ProRes - Final 173 to 345 & second half of glannon book

-- 229. A recent law school graduate has applied for admission to the bar in her home jurisdiction. The application forms ask applicants to list all arrests and convictions for misdemeanors or felonies. The graduate had two minor convictions for underage drinking or possession of alcohol when she was in high school, eight years earlier, and her attorney told her at the time that the state would expunge her records when she turned 18, meaning she would never have to report the convictions. In addition, she had one arrest in college where a shop owner mistakenly thought she was a shoplifter who had visited the store the day before, but the district attorney had not pressed charges once it became obvious that this was a case of misidentification. On her bar application, the applicant did not report the convictions from high school or the arrest from college, because she thought the earlier convictions were no longer on her record, and she had cleared herself of all wrongdoing after the arrest, resulting in dropped charges. Nevertheless, the state bar discovered the convictions and arrest during its comprehensive criminal background check, which it conducts for all applicants. The state bar admissions board denied her application, and filed a grievance against the applicant for making a false statement on her application. Did the applicant violate the Model Rules of Professional Conduct in this case? a) Yes, because she knowingly made a false statement of material fact on her application for admission to the state bar. b) Yes, but only regarding the convictions from high school, as the arrest was clearly a case of misidentification that did not result in formal criminal charges. c) No, because the applicant is not yet a lawyer, and the ethical rules governing lawyers did not yet apply to her during the application stage. d) No, because the earlier convictions occurred when she was a minor, and the state promised to expunge her records, and the arrest during college did not result in formal criminal charges.

A

175. As mentioned in class, what is currently the trend for the number of malpractice claims? a) Steadily increasing b) Steadily decreasing c) Plateaued d) Cyclical and varying wildly

A

177. As mentioned in class, what is currently the average hourly rate for defense counsel in legal malpractice claims? a) Most pay more than $300 per hour b) Most pay more than $1000 per hour c) Most pay more than $100 per hour d) Most of the work is done by in-house counsel at the insurance companies and is therefore not billed at an hourly rate

A

178. Legal malpractice lawsuits require proving that the plaintiff would have prevailed but for the lawyer's negligence, and proving damages. As mentioned in class, which of the following is necessary to prove these elements of a typical malpractice action? a) A trial within a trial b) Reverse bifurcation of the trial c) Expert testimony by experienced judges d) A decision from the state bar disciplinary authority about whether the lawyer's conduct violated the Rules of Professional Conduct

A

186. Client paid his legal fees to Attorney in cash. The total fees were $11,100, and Client paid Attorney in bundles of twenty-dollar bills. The Internal Revenue Code, 26 U.S.C. § 6050, requires that lawyers disclose, through Form 8300, the identities of clients, amounts, and payments dates of all cash fees in excess of $10,000. Client already forbid Attorney to disclose the information to the IRS. Must Attorney disclose Client's name, the amount, and the dates of payment on Form 8300? a) Yes, the Internal Revenue Code supersedes the Rules of Professional Conduct regarding the duty of confidentiality, so the lawyer should make such disclosures as are necessary to comply with the law, after informing the client. b) Yes, because payment of the fee is not confidential client information and could not be prejudicial to the interests of the client in the representation. c) No, a lawyer must comply with the client's express wishes regarding the disclosure, as the punishment for failing to file Form 8300 will probably fall on the client, not the lawyer. d) No, the Rules of Professional Conduct permit, but do not require disclosure to comply with other law, so Attorney may file Form 8300, but it is not correct to say Attorney "must" do so. Rule 1.6(b)(6) & Cmt. 12

A

188. Attorney was a well-known criminal defense lawyer, and he agreed to represent Client, a celebrity who is a defendant in a high-profile murder case. Attorney filed the proper notice with the court and the prosecutor's office that he was representing Client. Attorney also filed a motion to exclude Client's confession that he gave to the police on the night of the murder while Client was somewhat intoxicated, in which he concedes the intoxication and contends that this nullifies the voluntariness of the confession for Fifth Amendment purposes. The news media thereby learned that Attorney was representing Client, and news commentators began to speculate that Client must be guilty if he hired such a notorious defense lawyer. Client was furious that anyone knew that he had hired a lawyer, which he claims was confidential. Was it proper for Attorney to make these disclosures without Client's express authorization? a) Yes, because a lawyer is impliedly authorized to make disclosures about a client when appropriate in carrying out the representation, except to the extent that the client's instructions or special circumstances limit that authority. b) Yes, because Client is already in the public light as a celebrity and therefore has a lower reasonable expectation of privacy, and he knew he was hiring a well-known defense lawyer. c) No, because a lawyer has an ethical duty to receive express authorization from a client before taking any action that could disclose a client's confidential information. d) No, because Attorney was raising a constitutional issue in the motion that has greater importance than the duty of confidentiality to a client. Rule 1.6 Cmt. 5

A

190. Client, a large auto dealer, retains Attorney to represent him in a bankruptcy case. Attorney's firm represents a bank, through which Client has several large loans that covered loans for the dealership. The loans are all contained in the bankruptcy. Attorney is concerned about whether there is a conflict, so he contacts a lawyer friend of his. While explaining his dilemma, Attorney tells Friend the name of the dealer. Is Attorney subject to discipline? a) Yes, because the attorney disclosed more than what details were necessary to accomplish his purpose. b) Yes, because attorneys shall not discuss client matters with other lawyers not also serving as counsel for their client. c) No, because attorneys may discuss their cases with other lawyers to ensure they are following the rules of professional conduct. d) No, because the restrictions regarding confidentiality only apply in criminal cases.

A

191. Attorney represents Client before an Administrative Law Judge in a regulatory enforcement matter. The Administrative Law Judge orders Attorney to disclose whether Client had received legal counsel about the regulatory requirements in question before the violation occurred. Client forbids Attorney to answer the question. Should Attorney object and try to assert various claims that the order is not authorized by law, or that the information is not relevant to the proceeding, or that the information is covered by the attorney-client privilege? a) Yes, because a lawyer should assert on behalf of the client all nonfrivolous claims that the order is not authorized by other law or that the information sought is protected against disclosure by the attorney-client privilege or other applicable law. b) Yes, because the information relates only to what the lawyer told the client, not to what the client told the lawyer, so the duty of confidentiality does not apply. c) No, because an Administrative Law Judge is not a court or tribunal for purposes of the exceptions to the confidentiality rules that might permit disclosures in response to a court order. d) Yes, because a lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent. Rule 1.6(b)(6) & Cmt. 15

A

220. Attorney wants to retire from practice due to a chronic illness, and decides to sell his practice to another lawyer. The sale agreement complies with the Model Rules regarding the sale of a law practice. As part of the sale agreement, however, Attorney stipulates that he will not resume the practice of law in that jurisdiction, even if medical breakthroughs cure his chronic illness and restore him to perfect health. The purchaser of the firm is aware that research for a cure of Attorney's illness is well underway, and is concerned because it is foreseeable that Attorney would recover and want to return to the practice of law in a few years. Is it proper for Attorney and his buyer to include this provision of the sales agreement for the law firm? a) Yes, because the rule against restrictions on the right to practice does not apply to the sale of a law practice. b) No, because a lawyer shall not participate in offering or making an agreement that restricts the right of a lawyer to practice. c) No, because a lawyer shall not participate in offering or making an agreement in which a restriction on the lawyer's right to practice is part of the settlement. d) Yes, because the Contracts Clause of the U.S. Constitution would prohibit a state from restricting the right for a lawyer to include certain contract provisions in a sale agreement.

A

223. Attorney specializes in estate planning. Besides being a lawyer, she is a certified public accountant. One of her clients hires her to prepare a will and handle the planning for a complex estate, which will involve creating two charitable trusts and other maneuvers for avoiding hefty estate taxes. The estate planning in this case involves some transfers to create the trusts in the current calendar year, which will be reportable on the current year tax returns. Client asks Attorney to prepare her tax returns for the current year, given that Attorney is handling all the estate planning, and already has all the documentation about the finances and assets of Client. Attorney agrees to prepare the returns as a C.P.A., and creates a separate retainer agreement with the client for the preparation of the tax returns, one that complies with all IRS requirements for tax preparers, and that stipulates this retainer shall be for accounting work, not legal services. Five years later, Client runs for Congress, and during a contentious campaign, a reporter asks Attorney how much Client paid in taxes in the year that Attorney prepared the tax returns. Attorney answers the question in detail. Client complains that this constitutes a breach of lawyer confidentiality, but Attorney defends her actions by explaining that the amount of taxes paid that year was information derived solely from her work as a C.P.A., under a separate retainer with due disclosures, and not as a lawyer. Who is correct here - Client, or Attorney? a) Client is correct because the circumstances were such that the non-legal accounting services were not distinct from the legal services Attorney was providing at the time. b) Client is correct because lawyers have a duty of confidentiality toward clients even for information acquired outside the legal representation of the client. c) Attorney is correct because Client is obviously a sophisticated individual with a complex estate, as long as the separate retainer provided adequate disclosure that the Rules of Professional Conduct for Lawyers would not apply to the preparation of the tax returns. d) Attorney is correct because candidates have a duty to disclose how much they pay in taxes.

A

227. Attorney has expertise in launching new businesses. His undergraduate major was entrepreneurship, and he has numerous connections among investment bankers, and venture capitalists in the area. Entrepreneurs seek him out to incorporate their new businesses and help them find loans and equity investors for startup. Attorney drafts articles of incorporation and bylaws, handles name registration with the Secretary of State, and arranges meetings with local commercial bankers and potential investors, and helps write business plans and market analysis in anticipation of these meetings. Which of the following is true regarding Attorney's activities? a) Both the legal services (incorporating) and the law-related related services (writing business plans and arranging investor meetings) would be subject to the requirements of the Rules of Professional Conduct. b) It is improper for Attorney to provide both the legal services and the law-related services. c) The legal services (incorporating) would be subject to the requirements of the Rules of Professional Conduct, but the law-related related services (writing business plans and arranging investor meetings) are not subject to the Rules. d) Only the law-related related services (writing business plans and arranging investor meetings would be subject to the requirements of the Rules of Professional Conduct, and not the legal services (incorporating).

A

228. Attorney practices commercial real estate law in the state capitol, but also provides legislative lobbying services for some clients, especially for firms seeking lucrative government contracts. For example, working on a retainer, Attorney successfully lobbied his state legislature to privatize most of its prison system, and to give his client the contract to operate the private prisons. His client continues to pay the retainer and Attorney continues to lobby for longer statutory minimum sentences for crimes, so that the private prisons remain full. Attorney uses a separate retainer agreement for lobbying work, which specifies that he is not representing the client as their lawyer, but only as a lobbyist, and is not providing legal advice or legal services under their agreement. Meanwhile, one of attorney's other clients faces charges of securities fraud and hires Attorney to handle his appeal, which includes arguing that the mandatory minimum sentences are unconstitutional. The criminal defendant signs a written waiver of the potential conflict of interest the Attorney has over the mandatory sentencing issue, but the Attorney fails to obtain a similar waiver from the private prison client on whose behalf he lobbied for the mandatory sentencing laws. If Attorney is successful in having mandatory sentencing laws declared unconstitutional on behalf of his criminal client, will he be subject to discipline for the conflict of interest with his lobbying client? a) No, because lobbying is a law-related service that a nonlawyer could do, and is distinct from the lawyer's legal services, according to the retainer, so the conflict of interest rules do not apply. b) Yes, because he lobbied for people to suffer longer periods of incarceration merely to help his corporate clients earn more profits, which is unconscionable. c) Yes, because the fact that his legal client signed a waiver of the conflict of interest means that a reciprocal waiver was necessary from the lobbying client. d) No, because lobbying the legislature receives special constitutional protection due to its integral part in a functioning democracy.

