Glannon Guide: MPRE

Certified by whom? An attorney is properly certified as an immigration law specialist by a state bar organization that provides official certifications. In her advertisements, the attorney describes herself as a "Certified Specialist in Immigration Law" without identifying the certifying organization. The attorney also mentions that she speaks Spanish and Portuguese (besides English), and that her fees are very affordable. Could the attorney be subject to discipline for making such statements in her advertisements? A. Yes, because she failed to identify the certifying organization. B. Yes, because a lawyer should not claim in an advertisement that she has special expertise compared to other lawyers in some area. C. No, because this lawyer is indeed a certified specialist. D. No, because a lawyer may not obtain certification in an area of law involving federal statutes.

A. Yes, because she failed to identify the certifying organization.

Let's fix this. An attorney is a fifth-year associate at a large firm, hoping to make partner in the next two or three years. She supervises the first-year associates at the firm. She learns that the most recently hired associate recently shredded some evidence that would have undermined a client's case, and then told the judge and opposing party that the missing documents had been in a briefcase that went missing when a burglar broke into the associate's car. The attorney knows this is not true and discusses it with the senior litigation partner, who finds the story amusing. Neither reports the associate's deception to the judge or opposing party. Which of the following statements is true regarding this situation? A. Both the attorney and the litigation partner are subject to discipline for not taking action to correct the associate's false statements and misconduct. B. The attorney is subject to sanctions, as she was directly supervising the associate, but the senior litigation partner was not involved, did not know about it at the time, and has no responsibility in the matter. C. The associate is subject to discipline, but neither the attorney nor the senior litigation partner would be subject to discipline, as they were not aware of the misconduct until after the fact. D. The senior litigation partner is subject to discipline because he has a responsibility to take reasonable measures to ensure that everyone in the firm complies with their ethical duties, but the attorney is not subject to discipline, as she is merely an associate at the firm.

A. Both the attorney and the litigation partner are subject to discipline for not taking action to correct the associate's false statements and misconduct.

Former clients and new clients. Lawyer Laura worked at the Abel & Bentley firm for five years, and she specialized in real estate. During the last three years, Lawyer Laura has worked extensively on Client Cain's properties and disputes that arose related to them. Before leaving the Abel & Bentley firm, Lawyer Laura handled a new real estate deal for Client Cain that facilitated the erection of a new apartment complex. Lawyer Laura now works at the Davis & Eldridge firm. One of her first assignments is a case in which a Client Seth, a new client of the first, is suing Cain over a disputed right of way through the very property that now holds the new apartment complex — Seth and Cain are neighbors. Can Laura represent Client Seth against her former client, Cain? A. Lawyer Laura may represent Client Seth if Client Cain consents in writing to her doing so. B. Lawyer Laura may not represent Client Seth in the same or substantially the same matter unless Client Cain consents in writing. C. Lawyer Laura may not represent Client Seth in the same or substantially the same matter unless Client Seth consents in writing. D. Lawyer Laura may represent Client Seth because Lawyer Laura left Abe & Bentley and no one

A. Lawyer Laura may represent Client Seth if Client Cain consents in writing to her doing so.

Contingent fees in criminal cases. A client retained an attorney to represent him in two cases: a criminal case and a divorce case. The attorney required that the client pay a retainer fee for the family law case, which billed at the attorney's hourly rate. The attorney then arranged for the client to pay him based on a contingency fee for the criminal case. The attorney and the client both signed the combined contract, which detailed each fee arrangement for each case, and the attorney's representation began. Are the attorney's actions proper? A. No, as attorneys cannot charge a contingent fee for representing a defendant in a criminal case. B. No, because attorneys must have separate contracts for each separate case the attorney is handling for a client. C. Yes, because attorneys can charge hourly rates for domestic relations matters and can charge contingency, hourly, or flat fees for criminal cases. D. Yes, because attorneys are restricted from charging contingency fees only in domestic relations matters when the payment is contingent upon the securing of a divorce or upon the amount of alimony, support, or property settlement.

