500 MPRE Practice Questions

70. An attorney was an associate in Big Firm for eighteen months from early 2003 to late 2004. Another lawyer at Big Firm had been representing MindGames Inc., a creditor in the bankruptcy proceeding of Education Support International since 1999. The associate left Big Firm in 2004 to work for Regional Cancer Center as general counsel, where the medical director was Dr. House. There is a long, sad story here, but the bottom line is that Education Support International, which was still in bankruptcy, also owed money to Dr. House as a major shareholder of the failed company. In the summer of 2005, the bankruptcy court entered judgment in favor of MindGames Inc. and the shareholders, and MindGames immediately filed for sanctions against (compensation from) the shareholders, including Dr. House. At that point, Dr. House's lawyer withdrew from representation because the case had taken a complicated turn, and Dr. House ask

a) It should reverse the disqualification order because the imputed conflict of interest disappeared when the attorney left Big Firm to work for Regional Cancer Center, given that the attorney knew no confidential information about MindGames.

63. Attorney Ames and Attorney Adams work in the corporate legal office of Risk Company. A federal regulatory agency is investigating of the activities of Risk Company and is deciding whether to initiate criminal charges against Risk Company, some of its employees, or both. The regulatory agency has a long-established practice of not charging corporations for violations that corporate employees commit, where the corporation can show convincingly that it actively sought to discourage the offense in question. Showing this practice would, however, almost guarantee that an employee would face charges individually for the violation. Stevenson is a Risk Company employee upon whose activities the agency has begun to focus. Before Attorney Adams' employment by Risk Company, she had been in private practice and had advised Stevenson with respect to the very conduct that is the subject of the agency investigation. Can Attorney

a) Neither Attorney Ames nor any other member of Company's corporate legal office may represent Company without obtaining Stevenson' informed consent. RESTATEMENT § 123

97. A certain attorney represents a client in a drug trafficking case. The client asks the attorney to deliver a package to a friend of the client. The client tells the attorney that the package contains illegal drugs, but he assures the attorney that he will not reveal who made the delivery if police discover that the transfer occurred. The attorney advises that he will not participate in the transfer. The attorney does not advise the court of the client's request and remains the client's attorney on the drug trafficking case. Are the attorney's actions improper? a) No, because an attorney does not have to decline or withdraw from cases unless the client demands that the attorney engage in illegal conduct. b) No, because the attorney has no obligation to withdraw from a case if he does not engage in illegal activity with or for a client. c) Yes, because an attorney must decline or withdraw from representing a cl

a) No, because an attorney does not have to decline or withdraw from cases unless the client demands that the attorney engage in illegal conduct.

74. An attorney worked as a prosecutor in a local district attorney's office. A month before leaving there to go into private practice, she briefly worked on a case in which applied for the search warrants for the police to try to locate a fugitive suspect. When the police apprehended the fugitive a few weeks later, another prosecutor filed the charges and proceeded with the case. Eventually, the attorney who had left to start her own practice received a referral client who turned out to be the same defendant. When she filed an appearance to represent the defendant, however, the prosecutor filed a motion to have her disqualified, because she had worked on the same case by applying for the warrants. The attorney responded that the defendant was not even in custody yet when she applied for the warrants, that the warrant application was a purely administrative chore, and that the filing of the charges did not occur unti

a) The court will disqualify the attorney from serving as defense counsel because she had participated in the matter personally and in a substantial way as a prosecutor. Registe v. State, 697 S.E.2d 804 (Ga. 2010)

20. A certain attorney represents Conglomerate Corporation in a regulatory compliance matter, drafting documents for Conglomerate to file with the Securities and Exchange Commission and the Federal Trade Commission regarding executive salaries (for the SEC) and product market share (for the FTC's antitrust inquiry). Conglomerate Corporation owns or co-owns numerous subsidiaries and affiliates in unrelated industries. This attorney's retainer agreement limits his representation exclusively to the SEC and FTC regulatory matters. Victim hires the attorney to represent him in a personal injury suit against Subsidiary Corporation, partly owned by Conglomerate Corporation, over a slip and fall accident in Subsidiary's parking lot. Is it proper for the attorney to represent Victim in a tort action against an affiliate or subsidiary of his other client, Conglomerate Corporation? a) Yes, a lawyer who represents a corporatio

a) Yes, a lawyer who represents a corporation or other organization does not, by virtue of that representation, necessarily represent any constituent or affiliated organization, such as a parent or subsidiary, and the lawyer for an organization may provide representation adverse to an affiliate in an unrelated matter.

81. An attorney served for several years as a professional mediator. She decided to change careers and become a litigator, and one of the parties from her final mediation sought to retain her as their attorney in a matter closely related to the subject of the litigation. The other party, which already had legal representation, provided written, informed consent to this arrangement. Under such circumstances, would it be permissible for the former mediator to represent a party in the same matter in which the attorney served as mediator? a) Yes, as it appears all parties to the proceeding gave informed consent, confirmed in writing. b) Yes, a mediator or arbitrator selected as a partisan of a party in a multimember arbitration panel may subsequently represent that party. c) No, a lawyer who served as a mediator may not represent a client in a matter in which the lawyer personally participated. d) No, because the ot

a) Yes, as it appears all parties to the proceeding gave informed consent, confirmed in writing. Rule 1.12(a)

21. The Workers' Union at a manufacturing plant is having annual collective bargaining negotiations with the Management. Wages and benefits are not in dispute this year, as the parties reached an agreement in the previous year's collective bargaining about a five-year schedule for wages and benefits that was acceptable to both the Union and Management. The sole issue in dispute this year is about hiring. The Workers' Union wants the plant to hire five or six new assembly line workers so that there will be more efficiency and more flexibility for workers requesting days off or changes in their shifts. The Management wants to hire fewer new workers, potentially two at most, to keep payroll costs down and their stock share prices high. The Union and Management agree to hire a certain attorney, an experienced labor lawyer at an outside firm, to facilitate the collective bargaining negotiations. Neither side is currently

a) Yes, assuming both clients provide written informed consent, common representation is permissible where the clients' interests mostly align, even though there is some difference in interest among them, so a lawyer may seek an agreement between them on an amicable and mutually advantageous basis.

96. Client is an inexperienced drug dealer and consults with his attorney about the legal ramifications of his business. Without explicitly endorsing or encouraging the client in his criminal enterprise, the attorney conducts research at the client's request about various drug laws and sentencing guidelines. The attorney writes a detailed memorandum of law explaining that certain threshold quantities of drugs, according to the relevant statutes, create a presumption of "intent to distribute" or trigger a significant sentencing enhancement. Similarly, the attorney explains that statutes and sentencing guidelines impose higher-grade charges and severe sentencing enhancements if a drug dealer brings a firearm to a transaction. The client mulls over the information and decides to change his business model from bulk sales of narcotics to selling smaller quantities in more individual transactions, such that each sale const

a) Yes, because a lawyer may discuss the legal consequences of any proposed course of conduct with a client and may counsel or assist a client to make a good faith effort to determine the validity, scope, meaning or application of the law. Rule 1.2(d)

86. A client hired a certain attorney to represent her in a personal injury lawsuit in which the client is the plaintiff. After an initial consultation and two meetings to review the main evidence in case and to discuss the nature of the claims, the attorney drafted the initial pleadings, served the opposing party, and filed the pleadings in the appropriate court. Nevertheless, the attorney did not allow the client to review the pleadings before filing them, and afterward, the client expresses disappointment that she did not have the opportunity to review the pleadings beforehand and make suggested edits, given that it is her case and that the attorney is working for her. Was it proper for the attorney to draft the pleadings based on conversations with the plaintiff and file the documents without first having the plaintiff review them? a) Yes, because a lawyer may take whatever actions the client has impliedly auth

a) Yes, because a lawyer may take whatever actions the client has impliedly authorized as part of the representation. Rule 1.2(a)

91. A client hired an attorney to research the legality of a musical "mash-up," a sound recording that includes brief sound clips and samples from many other artists' commercial recordings. The client's unique approach puts it in the gray area around "fair use" and "composite works of art" under prevailing copyright law, and no court has yet ruled on the precise issue, though the question has been the subject of seventeen lengthy law review articles in the last two years, reaching a range of different conclusions. No litigation is pending, and the client has not yet undertaken any activity that could constitute a copyright infringement; he is seeking reassurance before proceeding that he would not face liability for copyright infringement. Because the client primarily wants a memorandum of law answering his hypothetical legal question, he asks the attorney to limit his research and writing to two hours of billable ti

a) Yes, because given the complexity of the subject and the uncertainty about this certain point of law, two hours was not a reasonable amount of time to yield advice upon which the client could rely. Rule 1.2 Cmt. 7

6. Big Firm represents hundreds of corporate clients out of a dozen offices in different states. The firm has no formal procedures in place to check for conflicts at the outset of representation for new clients, but the managing partner of the firm has an incredible memory and has never failed to spot a potential conflict of interest in the past. An attorney agrees to represent a new corporate client that owns many subsidiaries, and checks with the managing partner, who assured Attorney there are no potential conflicts. After the new corporate client had disclosed a substantial amount of confidential information, it emerged that some of its subsidiaries were directly adverse to other clients of Big Firm. The attorney was completely unaware of the potential conflicts at the time he agreed to the representation, despite asking the corporate client a few questions about the opposing parties in pending litigation it migh

a) Yes, because ignorance caused by a failure to institute reasonable procedures, appropriate for the size and type of firm and practice, will not excuse a lawyer's violation of the Rules regarding conflicts of interest.