A

233. An attorney faced a disciplinary action over accusations that she had neglected a client matter and had failed to communicate adequately with the client. The state disciplinary authority requested a written account of her version of what happened, and asked her ten or twelve probing questions during the hearing. At the conclusion of the hearing, the disciplinary tribunal decided that the client complaint was without merit and cleared the attorney of all charges in that regard. At the same time, it also concluded that the attorney had answered one question during the hearing untruthfully, and had made a minor misrepresentation regarding dates in her written statement to the board. The tribunal therefore filed a separate grievance against the attorney for these misrepresentations. Could the attorney be subject to discipline for incidental misrepresentations to the grievance committee if the same committee had decided that the underlying case had no merit and issued a dismissal? a) Yes, because it is a separate professional offense for a lawyer to knowingly make a misrepresentation or omission in connection with a disciplinary investigation of the lawyer's own conduct. b) Yes, because her the dismissal of the original complaint may have been in reliance upon some of her false statements, making it seem that the original complaint was probably valid as well. c) No, because the board lacks jurisdiction to commence disciplinary proceedings when there is not a client complaint pending. d) No, because the misstatements were part of a proceeding that has ended in a complete dismissal. Rule 8.1 Cmt. 1

A

236. An attorney was upset when he lost a high-stakes bench trial. When friends and acquaintances asked him about it in the following weeks, he would bitterly complain that the judge must have received a bribe from the opposing party, because there was no way that a reasonable judge could have ruled against the attorney's own client, given the evidence in the case. The attorney has no reason to think that the judge accepted a bribe except that he was shocked when he lost the case. Could the attorney be subject to discipline for making such comments? a) Yes, because a lawyer shall not make a statement that the lawyer knows to be false or with reckless disregard as to its truth or falsity concerning the qualifications or integrity of a judge. b) Yes, but only if the attorney makes the statements in the public media, that is, to a reporter or in a press release. c) No, because the First Amendment protects the attorney's right to free speech, and these are merely complaints made to friends and acquaintances. d) No, because such comments implicate slander or libel doctrine in tort law, rather than disciplinary actions by a state bar. Rule 8.2

A

243. A trial attorney knew he cannot have ex parte communications with the judge in his case, but he wanted to explain a point about the case to the judge without opposing counsel present. The attorney happened to attend an alumni reception at his law school, and one of his former classmates mentioned to him that the she would be having lunch with the judge the next day. The attorney explained his case to his former classmate and asked her to explain a particular point to the judge privately during the lunch, and she agreed to do it as a favor. Could the attorney be subject to discipline in this case? a) Yes, because it is professional misconduct for a lawyer to violate or attempt to violate the Rules of Professional Conduct through the acts of another. b) Yes, because the attorney knew that the classmate should not have lunch with a judge. c) No, because the attorney did not personally have ex parte contact with the judge, so there was no risk of manipulation or coercion. d) No, because the classmate consented to talk to the judge. Rule 8.4(a)

A

247. While cross-examining a Hispanic witness during a trial, a defense attorney grew frustrated at the witnesses' evasive answers, and finally asked the witness if "his people" or others "in his community" regularly lie under oath on the witness stand. The prosecutor immediately objected and the judge sustained the objection, so the attorney withdrew the question. The witness then stated that he did not feel offended by the question because he understood that the lawyer was simply ignorant and relying on stereotypes. Three of the jurors were also Hispanic. Could the attorney be subject to discipline for this question? a) Yes, because it is professional misconduct for a lawyer in the course of representing a client to say things that manifest bias or prejudice based upon race or national origin. b) Yes, because the judge sustained the objection and there were Hispanics serving on the jury. c) No, because the witness claimed that he did not feel offended. d) No, because the lawyer immediately withdrew the question. Rule 8.4(d) Cmt. 3

A

251. An attorney practices law in two adjacent states, as he has a license to practice in each. He lives near the border and can easily serve clients in each jurisdiction. The two states have different rules about attorney disclosures of confidential client information - one state requires disclosures of client confidences whenever necessary to save a third party from death or serious bodily injury, while the other state forbids disclosures even under these circumstances. The attorney did indeed disclose confidential client information in order to save someone's life (the client was planning a murder and the attorney notified the authorities and warned the potential victim), but this occurred in the state that forbids such disclosures under these circumstances. The client files a grievance against the attorney in both states, and both state bars commence disciplinary proceedings over the same incident. The state bar of the other state, which would have required disclosure in this situation under its own rules, nevertheless reprimands the attorney for making the disclosure in violation of the rules in the state where the incident occurred. The attorney objects that the state cannot impose a sanction on him for conduct that the state's rules would have required. Is the state bar correct? a) Yes, the state bar should apply the rules of the jurisdiction in which the lawyer's conduct occurred. b) Yes, because a state disciplinary authority does not have to consider the rules of professional conduct from its own state in making disciplinary determinations, regardless of where the misconduct occurs. c) No, because each state bar should apply its own rules, otherwise we could have the absurd result of a state bar punishing a lawyer for an action that the rules of that state require. d) No, because a lawyer can face discipline for professional misconduct only in the state where the misconduct occurred. Rule 8.5(b)(2)

A

260. Attorney advertises his services on billboards in a major city, emblazoned with the logo, "LOWEST LEGAL FEES IN THE CITY!" The billboard contains the firm's name, address, phone number, and website, but no disclaimers or qualifications about the claim regarding the legal fees they charge. Approximately 10,000 lawyers practice in that city, and a legal aid clinic provides free legal services for homeless or indigent clients. The location of the billboards happens to be on roads with very high frequency of accidents and traffic fatalities, so the billboards are often visible to those who have just had an accident. Could Attorney be subject to discipline for these billboards? a) Yes, because an unsubstantiated comparison of the lawyer's services or fees with the services or fees of other lawyers may be misleading if presented with such specificity as would lead a reasonable person to conclude that the comparison can be substantiated. b) Yes, because the billboard constitutes solicitation of clients immediately after they have an accident, as it is directed to the general public, such as through a billboard, an Internet banner advertisement, a website or a television commercial c) No, because the billboards do not violate the prohibition against stating or implying an ability to influence improperly a government agency or official or to achieve results by means that violate the Rules of Professional Conduct or other law. d) No, because the lawyer is merely exercising his First Amendment rights to free speech.

A

261. Attorney recently earned her Juris Doctor degree from a prestigious law school and easily passed the state bar exam, gaining admission to the bar in her home state. She worked for three years for a legal aid clinic that provided free legal services for indigent clients. At the end of her third year at the clinic, Attorney decided to start her own firm, representing primarily low-income clients who were ineligible for free services at the legal aid clinic, but who also rarely could afford the fees of most attorneys. She sent a certified letter to most of the lawyers in her geographic area describing her experience and explaining that she was starting her own firm and intended to specialize in low-dollar consumer protection cases, simple divorces, adoptions, name changes, and landlord-tenant disputes. The letter concluded by offering to handle such cases for other lawyers if the other lawyers did not want to invest their time on such low-dollar matters. She did not notify the legal aid clinic that she planned to leave or that she had sent this letter. Were Attorney's actions proper? a) Yes, because Attorney's statements were not false or misleading and the letter was an appropriate announcement of the opening of her new firm and her intent to specialize in certain areas of law. b) Yes, because Attorney sent the letter only to other lawyers, so there was little risk of manipulation or abuse of unsophisticated clients. c) No, because Attorney failed to notify the legal aid clinic of her plans to open a new firm, or to send a letter to hundreds of lawyers that described her experience working at the clinic. d) No, because Attorney has never handled such fee-generating cases before, if her only work experience is at a legal aid clinic that provides services without charge to indigent clients.

A

264. Attorney practices law in Texas, and he runs advertisements in local newspapers and journals that say, "HIRE THE BEST LAWYER!" The advertisement does not explicitly claim that Attorney is the best lawyer in the state, but it does include Attorney's website address, which is www.bestlawyerintexas.com. Is such an advertisement improper? a) Yes, because the advertisement it misleading. b) Yes, because it includes a website address. c) No, because it merely exhorts readers to hire the best lawyer, without suggesting who is the best lawyer. d) No, unless Attorney is, by all measures, the best lawyer in Texas.

A

265. Attorney pays $1000 per month for a billboard advertisement for his firm, $2000 per month for a few radio commercials, $3000 per month for internet advertising, and $4000 per month for newspaper and magazine advertisements. The total amount for advertising is $10,000. Attorney's average total income from legal fees is $15,000 per month. Is it permissible for Attorney to spend such sums on advertising? a) Yes, because a lawyer may advertise services through written, recorded or electronic communication, including public media and may pay the reasonable costs of such advertisements or communications. b) Yes, because as long as the lawyer is not making in-person solicitations, there are no limitations on advertising by law firms, as long as the advertisements are not for a particular lawyer. c) No, because it is not reasonable to spend more than half of a firm's monthly revenues on advertising. d) No, because it is not reasonable to spend $1000 on billboards, which are notoriously ineffective.

A

267. Attorney made an informal agreement with Physician that they would refer clients to each other when the situation seemed appropriate. They did not pay each other any money for referrals, but the relationship was explicitly reciprocal - Attorney referred patients who needed medical examinations to Physician, and when Physician had patients needing legal representation, he referred them to Attorney. The relationship was not explicitly exclusive - each was free to refer clients to others - but it happened that neither had similar reciprocal relationships with anyone else. They always inform their clients when making such referrals that they have a reciprocal relationship. Is such an arrangement proper? a) Yes, a lawyer may agree to refer clients to another lawyer or a nonlawyer professional, in return for the undertaking of that person to refer clients or customers to the lawyer, as long as clients are aware and the relationship is not exclusive. b) Yes, because the agreement is informal, not a written contract. c) No, because a lawyer may not agree to refer clients to another lawyer or a nonlawyer professional, in return for the undertaking of that person to refer clients or customers to the lawyer. d) No, because the relationship described here is de facto exclusive, even if they have not agreed specifically to keep the relationship exclusive.

A

173. As mentioned in class, what is currently the most frequently alleged malpractice error in Law Professional Liability claims? a) Missing Filing Deadlines/Statute of Limitations b) Conflicts of interest c) Breach of Confidentiality d) Failure to Communicate

B

176. As mentioned in class, how many major malpractice insurers report that they have paid LPL claims over $100 million? a) Less than half b) More than half c) All d) None

B

183. Client met with Attorney for a free consultation, and explained that she had met with two other lawyers for consultations and that she planned to hire one of the three to provide the legal services necessary to set up her professional business. Attorney needed to make a good impression on Client, so he mentioned a few prominent accountants and physicians in town whom Attorney had represented and helped with incorporating their partnerships or practice groups. These former clients had never explicitly authorized Attorney to disclose his representation of them in these matters. Client hired Attorney, and Attorney provided the legal services necessary to set up her business. Unfortunately, a dispute arose between Client and Attorney over the fees, and this fee dispute turned into litigation between Attorney and Client. In order to support his claims and defenses in the fee dispute, Attorney had to disclose to the tribunal exactly what he did for Client and the complexity of the issues involved, which necessarily involved the disclosure of confidential information. Was it proper for Attorney to disclose this confidential information about Client merely to prevail in a fee dispute? a) Yes, because the representation of Client ended when the fee dispute began, so Attorney has no remaining duty of confidentiality to Client. b) Yes, a lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client. c) No, because the former clients did not authorize Attorney to disclose that he had represented them or the nature of the matters involved in the representation. d) No, because the duty of confidentiality continues after the client-lawyer relationship has terminated, including the prohibition against using such information to the disadvantage of the former client. Rule 1.6(b)(5)

B

189. An insurance company hired Attorney to represent one of its policyholders. The insurance company requires periodic updates and detailed billing statements about the matter from Attorney, as part of its agreement to provide representation for its insured. In addition, the insurance company requires Attorney to submit detailed billing statements to a third-party auditor, designated and paid by the insurance company. Client is unaware of these reporting requirements and did not provide explicit consent to either of them. The third-party auditor receives no information except the name and policy number of the client and the time spent by Attorney on various tasks necessary for the representation. Could Attorney be subject to discipline for disclosing confidential information? a) Yes, because both the disclosures to the insurance company and the third-party auditor violate the lawyer's duty of confidentiality toward the client. b) Yes, even though the policyholder impliedly authorized the Attorney to provide updates and billing statements to the insurance company, submitting the bills to the third-party auditor constitutes an unauthorized disclosure of confidential information. c) No, because the lawyer has implied authorization from the fact that the insurance company hired him to represent the policyholder to make all of the disclosures described above. d) No, because billing information is not privileged and its disclosure could not prejudice the client. ABA Formal Op. 01-421

