract drafted on behalf of the former client.
- CNo, because Ashby is not seeking any damages besides a refund in exchange for returning the faulty machine, and this merely puts the manufacturer back in the same place as if the sale had never occurred, so there is no potential harm to the manufacturer.
- DNo, because representation of the manufacturer ended a while ago, so there is no conflict of interest or direct adversity between current clients
53Attorney Stevenson was willing to represent anyone, and rarely turned clients away. In fact, Attorney Stevenson would push the permissible limits under the conflicts of interest rules. At one point, Stevenson helped a construction company obtain the necessary permits from federal, state, and municipal agencies for constructing a new shopping center in an affluent suburban area. Obtaining the permits was not difficult – in fact, Attorney Stevenson found this kind of legal work boring. Before the construction was complete, another company acquired the property and the building project, and brought the construction to completion. Seventeen months after the building was open for tenants, one of the tenants missed to pay rent for his unit for three consecutive months, and the property manager started an eviction process. The tenant hired the same attorney to represent her in the eviction proceedings. The shopping center’s owner filed a motion to have the attorney disqualified due to the substantial relationship between his previous work in securing construction permits for the building and the present eviction action against the tenant. Should Attorney Stevenson’s previous work for the construction company disqualify him from representing tenant in the eviction proceedings?
- AYes, because both matters involve the same commercial real estate property, so the matters have a substantial factual relationship, creating a presumption that Attorney Stevenson has confidential information that would be prejudicial to the opposing party in the new matter.
- BYes, because the lawyer now represents a party with directly adverse interests to his own former client.
- CNo, because another company bought the property before the construction was complete, so there is no conflict of interest for the attorney at this time.
- DNo, the matters are not related enough, because they do not involve the same transaction or legal dispute, and any confidential information learned while obtaining the construction permits prior would be unimportant for the nonpayment of rent by a tenant sometime later.
54A doctor was facing criminal charges for an illegal kickback scheme – accepting bribes to refer patients to a certain hospital. The attorney representing the doctor in the criminal matter previously represented the hospital, and he had drafted one of the contractual agreements between the doctor and the hospital that federal prosecutor now allege to have been a sham agreement (payment for services never rendered). The attorney also provided some legal advice several years ago to another doctor, in one passing conversation, and that doctor now turns out to be part of the same kickback scheme. This other doctor, in fact, has turned state’s witness in the case against the attorney’s current client. The federal prosecutors have filed a motion to disqualify the attorney from the case because he is a potential witness about the agreement between the doctor. On the other hand, it has not yet listed him as a witness who will testify at trial, and it does not appear his testimony would be necessary to prove any of the elements in the case, given the number of other witnesses and documentary evidence available. How should the court rule on the motion to disqualify?
- AThe court should grant it because the co-defendant in the case, the hospital, was a former client of the attorney.
- BThe court should deny it because the government has not met its burden of showing that the attorney would be a necessary witness in the case, or that he possessed confidential information about the other doctor who will serve as a hostile witness in the case.
- CThe court should deny it because disqualifying the attorney would be unduly prejudicial to the doctor who is the defendant.
- DThe court should grant it because the lawyer is likely to be a necessary witness in the case, and because he will have to cross-examine a former client, the other doctor who is a hostile witness.
55Media Company holds the exclusive right to license and distribute certain pay-per-view sporting events, which commercial establishments must license to broadcast at their facilities. It sued a sports bar, for broadcasting one of its major sporting events without a license. The Three Brothers Law Firm were involved before the Media Company filed suit, and Three Brothers Firm had managed to broker a tentative settlement agreement between the parties. Afterward, however, the parties reneged on the agreement and litigation ensued. Three Brothers Firm now represents the defendant sports bar in the matter, and it is counsel of record. Media Company has filed a motion to disqualify Three Brothers from the case, but the attorneys there claim that Media Company was never their client. There was no representation agreement between Media Company and Three Brothers, and Media Company never paid Three Brothers any legal fees. On the other hand, Media Company was otherwise unrepresented during the pre-trial attempt at negotiating a settlement, and its managers asked attorneys from Three Brothers for advice about whether to agree to the settlement instead of going to trial, and initially followed their legal advice on several points. Should the court now disqualify Three Brothers Firm from the case entirely?
- AYes, because they obtained confidential information during the negotiations in the same matter, or a matter with significant overlap.
- BYes, but only if the lawyers at Three Brothers Firm advised the sports bar to abandon the tentative settlement agreement.
- CNo, because the attorneys are blood relatives working in the same firm.
- DNo, because the firm was serving as a third-party neutral in the previous settlement negotiations, so neither party had a client-lawyer relationship with the firm.
56A businessperson hired a certain attorney to represent her in a tax dispute with the government, in which the government accused her of hiding assets in overseas accounts and failing to report income from certain obscure investments. During this representation, the attorney learned extensive private financial information about client, but the representation ended at the resolution of the tax case. Several years later, after the termination had ended, the husband of the client filed for divorce. The attorney was the only lawyer the husband knew, so he retained the attorney to represent him in the divorce against the client. Her new lawyer moves to have the attorney disqualified from representing the husband, but the attorney claims that the matters did not relate to each other enough to merit disqualification. Is the attorney correct?
- AYes, because resolving disputes with a government entity involves numerous procedural protections and administrative burdens of proof that are inapplicable in divorce proceedings in Family Court.
- BYes, because the attorney’s representation of Businesswoman terminated at the resolution of the tax matter, so there is no potential for betraying a current client by representing Businesswoman’s husband.
- CNo, matters are "substantially related" if there is a substantial risk that confidential information from the prior representation would materially advance the client's position in the subsequent matter, such as personal financial information.
- DNo, because Businesswoman’s troubles with the government over unpaid taxes are unlikely to be what led to the divorce from her husband, and the stress that the tax case put on the marriage is likely to be a major issue in the divorce proceeding.
57An attorney worked at Big Firm, which a court disqualified from representing a client in a case because one of the other lawyers at the firm had a conflict of interest regarding a former client, and this conflict was imputable to the entire firm. The firm was not timely in implementing screening measures and became subject to disqualification. The attorney was at the firm during this time but was not involved in the matter and did not learn any confidential information about the client. Eventually, the attorney left that firm and went to work at another firm. It turned out that the attorney’s new firm is representing the client instead – the client hired the new firm after the previous firm was subject to disqualification. The new firm has no measures in place to screen the attorney from participation in the matter, though the attorney is not in fact participating in the representation. Will the new firm be subject to disqualification now, because the attorney joined the firm from another firm that was subject to disqualification?
- AYes, because the “taint” that the attorney brings from being part of a firm disqualified from the matter will now be imputable to the other lawyers in the new firm, without adequate screening measures in place.
- BYes, unless the opposing party gives informed consent, confirmed in writing, to the new firm’s representation of the client despite the attorney’s presence at the firm.
- CNo, assuming the attorney receives no part of the fees received for the representation.
- DNo, there is no doctrine of double-imputation that would impute a purely imputed conflict from the attorney onto the other lawyers in the new firm.
58An attorney practiced family law. One of her previous cases involved representing a man who wanted to remove his estranged wife as the beneficiary of his life insurance policy. The attorney was successful in this undertaking for the client. Two years later, the client died, never having divorced his estranged wife. The wife asked the same attorney to represent her and to convince the insurer to undo the change in beneficiary so that the wife could receive the proceeds from her husband’s life insurance policy. This representation would require extensive negotiation with the insurance company to convince the company that the previous change was invalid. Prior to his death, the husband, whom the attorney had represented, had sent the wife a letter saying that he made a mistake in removing her as the insurance beneficiary, and that he did not understand at the time the consequences of what he was doing. Would it be proper for the attorney to represent the wife in this matter?
- AYes, because the husband is dead and cannot suffer any injury or adverse legal consequences from her representation of the wife.
- BYes, because the husband expressed in writing that he regretted changing the beneficiary, so the attorney can assume that representing the wife would fulfill the wishes of the former client, that is, the husband.
- CNo, because the subsequent representation would require the attorney to attack the same work the attorney performed for the former client.
- DNo, because the husband did not inform the attorney in writing that he regretted his prior decision about changing the beneficiary
59An attorney provided lobbying services as part of his practice. He represented Giant Gas Company for a few years lobbying on environmental issues related to fracking. During the representation on a certain matter, the attorney learned the basis for Giant’s fracking decisions in terms of location, timing, and methodology. Conglomerate Corporation, a major purchaser of the natural gas produced from fracking, has now asked the same attorney to represent it in an antitrust lawsuit against Giant Gas, alleging a conspiracy to impose limits on production. Conglomerate’s claims against Giant Gas are likely to include addressing the same production decisions that the attorney learned about in his representation of the latter. This confidential information would certainly advance Conglomerate’s position in the anticipated antitrust matter. The attorney no longer represents Giant Gas, because the company was not timely in paying the attorney’s fees for the lobbying work. Would it be proper for the attorney to represent Conglomerate in this matter against Giant Gas?
- AYes, because the attorney no longer represents Giant Gas, who forfeited the right to have any say in the matter when they refused to pay the attorney’s fees on time.
- BYes, because the matters are completely unrelated, given that the new representation would involve antitrust litigation and the former representation involved lobbying on environmental issues.
- CNo, even if both parties give informed consent in writing to the attorney’s representation of Conglomerate in the new matter, the fact that the attorney has confidential information relevant to the new representation makes the conflict nonconsentable.
- DNo, there is a substantial relationship between the matters, so the attorney may not represent Conglomerate in the matter without effective consent from both Conglomerate and Giant Gas.
60An attorney worked as in-house counsel for Conglomerate Corporation for eight years, dealing with every aspect of management and corporate affairs, in addition to regulatory compliance. Conglomerate then hired a new CEO, who promptly fired the attorney and replaced him with another lawyer who was a nephew of the CEO. Giant Company has asked the attorney who formerly worked for Conglomerate to represent Giant in an antitrust matter against Conglomerate Corporation. The contemplated lawsuit focuses on specific incidents that took place after the attorney left Conglomerate, but the lawsuit involves sweeping charges of longstanding anti-competitive market strategy and pricing practices by Conglomerate, which would include the time when attorney worked there. Would it be improper for the attorney to represent Giant Company in this matter against Conglomerate?
- AYes, the breadth of confidential client information of Conglomerate previously accessible to the attorney during the prior representation, and the breadth of issues open in Giant Company’s contemplate lawsuit, creates a substantial risk that the information would materially prejudice Conglomerate in the upcoming litigation.
- BYes, because Conglomerate fired the attorney and replaced him with the new CEO’s nephew, there is a substantial risk that the attorney would have personal animosity toward Conglomerate and the CEO that would materially impair the attorney’s ability to provide competent, zealous representation to Giant Company.
- CNo, because the factual basis for the contemplated lawsuit involves decisions that transpired after the attorney left Conglomerate, and the sweeping charges of longstanding anti-competitive practices are too general to involve specific confidential information known to the attorney from his employment there.
- DNo, by terminating the attorney who was in-house counsel, Conglomerate effectively waived any future conflicts of interested related to the attorney’s work there, so the attorney would only need consent from Giant Company, who will certainly provide it.
61An attorney represented a home builder at the closings of the sales of a few homes that the builder had constructed in a new subdivision. It is not unusual for lawyers who conduct residential real estate closings to encounter issues related to marketability title. Recently, the home builder switched to using another law firm, so the attorney no longer represents the builder. A prospective new client has consulted with the attorney about providing representation. This prospective client is a landowner in an adjacent town, who wants to sue the same home builder, that the attorney formerly represented over a parcel of land on which the home builder plans to construct a few homes. The prospective client claims to have an ownership interest in the property. The contemplated lawsuit would involve whether the landowner or home builder have clear title to the property. Would it be improper for the attorney to represent the new client against the home builder over the marketability of title for this new parcel of land?
- AYes, the marketability of title in the same geographic area would necessarily involve too much relevant confidential information, so there is a substantial relationship between the two matters and the attorney should not undertake the new representation.
- BYes, the home builder is likely to feel a sense of betrayal when his own former attorney represents an opposing party in a lawsuit against the builder, and such breaches of trust undermine confidence in the legal system.
- CNo, but only if both the home builder and the new client provide informed consent, confirmed in writing, and the attorney believes that he can provide competent representation to the new client without a material impairment.
- DNo, the attorney’s knowledge of marketability of other tracts is not necessarily relevant to litigation involving the marketability of title to the new parcel, so the attorney may represent the new client without informed consent of the home builder.
62An attorney formerly represented Pharma Giant in obtaining FDA approval to market prescription drug Opticoton for treating diseases of the eye. Drug Conglomerate has now asked the attorney to help it obtain FDA approval for sale of prescription drug Dermicon for treating diseases of the skin. Drug Conglomerate is also interested eventually seeking FDA approval to market a variant form of Dermicon to treat diseases of the eye. If the FDA approved this application, Dermicon would significantly cut into the market share of Opticoton and Pharma Giant’s profits from the drug. The attorney gleaned confidential information while representing Pharma Giant that relates extensively to work that the attorney would undertake in helping Drug Conglomerate obtain approval for Dermicon to be marketed as an eye salve, but none of the information would relate to Dermicon’s use as a skin medicine. Drug Conglomerate and the attorney agree that the attorney’s work will relate only to FDA approval for use of Dermicon to treat diseases of the skin. With this limitation in place, would it be impermissible for the attorney to represent Drug Conglomerate in obtaining the initial approval for Dermicon as a skin medicine, without obtaining Pharma Giant’s informed consent?
- AYes, because it is foreseeable that after the FDA approves Dermicon as a skincare drug, it will be easier for Drug Conglomerate to obtain additional approval for its use as an eye salve, sold in a different form.
- BYes, because Pharma Giant has a right to the attorney’s unwavering loyalty and confidentiality, and the attorney has a fiduciary duty to protect a former client’s profits or commercial interests in the future.
- CNo, because the limitation on the representation removes any substantial relationship between the two matters or concerns about confidential information from a former client giving a strategic advantage to the new client.
- DNo, because otherwise the attorney would have an unethical restrain on his right to practice law or represent future clients.
63A thirty-lawyer firm in Chicago affiliated with Boutique Firm, three lawyers in a small city in New England. Each firm includes, on its masthead under the list of its own lawyers, the affiliation of the other firm (with its lawyers each named). Each firm also mentions the affiliation with the other in its Martindale-Hubbell listing. Boutique Firm has represented Conglomerate Corporation in intellectual property matters for a few years, and has on file extensive information about Conglomerate’s patents, patent applications, and prior patent litigation. Recently, Copycat Company has hired the thirty-lawyer firm in Chicago to seek a declaratory judgment that it is not infringing on certain patents owned by Conglomerate Corp., or in the alternative, that these specific patents are invalid. Conglomerate Corporation hired a new litigation firm to represent it in the matter, due to its concern about its regular firm having a conflict of interest. During the pleading and discovery phase, Conglomerate filed a motion to disqualify the Chicago firm from representing Copycat Company, due to its affiliation with Boutique Firm, even though Boutique Firm is not handling Conglomerate’s litigation in this matter. Should the court grant the motion to disqualify the Chicago firm?
- AYes, because it was misleading advertising for a firm in one state to identify a separate firm in another state as “affiliated,” as this creates the impression for potential clients that the lawyers from one firm are also employees of the other.
- BYes, because separate firms that publicly identify themselves as “affiliated,” even if they are located several states away from each other, count as the same firm for purposes of imputed conflicts of interest under Rule 1.10.
- CNo, because Boutique firm is not representing Conglomerate in the pending patent litigation, and the firm that does represent Conglomerate has no obvious connection to the Chicago firm.
- DNo, because the Chicago firm and Boutique Firm (in New England) are separate firms, far away from each other geographically, and there is no reason to think that confidential information from a tiny firm in New England would pass over to a Chicago firm that merely has an “affiliation” for marketing purposes.
64A jury convicted a defendant of murder, and they sentenced him to death. His lawyer at trial was unimpressive, and there were potential points to raise in an ineffective assistance of counsel appeal. For his appeal, the defendant used a different attorney from the same firm as his trial lawyer - one of the lawyers at the firm handled trials, and the other appeals. Can the appellate attorney from the same small firm as the trial lawyer handle this appeal?
- AYes, if the client consents to the potential conflict of interest.
- BYes, because there is no conflict of interest if the appellate attorney’s own conduct is not in question.
- CNo, because under the legal standard for ineffective assistance of counsel, the appeal would potentially require the attorney to disparage the representation of his own colleague as being unreasonably poor.
- DNo, because a firm that loses a death penalty case at trial is not competent to handle the appeal, which is a matter of life and death for the client.
65A potential client sought representation from an attorney in a legal dispute over the inheritance rights in an estate matter. The attorney was indecisive, because the estate was extremely complicated, so he met with the client several times over the next few months, trying to understand the intricacies of the will, the trusts involved, and the rival heirs. The potential client provided extensive confidential information about the estate to the attorney in meetings, phone calls, and emails. Eventually, however, the attorney declined the representation. During this time, the attorney had been in negotiations with another lawyer about forming a new law firm together. The other lawyer, unfortunately, was representing the rival heir, that is, the opposing party in the same estate matter. When the attorney and the other lawyer formed their new firm, the heir who had been the potential client then sought to have the attorney’s new firm disqualified from the estate matter, arguing for imputation of the attorney’s knowledge of confidential information to the other lawyer, who was the heir’s opposing counsel in the case. The other lawyer, who was now partners with the first attorney, argued that no client-lawyer relationship had existed between the heir and the attorney, because the attorney had declined the representation at the end. The heir who had been the prospective client insisted that the attorney had received confidential information from her, and that he had disclosed it to the other lawyer, who represented the rival heir in the matter. As a factual matter, the judge ruled that the prospective client-heir had introduced substantial evidence that she had provided extensive confidential information to the attorney in the process of seeking representation from him; conversely, the judge was surprised that the attorney had almost no evidence to show that he had not disclosed any confidential information to his new partner. How should the court rule on the motion to disqualify both lawyers?
- AThe court should deny the motion, if no client-lawyer relationship formed between the attorney and the heir who is now requesting the disqualification.
- BThe court should deny the motion, if the attorney who had the confidential information is not participating at all in the estate matter.
- CThe court should grant the motion, because lawyers have some ongoing duties of confidentiality toward prospective clients, even after declining the representation, and the other lawyer has a conflict of interest by imputation.
- DThe court should grant the motion, because the formation of a new firm or partnership between lawyers when a legal dispute is already pending creates an irrebuttable presumption that the lawyers disclosed confidential information to each other.
66An associate in a law firm consulted with a prospective client about providing legal representation. The prospective client wanted to file a lawsuit against a nightclub. A fistfight had erupted at the nightclub between two other patrons, and the potential client had intervened to try to break it up. One of the fighting patrons shoved him out of the way, and he sustained some bruising when he fell. Worse, the nightclub’s security guard then arrived and misinterpreted the situation, and he thought the prospective client had started the fight. The security guard dragged him outside behind the nightclub, where the two had an angry exchange of words. The security guard became enraged and beat the prospective client badly, leaving him with a concussion, black eyes, some missing teeth, and broken ribs. The security guard had been since quit working there and was judgment-proof, but the nightclub had a long prior history of problems with this guard resorting to unnecessary violence against unruly patrons and the club. The associate attorney immediately agreed to represent the prospective client, and only later discovered that the managing partner at his firm owned a 50% share of the same nightclub as a side investment. Even so, the partner gave the associate permission to represent the victim, because he said the bar’s liability insurer would cover the claim and settle quickly, and it would generate fees for the firm. Furthermore, the potential client, who ran a real estate business, might hire the firm for other lucrative legal matters. The nightclub’s liability insurer, however, refused to settle the matter before the plaintiff had filed a claim in court, and as soon as the associate filed the claim, the insurer’s lawyer filed a motion to disqualify the associate’s entire firm from the case. Should the court disqualify the firm because one of the partners has invested money in the nightclub, even if that partner is not directly involved in the representation?
- AYes, because the partner’s conflict of interest would impute to all the other lawyers in the firm, especially if the managing partner has the conflict and associates are handling the representation with his permission.
- BYes, because the motivation of the partner and the associate is to generate legal fees for the firm, in the short term from the nightclub’s liability insurer, and in the long run from future legal work brought to the firm from this client.
- CNo, because the partner with the ownership interest in the nightclub is not the one providing representation to the victim, and he expressly allowed the associate to take the case, saying it would be good for the firm and would not injure his commercial interests.
- DNo, because the potential client deserves to have legal representation, and it would be prejudicial to him to disqualify his entire law firm after the filing of the claim.
67Alpha Firm and Beta Firm represent the two parties in a high-stakes commercial transaction – the sale of a subsidiary corporation from one large, international conglomerate to the other. An attorney at Alpha Firm is married to a lawyer at Beta firm, but the spouse at Beta Firm is not involved in the representation. If a problem arose, would a tribunal that follows the ABA Model Rules impute the marriage-based conflict of interest that Alpha Firm’s attorney to all the other lawyers in the firm, if another lawyer at Alpha Firm handled the representation in this case?
- AYes, because personal conflicts of interest automatically impute to the other lawyers at the same firm.
- BYes, because conflicts based on marriage or family relationships receive special scrutiny from the courts and are the most frequent basis for disqualification.
- CNo, because a conflict arising from a lawyer’s marriage to another lawyer at an opposing law firm does not necessarily impute to all other lawyers in the firm.
- DNo, because the representation involves a transactional matter, and disqualification due to imputed conflicts of interest applies only in the litigation context.
68Attorney Ames and Attorney Adams work in the corporate legal office of Risk Company. A federal regulatory agency is investigating of the activities of Risk Company and is deciding whether to initiate criminal charges against Risk Company, some of its employees, or both. The regulatory agency has a long-established practice of not charging corporations for violations that corporate employees commit, where the corporation can show convincingly that it actively sought to discourage the offense in question. Showing this practice would, however, almost guarantee that an employee would face charges individually for the violation. Stevenson is a Risk Company employee upon whose activities the agency has begun to focus. Before Attorney Adams’ employment by Risk Company, she had been in private practice and had advised Stevenson with respect to the very conduct that is the subject of the agency investigation. Can Attorney Ames, who works with Attorney Adams, represent Risk Company in the matter before the regulatory agency, without obtaining informed consent from Stevenson?
- ANeither Attorney Ames nor any other member of Company's corporate legal office may represent Company without obtaining Stevenson’ informed consent.
- BAttorney Adams can screen himself from the matter, and then Attorney Ames can represent Risk Company as in-house counsel in appearances before the agency officials.
- CAttorney Ames should not undertake the representation himself, but he can arrange for an supervise outside counsel in handling the matter for Risk Company.