36. An attorney represented a client in a litigation matter, and while the matter was still pending, the attorney and the client also agreed to purchase an investment property together. The client had another lawyer who regularly represented the client in transactional matters, but not litigation. The litigation attorney and the client contributed equal amounts toward the purchase of the investment property, and each received an equal share. The attorney did not advise the client in writing of the desirability of obtaining the opinion of independent legal counsel in the transaction, but the client nevertheless asked his other lawyer, who handled the client's transactional matters, to review the terms and render an opinion. The other lawyer provided the client with a written disclosure of the terms and conditions of the agreement and recommended that the client proceed. Did the litigation attorney act properly in this

a) Yes, because the client had representation by another lawyer in the transaction. Rule 1.8(a) Cmt. 4

92. A certain client calls an attorney to ask if it is possible to apply for an extension on filing his annual tax returns, if the deadline for filing returns is still two weeks in the future. This attorney offers to research the matter for a few hours and write a formal legal memorandum for the client about filing extensions. Even so, offhand, the attorney can assure the client over the phone that it is indeed possible to apply for an extension and that the IRS routinely grants them if they receive the application for extension before the regular deadline. The attorney practices tax law and is familiar with the rules. The client thanks the attorney and says that he is satisfied with the "short answer," and that he does not want the attorney to do any more research or writing about it, but to send a bill for the phone call. Then the attorney agrees and bills the client for the telephone conversation and conducts no f

a) Yes, because the client's objective is no more than securing general information about the law the client needs to handle a common and typically uncomplicated legal problem, so the lawyer and the client may agree that the lawyer's services will be no more than a brief telephone consultation. Rule 1.2 Cmt. 7

60. An associate in a law firm consulted with a prospective client about providing legal representation. The prospective client wanted to file a lawsuit against a nightclub. A fistfight had erupted at the nightclub between two other patrons, and the potential client had intervened to try to break it up. One of the fighting patrons shoved him out of the way, and he sustained some bruising when he fell. Worse, the nightclub's security guard then arrived and misinterpreted the situation, and he thought the prospective client had started the fight. The security guard dragged him outside behind the nightclub, where the two had an angry exchange of words. The security guard became enraged and beat the prospective client badly, leaving him with a concussion, black eyes, some missing teeth, and broken ribs. The security guard had been since quit working there and was judgment-proof, but the nightclub had a long prior history

a) Yes, because the partner's conflict of interest would impute to all the other lawyers in the firm, especially if the managing partner has the conflict and associates are handling the representation with his permission. Rule 1.10 Cmt.3; RESTATEMENT § 123

54. Media Company holds the exclusive right to license and distribute certain pay-per-view sporting events, which commercial establishments must license to broadcast at their facilities. It sued a sports bar, for broadcasting one of its major sporting events without a license. The Three Brothers Law Firm were involved before the Media Company filed suit, and Three Brothers Firm had managed to broker a tentative settlement agreement between the parties. Afterward, however, the parties reneged on the agreement and litigation ensued. Three Brothers Firm now represents the defendant sports bar in the matter, and it is counsel of record. Media Company has filed a motion to disqualify Three Brothers from the case, but the attorneys there claim that Media Company was never their client. There was no representation agreement between Media Company and Three Brothers, and Media Company never paid Three Brothers any legal fees.

a) Yes, because they obtained confidential information during the negotiations in the same matter, or a matter with significant overlap. Rule 1.9

28. Three co-owners of a successful startup business hire a certain attorney to help with working out the financial reorganization of their enterprise. The attorney seeks to resolve potentially adverse interests by developing the parties' mutual interests. In assenting to represent all the parties as clients simultaneously, the attorney agrees to adjust the relationship between clients on an amicable and mutually advantageous basis. The clients each provide written consent to the potential conflicts of interest. Is it proper for the attorney to represent three clients with potentially adverse interests in a negotiated transaction? a) Yes, common representation is permissible where the clients' interests mostly align, even though there is some difference in interest among them, so the attorney may pursue an agreement on an amicable and mutually advantageous basis. b) Yes, because conflicts of interest rules do not

a) Yes, common representation is permissible where the clients' interests mostly align, even though there is some difference in interest among them, so the attorney may pursue an agreement on an amicable and mutually advantageous basis.

16. An attorney has a private practice in a large rural township, and she specializes in commercial real estate transactions, such as the sale and lease of farmland, stables, granaries, and mills. As the only lawyer in the township with expertise in this area, she has represented most of the parties who buy and sell commercial real estate there. As a result, most of her clients pose potential conflicts of interest with other current, former, or future clients, so the attorney has a standard "waiver of future conflicts" form that explains conflicts of interest that typically arise in commercial real estate transactions, and she asks every client to sign it at the commencement of representation. The client is a major landholder in the township, who inherited extensive tracts of farmland from his family, who in previous generations were some of the original settlers in the area. Over the years, Client has sold off dozen

a) Yes, if the client agrees to consent to a specific type of conflict with which the client is already familiar, then the consent ordinarily will be effective regarding that type of conflict.

23. A producer of popular energy drinks and the owner of a popular chain of video-rental kiosks wanted to undertake a joint venture to distribute energy drinks and DVD rentals through the same kiosks. They approached a certain attorney to work out the details of the joint venture and draft the necessary legal documents. The attorney would provide common representation to both as clients in the matter. As part of obtaining informed consent from the clients regarding potential conflicts, the attorney explains that all information would be available to the other client, even information that otherwise would have been confidential information in a normal representation with a single client. Then the attorney explains he will have to withdraw if one client insists that the attorney keep certain information from the other, if the information was relevant and material to the representation. The energy drink maker, however,

a) Yes, in limited circumstances like this, it would be appropriate for the lawyer to proceed with the representation when the clients have agreed, after receiving adequate disclosures, that the lawyer will keep certain information confidential.

22. Two brothers work together in a family landscaping business, and each is a named defendant in a lawsuit over a broken sewage pipe on a client's property where the brothers were digging holes to plant new trees. The two brothers hire their family's attorney to represent them. Though the brothers get along reasonably well, there are several topics they avoid discussing, especially related to family matters and the inheritance, and who is to blame for some lost clients and damaged equipment in the recent past. Then the attorney explains the potential for conflicts of interest in the common representation and asks if they are willing to sign a waiver to the conflicts. One asks the lawyer privately about the issue of confidentiality and privileged information, because it is possible that litigation could emerge within the family later over various issues - the inheritance, control of the business, liability for busine

a) Yes, regarding the attorney-client privilege, the prevailing rule is that, as between jointly represented clients, the privilege does not attach, and lawyers should assume that if litigation eventuates between the clients, the privilege will not protect any such communications.

30. An attorney made an agreement to borrow money from a client who had received a large inheritance. The attorney agreed to pay the client the same interest rate that banks in that area were charging for unsecured business loans, and she gave the client a detailed written disclosure of the terms and conditions of the loan, with phrasing that a non-lawyer could understand. The client gave written, signed consent to the essential terms of the loan, including the fact that the attorney was not representing the client in the transaction. During one of their phone conversations about the loan, the attorney also told the client that it would be prudent to obtain the advice of another lawyer about the transaction, and she offered to give the client time to find another lawyer, but the client did not want to do this. Upon consummation of the agreement, the client transferred the loan amount to the attorney, who made regular

a) Yes, the attorney gave inadequate notice the client regarding the desirability of seeking independent legal counsel for the transaction. Rule 1.8(a)

77. The Office of the Attorney General in Texas ordered administrative suspensions of driver's licenses for parents who failed to pay child support, pursuant to state statutes. An attorney worked for the State Office of Administrative Hearings (SOAH), the agency that adjudicated license suspensions like this one. When he decided to leave the SOAH, the attorney surreptitiously copied a database of individuals facing license suspensions and used the names to solicit clients as he started his own firm. The attorney represented clients who wanted to appeal their license suspensions in court, though he did not represent anyone whose case he had personally worked on during his time at the SOAH. Could the attorney be subject to discipline in the cases in which he represents clients appealing their license suspensions? a) Yes, the attorney had access to confidential government information from his time working for the stat

a) Yes, the attorney had access to confidential government information from his time working for the state. Smith v. Abbott, 311 S.W.3d 62 (Tex. App.-Austin 2010)

46. An attorney regularly represented clients in transactional matters. While she was representing a certain client in negotiating and drafting a contract, the client asked the attorney to represent her in a lawsuit as well. The attorney felt nervous because she rarely did litigation work, so she asked the client to sign a waiver of potential malpractice claims that could arise from the litigation work. She orally advised the client to talk to another lawyer about the waiver before signing it, but the client felt that she already had legal representation, as this attorney was handling her transactional matters. The client readily agreed to the waiver. The attorney competently handled the litigation matter, and the case settled before trial with a favorable result for the client. Could the attorney be subject to discipline for obtaining a malpractice waiver from the client? a) Yes, the attorney is making an agreemen

a) Yes, the attorney is making an agreement prospectively limiting the lawyer's liability to a client for malpractice, and the client does not have independent representation in making the agreement. Rule 1.8(h)

39. Asylum Now is a nonprofit organization that advocates for refugees and immigrants from poor countries. The Board of Directors for Asylum Now wants to bring a test case in federal court to challenge the constitutionality of detaining refugees who enter the country under duress without a visa. Asylum Now has offered to pay an attorney to seek the release of a certain refugee currently in federal detention, and to use this case to challenge current federal laws and regulations that mandate such detentions. The refugee consents to the representation, as well as the payment of legal fees by Asylum Now, and agrees to have his case be the test case that might benefit others. During the representation, the attorney meets several times with the directors of Asylum Now to discuss how to frame their argument in the case in a way that would shape public policy in the right direction. Is it permissible for the attorney to und

a) Yes, the attorney may accept payment by Asylum Now and may agree to make contentions that Asylum Now wishes to have tested by the litigation. Rule 1.8(f); RESTATEMENT § 134

2. Mr. Burns, the chief executive officer of Conglomerate Corporation, now faces criminal charges of discussing prices with the president of a competing firm. If found guilty, both Mr. Burns and Conglomerate Corporation will be subject to civil and criminal penalties under state and federal antitrust laws. An attorney has been representing Conglomerate Corporation. She has conducted a thorough investigation of the matter, and she has personally concluded that no such pricing discussions occurred. Both Conglomerate Corporation and Mr. Burns plan to defend on that ground. Mr. Burns has asked the attorney to represent him, as well as Conglomerate Corporation, in the proceedings. The legal and factual defenses of Conglomerate Corporation and Mr. Burns seem completely consistent at the outset of the matter. Would the attorney need to obtain informed consent to a conflict of interest from both Mr. Burns and a separate corp

a) Yes, the likelihood of conflicting positions in such matters as plea bargaining requires the attorney to obtain the informed consent of both clients before proceeding with the representation. RESTATEMENT § 131

76. After law school, an attorney worked for the local City Attorney's office in a mid-sized municipality, working mostly on enforcement of anti-pollution and anti-littering ordinances. After five years, the attorney left the position at the municipality and went to work for the federal Environmental Protection Agency (EPA). In some cases, the EPA intervenes in litigation over pollution in which the same municipality is also a party. In that situation, may the EPA ignore the usual screening requirements that would apply to a lawyer moving to a private firm? a) Yes, when a lawyer is employed by a city and subsequently is employed by a federal agency, the latter agency does not have to screen the lawyer. b) Yes, the EPA can always assert federal preemption over a municipality if a conflict arises in litigation. c) No, because the attorney may know confidential government information that would provide an unfair adv

a) Yes, when a lawyer is employed by a city and subsequently is employed by a federal agency, the latter agency does not have to screen the lawyer. Rule 1.11 Cmt. 5

13. Three individuals hire an attorney to represent them as co-defendants in a tort action. At the outset, the attorney tells them that there could be a potential conflict of interest if he represents all three of them, and that they will need to sign informed consent forms, which they do. The three individuals have common goals and interests in the litigation, so they do not hesitate to sign the forms or inquire further about the implications of the potential conflicts. No further discussion occurs about the issue, and Attorney proceeds with the representation. Could the attorney end up having a duty to withdraw from representation later in the litigation, if the clients gave written consent to the shared representation at the outset? a) Yes, when undertaking representation of multiple clients in a single matter, the information must include the implications of the common representation, including potential effect

a) Yes, when undertaking representation of multiple clients in a single matter, the information must include the implications of the common representation, including potential effects on loyalty, confidentiality and the attorney-client privilege and the advantages and risks involved.