B

193. Attorney is representing a client who is a notorious celebrity-turned-criminal in a criminal case involving drug charges. Attorney is confused about whether he may publicly disclose information that he learned in confidence from his client if the information is already a matter of public record, and his research indicates there is a split of authority on this question. Attorney calls another lawyer who specializes in lawyer malpractice and lawyer disciplinary matters to seek advice about what course of action would comply with the Rules of Professional Conduct. The other lawyer, an expert in legal ethics, agrees to provide an opinion and to keep the conversation a secret. Attorney tries to use a hypothetical to explain the problem, but given the client's national reputation and celebrity status, the other lawyer knows immediately who the client is, and can easily surmise the nature of the confidential information. In addition, Attorney mentions that his client is secretly a bisexual and has been having an affair with both the male and female hosts of a nationally televised morning talk show, though neither of them is aware that the other is having an affair with the same person. Is Attorney subject to discipline for disclosing confidential information about his client? a) Yes, because Attorney used a hypothetical that was obvious enough that the other lawyer immediately knew the identity of the client and the client's information that the Attorney was supposed to protect. b) Yes, because the lawyer revealed more client information than was necessary to secure legal advice about the lawyer's compliance with the Rules c) No, because a lawyer may reveal information relating to the representation of a client to secure legal advice about the lawyer's compliance with the Rules, even when the lawyer lacks implied authorization to make the disclosure. d) No, because a lawyer may generally disclose confidential information to another lawyer as long as the other lawyer promises to keep the conversation secret, and the other lawyer has a reputation for complying with the ethical rules. Rule 1.6(b)(4) & Cmt 9

B

196. Small Firm is considering hiring Attorney, who currently works for Big Firm, in a lateral move. Attorney is a transactional lawyer, so none of the information he possesses is "privileged" in that it was not in anticipation of litigation. In order to check for conflicts of interest, Attorney discloses to Small Firm the clients he has represented while at Big Firm. This includes the names of persons and issues involved in the matters, as well as names and issues for matters handled by other lawyers in the firm about which Attorney had overheard or otherwise acquired some confidential information. Small Firm uses the information solely for checking about potential conflicts of interest before making an offer of employment to Attorney. Attorney did not ask any of the clients for authorization to disclose the representation or the nature of the issues involved in their matters. Was it proper for Attorney to disclose this confidential information without the consent of the clients? a) Yes, as long as Attorney informs the clients subsequently that such disclosures have occurred. b) Yes, because Attorney disclosed the information solely to detect and resolve conflicts of interest arising from the lawyer's change of employment. c) No, because Attorney did not obtain consent or authorization from the clients before disclosing this information. d) No, because Attorney disclosed not only the clients that he himself represented, but also clients of other lawyers in his firm. Rule 1.6(b)(7); ABA Formal Op. 09-455

B

198. Attorney works for a state-operated legal aid clinic, which under a state statute counts as a social service agency. The state has a mandatory reporting law for child abuse, which statutorily requires employees of social service agencies to report any instances of child abuse they discover among their clients or constituents. Attorney met with a prospective client and her child to discuss possibly representation at a welfare termination hearing. The prospective client did not meet the agency's guidelines to be eligible for free legal representation, however, so Attorney had to decline the case. Nevertheless, it was evident during the interview that the prospective client's child was the subject of serious physical abuse - a black eye, cigarette burns on her arms and neck, bruises on the backs of her legs, and a demeanor of cowering in fear around adults. Attorney wanted to talk to the mother about it, but has been unable to reach her since declining to represent her. Must Attorney report the prospective client for child abuse? a) Yes, because the mother was only a prospective client who was ineligible for representation by Attorney, so Attorney owed her no duty of confidentiality. b) Yes, because state law requires the disclosure, and a lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary to comply with other law. c) No, because the exceptions to the duty of confidentiality merely permit disclosure, so Attorney "may" report the incident, but there is no duty to do so. d) No, because Attorney met the prospective client only once, and does not know if the abuse occurred at the hands of her mother, or if the child was the victim of a crime at the hands of someone else, and it is not the mother's fault. Rule 1.6(b)(6)

B

200. Attorney works for a mid-size law firm that employs two or three law students every year as summer associates. The manager of the student associates assigns one of them to work on Attorney's pending antitrust case, in addition to assignments for other lawyers at the firm. While researching an important issue in the case, the summer associate discovered an older Supreme Court decision that was unfavorable to their client. The summer associate decided not to tell anyone about the case, as the opposing party seemed to have overlooked it in their briefs. Attorney was not aware of any of this. The hearing went well for their side, and the associate never said a word about "burying" that Supreme Court case he had found. After winning at the hearing, Attorney complimented the summer associate for his fine work and rewarded him by treating him to lunch at an expensive restaurant. The judge's clerks, however, found the case, and the judge queried the lawyers about how they could have missed it. Opposing counsel admitted he had been negligent in doing legal research on the matter, and summer associate then recounted how he hid the case from Attorney. Is Attorney now subject to discipline for what the summer associate did? a) Yes, even though he was unaware of the violation at the time, Attorney ratified the summer associate's conduct by complimenting him on his work and buying him an expensive lunch. b) No, because Attorney did not know about the associate's conduct at the time it occurred, or while submitting briefs, or even when the hearing began. c) Yes, because lawyers are automatically liable for the misconduct of nonlawyer employees at their firm; the lawyer had an affirmative duty to find the case himself and disclose it. d) No, because opposing counsel was negligent in failing to research the issue, and if he had, he would probably have discovered the case on his own.

B

201. Attorney works for a mid-size law firm that employs two or three law students every year as summer associates. The manager of the student associates assigns one of them to work on Attorney's pending antitrust case, in addition to assignments for other lawyers at the firm. While researching an important issue in the case, the summer associate discovered an older Supreme Court decision that was unfavorable to their client. The summer associate decided not to tell anyone about the case, as the opposing party seemed to have overlooked it in their briefs. Attorney was not aware of any of this until they were on a break during their hearing. The hearing was going well for their side, and the associate boasted to Attorney about "burying" that Supreme Court case he had found. Attorney said, "Well, you should have told me about it at the time, but there is no point in bringing it up now, as it appears opposing counsel overlooked it and the hearing is going our way." The judge's clerks, however, found the case, and the judge queried the lawyers about how they could have missed it. Opposing counsel admitted he had been negligent in doing legal research on the matter, and Attorney recounted the story about the summer associate hiding the case from him. Is Attorney now subject to discipline for what the summer associate did? a) Yes, because lawyers are automatically liable for the misconduct of nonlawyer employees at their firm; the lawyer had an affirmative duty to find the case himself and disclose it. b) Yes, even though he was unaware of the violation at the time, Attorney ratified the summer associate's conduct after he learned about it. c) No, because Attorney did not know about the associate's conduct at the time it occurred, or while submitting briefs, or even when the hearing began. d) No, because opposing counsel was negligent in failing to research the issue, and if he had, he would probably have discovered the case on his own.

B

221. Attorney is 60 years old and owns his own firm. He hires New Partner, a younger lawyer, to help manage the growing caseload. The partnership agreement provides that after Attorney retires, at age 65, the firm will pay him $5000 per month as a benefit as long as Attorney does not re-enter law practice anywhere. Which of the following is true regarding this partnership agreement? a) The agreement is unenforceable, according to the Rules of Professional Conduct. b) The agreement is proper, according to the Rules of Professional Conduct. c) Attorney is subject to discipline for creating this partnership agreement, in which he agrees never to practice law again as a condition of receiving a retirement benefit. d) New Partner is subject to discipline for entering into this type of partnership agreement, which restrains Attorney from practicing law.

B

202. Attorney hired Receptionist because of her good looks and because her brother was in Attorney's college fraternity, but he did not check into her background at all or ask for references. Receptionist had access to all files, records, and accounts in the firm, and three months later, there arose a problem with funds missing from client trust accounts. Circumstantial evidence pointed to Receptionist as the culprit, and at this point Attorney learns that Receptionist has an arrest record for theft and embezzlement on several occasions in the past. Attorney lectures Receptionist about it but allows her to keep her job because nobody can prove her guilty - the firm does not keep the type of records that would enable anyone to prove where the missing funds went. When additional complaints arise over misappropriated client trust funds, would Attorney be subject to discipline? a) Yes, because lawyers face strict liability (automatic responsibility) for misappropriations of client trust funds. b) Yes, because he was negligent in the hiring and supervision of nonlawyer employees. c) No, because Attorney could not reasonably have known about the arrest record of someone merely interviewing for a receptionist position, and there is still no way to prove that Receptionist actually stole the money. d) No, because Receptionist is not a lawyer and therefore not subject to the Rules of Professional Conduct.

B

203. Attorney is a fifth-year associate at a large national law firm. As a senior associate, Attorney can attend business meetings of the firm, but cannot vote on any decisions. Attorney is aware that the firm has no measures in effect that would give reasonable assurance that the paralegals are observing the confidentiality and conflict of interest rules that are part of the professional obligations of lawyers. Attorney mistakenly believes, however, that the rules apply only to the lawyers in the firm, not to the clerical staff of paralegals. When a paralegal in a separate practice group from Attorney violates the rules and the state disciplinary authority investigates the firm's ethical compliance measures, will Attorney be subject to discipline? a) Yes, because any attorney with enough seniority to attend firm business meetings with the partners has shared responsibility to ensure that measures are in effect to keep the paralegals in compliance with the rules. b) No, because Attorney is not a partner nor in a comparable managerial position to implement such measures, nor does it appear that the paralegal was under Attorney's direct supervision c) Yes, because Attorney is aware that the firm has no measures in effect that would give reasonable assurance that the paralegals are observing the confidentiality and conflict of interest rules d) No, because Attorney honestly believed that the Rules of Professional Conduct do not apply to the paralegals, and therefore falls under the good-faith exception to the rule.

B

204. Attorney employs an experienced legal assistant to manage administrative matters in the firm, including the client trust accounts. Attorney provided the legal assistant with detailed instructions about client trust accounts, including the specific kinds of records to keep, what funds to deposit there, and under what circumstances to withdraw funds. Attorney also sent the legal assistant to attend CLE courses and workshops on IOLTA accounts and managing firm records. Due to the legal assistant's thorough training, competence, and experience, Attorney reviewed the client account books cursorily once a year during the annual review of the employee. Eventually, an audit by the state disciplinary authority revealed numerous discrepancies in the bookkeeping regarding the IOLTA accounts and some prohibited commingling of client funds with the firm's funds. Attorney had no actual knowledge of the discrepancies or problems regarding the client trust accounts. Is Attorney subject to discipline? a) Yes, because Attorney must manage all client trust accounts personally and cannot delegate such matters to support staff at the firm. b) Yes, because Attorney did not make reasonable efforts to ensure that the legal assistant's conduct was compatible with the professional obligations of a lawyer. c) No, because Attorney made reasonable efforts to ensure that the legal assistant's conduct was compatible with the professional obligations of a lawyer by providing extensive training and periodic reviews. d) No, because Attorney lacked actual knowledge of the discrepancies, and the legal assistant is not subject to the Rules of Professional Conduct.

B

205. Attorney was part of a partnership before he died. He left his nephew as his sole heir. The partnership agreement, as written, provides that the firm should pay the certain amounts to the nephew. Those amounts are $210,000, for Attorney's share of the firm's assets; a $500,000 death benefit, provided for all shareholders in the partnership; and $17,500 for fees that Attorney earned on recent cases, but had not yet received. Under the Model Rules, which of the following represents the most that the firm may properly pay to the decedent's nephew? a) Only the $210,000 for Attorney's share of the firm's assets. b) $727,500, for Attorney's share of the firm's assets, his of uncollected fees, and the death benefit c) Only $17,500 for Attorney's uncollected fees. d) Only $500,000 for the death benefit, as death benefits come under a special exception under the Rules of Professional Conduct.

B

206. The American Liberties Foundation, a tax-exempt 501(c)3 nonprofit corporation, hired Celebrity Attorney to represent a class of defendants who want to eliminate federal decency standards that prohibit frontal nudity and pornographic sex scenes on broadcast television, as promulgated and enforced by the Federal Communications Commission. Celebrity Attorney prevailed in the case, winning the class members the right to broadcast pornography to school-age children on broadcast television in the afternoon. The court also awarded substantial attorney fees to the prevailing party in the case. Celebrity Attorney shares the fees with the American Liberties Foundation, and gives 85% of the fees to the nonprofit. Which of the following is true about this action by Celebrity Attorney? a) The fee-sharing arrangement is improper because Celebrity Attorney gave most of the money to the nonprofit, rather than splitting it evenly as the Rules require. b) The fee-sharing arrangement with the nonprofit entity is proper. c) The fee-sharing arrangement is improper because the Foundation is not a law firm or owned by lawyers, so this action constitutes sharing legal fees with nonlawyers. d) The fee-sharing arrangement would have been proper only if the Foundation collected all the fees awarded by the court, and then paid Attorney a reasonable pro rata share based on the number of hours worked and the customary lodestar rate in that state.