- DAttorney Ames can represent Risk Company in the matter, because in-house counsel for corporations are exempt from the usual imputation of conflicts of interest from one lawyer to others in the same firm.
69An Assistant District Attorney, who has recently joined a county prosecutor's office, represented a defendant at a preliminary hearing in a pending criminal case while in private practice. Now that this attorney has joined the prosecutor’s office, how can the office proceed with the prosecution of the same defendant?
- AThe new attorney, or any other lawyer in the prosecutor’s office, could proceed with the prosecution, because there an exception in the conflict-of-interest rules for prosecutors.
- BThe office must either hire a special prosecutor for the case, borrow a prosecutor from a neighboring jurisdiction, or implement effective screening measures to exclude the new attorney from the prosecution.
- CThe prosecutor’s office cannot prosecute the defendant for the same charge (it must drop the charges), but it could charge him for other crimes in the future.
- DThe prosecutor’s office must either drop the charges or refer the case to the federal prosecutors at the U.S. Attorney’s office, who constitute another sovereign or jurisdiction for purposes of lawyers’ conflicts of interest.
70Attorney Stevenson is a partner in ABC law firm, and Lawyer Best formerly was a partner. A new client has sought to retain Attorney Stevenson to file suit on behalf of the client against Conglomerate Corporation. Before joining the ABC firm, Lawyer Best had represented Conglomerate Corporation at an earlier stage of the current dispute. Lawyer Best has now resigned from the ABC firm, disclosed no confidential information about Conglomerate Corporation relevant to the matter to other lawyers in ABC, left no files at ABC that relate to the proposed suit, and will not share in fees derived by the ABC firm from the representation of the new client. Given that Lawyer Best represented Conglomerate Corporation in the same matter, and then worked for ABC law firm in between (but has recently left the firm), is it proper for Attorney Stevenson to represent the new client in the matter against Conglomerate?
- ANo, because Lawyer Best worked on the same matter, so his conflict of interest applies by imputation to all the lawyers who worked with him at ABC firm.
- BNo, unless Conglomerate gives informed consent, in writing, to the potential conflict of interest that arose from having Lawyer Best at the firm until recently.
- CYes, the firm could have represented the new client even if Best was still working there, because his work for Conglomerate occurred while he worked at another firm, at an earlier stage in the current dispute.
- DYes, given Lawyer Best’s departure and the fact that nobody else at the firm learned confidential information about Conglomerate Corporation, there is no remaining imputation of Best’s conflict of interest.
71An attorney was an associate at Big Firm. In his first year there, as a recent law school graduate, the attorney had a twenty-minute conversation with a more senior associate about research strategies involving a narrow issue of venue in federal court. The research was part of the representation of Big Bank, in the case of Developer v. Big Bank. The attorney’s time sheets from the time clearly document the length of the conversation and its subject matter. The entire conversation focused on the facts pleaded in the complaint and answer; the attorney learned no confidential information about the matter. Eventually, the attorney left Big Firm to become an associate at Boutique Firm. Eighteen month later, a partner assigned the attorney to represent the same Developer against Big Bank in a matter that overlapped on many points with the matter in which Big Firm had represented Big Bank. Lawyers at Big Firm still represent Big Bank, and they inform the bank’s officials that the attorney who worked for them is now working at Boutique Firm, representing the Developer. Big Bank instructs the lawyers at Big Firm to seek the disqualification of the entire Boutique Firm from representing the Developer in the matter. How could Boutique firm avoid the imputation of a conflict of interest to its lawyers?
- ABoutique Firm cannot avoid imputation of the conflict of interest, for it should have known about the attorney’s prior work before it hired him, and the matter is closely related to the matter the attorney worked on a Big Firm.
- BIf Boutique Firm immediately terminates the attorney and forbids the other lawyers there from having any contact with him, it can avoid disqualification in this matter.
- CAt most, Boutique Firm would need to screen the attorney from the matter and have other lawyers represent the Developer, but even this may be unnecessary, because the attorney learned no confidential information about Big Bank at his previous firm.
- DAt best, Boutique Firm could offer to serve as a mediator between the Developer and Big Bank to resolve the matter, but it cannot provide representation in the form of advocacy due to the attorney’s prior work on the representation of Big Bank.
72Big Bank hired Big Firm to represent it in a matter against Developer. Big Firm’s partners explained to Big Bank before commencing the representation that they had hired an associate who previously worked for the firm that was representing Developer, and that he had worked on various matters for Developer while there. None of the associate’s work was on the same case that was now pending, but it was unclear whether some of the matters had overlapping factual or legal issues with the present matter. Big Firm gives consent to the representation despite the conflict of interest, but it conditioned its consent on Big Firm implementing strict measures to screen the associate from any participation in the matter – including relocating the associate to another office at the firm, where he would not have day to day contact with lawyers representing Big Bank. The partners agreed, but it took a few months for them to free up office space to move the associate out of his current office, which was the office between the two lawyers serving as lead counsel in Big Bank’s matter. Otherwise, the firm followed the standard screening procedures delineated in Model Rule 1.10. If a disciplinary action or legal malpractice action arose later regarding the representation of Big Bank, would the associate’s conflict of interest be imputable to the other lawyers at Big Firm?
- ANo, because Big Firm complied with the screening requirements of the Model Rules, and it was unreasonable for the bank to require more screening procedures than those delineated in the Model Rules.
- BNo, because Big Bank consented to the conflict of interest, and it was not Big Firm’s fault that it took a long time to find another office for the associate.
- CYes, because the presence of an attorney who might have worked on closely related matters created an imputed conflict of interest, and the imputation was not removable in this case.
- DYes, a client's informed consent to a conflict can be qualified or conditional, as here, and Big Firm violated the client’s condition, so it did not have valid consent to the conflict.
73A prospective client met with an attorney at Boutique Firm for an initial consultation about a personal injury lawsuit over injuries the prospective client had sustained. The attorney declined the representation because he thought the client’s case was unwinnable and would therefore generate no fees. During the consultation, the attorney asked some probing questions about the incident, and the client admitted facts indicating an unreasonable assumption of foreseeable risks beforehand, as well as the client’s own intoxication at the time, which in the case would constitute contributory negligence. Furthermore, the client had failed to take obvious measures afterward to mitigate the damages. The attorney was certain that all these unfavorable facts would come out during discovery, and the client’s claim would become laughable at trial. Two months later, another client came in for a consultation with another lawyer at Boutique Firm. This prospective client had was service of process in a new personal injury lawsuit, and he was the named defendant. The plaintiff in the lawsuit was the same individual who had met with the first attorney for a consultation a few weeks before. Boutique firm agreed to take the case and represent the defendant in the litigation. Which of the following is true, according to the MRPC?
- ABoutique Firm cannot represent the defendant in the case because an attorney there learned confidential information from the opposing party as a prospective client during an initial consultation two months ago, and it would be subject to disqualification if it handled the litigation.
- BThe other lawyer at Boutique Firm can represent the defendant in the matter if the first attorney has not disclosed any confidential information to others in the firm, and the firm carefully screens the attorney completely from the matter and provides written notice to the other party.
- CEither the attorney or the other lawyer at Boutique Firm can represent the defendant, because the plaintiff was never a client of the firm, but merely came in for an initial consultation, at the end of which the attorney immediately declined representation.
- DEither the attorney or the other lawyer at Boutique Firm can represent the defendant because the unfavorable information the client shared during the consultation, though confidential at the time, will inevitably come out during discovery no matter who represents the discovery.
74A prospective client met with an attorney at Boutique Firm for an initial consultation about a personal injury lawsuit over injuries the prospective client had sustained. The attorney declined the representation because he thought the client’s case was unwinnable and would therefore generate no fees. During the consultation, the attorney asked some probing questions about the incident, and the client admitted facts indicating an unreasonable assumption of foreseeable risks beforehand, as well as the client’s own intoxication at the time, which in the case would constitute contributory negligence. Furthermore, the client had failed to take obvious measures afterward to mitigate the damages. The attorney was certain that all these unfavorable facts would come out during discovery, and the client’s claim would become laughable at trial. Two months later, another client came in for a consultation with another lawyer at Boutique Firm. This prospective client had was service of process in a new personal injury lawsuit, and he was the named defendant. The plaintiff in the lawsuit was the same individual who had met with the first attorney for a consultation a few weeks before. Boutique firm agreed to take the case and represent the defendant in the litigation, and it has no measures in place to screen the attorney who consulted with the prospective client from participating in the matter. Which of the following is true, according to the MRPC?
- AThe other lawyer at Boutique Firm can represent the defendant in the matter if the first attorney has not disclosed any confidential information to others in the firm, and he does not in fact disclose any confidential information the attorney learned during the consultation.
- BBoutique Firm cannot represent the defendant in the case because an attorney there learned confidential information from the opposing party as a prospective client during an initial consultation two months ago, unless Boutique Firm obtains informed consent in writing from both the defendant and the opposing party, who was a prospective client during a one-time consultation.
- CEither the attorney or the other lawyer at Boutique Firm can represent the defendant, because the plaintiff was never a client of the firm, but merely came in for an initial consultation, at the end of which the attorney immediately declined representation.
- DEither the attorney or the other lawyer at Boutique Firm can represent the defendant because the unfavorable information the client shared during the consultation, though confidential at the time, will inevitably come out during discovery no matter who represents the discovery.
75An attorney was an associate in Big Firm for eighteen months from early 2003 to late 2004. Another lawyer at Big Firm had been representing MindGames Inc., a creditor in the bankruptcy proceeding of Education Support International since 1999. The associate left Big Firm in 2004 to work for Regional Cancer Center as general counsel, where the medical director was Dr. House. There is a long, sad story here, but the bottom line is that Education Support International, which was still in bankruptcy, also owed money to Dr. House as a major shareholder of the failed company. In the summer of 2005, the bankruptcy court entered judgment in favor of MindGames Inc. and the shareholders, and MindGames immediately filed for sanctions against (compensation from) the shareholders, including Dr. House. At that point, Dr. House's lawyer withdrew from representation because the case had taken a complicated turn, and Dr. House asked the general counsel at his medical center - the associate we met at the beginning of this story - to represent him going forward. MindGames filed a motion to disqualify the attorney from representing Dr. House in the proceeding and the appeal, because he had formerly worked at Big Firm, in an office a few doors down from their own lawyer there. The bankruptcy judge agreed, applying an irrebuttable presumption that the attorney learned confidential information about MindGames while working at Big Firm, but the attorney insists he never worked on any MindGames matters and has did not learn any confidential information. The attorney has appealed the disqualification to the Fifth Circuit. How should the circuit court rule?
- AIt should reverse the disqualification order because the imputed conflict of interest disappeared when the attorney left Big Firm to work for Regional Cancer Center, given that the attorney knew no confidential information about MindGames.
- BIt should reverse the disqualification because so much time has elapsed since the attorney worked at Big Firm, making any confidential information he learned presumptively outdated.
- CIt should uphold the disqualification because the appellate court should defer to a trial court on matters of attorney conduct and conflicts of interest.
- DIt should uphold the disqualification because of the irrebuttable presumption in the Model Rules that a lawyer who works at a firm has access to confidential information about all the clients of the firm.
76The plaintiffs’ lawyers in a large class action suit against an insurer contacted an attorney at another firm seeking some advice. The attorney they called was a former commissioner with the state Insurance Commission, so he had vast insider knowledge of the regulation of the insurance industry in that state. The attorney talked to the plaintiffs’ lawyers for thirty minutes on the phone, during which the plaintiffs’ lawyers shared some confidential information about the class action, including their theories of the case and litigation strategies. A year later, the attorney left his firm and went to work for Boutique Firm. Around the same time, the defense team representing the insurance company in the class action – three lawyers – also moved as a group to the same Boutique Firm, but to their office in another city. Boutique Firm because the counsel of record for the defendant insurer. The plaintiffs’ lawyers learned of this convergence, and they *expressed concern that an attorney who had confidential information from their side of the case was now working with opposing counsel at the same firm. Boutique Firm immediately implemented strict screening procedures, and the managing partners made inquiries to confirm that the attorney had not already transmitted confidential information to the defense team for the matter, who were working in another office. The plaintiffs’ lawyers were unsatisfied and filed a motion to disqualify all the lawyer in Boutique Firm from representing the insurer defendant in the class action. While the motion was pending, the attorney who had the confidential information left Boutique Firm to accept a government appointment. Should the court disqualify Boutique Firm, due to the imputed conflict of interest?
- AYes, because there is an irrebuttable presumption that an attorney from another firm with confidential information will share that information with other lawyers at his new firm.
- BYes, because the case involves a class action, where courts are particularly sensitive to the problems of confidential information passing between lawyers.
- CNo, because the firm avoided imputation of the conflict by implementing effective screening measures, and the fact that the lawyer was geographically in another office, and has already departed to work elsewhere, also support denying the motion.
- DNo, because it was a bizarre coincidence that the defense team would end up migrating laterally to the same firm that the attorney joined around the same time, so there was no bad faith on the part of the lawyers.
77A large municipality has a labor dispute with its police union. The chairperson of the city council is a lawyer – she works for the city council part time, and she also has a law partnership with one other lawyer. As chairperson of the city council, she has the final word on which items will be on the council’s agenda at each meeting. A few city council members who support the police union want their modest proposal for police pension reform to be on the agenda at an upcoming meeting. The police pension fund has not received its full contribution from the city for several years, and even though all current retired officers are receiving their full pension benefits on time, a wave of expected retirements over the next few years will create a crisis if the pension remains underfunded. The proposal would require the city to make a significant increase in its annual contributions to the fund, which would force cuts elsewhere in the city budget. The chairperson’s law firm partner represents the police union in a variety of legal matters. The chairperson has screened herself from the representation, will receive no share of any legal fees from her partner’s representation of the union in the pension reform matter, and she will recuse herself from debating or voting on the proposal at the city council meeting. May the attorney who is the chairperson’s partner continue to represent the police union?
- AYes, if the chairperson honors her promise to abstain from voting or even participating in the debate about the police union proposal.
- BYes, the police union is not the client of the chairperson of the city council.
- CNo, because some of the other city council members are already supporting the police union in the pension reform matter.
- DNo, due to imputation of the chairperson’s conflict of interest to her law firm partner.
78A local abortion clinic hires the McCorvey Law Firm to represent it in an enforcement action brought by a state health agency. The action pertains to alleged health code violations at the clinic. The firm’s principle partner, Norma McCorvey, has strong, outspoken political beliefs against abortion, and cannot set aside her personal convictions to provide representation to the clinic in the matter. An associate at the firm, however, supports the clinic’s mission, and offers to represent the clinic instead of Attorney McCorvey. If McCorvey agrees to let the associate represent the clinic, would it be proper for the associate to do so, despite the partner’s strong convictions that the clinic should close?
- ANo, because the named partner at the firm has a material limitation that creates a conflict of interest that would be imputed to the rest of the lawyers at the firm.
- BNo, because the lawyers at the firm hold opposing political beliefs on a matter that is material to the representation, and this disagreement creates a conflict of interest for the firm as an entity.
- CYes, because Attorney McCorvey’s political beliefs are not relevant in the decision about whether to provide representation, given that the opposing party is a state health agency enforcing the health code, and the underlying constitutional issues surrounding abortion are unlikely to affect the case.
- DYes, because even though Attorney McCorvey could not effectively represent the client due to her political beliefs, this would not materially limit the representation by the associate at the firm.
79An attorney worked as a prosecutor in a local district attorney’s office. A month before leaving there to go into private practice, she briefly worked on a case in which applied for the search warrants for the police to try to locate a fugitive suspect. When the police apprehended the fugitive a few weeks later, another prosecutor filed the charges and proceeded with the case. Eventually, the attorney who had left to start her own practice received a referral client who turned out to be the same defendant. When she filed an appearance to represent the defendant, however, the prosecutor filed a motion to have her disqualified, because she had worked on the same case by applying for the warrants. The attorney responded that the defendant was not even in custody yet when she applied for the warrants, that the warrant application was a purely administrative chore, and that the filing of the charges did not occur until after she left her position there. How is the court likely to rule?
- AThe court will disqualify the attorney from serving as defense counsel because she had participated in the matter personally and in a substantial way as a prosecutor.
- BThe court will disqualify both her and the prosecutor from the case, as they were colleagues when she participated in the matter personally and in a substantial way.
- CThe court will deny the motion to disqualify the attorney because she did not participate in a substantial way in the case while she was at the district attorney’s office.
- DThe court will first assess whether the attorney has confidential information that could be prejudicial to the opposing party in the case.
80Conglomerate Corporation spilled a large quantity of toxic sludge along the edge of its property, and spillage polluting two adjacent properties, one parcel owned by a private individual, and the adjoining parcel that was state-owned. The subdivision of the state that owned the polluted parcel agreed with the private landowner to be co-plaintiffs in a tort action against Conglomerate as the polluter, and to use the same attorney to represent both the state and the private landowner. The private landowner was mostly concerned about the loss to his property values, as this was an investment property. The state was concerned entirely with cleanup costs and the threat to public health. An authorized official at the state agency provided the attorney with written consent to the potential conflicts of interest inherent in the joint representation, as did the private landowner. Under such circumstances, would it be improper for the same attorney to represent both the government and a private party at the same time, in the same matter?
- AYes, the Model Rules prohibit lawyers representing the government from simultaneously representing a private party in the same matter, even with consent from the would-be clients.
- BYes, because the private party’s interests are purely financial, while the state’s interests involve a balancing of various competing interests of the public.
- CNo, the fact that the state represents the public interest cancels out and potential conflict of interest on the part of the private party and makes the Rules of Professional Conduct inapplicable.
- DNo, after obtaining the necessary written consent, the attorney may represent both the private party and a government agency.
81After law school, an attorney worked for the local City Attorney’s office in a mid-sized municipality, working mostly on enforcement of anti-pollution and anti-littering ordinances. After five years, the attorney left the position at the municipality and went to work for the federal Environmental Protection Agency (EPA). In some cases, the EPA intervenes in litigation over pollution in which the same municipality is also a party. In that situation, may the EPA ignore the usual screening requirements that would apply to a lawyer moving to a private firm?
- AYes, when a lawyer is employed by a city and subsequently is employed by a federal agency, the latter agency does not have to screen the lawyer.
- BYes, the EPA can always assert federal preemption over a municipality if a conflict arises in litigation.
- CNo, because the attorney may know confidential government information that would provide an unfair advantage to the lawyers at the EPA.
- DNo, the rules for screening attorneys originally applied only to government lawyers, and the screening requirements are even stricter than they are for lawyers who move to private firms.
82The Office of the Attorney General in Texas ordered administrative suspensions of driver's licenses for parents who failed to pay child support, pursuant to state statutes. An attorney worked for the State Office of Administrative Hearings (SOAH), the agency that adjudicated license suspensions like this one. When he decided to leave the SOAH, the attorney surreptitiously copied a database of individuals facing license suspensions and used the names to solicit clients as he started his own firm. The attorney represented clients who wanted to appeal their license suspensions in court, though he did not represent anyone whose case he had personally worked on during his time at the SOAH. Could the attorney be subject to discipline in the cases in which he represents clients appealing their license suspensions?
- AYes, the attorney had access to confidential government information from his time working for the state.
- BYes, a former government lawyer cannot represent any clients against the same state entity for whom the lawyer once worked.
- CNo, there is no conflict because the lawyer did not participate directly or personally in the client's cases.
- DNo, disqualification of former government lawyers does not apply to merely administrative matters such as license suspensions.
83A certain state has specialized family courts that handle divorces, child custody, child removal cases brought by state social service agencies, and spousal or child support enforcement. An unmarried couple had split up but they had two children, and the family court judge awarded custody of the children to the single father, and ordered the mother of the children to pay $500 per month in child support to the father. A few months later, the judge left the family court and returned to private practice, specializing in family law, which allowed him to draw on his valuable experience as a former judge in the family court. One day, the father from the case described above came for a consultation, and he explained that the mother of the children had been delinquent for the last two months in paying child support to him. Would it be proper for the judge to represent the father in the action to enforce the child support order?
- AYes, because Comment to the Model Rules contains a specific exception to the prohibition on contingent fess in divorce and custody cases, allowing contingent fee representation for enforcement of existing child support orders.
- BYes, because the attorney will not be deciding the enforcement case as a judge, and the merits of the original order are legally irrelevant to the enforcement action.
- CNo, because he has a conflicting ethical duty to represent the mother in the case, who lost custody of her own children and must pay child support to the father of the children.
- DNo, because the attorney would be representing a party in seeking enforcement of his own order from his time on the bench.
84A federal judge hired a clerk for the first two years after the clerk graduated from law school. During his second year as a clerk, he began applying for associate positions at local law firms, to secure a job that would begin immediately after his clerkship ended. A few of the firms to which he applied had pending matters before the same judge, and these were among the firms that interviewed the clerk for an associate attorney position. During the interviewing process, the clerk refrained from mentioning he knew about their pending matters on his judge’s docket, though the interviewers always mentioned the fact that their firms regularly appeared before the judge in whose chambers the applicant was then clerking. Each firm that interviewed the clerk received a letter from the judge recommending the applicant to prospective legal employers. Even though some of these firms had pending matters on the judge’s docket, the judge knew from the clerk which firms were interviewing the clerk. Was it improper for the clerk to apply for positions at firms that have pending matters before the judge for whom she was clerking?
- AYes, the fact that the judge sent recommendation letters for the clerk to these firms constituted an ex parte contact by the judge and the clerk.
- BYes, interviewing with firms that have pending matters before the judge, and where this fact was the subject of a comment or discussion in the interview, constituted an ex parte contact by the judicial clerk with a party in a litigation matter.
- CNo, a law clerk to a judge may negotiate for employment with a party or lawyer, even if the prospective employer is involved in a matter in which the clerk is participating personally, after the lawyer has notified the judge.
- DNo, any lawyers working for the government may always seek private employment with any prospective employer, even if the prospective employer is involved in a matter in which the lawyer is participating personally in a substantial way.
85A federal judge hired a clerk for the first two years after the clerk graduated from law school. During his second year as a clerk, he began applying for associate positions at local law firms, to secure a job that would begin immediately after his clerkship ended. A few of the firms to which he applied had pending matters before the same judge, and these were among the firms that interviewed the clerk for an associate attorney position. During the interviewing process, the clerk refrained from mentioning he knew about their pending matters on his judge’s docket, though the interviewers always mentioned the fact that their firms regularly appeared before the judge in whose chambers the applicant was then clerking. Each firm that interviewed the clerk received a letter from the judge recommending the applicant to prospective legal employers. The judge did not know where the clerk applied, or which firms were interviewing the clerk; the recommendation letter was a general letter that opened with “To Whom It May Concern.” Was it improper for the clerk to apply for positions at firms that have pending matters before the judge for whom she was clerking?