69. A prospective client met with an attorney at Boutique Firm for an initial consultation about a personal injury lawsuit over injuries the prospective client had sustained. The attorney declined the representation because he thought the client's case was unwinnable and would therefore generate no fees. During the consultation, the attorney asked some probing questions about the incident, and the client admitted facts indicating an unreasonable assumption of foreseeable risks beforehand, as well as the client's own intoxication at the time, which in the case would constitute contributory negligence. Furthermore, the client had failed to take obvious measures afterward to mitigate the damages. The attorney was certain that all these unfavorable facts would come out during discovery, and the client's claim would become laughable at trial. Two months later, another client came in for a consultation with another lawyer

b) Boutique Firm cannot represent the defendant in the case because an attorney there learned confidential information from the opposing party as a prospective client during an initial consultation two months ago, unless Boutique Firm obtains informed consent in writing from both the defendant and the opposing party, who was a prospective client during a one-time consultation. Model Rule 1.18; Rule 1.10: Rule 1.0(k)(definition of "screening")

95. An attorney tells a client that certain features of the client's business proposal would constitute money laundering under current federal statutes. The discussion goes through the statute in detail, and the attorney explains why the course of action would meet the statutory definition of money laundering. In addition, the attorney discusses the various monitoring and reporting mechanisms that federal enforcement agencies have in place to detect money laundering, to convince the client that he would not escape arrest and prosecution if he proceeds. The client absorbs the information and uses it to structure a more elaborate money-laundering scheme. He exploits some ambiguity in the statute and the reporting requirements to make his enterprise much more difficult to detect, and this complicates enforcement and prosecution efforts against him. Overall, the attorney's advice turned out to be incredibly useful to the

b) No, because the fact that a client uses advice in a course of action that is criminal or fraudulent of itself does not make a lawyer a party to the course of action. Rule 1.2 Cmt. 9

85. An attorney grew up in poverty but worked hard to overcome obstacles and achieve success. Now a successful practitioner, the attorney is idealistic and passionate about helping the less fortunate. Every Saturday morning, he uses a small conference room at the local YMCA to assist pro se litigants in divorce and custody matters - the attorney helps them complete their own court forms (court filings) for a nominal fee, gives some advice about their individual situation, and reviews forms they have completed before the individuals themselves file them. The attorney is concerned about these pro se litigants misunderstanding his role and believing he is their lawyer, so the attorney requires each one to sign a printed disclaimer declaring that no attorney-client relationship exists. It reads, in relevant part, "I understand that this attorney has no legal or ethical obligation to provide legal representation to me in

b) No, the lawyer is reviewing court documents and providing legal advice about pending legal proceedings, which constitutes the practice of law by the lawyer, even if the representation has a limited scope. See below

53. A doctor was facing criminal charges for an illegal kickback scheme - accepting bribes to refer patients to a certain hospital. The attorney representing the doctor in the criminal matter previously represented the hospital, and he had drafted one of the contractual agreements between the doctor and the hospital that federal prosecutor now allege to have been a sham agreement (payment for services never rendered). The attorney also provided some legal advice several years ago to another doctor, in one passing conversation, and that doctor now turns out to be part of the same kickback scheme. This other doctor, in fact, has turned state's witness in the case against the attorney's current client. The federal prosecutors have filed a motion to disqualify the attorney from the case because he is a potential witness about the agreement between the doctor. On the other hand, it has not yet listed him as a witness who

b) The court should deny it because the government has not met its burden of showing that the attorney would be a necessary witness in the case, or that he possessed confidential information about the other doctor who will serve as a hostile witness in the case. United States v. Beauchamp, 2017 WL 1684406 (N.D. Tex. May 2, 2017)

64. An Assistant District Attorney, who has recently joined a county prosecutor's office, represented a defendant at a preliminary hearing in a pending criminal case while in private practice. Now that this attorney has joined the prosecutor's office, how can the office proceed with the prosecution of the same defendant? a) The new attorney, or any other lawyer in the prosecutor's office, could proceed with the prosecution, because there is an exception in the conflict of interest rules for prosecutors. b) The office must either hire a special prosecutor for the case, borrow a prosecutor from a neighboring jurisdiction, or implement effective screening measures to exclude the new attorney from the prosecution. c) The prosecutor's office cannot prosecute the defendant for the same charge (it must drop the charges), but it could charge him for other crimes in the future. d) The prosecutor's office must either drop

b) The office must either hire a special prosecutor for the case, borrow a prosecutor from a neighboring jurisdiction, or implement effective screening measures to exclude the new attorney from the prosecution. RESTATEMENT § 123 Imputation of a Conflict of Interest to an Affiliated Lawyer, sec. d(iii).

68. A prospective client met with an attorney at Boutique Firm for an initial consultation about a personal injury lawsuit over injuries the prospective client had sustained. The attorney declined the representation because he thought the client's case was unwinnable and would therefore generate no fees. During the consultation, the attorney asked some probing questions about the incident, and the client admitted facts indicating an unreasonable assumption of foreseeable risks beforehand, as well as the client's own intoxication at the time, which in the case would constitute contributory negligence. Furthermore, the client had failed to take obvious measures afterward to mitigate the damages. The attorney was certain that all these unfavorable facts would come out during discovery, and the client's claim would become laughable at trial. Two months later, another client came in for a consultation with another lawyer

b) The other lawyer at Boutique Firm can represent the defendant in the matter if the first attorney has not disclosed any confidential information to others in the firm, and the firm carefully screens the attorney completely from the matter and provides written notice to the other party. Model Rule 1.18 (duties to prospective clients), Rule 1.10 (imputation of conflicts), and Rule 1.0(k)(definition of "screening")

51. Attorney Stevenson did not know anything about the construction industry, but he thought he knew how to draft contracts. Giant Equipment Corporation manufactures cranes, bulldozers, and large backhoes used for building construction. These machines are pricey. Twenty-seven months ago, the manufacturer hired Attorney Stevenson to help with drafting Purchase and Sale Contracts for the manufacturer to use for all these items of heavy equipment. Attorney Stevenson advised the company on what provisions to include and some of the exact wording they should use in the Purchase and Sale Agreements. Then the representation ended, and the company has not contacted an attorney since. Last week, Ashby Building Construction retained Attorney Stevenson to handle a dispute with a manufacturer of one of its construction cranes. It soon becomes apparent learns that the piece of equipment came from Giant Equipment Corporation, and

b) Yes, Attorney Stevenson cannot seek to rescind on behalf of a new client a contract drafted on behalf of the former client. Rule 1.9 Cmt. 1

43. A certain attorney obtained a successful outcome in a client's matter, and the client was grateful. The client sent the attorney a gift basket that year as a holiday gift, containing high-quality fresh fruit, sample-size jars of gourmet fruit preserves, and a few other delicacies. The gift basket cost the client $50. Is it proper for the attorney to accept this gift, or must the attorney refuse it? a) Yes, because assuming a lawyer does not solicit the gift, there is no restriction on lawyers accepting unsolicited gifts from clients. b) Yes, a lawyer may accept a simple gift such as a present given at a holiday or as a token of appreciation. c) No, a lawyer shall not accept any substantial gift from a client, unless the lawyer or other recipient of the gift is a relative of the client. d) No, because the lawyer's entire compensation for obtaining the favorable outcome should have been in the original retaine

b) Yes, a lawyer may accept a simple gift such as a present given at a holiday or as a token of appreciation. Rule 1.8(c) Cmt. 6

45. An attorney had his own firm specializing in small business transactions. The clients were small business owners who did not have in-house counsel or other legal representation. His representation agreements with clients included all necessary disclosures, fee schedules and rates, and a clause stipulating that all potential legal malpractice claims would go through binding arbitration. The attorney would explain this term fully to each client, but he would decline representation for any potential client who would not agree to binding arbitration. The attorney did this in hopes of limiting his future malpractice liability to clients. Was it permissible for the attorney to do this? a) Yes, because the clients gave informed consent, confirmed in writing. b) Yes, a lawyer may make an agreement with the client to arbitrate legal malpractice claims, provided such agreements are enforceable and the lawyer fully infor

b) Yes, a lawyer may make an agreement with the client to arbitrate legal malpractice claims, provided such agreements are enforceable and the lawyer fully informs the client of the scope and effect of the agreement. Rule 18(h) Cmt. 14

19. An experienced attorney handles claims against banks for many clients for issues regarding the failure of banks to investigate in a timely manner claims of fraud or unauthorized use of bankcards. Most of the attorney's work consists of sending demand letters, and most cases never actually result in the filing of a suit. Bank, a small local bank, retains the attorney to handle a certain claim against a customer for non-payment of a loan. The attorney has not represented any clients against Bank. Even so, the attorney includes in his contract for services a clause in which Bank waives any conflicts that may arise in the future - conflicts that involve the attorney representing clients against Bank for issues regarding failure to investigate claims of fraud or unauthorized use of bankcards. Is the attorney's conduct proper? a) Yes, attorneys may include waivers of future conflicts assuming clients are aware of the

b) Yes, attorneys can include waiver clauses for specific future conflicts in their contracts, if the clients are aware of the waiver, and if the contract delineates the types of future representations that may arise.