B

224. Attorney practices corporate securities law in a Wall Street firm. Attorney is also one of three owners of a financial forecasting consulting firm, Trends Tomorrow, which employs several well-known economists and financial analysts. Attorney refers clients to this firm when they need consultants to advise them about the timing of new stock offerings, projections for share price and profit forecasts, and so on. Attorney duly discloses to clients before referring them that she is a part owner of the consulting firm and that they are free to shop around and hire other consultants if they prefer; she also explains that the Trends Tomorrow is not a law firm and provides only financial forecasting services. Trends Tomorrow is located in the building next door to Attorney's Wall Street firm, and when clients go there, Trends Tomorrow explains as part of their service contract that they provide no legal services. Eventually, complaints emerge that Trends Tomorrow has been leaking confidential client information to the press, and that the consulting firm appears to have conflicts of interest, advising competing clients about strategies to encroach on each others' market share. Attorney faces disciplinary charges for these violations, but Attorney claims that the complaining clients need to show that the disclosures provided were inadequate to apprise them of the fact that the Rules of Professional Conduct for lawyers would not apply to Trends Tomorrow. Who has the burden of proof on this issue? a) Clients have the burden of proof to show that the lawyer failed to take reasonable measures to ensure that clients had adequate information about the inapplicability of the Rules of Professional Conduct. b) Attorney has the burden of proof to show that the lawyer has taken reasonable measures under the circumstances to communicate the desired understanding. c) The burden is on the disciplinary authority to show that the lawyer failed to take reasonable measures to ensure that clients had adequate information about the inapplicability of the Rules of Professional Conduct. d) The burden is on the press to show that the lawyer failed to take reasonable measures to ensure that clients had adequate information about the inapplicability of the Rules of Professional Conduct.

B

230. An attorney agreed to write a recommendation letter for admission to the bar on behalf of the law student who had worked for him part-time throughout law school. The student had behaved appropriately, and in compliance with the ethical rules for lawyers and law firms, at all times during her employment. On one occasion, the student intern had confided in the attorney that she had faced academic discipline for plagiarism on a law school seminar paper, and that she was very ashamed of herself about the incident and had accepted a failing grade in the class. She took an overload of courses the following semester to make up for the lost credits from the course she failed. The attorney did not mention this incident at all in his "character and fitness" recommendation to the state bar, because he felt it was out of character and did not represent the way the student normally behaved at the workplace. He also assumed the student would report it herself or that the bar would inquire about the failing grade on her law school transcript. The bar admissions board eventually learned about the incident only from the law school administration, which turned over the student's disciplinary records. Could the attorney who wrote the favorable recommendation be subject to discipline for filing to mention or address the incident? a) Yes, because the attorney had a conflict of interest in the situation, as it would be in his best interest for his own employee to gain admission to the bar. b) Yes, because he did not disclose a fact necessary to correct a misapprehension known by the person to have arisen in the matter in connection with an admission to the state bar. c) No, because the attorney had no duty to report the incident, given that the bar could easily discover it from another source (as it did), and because the attorney reasonably believed the incident did not reflect the true character of the applicant. d) No, because the student intern had told him about the incident in confidence, and it was not related to her work at the firm, so the attorney had a duty of confidentiality under Rule 1.6.

B

235. An attorney faced disciplinary action over a client grievance. The disciplinary tribunal asked the attorney several probing questions about her handling of client funds. The attorney actually used some client funds to pay off a gambling debt, so she is less worried about a temporary suspension of her law license than about potential criminal charges for embezzlement. The attorney, therefore, simply refuses to answer the questions, without offering any explanation. The disciplinary tribunal then determines that it lacks substantial evidence that the attorney mishandled client funds, but commences disciplinary proceedings over the attorney's refusal to answer some of its questions. The attorney now claims she was merely exercising her Fifth Amendment right to refrain from self-incriminating statements. Could the attorney be subject to discipline for refusing to answer the questions in this scenario? a) Yes, because a lawyer can never refuse to respond to a lawful demand for information from an admissions or disciplinary authority. b) Yes, a person relying on such constitution protections in response to a question must do so openly and not use the right of nondisclosure as a justification afterward for failure to comply with the rules requiring disclosures to the disciplinary authorities. c) No, because the rules requiring attorney candor to disciplinary authorities are subject to the provisions of the Fifth Amendment of the United States Constitution and corresponding provisions of state constitutions. d) No, because the committee did not read the attorney her Miranda rights, according to this fact scenario. Rule 8.1 Cmt. 2

B

237. In Texas, state trial judges are elected by popular vote. A well-known liberal-progressive judge is running for reelection. An attorney who is a staunch conservative is campaigning for the opposing candidate from the other party. At a campaign rally, the attorney declares that the liberal judge (seeking reelection) is completely unqualified and incompetent to serve in the judiciary, and that he is an activist judge who uses his court to push a particular political and social agenda. The judge graduated from a prestigious law school, was formerly a partner at a large law firm, and is active in the state bar. He does, however, give consistently lenient sentences to criminal defendants who are black or Hispanic, and has always ruled in favor of unions when he adjudicated cases involving collective bargaining agreements. The judge learns of these remarks by the attorney and files a grievance. Could the attorney be subject to discipline? a) Yes, because the judge is doing the right thing and conservatives like the attorney in this case are criticizing officials merely for upholding civil liberties and seeking justice and equality. b) Yes, because a lawyer shall not make a statement that the lawyer knows to be false or with reckless disregard as to its truth or falsity concerning the qualifications or integrity of a judge. c) No, because the comments occurred in the context of a political campaign, where speakers regularly resort to overstatement and soaring rhetoric. d) No, because the claims appear to be true. Rule 8.2

B

239. An attorney discovers that a partner at his own firm has violated the Rules of Professional Conduct by failing to disclose adverse binding precedent to a tribunal, and by depositing client funds into his own bank account instead of a client trust account. Does the attorney have a duty to report the partner from his own firm to the state bar disciplinary authority? a) Yes, but he must make an anonymous complaint to the state bar. b) Yes, because a lawyer who knows of a violation of the Rules that raises serious questions about the other attorney's honesty must report it to the state disciplinary authority. c) No, because lawyers do not have to report violations or misconduct by their own superiors, as this would put the reporting attorney in a difficult position at his workplace. d) No, because a lawyer is not required to report violations, but instead is merely permitted to do so. Rule 8.3

B

241. An attorney discovers that another lawyer has been stealing clients' funds, but he cannot prove it, as he learned about it from another party who was involved and who has since disappeared. He has some evidence, but not enough to prove that the other lawyer stole the clients' funds. When he confronted the other lawyer, the other lawyer admitted it privately but said he would deny it if there was any attempt to expose the matter. Does the attorney who knows about the violation, but could probably never prove it, have a duty to report the violation to the state disciplinary authority? a) Yes, because it does not matter how serious the misconduct is, it merely matters that there is some evidence of misconduct. b) Yes, because the duty to report misconduct depends upon the seriousness of the possible offense and not the quantum of evidence of which the lawyer is aware. c) No, because if the lawyer cannot prove the misconduct with a preponderance of evidence, he does not have "knowledge" of the misconduct for purposes of the Rules of Professional Conduct. d) No, because the duty to report depends on the quantum of proof of which the lawyer is aware, not the seriousness of the possible offense. Rule 8.3 Cmt. 3

B

244. A lawyer faced prosecution for failing to file tax returns over a five-year period. The attorney worked for a legal aid clinic and never charged clients any legal fees, as the clinic provided free representation to the indigent. The attorney received a modest salary from the legal aid clinic, the funds for which came from the state's IOLTA program and from a federal Legal Services Corporation (LSC) grant. Could the attorney face suspension of his license to practice law? a) Yes, because the lawyer's salary comes from a commingling of state IOLTA funds and federal LSC funds. b) Yes, because it is professional misconduct for a lawyer to commit a criminal act that reflects adversely on the lawyer's honesty. c) No, because the lawyer's illegal conduct did not pertain to his representation of any of his clients. d) No, because none of the lawyer's income derived from legal fees collected from clients. Rule 8.4(b) & Cmt. 2

B

246. After practicing for two years, an attorney enrolled in an LL.M. program at a local law school, taking night classes. During his second semester, the attorney faced academic discipline for plagiarism in a seminar paper; the school permitted him to graduate, but he received a failing grade in the class and had to make up the credits with another course. As the attorney already has a license to practice law in the jurisdiction, could he be subject to discipline if the state disciplinary authorities learned of the plagiarism? a) Yes, because it is professional misconduct for a lawyer to commit a criminal act that reflects adversely on the lawyer's honesty. b) Yes, because it is professional misconduct for an attorney to engage in conduct involving dishonesty, fraud, deceit or misrepresentation. c) No, because the attorney already obtained admission to the bar, so his courses now have no bearing on his application for admission to the bar. d) No, because the incident does not pertain to his representation of a client, so the disciplinary rules do not apply. Rule 8.4(c)

B

249. A judge asks the two lawyers in a case to help him conduct some first-hand investigation of the facts. At the judge's request, the plaintiff's lawyer and the defendant's lawyer together drive the judge to the location where the accident occurred that became the subject of the litigation, and allowed the judge to take measurements and photographs of the scene from different angles. They also accompanied the judge to interview several witnesses at their homes, off the record. Both lawyers felt awkward about this, but they were afraid to contradict or confront the judge, out of respect for the judicial office. Could the lawyers be subject to discipline for this conduct? a) Yes, because it constitutes ex parte communication with the judge. b) Yes, because it is professional misconduct for a lawyer to assist a judge or judicial officer in conduct that is a violation of applicable rules of judicial conduct or other law. c) No, because the lawyers did this activity at the judge's behest, and possible under orders from the judge. d) No, because it furthers the ends of justice and accurate case outcomes for judges to have more complete understanding of the facts of a case. Rule 8.4(f)

B

253. In Texas, which entity determines what constitutes the unauthorized practice of law in this state? a) The State Bar of Texas (SBOT), subject to review by the Texas courts b) The Unauthorized Practice of Law Commission (UPC), subject to review by the Texas courts c) The Texas Committee on Profession Ethics (TCPE), which has sole statutory authority in Texas to issue Ethics Opinion Letters d) The Texas Office of the Chief Disciplinary Counsel (CDC), subject to review by the Board of Disciplinary Appeals.

B

254. Attorney has a license to practice law in New York, but she is living in Texas and is practicing law in Texas out of her own firm office in Huntsville. What is the position of state bar regarding this situation? a) The State Bar of Texas has jurisdiction to decide what constitutes the unauthorized practice of law in this state, and to take disciplinary action against individuals who engage in the unauthorized practice of law. b) The jurisdiction of the State Bar of Texas does not permit it to take disciplinary action for any violation of the Texas Disciplinary Rules against any person who is not licensed to practice law in Texas or who is not specially admitted by a Texas court for a particular proceeding. c) The State Bar of Texas refers unauthorized practice of law enforcement actions to the United States Department of Justice for enforcement proceedings under federal law in the federal courts, as this situation involves a dispute between a citizen of one state and the state government of another state. d) Texas has a special reciprocity agreement with the State Bar of New York, so attorneys admitted in New York can practice law in Texas, and vice-versa, as long as they file a notice with the local bar association.

B

255. What is the role of the Board of Disciplinary Appeals in Texas? a) The final judgment of the Board of Disciplinary Appeals may be appealed in the same way civil cases are generally appealed. b) If an attorney facing a grievance does not elect a trial in district court, the judgment of an evidentiary panel may be appealed to the Board of Disciplinary Appeals, and an appeal from the Board of Disciplinary Appeals may be taken to the Supreme Court of Texas. c) Grievances are filed directly with the Board of Disciplinary Appeals, which then makes a Just Cause Determination and offers the lawyer an opportunity to file a Response. d) The Board of Disciplinary Appeals evaluates the fitness to practice law of new law school graduates and determines whether they meet the good moral character requirements of the state bar.