- AYes, interviewing with firms that have pending matters before the judge, and where this fact was the subject of a comment or discussion in the interview, constituted an ex parte contact by the judicial clerk with a party in a litigation matter.
- BYes, the fact that the judge did not have notice of where the clerk applied, or which firms were interviewing the clerk.
- CNo, a law clerk to a judge may negotiate for employment with a party or lawyer, even if the prospective employer is involved in a matter in which the clerk is participating personally.
- DNo, any lawyers working for the government may always seek private employment with any prospective employer, even if the prospective employer is involved in a matter in which the lawyer is participating personally in a substantial way.
86An attorney served for several years as a professional mediator. She decided to change careers and become a litigator, and one of the parties from her final mediation sought to retain her as their attorney in a matter closely related to the subject of the litigation. The other party, which already had legal representation, provided written, informed consent to this arrangement. Under such circumstances, would it be permissible for the former mediator to represent a party in the same matter in which the attorney served as mediator?
- AYes, as it appears all parties to the proceeding gave informed consent, confirmed in writing.
- BYes, a mediator or arbitrator selected as a partisan of a party in a multimember arbitration panel may subsequently represent that party.
- CNo, a lawyer who served as a mediator may not represent a client in a matter in which the lawyer personally participated.
- DNo, because the other party already had legal representation and therefore did not have the same opportunity to hire the mediator as their lawyer for the trial.
87During a trial recess, the judge asked the lawyers for both parties to meet with him briefly in chambers. Once there, the judge explained that he planned to retire from the bench soon and was wondering if either of their firms were hiring litigation attorneys, as he might be interested. Could the judge be subject to discipline under the Model Rules of Professional Conduct for making this inquiry?
- AYes, the judge should not have talked to the two lawyers together, because if one of them immediately offers the judge a job at his firm, the other will also feel compelled to do so, may even feel it necessary to offer a higher salary than the first.
- BYes, under the Model Rules, a lawyer shall not negotiate for employment with any person who is involved as a party or as lawyer for a party in a matter in which the lawyer is participating as a judge personally and in a substantial way.
- CNo, the Model Rules of Professional Responsibility do not apply to judges, because the Code of Judicial Conduct regulates judicial behavior and activities.
- DNo, this was merely an initial inquiry, not negotiation for employment at either of the lawyer’s firms.
88An attorney served for a while as a municipal court judge, and during that time, she sentenced certain defendants facing criminal charges to terms of probation. Eventually the judge left the court and returned to private practice. Once settled in her new practice, three prospective clients sought to hire her file motions to end their terms of probation early, due to their good behavior and their need to relocate for their jobs. Would it be proper for the attorney to represent them in filing these motions?
- AYes, sentencing municipal defendants to probation is merely an administrative matter that would not necessitate the disqualification of a former judge who later represents the same individuals in seeking to end their probationary terms.
- BYes, filing a motion to end probation early due to good behavior is not the same matter as the original crimes for which the received the sentence.
- CNo, the attorney may have confidential information from her previous position as the judge in the clients’ case that would be prejudicial to the opposing party in the probation-termination hearings.
- DNo, a lawyer who served as a judge may not represent a client in a matter in which the lawyer had personal and substantial involvement.
89An attorney served for several years as an appellate court judge. At one point, the judge was on a panel that affirmed two trial orders in an ancillary probate proceeding. Soon thereafter, the attorney left the appellate court and returned to private practice at Boutique Firm. The larger probate matter was still dragging on, and relators brought a mandamus appeal arising out of the same ancillary proceeding and hired Boutique Firm to represent them on the appeal. This necessitated filing a motion to substitute counsel from a previous firm that had provided representation up to that point. Opposing counsel did not oppose the motion, as they did not know Boutique Firm had hired a former appellate judge who had signed earlier orders in the case. Boutique Firm did not screen the former judge from the matter. When opposing counsel eventually realized this fact, the lawyer immediately filed a motion to disqualify Boutique Firm from the appeal. Boutique Firm responded that opposing counsel had already consented to the potential conflict when it did not oppose the motion to substitute counsel; moreover, there was no demonstrated prejudice to the opposing party. How should the court rule on the disqualification motion?
- AThe court should deny the motion because the moving party already consented to the conflict by choosing not to oppose the motion to substitute counsel.
- BThe court should deny the motion because the former appellate judge had merely affirmed some trial orders in the ancillary probate matter, so there is no actual prejudice to the moving party.
- CThe court should grant the motion as the matters related to each other, and the moving party did not have adequate notice about the conflict to give informed consent.
- DThe court should grant the motion because relators in a mandamus appeal can easily find substitute counsel.
90An attorney grew up in poverty but worked hard to overcome obstacles and achieve success. Now a successful practitioner, the attorney is idealistic and passionate about helping the less fortunate. Every Saturday morning, he uses a small conference room at the local YMCA to assist pro se litigants in divorce and custody matters – the attorney helps them complete their own court forms (court filings) for a nominal fee, gives some advice about their individual situation, and reviews forms they have completed before the individuals themselves file them. The attorney is concerned about these pro se litigants misunderstanding his role and believing he is their lawyer, so the attorney requires each one to sign a printed disclaimer declaring that no attorney-client relationship exists. It reads, in relevant part, “I understand that this attorney has no legal or ethical obligation to provide legal representation to me in this matter.” Given that the pro se litigant signed a form acknowledging that no legal representation will follow, is the attorney correct in believing that no lawyer-client relationship exists in these circumstances?
- AYes, the signed express written disclaimer functions as a contractual agreement that no lawyer-client relationship exists
- BNo, the lawyer is reviewing court documents and providing legal advice about pending legal proceedings, which constitutes the practice of law by the lawyer, even if the representation has a limited scope.
- CNo, the pro se litigants described here appear to be unsophisticated users of legal services and potentially do not understand the significance of the written disclaimer.
- DYes, these pro se litigants will file the documents in court themselves, on their own behalf.
91A client hired a certain attorney to represent her in a personal injury lawsuit in which the client is the plaintiff. After an initial consultation and two meetings to review the main evidence in case and to discuss the nature of the claims, the attorney drafted the initial pleadings, served the opposing party, and filed the pleadings in the appropriate court. Nevertheless, the attorney did not allow the client to review the pleadings before filing them, and afterward, the client expresses disappointment that she did not have the opportunity to review the pleadings beforehand and make suggested edits, given that it is her case and that the attorney is working for her. Was it proper for the attorney to draft the pleadings based on conversations with the plaintiff and file the documents without first having the plaintiff review them?
- AYes, because a lawyer may take whatever actions the client has impliedly authorized as part of the representation.
- BYes, unless the client is an English teacher or a professional editor and might therefore have special expertise in proofreading texts for grammatical errors and stylistic problems.
- CNo, because a lawyer shall abide by a client's decisions concerning the objectives of representation and shall consult with the client as to how to pursue these ends.
- DNo, because the attorney may have to spend time later revising the pleadings, which could affect the legal fees in the case, and such revisions may have been unnecessary if someone else had proofread the attorney’s draft before filing it.
92Client is the leader of a radical religious group that protests at the funerals of soldiers who died tragic combat deaths overseas. The protests are not against the war, however, but against society’s increasing tolerance of homosexuality and gay marriage. The client and his followers stand outside the funerals as grieving family members arrive, and they hold large picket signs emblazoned with hateful sayings against homosexuals, some of which use shocking language. They also hold signs indicating they are happy that American soldiers die frequently, because they believe these deaths validate their point that the country is on the wrong course morally and has become evil by being more tolerant. The group heckles those attending the funerals, but then disperses once the funeral ceremony starts. The group receives regular national media coverage because of the intentionally sensational and shocking nature of their protests. The client now faces a tort lawsuit by the father of a deceased soldier whose funeral the group picketed; the plaintiff claims intentional and negligent infliction of emotional distress. The client is certain that his First Amendment rights trump such subjective-harm tort claims and has a recent Supreme Court case supporting his position. The client asks an attorney to represent him in the matter. The attorney reluctantly agrees to take the case and the trial court gives an unfavorable verdict against the client. After the case, reporters interview the attorney asking how he could represent such a client and the attorney states during the interviews that he did not necessarily endorse the client’s religious, social, moral, or political views, but was merely providing representation. Are the attorney’s actions proper in this case?
- AYes, because the attorney did not win the case on behalf of this client, so justice prevailed in the end, as this client advocates intolerance of others in our society.
- BNo, because the attorney has a duty under the Rules of Professional Conduct to refuse representation of a client if he cannot endorse the client’s political, social, or moral views, especially those who preach intolerance and hate.
- CNo, because the attorney lost the case, and then tried to justify himself in the media by denying any endorsement of the client’s political, social, and moral views.
- DYes, because a lawyer's representation of a client does not constitute an endorsement of the client's political, economic, social, or moral views or activities.
93A certain defendant was indigent and received court-appointed defense counsel in his felony larceny case. The defendant insisted that he was completely innocent and that he would not accept any plea bargains, because he wanted an opportunity to prove his innocence at trial. When the defendant told the attorney his expectations, the attorney explained that there is a special type of plea called an “Alford Plea,” in which a defendant may agree to accept a conviction while still contesting his guilt or maintaining his innocence. The defendant refused, and told the attorney, “Do not even contact me with offers from the prosecutor for a guilty plea. I will not plead guilty. I will prove my innocence in a court of law!” The prosecutor indeed made several plea offers, and each time the attorney presented the offer to the defendant, who rejected it and reminded the attorney that he did not want to hear about any offers to “make a deal.” The defendant’s hard line proved effective as a negotiating strategy, and eventually the prosecutor called the attorney to say they would reduce the charges to a misdemeanor and the sentence to “time served” if the defendant would plead guilty. The attorney thought this was a ridiculously generous offer but simply rejected it without consulting his client. The client proceeded to trial and the jury convicted him, and he received the maximum sentence for the crimes charged. Was it proper for the attorney to reject the final plea bargain offer without informing the client?
- AYes, because clients have a right to dictate the overall objectives of the representation, but the lawyer has a right to decide the means of achieving that objective.
- BYes, because the client has previously indicated that the proposal will be unacceptable and has authorized the lawyer to reject the offer.
- CNo, because a lawyer who receives from opposing counsel a proffered plea bargain in a criminal case must promptly inform the client of its substance.
- DNo, because the ultimate result was a conviction and a severe sentence for the defendant, which he could have avoided by accepting the final plea offer.
94A certain attorney represents a defendant in a murder case. At trial, the jury convicted the client and sentenced him to death, and the appellate courts upheld the conviction as well as the sentence. The attorney has now offered to file a habeas corpus petition in federal court to appeal the case to the United States Supreme Court, if necessary. The defendant, however, has developed terminal cancer, and does not expect to live another six months. The defendant tells the attorney to drop the appeals because even if they won, the defendant would not live long enough to enjoy his freedom. Even so, the defendant does not terminate the representation, because he wants the attorney to handle his estate planning matters while he is on death row, and he has some administrative complaints in progress against the prison where he is living. The attorney strongly opposes the death penalty and believes his client is innocent, so he files the habeas petition anyway. While the habeas petition is making its way through the federal appellate process, the defendant succumbs to his illness and dies in prison. Is the attorney subject to discipline for filing the habeas petition, despite the client’s reservations?
- AYes, because the appeals are clearly a waste of public resources in a case where the defendant will die anyway before the appeals process would be complete.
- BNo, because filing appeals is merely a matter of strategy and methods, and lawyers do not have to defer to the client about strategy and methods.
- CNo, because the client died before the attorney’s actions produced any actual results that could affect the client.
- DYes, because a lawyer shall abide by a client's decisions concerning the objectives of representation and shall consult with the client as to how to pursue these ends.
95An attorney represents criminal defendants. One day, a client appeared in the attorney’s office and explained that he had been blackmailing his former employer for the last year. The client had hired a prostitute to seduce the former employer in a room with hidden cameras, then showed the embarrassing photographs to his former employer and demanded monthly payments of $500, which the employer paid, not wanting to destroy his marriage. The prostitute subsequently died of a drug overdose. The client’s former employer eventually tired of making the monthly blackmail payments and went to the police about the matter. The client is now worried that he will face charges for blackmail, which would violate his parole and result in a lengthy incarceration. The client retained the only copies of the photographs, as he merely showed them to the former employer a year ago to extort the payments. After the client explained all this to his attorney, he gave the attorney the documents and instructed the attorney to destroy them or hide them so that the police could not find them. Attorney put the photos in a folder marked ATTORNEY WORK PRODUCT - PRIVILEGED AND CONFIDENTIAL, and sent the folder to a secret overseas document storage service in the Caymans. The police obtained an arrest warrant for the client based on the former employer’s affidavit, and at trial, the prosecutor obtained a conviction based on the employer’s testimony and the bank records showing the monthly transfers. Is the attorney subject to discipline?
- AYes, because the lawyer was clearly incompetent or negligent if he lost the trial even without the prosecutor having the photographs or the prostitute’s testimony to admit as evidence.
- BYes, because a lawyer shall not assist a client in conduct that the lawyer knows is criminal or fraudulent, such as destroying evidence when there is a pending criminal investigation.
- CNo, because the court convicted the client anyway, so the lawyer’s feeble attempt to help the client made no difference to the outcome.
- DNo, because once the client told the lawyer about the matter privately and gave him the documents, they came under the protections of attorney-client privilege.
96A client hired an attorney to research the legality of a musical “mash-up,” a sound recording that includes brief sound clips and samples from many other artists’ commercial recordings. The client’s unique approach puts it in the gray area around “fair use” and “composite works of art” under prevailing copyright law, and no court has yet ruled on the precise issue, though the question has been the subject of seventeen lengthy law review articles in the last two years, reaching a range of different conclusions. No litigation is pending, and the client has not yet undertaken any activity that could constitute a copyright infringement; he is seeking reassurance before proceeding that he would not face liability for copyright infringement. Because the client primarily wants a memorandum of law answering his hypothetical legal question, he asks the attorney to limit his research and writing to two hours of billable time. The attorney agrees, spends an hour reading and an hour writing, and gives the client a short memorandum. Given that the client's objective was merely to secure general information about the law the client needs, was it improper for the attorney to agree to this limitation on the scope of representation up front?
- AYes, because given the complexity of the subject and the uncertainty about this certain point of law, two hours was not a reasonable amount of time to yield advice upon which the client could rely.
- BYes, because the other artists have a right to receive compensation for their creative work, and the attorney is helping the client potentially infringe on other artists’ copyrights.
- CNo, because the client had a limited objective of securing general information about the law the client needs, so the lawyer and client may agree that the lawyer's services will be no more than an hour of research and an hour of writing.
- DNo, because it would be too costly or burdensome to have the attorney read seventeen tedious law review articles and try to formulate a plausible synthesis of the positions they advocate.
97A certain client calls an attorney to ask if it is possible to apply for an extension on filing his annual tax returns, if the deadline for filing returns is still two weeks in the future. This attorney offers to research the matter for a few hours and write a formal legal memorandum for the client about filing extensions. Even so, offhand, the attorney can assure the client over the phone that it is indeed possible to apply for an extension and that the IRS routinely grants them if an application for extension arrives before the regular deadline. The attorney practices tax law and is familiar with the rules. The client thanks the attorney and says that he is satisfied with the “short answer,” and that he does not want the attorney to do any more research or writing about it, but to send a bill for the phone call. Then the attorney agrees and bills the client for the telephone conversation and conducts no further research on the matter. Is it proper for the attorney to limit his representation to a single telephone call like this?
- AYes, because the client's objective is no more than securing general information about the law the client needs to handle a common and typically uncomplicated legal problem, so the lawyer and the client may agree that the lawyer's services will be no more than a brief telephone consultation.
- BYes, because the lawyer should defer to the client about costs and the objectives of the representation and should not assist a client in committing a crime or fraud, such as tax evasion.
- CNo, because such a limitation on the representation does not allot enough time to yield advice upon which the client could rely, and the client could face devastating fines for being late with his tax returns.
- DNo, because such an agreement ignores the legal knowledge, skill, thoroughness, and preparation necessary for the representation.
98Husband hired a certain attorney to represent him in a divorce; the husband and wife had three adult children. Husband was quite upset when he met with the attorney, because his wife had filed for divorce and he felt deeply betrayed. The couple had a prenuptial agreement that clearly delineated the division of assets in case of divorce, and child custody is not an issue as the children are in their twenties. As part of his routine consultation questions, the attorney asked if there had been any marital infidelity on the part of either the husband or wife. Husband admitted to the attorney that he once had an affair many years ago, that the wife never discovered, and that he wanted to keep secret, if possible. He then speculated that he had no idea if his wife had ever had an affair, then became very emotional as he considered the possibility. Within minutes, he had convinced himself that his wife had been having affairs with other men for years, though he never knew it, and that the three children were unlikely to be his offspring. The attorney had already looked at Husband’s photograph of his children, and their resemblance to their father (Husband) was remarkable. the attorney finds repugnant the idea of subjecting the adult children to paternity tests, which would traumatize them unnecessarily, regardless of the result. The attorney also believes that accusing the wife of infidelity would be imprudent, as it will ensure that the family would discover Husband’s previous affair, which otherwise might not happen. Without the accusations of infidelity, all the issues of the divorce would come under the prenuptial agreement and not be in dispute. Then the attorney insists on limiting his representation to the divorce and wants to include in the retainer agreement that there will be no accusations of infidelity or paternity testing of the children, unless the other side initiates in this regard. After Husband calms down, he agrees to the attorney’s conditions of representation. Is it proper for the attorney to insist on such conditions of representation?
- AYes, because it would be fraudulent for the husband to accuse the wife of marital infidelity, of which there is no evidence, while hiding the fact that he himself had an affair.
- BNo, because there is always a chance that the other party in a divorce was guilty of marital infidelity, and the children should get to know with absolute certainty who is their real father.
- CYes, the terms of the representation agreement may exclude specific means that might otherwise serve used to accomplish the client's objectives, such as actions that the lawyer regards as repugnant or imprudent.
- DNo, because the lawyer should always defer to the client about the objectives of the representation, while the client should defer to the lawyer about the means of achieving the goals of the representation.
99A client explains to his attorney that he is operating an illegal website where users can anonymously upload and download pirated music and videos, in violation of copyright laws and other anti-piracy statutes. The website is very lucrative for its operator, and the client has become a multimillionaire by founding and operating the site. The client is concerned about potential criminal charges or civil lawsuits over the website. His attorney explains to the client how he could use a series of dummy limited liability corporations, mail forwarding addresses, and offshore bank accounts to avoid detection. Each of the steps of the process the attorney describes is technically legal – creating the corporate entities, purchasing mail-forwarding services, and opening bank accounts in Belize. The attorney decides not to charge the client for this advice session but bills the client for other transactional work performed. Is the attorney subject to discipline?
- AYes, because the attorney did not bill the client for the consultation, in violation of their regular retainer agreement.
- BNo, because the individual steps that the attorney proposed would be legal in isolation, and merely gave an honest opinion about the actual consequences that appear likely to result from a client's conduct.
- CYes, because a lawyer must avoid assisting a client in fraudulent or criminal activity, which includes suggesting how to conceal the wrongdoing.
- DNo, because the attorney did not bill the client for the advice, and therefore did not benefit personally from counseling the client.
100An attorney tells a client that certain features of the client’s business proposal would constitute money laundering under current federal statutes. The discussion goes through the statute in detail, and the attorney explains why the course of action would meet the statutory definition of money laundering. In addition, the attorney discusses the various monitoring and reporting mechanisms that federal enforcement agencies have in place to detect money laundering, to convince the client that he would not escape arrest and prosecution if he proceeds. The client absorbs the information and uses it to structure a more elaborate money-laundering scheme. He exploits some ambiguity in the statute and the reporting requirements to make his enterprise much more difficult to detect, and this complicates enforcement and prosecution efforts against him. Overall, the attorney’s advice turned out to be incredibly useful to the client in avoiding detection and expanding his criminal enterprise. Is the attorney a party to the client’s course of action?
- ANo, because the attorney’s subjective intentions were not wrong in the situation.
- BNo, because the fact that a client uses advice in a course of action that is criminal or fraudulent of itself does not make a lawyer a party to the course of action.
- CYes, because there is no distinction between presenting an analysis of legal aspects of questionable conduct and recommending how a crime or fraud might be committed with impunity.
- DYes, because a lawyer may not discuss the legal consequences of any proposed criminal course of conduct with a client and or counsel a client to determine the validity, scope, meaning or application of the law.
101Client is an inexperienced drug dealer and consults with his attorney about the legal ramifications of his business. Without explicitly endorsing or encouraging the client in his criminal enterprise, the attorney conducts research at the client’s request about various drug laws and sentencing guidelines. The attorney writes a detailed memorandum of law explaining that certain threshold quantities of drugs, according to the relevant statutes, create a presumption of “intent to distribute” or trigger a significant sentencing enhancement. Similarly, the attorney explains that statutes and sentencing guidelines impose higher-grade charges and severe sentencing enhancements if a drug dealer brings a firearm to a transaction. The client mulls over the information and decides to change his business model from bulk sales of narcotics to selling smaller quantities in more individual transactions, such that each sale constitutes only the lowest-level misdemeanor. The client also instructs all his subordinates to avoid carrying firearms and instead to refill pepper spray devices with hydrochloric acid, which they spray in the face of their opponents in any altercation, causing severe disfigurement. Is it proper for the attorney to provide such legal advice to the client?
- AYes, because a lawyer may discuss the legal consequences of any proposed course of conduct with a client and may counsel or assist a client to make a good faith effort to determine the validity, scope, meaning or application of the law.
- BYes, because the Rules of Professional Conduct confer upon the client the ultimate authority to determine the purposes or objectives of the legal representation, within the limits imposed by law and the lawyer's professional obligations.
- CNo, because off the attorney-client privilege and the duty of confidentiality.
- DNo, because a lawyer must to avoid assisting the client in criminal activity by suggesting how to conceal the wrongdoing.
102A certain attorney represents a client in a drug trafficking case. The client asks the attorney to deliver a package to a friend of the client. The client tells the attorney that the package contains illegal drugs, but he assures the attorney that he will not reveal who made the delivery if police discover that the transfer occurred. the attorney advises that he will not participate in the transfer. The attorney does not advise the court of the client’s request and remains the client’s attorney on the drug trafficking case. Are the attorney’s actions improper?
- ANo, because an attorney does not have to decline or withdraw from cases unless the client demands that the attorney engage in illegal conduct.
- BNo, because the attorney has no obligation to withdraw from a case if he does not engage in illegal activity with or for a client.