90. An attorney represents criminal defendants. One day, a client appeared in the attorney's office and explained that he had been blackmailing his former employer for the last year. The client had hired a prostitute to seduce the former employer in a room with hidden cameras, then showed the embarrassing photographs to his former employer and demanded monthly payments of $500, which the employer paid, not wanting to destroy his marriage. The prostitute subsequently died of a drug overdose. The client's former employer eventually tired of making the monthly blackmail payments and went to the police about the matter. The client is now worried that he will face charges for blackmail, which would violate his parole and result in a lengthy incarceration. The client retained the only copies of the photographs, as he merely showed them to the former employer a year ago to extort the payments. After the client explained all

b) Yes, because a lawyer shall not assist a client in conduct that the lawyer knows is criminal or fraudulent, such as destroying evidence when there is a pending criminal investigation. Rule 1.2(d)

44. A client hires an attorney to represent her in business litigation. Another lawyer in the firm, unknown to the attorney, approaches the client with a proposal for an unrelated business transaction, the sale of a parcel of real estate adjacent to the lawyer's own land. The client agrees to sell the other lawyer in the firm the parcel of real estate for a reasonable price. The lawyer is not involved at all in the representation of the client and works exclusively in the estate- planning department of the firm, rather than in litigation. Must the lawyer nevertheless advise the client in writing of the desirability of seeking the advice of independent legal counsel, and obtain written informed consent from the client before proceeding with the purchase? a) Yes, because the fact that the lawyer owns the adjacent real estate to the client's parcel of land means that he has a special conflict of interest with the clie

b) Yes, because a prohibition on conduct by an individual lawyer under the conflicts of interest rules would automatically apply to all lawyers associated in a firm with the personally prohibited lawyer, even if the first lawyer is not personally involved in the representation of the client. Rule 1.8(k)

57. A thirty-lawyer firm in Chicago affiliated with Boutique Firm, three lawyers in a small city in New England. Each firm includes, on its masthead under the list of its own lawyers, the affiliation of the other firm (with its lawyers each named). Each firm also mentions the affiliation with the other in its Martindale-Hubbell listing. Boutique Firm has represented Conglomerate Corporation in intellectual property matters for a few years, and has on file extensive information about Conglomerate's patents, patent applications, and prior patent litigation. Recently, Copycat Company has hired the thirty-lawyer firm in Chicago to seek a declaratory judgment that it is not infringing on certain patents owned by Conglomerate Corp., or in the alternative, that these specific patents are invalid. Conglomerate Corporation hired a new litigation firm to represent it in the matter, due to its concern about its regular firm hav

b) Yes, because separate firms that publicly identify themselves as "affiliated," even if they are located several states away from each other, count as the same firm for purposes of imputed conflicts of interest under Rule 1.10. Mustang Enters., Inc. v. Plug-In Storage Sys., Inc., 874 F. Supp. 881 (N.D. Ill. 1995)

31. An attorney made an agreement to borrow money from a client who had received a large inheritance. The attorney agreed to pay the client the same interest rate that banks in that area were charging for unsecured business loans, and she gave the client a detailed written disclosure of the terms and conditions of the loan, with phrasing that a nonlawyer could understand. The client gave written, signed consent to the essential terms of the loan, including the fact that the attorney was not representing the client in the transaction. During one of their conversations about the loan, the attorney also advised the client in writing that it would be prudent to obtain the advice of another lawyer about the transaction, and she offered to give the client time to find another lawyer, but the client did not want to do this. Upon consummation of the agreement, the client transferred the loan amount to the attorney, who made

b) Yes, because the attorney complied with the requirements of the Model Rules for this type of transaction with a client. Rule 1.8(a)

47. An attorney worked in the legal department of Conglomerate Corporation for a few years, then left there to start his own firm. His experience at Conglomerate proved useful, as he regularly represented some of Conglomerate's newer industry rivals in their transactional and pre-litigation work - small startup businesses that did not have in-house counsel. Whenever a new client needed legal representation in a matter that could potentially be adverse to the legal interests of one of his other clients, the attorney would obtain informed consent, confirmed in writing to the potential conflict of interest. In such cases, the attorney would also ask new clients to sign a waiver of liability for all potential legal malpractice by the attorney. Attached to the waiver was a cover sheet explaining what the waiver entailed, the downsides for the client in signing a waiver, and recommending the client seek the advice of indep

b) Yes, because the attorney is making an agreement prospectively limiting the lawyer's liability to a client for malpractice, and the client does not have independent representation in making the agreement. Rule 1.8(h)

88. A certain defendant was indigent and received court-appointed defense counsel in his felony larceny case. The defendant insisted that he was completely innocent and that he would not accept any plea bargains, because he wanted an opportunity to prove his innocence at trial. When the defendant told the attorney his expectations, the attorney explained that there is a special type of plea called an "Alford Plea," in which a defendant may agree to accept a conviction while still contesting his guilt or maintaining his innocence. The defendant refused, and told the attorney, "Do not even contact me with offers from the prosecutor for a guilty plea. I will not plead guilty. I will prove my innocence in a court of law!" The prosecutor indeed made several plea offers, and each time the attorney presented the offer to the defendant, who rejected it and reminded the attorney that he did not want to hear about any offers t

b) Yes, because the client has previously indicated that the proposal will be unacceptable and has authorized the lawyer to reject the offer. Rule 1.2 Cmt 3

9. Three individuals plan to form a joint venture and ask an attorney to represent them in drafting the necessary documents and making the necessary filings with government agencies. They have already agreed that everyone will contribute exactly one-third of the startup funds for the venture, each will own a one-third share, each will have equal control over the Board, and each agrees to indemnify the others for a one- third share of any personal liability related to the joint venture. They have also agreed that they will have no non-compete agreements. The joint venture will hire managers, marketers, and other employees to operate the business. The three individuals are co-owners of a patent that could potentially be very lucrative when they bring it to market, and they have known each other and worked together for a long time. The attorney cannot find any current areas of conflict between them, though he knows that

b) Yes, because the mere possibility of subsequent harm does not itself require disclosure and consent.

7. An attorney sued Giant Company on behalf of a client in a personal injury matter. During the protracted litigation that ensued, Conglomerate bought Giant Company. The attorney was already representing Conglomerate in a regulatory compliance matter before a federal administrative agency. Assuming this development was unforeseeable at the outset of representing the client against Giant Company, will the attorney have the option to withdraw from one of the representations to avoid the conflict? a) Yes, because one matter is in state court and the other matter is a completely unrelated federal administrative proceeding. b) Yes, but the attorney must seek court approval where necessary and take steps to minimize harm to the clients, and he must continue to protect the confidences of the client from whose representation the lawyer has withdrawn. c) No, if a conflict arises after representation is underway, the lawye

b) Yes, but the attorney must seek court approval where necessary and take steps to minimize harm to the clients, and he must continue to protect the confidences of the client from whose representation the lawyer has withdrawn.

27. Two sisters are co-tenants of a house that they inherited from their father. They want to sell the house and hire an attorney to handle the real estate transaction. This attorney explains the potential for conflicts of interest in detail, and each sister readily agrees to provide written informed consent in the form of a waiver of future conflicts of interest. After a prolonged period, they finally find a buyer who is interested in the house, but the buyer wants to impose several onerous conditions on the purchase and engages in unreasonably protracted negotiations over the purchase price. The sisters themselves cannot agree on whether to accept any of the buyer's proposals, further dooming the negotiations. Eventually, one sister becomes frustrated with the attorney over the prolonged, hitherto unsuccessful negotiations, and fires the attorney. The other sister wants the attorney to continue the representation.

b) Yes, each client in the common representation has the right to discharge the lawyer as stated in Rules of Professional Conduct and the accompanying Comments.

4. An attorney purchased "litigation cost protection" insurance at the outset of representing a plaintiff in a personal injury case. When the attorney recovered funds for the client through a settlement or favorable trial verdict, the attorney proposed to receive reimbursement for the insurance premium from the judgment or settlement funds. The attorney disclosed the cost of the insurance to the client as part of the representation agreement. Was it proper for the attorney to include in a client's fee agreement a provision allowing the attorney's purchase of litigation cost protection insurance and requiring reimbursement of the insurance premium from the client's funds in the event of a settlement or favorable trial verdict? a) Yes, because the Model Rules do not purport to regulate insurance for lawyers, which is a matter of state statute. b) Yes, if the amount charged to the client is fair and reasonable, and t

b) Yes, if the amount charged to the client is fair and reasonable, and the lawyer fully explains to the client what litigation cost protection insurance is, why the lawyer believes a litigation cost protection policy will serve the client's best interests, that the client should get the advice of independent legal counsel regarding the arrangement, that other lawyers may advance the client's costs without charging the client the cost of a litigation cost protection policy; and the client gives informed consent in writing, while the lawyer maintains independent professional judgment. N.C Formal Ethics Op. 2018-6

15. Business Manager and Shift Supervisor, who worked at a customer service call-center, became co-defendants in a lawsuit by a disgruntled former employee. The plaintiff claimed to have been the victim of gender discrimination in the form of a hostile work environment, as well as intentional and negligent infliction of emotional distress related to the same factual allegations about her treatment at the workplace. Business Manager hired a certain attorney to represent both himself and the Shift Supervisor, who had been the plaintiff's direct superior. Based on Business Manager's initial investigation and review of the personnel files of the plaintiff and the Shift Manager, he believes the allegations are baseless and that the suit will end in a dismissal or summary judgment before trial. Shift Supervisor had a spotless work history, but the plaintiff had numerous interpersonal conflicts with her peers, was frequentl

b) Yes, the attorney can potentially continue representing Shift Supervisor but not Business Manager, given the nature of the conflict, the fact that Business Manager revoked consent because of a material change in circumstances, the expectations of Shift Supervisor, and so on.

48. A plaintiff who had prevailed at trial needed representation for the appeal, because the defendant in the case appealed the verdict. Plaintiff's counsel did only trial work, not appellate work, and referred the client to an appellate attorney nearby. The trial lawyer even offered to accompany the plaintiff to the initial consultation with the appellate attorney to help facilitate the transition and to safeguard his client's interests in retaining new counsel. Instead, the plaintiff fired the trial lawyer, terminating the representation, and then went alone to the consultation with the appellate attorney. The appellate attorney asked the plaintiff to sign an agreement waiving potential malpractice claims against the appellate attorney, because the appellate attorney did not want to be responsible for the trial lawyer's mistakes. The appellate attorney did not inform the plaintiff fully about the risks or downsides

b) Yes, the attorney made an agreement with an otherwise unrepresented client that prospectively limited his liability for malpractice. Rule 1.8(h)

80. A federal judge hired clerk for the first two years after the clerk graduated from law school. During his second year as a clerk, he began applying for associate positions at local law firms, to secure a job that would begin immediately after his clerkship ended. A few of the firms to which he applied had pending matters before the same judge, and these were among the firms that interviewed the clerk for an associate attorney position. During the interviewing process, the clerk refrained from mentioning he knew about their pending matters on his judge's docket, though the interviewers always mentioned the fact that their firms regularly appeared before the judge in whose chambers the applicant was then clerking. Each firm that interviewed the clerk received a letter from the judge recommending the applicant to prospective legal employers. The judge did not know where the clerk applied, or which firms were intervi

b) Yes, the fact that the judge did not have notice of where the clerk applied, or which firms were interviewing the clerk. Rule 1.12(b); Rule 1.11(d)(2)(ii)

33. An attorney represented a client who was a stockbroker in a boundary dispute with the client's neighbor. Before the conclusion of the representation, the attorney also made some personal investments using the same client's brokerage services, receiving the same terms, services, and fee waivers that other customers of the brokerage firm received. The attorney did not advise the client to seek the opinion of independent legal counsel for this transaction, and did not obtain signed, written consent from the client about the attorney's role in the transaction. The terms of the brokerage services agreement were in writing, as usual. Based on these facts, were the attorney's actions proper in this transaction? a) Yes, because the essential terms of the agreement were in writing, and it does not appear that the attorney charged the client any additional legal fees for this transaction. b) Yes, this is a standard comm

b) Yes, this is a standard commercial transaction between the attorney and the client for a service that the client normally would market to others. Rule 1.8(a) Cmt. 1