B

256. In Texas, an attorney facing discipline can elect whether to have his complaint tried before an evidentiary panel or in district court. Which of the following best describes the attorney's tradeoff in making this election decision? a) The lowest form of sanction, a private reprimand, is available only if the complaint is in district court; but a jury is available only before an evidentiary panel, as are many of the evidentiary exclusions and procedural protections of court adjudications. b) The lowest form of sanction, a private reprimand, is available only if the complaint is before an evidentiary panel; but a jury is available only in district court, as are many of the evidentiary exclusions and procedural protections of court adjudications. c) The most severe sanction, disbarment, is available only if the complaint is before an evidentiary panel; but punitive damages are available only in district court, as are orders to make restitution and payment of attorneys' fees. d) The most severe sanction, disbarment, is available only in district court; but punitive damages are available only if the complaint is before an evidentiary panel, as are orders to make restitution and payment of attorneys' fees.

B

257. Which of the following best describes the first five steps, in order, of the Texas disciplinary process? a) Filing of grievance with the Board of Disciplinary Appeals, Just Cause Determination, Response, Election of Forum, Classification b) Filing of grievance with the Office of Chief Disciplinary Counsel, Classification, Response, Just Cause Determination, Election of Forum c) Filing a grievance with the Board of Disciplinary Appeals, Election of Forum, Evidentiary Panel, Sanctions, and Appeal d) Filing of grievance with the Office of Chief Disciplinary Counsel, Election of Forum, Evidentiary Panel, Sanctions, and Appeal

B

258. Which of the following is NOT one of the most common alleged violations among grievances filed against attorneys in Texas? a) Neglect of a client matter b) Conflict of interest c) Failure to communicate d) Improper behavior surrounding withdrawal or termination of representation

B

259. Of all the grievances filed against Texas attorneys each year, what are the most common alleged violations? a) Conflicts of interest, breach of confidentiality, and neglect of client matters b) Neglect, failure to communicate, and improper behavior surrounding withdrawal or termination of representation c) Failure to communicate, advertising and solicitation violations, and violation of the duty of candor to a tribunal d) Improper behavior surrounding withdrawal or termination of representation, failure to screen new attorneys from matters posing conflicts of interest, and failure to supervise or train support staff at the firm

B

268. Attorney made and distributed bumper stickers advertising for his firm that simply provided a catchy phone number: 1-800-LAWYER-1. The phone number rolled over to Attorney's office phone. The bumper stickers included no other information. Could Attorney be subject to discipline for such an advertisement? a) Yes, because bumper sticker advertising undermines the dignity of the legal profession. b) Yes, because it does not include the name and office address of at least one lawyer or law firm responsible for its content. c) No, because bumper stickers do not constitute advertising under the Model Rules of Professional Conduct. d) No, because the information on the bumper stickers was truthful and accurate.

B

270. Attorney is a friend of Blogger, who operates a successful local blog about events, news, and gossip about their city. Blogger includes posts about local judges and well-known lawyers. Attorney and Blogger have a secret agreement. Attorney passes along tips to Blogger in the form of courthouse gossip regarding local lawyers and judges, or even about big cases. Blogger, in turn, covers Attorney's successful cases in glowing terms and recommends Attorney to his readers. Blogger's website is so successful that he earns approximately $50,000 in advertising revenue from the site. Attorney occasionally purchases a small, inexpensive advertisement on the site, which merely gives Attorney's name, address, phone number, and areas of practice. Could Attorney be subject to discipline? a) Yes, because Attorney provides gossip that undermines the dignity of the profession b) Yes, because Attorney provides something of value to Blogger in exchange for recommending his services. c) No, because Attorney pays a reasonable sum for his advertisements on the blog d) No, because it is impossible to quantify the value of the information that Attorney provides to Blogger in exchange for favorable reviews of Attorney's legal victories

B

272. Which of the following most accurately describes the Model Rules' treatment of in-person solicitations of prospective clients by lawyers and live telephone solicitations by lawyers? a) The Rules treat in-person solicitations as much more serious and likely to result in abuse than telephone solicitations. b) The Rules treat live telephone solicitations the same as in-person solicitations. c) The Rules treat live telephone solicitations the same as email solicitations. d) The Rules treat live telephone solicitations the same as a billboard, an Internet banner advertisement, a website, or a television commercial.

B

174. As mentioned in class, what is currently the practice area generating the largest number of Law Professional Liability claims? a) Wills & Trusts b) Immigration c) Real estate d) Criminal Law

C

179. Attorney works in a law firm with other attorneys. Attorney is handling a case for Client, and Client instructs Attorney not to share any of the case details or any of Client's personal details or information with other attorneys in the firm. While preparing for a hearing, Attorney goes to another attorney in the firm and discusses the case. Attorney advises the attorney with whom he discusses the case that Client would prefer that other attorneys in the firm not be involved in the case. Attorney uses the information and guidance provided by the other attorney to successful win the hearing. Are Attorney's actions proper? a) Yes, because attorneys are authorized to make disclosures when reasonably necessary or when it is in the client's best interest, even if the client instructs the attorney otherwise. b) Yes, because an attorney may discuss with other members of the firm at which he is employed any issues regarding a case that is being handled by that firm. c) No, because attorneys shall not discuss a client's case with other attorneys of the firm handling the client's case if instructed by a client not to do so. d) No, because an attorney shall not discuss a client's case with anyone, including other attorneys of the firm that is handling the case, unless specifically authorized to do so by the client. Rule 1.6 Cmt. 5

C

182. Attorney represents Mr. Sharp in several contract dispute cases regarding services for which Mr. Sharp was paid but which were not provided. The local District Attorney's office recently indicted Mr. Sharp on offenses related to a financial investments fraud run by Mr. Sharp. Mr. Sharp retains Attorney for representation for his criminal case as well. During a meeting that Attorney had with Mr. Sharp to discuss his criminal case, Mr. Sharp tells the attorney in confidence about some financial transactions he made recently that are the cause of the criminal charges. Specifically, Mr. Sharp advises that he solicited and accepted money from Ms. Mayfield, a 75-year-old widow, for a financial investment company that did not exist. Mr. Sharp explained that his construction business ran into financial troubles and he used this scheme to obtain money to pay his construction company's expenses. Mr. Sharp explained that he would not do this again. What may Attorney do in this situation? a) He may disclose the information because it is fraud committed that resulted in substantial injury to the financial interests of another. b) He can disclose because an attorney may make any disclosures that relate to anticipated fraud or crime by his client. c) He cannot disclose the information because the client retained the attorney to represent him on the matter and the details provided are confidential. d) The attorney may not disclose because disclosure of the financial scheme is not reasonably certain to prevent death or substantial bodily injury. Rule 1.6

C

184. Client hired Attorney to represent him in a criminal matter. Client faces charges for abducting a young girl from her home three months ago. Attorney learns from Client that Client indeed abducted the girl, that the girl is probably still alive and hidden in a secluded location, and that the child was left alone, locked in a car trunk, with some food and water two weeks ago when police arrested Client. Client refuses to disclose the location of the girl to authorities. There is a chance that someone may happen upon the car where the girl is trapped and help her. Does Attorney have a duty to disclose the location of the girl to authorities or the parents in order to save the girl's life? (Answer according to the Model Rules of Professional Conduct, NOT the Texas rules governing this situation). a) Yes, because the disclosure is reasonably necessary to prevent reasonably certain death or substantial bodily harm. b) Yes, but only if the lawyer discloses the location as an anonymous tip, and is reasonably certain that the discovery of the girl will not be prejudicial to the client's case. c) No, the Rules of Professional Conduct do not require the lawyer to reveal the client's misconduct or the girl's location. d) No because the girl could survive indefinitely in the trunk of the car until she finds a way to escape or someone happens to find her. Rule 1.6(b)(2) & Cmt. 7 & 17

C

185. Attorney is a partner in a seven-lawyer firm. Client retained Attorney to handle his workers' compensation matter. Attorney did not discuss with Client that he would normally disclose to the other partners in the firm some of the details about his cases and clients. At the weekly meeting of the partners, as everyone discussed their pending cases, Attorney explained Client's case and solicited input from the partners. One partner had an ingenious suggestion that would have been very helpful to Client's case. Attorney mentioned to Client in their next phone call that one of his partners had made a brilliant suggestion that could turn the case in Client's favor. Client was upset that Attorney had discussed the case with anyone else. Is Client correct that Attorney should not have discussed the case with the others at the firm? a) Yes, because a lawyer has a duty to preserve the confidentiality of client information, even from other lawyers in his law firm, unless the client expressly authorizes disclosure. b) Yes, because the disclosure automatically created potential conflicts of interest for the other lawyers in the firm who might represent clients with adverse interests to this client. c) No, because lawyers in a firm may, in the course of the firm's practice, disclose to each other information relating to a client of the firm, unless the client has instructed that particular information be confined to specified lawyers. d) No, because in this case the disclosure yielded a brilliant suggestion from another lawyer that was very helpful to the case, which offsets any potential injury to the client from thme disclosure. Rule 1.6 Cmt. 5

C

194. Client hired Attorney to represent him in a divorce proceeding and custody battle over Client's children. At one point, Client explains to Attorney that if he loses custody of the children to his estranged spouse, he has detailed plans to murder the spouse and make it look like a suicide, so that he can regain custody of his children. Attorney believes that Client could plausibly carry out this plan successfully, and Attorney is reasonably certain that Client will indeed lose custody of the children in the current proceeding. May Attorney immediately warn the estranged spouse, the tribunal, or the police about Client's plan? a) Yes, because a lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary to prevent reasonably certain death or substantial bodily harm. b) Yes, because Client's plan falls outside the scope of Attorney's representation in the current proceeding, and therefore the information does not come under the duty to protect client confidentiality. c) No, because whenever practicable, the lawyer should first seek to persuade the client to take suitable action to obviate the need for disclosure. d) No, because the far-fetched plan is still contingent on losing custody of the children, and therefore it does not constitute reasonably certain death or bodily injury, and thus fails to trigger the exception to the duty of confidentiality. Rule 1.6 Cmt. 16

C

197. Attorney represents a chemical manufacturer. A regional vice-president recently informed Attorney that there was an unfortunate chemical spill that released hundreds of gallons of toxic substances into a stream that ran into the town's nearby water supply reservoir. The spill occurred because a newly hired employee turned the wrong valve during a training exercise at the plant. Attorney explained that the corporation could face civil liability in either tort actions or regulatory actions by governmental entities at the state and federal levels, and urged the vice-president to report the spill immediately, if it was still unreported. The vice-president replied that they could not afford the negative publicity and the impact it would have on their share prices. He reminded Attorney that the upper management of the company received most of its compensation in the form of preferred stocks and options, so it seemed unfair to penalize them through a loss in share price, when the fault was some recently hired manual laborer. Attorney explained that he would have to withdraw from representation and would report the incident to the necessary public health officials, which he did, despite the vice-president insisting that this was confidential information. Is Attorney subject to discipline? a) Yes, because the company's conduct may not have been criminal and did not yet result in anyone's death or serious bodily injury. b) Yes, because the Attorney disclosed confidential information and betrayed his duty of loyalty to the client. c) No, because the lawyer believed the company's disposal of waste products was likely to cause serious injury to others. d) No, because Attorney believed that the bad publicity and decrease in share price would be even worse if it emerged that there was an attempted cover-up after the chemical spill. Rule 1.6(b)(1)

C

207. Attorney could not find a full-time job after law school, so instead he works on a contract basis for other firms. Attorney also signs up with a legal temp-work agency, a company owned by nonlawyers that places lawyers in temporary assignments at law firms that need an extra associate on a short-term basis. Law firms contact the legal temp-work agency when they need lawyers for a special project or assignment, and the agency sends them several resumes from which to choose the temporary associates they want. Through this temp-work agency, Attorney receives a three-month assignment at Big Firm conducting document review as part of litigation discovery. The firm pays Attorney $75 per hour, and pays the temp-work agency a placement fee of 7% on whatever Attorney earns. Big Firm, in turn, passes the Attorney's $100/hour fees and the 7% placement fee through to its clients as an item on the client's bill. Is this arrangement proper? a) It is proper for Big Firm to hire Attorney on an hourly, short-term contract basis and to pass his fees through to the client, but it is improper for Big Firm to pay the temp-work agency a percentage, as this constitutes sharing legal fees with the nonlawyers who own the temp-work agency. b) It is proper for Big Firm to pay Attorney and the temp-work agency, but it is improper for Big Firm to pass the costs through to their clients. c) It is proper for Big Firm to pay the placement fee to the agency, to pass the fees through to the clients, and to pay Attorney's hourly rate out of the fees it receives from clients. d) It is proper for Big Firm to pay a temp-work agency and to pass these costs through to the clients, but it is improper for Attorney to work on a case on an hourly-fee basis without becoming an associate at Big Firm. [see ABA Formal Opinion 88-356]

C

208. After a long, distinguished career as a solo practitioner in a major city, an elderly attorney agrees to join a newer law firm on the condition that the firm would pay $1000 per month after the attorney's death to his sister, who is 74 years old, until her death. The attorney's sister is not a lawyer. The firm agrees to this arrangement, in addition to making the attorney a partner with a 15% share in the firm. Is this arrangement proper? a) No, because the sister is not a lawyer and therefore cannot share in the legal fees received by the firm. b) No, because payments that continue until the sister's death could go on indefinitely, and this goes beyond the Model Rules' stipulation of "a reasonable period of time." c) Yes, because it is the payment of money over a reasonable period of time after the lawyer's death to a specified person. d) Yes, because the Contracts Clause of the Constitution guarantees the freedom of contract, so lawyers and firms can make whatever compensation arrangements they want.