- CYes, because an attorney must decline or withdraw from representing a client if the client asks that the attorney engage in illegal conduct.
- DYes, because an attorney must notify the court if his client asks or demands that he engage in illegal activity.
103An attorney represented a defendant who was facing criminal charges for violating a newly enacted statute. The statute that made certain activities that had previously been minor misdemeanors into felonies. The district attorney handling the case spoke to the defendant’s attorney, explaining that this was an important test case of a new statute, so the D.A.’s office was seeking the maximum penalty. The state did, however, offer a reduced sentence if the defendant would plead guilty, but this would still carry three years of jail time. Outraged, the attorney shouted that this had always been a misdemeanor charge in the past, which carried no jail time at all, and ended the conversation abruptly at that point. Without mentioning the conversation to the defendant, the attorney drafted an impassioned motion to dismiss the charges and filed it with the court. The attorney had a reasonable belief that his motion could be successful, though it was far from certain. The judge agreed with the attorney and granted the motion, dismissing all the charges against the attorney’s client. Were the attorney’s actions permissible under the Model Rules?
- AYes, the dismissal of the charges in this case meant that the client was far better off than if he had considered the plea bargain offered by the prosecutor.
- BYes, the attorney would still have a chance to tell the client about the proffered plea if the judge had not granted the motion to dismiss.
- CNo, a defense lawyer who receives a proffered plea bargain in a criminal case must promptly inform the client of its substance, unless the client has previously told the lawyer to accept or to reject the offer.
- DNo, the attorney should have given more consideration to the serious public policy reasons for the legislature enacting the new statute.
104A litigation attorney represented a certain defendant in a lawsuit. The client was absent during the final pre-trial hearing about which experts the court would permit to testify at trial for each side. As the hearing was wrapping up, plaintiff’s counsel asked the court to have the record sealed in the upcoming trial, and to have reporters banned from the courtroom. The trial involved sensitive information about the mental health of some of the children involved as parties and witnesses in the case. The court agreed but asked if the defendant had any objections. The defendant’s attorney tried to reach his client by phone, but he could not get through. There was no obvious reason to oppose the motion, so the attorney agreed on his client’s behalf. The judge ordered the record sealed for the upcoming trial. The client never returned the attorney’s phone call, and the attorney forgot to mention what had transpired until they were sitting in court on the first day of trial, two weeks later. The client was upset, having planned to use media publicity about the case to draw attention to the other side’s exploitation of children as witnesses in litigation. The attorney told the client that the judge would not reverse the decision now that the trial was underway. Were the attorney’s actions permissible, under the Model Rules?
- AYes, it was proper for the lawyer to defer to the judge on this question, lest he risk angering the judge or unnecessarily inconveniencing the opposing party.
- BYes, the opposing party’s request was reasonable, and even if Attorney had asked Client and Client disapproved, Attorney could not have ethically objected to the request.
- CNo, because the importance of the action under consideration and the feasibility of consulting with the client meant the lawyer’s duty required consultation prior to acting.
- DNo, because even when an immediate decision is necessary during trial, and the exigency of the situation may require the lawyer to act without prior consultation, the lawyer must tell the client about it as soon as possible.
105A certain attorney represents a client in a transactional matter, a complex business merger. The parties have agreed in advance, by contract, to engage in good-faith negotiations, but that if an agreement does not emerge within six months, either party can abandon the deal and cease negotiations. Three months into the negotiations, the parties are close to a final agreement. The attorney has been conducting the negotiations without the client present, checking in with the client from time to time. One day, the other party presents a detailed proposal that would resolve all remaining issues. This proposal would give each side most of what it wants, but also requires a few concessions from each party. The attorney calls the client immediately and gives a brief overview of the new proposal, hitting most of the highlights and carefully explaining the bottom-line concerning the final buyout price to complete the merger. The client gives the attorney consent to consummate the agreement. Could the attorney be subject to discipline for how he handled the final agreement?
- AYes, because it is improper for a lawyer to make an agreement in advance to reach a settlement or other final agreement by a certain date, so that parties will abandon negotiations after that point.
- BYes, when there is time to explain a proposal made in a negotiation, the lawyer should review all important provisions with the client before proceeding to an agreement, and the facts suggest that the attorney did not necessarily explain all the concessions that the client would have to make.
- CNo, because the attorney had implied authorization from the client to work out all important provisions of the agreement, and the client does not need to know all the details.
- DNo, because the attorney obtained the client’s consent about the bottom line before proceeding to a final agreement.
106A certain attorney represents a client in a litigation matter. The client was not present during the last pre-trial hearing at which the lawyers argued about whether certain experts on each side could testify at trial. The trial was to start the following week. At the end of the hearing, the opposing counsel asked the court to have the record sealed in the upcoming trial, and to have reporters banned from the courtroom. He explained that the testimony at trial would necessarily reveal some of his client’s trade secrets, and it was important to the client to keep the trial records sealed. The judge was amenable to this suggestion and asked the attorney if he had any objections. The attorney tried to call the client, but the client did not answer his phone right then. Unfortunately, the attorney could not think of a compelling reason for the client to oppose the motion, so he agreed, and the judge set the matter for a sealed-record trial. Three hours later, the client returned the attorney’s call, and the attorney explained what had transpired. The client felt dismayed because he had planned to use this litigation as a test case for subsequent litigation over the same type of issue, but the attorney explained that it would now be difficult to get the judge to reverse course on this point. Was it proper for the attorney to agree to the request without obtaining the client’s prior consent?
- AYes, because the opposing party’s request was reasonable, and even if the attorney had asked the client and the client disapproved, the attorney could not have ethically objected to the request.
- BYes, because during a trial, when an immediate decision becomes necessary, the exigency of the situation may require the lawyer to act without prior consultation, assuming the lawyer promptly informs the client of actions the lawyer has taken on the client's behalf.
- CNo, because the importance of the action under consideration and the feasibility of consulting with the client meant the lawyer’s duty required consultation prior to acting.
- DNo, because a lawyer must promptly consult with and secure the client's consent prior to taking action unless prior discussions with the client have resolved what action the client wants the lawyer to take.
107An attorney represented a client in a criminal matter. The client had a history of mental illness, and the court ordered a psychological examination to determine if the client would be competent to stand trial. The case did not involve an insanity defense or a defense of diminished capacity. The psychologist who evaluated the client spoke privately to the attorney and explained that the client was indeed competent to stand trial, but that in his opinion, the client also suffered from delusional narcissism, paranoia, and oppositional-defiant syndrome. The psychologist pleaded with the attorney not to tell the client about this diagnosis, because the disclosure could harm the client, triggering an episode of paranoia in which the client would suspect that everyone around him was conspiring to institutionalize him, and he would become uncooperative at trial and mistrustful of his own lawyer. Then the attorney told the client that the psychologist had deemed him competent to stand trial and did not disclose the rest of the psychologist’s assessment. Was it proper for the attorney to conceal the psychologist’s diagnosis from the client?
- AYes, a lawyer may delay transmission of information when the client would be likely to react imprudently to an immediate communication, including a psychiatric diagnosis of a client when the examining psychiatrist indicates that disclosure would harm the client.
- BYes, because the psychologist’s duty was only to evaluate for competence to stand trial, so his additional diagnosis was outside the scope of his assignment.
- CNo, because the information must be appropriate for a client who is a comprehending and responsible adult, and if the client is competent to stand trial, he is competent to receive the rest of the psychologist’s diagnosis.
- DNo, because full communication between the lawyer and the client is necessary for the client effectively to participate in the representation.
108An attorney prepared a contract for a client in 2016. The matter is nearing competition, so the representation regarding that matter has not ended. In 2018, while using that agreement as a template to prepare an agreement for a different client, the attorney discovers a material error in the agreement. The error does not, however, furnish a colorable claim for malpractice, because the client did not suffer any injury, and the client in the meantime canceled the agreement with the other party due to other factors. Even so, any reasonable client who learned of this mistake would lose confidence in their lawyer’s competence or diligence. On those facts, do the Model Rules require the lawyer to inform the client of the error?
- AYes, because Rule 1.4 requires that lawyers disclose material errors made during the representation to current clients, whenever the error would predictably cause a client to consider terminating the representation even in the absence of harm or prejudice.
- BYes, because Model Rule 1.16(d) requires that a lawyer, upon termination of a representation, must “take steps to the extent reasonably practicable to protect a client’s interests, such as giving reasonable notice to the client.”
- CNo, because the Model Rules do not require disclosure of material errors to clients after the representation in that matter has ended.
- DNo, because it is not clear on these facts that the former client has suffered any actual injury or prejudice, even if the error was material.
109An attorney was a partner at Big Firm, which represented Conglomerate Corporation and Giant Company in corporate merger negotiations. Big Firm had state-of-the-art network firewalls, virus protection, password protection, and other data security features in place. Nevertheless, one Friday evening some hackers managed to breach Big Firm’s networks and access client information and partner emails, for purposes of engaging in insider trading. The firm detected the breach within a few hours and notified state and federal law enforcement. The stock exchange had closed for the weekend, and law enforcement managed to apprehend the hackers over the weekend, before they had a chance to review the stolen information and share useful data or engage in illegal stock trades. The clients suffered no losses or adverse effects, but they could have. Big Firm is worried about how news of the breach would affect their reputation, and that it might invite other hackers to target their firm, so they would prefer to keep the incident a secret. The partners at Big Firm claim they have no duty to disclose to its clients that the breach occurred, given that no harm resulted. Are they correct?
- AYes, the firm’s need to keep the incident secret outweighs any reasons to disclose the breach to the clients.
- BYes, the firm fulfilled its duties to the clients by having reasonable measures in place to safeguard confidential client information, so no further disclosures to the clients are necessary.
- CNo, a firm’s competence in preserving a client’s confidentiality is a strict liability standard that requires the lawyer to be invulnerable or impenetrable.
- DNo, when a data breach occurs involving, or having a substantial likelihood of involving, material client confidential information a lawyer has a duty to notify the client of the breach.
110An attorney prepared a contract for a client in 2015. The matter has concluded, the representation has ended, and the person for whom the contract was prepared is not a client of the attorney or law firm in any other matter. In 2018, while using that agreement as a template to prepare an agreement for a different client, the attorney discovers a material error in the agreement. On those facts, do the Model Rules require the lawyer to inform the former client of the error?
- AYes, because Rule 1.4 requires that lawyers disclose material errors made during the representation to the clients.
- BYes, because Model Rule 1.16(d) requires that a lawyer, upon termination of a representation, must “take steps to the extent reasonably practicable to protect a client’s interests, such as giving reasonable notice to the client.”
- CNo, because the Model Rules do not require disclosure of material errors to former clients after the representation has ended.
- DNo, because it is not clear on these facts that the former client has suffered any actual injury or prejudice, even if the error was material.
111An attorney prepared a contract for a client in 2013. The matter concluded, and the representation regarding that matter has ended, though the attorney continues to represent the same client on some unrelated matters. In 2017, while using that agreement as a template to prepare an agreement for a different client, the attorney discovers a material error in the agreement. On those facts, do the Model Rules require the lawyer to inform the client of the error?
- AYes, because Rule 1.4 requires that lawyers disclose material errors made during the representation to current clients, and the attorney’s ongoing representation on other matters means a client-lawyer relationship still exists.
- BYes, because Model Rule 1.16(d) requires that a lawyer, upon termination of a representation, must “take steps to the extent reasonably practicable to protect a client’s interests, such as giving reasonable notice to the client.”
- CNo, because the Model Rules do not require disclosure of material errors to clients after the representation in that matter has ended.
- DNo, because it is not clear on these facts that the former client has suffered any actual injury or prejudice, even if the error was material.
112An attorney prepared a contract for a client in 2016. The matter is nearing conclusion, so the representation regarding that matter has not ended. In 2018, while using that agreement as a template to prepare an agreement for a different client, the attorney discovers a material error in the agreement. The error does not, however, furnish a colorable claim for malpractice, because the client has not yet suffered any injury, and it is not clear that the attorney’s error falls far enough below the industry standards to meet the legal standards for negligence. On those facts, do the Model Rules require the lawyer to inform the client of the error?
- AYes, because Model Rule 1.16(d) requires that a lawyer, upon termination of a representation, must “take steps to the extent reasonably practicable to protect a client’s interests, such as giving reasonable notice to the client.”
- BYes, because Rule 1.4 requires that lawyers disclose material errors made during the representation to current clients, even though the error does not furnish the basis for a valid malpractice claim.
- CNo, because the Model Rules do not require disclosure of material errors to clients after the representation in that matter has ended.
- DNo, because it is not clear on these facts that the former client has suffered any actual injury or prejudice, even if the error was material.
113An elderly client retained a local attorney to handle his estate planning matters. The attorney routinely practiced in this area and had a good reputation in the legal community. Unfortunately, the client had early-stage dementia and suffered from increasing forgetfulness and occasional confusion. The client always recognized the attorney as his lawyer, but he would sometimes forget her name and whether she practiced with other lawyers in the same firm. The client lived alone and took care of his own daily needs without incident, but he depended on relatives to for rides, as he could not drive, and friends or relative would check in on him every day. It was frustrating for the attorney to discuss any complex legal questions in the estate plan with the client, because he would frequently ask a question a few minutes after the attorney had given a thorough explanation about the same point. It was clear, however, that the client intended to divide the estate equally among the surviving heirs. Over time, the attorney included the client in fewer and fewer of the decisions, such as whether to set up a trust, or whether to sell off some of the real property in the estate rather than bequeathing the title to one or more heirs. These decisions were standard practices among estate planning lawyers and were objectively competent. Overall, the attorney fulfilled the client’s objectives and protected the client’s interests, even though she made many important decisions on her own without consulting the client. Was it proper for the attorney to use her own judgment on the practical questions of estate planning, without including the client in these decisions?
- AYes, because the lawyer’s actions were objectively reasonable and competent, and she protected the legal interests of the client.
- BYes, when a lawyer realized that a client suffers from diminished mental capacity, the lawyer may substitute her own reasonable judgment and not include the client in some of the decisions, so long as the lawyer fulfills the client’s overall objectives.
- CNo, lawyers have an ethical duty to maintain, as much as possible, a normal client-lawyer relationship with the client, even when the client suffers from diminished capacity.
- DNo, when lawyers represent elderly clients in estate planning matters, they should consult with the family and the heirs about how best to structure the estate for the convenience everyone involved.
114An attorney represented a wealthy elderly widow whose mental condition was deteriorating. The client was beginning to have traumatic hallucinations and violent outbursts. During one of her lucid moments, she encouraged her attorney to take steps to ensure that her granddaughter, who lived next door and was her primary caregiver, would have legal guardianship over her and would be able to manage her affairs. The granddaughter, who was married and had two children, spoke with the attorney, and urged him to pursue such measures. At the same time, the granddaughter had borrowed a large sum fifteen years earlier to purchase the home adjacent to the widow’s, so that she could live close enough to provide daily care for her, and this loan was coming due with a large balloon payment at the end that the granddaughter could not afford. The client would not agree to extend the loan, because she did not expect to live much longer, and no longer understood the problem with the upcoming balloon payment. She also began to miss payments on some of her bills because of her mental confusion. After an episode of violent hallucinations that necessitated the hospitalization and involuntary medication of the client, the attorney decided to proceed, obtained a psychiatric evaluation of the client, and petitioned in court for the granddaughter’s appointment as legal guardian of the client. The attorney believed in good faith that such steps were necessary to protect the client’s financial interests and physical well-being. When the client learned that the attorney had filed for a guardianship, she objected to it, and accused the granddaughter of trying to avoid repayment of her loan. Were the attorney’s actions proper, given these facts?
- AYes, because an attorney should not allow a client to interfere with the attorney’s independent professional judgment.
- BYes, when a lawyer has reason to believe that the client has diminished capacity, is at risk of substantial physical or financial harm unless action is taken, the lawyer may take necessary protective action, including seeking the appointment of a guardian or conservator.
- CNo, because even when a client's capacity to make adequately considered decisions in connection with a representation is diminished, the lawyer shall maintain a normal client-lawyer relationship with the client.
- DNo, because the granddaughter’s financial interests influenced her judgment and created a conflict of interest.
115An attorney represented a client who suffered from a partial mental impairment, though the client was legally competent and was able to participate in the decisions about the representation. The representation pertained to a litigation matter. The client’s mental health issues were a private matter, and the opposing party was unaware of the situation. Due to the client’s forgetfulness, it took the lawyer more time than usual to obtain information and documents from the client to comply with discovery and production requests. The attorney repeatedly missed deadlines for production during the discovery phase, and eventually the opposing party moved for sanctions. When the judge demanded an explanation from the attorney, the attorney panicked and blamed it on the client’s deteriorating mental health, though the attorney had not discussed this potential disclosure with the client. Surprised, the judge offered to give the attorney and his client additional time to comply with discovery requests. The opposing party revisited their own trial strategy after this development. Was it proper for the attorney to make this disclosure when facing sanctions for missing discovery deadlines?
- AYes, the result worked to the client’s advantage, because the judge offered to accommodate the client’s disability by giving more time.
- BYes, because the attorney should not have to suffer for something that was the client’s fault.
- CNo, because the lawyer obtained an unfair advantage using his client’s alleged disability, which could be unduly prejudicial to the opposing party.
- DNo, because the lawyer unnecessarily violated the client’s confidentiality, and had plenty of time beforehand to obtain authorization from the client, or even to find a way to reduce the delays.
116An attorney agreed to represent a plaintiff in a personal injury lawsuit, and the client agreed to pay the attorney a contingent fee based on a percentage of the award in the case. The attorney put all the terms of the fee agreement in written form in a letter to the client. The letter explained the percentage that should accrue to the attorney the event of settlement, trial, or appeal; litigation and other expenses that the attorney would deduct from the recovery; and that such deductions would come out of the total before the calculation of the contingent fee. The letter also explained all potential expenses for which the client could be liable, if the client prevailed in the case or not. The client received the letter, read it carefully, and called the attorney to give verbal assent and confirmation to all the terms. The client’s spouse later discarded the letter, and the attorney proceeded with the representation. Could the attorney be subject to discipline, based on these facts?
- AYes, because the client did not sign the fee agreement.
- BYes, because the attorney arranged to deduct expenses from the total award before the calculation of the contingent fee, rather than after the determination of the fee.
- CNo, because the letter constituted a written fee agreement stipulating all the terms of the contingent fee arrangement, and the client gave full consent and authorization over the phone.
- DNo, under the Model Rules, a written fee agreement signed by the client is preferable but not a requirement.
117An attorney represented a client in a divorce case and charged the client an hourly fee for the representation. The client won primary custody of the child from the marriage, and the ex-spouse (the child’s other parent) would take the child during school vacations. A year after the case ended, the client wanted to reopen the case to seek additional child support, because in the intervening months, the child had developed a disability that imposed high medical care costs on the client, and at the same time, the ex-spouse had won the Mega-Millions lottery, and was living a luxurious, profligate lifestyle. Would it be permissible for the attorney to represent the client in this matter on a contingent fee basis, given that the divorce was already final?
- AYes, the Model Rules do not preclude a contract for a contingent fee for legal representation in connection with the recovery of post-judgment balances due under support, alimony, or other financial orders.
- BYes, because the circumstances have changed, given that the client now must pay unexpected medical bills for the child, and the ex-spouse has won the lottery.
- CNo, the Model Rules preclude a contract for a contingent fee for legal representation in connection with the recovery of post-judgment balances due under support, alimony, or other financial orders.
- DNo, the attorney may not enter into an arrangement for, charge, or collect any fee in a domestic relations matter, the payment or amount of which is contingent upon the securing of a divorce or upon the amount of alimony or support, or property settlement in lieu thereof
118A certain defendant was facing charges for assault with a deadly weapon. A local criminal defense attorney offered to represent this defendant on a contingent fee basis. In other words, the attorney would charge no fee (the client would pay nothing) if the case resulted in a conviction, but he would pay only if the lawyer won an acquittal. Having no funds on hand to hire a lawyer by any other means, the client was eager to do this and consented to the arrangement, in writing. Which of the following best describes the lawyer’s situation?
- AThe attorney is subject to discipline for charging a contingent fee in a criminal matter.
- BThe attorney is not subject to discipline because the client consented and confirmed it in writing.
- CThe attorney is subject to discipline for failing to include a third option, a partial fee if the case ends with a plea bargain to a lesser charge that requires no jail time.
- DThe attorney’s arrangement would constitute ineffective assistance of counsel in a criminal case.
119Big Firm raises its hourly billing rate for all clients annually, on the first day of the year, by two percent. The initial engagement documents at the outset of representation explain this practice clearly, but Big Firm does not inform clients in writing each time the annual rate increase occurs. Is it proper for Big Firm to handle its billing and rate increases in this manner?
- AYes, unless the clients object, their acquiescence to the rate increases constitutes acceptance of the new contractual term.
- BYes, periodic, incremental increases in a lawyer's regular hourly billing rates are permissible if a client understands and accepts such practice at the commencement of the client-lawyer relationship, and the periodic increases are reasonable under the circumstances.
- CNo, Big Firm had an ethical duty to remind the clients of the rate increase whenever it occurred.
- DNo, it is unethical to change fees after the representation has begun, unless the attorney complies with the disclosure and documentation requirements for business transactions with clients.
120A new federal Treasury Regulation provides that attorneys who prevail in tax cases on behalf of their clients against the Revenue Service may receive attorneys’ fees at the fixed rate of $100 per hour, not to exceed $100,000. A certain attorney lives in a state that allows “reasonable” fees, and he makes a written fee agreement with the client for an additional $100 fee per hour, on top of whatever fees the Treasury Regulations allow in their case. If the client provides written informed consent, could the attorney be subject to discipline for this fee agreement?
- AYes, because state rules about legal fees are subject to limitations by applicable law, such as government regulations regarding fees in certain tax matters.
- BYes, because tax matters require a contingent fee agreement, not an hourly rate, lest attorneys have a temptation to drag out the case to drive up their collectable fees.
- CNo, so long as the fee agreement incorporates the federal regulation by reference, it is permissible for clients and lawyers to make a private agreement for additional compensation to the lawyer.
- DNo, so long as the total fees paid do not exceed $100,000.
121An attorney worked as a purchaser for Conglomerate Corporation for many years before law school. After graduating and becoming a licensed practitioner, the attorney opened his own firm and represented many of Conglomerate Corporation’s outside vendors in their contractual disputes with Conglomerate. In fact, the attorney advertised every month in local trade journals that he was a former purchaser for Conglomerate Corporation and could provide “affordable and experienced legal representation” to vendors who had legal disputes with corporations like Conglomerate. Regarding fees, the attorney would tell prospective clients that he sometimes billed hourly and sometimes charged a flat fee, depending on the complexity and time demands of each matter, and that this was difficult to predict beforehand. If this uncertainty was acceptable to the client, the attorney would agree to represent the individual. After the representation was complete, the attorney would decide how to bill the client. Is it proper for the attorney to handle fees in this manner?