82. During a trial recess, the judge asked the lawyers for both parties to meet with him briefly in chambers. Once there, the judge explained that he planned to retire from the bench soon and was wondering if either of their firms were hiring litigation attorneys, as he might be interested. Could the judge be subject to discipline under the Model Rules of Professional Conduct for making this inquiry? a) Yes, the judge should not have talked to the two lawyers together, because if one of them immediately offers the judge a job at his firm, the other will also feel compelled to do so, may even feel it necessary to offer a higher salary than the first. b) Yes, under the Model Rules, a lawyer shall not negotiate for employment with any person who is involved as a party or as lawyer for a party in a matter in which the lawyer is participating as a judge personally and in a substantial way. c) No, the Model Rules of Pr

b) Yes, under the Model Rules, a lawyer shall not negotiate for employment with any person who is involved as a party or as lawyer for a party in a matter in which the lawyer is participating as a judge personally and in a substantial way. Rule 1.12(b)

100. A certain attorney represents a client in a transactional matter, a complex business merger. The parties have agreed in advance, by contract, to engage in good-faith negotiations, but that if an agreement does not emerge within six months, either party can abandon the deal and cease negotiations. Three months into the negotiations, the parties are close to a final agreement. The attorney has been conducting the negotiations without the client present, checking in with the client from time to time. One day, the other party presents a detailed proposal that would resolve all remaining issues. This proposal would give each side most of what it wants, but also requires a few concessions from each party. The attorney calls the client immediately and gives a brief overview of the new proposal, hitting most of the highlights and carefully explaining the bottom-line concerning the final buyout price to complete the merg

b) Yes, when there is time to explain a proposal made in a negotiation, the lawyer should review all important provisions with the client before proceeding to an agreement, and the facts suggest that the attorney did not necessarily explain all the concessions that the client would have to make. Rule 1.4 Cmt 5

40. Conglomerate Corporation hired an attorney to represent one of its employees, a delivery truck driver, who is the defendant in a personal injury lawsuit. The incident that caused the plaintiff's injury was potentially within the scope of the employee's duties, and under Conglomerate's ultimate supervision. Conglomerate's directors asked the attorney what the truck driver intends to testify about the accident and its surrounding circumstances. The employee consented to having Conglomerate pay his legal fees, but the attorney did not ask the driver specifically about sharing this type of information with Conglomerate during the representation. Would it be improper for the attorney to give this requested information to Conglomerate's directors? a) Yes, a lawyer shall not accept compensation for representing a client from one other than the client, especially an employer. b) Yes, without specific authorization fro

b) Yes, without specific authorization from the employee-client, the attorney may not disclose to Conglomerate how the employee intends to testify. Rule 1.8(f); RESTATEMENT § 134

66. An attorney was an associate at Big Firm. In his first year there, as a recent law school graduate, the attorney had a twenty-minute conversation with a more senior associate about research strategies involving a narrow issue of venue in federal court. The research was part of the representation of Big Bank, in the case of Developer v. Big Bank. The attorney's time sheets (billing records) from the time clearly document the length of the conversation and its subject matter. The entire conversation focused on the facts pleaded in the complaint and answer; the attorney learned no confidential information about the matter. Eventually, the attorney left Big Firm to become an associate at Boutique Firm. Eighteen month later, a partner assigned the attorney to represent the same Developer against Big Bank in a matter that overlapped on many points with the matter in which Big Firm had represented Big Bank. Lawyers at B

c) At most, Boutique Firm would need to screen the attorney from the matter and have other lawyers represent the Developer, but even this may be unnecessary, because the attorney learned no confidential information about Big Bank at his previous firm. RESTATEMENT § 124, sec. d(i)

98. An attorney represented a defendant who was facing criminal charges for violating a newly- enacted statute. The statute that made certain activities that had previously been minor misdemeanors into felonies. The district attorney handling the case spoke to the defendant's attorney, explaining that this was an important test case of a new statute, so the D.A.'s office was seeking the maximum penalty. The state did, however, offer a reduced sentence if the defendant would plead guilty, but this would still carry three years of jail time. Outraged, the attorney shouted that this had always been a misdemeanor charge in the past, which carried no jail time at all, and ended the conversation abruptly at that point. Without mentioning the conversation to the defendant, the attorney drafted an impassioned motion to dismiss the charges and filed it with the court. The attorney had a reasonable belief that his motion could

c) No, a defense lawyer who receives a proffered plea bargain in a criminal case must promptly inform the client of its substance, unless the client has previously told the lawyer to accept or to reject the offer. Rule 1.4

79. A federal judge hired a clerk for the first two years after the clerk graduated from law school. During his second year as a clerk, he began applying for associate positions at local law firms, to secure a job that would begin immediately after his clerkship ended. A few of the firms to which he applied had pending matters before the same judge, and these were among the firms that interviewed the clerk for an associate attorney position. During the interviewing process, the clerk refrained from mentioning he knew about their pending matters on his judge's docket, though the interviewers always mentioned the fact that their firms regularly appeared before the judge in whose chambers the applicant was then clerking. Each firm that interviewed the clerk received a letter from the judge recommending the applicant to prospective legal employers. Even though some of these firms had pending matters on the judge's docket

c) No, a law clerk to a judge may negotiate for employment with a party or lawyer, even if the prospective employer is involved in a matter in which the clerk is participating personally, after the lawyer has notified the judge. Rule 1.12(b); Rule 1.11(d)(2)(ii)

26. A municipal election for a seat on the city council was remarkably close one year, resulting in a run-off election that was ever closer. Both candidates claimed victory, and each accused the opposing candidate of voter fraud and violations of various election rules. There is potential for litigation if the two cannot agree as to a winner in the election, with one or the other conceding. A certain attorney is a prominent lawyer in the community and has previously represented each candidate in various legal matters. Both candidates would like to hire the attorney to represent them in negotiating a resolution to the election. Each candidate fully understands their adverse interests and the potential conflicts of interest for the attorney, but each is willing to provide written informed consent to have the attorney represent them both in facilitating the negotiations. May the attorney represent both candidates in thi

c) No, a lawyer may not represent multiple parties to a negotiation whose interests are fundamentally antagonistic to each other, even in a negotiation.

42. A certain attorney, a partner at a law firm, prepares a will for Sister. In the will, Sister directs the attorney to receive a substantial part of her estate. Then the attorney also recommends Sister appoint the attorney as the executor of the will because of his knowledge in this field. The attorney explains to Sister the role of the executor and the pay the executor of the estate will receive and discussed alternative executor choices with her. In addition, the attorney recommends Sister seek independent legal counsel regarding the issue of the executor. Sister does so, and then she asks the attorney to list him as executor in the will. Is the attorney subject to discipline? a) Yes, attorneys cannot include substantial gifts to themselves in legal instruments such as wills prepared by the attorney for the client. b) Yes, attorneys cannot recommend that a client appoint the attorney as the executor unless the

c) No, attorneys may permissibly include gifts to themselves in a will prepared by an attorney for a person related to the attorney, even if the gift is substantial. Rule 1.8(c)

61. Alpha Firm and Beta Firm represent the two parties in a high-stakes commercial transaction - the sale of a subsidiary corporation from one large, international conglomerate to the other. An attorney at Alpha Firm is married to a lawyer at Beta firm, but the spouse at Beta Firm is not involved in the representation. If a problem arose, would a tribunal that follows the ABA Model Rules impute the marriage-based conflict of interest that Alpha Firm's attorney to all the other lawyers in the firm, if another lawyer at Alpha Firm handled the representation in this case? a) Yes, because personal conflicts of interest automatically impute to the other lawyers at the same firm. b) Yes, because conflicts based on marriage or family relationships receive special scrutiny from the courts and are the most frequent basis for disqualification. c) No, because a conflict arising from a lawyer's marriage to another lawyer at

c) No, because a conflict arising from a lawyer's marriage to another lawyer at an opposing law firm does not necessarily impute to all other lawyers in the firm. Rule 1.10 Cmt. 3

17. An attorney represented a client in a residential real estate transaction. At the same time, the attorney agreed to represent the defendant in a large class-action lawsuit, an alcoholic beverage maker that understated the alcohol content of its products on its labels, leading to numerous cases of inadvertent intoxication, liver damage from continuous consumption, and a few deaths from overconsumption that led to alcohol poisoning. The client was an unnamed member of the plaintiff class in the class-action lawsuit against the alcohol producer. The attorney did not inform the client that he was representing the defendant in the class-action lawsuit or seek consent from the client or from the alcohol producer. Plaintiffs' counsel in the class action lawsuit discovered this situation, and he asked the court to disqualify the attorney from representing the defendant. Should the attorney be subject to disqualification

c) No, because a lawyer seeking to represent an opponent in a class action does not typically need the consent of an unnamed member of the class whom the lawyer represents in an unrelated matter.

14. Husband and Wife wanted to hire a certain attorney to prepare their wills. Before the formalities of representation were final, husband spoke with the attorney privately by phone and disclosed that Husband had been having an affair, and that his lover might be pregnant. Husband forbids the attorney to tell Wife about this. Then the attorney realizes there could be potential conflicts of interest between husband and wife about the wills, distribution of assets, potential challenges to the will by offspring from outside the marriage, and potential claims for child support against Husband's estate. Would it be proper for the attorney to proceed with representing Husband and Wife in preparing their wills? a) Yes, assuming each provides written consent after receiving warnings about the potential conflicts that often emerge in dual representation. b) Yes, because this is a transactional matter, not litigation in wh

c) No, because the attorney cannot violate the duty of confidentiality to Husband, which would be necessary to obtain informed consent from Wife.