A. No, as attorneys cannot charge a contingent fee for representing a defendant in a criminal case.

Client uses lawyer's advice to commit fraud. A client met with an attorney to discuss certain financial decisions that the client was considering making in the future. The attorney discussed the pros and cons of making the decisions, but did not give a recommendation to the client. The client went on to make the financial decisions and ultimately came under investigation by the IRS for tax fraud. Is the attorney subject to discipline? A. No, because an attorney may analyze and give an opinion about the likely consequences of a client's conduct. B. No, because attorneys are authorized to give opinions and provide any recommendations to their clients, and the attorneys are not held liable for the decisions of their clients, even if made at the recommendation of the attorney. C. Yes, because the attorney's advice constitutes assisting a client in committing fraud. D. Yes, because an attorney shall not give advice to clients for actions they anticipate making, especially if those actions might expose the client to criminal or fraudulent liability.

A. No, because an attorney may analyze and give an opinion about the likely consequences of a client's conduct.

Get all the facts out in the open. A lawyer is representing the defendant in a personal injury trial between a celebrity plaintiff and a famous hotel, where the plaintiff claims to have suffered injuries due to unsafe conditions. On his way into the courthouse on the day of jury selection, reporters gather around the lawyer hoping for comments. The lawyer explains that his client has already made renovations to the hotel to ensure that no accidents happen in the future, even though they do not admit liability in the present case. He also explains that if his client loses, his insurance company will simply pay the damages, and lawsuits like this make everyone's insurance premiums go up. The lawyer has his client's permission to talk to the media. Opposing counsel is standing nearby waiting for his turn to talk, and he expresses no objection to the first lawyer giving interviews like this, or to the lawyer's comments. Were the lawyer's statements proper? A. No, it violates the Model Rules for a lawyer to make public statements about information that the lawyer knows or reasonably should know is likely to be inadmissible as evidence in a trial and that would, if disclosed, create a substantial risk of prejudicing an impartial trial. B. Yes, because the other lawyer is present and did not object to the comments at the time, and the client has consented to the lawyer's media communications. C. No, because in civil trials a defendant's lawyer should not tell the press that his client denies liability in the case. D. Yes, the rules about trial publicity explicitly permit lawyers to talk about defenses in the case, and the client's mitigation efforts and public policy concerns over skyrocketing insurance rates could be the defendant's main arguments to the jury.

A. No, it violates the Model Rules for a lawyer to make public statements about information that the lawyer knows or reasonably should know is likely to be inadmissible as evidence in a trial and that would, if disclosed, create a substantial risk of prejudicing an impartial trial.

Contacting the warehouse worker. While preparing for a trial over workplace discrimination, the plaintiff's attorney contacts an entry-level, night-shift worker in the company's off-site warehouse, who supposedly told the frequent, shocking sex jokes that led to the "hostile environment" claim by female workers that became the subject of the pending lawsuit. The attorney did this without the permission of the company's lawyer, even though he suspects the company's lawyer would have allowed it if he had asked. The warehouse worker has no supervisory authority, has never been to the corporate offices, has no authority to bind the company, and is now on suspension (unpaid leave) while the company does its own internal investigation of the allegations. Was the communication by the plaintiff's attorney proper? A. No, the attorney may not communicate with the constituent of a represented organization (opposing party) whose act or omission in connection with the matter may be imputed to the organization for purposes of civil liability. B. Yes, because this is a low-level employee who has no supervisory authority, has never been to the corporate offices, and has no authority to bind the company C. Yes, because the temporary suspension of the worker (unpaid leave) makes him a former constituent of the organization rather than a current constituent D. Yes, if the plaintiff's attorney honestly believed that opposing counsel would have allowed the communication if the lawyer had asked.

A. No, the attorney may not communicate with the constituent of a represented organization (opposing party) whose act or omission in connection with the matter may be imputed to the organization for purposes of civil liability.