- AYes, so long as the fees and expenses are consistently reasonable, and each client consents.
- BYes, so long as the attorney does not base the decision on whether to charge an hourly rate or a flat fee on which will be higher.
- CNo, the attorney must inform the client of the basis or rate of the fee and expenses before or within a reasonable time after commencing the representation.
- DNo, hourly fee agreements must be in writing, signed by the client at the outset of the representation.
122An attorney had her own firm, and she employed a paralegal who had previously worked for another firm. The attorney agreed to represent two new clients: a plaintiff in a personal injury lawsuit, and a seller in commercial real estate transaction. The personal injury plaintiff had a case that was unlikely to succeed due to evidentiary problems, though it was legally valid and factually plausible. The attorney wanted to charge a fixed, non-contingent fee up front for this case, and the client reluctantly agreed. The seller of the commercial real estate, on the other hand, was in a hurry to complete the deal and wanted to liquidate the asset for more than its fair market value, which was possible but also unlikely to succeed. The attorney offered to handle the transaction on a contingency fee basis. If she could negotiate with prospective buyers and convince one to buy the property immediately for a price above the appraised value, she would receive thirty percent of the sale price as a fee, but if it sold at or below the market value, or took more than two months to sell, the attorney would receive only reimbursement for the transaction's costs and expenses. The paralegal told the attorney that these fee agreements were impermissible because personal injury plaintiff's normally paid contingent fees, and real estate transactions had to be on a fixed or hourly fee basis. The attorney disagreed, but she did not check the ethical rules herself to confirm this. Which of the following is correct?
- AThe attorney may charge a contingent fee in the personal injury case but not in the real estate transaction.
- BIt is improper to charge a plaintiff in a personal injury case a flat fee regardless of the case outcome, but it is permissible to charge the seller a contingent fee in a real estate transaction.
- CIt is improper to charge a plaintiff in a personal injury case a flat fee regardless of the case outcome, and it is impermissible to charge the seller a contingent fee in a real estate transaction.
- DIt is proper to charge a plaintiff in a personal injury case a flat fee regardless of the case outcome, and it is permissible to charge the seller a contingent fee in a real estate transaction.
123An attorney worked as an associate for several years at Big Firm, and while she worked there, she started a sexual relationship with one of the clients of the firm, whom the firm had already been representing before she began working there. Nevertheless, the attorney did not make partner at the firm due to this incident, even though it had not resulted in a disciplinary action, so she eventually left and started her own practice. She then made radio commercials to attract new clients to her firm, in which she boasted that she had been an associate at Big Firm, but that she did not make partner there merely because she had sex with a client a few times. This advertisement brought many new male clients to her firm. One day, the attorney was flying cross-country to attend a deposition on behalf of one client. This counted as travel time she would ordinarily bill to that client, as permitted by the ethical rules. During the flight, she decided not to watch the movie or read a book, but to work instead on drafting a motion for another client. Would it be permissible for her to charge both clients, each of whom agreed to hourly billing, for the time during which she was traveling on behalf of one and drafting a document on behalf of the other?
- AYes, each client is receiving the legal services they paid for during that time.
- BYes, the Model Rules encourage this type of efficiency, because it allows lawyers to provide legal representation to more people who need it.
- CNo, if the attorney flies for six hours for one client, while working for five hours on behalf of another, she has not earned eleven billable hours.
- DNo, because the work for which she is charging each client does not relate to the type of legal services she advertised.
124Big Firm hired associates from the top of their class at the most prestigious law schools. Big Firm’s partners often boasted to their clients, truthfully, that all their associates did federal judicial clerkships before joining Big Firm as lawyers. Conglomerate Corporation retained Big Firm regularly as outside legal counsel, partly in reliance on these representations from Big Firm’s partners about the credentials and experience of their associates. On one occasion, an associate at Big Firm did several hours of legal research on a certain topic for one client, Conglomerate Corporation. The research later turned out to be relevant to another client’s legal matter. Would it be permissible for Big Firm to bill the second client, who agreed to pay fees based on the time spent on the case, the same amount for the recycled work product that it charged Conglomerate, the first client, if Conglomerate consented?
- AYes, each client is receiving the legal services they paid for during that time.
- BYes, the Model Rules encourage this type of efficiency, because it allows lawyers to provide legal representation to more people who need it.
- CNo, attorneys who reuse old work product have not re-earned the hours previously billed and compensated when they first generated that work product.
- DNo, it is a conflict of interest for a lawyer to use information gleaned from the representation of one client to benefit another client.
125A certain employee at Big Bank faced criminal charges for alleged embezzlement of bank funds, so she retained an attorney to defend her against the charges for a flat fee of twenty thousand dollars, which the client could pay in monthly installments. The next day, a different Big Bank employee confessed to having taken the money, so the prosecutor dropped the charges against the first suspect, that is, the employee who had hired the attorney. The attorney had done nothing on the case except the original consultation with the bank employee as a prospective client, checking for conflicts of interest, and drafting an appearance for the court. The prosecutor was not aware that the original defendant had retained counsel; the withdrawal of the charges was due solely to another individual confessing to the crime. The attorney did not have to decline any other potential clients when he agreed to undertake the representation. After confirming with the client that the matter was over and further representation was unnecessary, the attorney sent the client a bill for the $15,000 flat fee. Was it proper for the attorney to do this?
- AYes, the fee was reasonable given how quickly the attorney was able to obtain the full amount the client was hoping to recover.
- BYes, but the attorney must share the fee with whatever lawyer is representing the bank employee now facing charges for the same crime, because it was a flat fee for solving a specific legal problem.
- CNo, the Model Rules prohibit flat fees in criminal cases, as well as monthly repayment plans from criminal defendants.
- DNo, it would be unreasonable for the attorney to charge twenty thousand dollars for doing so little.
126An attorney filed a lawsuit on behalf of a client against Conglomerate Corporation as the defendant. The attorney's contingent fee contract stipulated that the attorney would receive thirty percent of recovery, if the case settled before trial, and a higher percentage if a trial was necessary. The client and the attorney signed an engagement contract for the provision of legal representation, which stipulated these terms. The document that the client signed clearly explained the percentage that should accrue to the attorney the event of settlement, trial, or appeal; litigation and other expenses that the attorney would deduct from the recovery; and that such deductions would come out of the total before the calculation of the contingent fee. The letter also discussed all potential expenses for which the client could be liable, if the client prevailed in the case or not. While the case was still in the discovery phase, Conglomerate Corporation offered the client a structured settlement. Under the settlement terms, Conglomerate would pay the client one million dollars up front, which would cover the plaintiff’s medical costs, and the defendant would also purchase an annuity for the client. The annuity would cost Conglomerate $153,000, and it would guarantee the client monthly disbursements of $1000 until the client’s death. The client is thirty years old. In terms of fees, how much should the attorney receive?
- AThe attorney should receive $300,000 when Conglomerate’s million-dollar lump sum payment arrives, but none of the subsequent disbursements from the annuity.
- BThe attorney must choose between thirty percent of the initial million-dollar payment and thirty percent of the monthly annuity payments.
- CThe attorney should receive $333,300 from combined value of the initial lump sum payment and the expected annuity payments.
- DThe attorney should receive $300,000 when Conglomerate’s million-dollar lump sum payment arrives, and $300 of each subsequent disbursement from the annuity, when the disbursements occur, until the client’s death.
127A client hired an attorney to represent him in suing his employer for wrongful termination. The attorney proposed a fee arrangement that made the fees contingent on the outcome, and he included in the fee agreement that the attorney would advance the costs of litigation. The attorney lost the case at trial, and the client then refused to pay back the costs that the attorney had advanced beforehand. Can the attorney force the client to repay the litigation costs that the attorney advanced to him?
- AYes, because even where the fee agreement stipulates that it is a contingent fee, this does not apply to litigation costs that a lawyer advances to a client.
- BYes, because losing the case nullified the contingent fee agreement and created a quantum meruit situation.
- CNo, because under the fee agreement, the client had to repay the attorney only if they won the case.
- DNo, because the parties never made a legally binding fee agreement.
128An attorney provides itemized billing to her clients: hours worked by partners and associates, expert fees, international phone call charges, court costs, stenographers used in depositions, and so forth. She also includes some itemized prorated charges for overhead costs. Her mobile phone, which she uses exclusively for work, has a plan with a fixed monthly charge and unlimited minutes and data, so she divides her monthly phone bill into hourly increments for each day of the month, and for each hour of time she works on a client’s matter, she bills the client for an hourly increment of her phone bill, even if she did not use the phone during that hour. She reasons that she was paying to have a phone available during that time in case clients needed to reach her, so the clients can share the costs. She takes a similar approach with other fixed overhead costs, like the salaries of her support staff – each client bill has a ten-dollar charge for “general staffing costs.” A nominal charge on each bill is for the administrative costs of billing clients. Could the attorney be subject to discipline for charging clients a share of her overhead costs and operating expenses?
- AYes, because lawyers may charge clients only for the lawyer’s time (legal fees), expert fees, and court costs.
- BYes, because a lawyer may not charge a client for overhead expenses normally associated with properly maintaining, staffing, and equipping an office.
- CNo, a lawyer may seek reimbursement for the cost of services performed in-house, such as copying, or for other expenses incurred in-house, such as telephone charges, either by charging a reasonable amount to which the client has agreed in advance or by charging an amount that reflects the cost incurred by the lawyer.
- DNo, it is permissible to pass charges through to the client if the client receives a written, itemized bill that specifies the nature of each charge.
129Boutique Firm charges its clients five dollars per page for photocopies done in-house on the firm’s copiers. All new clients receive a schedule of fees before the representation begins that clearly specifies such charges, and client bills clearly itemize photocopying charges. The charge applies even if the client never sees the photocopies, as when associates conducting research must copy sections of cases, statutes, and regulations, or circulate draft memoranda to other lawyers working on the case. The charge also applies when the firm must produce documents for the other party in response to a discovery request. Boutique Firm set the amount at five-dollar per page, even though photocopies cost the firm only fifteen cents or so per page, because the surcharge generates a side revenue stream for the firm that enables it to charge lower legal fees, and to discourage clients from wasting paper. Boutique Firm is environmentally conscious. Is it permissible for Boutique Firm to assess clients a surcharge per page for photocopies done in-house?
- AYes, a lawyer may seek reimbursement for the cost of services performed in-house, such as copying, or for other expenses incurred in-house, such as telephone charges, either by charging a reasonable amount to which the client has agreed in advance or by charging an amount that reflects the cost incurred by the lawyer.
- BYes, it is permissible to pass charges through to the client if the lawyer is charging the client on an hourly or itemized basis, but not if the lawyer is charging a contingent fee or a fixed fee for the representation.
- CNo, because lawyers may charge clients only for the lawyer’s time (legal fees), expert fees, and court costs
- DNo, a lawyer may charge the client no more than the actual cost of making a copy on the photocopy machine plus a reasonable allocation of overhead expenses directly associated with the provision of the service, such as the salary of a full-time photocopy machine operator.
130An attorney consulted with a potential client, a plaintiff in a personal injury lawsuit, and the client agreed to pay the attorney a contingent fee based on a percentage of the award in the case, which appeared to be a complicated matter that would necessitate the testimony of experts at trial, and depositions of the experts and other witnesses beforehand. As the consultation concluded, the client and the attorney signed an engagement contract for the provision of legal representation, which stipulated that the attorney would a contingent fee based on a percentage (one-third) of the award in the case. The document that the client signed clearly explained the percentage that should accrue to the attorney the event of settlement, trial, or appeal; litigation and other expenses that the attorney would deduct from the recovery; and that such deductions would come out of the total before the calculation of the contingent fee. The letter also discussed all potential expenses for which the client could be liable, if the client prevailed in the case or not. To impress the client, the attorney called the defendant’s counsel in the matter, at the end of the consultation, while the client was still sitting in his office. Over the phone, the attorney explained the plaintiff’s injuries, the medical expenses the plaintiff had incurred, and the one-million-dollar recovery they would seek in the lawsuit they planned to file. The defendant’s lawyer checked with the defendant, who was standing next to him at the time, and then immediately agreed to pay the full amount that the client was seeking to recover – a million dollars – without litigation. Would it be permissible for the attorney to charge the client one-third of the million dollars as a fee, given these facts?
- AYes, a fee may be contingent on the outcome of the matter, and the attorney complied with all the requirements in the Model Rules for written disclosures about the terms of the fee.
- BYes, the fee was reasonable given how quickly the attorney was able to obtain the full amount the client was hoping to recover, and the attorney complied with all the requirements in the Model Rules for written disclosures about the terms of the fee.
- CNo, it is not reasonable for the attorney to charge over three hundred thousand dollars in fees for making one phone call at the end of the first consultation with the client.
- DNo, an attorney cannot charge a contingent fee without first initiating litigation by filing pleadings in court.
131An attorney had her own firm, and she employed a paralegal who had previously worked for another firm. The attorney agreed to represent two new clients: a plaintiff in a personal injury lawsuit, and a seller in commercial real estate transaction. The personal injury plaintiff had a case that was unlikely to succeed due to evidentiary problems, though it was legally valid and factually plausible. The attorney wanted to charge a fixed, non-contingent fee up front for this case, and the client reluctantly agreed over the phone, though the fee agreement was not in writing. The seller of the commercial real estate, on the other hand, was in a hurry to complete the deal and wanted to liquidate the asset for more than its fair market value, which was possible but not likely to happen. The attorney offered to handle the transaction on a contingency fee basis - if she could negotiate with prospective buyers and convince one to buy the property immediately for a price above the appraised value, she would receive thirty percent of the sale price as a fee, but if it sold at or below the market value, or took more than two months to sell, the attorney would receive only reimbursement for the transaction's costs and expenses. The client agreed to this arrangement over the phone, after the attorney had carefully explained it, though the fee agreement was not in writing. The attorney was successful in both matters, and both clients were satisfied with the results of the attorney’s representation. The paralegal told the attorney that these fee agreements were impermissible because personal injury plaintiff's normally paid contingent fees, and real estate transactions had to be on a fixed or hourly fee basis. The attorney disagreed, but she did not check the ethical rules herself to confirm this. Which of the following is correct?
- AIt was impermissible for the attorney to represent the plaintiff in a personal injury case without a written fee agreement, signed by the client, stating shall state the method of determining the fee.
- BIt was permissible, though not preferable, for the attorney to represent the seller in a commercial real estate transaction on a contingent fee basis without a written fee agreement, signed by the client, stating the method of determining the fee.
- CIn any representation related to civil litigation, the fee agreement must be in writing, signed by the client, and must state the method of determining the fee, but in representation for a transaction, without litigation, written fee agreements are preferable but not obligatory.
- DIt was impermissible for the attorney to represent the seller in a commercial real estate transaction on a contingent fee basis without a written fee agreement, signed by the client, stating the method of determining the fee.
132Big Firm bills most of its clients on an hourly-billing basis, measured in fifteen-minute increments. Most of the firm’s clients are large corporations. Big Firm’s associates have burdensome billable hour requirements, so they spend as many hours as possible on every case, working every angle possible, taking an exhaustive approach to research memoranda, depositions of potential witnesses, and daily written updates to the corporate clients about their matters. The managing partners at Big Firm assign a dozen or more associates to every matter, no matter how small, even if that means some associates are merely double-checking or proofreading the work of other associates. The corporate clients and their insurers pay for these services, and whenever the clients prevail in litigation, they seek attorney’s fees from the losing party. Could Big Firm (or its managing partners) be subject to discipline for charging unreasonable fees?
- AYes, lawyers should not exploit fee arrangements based primarily on hourly charges by using wasteful procedures.
- BYes, even though the corporate clients are willing purchasers of expensive legal services, when opposing parties lose and must pay attorney’s fees to Big Firm’s clients, they may end up paying law fees they would never have agreed to pay themselves.
- CNo, corporate clients and liability insurers place a premium on excellent, comprehensive legal work and would prefer their lawyers give too much attention to their matters, rather than not enough.
- DNo, the alternative is that inexperienced associates would make mistakes and might commit malpractice.
133An elderly retiree was reading the newspaper one morning, and he noticed an advertisement by a local attorney offering to write simple wills for $500. The attorney’s name was unfamiliar, but the retiree called the phone number in the ad and asked the attorney to write a simple will for him, and the attorney agreed. Neither party, however, mentioned the advertisement or discussed the attorney’s fees. The lawyer drafted the will, met with the client for signing, and then sent a bill for $1500. Under these circumstances, is the client entitled to pay only $500?
- AYes, given that the attorney advertised for that amount and the client had seen the ad, the parties have an implicit contract under which the attorney must write the will in exchange for $500.
- BYes, because the client is elderly, and charging $1500 would be unconscionable.
- CNo, because the client never mentioned the advertisement, and the attorney’s $1500 fee is reasonable.
- DNo, because fee agreements must be in writing, signed by the client.
134A client hired an attorney to represent her in business litigation, as the plaintiff, for a set hourly rate for the fees. By agreement, the fees were not due until the conclusion of the matter and the end of the representation. During the pleading phase of the lawsuit, however, the other party unexpectedly impleaded a third party, which made the case far more complicated and time-consuming for the attorney. The attorney explained the problem to the client, and the two agreed to shift to a contingent-fee arrangement. The attorney carefully explained the tradeoffs involved in the different fee arrangements, and offered to continue, on an hourly basis, but both the client and attorney thought that contingent fees were now more appropriate. The attorney fully complied with the written notice requirements of Rule 1.8(a) for changing fees mid-representation. The following day, in another unexpected development, the opposing party offered to settle for a generous sum, more than the parties thought the case was worth, and the client immediately accepted. Must the client now pay the contingent fee to the attorney, even though the client would have paid significantly less under the original hourly fee agreement?
- AYes, because the parties made a valid modification to a contract, which is legally enforceable.
- BYes, the fee change was reasonable under these circumstances, and the attorney followed the notice requirements of the Model Rules.
- CNo, lawyers may not change fee structures mid-representation if the original fee was reasonable at the time the representation began.
- DNo, the client has a right to pay either the original fee or the modified fee, whichever is lower.
135A certain attorney was a solo practitioner with many years of experience. For the last few years, the attorney represented a local cupcake shop, jointly owned by Susan and Diane. Susan was in a traffic accident while doing a personal errand, but she was driving the delivery van of the cupcake shop. Susan was co-owner of the shop and was therefore free to use the shop’s vehicle for occasional person errands. The police who arrived on the scene determined that Susan was not at fault in the accident. The attorney did not do personal injury litigation, so Susan asked him to refer her to a personal injury lawyer who could represent her at trial. At the same time, Susan insisted that the attorney who handled the business transactional work for the cupcake shop should receive a referral fee, and the attorney is willing to accept joint responsibility for the matter but will not assist in the litigation. The attorney has a reasonable belief that the cupcake shop will not become a party to the matter. Could the attorney be subject to discipline for making the referral and accept a referral fee without first obtaining written, informed consent of the cupcake shop, Diane, and Susan for a potential conflict of interest?
- AYes, because the cupcake shop owns the vehicle that was in the accident, and Diane is co-owner of the shop and its assets, including the vehicle.
- BYes, because the attorney has done other legal work for the cupcake shop and has confidential information that could be prejudicial to the new client.
- CNo, representation of one client is not directly adverse to another client, and there is not a significant risk that the referral of Susan will be materially limited by attorney’s responsibility to the cupcake shop.
- DNo, because the attorney is merely referring the case to another lawyer and not handling the representation, even though he assumes joint responsibility for his passive involvement.
136A certain attorney was a solo practitioner with many years of experience. For the last few years, the attorney represented a local cupcake shop, jointly owned by Susan and Diane. Susan was in a traffic accident while doing a personal errand, but she was driving the delivery van of the cupcake shop. Susan was co-owner of the shop and was therefore free to use the shop’s vehicle for occasional person errands. There is a dispute among the parties involved in the accident about who was at fault. The attorney did not do personal injury litigation, so Susan asked him to refer her to a personal injury lawyer who could represent her at trial. At the same time, Susan insisted that the attorney who handled the business transactional work for the cupcake shop should receive a referral fee, and the attorney is willing to accept joint responsibility for the matter but will not assist in the litigation. The attorney expects the other driver in the accident to file a claim against Susan, and eventually against the cupcake shop as well, as the owner of the vehicle. In that case, the attorney’s duty of loyalty to Susan and the cupcake shop could be in tension, and the attorney could have a material limitation in the representation. Can the attorney make the referral and accept a referral fee, under these circumstances?
- AYes, if the attorney obtains the informed consent, confirmed in writing, of both the cupcake shop and Susan as potential co-defendants, and otherwise meets the requirements of Model Rule 1.7(b).
- BYes, if Diane gives her personal consent, confirmed in writing, and the other driver also consents.
- CNo, the clients are likely to become adverse parties in the same litigation.
- DNo, because there is no way for a solo practitioner to screen himself from the matter and avoid receiving a share of the fees earned for the referral.
137A certain attorney was a solo practitioner with many years of experience. For the last few years, the attorney represented a local cupcake shop, jointly owned by Susan and Diane. Susan was in a traffic accident while doing a personal errand, but she was driving the delivery van of the cupcake shop. Susan was co-owner of the shop and was therefore free to use the shop’s vehicle for occasional person errands. There is a dispute among the parties involved in the accident about who was at fault. The attorney did not do personal injury litigation, so Susan asked him to refer her to a personal injury lawyer who could represent her at trial. At the same time, Susan insisted that the attorney who handled the business transactional work for the cupcake shop should receive a referral fee, and the attorney is willing to accept joint responsibility for the matter but will not assist in the litigation. The other driver has already filed a claim against Susan and the cupcake shop, and the attorney can see that Susan’s interests in the suit are adverse to the cupcake shop’s interests. Even though the attorney does not plan to represent the cupcake shop in the lawsuit, the cupcake shop will continue to be the attorney’s client for business and transactional matters. Can the attorney make the referral and accept a referral fee, under these circumstances?
- AYes, if Diane gives her personal consent, confirmed in writing, and the other driver also consents.
- BYes, if the attorney obtains the informed consent, confirmed in writing, of both the cupcake shop and Susan as potential co-defendants, and otherwise meets the requirements of Model Rule 1.7(b).
- CNo, the clients are likely to become adverse parties in the same litigation.
- DNo, because there is no way for a solo practitioner to screen himself from the matter and avoid receiving a share of the fees earned for the referral.