C

209. Attorney agrees to buy the successful law firm of a fellow attorney who recently succumbed to terminal cancer. The sale includes the office building, the library and furnishings, and the good will of the firm, and conforms to the provisions of Rule 1.7. The purchasing attorney pays $100,000, the agreed-upon purchase price, to the executor of the deceased attorney's estate, but the executor is not a lawyer. The funds for the purchase came from the contingent fees in a recent personal injury case won by the purchasing attorney. Was this transaction improper? a) Yes, because the lawyer is sharing legal fees with a nonlawyer, the executor. b) Yes, because the funds for the purchase came from a contingent-fee case. c) No, because a lawyer purchasing the firm of a deceased lawyer may pay the executor the agreed-upon purchase price. d) No, because even a nonlawyer executor of a firm functions temporarily in the role of a lawyer for purposes of the Model Rules.

C

210. Three law partners have decided to incorporate their firm instead of continuing as a partnership, as their malpractice insurer has offered them a lower rate on their premiums if their incorporate and thereby reduce some of their joint liability. They also want to make a clearer track for associates to become shareholders after reaching certain performance benchmarks. The articles of incorporation provide that when a shareholder dies, a fiduciary representative of the estate may hold stock in the corporation for a reasonable time during administration of the estate before transferring it to the heirs. Which of the following may the partners properly do as they incorporate? a) They may incorporate their law practice and convey an interest in the corporation to their heirs, such as spouses or children. b) They may stipulate that the corporation will hold all funds in a single operating account, and thereby avoid holding client funds in separate IOLTA accounts. c) They may provide, as stated, that when a shareholder dies, a fiduciary representative of the estate may hold stock in the corporation for a reasonable time during administration of the estate before cashing out the shares and transferring the funds to the heirs. d) They may not have a plan whereby associates acquire shares merely by working at the firm for a certain number of years and bringing in a certain number of clients. Rule 5.4(d)(1)

C

211. Holy Trinity Church retains Attorney to challenge a new zoning regulation that would prohibit the church from constructing a new, expanded sanctuary on its property, attached to the existing church. The church cannot afford to pay Attorney, and it is seeking only a declaratory judgment (that the regulation is invalid) rather than money damages. Attorney agrees to take the case and then split any court-awarded legal fees with the church if they prevail. They win a favorable judgment; the court declares the regulation unconstitutional and awards legal fees, which Attorney shares with the church. Is the fee sharing proper? a) No, because a lawyer or law firm shall not share legal fees with a nonlawyer. b) No, because the award of legal fees to a church violates the separation of church and state, and a lawyer is under oath to uphold the Constitution. c) Yes, because a lawyer may share court-awarded legal fees with a nonprofit organization that retains the lawyer in a matter. d) Yes, as long as the lawyer takes only 30% of the legal fees, and does not claim a tax deduction for the 70% shared with the church.

C

212. Attorney is a licensed lawyer in a New England state, but has an office and represents clients exclusively in a southern state. Attorney confines her practice to immigration law, representing foreign-born clients in immigration hearings. A relevant federal statute permits nonlawyers to appear as representatives for immigrants when they appear before the immigration agency. Many of Attorney's clients have applied for a spousal visa after marrying an American citizen, and some clients had a Notary Public from their home country or an un-ordained lay minister from their home church conduct their wedding ceremony. In addition, some were previously married and divorced in their home country, where such transactions are informal and have no official documentation. There is often some question about whether the marriage is valid under local state law, which is a prerequisite for obtaining certain types of visas. Which of the following is correct? a) Attorney's conduct is proper, because she is merely providing services authorized by federal law, which preempts state licensing requirements. b) Attorney's conduct is proper because she has specialized in immigration law, which is entirely federal and involves no questions of state law. c) Attorney is probably subject to discipline for the unauthorized practice of law in this southern state. d) Attorney's conduct is improper if she does not file a pro hac vice appearance in each case.

C

213. A husband and wife are both attorneys in Puerto Rico, though they attended law school in Florida. They have practiced in Puerto Rico for ten years and are duly admitted to the bar there. Last year, they moved to Florida, where the wife took the state bar exam and gained admission to the Florida bar. They have now opened a law office in Florida with both of their names listed on the firm letterhead, followed by the phrase "Attorneys at Law." The husband confines his practice exclusively to Puerto Rican clients who are living in Florida or are visiting there; the wife handles all other legal matters. It is proper for them to use such letterhead? a) Yes, because Puerto Ricans are U.S. Citizens, and they both attended an American law school. b) Yes, because the husband confines his practice to Puerto Rican immigrants and visitors, whom he would be able to represent if they were back in Puerto Rico. c) No, because the letterhead reveals that the wife is aiding her husband in the unauthorized practice of law. d) No, because identifying themselves as law firm partners is misleading, and does not apprise readers to the fact that they are actually married.

C

225. Which of the following is one of the listed "law-related services" found in the official Comment to Rule 5.7, related to lawyers providing such services? a) Photocopying the transcripts of depositions and hearings b) Preparing a client to testify before a government agency c) Environmental consulting d) Providing clients with a complete accounting of the use of retainer funds during the course of representation

C

232. An attorney agreed to represent an applicant to the state bar - a recent law school graduate - in her hearing before the state bar admissions board, which had tentatively denied her application for making false statements on her bar application. The board formally requests the applicant and her attorney make full disclosures about the events in question to help resolve the matter. The client (bar applicant) explains the entire situation to her attorney, including some self-incriminatory information - it turned out that the applicant's misbehavior had been much more serious than the board was aware. The attorney did not disclose this new information, which would have made it much clearer to the board that the applicant lacked the character and fitness to practice law. Could the attorney be subject to discipline for this action? a) Yes, because a lawyer in connection with a bar admission application or in connection with a disciplinary matter, shall not fail to disclose a fact necessary to correct a misapprehension known by the person to have arisen in the matter, or knowingly fail to respond to a lawful demand for information from an admissions or disciplinary authority. b) Yes, because the lawyer knows that the applicant actually lacks the requisite integrity to be a lawyer. c) No, because a lawyer representing an applicant for admission to the bar, or representing a lawyer who is the subject of a disciplinary inquiry or proceeding, is governed by the rules applicable to the client-lawyer relationship, including the duty of confidentiality. d) No, because the state bar cannot ask other attorneys to disclose unfavorable information about third party applicants. Rule 8.1 Cmt. 3

C

234. An attorney faced disciplinary action over a client grievance. The disciplinary tribunal asked the attorney several probing questions about her handling of client funds. The attorney actually used some client funds to pay off a gambling debt, so she is less worried about a temporary suspension of her law license than about potential criminal charges for embezzlement. The attorney, therefore, invokes her Fifth Amendment privilege against self-incrimination and refuses to answer the questions. The disciplinary tribunal then determines that it lacks substantial evidence that the attorney mishandled client funds, but commences disciplinary proceedings over the attorney's refusal to answer some of its questions. Could the attorney be subject to discipline for refusing to answer the questions in this scenario? a) Yes, because a lawyer must not knowingly fail to respond to a lawful demand for information from an admissions or disciplinary authority. b) Yes, because the board found no evidence that the attorney had mishandled client funds, and the attorney had an affirmative duty to clarify any misunderstanding on the part of the admissions or disciplinary authority of which the person involved becomes aware. c) No, because the rules requiring attorney candor to disciplinary authorities are subject to the provisions of the Fifth Amendment of the United States Constitution and corresponding provisions of state constitutions. d) No, because the committee did not read the attorney her Miranda rights, according to this fact scenario. Rule 8.1 Cmt. 2

C

238. A would-be judge asked his former law school classmate, a practicing lawyer, to write a recommendation letter for him as part of his application and vetting process for a judicial appointment. The attorney obliged and wrote a glowing recommendation, entirely favorable, even though he personally knew that his friend (the one seeking to be a judge) was an alcoholic. Was is proper for the attorney to write such a letter? a) Yes, as long as the attorney believes his friend will be a fair judge. b) Yes, because the attorney has no duty to disclose confidential information he knows about a friend. c) No, because assessments by lawyers are relied on in evaluating the professional or personal fitness of persons being considered for appointment to judicial office, so expressing honest and candid opinions on such matters contributes to improving the administration of justice. d) No, because an attorney should not write a recommendation letter for a prospective judge if there is any chance that the attorney will someday appear in that judge's court representing a client. Rule 8.2 Cmt. 1

C

245. An attorney was an immigrant from a country that permits polygamy - men can have up to four wives. The attorney had two wives, which his religion permitted, as did the laws of his homeland. Nevertheless, his multiple marriages constituted bigamy in the American jurisdiction where he practiced law, and eventually a court convicted him of bigamy and imposed a fine. Could the attorney be subject to professional discipline for committing this illegal act? a) Yes, because it is professional misconduct for a lawyer to commit a criminal act that reflects adversely on the lawyer's honesty. b) Yes, because having multiple wives significantly increases the opportunities to have conflicts of interest with various clients. c) No, because offenses concerning personal morality, such as bigamy and comparable offenses, have no specific connection to fitness for the practice of law. d) No, because his bigamy does not reflect negatively on his character or morality if his religion permits it. Rule 8.4 Cmt. 2

C

250. An attorney had a license to practice law in two jurisdictions - his home state where he lived and had his main office, and a neighboring state where he represented several clients each year. The attorney committed serious professional misconduct in his home state, and received a public reprimand from the state disciplinary authorities. All of the conduct took place in his home state, the client resided in the state, and the representation took place entirely within his home state. The lawyer's conduct would have violated the rules in either of the jurisdictions where he had a license to practice law, because it involved commingling client funds with his own money, and the states had nearly identical rules concerning this activity. After the attorney received a public reprimand in his home state, where the misconduct occurred, the state bar disciplinary authority in the neighboring state (where he also practiced) then commenced disciplinary proceedings against him as well. Ultimately, the neighboring state bar suspended his license for six months in that state, a much more severe sanction than the public reprimand he received in his home state, where the misconduct actually occurred. The attorney claims that the neighboring state bar has no jurisdiction over conduct that occurred entirely outside of the state. He also objects that the second punishment raises double jeopardy concerns. Is the attorney correct? a) Yes, because even in cases where a second state can administer discipline over the same conduct, double jeopardy rules prevent the second tribunal from imposing a more severe sanction than the first tribunal already imposed on the lawyer. b) Yes, because a lawyer cannot be subject to the disciplinary authority of two jurisdictions for the same conduct if it occurred entirely within one state. c) No, because a lawyer may be subject to the disciplinary authority of two jurisdictions for the same conduct, and may receive different sanctions in each state. d) No, because choice of law rules require that each state impose the same sanction. Rule 8.5(a)

C

252. An attorney was representing a client in a probate matter. Nearly all of the representation occurred within the attorney's home state, where the client also lived. One asset of the probated estate, however, was an account receivable from a debtor in a neighboring state; the matter was already the subject of pending contract litigation in that state. The attorney filed a pro hac vice appearance in the neighboring state, and traveled there to represent his client in the contract matter, which was ancillary to the probate matter in his home state. During the proceedings, the lawyer committed an act that constituted a violation of the ethical rules in his home state, but not in the neighboring state where he was appearing in a proceeding; the states had different rules in this regard. Could the attorney be subject to discipline in his home state for violating its rules before a tribunal in the neighboring state? a) Yes, because when an attorney takes an oath to uphold the rules of a jurisdiction in order to obtain admission to the bar, he or she does so without regard to the lawyer's future geographic location when a violation of the rules occur. b) Yes, because otherwise, lawyers could simply drive across state lines and violate all the rules of professional conduct without repercussions from the state bar where the lawyer practices. c) No, because whenever a lawyer's conduct relates to a proceeding pending before a tribunal, the lawyer shall be subject only to the rules of the jurisdiction in which the tribunal sits. d) No, because a lawyer cannot be subject to discipline in more than one jurisdiction for the same act or incident. Rule 8.5(b)(1)

C

262. Attorney has advertisement placards on the sides of public transportation buses in his city. The signs read, "If your home suffered storm damage this year, you are entitled to full recovery! Call us now!" Attorney represents clients in claims against their homeowner insurance companies, who often deny claims for storm damage, at least initially. Attorney often wins at least a small settlement, if not full recovery costs, for his clients. Is this advertisement proper? a) Yes, because Attorney does, in fact, represent clients who have suffered storm damage in claims against their insurers. b) Yes, because this is not an in-person solicitation, so there is little risk of unsophisticated potential clients misunderstanding the claims in the advertisement. c) No, because it contains a material misrepresentation of fact or law, or omits a fact necessary to make the statement considered as a whole not materially misleading. d) No, because the advertisement was placed on a public transportation vehicle, which tacitly suggests an endorsement of the municipal government, as opposed to a privately-owned billboard on private property near a roadside.