71. The plaintiffs' lawyers in a large class action suit against an insurer contacted an attorney at another firm seeking some advice. The attorney they called was a former commissioner with the state Insurance Commission, so he had vast insider knowledge of the regulation of the insurance industry in that state. The attorney talked to the plaintiffs' lawyers for thirty minutes on the phone, during which the plaintiffs' lawyers shared some confidential information about the class action, including their theories of the case and litigation strategies. A year later, the attorney left his firm and went to work for Boutique Firm. Around the same time, the defense team representing the insurance company in the class action - three lawyers - also moved as a group to the same Boutique Firm, but to their office in another city. Boutique Firm became the counsel of record for the defendant insurer. The plaintiffs' lawyers lear

c) No, because the firm avoided imputation of the conflict by implementing effective screening measures, and the fact that the lawyer was geographically in another office, and has already departed to work elsewhere, also support denying the motion. Kirk v. First American Title Ins. Co., 183 Cal.App.4th 776, Cal.App. 2 Dist (Cal. Apr. 7, 2010)

58. A jury convicted a defendant of murder, and they sentenced him to death. His lawyer at trial was unimpressive, and there were potential points to raise in an ineffective assistance of counsel appeal. For his appeal, the defendant used a different attorney from the same firm as his trial lawyer - one of the lawyers at the firm handled trials, and the other appeals. Can the appellate attorney from the same small firm as the trial lawyer handle this appeal? a) Yes, if the client consents to the potential conflict of interest. b) Yes, because there is no conflict of interest if the appellate attorney's own conduct is not in question. c) No, because under the legal standard for ineffective assistance of counsel, the appeal would potentially require the attorney to disparage the representation of his own colleague as being unreasonably poor. d) No, because a firm that loses a death penalty case at trial is not com

c) No, because under the legal standard for ineffective assistance of counsel, the appeal would potentially require the attorney to disparage the representation of his own colleague as being unreasonably poor. Cannon v. Mullin, 383 F.3d 1152 (10th Cir. 2004)

24. A certain attorney agrees to represent a group of three individuals in the same matter, a business transaction. Their interests are not directly adverse. This attorney has represented each of the clients in separate matters previously, and he is already working under a retainer to do legal work for each under the same hourly rates. Two of the clients are currently traveling overseas, but everyone agrees to the representation by conference call. The attorney explains potential conflicts of interest that could arise in common representation, and all clients consent orally to the common representation despite the potential conflicts. Then the attorney proceeds with working on their matter for three weeks until all the clients are back from traveling and can sign written consent forms. By that time, the attorney has completed 50 hours of work, and has acquired significant confidential information by and about each of

c) No, it was not feasible to obtain or transmit the writing at the time the client gives informed consent, so the lawyer could obtain or transmit it within a reasonable time thereafter.

55. A business person hired a certain attorney to represent her in a tax dispute with the government, in which the government accused her of hiding assets in overseas accounts and failing to report income from certain obscure investments. During this representation, the attorney learned extensive private financial information about client, but the representation ended at the resolution of the tax case. Several years later, after the termination had ended, the husband of the client filed for divorce. The attorney was the only lawyer the husband knew, so he retained the attorney to represent him in the divorce against the client. Her new lawyer moves to have the attorney disqualified from representing the husband, but the attorney claims that the matters did not relate to each other enough to merit disqualification. Is the attorney correct? a) Yes, because resolving disputes with a government entity involves numerous

c) No, matters are "substantially related" if there is a substantial risk that confidential information from the prior representation would materially advance the client's position in the subsequent matter, such as personal financial information. Rule 1.9 Cmt. 3; Joe Hand Promotions, Inc. v. AIH Alamo Ice House, LLC, 2016 WL 7335687 (W.D.Tex., Dec. 15, 2016)

12. A group of several individuals seeking to form a joint venture asked an attorney to represent them in drafting the necessary documents and making the necessary filings with government agencies. Two of the individuals were to provide most of the initial funds for the startup; two others were experienced inventors who were to provide new product designs; two others had expertise in business management and were to serve as managers; and two had proven records in high-end sales and marketing. They have not yet resolved the allocation of ownership shares, bonuses for managers, whether to have anti-compete agreements for each participant, whether patents will belong solely to the joint venture or partly to the inventors themselves, and whether sales reps will work on salary or commissions. Everyone says that she wants whatever terms would be best for the joint venture overall, rather than what would be most beneficial

c) No, the situation is likely to limit materially Attorney's ability to recommend or advocate all potential positions that each might take because of his duty of loyalty to the others; representing the group's overall interests in effect forecloses alternatives that would otherwise be available to the client.

32. An attorney, a venture capitalist, and a land developer agreed to form a corporation to develop a new shopping mall. Their agreement allocates ownership shares based on the appraised value of the venture capitalist's land, which he is contributing for this enterprise, the market value of the developer's design and construction work, and the attorney's regular fees for the hours contributed to the formation and ongoing representation as corporate counsel. The attorney was already representing both the venture capitalist and the developer as his clients in unrelated matters. Which of the following is NOT a duty of the attorney in this situation, if the attorney performs the others? a) The attorney must fully disclose in writing all the terms of the development corporation ownership agreement to the developer and the venture capitalist in language they understand, and the terms of the agreement are objectively fai

c) The attorney must withdraw from representing the venture capitalist and the developer on the other matters, at least until the process of forming the corporation is complete, to avoid conflicts of interest. Rule 1.8(a); RESTATEMENT § 126

29. An experienced attorney practiced at a small firm in a rural area. The attorney regularly represented the county school district in employment discrimination matters. One day, a group of citizens asked the attorney to represent them before the county planning commission to oppose the widening of a county road. The school district had separate budgetary funding, and it had an elected governing Board with its own authority to hire legal counsel. In contrast, the members of the county planning commission were appointees by the County Executive, and lawyers at the County Solicitor's office handled the legal work for the commission, though the commission and the County Solicitor's office received their funding from separate line items in the county budget. Would it be proper, under these facts, for the attorney to agree to represent the citizens against the Commission, without informing them of her existing relationsh

c) The attorney would have no obligation under the ethical rules to inform the citizens group about her representation of the school district, or the school district about her representation of the citizens group against the county planning commission in the road- widening dispute. ABA Formal Op. 97-405

84. An attorney served for several years as an appellate court judge. At one point, the judge was on a panel that affirmed two trial orders in an ancillary probate proceeding. Soon thereafter, the attorney left the appellate court and returned to private practice at Boutique Firm. The larger probate matter was still dragging on, and relators brought a mandamus appeal arising out of the same ancillary proceeding and hired Boutique Firm to represent them on the appeal. This necessitated filing a motion to substitute counsel from a previous firm that had provided representation up to that point. Opposing counsel did not oppose the motion, as they did not know Boutique Firm had hired a former appellate judge who had signed earlier orders in the case. Boutique Firm did not screen the former judge from the matter. When opposing counsel eventually realized this fact, the lawyer immediately filed a motion to disqualify Bouti

c) The court should grant the motion as the matters related to each other, and the moving party did not have adequate notice about the conflict to give informed consent. In re de Brittingham, 319 S.W.3d 95 (Tex. 2010)

59. A potential client sought representation from an attorney in a legal dispute over the inheritance rights in an estate matter. The attorney was indecisive, because the estate was extremely complicated, so he met with the client several times over the next few months, trying to understand the intricacies of the will, the trusts involved, and the rival heirs. The potential client provided extensive confidential information about the estate to the attorney in meetings, phone calls, and emails. Eventually, however, the attorney declined the representation. During this time, the attorney had been in negotiations with another lawyer about forming a new law firm together. The other lawyer, unfortunately, was representing the rival heir, that is, the opposing party in the same estate matter. When the attorney and the other lawyer formed their new firm, the heir who had been the potential client then sought to have the att

c) The court should grant the motion, because lawyers have some ongoing duties of confidentiality toward prospective clients, even after declining the representation, and the other lawyer has a conflict of interest by imputation. In re Whitcomb, 575 B.R. 169 (S.D.Tex.-Houston Div. 2017).

18. Two separate clients hired the same attorney, signing their retainer agreements one week apart, on unrelated matters, though both involve property owners' rights under the state's common law doctrine of public trust for beaches, which guarantees public access to beaches up to the vegetation line on the shore. In one case, erosion has moved the boundary back on the property owner's lot to the point where his house is now clearly on the public access portion, and he seeks a declaratory judgment that erosion cannot jeopardize the private ownership of a building and its curtilage. Current public trust doctrine in the state would suggest that the property owner has lost all the value in his property, so he needs to seek a change or exception to the current law. The other case involves a property owner whose lots had always been separated from the beach by a small public park, but erosion has eliminated the park and gi

c) Yes, a conflict of interest exists if there is a significant risk that a lawyer's action on behalf of one client will materially limit the lawyer's effectiveness in representing another client in a different case, as when a decision favoring one client will create a precedent likely to seriously weaken the position taken on behalf of the other client.

94. A client explains to his attorney that he is operating an illegal website where users can anonymously upload and download pirated music and videos, in violation of copyright laws and other anti-piracy statutes. The website is very lucrative for its operator, and the client has become a multimillionaire by founding and operating the site. The client is concerned about potential criminal charges or civil lawsuits over the website. His attorney explains to the client how he could use a series of dummy limited liability corporations, mail forwarding addresses, and offshore bank accounts to avoid detection. Each of the steps of the process the attorney describes is technically legal - creating the corporate entities, purchasing mail-forwarding services, and opening bank accounts in Belize. The attorney decides not to charge the client for this advice session but bills the client for other transactional work performed.

c) Yes, because a lawyer must avoid assisting a client in fraudulent or criminal activity, which includes suggesting how to conceal the wrongdoing. Rule 1.2 Cmt 9

93. Husband hired a certain attorney to represent him in a divorce; the husband and wife had three adult children. Husband was quite upset when he met with the attorney, because his wife had filed for divorce and he felt deeply betrayed. The couple had a prenuptial agreement that clearly delineated the division of assets in case of divorce, and child custody is not an issue as the children are in their twenties. As part of his routine consultation questions, the attorney asked if there had been any marital infidelity on the part of either the husband or wife. Husband admitted to the attorney that he once had an affair many years ago, that the wife never discovered, and that he wanted to keep secret, if possible. He then speculated that he had no idea if his wife had ever had an affair, then became very emotional as he considered the possibility. Within minutes, he had convinced himself that his wife had been having a

c) Yes, the terms of the representation agreement may exclude specific means that might otherwise serve used to accomplish the client's objectives, such as actions that the lawyer regards as repugnant or imprudent. Rule 1.2 Cmt. 6

50. An experienced attorney had his own solo law practice. The attorney agreed to provide representation to a certain client, which would entail researching and writing several legal opinions for the client pertaining to the client's anticipated litigation, and the attorney's usual hourly rate. The proposed research and writing would require a substantial amount of time, so their agreement stipulated that the attorney would bill the client every two months. The client paid the first bill and then stopped paying. After several months, the anticipated litigation began, and the client requested copies of all the remaining legal opinions that the attorney had agreed to write. The attorney had followed state laws to secure a lien on his work product for the client after the client stopped paying. Could the attorney be subject to discipline if he were to retain the documents that the client has not yet paid for? a) Yes,

d) No, a lawyer may acquire and act upon a lien authorized by law to secure the lawyer's fee or expenses. Model Rule 1.8(i) Cmt. 16; RESTATEMENT § 43