138An attorney injured his back and leg badly in a car accident. In the aftermath, the attorney became chemically dependent on prescription pain medications. This addiction progressed until it began to affect the attorney’s relationships and work habits. The partners in his firm eventually insisted that the attorney seek professional help, so he enrolled in an outpatient rehab program and a twelve-step support group for painkiller addicts. The supervising psychiatrist in the outpatient program expressed concern about the attorney’s complete dependence on the painkillers and his diminished ability to function physically or mentally. He advised the attorney to take a leave of absence from work, because he did not believe the attorney could competently fulfill his obligations to his clients. This same concern had prompted the attorney’s partners to insist that he seek professional help. Just before enrolling in the outpatient program, a new client had approached the attorney about representing her in a tax dispute with the Internal Revenue Service. The attorney had handled such cases before, but it was not his specialty. The client is so desperate that he tells the attorney privately that he is considering shredding documents to hide some of his tax fraud from the IRS, which the attorney says he should not do, but worries that the client might do it anyway. May the attorney undertake the representation?
- AYes, assuming the attorney can acquire the necessary knowledge or expertise through additional research to handle the complexity of the matter on the client’s behalf.
- BYes, because the attorney is getting help for his addiction problem and should recover soon.
- CNo, because the client has proposed engaging in fraud or criminal activity.
- DNo, because a physical or mental condition currently materially impairs the lawyer's ability to represent the client.
139An attorney represented a municipality for several years, in accordance with a contract for legal services. The contract term ended, and the municipality published a new request for proposals, and in the end chose a different lawyer to provide legal services for the next several years. The municipality requested that the attorney (the one whose contract expired) provide the municipality's new counsel with all files - open and closed. The municipality has already paid the attorney in full for all his legal work. Which of the following would the attorney NOT have to provide to the municipality?
- AThe materials provided to the lawyer by the municipality.
- BThird party assessments, evaluations, or records paid for by the municipality.
- CA general assessment of the municipality or the municipality's matter
- DLegal documents filed with a tribunal, or documents completed and ready for submission to the tribunal.
140An attorney represents a client in a family law matter. A hearing is set for Monday. On the Wednesday prior to the scheduled hearing, the client calls the attorney and advises that the client no longer wants the attorney to represent her; the attorney’s representation is over as of the date and time of the call. The client advises that she intends to retain another attorney prior to the hearing. After receiving the call from the client, the attorney schedules another matter for Monday, does not appear at the hearing, and does nothing further on the case. Is the attorney subject to discipline?
- AYes, if representation has begun, the attorney must to withdraw from the case and take reasonable steps to mitigate consequences to client if discharged by client.
- BYes, the attorney must continue representation of client until attorney receives notice of discharge in writing and signed by client.
- CNo, if the attorney receives notice of discharge directly from client, whether oral or in writing, attorney can cease work entirely on the case if client is aware of all hearings or other important dates scheduled as of the date of the discharge.
- DNo, if the attorney has a reasonable belief that the client will have representation by other counsel soon, and that client will not have any consequences as a result of the immediate discharge, then the attorney may discontinue all work on case.
141An attorney has already represented a certain client on several matters. Most recently, the attorney has represented the client in a litigation matter against the city’s largest manufacturer. The manufacturer, whom the attorney is suing on behalf of the client, is both the city’s largest employer and the largest purchaser of goods and services from small businesses in the area. As the discovery phase winds to a close and the court sets a trial date, the attorney learns that the client misused the attorney’s services in the past to perpetrate fraud by having the attorney submit falsified documents to government entities and to insurance companies. The attorney is furious and yells at the client, using profanity. the attorney then petitions the court to let him withdraw from the representation, stating the reasons in general terms that do not betray specific client confidences. The client strongly objects to the attorney withdrawing from the representation, because the trial is only two months away, and all the other litigation firms in the city have conflicts of interest that prevent them from taking a case against the large manufacturer. It is indisputable that the withdrawal is materially prejudicial to the client, who may have to proceed into the trial pro se or must find a new lawyer from out of town. The court is willing to postpone the trial by three weeks to give the client time to find a new lawyer or prepare to represent himself. Is it proper for the attorney to withdraw from representation in this case, if the court has no objection?
- AYes, because if a court or tribunal has no objection to an attorney withdrawing from a case, then the attorney has no ethical duty to continue the representation.
- BYes, because withdrawal is permissible if the client misused the attorney’s services in the past, even if the withdrawal would materially prejudice the client.
- CNo, because a lawyer cannot withdraw from representation, if doing so would have a materially adverse impact on the client.
- DNo, because the attorney yelled at the client and used profanity, which is completely unprofessional.
142A trial judge is going through a divorce, and he hired an attorney to represent him. The attorney’s law firm partner is representing another client who is appearing before the same judge in his personal injury lawsuit. The judge and the litigation client both give written informed consent to the representation despite the potential conflicts of interest. Even so, the judge is trying to keep the divorce quiet until after the upcoming elections, because this occurs in a state with elected judges. The judge therefore refuses to disclose to the parties in the personal injury case that counsel for one side is from the same firm as the lawyer representing the judge in his pending divorce. Neither the attorney nor his partner can reveal to opposing counsel in the personal injury case that their firm represents the judge, due to their duty of confidentiality. The judge believes he will be unbiased in the personal injury case, even though he is the client of a partner of one of the lawyers in the case, so the judge does not need to disqualify himself from the case. The Code of Judicial Ethics does require, however, that the judge disclose the representation to the litigants appearing before him, which the judge has refused to do at this time. Can the attorney continue representing the judge in his divorce?
- AYes, if the judge and the litigation client both provided written, informed consent, then the attorney can continue with the representation.
- BYes, because in a case where the judge does not need to disqualify himself, the attorneys would not need to withdraw merely because the judge refuses to disclose the representation to the other litigants appearing before the judge in the tort case.
- CNo, because the attorney would need the judge’s permission to withdraw from representing him in the divorce case, and the judge is unlikely to agree to that.
- DNo, because the attorney must withdraw from the representation of the judge under these circumstances.
143An attorney had to abandon his home and his vehicle to take refuge in a FEMA rescue shelter following a natural disaster in his area. Some of the attorney’s clients required immediate legal services that the attorney was unable to provide. What would be the attorney’s ethical duty in this situation?
- AThe attorney must temporarily withdraw from the practice of law, and the attorney may seek reinstatement with the bar after the situation returns to normal.
- BThe attorney must withdraw from representing the clients mentioned.
- CThe attorney must find a way to contact the clients and request their patience.
- DThe attorney must notify the bar immediately of his situation and request that the bar intervene on behalf of his clients.
144An attorney had a firm that specialized in criminal defense work. He managed a team of young lawyers that worked on DUI cases and other noncomplex cases; while he would handle the more complicated or high-profile cases himself. The attorney received a court appointment to represent a defendant charged in a series of automobile thefts, and quickly reached an impasse with the defendant about whether he should maintain his innocence in the face of overwhelming evidence of his guilt. The appointee-client declared that he would gladly represent himself and maintain his own innocence rather than accept the attorney’s advice of agreeing to a guilty plea in exchange for leniency. The attorney knew that the county did not pay well for taking court appointments, and the defendant did not accept his advice, so he petitioned the court for permission to withdraw from the representation, and the court reluctantly agreed, but ordered the attorney to stay on the case as standby counsel. The defendant proceeded pro se, the jury convicted him, and the judge applied the maximum sentence. Could the attorney be subject to discipline for withdrawing from the representation?
- AYes, assuming the client can prove that he would have been likely to prevail in the case if the attorney had not withdrawn.
- BYes, because he took advantage of the client’s willingness to go pro se and left the client with ineffective representation.
- CNo, because the court attempted to force the attorney to work for much less than he can earn working for a non-appointed client
- DNo, the attorney may ask for permission to withdraw as counsel, or to serve merely as standby counsel in this scenario.
145A defendant faced criminal charges for running a Ponzi scheme and an elaborate conspiracy to help others commit tax fraud. The government seized all his accounts and assets, so he had no funds to hire defense counsel. The court, therefore, appointed a local attorney to represent the defendant in the case. The attorney had spent his entire career up to that point exclusively handling traffic-court charges and driving-while-intoxicated cases. Realizing that the complex case was far outside his range of experience or ability, the attorney tried to decline the appointment, but the court required a “showing of incompetence.” The attorney followed through with the showing and the court granted the request to withdraw. Were the attorney’s actions proper?
- AYes, an attorney can seek withdrawal for good cause, such as lack of competence to handle certain specialized legal matters.
- BYes, because an appointed attorney may withdraw at any time for any reason.
- CNo, because an attorney does not have to be an expert in a specific field of law to provide competent representation.
- DNo, the attorney has not sufficiently proven good cause for withdrawal.
146A court appointed a local solo practitioner to represent and indigent criminal defendant in a complex racketeering case. The attorney sought to decline the appointment on the basis that he was a solo practitioner and that the case would require extraordinary time and effort, which was indisputably true, and that the fixed compensation rates for court-appointed counsel would be paltry by comparison. The case would also require hiring experts and experienced investigators, and there was uncertainty about whether the attorney would be able to obtain full reimbursement for all these expenses. Is the attorney’s motion to decline the court appointment proper?
- ANo, because financial considerations are not a sufficient basis to decline a court appointment if the court will pay the attorney at least a minimal fee to handle the case.
- BNo, because attorneys who insist on having a solo practice assume this risk that a court appointment could come at any time that would require a significant financial sacrifice on the part of the lawyer.
- CYes, because lawyers do not have to accept court appointments that pay less than their usual rates.
- DYes, it is proper to decline a court appointment if it would impose an unreasonable financial burden on the attorney.
147An attorney was representing a criminal defendant, and he agreed to meet with one of the defendant’s co-conspirators to learn more about what happened and to discuss what to expect as the case proceeded. At the beginning of the meeting, the co-conspirator gave the attorney a dollar bill, saying, “This is to establish attorney-client privilege.” The discussions then proceeded as planned. Later, the co-conspirator turned state’s witness against the attorney’s client, and near the end of the proceedings, the prosecution moved to disqualify the attorney due to his conflict of interest. Did it establish attorney-client privilege and a conflict-of-interest problem when the co-conspirator gave the attorney a dollar?
- AYes, giving the lawyer any amount of money before a conversation constitutes a token retainer and creates an attorney-client relationship.
- BYes, giving the lawyer any amount of money before a conversation constitutes a token retainer and creates attorney-client privilege for the conversation, even if the attorney never provides legal representation afterwards.
- CNo, giving money to the attorney did not create any attorney-client relationship.
- DNo, the dollar was an insufficient amount to create attorney-client privilege.
148In response to an attorney’s advertising, which describes the attorney’s education, experience, areas of practice, and contact information, and individual sent an email to the attorney describing their legal problem at length, including many personal details. Some of the information was unfavorable to the individual’s legal interests. The attorney, who had never met or had any contact with the individual, read the long email in its entirety, and immediately sent a terse reply declining the representation. There was no consultation with the individual, and the attorney did not promise to provide representation. A few days later, the attorney received an inquiry from the opposing party in the case, and he agreed to represent the opposing party, and used information gleaned from the other individual’s email to prevail in the matter. Was the attorney’s conduct proper?
- AYes, because the attorney declined to provide representation.
- BYes, because the individual who sent the original email was not a prospective client for purposes of the Model Rules, and the attorney had no duty to keep the information confidential.
- CNo, because written, oral, or electronic communications, constitute a consultation and meant the first individual was a prospective client.
- DNo, because advertisements have the effect of soliciting such contacts from prospective clients, which normally include disclosures of confidential information the attorney should protect.
149A family law attorney represented a client in a divorce proceeding. Early in the representation, before the client’s spouse had retained counsel, the attorney advised her client to meet with other lawyers in the area for the sole purpose of creating a conflict of interest, that is, so that the client’s spouse would be unable to retain the other lawyers for representation in the divorce. The client did so, and scheduled consultations with several other divorce attorneys in a “taint shopping” campaign, but he never intended to retain any of their services. Could the attorney be subject to discipline for instructing the client to do this?
- AYes, because lawyers are normally vicariously liable for their client’s actions.
- BYes, because this is dishonest, interferes with the administration of justice, and has no purpose other than to interfere with the opposing party’s ability to form a client-lawyer relationship.
- CNo, because the other lawyers will still be able to represent the spouse if the spouse can simply show that the client engaged in taint-shopping.
- DNo, because the lawyer merely counseled the client, and is not liable for the decisions and actions of the client after that.
150A family law attorney represented a client in a divorce proceeding. Early in the representation, before the client’s spouse had retained counsel, the attorney advised her client to meet with other lawyers in the area for the sole purpose of creating a conflict of interest, that is, so that the client’s spouse would be unable to retain the other lawyers for representation in the divorce. The client did so; the client scheduled consultations with several other divorce attorneys in a “taint shopping” campaign, but he never intended to retain any of their services. Could one of the other lawyers permissibly represent the spouse anyway, if they were lucky enough to have evidence to show that the original consultation was merely taint-shopping?
- AYes, the person was not genuinely seeking legal representation, so the lawyer would have no duty to protect the confidentiality of the information disclosed and no conflict of interest.
- BYes, because the other lawyers all declined the representation immediately.
- CNo, because a lawyer shall not represent a client with interests materially adverse to those of a prospective client in the same or an overlapping matter if the lawyer received information from the prospective client that could be significantly harmful to that person in the matter.
- DNo, because the client can easily find other representation, and therefore has suffered no injury.
151A prospective client consulted with an attorney about the possibility of securing legal representation in a matter. During the conversation, the client shared openly with the attorney about the strengths and weaknesses of her legal claims, including some personal information that would be embarrassing if it became public. Some of the information indicated the prospective client may have already waived some of her legal claims, and she may have been partly at fault on other points. The attorney considered it for a few minutes and then declined the representation, because he felt he could not devote adequate time to the case, and he thought the case was too problematic. In addition, he was skeptical that the prospective client would be able to pay his fees. A few weeks later, some of the attorney’s other matters settled sooner than expected, freeing up his schedule, and another prospective client came for a consultation, who turned out to be the opposing party in the legal matter that the attorney had recently declined. This new prospective client had already gathered some convincing evidence supporting his side, and was wealthy, so paying the attorney’s fees was not an issue. Would it be proper for the attorney to proceed with representing this new prospective client?
- AYes, because no attorney-client relationship formed with the previous consultation, and the reasons for declining that case do not seem to apply now to the new prospective client.
- BYes, because the information learned from the first consultation with the other party will be quite helpful to the new client.
- CNo, because the information learned from the first consultation with the other party would be so helpful to the new client, and so harmful to the individual the attorney declined to represent.
- DNo, because when the attorney’s schedule freed up, he had a duty to contact the client he turned away and offer to represent her first.
152An attorney undertook the representation of a client in a breach of contract claim and began working on the matter. A few weeks later, the opposing party in the litigation consulted with another lawyer in the attorney’s firm about the same matter, but during the consultation, disclosed no confidential information except the identity of the other party and the nature of the claim. The other lawyer did a routine conflict check, quickly discovered the conflict with this new potential client, and immediately declined to represent the party. The lawyer and the attorney already representing the first client discussed the situation. Would it be proper for the attorney to disclose to his client that the opposing party had come in for a consultation with another lawyer in his firm?
- AThe attorney has an ethical duty to inform his client that his firm conducted an uninformative initial consultation with the opposing party and declined the representation immediately.
- BThe attorney has an ethical duty to withdraw from the representation because another lawyer at his firm consulted with the opposing party after the representation began.
- CThe attorney may disclose to his client that the opposing party had an initial consultation with another lawyer in his firm, and that the other lawyer immediately declined the representation.
- DThe attorney may not disclose to the client that the opposing party consulted with another lawyer in the firm but may continue to represent the client if the attorney does not use any information gleaned from the other party’s consultation against the other party.
153An attorney agreed to represent a plaintiff in a claim against the client’s employer for intentional infliction of emotional distress, because of insulting remarks the supervisor makes about his subordinates’ intelligence and maturity. The attorney researched past court decisions and concluded that intentional infliction of emotional distress claims usually lose in employment settings like this. Moreover, in his various discussions with the client, the story has changed a little each time. The attorney now suspects that the client either is lying or is so confused that he will not be a credible witness at trial. The attorney would like to withdraw before filing an answer to the lawsuit asserting a defense of mistake of fact, because he knows they are unlikely to win, and he is not even sure if his client is telling the truth. Nevertheless, the client insists that the attorney should file the complaint before withdrawing from the case, so that the client does not miss the statute of limitations and forfeit the potential claim, but the client does not mind if he must find another lawyer to handle the discovery and trial phase. Would it be permissible, under the Model Rules, for the attorney to file the complaint, alleging intentional infliction of emotional distress?
- AYes, because the client’s defense has some basis in fact and law, even if it seems improbable in both regards.
- BYes, because filing the answer contradicts the lawyer’s duty of candor to the court.
- CNo, because the attorney’s research has led him to the conclusion that courts usually disfavor such defenses as a rule.
- DNo, because the attorney suspects his client is either lying or is confused about the facts.
154An attorney licensed in Texas represented a group of plaintiffs in a foreign court – a third-world dictatorship with no enforcement of lawyer licensing requirements. The lawsuit claimed that a former United States President was personally responsible for international terrorism, colonial imperialism, climate change, the worldwide malaria epidemic, human trafficking, and narcoterrorism. The local court in the third-world dictatorship found the former President liable on all charges, even though he was not present or aware of the proceedings and awarded damages of ten billion dollars to the local plaintiffs. The attorney then filed an action in the United States jurisdiction where the former U.S. President had a ranch and a personal bank account, seeking to execute on the foreign judgment. The state court immediately dismissed the action with prejudice, and the attorney appealed this decision, still hoping to execute the billion-dollar judgment against the former President. Is the attorney subject to discipline for bringing a frivolous action and appeal?
- AYes, even though it was permissible to seek execution of the judgment, it was frivolous for the attorney to appeal a dismissal with prejudice in this situation.
- BYes, it was impermissible for the attorney to bring the action for executing the judgment, and to appeal the dismissal, as there was basis in law or fact for doing so.
- CNo, he made a good faith effort to appeal a summary dismissal of his claim in the lower court.
- DNo, because they are seeking enforcement of a foreign judgment based on the facial reading of the foreign court’s entered judgment.
155A certain client was an indigent defendant and received court-appointed counsel for his trial. The trial ended in a conviction. A certain attorney served as his appointed counsel in the case. The client wanted to appeal his conviction, but the attorney believes, for several reasons, that there is no merit to an appeal. The client insisted that the attorney file an appeal before he missed the deadline and agreed that the attorney could withdraw from the case without the client’s objection if he would simply file the appeal and provide the client with the opportunity to pursue the appeal pro se or with another lawyer. The attorney presented a “no-merit” letter to the appellate court explaining that his client was appealing his conviction but that the attorney could see no merit in the appeal. Was the attorney’s conduct proper, according to the United States Supreme Court?
- AYes, because a lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis in law and fact for doing so that is not frivolous.
- BYes, assuming the letter preserves the client’s right to proceed with the appeal on his own, and the client has agreed to terminate the representation after that.
- CNo, because if the lawyer believed, with good reason, there was no merit to the appeal, he had an ethical duty to refuse to file the appeal or do anything to facilitate the defendant’s abuse of the court system.
- DNo, because a lawyer must prepare a brief referring to anything in the record that might potentially support the appeal and leave it to the appellate court to decide whether the appeal is truly frivolous.
156Client hired an attorney to represent her federal court litigation, defending against antitrust enforcement actions by the Federal Trade Commission and the Department of Justice. The attorney adopts a “quagmire” strategy, burying the government lawyers in several dozen motions to limit or compel discovery, to compel admissions or stipulations, to limit the admissibility of certain evidence or witness testimony. The strategy also includes maximizing the number of depositions and repeated requests for extensions of time and postponements of proceedings. On a few occasions, the attorney even re-filed a motion after the court ruled on the motion in the government’s favor, merely to make the government lawyer spend the time filing objections or replies based on the court’s previous ruling on the same issue. The government lawyers filed a complaint against the attorney with the state bar authorities, but the state disciplinary authority decided not to pursue the matter, in part because it was in federal court and involved exclusively federal issues. Could the attorney also face sanctions or penalties under federal law, if the state bar rejected the complaint?
- AYes, but only because some of the motions were redundant, and may have come after the state disciplinary authority rendered its no-action decision.
- BYes, a federal statute authorizes federal courts to require a lawyer to pay all the excess costs, expenses, and legal fees incurred because of the lawyer “unreasonably and vexatiously” multiplying the proceedings.
- CNo, because discipline of lawyers over frivolous or vexations litigation is exclusively a matter of state law, so the judge should simply refer the matter again to the state disciplinary authorities, who are more likely to take it seriously if it comes from a federal judge.
- DNo, because the Free Speech Clause of the constitution gives lawyers an absolute right to file motions on their clients’ behalf in federal court.
157A certain client hired an attorney to represent a client in a litigation matter, but after he filed the notice of representation and the initial pleadings in the case, the opposing party hired Big Firm to represent it. The attorney has already completed three rounds of job interviews with Big Firm and is now simply waiting for their answer, which he hopes will be an offer of employment. Rather than notify the client that an unforeseen conflict of interest has possibly emerged, the attorney simply slows down his work on the case, because if the job offer comes through, he will have to transfer the client’s case to another lawyer anyway, and if he does not receive an offer, the potential conflict disappears and he can proceed with the litigation. The attorney thus waits until the last day to respond to any filings or discovery requests, and frequently calls the opposing party asking for more time, which they always grant. Is it proper for the attorney to stall the progress of the case for a while, to allow time for the conflict either to disappear or for him to need to transfer the case to some other lawyer?
- AYes, because the conflict of interest will disappear if Big Firm rejects the attorney’s application for employment before the case proceeds any further.
- BYes, because the attorney may need to transfer the case to another lawyer anyway, and addressing the potential conflicting of interest directly, instead of simply stalling, could create unnecessary expenses for the client.
- CNo, because a lawyer has a duty to make reasonable efforts to expedite litigation consistent with the interests of the client.
- DNo, because a lawyer has a duty to withdraw from the representation immediately if a potential conflict of interest emerges.
158A certain client hired an attorney to represent him in litigation because of the attorney’s reputation for being the meanest, most aggressive litigator in town. The client is the defendant and the attorney bills by the hour. The judge in the case orders the parties to participate in a “caucused mediation” to encourage a settlement before trial. Then the attorney begins the mediation by declaring that his client is unwilling to compromise at all, even though the client had told him that they might settle the case for a reasonable amount. The attorney overstates the strength of the client’s case and grossly understates the strength of the opposing party’s position in what everyone knows is a close case. The attorney is merely posturing or bluffing in hopes of obtaining a more favorable settlement for his client. Due to the attorney’s hardline approach, the mediation drags on for several sessions spanning several days, and proves to be futile, so the parties schedule a trial. Is the attorney potentially subject to discipline for this approach in court-ordered mediation?