C

263. Attorney grew up in a family that spoke the Maori language in the home. His law practice advertisements prominently state that he speaks Maori and can represent Maori-speaking clients. No Maori speakers live within 2000 miles of where Attorney practices. Is it improper for Attorney to include this language ability in his advertisements? a) Yes, because it creates a misperception that Attorney is unusually intelligent. b) Yes, because Maori speakers in far-away jurisdictions might misunderstand and believe that Attorney is admitted in their jurisdiction as well. c) No, because the statement is true. d) No, because Attorney has Free Speech rights to make any claim he wants in his public advertisements.

C

269. Attorney made an informal agreement with Physician that they would refer clients to each other when the situation seemed appropriate. They did not pay each other any money for referrals, but the relationship was explicitly reciprocal - Attorney referred patients who needed medical examinations to Physician, and when Physician had patients needing legal representation, he referred them to Attorney. The relationship was explicitly exclusive - each agreed not to refer clients to others - but it happened that neither had similar reciprocal relationships with anyone else anyway. They always inform their clients when making such referrals that they have a reciprocal relationship. Is such an arrangement proper? a) Yes, a lawyer may agree to refer clients to another lawyer or a nonlawyer professional, in return for the undertaking of that person to refer clients or customers to the lawyer, as long as clients are aware of the existence and nature of the arrangement. b) Yes, because the agreement is informal, not a written contract. c) No, because a lawyer may not agree to refer clients to another lawyer or a nonlawyer professional, in return for the undertaking of that person to refer clients or customers to the lawyer, if the relationship is exclusive. d) No, because the relationship described here is de facto exclusive, even if they have not agreed specifically to keep the relationship exclusive.

C

180. Client hired lawyer to defend him in a criminal matter regarding the murder of Client's girlfriend. During Attorney's interviews and investigation for this case, he learns that Client has also been committing identity theft and credit card fraud, obtaining credit cards in the names of other individuals, and running up charges on the cards without paying the bills, so that the individuals whose names are on the cards will have to pay instead. Attorney urges Client to stop this practice, and Client merely laughs at him. Attorney continues his representation of Client and wins an acquittal on the murder charge. The representation is now over. May Attorney warn some of the individuals in whose names Client has obtained credit cards, according to the Model Rules of Professional Conduct? ((a) Yes, because the lawyer's representation of client has ended, and the information he wants to disclose is unrelated to the matter for which he represented the client. b) Yes, because a lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary to prevent the client from committing a crime or fraud that is reasonably certain to result in substantial injury to the financial interests or property of another. c) No, because the information he wants to disclose is unrelated to the matter for which he represented the client, and it is not certain that substantial injury to the financial interests of others will occur. d) No, because the exception that permits disclosure to prevent the client from committing a crime or fraud that is reasonably certain to result in substantial injury to the financial interests or property of another applies only when the client has used or is using the lawyer's services in furtherance of the crime or fraud. Rule 1.6(b)(2))

D

181. Client hired Attorney to represent him in a criminal matter. Client faces charges over corporate fraud that he perpetrated two years before when he was the Chief Financial Officer of a large, publicly traded corporation. Attorney learns during his interviews with Client that the fraud will have some far-reaching consequences for investors and another large corporation in the area, consequences that the prosecution and regulatory authorities have overlooked so far. Attorney realizes that if he discloses this information now, he could prevent substantial injury to the financial interests or property of innocent people, and that harm is reasonably certain to result otherwise. According to the Model Rules of Professional Conduct, may Attorney disclose the information in order to prevent this substantial injury to the financial interests of others? a) Yes, because a lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary to prevent substantial injury to the financial interests or property of innocent people. b) Yes, because a lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary when the client has committed a crime or fraud that is reasonably certain to cause substantial financial injury to others. c) No, because a lawyer may never reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary when the client has committed a crime or fraud that is reasonably certain to cause substantial financial injury to others. d) No, because the exception that permits disclosure to prevent substantial financial harm to others does not apply when a person who has committed a crime or fraud thereafter employs a lawyer for representation concerning that offense. Rule 1.6 Cmt. 8

D

187. Attorney represented Client, who was suing his former employer over wrongful discharge. The former employer claimed that the termination was necessary because the job involved high-level security clearance, and the employer learned that Client had a prior felony conviction that Client had not disclosed on his job application. The phrasing of the question on the job application was confusing and a subject of dispute in the case. The former employer also claimed that they would have needed to terminate Client regardless of whether he was untruthful on his job application, because his prior conviction disqualified him from the necessary security clearance. During a preliminary hearing, the judge asked Attorney if it was true that Client had a prior conviction, and if so, what was the crime. Attorney conceded that Client had a grand larceny conviction in that jurisdiction and had served a two-year jail sentence, which was a matter of public record. Attorney then explained that their theory of the case was that the employer never clearly asked about prior convictions, and that the conviction actually did not disqualify client from the necessary security clearance for his position, but rather than this was a mere pretext for a racially discriminatory termination. Did Attorney violate his duty of confidentiality to Client by making this admission? a) Yes, unless the client expressly authorized the disclosure, prior convictions are confidential information that a lawyer should protect. b) Yes, because a lawyer has no duty to answer a direct question from a tribunal if the answer could constitute a fatal admission in a case. c) No, because the duty of confidentiality does not apply to disclosures made during a colloquy between a judge and a lawyer during a preliminary hearing. d) No, because a lawyer may be impliedly authorized to admit a fact that cannot properly be disputed or to make a disclosure that facilitates a satisfactory conclusion to a matter. Rule 1.6 Cmt. 5

D

192. Ms. Mathis hired Attorney to represent her in a burglary charge. During a meeting with Attorney and with the understanding that any information would be confidential, Ms. Mathis advised Attorney about a murder she committed in which another person was on trial. Eventually, Attorney was able to negotiate a plea deal for Ms. Mathis on her burglary charge. Shortly after the plea deal was reached and Attorney's representation of Ms. Mathis concluded, Attorney discovered that the person who was on trial for the murder to which Ms. Mathis admitted was found guilty by a jury and sentenced to life in prison without the possibility of parole. Attorney contacted the District Attorney's office that handled the murder trial and left an anonymous tip stating that Ms. Mathis confessed to committing the murder. Was Attorney's conduct proper? a) Yes, because attorneys have a duty to reveal information, even if confidential, that relates to a crime or fraud committed by his client. b) Yes, because attorneys no longer have a duty not to disclose information relating to the representation of a client once the attorney's representation of that client terminates. c) No, because an attorney must not leave such tips anonymously, but must make themselves available to be questioned and for testifying if making any tip regarding a crime or fraud committed by one of his clients. d) No, because attorneys cannot disclose client representation information and the death had already occurred, therefore, the disclosure would not prevent certain death or substantial bodily injury.

D

195. Attorney represents the family members of one of several people who died when a section of a sports arena collapsed. Attorney sent an investigator to talk to the property management company that operated the arena, and that conversation led the investigator to a former employee of the management company, who explained that he had lost his job for insisting that the property managers address some structural problems and maintenance issues in the part of the arena that eventually collapsed. The disgruntled former employee gave the investigator copies of reports he had submitted to his employer, the property managers. Later, the lawyers representing the property management company and the sports arena owners learned that this investigator had talked to their former employee, and asked the court to disqualify Attorney from representing the plaintiffs in the case. They based their motion for disqualification on the ex parte communication with their former employee and taking receipt of a copy of the internal reports about the arena's maintenance problems. Under the Rules of Professional Conduct, should the court grant the motion to disqualify Attorney? a) Yes, because the former employee appears to be unrepresented and could become a party to the litigation. b) Yes, because the reports that the former employee had submitted to the property managers were privileged and confidential. c) No, because the fact that there are co-defendants negates any claim of privilege and therefore nullifies the motion for disqualification. d) No, because the former employee is no longer working for the property management company, and the reports are not privileged.

D

199. Attorney agreed to represent Client, a foreign national living in the United States. Client explained to Attorney that he was a business owner who owned and operated several small grocery stores catering to immigrants from Client's home country. Nothing seemed suspicious to Attorney until they were about to consummate a deal on the purchase of a small parcel of commercial real estate, and Client insisted on paying with cash, arriving at the closing with duffle bags containing bundles of twenty dollar bills. The parties completed the sale and title transferred to one of Client's businesses, 7777777 LLC. Attorney was then suspicious that Client might somehow be laundering money through such transactions. Would it be proper for Attorney to inform the FBI about the transaction without Client's consent? a) Yes, a lawyer functions as a gatekeeper to the financial system and has an ethical duty to report any suspicion of money laundering. b) Yes, a lawyer may disclose confidential information to prevent the client from committing a crime or fraud that the lawyer suspects might result in substantial injury to the financial interests or property of another and in furtherance of which the client has used or is using the lawyer's services. c) No, because there is no indication here that the transaction could lead to reasonably certain death or serious bodily injury. d) No, because the Rules of Professional Conduct do not mandate that a lawyer perform a gatekeeper role in this context, and mandatory reporting of suspicion about a client is in conflict with the duty of confidentiality. ABA Formal Op. 13-463

D

214. Attorney has a license to practice in the state in which his firm operates. He hires as an associate a law school friend who does not have a license in the state, but holds a license to practice in a neighboring state with similar laws and precedents. Attorney gives the associate attorney only simple cases that require mostly scrivener's work (paperwork) for the clients, but he allows the associate to interview clients and to prepare and file client forms and paperwork. About once a week, Attorney checks with the associate and asks how his work is going, and the associate always says everything is fine, and occasionally asks questions about local laws or rules. Any clients whose matters seem to require actual litigation go to Attorney; the associate handles only non-litigation forms and filings for clients. Is Attorney subject to discipline for this arrangement? a) No, because the associate handles only non-litigation matters like forms and filings for the clients. b) No, because the associate is a duly licensed attorney in a neighboring state with similar laws. c) Yes, because it is inappropriate for an attorney to hire a friend from law school as an associate, rather than interviewing and hiring the most qualified available candidate. d) Yes, because he is assisting another person in the unlicensed practice of law in his jurisdiction.

D

215. A nonlawyer social worker contacts Attorney asking for advice about how to help poor tenants in the neighborhood in disputes with landlords over housing code violations and unreturned security deposits. The social worker also needs guidance about how to appeal an adverse decision from a welfare agency against one of her constituents. Attorney provides extensive advice on specific procedures the tenants can follow to have a court hold their rent in escrow until the landlords remedy the housing code violations, and explains how to file claims for unreturned security deposits plus treble damages. Attorney does none of the legal work, but explains to the social worker exactly what to do, and is available to answer follow-up questions by the social worker about how to complete the relevant legal forms and documents. Attorney coaches the social worker on how to represent her constituent at an administrative hearing as a nonlawyer representative. The landlord even meets with one of the social worker's constituents and explains how to proceed as a pro se defendant against a landlord in an eviction action. Several landlords trace the chain of excellent advice back to Attorney and file a grievance with the state bar, accusing Attorney of assisting others (especially the social worker) in practicing law without a license. Is Attorney subject to discipline? a) No, because none of the actions Attorney advised are sufficiently law-related. b) Yes, because all the actions Attorney advised were essentially the practice of law by nonlawyers. c) Attorney is not subject to discipline for advising the social worker, but he is subject to discipline for actually meeting with a pro se defendant and giving legal advice about how to handle her own case. d) No, because lawyers may provide professional advice and instruction to nonlawyers whose employment requires knowledge of the law, including social workers.