83. An attorney served for a while as a municipal court judge, and during that time, she sentenced certain defendants facing criminal charges to terms of probation. Eventually the judge left the court and returned to private practice. Once settled in her new practice, three prospective clients sought to hire her file motions to end their terms of probation early, due to their good behavior and their need to relocate for their jobs. Would it be proper for the attorney to represent them in filing these motions? a) Yes, sentencing municipal defendants to probation is merely an administrative matter that would not necessitate the disqualification of a former judge who later represents the same individuals in seeking to end their probationary terms. b) Yes, filing a motion to end probation early due to good behavior is not the same matter as the original crimes for which the received the sentence. c) No, the attorney

d) No, a lawyer who served as a judge may not represent a client in a matter in which the lawyer had personal and substantial involvement. In re Moncus, 733 S.E.2d 330 (Ga. 2012)

75. Conglomerate Corporation spilled a large quantity of toxic sludge along the edge of its property, and spillage polluting two adjacent properties, one parcel owned by a private individual, and the adjoining parcel that was state-owned. The subdivision of the state that owned the polluted parcel agreed with the private landowner to be co-plaintiffs in a tort action against Conglomerate as the polluter, and to use the same attorney to represent both the state and the private landowner. The private landowner was mostly concerned about the loss to his property values, as this was an investment property. The state was concerned entirely with cleanup costs and the threat to public health. An authorized official at the state agency provided the attorney with written consent to the potential conflicts of interest inherent in the joint representation, as did the private landowner. Under such circumstances, would it be impr

d) No, after obtaining the necessary written consent, the attorney may represent both the private party and a government agency. Model Rule 1.11, Cmt. 9

38. A certain attorney represents a client in a civil suit. The client and the attorney often discuss their hunting trips and have gone hunting together on several occasions. The client tells the attorney he is purchasing a piece of property for hunting with five other people and asks the attorney if he would like to go in on the purchase. The attorney tells the client he would like to join in the purchase and he provides the client with a check for his portion of the purchase price. Is the attorney subject to discipline? a) Yes, attorneys shall not enter into transactions with clients that result in joint ownership of property. b) Yes, attorneys shall not engage in social activities with current clients or enter into transactions that result in joint ownership of property. c) No, attorneys may enter into transactions with clients assuming the transactions are not related to the current representation of the clie

d) No, attorneys can enter into fair and reasonable business transactions with clients, assuming the client receives an advisory in writing of the benefit of seeking advice from independent counsel and gives informed consent, in writing and signed by the client, of the transaction details. Rule 1.8(a)

34. A transactional attorney agreed to represent a new client who already had representation by trial counsel on another matter. The client agreed to a complex fee arrangement, which included a fixed flat fee for the first phase of the transaction, a modest hourly rate for the remainder of the transaction, and a modest contingent fee in addition to these other fees, scaled to the outcome of the transaction - that is, a higher contingent fee for obtaining more favorable final terms in the transaction. The attorney did not advise the client to seek the opinion of independent legal counsel for this transaction, and did not obtain signed, written consent from the client about the attorney's role in the transaction. The client's other lawyer reviewed the terms of the fee agreement and advised the client to accept it. Based on these facts, could the attorney be subject to discipline for violating the provisions Model Rule

d) No, because Rule 1.8 does not apply to ordinary fee arrangements between client and lawyer. Rule 1.8(a) Cmt. 1

99. A litigation attorney represented a certain defendant in a lawsuit. The client was absent during the final pre-trial hearing about which experts the court would permit to testify at trial for each side. As the hearing was wrapping up, plaintiff's counsel asked the court to have the record sealed in the upcoming trial, and to have reporters banned from the courtroom. The trial involved sensitive information about the mental health of some of the children involved as parties and witnesses in the case. The court agreed but asked if the defendant had any objections. The defendant's attorney tried to reach his client by phone, but he could not get through. There was no obvious reason to oppose the motion, so the attorney agreed on his client's behalf. The judge ordered the record sealed for the upcoming trial.The client never returned the attorney's phone call, and the attorney forgot to mention what had transpired un

d) No, because even when an immediate decision is necessary during trial, and the exigency of the situation may require the lawyer to act without prior consultation, the lawyer must tell the client about it as soon as possible. Rule 1.4

41. An attorney was preparing a will for one of her wealthy elderly clients. The client had no surviving family members - her spouse had passed away years before, as had her siblings, and she had no children. The client asked the attorney for suggestions about potential beneficiaries of the estate, besides her favorite charities, and she offered to leave the attorney some items. The attorney replied, "Well, I've represented you on various matters over the years, and I have always looked out for your best interests, so I would not object if you included me in the will. I've always admired your collection of antique furniture and books." The client was delighted by the idea and instructed the attorney to include a provision in the will bequeathing all the antique furniture and books in her large home to the attorney. The attorney prepared the will as instructed and the client executed it. Was the attorney's conduct pro

d) No, because the attorney should not have prepared the will if the document made a significant bequest to the attorney. Rule 1.8(c)

78. A certain state has specialized family courts that handle divorces, child custody, child removal cases brought by state social service agencies, and spousal or child support enforcement. An unmarried couple had split up but they had two children, and the family court judge awarded custody of the children to the single father, and ordered the mother of the children to pay $500 per month in child support to the father. A few months later, the judge left the family court and returned to private practice, specializing in family law, which allowed him to draw on his valuable experience as a former judge in the family court. One day, the father from the case described above came for a consultation, and he explained that the mother of the children had been delinquent for the last two months in paying child support to him. Would it be proper for the judge to represent the father in the action to enforce the child support

d) No, because the attorney would be representing a party in seeking enforcement of his own order from his time on the bench.

62. Xavier Firm is about to file a patent-infringement action on behalf of a new client against an alleged infringer (the opposing party). Xavier Firm has no patent lawyers in its office, so it affiliates with Yankee Firm, which specializes in patent and trademark law, to handle the representation. Yankee Firm has had no connection with the opposing party, but an attorney in Yankee Firm represents Bruce Wayne against Tony Stark, another of Xavier Firm's clients, in an unrelated matter. For purposes of analyzing the conflict of interest in the representation of the new client against the patent infringer, would a court or disciplinary authority impute the attorney's representation of Bruce Wayne to Xavier Firm, and Xavier Firm's relationship with Tony Stark to Yankee Firm? a) Yes, because one lawyer's conflict of interest applies by imputation to all other lawyers at the firm, and an affiliated firm is functionally

d) No, because the fact that Xavier Firm and Yankee firm represent opposing clients in a different, unrelated matter would not prevent their affiliation in the patent matter. RESTATEMENT § 123

8. A husband and wife decide to divorce and reach an agreement to share the same lawyer in hopes of saving money. They hire an attorney to represent each of them in Family Court for the dissolution of marriage. The attorney explains that there is an obvious conflict of interest here, but the husband and wife insist, and sign informed consent forms waiving the conflict and their rights to assert any future claims related to the conflict. The husband and wife have no children, and they have always kept separate bank accounts. Each purchased their own car from the money in their own bank account and each car's title is in only one name. They live in an apartment whose lease is expiring soon, so there is no real property to divide. Would it be proper for the attorney to represent both in the divorce? a) Yes, because it appears on these facts that there will be no assets in dispute at all, so the theoretical conflict of

d) No, because the representation involves the assertion of a claim by one client against another client represented by the lawyer in the same litigation or other proceeding before a tribunal.

35. A certain client needed to sell a parcel of real estate to pay off a large amount of credit card debt. He brought this situation to the attention of his attorney, who was representing him in his interactions with collection agencies and credit bureaus. The attorney offered to purchase the property immediately for the full amount of the client's outstanding credit card debt - just over a hundred thousand dollars - without delaying the matter by arranging a mortgage first, or having the property appraised. The client was disappointed, because he thought the property was worth more than that, but he agreed due to his dire financial circumstances. The attorney fully disclosed the terms of the purchase to the client, in understandable written form, and advised the client in writing that it would be prudent to consult with another lawyer about the transaction, which the client could not realistically afford to do. The

d) No, because the transaction was objectively unfair. Committee on Prof. Ethics v. Baker, 269 N.W.2d 463 (Iowa 1978) Rule 1.8(a); RESTATEMENT § 126

11. An attorney has applied to make a lateral move from her firm to Big Firm, and she has already gone through the first two of three rounds of interviews for the position. Then the attorney agrees to represent a client in filing a breach of contract claim against Construction Company over a commercial development project. Big Firm is representing Construction Company, and the firm's lawyers drafted the contract that forms the basis of the client's complaint. The client claims that Construction Company breached a certain provision of the contract that is ambiguous; Construction Company is confident that its conduct falls within the contractual language in that provision. Is it proper for the attorney to undertake representation of the client in this case? a) Yes, assuming the client gives informed consent to the representation despite the conflict of interest here. b) Yes, because there is no clear conflict of int

d) No, because when a lawyer has discussions concerning potential employment with an opponent of the lawyer's client, or with a law firm representing the opponent, such discussions could materially limit the lawyer's representation of the client.

72. A large municipality has a labor dispute with its police union. The chairperson of the city council is a lawyer - she works for the city council part time, and she also has a law partnership with one other lawyer. As chairperson of the city council, she has the final word on which items will be on the council's agenda at each meeting. A few city council members who support the police union want their modest proposal for police pension reform to be on the agenda at an upcoming meeting. The police pension fund has not received its full contribution from the city for several years, and even though all current retired officers are receiving their full pension benefits on time, a wave of expected retirements over the next few years would create a crisis if the pension remains underfunded. The proposal would require the city to make a significant increase in its annual contributions to the fund, which would force cuts

d) No, due to imputation of the chairperson's conflict of interest to her law firm partner.