- AYes, because overstating the strength of his case or downplaying his client’s willingness to compromise are misstatements of material fact.
- BYes, because even if the statements were not material facts, lawyers must make reasonable efforts to expedite litigation consistent with the interests of the client.
- CNo, because a lawyer can advocate zealously to obtain the most favorable outcome possible for his client.
- DNo, because this is court-ordered mediation, meaning the parties did not willingly agree to it and therefore have no duty to negotiate in good faith.
159An attorney works for a firm that handles mortgage lenders in foreclosure actions; she handles foreclosure matters in mediation and at trial. Some close friends of the attorney form a real estate investment company, which buys properties in foreclosure, and sells the properties later at a profit. The friends include the attorney as a passive partner, so she receives a small share of the company’s net revenues. The attorney’s role in mediation conferences puts her in a position to speed up or slow down foreclosure proceedings, because she negotiates with the defaulting mortgagee for a loan modification. Delayed or failed modifications provide an opportunity for other interested investors, such as her friends’ company, to purchase the property at a short sale. The lenders, who are the attorney’s clients, often agree to these delays because a short sale may yield a better payoff for the lender than a loan modification. Would it be impermissible for the attorney to drag out the loan modification negotiations with the owner-in-default so that prospective buyers may have the chance to purchase the properties at a short sale?
- AYes, the attorney is a passive owner of the real estate company and therefore has a nonconsentable conflict of interest.
- BYes, even with the consent of the attorney’s clients, this is an impermissible dilatory litigation tactic with no substantial purpose other than to delay or prolong the proceeding.
- CNo, if the attorney’s clients (the lenders) give written, informed consent to the proposed delays, the attorney may proceed accordingly.
- DNo, delay may, in fact, benefit the lender-clients, when the short sale yields a higher or more certain payoff than a loan modification for the original owner.
160An attorney represented a client in a case for violation of federal employment laws by the client’s former employer. The employer filed a motion for summary judgment because the attorney’s client had left the company prior to the effective date of the relevant statute. The attorney requested repeated extension for more time to respond to the summary judgment motion, which the court at first granted, but eventually denied. It turned out that the attorney knew the statute as enacted was not retroactive, but he was hoping some case law might develop during the delay that would help his case. There were no pending appellate cases considering the issue of retroactivity for this statute. Was it permissible for the attorney to request more time to file a response when the sole reason for doing so was the remote chance that some courts would modify the law that governed the case?
- AYes, a lawyer may request reasonable delays in the proceedings consistent with the interest of the client.
- BYes, postponing a decision until other courts had an opportunity to consider the issue is a reasonable basis for delaying the proceedings.
- CNo, given that the issue was not pending before any appellate courts at the time, it was improper for the attorney to request these extensions.
- DNo, the extensions could only benefit the client, and would disadvantage the other party.
161An attorney represented an immigrant who was facing deportation. At one point in the proceedings, the immigration judge ordered the attorney to file various documents and forms necessary to the case. The attorney simply ignored the judge’s order, knowing that the judge would not close the case and issue a deportation order without these important documents in the record. The client’s deportation was inevitable, given the facts of the case and the relevant law, so the only thing the attorney could do to help the client was delay the deportation for as long as possible. Months passed, and the immigration judge repeatedly re-issued the orders for production of the documents, and the attorney continued to ignore them. Was it permissible for the attorney to hold off on filing the documents that would have hastened the deportation of his client?
- AYes, an attorney may seek reasonable continuance of a proceeding in the client’s best interest.
- BYes, the prohibitions on lawyers using dilatory tactics do not apply in administrative proceedings like deportation hearings.
- CNo, the lawyer has no right to try to prolong the stay of a client whom the law deems deportable.
- DNo, the attorney’s failure to file the papers was not a legitimate litigation strategy to prevent or delay the deportation.
162An attorney had a dispute with her nonlawyer siblings about the guardianship of their elderly mother. One of the siblings filed a petition for the appointment as the mother’s legal guardian, which the court granted. The attorney then filed an appearance on behalf of her mother in the matter to contest the guardianship. Bitter fighting between the siblings continued, and at one point the attorney filed a motion to withdraw, which the court granted, even though it was not clear that the attorney had ever had a client-lawyer relationship with her mother. As the moths went by, the attorney grew increasingly concerned about how her sibling was treating their elderly mother, and began filing various motions, petitions, and appeals on the mother’s behalf seeking judicial relief and the appointment of a different legal guardian. Could the attorney be subject to discipline, given these facts?
- AYes, filing petitions and appeals on behalf of someone no longer legally one’s client imposes unnecessary delays in court proceedings.
- BYes, given the mother’s age and limitations, the litigiousness was pointless.
- CNo, the attorney was not delaying the proceedings on behalf of an actual client, but merely her own mother.
- DNo, the attorney had a good faith belief that her actions were necessary to prevent substantial bodily harm to her mother.
163An attorney agreed to represent a client who wanted to contest the will of her recently deceased aunt. The matter turned out to be much more complicated than the attorney imagined, however, and he already had an overwhelming number of cases for other clients. The attorney received interrogatories from the opposing parties in the matter regarding the will, and he put them off, and then put them off again, as he was busy with other cases. After several months without a response to the interrogatories, the court dismissed the client’s case. The client planned to file a malpractice action against the attorney, but the evidence in her case and the relevant law meant she had been unlikely to succeed on her original claim. Could the attorney be subject to discipline for failing to expedite the proceedings, if the court already punished the attorney by dismissing the client’s case?
- AYes, the fact that the court dismissed the client’s case means the attorney is automatically subject to discipline.
- BYes, the attorney did not make reasonable efforts to expedite the litigation consistent with the interests of the client.
- CNo, an attorney cannot be subject to discipline for a mere omission, if there was no overt act that violated a rule.
- DNo, imposing disciplinary sanctions on the attorney would be unnecessarily duplicative after the adverse action already taken by the court against the client based on the attorney’s neglect of the matter.
164A client hired an attorney to represent him in litigation, and he explained to the attorney his version of the incident that gave rise to the dispute with the other party. In response, the attorney took notes on the account that the client provided, and drafted pleadings that alleged the facts as alleged by the client. The attorney did no investigation before filing the pleadings to provide independent verification of the client’s version of the story, because he thought that discovery would bring to light the necessary facts to reveal the truth of the matter. Similarly, the attorney submitted as evidence the various documents the client provided to him, without doing his own assessment of the authenticity of the evidence so that he could vouch for the evidence himself. It turned out, as the other side submitted its evidence, that the client’s account of what happened was full of fabrications, and some of the evidence was invalid. The attorney did not know the client was being untruthful, but he neglected to make any efforts to verify the client’s story before presenting it in court. Could the attorney be subject to discipline for undermining the integrity of the adjudicative process?
- AYes, because the lawyer as an advocate is responsible for pleadings and other documents prepared for litigation, and therefore must have personal knowledge of matters asserted therein.
- BYes, because a lawyer in an adversary proceeding has an ethical duty to vouch for the evidence submitted in a cause of action.
- CNo, because the discovery phase and the trial will bring to light which side is telling the truth.
- DNo, because a lawyer need not have personal knowledge of matters asserted in pleadings, for litigation documents ordinarily present assertions by the client, and not assertions by the lawyer.
165An attorney represents a client in a civil litigation matter. As they prepare for trial, at which the client will testify as a witness on his own behalf, the attorney realizes that the client is unlikely to tell the truth, even though the client insists he will be completely truthful. Even so, the attorney believes there is some chance that the client is indeed telling the truth, but he is about 70% certain that the client is being untruthful, despite the client’s protestations. Does the attorney have an ethical duty to try to prevent the client from presenting testimony that the attorney believes is unlikely to be true?
- AYes, a lawyer cannot suborn perjury, or even risk that the testimony he is eliciting via direct examination is perjury.
- BYes, a lawyer must disclose to the court that he does not believe the client’s testimony and have the court give the client an opportunity to testify in a narrative mode.
- CNo, because the prohibition against offering false evidence only applies if the lawyer knows that the evidence is false, and a lawyer’s belief that evidence is false does not preclude its presentation to the trier of fact.
- DNo, because the opposing party will have an opportunity to impeach the witness and the testimony during cross-examination.
166A client is a defendant in a criminal prosecution, and a certain attorney is his court-appointed defense lawyer. The client wants to testify at his own trial, despite the attorney’s recommendations that he not do so. As they are preparing for trial, the attorney asks the client what he plans to say on the stand. The client’s story seems suspicious to the attorney – he has serious doubts about its veracity – but the client insists that he is telling the truth, and the attorney is not sure. Does the attorney have an ethical duty to allow the client to give this improbable testimony at trial?
- AYes, because in a criminal case, a lawyer cannot refuse to offer the testimony of a client where the lawyer believes, but does not know, that the testimony will be false; unless the lawyer knows that the testimony will be false, the lawyer must honor the client’s decision to testify.
- BYes, because a lawyer cannot control what a client will say once the client is on the stand under oath.
- CNo, because a lawyer should refuse to offer testimony or other proof that the lawyer believes is false; offering such proof may reflect adversely on the lawyer's ability to discriminate in the quality of evidence and thus impair the lawyer's effectiveness as an advocate.
- DNo, because the lawyer has a duty of candor to the court and cannot allow a criminal defendant to abuse the legal process by testifying falsely to obtain a wrongful acquittal.
167A certain attorney is a criminal defense lawyer, and he represents a client, who is facing charges for burglary of a private residence. The client has asserted an alibi – he claims that on the evening of the burglary, he was 100 miles away on a romantic getaway with his girlfriend. Naturally, the attorney interviews the client’s girlfriend, who recounts a similar story about being on a romantic getaway, but a few details do not match the client’s account, such as what they ordered for dinner when they stopped at a restaurant, and whether they had to stop for gas along the way. The attorney suspects the girlfriend is lying to protect the client, and that they rehearsed an alibi story without working through the fine details together. The attorney lectures both the client and his girlfriend about the wrongfulness of perjury and the fact that they do not have to testify at all, as well as the hazard of having their stories crumble under rigorous cross-examination. Is it permissible, under the Rules of Professional Conduct, for the attorney to call the client and his girlfriend as witnesses during trial?
- AYes, because the attorney does not know with certainty that they are lying, he must allow the client to testify, and it is permissible to call the girlfriend as a witness as well.
- BYes, because a lawyer in a criminal case has no duty to screen witnesses based on whether they plan to tell the truth.
- CNo, because the attorney may not call the girlfriend as a witness, but he has no choice about allowing the client to testify.
- DNo, because it would be improper for the attorney to call either the client or the girlfriend to testify if he is not mostly certain that each one will tell the truth.
168An attorney represented a defendant in a criminal proceeding. While preparing for trial, the defendant told the attorney that the main witness for their side, the defendant’s friend who planned to corroborate his alibi, intended to lie on the witness stand. The attorney tried to dissuade the client and the witness from this course of action. He explained that committing perjury could subject the client to additional criminal changes, and that a rigorous cross-examination from the prosecutor would certainly expose the lies. Even so, the witness insisted on testifying at trial and stated his intention to present a fabricated version of the alibi. Should the attorney allow the witness to testify, and examine the friend as a witness, under these circumstances?
- AYes, because the attorney fulfilled his ethical duty by trying to dissuade his client and the friend from perjury, and the prosecutor has an opportunity to cross-examine the witness.
- BYes, if the untruthful testimony is not material to the case and is unlikely to affect the outcome of the litigation.
- CNo, the attorney must withdraw from representation before the testimony occurs.
- DNo, the attorney must either disclose the contemplated perjury to the tribunal, or refuse to call the witness, or withdraw from the representation.
169An experienced attorney represented a new client in civil litigation. The client lied extensively on the witness stand during the trial, but the attorney was not aware of the untruthfulness of the statements at the time. The verdict was favorable to the client and there was no appeal. A year later, the client boasted to the attorney about lying convincingly to the court and winning the lawsuit as a result. Is it permissible for the attorney to keep this information confidential, and not disclose to the tribunal that the perjury occurred?
- AYes, unless the judge specifically asks the attorney if his client committed perjury after the attorney learns about it.
- BNo, because when a lawyer represents a client in an adjudicative proceeding and knows that a person has engaged in fraudulent conduct related to the proceeding shall take reasonable remedial measures.
- CYes, because a lawyer’s duty to take remedial measures after perjury occurs continue only to the conclusion of the proceeding.
- DNo, because if a witness called by the lawyer has offered material evidence and the lawyer comes to know of its falsity, the lawyer shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal.
170A litigation attorney represented a client in a lawsuit. The case was still at the pre-trial phase, and the parties had filed cross-motions for summary judgement. While researching the case law to write a responsive brief, the attorney discovered, to her dismay, a new decision from highest court in a sister jurisdiction that is directly adverse to her position in the case. In the attorney’s own jurisdiction, the issue presents a case of first impression. The briefs from opposing counsel never mentioned this new decision, presumably because the other lawyer had not yet seen it. Is it improper for the attorney to keep this information confidential, and not disclose the unfavorable authority to the court?
- AYes, a lawyer must disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel.
- BYes, because it is very common for litigators to recycle their briefs for years at a time, and everyone should help each other out with updating their legal research on issues that arise frequently in that area of litigation.
- CNo, because it would be a breach of the attorney’s duty of loyalty to his own client to disclose a case unnecessary that undermines their position.
- DNo, the case is not controlling authority in that jurisdiction.
171An experienced attorney represented a client in commercial litigation. During a deposition, the client gave answers that the attorney knew to be false, regarding a matter of great relevance to the case. The attorney sat silently and permitted the client to give these answers in the deposition. At the subsequent trial, opposing counsel submitted convincing evidence showing that the client had lied during the deposition. It was evident from the circumstances that the attorney must have known that the client’s statements were untruthful at the time. Opposing counsel then filed a grievance against the attorney for allowing the client to give false testimony and failing to rectify it. When the attorney filed a response to the grievance, he explained that alleged ethical violation took place during a deposition, long before the trial, so the duty of candor to the tribunal was inapplicable at that point. Is the attorney subject to discipline?
- AYes, the Model Rules require a lawyer to take remedial measures when a client offers false statements even during a deposition.
- BYes, unless it appears that opposing counsel already knows that the statements are false and is planning to impeach the witness.
- CNo, if the client was testifying in a deposition, it is not testimony before a tribunal for purposes of the ethical rules requiring candor.
- DNo, the duty to protect client confidentiality and a duty of loyalty to the client would prohibit such a disclosure.
172An attorney represented a client in civil litigation. Early in the trial, the attorney had to testify briefly about an uncontested point. The testimony was necessary to establish a minor antecedent point for more critical issues in the case. The attorney made statements that she believed to be true at the time. The next day, while the trial was still underway, the client fired the attorney. When the attorney tried unsuccessfully to dissuade the client from doing so, the client told the attorney that the attorney’s testimony was incorrect, and the client also explained some previously unknown information. Under these circumstances, could the attorney keep this information confidential, instead of taking remedial measures to rectify the false statements?
- AYes, because the attorney was not aware at the time that the statements were false, and therefore did not knowingly mislead the tribunal.
- BYes, because the lawyer has a duty of confidentiality that continues even after a client discharges the lawyer.
- CNo, because a lawyer must correct a false statement of material fact or law previously made to the tribunal by the lawyer
- DNo, because the client discharged the attorney, and no duty of confidentiality remains after the termination of representation.
173Early in the pre-trial phase of a civil lawsuit involving multiple crossclaims, the court enjoined the parties from transferring any assets out of the jurisdiction. The next day, an attorney heard that his client had transferred millions of dollars to a confidential Swiss bank account. The attorney did not make any affirmative representations to the court about following the court’s order. It was clear to the attorney, however, that the court and the opposing party were under the impression that the client was complying with the court’s order, and they were relying upon that fact in the ongoing proceedings. The client did not use the attorney’s services in any way to make the transfers, and the attorney did not recommend it or know about it until after it occurred. Would it be improper for the attorney to do nothing and say nothing about the matter at this time, to protect the client’s confidential information?
- AYes, because this is a circumstance where failure to make a disclosure is the equivalent of an affirmative misrepresentation.
- BYes, because a lawyer always has a duty to inform the court if a client is engaged in illegal or fraudulent conduct, even if it is unrelated to the attorney’s representation.
- CNo, because the client has not made any false statements to the court.
- DNo, because the attorney has not made any material misrepresentations to the court.
174A litigation attorney normally represented clients at trial or in binding arbitration, but in some instances, she will represent a client in a mediation. In one mediation, the attorney knowingly made untrue statements of fact to the other party and opposing counsel. Has the attorney violated her ethical duty of candor to the tribunal, as delineated in Model Rule 3.3?
- AYes, a lawyer shall not knowingly make a false statement of fact to a tribunal or fail to correct a false statement of material fact.
- BYes, in mediation, a lawyer shall not knowingly offer evidence that the lawyer knows to be false.
- CNo, the duty of candor in Model Rule 3.3 is inapplicable to mediation; nevertheless, other rules such as Rule 4.1 may apply to the lawyer’s untruthfulness here.
- DNo, the lawyer does not have a duty to avoid making false statements to other parties, only to a judge.
175A client is on trial for a theft case. A certain witness was with the client at the time police state that the client committed the crime at a location far from the crime scene. The client chooses to take the case to trial. For the witness’s attendance at trial, the attorney pays the witness a lump sum amount. Are the attorney’s actions proper?
- AYes, because lawyers may pay witnesses for their attendance and expenses incurred for attending and testifying at a hearing or trial.
- BYes, because contingency fees are the only kinds of fees not permissible for lawyers to pay witnesses for their attendance and testimony at a hearing or trial; lump sum payments are permissible.
- CNo, because lawyers may not pay a witness to attend and testify at a hearing or trial.
- DNo, because an attorney cannot pay for witnesses’ attendance at a trial or hearing; rather, the client must pay the fees to the witness directly.
176An attorney responded to a distressed call from a client asking that he meet him immediately on the street behind the attorney’s office. Immediately, the attorney rushes downstairs to meet the client outside his building. The client is very distraught and has blood splattered on his clothes, hands, and face, and is holding a pistol. The client stammers, “You will not believe what just happened.” Quietly, the attorney takes the pistol and throws it down the closest storm gutter on the street, and they can hear the gun clanging against concrete as it tumbles deep down into the storm sewer. Then the attorney says, “It is late, and you are too upset to talk. Go home and clean yourself up and do your laundry – you are a mess. We can discuss this tomorrow morning when you are in a better frame of mind.” The client goes home to shower and launder his clothes, and the attorney returns to his office and resumes his work on the brief he was writing. Did the attorney’s conduct constitute a violation of his ethical duties?
- AYes, because he had a duty to inquire about what had happened and to call the police or emergency services if someone had been hurt.
- BYes, because the attorney concealed or obstructed the police’s access to potential evidence by discarding the gun, and he counseled the client to destroy the evidence on his clothes.
- CNo, because the attorney does not know if the client has perpetrated a crime or if he was the victim of a crime, so he has not destroyed evidence knowingly; perhaps the client just saved someone else from a violent attacker.
- DNo, because the gun is still retrievable from the storm sewer, and the attorney could still testify about his observations of the client’s appearance when they met.
177During trial, the plaintiffs complained that the attorney’s client had not fully complied with certain production requests during discovery. The judge ordered the attorney to produce the specific records. Yet the attorney believed that his client had no legal obligation to produce the records in question, because they included important trade secrets and were not relevant or material to the current litigation in any way. The attorney openly refused to produce the records and explained his position to the judge. The judge disagreed and ordered the attorney to bring the records to the courtroom the next day. Of course, the attorney did not obey the judge’s order. Apart from any potential contempt-of-court sanctions, could the attorney be subject to discipline for violating the Rules of Professional Conduct?
- AYes, because a lawyer must not knowingly disobey an obligation under the rules of a tribunal.
- BYes, because the proper response would be to produce the records and then object to their admissibility at trial.
- CNo, because a lawyer may disobey an order from a tribunal when the lawyer has made an open refusal based on an assertion that no valid obligation exists.
- DNo, because in an adversarial proceeding, the judge should rely on the evidence that the parties present, rather than meddling with discovery and production of evidence.
178An attorney represented a client in a lawsuit over a traffic accident. The client told the attorney about a certain eyewitness who had been present at the scene and who had said at the time that the client was not at fault. The attorney tracked down this witness, but soon discovered that the eyewitness did not want any involvement in the litigation or trial. The witness was necessary to corroborate the client’s version of what happened in the accident, so the attorney offered to pay $500 honorarium in cash if the witness would testify at trial. The eyewitness was out of work needed the cash, so he begrudgingly agreed. Would the Model Rules prohibit the attorney from paying the eyewitness an honorarium to testify at trial?
- AYes, because an attorney cannot pay for witnesses’ attendance at a trial or hearing; rather, the client must pay the witness directly.
- BYes, it is impermissible for a lawyer to pay an eyewitness to attend and testify at a hearing or trial.
- CNo, so long as the sum offered is a percentage share of the expected verdict in the case.
- DNo, a lawyer may pay an occurrence witness for attending and testifying at a hearing or trial.
179An attorney represented a client in commercial litigation. One component of the case necessitated expert testimony about the economic losses suffered, interest calculations, and potential mitigation costs. The attorney hired the most famous expert witness that he could find on such matters, one who would easily be able to counter the opposing party’s expert at trial. With the client’s consent, the attorney agreed to pay the expert a six-figure retainer fee to review the case documents plus $2000 per hour for any courtroom time. Would the attorney be subject to discipline for paying the expert witness a huge sum to help with the case?
- AYes, a lawyer may not offer an inducement to a witness, especially an expert witness, who is supposed to provide a purely objective assessment.
- BYes, a lawyer may not hire an expert witness unless he pays the witness a contingent fee that depends on the outcome of the case.
- CNo, it is proper to compensate an expert witness on terms permitted by law, so long as it is not a contingent fee.
- DNo, the Model Rules put no restrictions on what kind of compensation a lawyer may pay an expert witness.
180An attorney represented a defendant facing criminal charges. The client was concerned that his estranged brother would testify against him at trial to impeach the defendant’s own credibility if the defendant chose to testify. The rift between them had begun in high school, with a fight over a girlfriend, and had escalated over the years, so that the estranged brother was always ready to list several of the defendant’s greatest failures or lapses in character whenever the two interacted. The attorney approached the brother privately and explained that his client was facing serious jail time that would have long-term consequences for the entire family. He then pleaded with the brother not to testify against the client or even talk to the prosecutors about it. The brother found this entreaty moving and agreed to keep quiet. Could the attorney be subject to discipline for this conversation with the brother?