D

216. Attorney obtained a license to practice law in the state where she attended law school. After a few years, Attorney took a job in a neighboring state, moved there, and obtained a license to practice law in her new state. She kept her original license, in her former state, but went on inactive status there in order to avoid the burdensome annual bar membership fees in a state where she no longer practiced. Eventually, her new firm loses its anchor clients and recommends that Attorney drum up some new business among her former clients. Attorney sends letters to all of her former clients in her former state, offering to represent them in any new legal matters they have, or in updating wills or contracts that she previously did for them. She travels about once per week to her home state and meets with clients in a library study room at the law school she attended. A few of her former clients refer her to friends or relatives who become new clients, and Attorney's new employer is thrilled. Which of the following is true? a) Attorney is subject to discipline for practicing law in her home state while on inactive status, but her supervising lawyer is not subject to discipline because she was admitted in that state at the time he hired her. b) Neither Attorney nor her supervising lawyer would be subject to discipline, because she merely went on inactive status in the other state, but she still holds her license there. c) Only the supervising lawyer is subject to discipline, because he encouraged his subordinate to solicit out-of-state clients in a state where he is unlicensed, but Attorney can still practice law there. d) Both Attorney and her supervising lawyer are subject to discipline because she is on inactive status in her home state, but is soliciting clients and handling their matters there regularly.

D

217. Client retains Attorney, who has represented Client in the past, to represent him in litigation in another state, where Attorney is unlicensed. The matter requires some knowledge of the law of the state where the trial will occur. Attorney files a pro hac vice appearance in the matter, which the local court accepts, and begins preparing for trial there. Attorney and Client never discuss the particulars of filing a pro hac vice appearance; nor did they discuss why it would be necessary. Client never asked if Attorney could practice law in the other jurisdiction, and Attorney never explained the licensing requirement and that he would need permission from the court there in order to handle the case. Attorney prevailed in the matter on behalf of the client, kept his agreed-upon contingent fee, and gave the client the remaining proceeds and unused retainer funds. Which of the following is true? a) Attorney is subject to discipline for accepting a contingent fee in a proceeding in another state where Attorney does not have a license to practice law. b) Attorney's conduct was proper, as the court accepted the pro hac vice appearance, and it made no difference to the Client whether the Attorney had a license to practice there on an ongoing basis, or could appear only on a pro hac vice basis. c) Attorney's conduct was proper, as long as Attorney can acquire the necessary knowledge of local laws with a reasonable amount of study. d) It was improper for Attorney to fail to disclose to Client that he was unlicensed in the other state and would need to file a pro hac vice appearance, especially given that the matter required some knowledge of local laws.

D

218. Attorney is a joint-owner of a collection agency. Whenever the agency's initial efforts to collect prove unsuccessful, the staff at the agency sends the delinquent debtor a demand letter on Attorney's law firm letterhead, threatening to commence litigation if the matter is not resolved within 30 days. Attorney authorized the staff at the agency to send these demand letters, but Attorney is too busy to review all the letters himself. The collection agency staff signs the letters on behalf of Attorney's firm. Will Attorney be subject to discipline for authorizing these letters? a) Yes, because the letter contains a specific threat of litigation and the facts do not specify whether Attorney will actually follow through and file any claims in court. b) No, because the collection agency has other owners besides Attorney, so it is not necessarily his responsibility to supervise the employees there. c) No, because the staff at the collection agency are acting on Attorney's behalf with his explicit authorization d) Yes, because Attorney is essentially facilitating the collection agency in the unauthorized practice of law.

D

219. Attorney hired a second-year law student as a clerk. The law student is not licensed. Attorney has the law student perform a variety of tasks. Which of the following tasks, if performed by the law student, would mean that Attorney is subject to discipline? a) Conducting online legal research and writing research memoranda. b) Drafting a customized retainer agreement for Attorney to use with clients pursuing claims against a government agency c) Interviewing accident witnesses and potential character witnesses, and asking them to certify the accuracy of the student's written notes. d) Reaching settlement agreements with insurance companies before Attorney actually files any lawsuit in the matter. Rule 5.5(b) & Cmt 2

D

222. Attorney agrees to join a new firm as one of its shareholders, and to merge his practice with that of the new firm. The shareholder agreement includes a provision that if Attorney retires from the firm and begins collecting the firm's retirement benefits, he cannot practice law with another firm, government entity, or as a solo practitioner. Otherwise, the agreement stipulates, Attorney will forfeit the retirement benefits. The firm is concerned that Attorney will want to represent clients occasionally in his retirement, and may steal some clients from the firm. Is this agreement proper? a) No, because prohibiting a lawyer from practicing after retiring from the firm is a restriction on the right of the lawyer to practice, in violation of the Model Rules. b) No, because it is motivated by a desire to keep Attorney from "poaching" clients, and thus limits the freedom of clients to choose a lawyer. c) Yes, because the Contracts Clause of the U.S. Constitution would prohibit a state from restricting the right for a lawyer to include certain contract provisions in a sale agreement. d) Yes, because the rule against restrictions on the right to practice have an exception for agreements concerning benefits upon retirement.

D

226. Which of the following is NOT in the list of "law-related services" found in the official Comment to Rule 5.7, related to lawyers providing such services? a) Economic analysis b) Social work c) Psychological counseling d) Photocopying the transcripts of depositions and hearings

D

231. An attorney faced a grievance over a client complaint regarding his neglect of the client's matter. The attorney knew that he had never actually agreed to represent the client, but instead had met with the client once, determined that he had a conflict of interest, and he had refused to represent the potential client by both oral and written communication. The client failed to hire another lawyer, and mistakenly (unreasonably) believed that the attorney she had met with was, in fact, representing her. Because he knew the case was without merit, he did not respond to the state bar when the disciplinary authorities requested a formal response from him. Ultimately, the client withdrew her complaint and the disciplinary authorities dismissed the grievance as frivolous. The board then commenced disciplinary proceedings against the attorney for failing to respond to its requests in the case it had dismissed. Was the attorney's refusal to respond permissible in this case? a) Yes, because he knew the case was without merit as he had never agreed to represent the complainant, and the board's determination vindicated him in this regard. b) Yes, because it was improper for the board to commence new proceedings that it based on prior proceedings that it had dismissed for being without merit. c) No, every lawyer has the right to refuse to answer, according to the Fifth Amendment. d) No, because in connection with a disciplinary matter, a lawyer must not knowingly fail to respond to a lawful demand for information from an admissions or disciplinary authority. Rule 8.1(b)

D

240. An attorney works at a large firm and sees almost daily violations or potential violations of the Rules of Professional Conduct, though nearly all of them are minor and cause no harm or injury to the clients, third parties, or anyone else. For example, some lawyers represent co-defendants in cases where conflicts could arise at some point in the litigation, though the cases always seem to settle before any such scenarios develop. In other instances, certain lawyers seem to do minimal research on their cases or sometimes neglect client matters for weeks at a time, but again there has not been a case that was particularly serious. Does the attorney have a duty to report these violations to the state disciplinary authority? a) Yes, because a lawyer who knows of a violation of the Rules that raises serious questions about the other attorney's honesty must report it to the state disciplinary authority. b) Yes, but he must make an anonymous complaint to the state bar. c) No, because he does not have actual knowledge of the violation. d) No, because a lawyer must report only those offenses that a self-regulating profession must vigorously endeavor to prevent; if a lawyer were obliged to report every violation of the Rules, the failure to report any violation would itself be a professional offense. Rule 8.3 Cmt 3

D

242. A trial attorney agreed to represent a client in a high-profile criminal case, and asked at the outset for the client to give the attorney literary rights to write a book or screenplay about the case after its conclusion, in lieu of part of the attorney's normal fees. The client refused, so the attorney represented the client for his normal hourly rate. The evidence in the case was very unfavorable to the client, so the trial ended in a conviction and the client hired a different lawyer to represent him on appeal. At some point, the client told his appellate lawyer that the trial attorney had requested literary rights in the case at the outset of the representation. The appellate lawyer believed this was a violation of the Rules of Professional Conduct, and reported the trial attorney to the state disciplinary authority. When disciplinary proceedings commenced, the trial attorney maintained that he had not actually violated the Rules of Professional conduct, because the client had refused to grant him literary rights related to the case. He maintained that even if he had attempted to violate the Rules, he was unable to achieve his goals and therefore no actual violation occurred. Is the trial attorney correct? a) Yes, because his request merely constituted an attempt to violate the Rules of Professional Conduct, and the Rules do not impose discipline for attempts or inchoate violations. b) Yes, because the client refused to grant him literary rights, so the complaint is not ripe. c) No, because the lawyer should not have requested literary rights at the outset of litigation, but could have waited until it was clear how the trial was going before asking for literary rights. d) No, because under the Rules, even an attempt to violate the Rules of Professional Conduct independently constitutes professional misconduct. Rule 8.4(a)

D

248. Partly out of a desire to impress a potential client during an initial consultation, and partly to reassure a potential client who was visibly upset about her pending criminal charges, the attorney said that he knew the judge in the case. He explained that they were close friends, former law school classmates, and that he could talk to the judge privately and "take care of the problem." Is it permissible for a lawyer to make such a claim to a potential client? a) Yes, as long as the claim is true and the lawyer is not misleading the client or create false expectations. b) Yes, because there is not yet a lawyer-client relationship before the commencement of representation, and the situation here occurred during an initial consultation. c) No, because it is a potential client, and the lawyer is using inappropriate manipulation to try to get business instead of allowing the client to make a fair decision about which lawyer to hire. d) No, because it is professional misconduct for a lawyer to state or imply an ability to influence improperly a judge or to achieve results by means that violate the Rules of Professional Conduct or other law. Rule 8.4(e)

D

266. Attorney represented Client as the plaintiff in a personal injury lawsuit and won a large settlement for Client. Attorney had represented Client on a contingent fee basis, with an agreement at the outset of representation to charge 30% of the total winnings or settlement amount. Client was very good-looking, and Attorney offered at the end of representation to discount his fee by another 10% if Client would pose for a photograph with Attorney for use in printed advertisements, with a quote by Client that truthfully expressed gratitude to Attorney for providing excellent representation in the case. The advertisement did not include any disclaimer explaining that not all of Attorney's clients were as attractive as the client who appeared in the photo. The advertisement also included a promise from Attorney "to provide the same type of excellent legal representation to you [the reader] as well." Was this advertisement proper? a) Yes, because the client and the lawyer both made truthful statements. b) Yes, because the discount offered to the client was reasonable for such an endorsement, as long as the amount was comparable to hiring a model to pose for the photograph instead. c) No, because the lawyer promised implicitly to obtain similar results for other potential clients, without knowing their circumstances or the merits of their claims. d) No, because the lawyer effectively offered money to the client by giving a discount on the earned legal fees in exchange for appearing in the advertisement.

D

271. An internet marketing company, GlomOn, advertises "daily deals" and permits users to receive frequent email notifications of daily deals that might interest them. GlomOn makes arrangements with local businesses to offer goods or services at discount rates to GlomOn subscribers. After a certain number of subscribers purchase a particular daily deal, GlomOn splits the proceeds with the local business, and the purchaser receives a code or electronic voucher with an expiration date. Attorney decides to use GlomOn to find new clients, and offers an online deal for $400 off a client's legal fees if they retain Attorney. Attorney honors these commmitments and resists the urge to raise his rates for GlomOn clients in order to offset the $400 rebate, so his GlomOn advertisements are not misleading in any way. GlomOn costs Attorney more than other internet advertisers. In fact, because GlomOn promotes Attorney's message to a large number of subscribers, and because GlomOn handles the processing of payments from the coupon purchasers, nearly the entire fee paid by GlomOn customers actually goes to GlomOn, not to Attorney. Could Attorney be subject to discipline for marketing his legal services through GlomOn in this way? a) Yes, because this constitute fee sharing with nonlawyers. b) Yes, because it is an unreasonable fee for advertising if it is higher than comparable advertisers and most of the initial fee goes to the advertiser. c) No, because the Model Rules do not regulate internet advertising for lawyers. d) No, because the fee is reasonable, given the services that GlomOn provides to advertisers. ABA Formal Op. 13-465

D