1. Conglomerate Corporation owns a little more than half the stock of Giant Company. Conglomerate's stock, in turn, is public, available on the public stock exchange, as is the remainder of the stock in Giant Company. The president of Conglomerate Corporation has asked Attorney Stevenson to represent Giant Company in a deal by which Giant would make a proposed transfer of certain real property to Conglomerate Corporation. The property in question is unusual because it contains an underground particle collider used for scientific research, but also valuable farmland on the surface, as well as some valuable mineral rights in another part of the parcel. These factors make the property value difficult to assess by reference to the general real-estate market, which means it is difficult for anyone to determine the fairness of the transfer price in the proposed deal. Would it be proper for Attorney Stevenson to facilitate

d) No, not unless the attorney first obtains effective informed consent of the management of Giant Company, as well as that of Conglomerate, because the ownership of Conglomerate and Giant is not identical, and their interests materially differ in the proposed transaction. RESTATEMENT § 131

3. An attorney decides to purchase "litigation cost protection" insurance for matters she handles on a contingency fee basis. Plaintiffs' lawyers can buy this type of insurance on a case-by-case basis, for a one-time premium payment. The insurance is available for purchase up to three months after the filing of the initial complaint. Note that this policy is separate and distinct from malpractice liability insurance. The purpose of this type of insurance is to reimburse the attorney for litigation costs advanced by the attorney - only in the event of a trial loss. Do the Model Rules of Professional Conduct prohibit the attorney from purchasing litigation cost protection insurance for her contingency fee cases? a) Yes, because the client and the attorney may have different cost-benefit calculations. b) Yes, for an attorney may prefer that his client accept a low settlement offer to ensure that the attorney receives

d) No, the attorney may purchase litigation cost protection insurance so long as she does not allow the terms of the coverage to adversely affect her independent professional judgment, the client-lawyer relationship, or the client's continuing best interests. N.C Formal Ethics Op. 2018-6

5. Mr. Burns, the chief executive officer of Conglomerate Corporation, now faces criminal charges of discussing prices with the president of a competing firm. If found guilty, both Mr. Burns and Conglomerate Corporation will be subject to civil and criminal penalties under state and federal antitrust laws. An attorney has been representing Conglomerate Corporation. She has conducted a thorough investigation of the matter, and she has personally concluded that such pricing discussions did in fact occur. Both Mr. Burns and Conglomerate Corporation have stopped their denials, and they now concede that the pricing discussions took place. One of Mr. Burns' defenses will be that the former general counsel of Conglomerate Corporation had advised Mr. Burns that a discussion of general pricing practices with a competitor would not be illegal. In contrast, Conglomerate Corporation denies that this was the legal advice given, a

d) No, the conflicting positions between Conglomerate and Mr. Burns are so great that the same lawyer cannot provide adequate legal representation to both, so consent to the conflict is ineffective. N.C Formal Ethics Op. 2018-6

52. Attorney Stevenson was willing to represent anyone, and rarely turned clients away. In fact, Attorney Stevenson would push the permissible limits under the conflicts of interest rules. At one point, Stevenson helped a construction company obtain the necessary permits from federal, state, and municipal agencies for constructing a new shopping center in an affluent suburban area. Obtaining the permits was not difficult - in fact, Attorney Stevenson found this kind of legal work boring. Before the construction was complete, another company acquired the property and the building project, and brought the construction to completion. Seventeen months after the building was open for tenants, one of the tenants missed to pay rent for his unit for three consecutive months, and the property manager started an eviction process. The tenant hired the same attorney to represent her in the eviction proceedings. The shopping cent

d) No, the matters are not related enough, because they do not involve the same transaction or legal dispute, and any confidential information learned while obtaining the construction permits prior would be unimportant for the nonpayment of rent by a tenant sometime later. Rule 1.9 Cmt. 3

49. A plaintiff who had prevailed at trial needed representation for the appeal, because the defendant in the case appealed the verdict. Plaintiff's counsel did only trial work, not appellate work, and referred the client to an appellate attorney nearby. The trial lawyer even accompanied the plaintiff to the initial consultation with the appellate attorney to help facilitate the transition and to safeguard his client's interests in retaining new counsel. The appellate attorney asked the plaintiff to sign an agreement waiving potential malpractice claims against the appellate attorney, because the plaintiff had not yet terminated the representation with her trial lawyer, and the appellate attorney did not want to be responsible for the trial lawyer's mistakes. The appellate attorney did not inform the plaintiff fully about the risks or downsides of waiving malpractice future malpractice claims, nor did he advise the p

d) No, the plaintiff already had independent legal counsel in connection to the malpractice waiver. Rule 1.8(h)

56. An attorney worked at Big Firm, which a court disqualified from representing a client in a case because one of the other lawyers at the firm had a conflict of interest regarding a former client, and this conflict was imputable to the entire firm. The firm was not timely in implementing screening measures and became subject to disqualification. The attorney was at the firm during this time but was not involved in the matter and did not learn any confidential information about the client. Eventually, the attorney left that firm and went to work at another firm. It turned out that the attorney's new firm is representing the client instead - the client hired the new firm after the previous firm was subject to disqualification. The new firm has no measures in place to screen the attorney from participation in the matter, though the attorney is not in fact participating in the representation. Will the new firm be subje

d) No, there is no doctrine of double-imputation that would impute a purely imputed conflict from the attorney onto the other lawyers in the new firm. Rule 1.9

37. An attorney has a successful blog about legal practice, and the blog generates substantial side income for the attorney. The attorney posts entertaining stories about his clients that attract the attention of his readers and make the blog successful and lucrative. He does not obtain client consent for these posts, but he is careful 1) not to post anything that would seriously injure the client's reputation or legal interests, and 2) not to post information about individuals that is truly confidential, that is not part of the public record. On the other hand, he does post about his personal observations and opinions of clients and their lifestyles, and often shares generalizations based on confidential information of former clients, such as: "On three occasions I've had clients who lived a double life, maintaining separate families in separate cities, and their families never knew." Another post recounted, "Last y

d) The attorney has a common-law fiduciary duty not to profit from using client information even if the use complies with the lawyer's ethical obligations, without accounting to the client for any profits made. ABA Formal Ethics Op. 18-480 (2018), fn. 16, citing RESTATEMENT § 60(2); Accord D.C. Bar Op. 370 (2016).

25. An attorney serves as the lawyer for a corporation and is a member of its board of directors. Which of the following is true regarding this situation? a) The attorney is subject to discipline, because the responsibilities of the two roles may conflict, as when Attorney must advise the corporation in matters involving actions of the directors, and there is always a material risk that the dual role will compromise the lawyer's independence of professional judgment. b) The attorney must limit his legal representation of the corporation to transactional and regulatory matters, and cannot represent the corporation in litigation against adverse parties, as there is always a material risk that the dual role will compromise the lawyer's independence of professional judgment. c) The attorney must have the final word on decisions of the board when he is present as a director, because Attorney bears responsibility for t

d) The attorney must advise the other board members that in some circumstances, matters they discuss at board meetings while the attorney is there as a fellow director would not be protected by the attorney-client privilege in later litigation; and that conflict of interest considerations might require the attorney's recusal as a director, or might require the attorney to decline representation of the corporation in a matter.

10. A client owns a partnership share of a closely-held business, and the other partners vote to impose an involuntary buy-out of the client to remove him from the firm. The client is clearly upset about this, but the partnership agreement clearly permits involuntary buyouts by a majority vote of the other shareholders. Then the client hires an attorney to represent him in the buyout transaction, to review the necessary documents and provide legal counsel about it. No litigation is under consideration yet. The attorney's sister is also a lawyer in that city, at another firm, and the sister represents the other shareholders in the partnership. Nevertheless, the attorney did not disclose that her sister represented the other partners, as she and her sister are not close and rarely speak, and the matter is unlikely to turn into litigation. Is the attorney, or the other lawyers in her firm, subject to disqualification in

d) The attorney would be subject to disqualification, but ordinarily the other lawyers in her firm would not be subject to disqualification.

67. Big Bank hired Big Firm to represent it in a matter against Developer. Big Firm's partners explained to Big Bank before commencing the representation that they had hired an associate who previously worked for the firm that was representing Developer, and that he had worked on various matters for Developer while there. None of the associate's work was on the same case that was now pending, but it was unclear whether some of the matters had overlapping factual or legal issues with the present matter. Big Firm gives consent to the representation despite the conflict of interest, but it conditioned its consent on Big Firm implementing strict measures to screen the associate from any participation in the matter - including relocating the associate to another office at the firm, where he would not have day to day contact with lawyers representing Big Bank. The partners agreed, but it took a few months for them to free

d) Yes, a client's informed consent to a conflict can be qualified or conditional, as here, and Big Firm violated the client's condition, so it did not have valid consent to the conflict. RESTATEMENT § 122

89. A certain attorney represents a defendant in a murder case. At trial, the jury convicted the client and sentenced him to death, and the appellate courts upheld the conviction as well as the sentence. The attorney has now offered to file a habeas corpus petition in federal court to appeal the case to the United States Supreme Court, if necessary. The defendant, however, has developed terminal cancer, and does not expect to live another six months. The defendant tells the attorney to drop the appeals because even if they won, the defendant would not live long enough to enjoy his freedom. Even so, the defendant does not terminate the representation, because he wants the attorney to handle his estate planning matters while he is on death row, and he has some administrative complaints in progress against the prison where he is living. The attorney strongly opposes the death penalty and believes his client is innocent,

d) Yes, because a lawyer shall abide by a client's decisions concerning the objectives of representation and shall consult with the client as to how to pursue these ends.

87. Client is the leader of a radical religious group that protests at the funerals of soldiers who died tragic combat deaths overseas. The protests are not against the war, however, but against society's increasing tolerance of homosexuality and gay marriage. The client and his followers stand outside the funerals as grieving family members arrive, and they hold large picket signs emblazoned with hateful sayings against homosexuals, some of which use shocking language. They also hold signs indicating they are happy that American soldiers die frequently, because they believe these deaths validate their point that the country is on the wrong course morally and has become evil by being more tolerant. The group heckles those attending the funerals, but then disperses once the funeral ceremony starts. The group receives regular national media coverage because of the intentionally sensational and shocking nature of their

d) Yes, because a lawyer's representation of a client does not constitute an endorsement of the client's political, economic, social, or moral views or activities. Rule 1.2(b)

73. A local abortion clinic hires the McCorvey Law Firm to represent it in an enforcement action brought by a state health agency. The action pertains to alleged health code violations at the clinic. The firm's principle partner, Norma McCorvey, has strong, outspoken political beliefs against abortion, and cannot set aside her personal convictions to provide representation to the clinic in the matter. An associate at the firm, however, supports the clinic's mission, and offers to represent the clinic instead of Attorney McCorvey. If McCorvey agrees to let the associate represent the clinic, would it be proper for the associate to do so, despite the partner's strong convictions that the clinic should be shut down? a) No, because the named partner at the firm has a material limitation that creates a conflict of interest that would be imputed to the rest of the lawyers at the firm. b) No, because the lawyers at the f

d) Yes, because even though Attorney McCorvey could not effectively represent the client due to her political beliefs, this would not materially limit the representation by the associate at the firm. Rule 1.10 Cmt.3

65. Attorney Stevenson is a partner in ABC law firm, and Lawyer Best formerly was a partner. A new client has sought to retain Attorney Stevenson to file suit on behalf of the client against Conglomerate Corporation. Before joining the ABC firm, Lawyer Best had represented Conglomerate Corporation at an earlier stage of the current dispute. Lawyer Best has now resigned from the ABC firm, disclosed no confidential information about Conglomerate Corporation relevant to the matter to other lawyers in ABC, left no files at ABC that relate to the proposed suit, and will not share in fees derived by the ABC firm from the representation of the new client. Given that Lawyer Best represented Conglomerate Corporation in the same matter, and then worked for ABC law firm in between (but has recently left the firm), is it proper for Attorney Stevenson to represent the new client in the matter against Conglomerate? a) No, becaus

d) Yes, given Lawyer Best's departure and the fact that nobody else at the firm learned confidential information about Conglomerate Corporation, there is no remaining imputation of Best's conflict of interest. RESTATEMENT § 124 sec. c(i).