- AYes, because a lawyer may not request a person other than a client to refrain from voluntarily giving relevant information to another party.
- BYes, if the brother already has an adverse attitude or position toward the client, the attorney may not approach him and request that he not testify.
- CNo, because a lawyer may ask anyone to refrain from voluntarily giving relevant information to another party.
- DNo, the Model Rules do not forbid a lawyer from asking a family member to refrain from giving information to the other party.
181A certain client hired an attorney to represent him in civil litigation. The client’s own testimony at trial would be crucial to the case, and the client was concerned that his embittered former business partner would testify against him as a negative character witness to impeach his credibility. The two had been quite close early in their partnership, but then had a falling out and were no longer on speaking terms. The attorney approached the former partner privately, explained the client’s situation, and offered the client’s former partner several thousand dollars not to testify or even talk to the opposing counsel in the case. The former partner jumped at the chance to make some easy money by doing nothing, and he accepted the attorney’s offer. Could the attorney be subject to discipline for his actions, as described here?
- AYes, the Model Rules do not permit lawyers to offer witnesses money to refrain from testifying or providing information about the matter, with exceptions that do not apply here.
- BYes, the lawyer should not have approached the former partner privately without opposing counsel present.
- CNo, a lawyer may ask various potential witnesses to refrain from disclosing information to keep the proceedings from becoming unnecessarily acrimonious or protracted.
- DNo, if the client consents the lawyer can ask former business associates, employees, or employers to refrain from offering unfavorable testimony.
182Conglomerate Corporation became the subject of an enforcement action by the Department of Labor for violating certain wage-and-hour laws protecting workers’ rights. Conglomerate’s general counsel interviewed many of the company’s employees, in groups of eight or ten at a time, and explained that there was litigation pending with the Department of Labor that could hurt their employer in the long run. General counsel then asked each groups of workers that they decline to discuss the case with anyone, especially lawyers from the government. Did general counsel violate the Model Rules by asking the employees not to talk to the other party?
- AYes, as party of the duty of zealous advocacy for the client, an attorney should to encourage every potential witness to talk openly and honestly with the lawyers on both sides of the case.
- BYes, it was not reasonable for the general counsel to believe that refraining from giving such information would not impinge on the employees’ interests.
- CNo, the employees are free to ignore the request and talk to whomever they want about the case or about the company.
- DNo, there is an exception in the Model Rules permitting in-house to advise company employees against giving information to an opposing party in litigation.
183During the discovery phase of business litigation, Conglomerate Corporation receives a discovery request asking for “all documents, memoranda, emails, or other internal correspondence related to the transaction that is the subject of this dispute.” A certain attorney represents Conglomerate Corporation. Thousands of documents stored in electronic format on Conglomerate’s computers and servers would potentially fall under this request for production. Then the attorney proposes to opposing counsel that they produce the requested documents in electronic form on a set of compact discs, and the opposing counsel readily agrees. Long before the litigation began, the attorney began using software to scrub the metadata from documents – electronically embedded information about the name of the user whose computer created the document, the date and time of creation, redlined changes from each stage of editing, and comments that other readers added to the document before it took its final form. Proposed contracts, letters to business partners, and correspondence with opposing counsel are all free from embedded metadata. Was it proper for the attorney to scrub the metadata from electronic documents that could potentially be subject to a discovery or production request in future litigation?
- AYes, because the printed copies of the documents would not have had such information.
- BYes, because a lawyer may take measures to eliminate metadata from documents that could later fall into the hands of an opposing party.
- CNo, because the main reason for scrubbing metadata is to conceal information that might be useful to an opposing party or tribunal in the future.
- DNo, because the metadata is often necessary for determining who created a document, when they created it, or how the document changed from its original draft to its final form.
184During the discovery phase of business litigation, Conglomerate Corporation receives a discovery request asking for “all documents, memoranda, emails, or other internal correspondence related to the transaction that is the subject of this dispute.” An attorney represents Conglomerate Corporation. Thousands of documents stored in electronic format on Conglomerate’s computers and servers would potentially fall under this request for production. The attorney proposes to opposing counsel that they produce the requested documents in electronic form on a set of compact discs, and the opposing counsel readily agrees. After receiving the production request, the attorney began using software to scrub the metadata from documents – electronically embedded information about the name of the user whose computer created the document, the date and time of creation, redlined changes from each stage of editing, and comments that other readers added to the document before it took its final form. Proposed contracts, letters to business partners, and memoranda between managers all have their embedded metadata erased. Was it proper for the attorney to scrub the metadata from electronic documents before delivering them to the other party in response to a discovery request?
- AYes, because the printed copies of the documents would not have had such information.
- BYes, because a lawyer may take measures to eliminate metadata from documents that could later fall into the hands of an opposing party.
- CNo, because the main reason for scrubbing metadata is to conceal information that might be useful to an opposing party or tribunal in the present litigation.
- DNo, because the metadata is often necessary for determining who created a document, when they created it, or how the document changed from its original draft to its final form.
185A family law attorney represented a client in a child custody dispute. The divorced parents lived in neighboring states, and the dispute involved allegations of child abuse by the client’s ex-husband, the opposing party in the case. The case was complex and involved related petitions in two separate courts. The client received an unfavorable preliminary ruling regarding custody in the initial stages of the proceedings. With her client’s consent, the attorney then took her zealous advocacy online, using Twitter and other social media platforms to denounce the injustice of the unfavorable preliminary custody ruling, to urge the judges to uphold the law, and to urge readers to write to the judges in the case or advocate for the children’s safety themselves through Twitter. The attorney also created online petitions on websites like Change.org, with names like “Demand Justice for These Children!” The judges presiding over the various petitions in the case received hundreds of letters, emails, and phone calls in response to the attorney’s efforts. Many of these communications by concerned citizens to the judges were hostile and vulgar. Could the attorney be subject to disbarment for such zealous advocacy online?
- AYes, the lawyer was attempting to communicate with the judges and potential jurors through public commentary.
- BYes, if the lawyer’s client received an unfavorable preliminary ruling, the lawyer should have known she was advocating for the wrong side in this case.
- CNo, the attorney was conducting zealous advocacy and exercising her First Amendment rights.
- DNo, the attorney had her client’s consent, so using public commentary was appropriate, especially given the seriousness of the allegations.
186During a lunchtime recess of a case, the attorney representing the plaintiffs walked with his expert witness to a nearby delicatessen, which full. By coincidence, the server seated the attorney and his expert at the adjoining table to two of the jurors in the case. The attorney recognized the two women from the jury and greeted them, and they chatted for a few minutes about the weather, their favorite sandwiches, and how long the case was taking. They did not discuss the merits of the case itself. Two secretaries from opposing counsel’s firm were also eating at the delicatessen and observed this conversation, which they promptly reported to their supervising attorney, who reported it to the judge. The judge ordered a mistrial, dismissed the jurors, and ordered the attorney to reimburse the county for the jurors’ fees. Could the attorney also be subject to disciplinary sanctions for running into the two jurors at lunch and making friendly conversation?
- AYes, but only if the attorney intended to influence their decisions in the case.
- BYes, regardless of the attorney’s intentions, the conversation violated the prohibition on ex parte communication with jurors.
- CNo, the attorney did not plan the incident, it was just a coincidental meeting, and they did not discuss the merits of the case.
- DNo, punishment already occurred in the form of the mistrial and the attorney paying the fees for the dismissed jurors, so additional sanctions for the same incident would constitute double jeopardy for the attorney.
187Police arrested several protestors who were advocating a cause that an attorney strongly supported. One of the protestors had a violent altercation with police, and she was facing criminal charges. This attorney practices corporate transactional law and not litigation. The news media reported that jury selection would begin the following Monday in the protestor’s prosecution. The attorney waited outside the courthouse where prospective jurors were reporting for jury service, and a long line formed at the metal detectors for entering the courthouse. For a long time, the attorney waited in line and started conversations with the prospective jurors in front of him and behind him in the line, during which he explained that he was a lawyer and that the case against the protestor was ridiculous from a legal standpoint. He told them that he hoped the jury would follow the laws of the state and acquit the protestor. Once the attorney made it through the security line, he walked out of the courthouse and got back in the security line again and had similar conversations with more prospective jurors. During voir dire, the prosecutor asked the prospective jurors if anyone had spoken to them directly about the case, and three people mentioned their conversations with a lawyer in the security line waiting to get into the building. None of the individuals with whom the attorney spoke ended up on the jury in the case. The prosecutor eventually determined the attorney’s identity and filed a grievance with the state disciplinary authority. Could the attorney be subject to discipline?
- AYes, because the attorney should have explained both sides of the case as evenhandedly as possible to the prospective jurors.
- BYes, because a lawyer shall not seek to influence a judge, juror, or even a prospective juror.
- CNo, because he spoke to prospective jurors, and they did not end up serving on the case.
- DNo, because he was not representing a party in the case, and he was not even a litigator.
188A judge lost his temper with an attorney and spoke very abusively to him in open court, in front of a jury, using profanity and calling the attorney “an embarrassment to the profession and a menace to his own clients.” Defensively, the attorney shot back that the judge was completely out of line, that the judge should have retired years ago; the attorney also made a mildly obscene gesture at the judge. Eventually, both calmed down and apologized to each other profusely. Opposing counsel reported the attorney to the state bar disciplinary authority, but did not report the judge, before whom opposing counsel appears regularly. Could the attorney be subject to discipline?
- AYes, because he escalated the fiery exchange by making an obscene gesture.
- BYes, because a lawyer may stand firm against abuse by a judge but should avoid reciprocation; the judge's default is no justification for similar dereliction by an advocate.
- CNo, because the opposing counsel who reported the matter did not report the judge, who instigated the exchange, and presumably reported the attorney merely to make trouble for his opponent in litigation.
- DNo, because the attorney apologized to the judge immediately, and a lawyer does not have to passively accept abuse or inappropriate attacks from a judge or other lawyer.
189An attorney received a call from his cousin, who lives in another city, one evening after work. The cousin was serving on a jury in a misdemeanor criminal case, and deliberations were set to begin the following morning. The cousin explained that part of the jury instructions focused on whether the defendant committed the act “knowingly.” She is confused about whether that means that the defendant knew that he was committing the act, or that the defendant knew he was doing something illegal at the time. She called the attorney hoping for some clarification. The attorney practiced real estate law and had never handled a criminal case, but he vaguely remembered something about this from his first-year law school course in criminal law. Given that there was no time for him to research the subject, or to create an agreement for representation, and the fact that he had very limited information, the attorney offered the best explanation he could. Was it proper for the attorney to answer her question under these circumstances?
- AYes, because he has no involvement with the case, and the juror is his relative.
- BYes, because the Supreme Court has held that any restrictions in this area violate the First Amendment.
- CNo, because he communicated with a juror about a pending case.
- DNo, because there is a chance his cousin could repeat a garbled version of his informed opinion to the other jurors during deliberations.
190A certain client hired an attorney to represent her at trial. After voir dire, the attorney wanted to learn as much as possible about each of the jurors, such as their views on political and social issues that might be relevant to issues in the case, so the attorney found each juror’s social media accounts and reviewed their postings and comments. One juror, the foreperson of the jury, had limited the access of some of her social media accounts so that only her friends or connections on that platform could view what she shared. The attorney sent a connection request to the juror in hopes of gaining access to the juror’s shared photos, commentary, and so on. The attorney did not otherwise engage in conversations online with the juror, did not discuss the case with the juror, and did not respond to or “like” anything the juror shared or posted through social media. Was it permissible for the attorney to request access to the juror’s social media posts, if the attorney has no other communication with the juror?
- AYes, a lawyer may review a juror's Internet presence, which may include postings by the juror or potential juror in advance of and during a trial.
- BYes, if the lawyer believes reviewing the juror’s social media activity is necessary to reveal juror bias or prejudice.
- CNo, a lawyer may not send an access request to a juror to review of the juror's electronic social media.
- DNo, a lawyer may not invade the juror’s privacy by reviewing a juror's Internet presence, which may include postings by the juror or potential juror in advance of and during a trial.
191A certain client hired an attorney to represent her at trial. After voir dire, the attorney wanted to learn as much as possible about each of the jurors, such as their views on political and social issues that might be relevant to issues in the case, so the attorney found each juror’s social media accounts and reviewed their postings and comments. One juror, the foreperson of the jury, had limited the access of some of her social media accounts so that only her friends or connections on that platform could view what she shared. The attorney asked his law student intern to send a connection request to the juror in hopes of gaining access to the juror’s shared photos, commentary, and so on. There would be no reason for the juror to know the intern worked for the attorney in the case, as the intern was never present in the courtroom, and her own social media accounts did not mention her internship. The intern did not otherwise engage in conversations online with the juror, did not discuss the case with the juror, and did not respond to or “like” anything the juror shared or posted through social media. Was it permissible for the attorney to have his intern request access to the juror’s social media posts, if the attorney has no other communication with the juror?
- AYes, if the lawyer believes reviewing the juror’s social media activity is necessary to reveal juror bias or prejudice.
- BYes, a lawyer may review a juror's Internet presence, which may include postings by the juror or potential juror in advance of and during a trial.
- CNo, a lawyer may not invade the juror’s privacy by reviewing a juror's Internet presence, which may include postings by the juror or potential juror in advance of and during a trial.
- DNo, a lawyer may not send an access request to a juror to review of the juror's electronic social media, even vicariously through an intern.
192A certain client hired an attorney to represent her at trial. After voir dire, the attorney wanted to learn as much as possible about each of the jurors, such as their views on political and social issues that might be relevant to issues in the case, so the attorney found each juror’s social media accounts and reviewed their postings and comments. Was it permissible for the attorney to review all the social media posts and comments by the jurors, even back to their high school days, if the attorney has no other communication with the juror?
- AIt is permissible for a lawyer to review a juror's Internet presence, which may include postings by the juror or potential juror in advance of and during a trial.
- BIt is permissible for the lawyer to review a juror’s social media activity only if the lawyer shares the information with opposing counsel.
- CIt is impermissible for a lawyer to review a juror's Internet presence, unless the juror has sent the lawyer a request to connect as friends or contacts on that social media platform.
- DIt is impermissible for a lawyer to invade the juror’s privacy by reviewing a juror's Internet presence, which may include postings by the juror or potential juror in advance of and during a trial.
193A litigation attorney represented Conglomerate Corporation as the defendant in a personal injury lawsuit. Proceedings were underway, and the discovery phase was nearing conclusion. Cross motions for summary judgment were pending. One day, the attorney received a phone call from the judge presiding over the matter, asking to meet the attorney for coffee. When the attorney met with the judge, the judge asked the attorney how much harm it would cause if Conglomerate if the company had to go to trial instead of winning at summary judgment. The attorney explained that the trial would cost his client millions of dollars in expert witness fees, and that settlement seemed impossible at this point, so summary judgment was the only way for his client to avoid a major financial setback that could affect their share price and solvency. Opposing counsel was not present and the two agreed not to mention their meeting to her. The next day, the judge granted summary judgment in favor of Conglomerate Corporation, the attorney’s client. Could the attorney be subject to discipline for his conduct in this situation?
- AYes, the attorney had an impermissible ex parte communication with the judge presiding over the attorney’s case.
- BYes, the attorney and the judge kept a secret from the opposing counsel.
- CNo, the judge initiated the contact and asked the question, so the attorney did not violate the Model Rules, though the judge could be subject to discipline.
- DNo, if the information the attorney told the judge was already available or obvious to the other party, which seems to be the case in this scenario, then the other party suffered no prejudice or injury from the ex parte conversation.
194A certain client hired an attorney to represent her at trial. After voir dire, the attorney wanted to learn as much as possible about each of the jurors, such as their views on political and social issues that might be relevant to issues in the case, so the attorney found each juror’s social media accounts and reviewed their postings and comments. Some of the social media platforms notify the account holder whenever someone views their profile, so jurors with these social media accounts received notifications that the attorney had visited their profile page and reviewed items there. Which of the following is true, given this scenario?
- AA lawyer may review a juror’s social media profile only if the social media network setting notifies the juror of such review, but otherwise the review is a violation of Rule 3.5(b).
- BThe fact that a juror or a potential juror may become aware that the lawyer is reviewing his Internet presence when a social media network setting notifies the juror of such review does not constitute a communication from the lawyer in violation of Rule 3.5(b).
- CThe fact that a juror or a potential juror may become aware that the lawyer is reviewing his Internet presence when a social media network setting notifies the juror of such review constitutes a communication from the lawyer in violation of Rule 3.5(b).
- DIt is impermissible for a lawyer to review a juror's Internet presence, unless the juror has sent the lawyer a request to connect as friends or contacts on that social media platform.
195A prosecutor learned that his cousin was serving jury duty in a criminal trial in the prosecutor’s own district, although another lawyer from the prosecutor’s office was handling that trial. Nevertheless, before and during the trial, the prosecutor repeatedly communicated with his cousin about the trial, even though the prosecutor himself was not involved in the matter. Was it permissible for the prosecutor to have this contact with the juror?
- AYes, the prosecutor and the juror are relatives, so naturally it is permissible for them to have conversations.
- BYes, the prosecutor is not the advocate in the proceeding in which the cousin is a juror, so the conversations would not constitute ex parte communication.
- CNo, prosecutors are subject to stricter rules than other lawyers about contact with jurors, so the usual exceptions for family members and relatives would not apply.
- DNo, even though a colleague of the prosecutor was handling the trial in which the cousin was a juror, the prosecutor’s conversation violated the ethical prohibitions on ex parte communication with jurors.
196An attorney is representing the defendant in a highly publicized civil trial between two celebrities. On his way into the courthouse on the day of jury selection, reporters gather around the attorney hoping for comments. The attorney explains that his client has agreed to take a polygraph test proving that he is telling the truth about the disputed matter, but that the opposing party has refused to take a polygraph test, which suggests that the other person is hiding something. The attorney has his client’s permission to talk to the media. Opposing counsel is standing nearby waiting for his turn to talk, and he expresses no objection to the first attorney giving interviews like this, or to the attorney’s comments. Were the attorney’s statements proper?
- ANo, because there is a presumption of prejudicial effect on the proceedings when a lawyer comments publicly about the performance or results of any examination or test or the refusal or failure of a person to submit to an examination or test.
- BYes, because the other lawyer is present and did not object to the comments at the time.
- CNo, because it violates the rules to talk to crowds of reporters near a courthouse entrance on the day when potential jurors are entering the building for voir dire.
- DYes, because polygraph tests are inadmissible, so commenting on these tests is irrelevant to the trial itself.
197A certain attorney is representing the defendant in a highly publicized criminal trial. On his way into the courthouse on the day of jury selection, reporters gather around the attorney hoping for comments. The attorney explains that his client is still considering whether to enter a guilty plea to lesser charges, as the prosecutor’s offer is still open, and that they are waiting to see how jury selection goes before deciding whether to plead guilty or proceed to trial. The attorney also explains that his client has never actually confessed to the crime charged, despite several lengthy interviews with the police and the client’s admitting that he was near the scene of the crime when it occurred. The attorney has his client’s permission to talk to the media, and the prosecution has expressed no objection to him giving interviews like this on the courthouse steps in previous cases. Were the attorney’s statements proper?
- AYes, because the rules about trial publicity explicitly allow the attorney to explain the offense or defense involved, and the prosecutor has not objected.
- BYes, because the attorney’s statements clearly fall under the protection of his First Amendment rights, and he has his client’s consent.
- CNo, because it violates the rules to talk to crowds of reporters near a courthouse entrance on the day when potential jurors are entering the building for voir dire.
- DNo, because there is a presumption of prejudicial effect on the proceedings when a lawyer comments publicly about the possibility of a guilty plea, or a party’s refusal to confess to a crime
198A certain attorney is representing the defendant in a highly publicized trial. On his way into the courthouse on the day of jury selection, reporters gather around the attorney hoping for comments. The attorney explains that his client has a perfectly clean criminal record, while the state’s star witness is already serving time on a felony drug conviction. In his opinion, he says, the client is innocent and should receive an acquittal, but he does not explain the defense theory of the case. The attorney declares that he has his client’s permission to talk to the media, which is true, and that the prosecution expressed no objection to him giving interviews like this on the courthouse steps in previous cases. Were the attorney’s statements proper?
- AYes, because the rules about trial publicity explicitly allow the attorney to explain the offense or defense involved, and the prosecutor has not objected.
- BYes, because the attorney’s statements clearly fall under the protection of his First Amendment rights, and he has his client’s consent.
- CNo, because it violates the rules to talk to crowds of reporters near a courthouse entrance on the day when potential jurors are entering the building for voir dire.
- DNo, because the official Comment to the Model Rules says that expressing an opinion about a party’s guilt or innocence, or about the criminal record of a party or witness, is more likely than not to have a material prejudicial effect on a proceeding.
199An attorney defended a client in a criminal proceeding that attracted low-level media attention on the local evening news and a few local-interest blogs. A semi-retired reporter for the local evening news called the attorney at his office and asked for a quote about the client’s case. Then the attorney stated that the client had no prior criminal record and that they planned to put on a rigorous defense, and he hoped the prosecutor would drop all the charges before trial. Was it improper for the attorney to make these statements?
- AYes, because lawyers involved in a criminal proceeding may not make any statements to the media about the case or the parties involved.
- BYes, because a lawyer should not make extrajudicial comments about the criminal record of a party during a criminal matter.
- CNo, because a lawyer may state the claim, offense or defense involved and, except when prohibited by law, the identity of the persons involved.
- DNo, because the matter received only low-level media attention and the reporter was semi-retired.
200An attorney defended a client in a criminal proceeding that attracted low-level media attention on the local evening news and a few local-interest blogs. One of these bloggers called the attorney at his office and asked for a quote about the client’s case. The attorney stated that a member of the local clergy, as well as the Principal of the local high school, would testify as to the client’s good character and volunteer activities. Was it proper for the attorney to discuss such things with a blogger?
- AYes, because a local-interest blogger is not an official public communication and does not constitute dissemination by means of public communication.
- BYes, because a lawyer may state the expected testimony of a party or witness in a criminal matter.
- CNo, because in a criminal matter, there is a presumption of prejudice when a lawyer makes extrajudicial statements about the expected testimony of a party or witness
- DNo, because a criminal defense lawyer may not make any extrajudicial statements except to state the claim, offense or defense involved and, except when prohibited by law, the identity of the persons involved.
Información
- Descripción
- MPRE Professional Responsibility Test sobre Supplement Questions 1-200 (Lauren), creado por Lauren Strickland el 06/02/2022.
- Autor
- Lauren Strickland
- Idioma
- English
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