Duties in the cloud. The attorney has switched to cloud computing, meaning that their firm pays a monthly fee to store all their spreadsheets and documents in an Internet-based database or archive. This protects client information and case documents from being lost whenever a computer at the firm crashes; the cloud service automatically creates an online backup for every file. According to the Rules of Professional Conduct, which of the following is true? A. The attorney and his firm have an affirmative duty to make reasonable efforts to ensure that the cloud service is secure against computer hacking or other invasive access to clients' confidential information. B. The attorney and his firm were correct in prioritizing the protection of documents against loss from failed hard drives over the protection of client confidentiality, as the chances of a security breach on the cloud server are extremely low. C. If the cloud storage company advertised that its online servers were super-secure, the lawyers have no duty to make additional inquiries about the risk of disclosing clients' confidential information. D. It is not a violation of the rules if the employees at the cloud storage company can access the information stored on their servers.

A. The attorney and his firm have an affirmative duty to make reasonable efforts to ensure that the cloud service is secure against computer hacking or other invasive access to clients' confidential information.

Not my brother's keeper. An attorney is a second-year associate at a law firm with no supervisory responsibilities. He learns that another second-year associate is working on a case in which the client is suing a company that the other associate used to represent at his previous firm, and the attorney suspects it is a substantially related matter. The firm has done nothing to screen the other associate from the matter. No one ever discusses it with the attorney, and the attorney does not know all the facts of the situation. Later, the client sues the firm for malpractice due to the conflict of interest, and reports the matter to the state disciplinary authority. Which of the following is true regarding the attorney's involvement in the situation? A. The attorney does not have disciplinary liability for the conduct of the other associate, because he is neither a partner nor in a supervisory position, and did not participate in the violations directly. B. The attorney is subject to discipline because he had an affirmative duty to inquire about the potential conflict and the lack of screening of this other associate. C. The attorney is subject to discipline because the Rules of Professional Conduct impute violations of any lawyer in the firm to all other lawyers in the firm. D. The attorney does not have disciplinary liability in this matter because the Rules of Professional Conduct do not impute conflicts of interest to other lawyers in the same firm just because the firm failed to screen one associate with a possible conflict with former clients.

A. The attorney does not have disciplinary liability for the conduct of the other associate, because he is neither a partner nor in a supervisory position, and did not participate in the violations directly.

Just following orders. The attorney is an associate at a small firm, and her supervising partner instructs her to draft pleadings in a case for a client. The supervising partner knows that the statute of limitations has already run on the claim, and that the client had virtually no factual evidence to support the claim in any case. The partner believes the opposing party will want to settle the claim quickly for a modest sum, and will not bother to investigate issues such as the statute of limitations or the factual support for either side. The attorney follows the partner's instructions and drafts the pleadings, without checking the statute of limitations for this particular claim or conducting her own investigation into the facts of the case. Opposing counsel, however, is upset over the frivolous claim and reports the attorney to the state bar. Which of the following is correct regarding the attorney's situation? A. The attorney is probably not responsible for asserting a frivolous claim, and the fact that she was just following orders could support her defense that she was unaware that the claim was frivolous. B. The attorney is responsible for asserting a frivolous claim, despite the fact that her supervising partner insisted that she do it. C. Neither the attorney nor the partner would be subject to discipline as long as the case settles before trial. D. If the partner had terminated the attorney for refusing to assert the frivolous claim, the state bar disciplinary authority would have compelled the firm to reinstate her.

A. The attorney is probably not responsible for asserting a frivolous claim, and the fact that she was just following orders could support her defense that she was unaware that the claim was frivolous.

Nuremberg defense. An attorney is an associate in a litigation firm representing plaintiffs. In her current case, her supervising partner instructs her to assert that the defendant had an affirmative statutory duty to protect the plaintiff's interests, even though the attorney can find no statute to support this assertion. The attorney has brought this to the attention of her supervising partner, who rebuked her for questioning his authority and insisted that she do as he said. He assures her that the defendants will settle before trial anyway, so the bogus claim merely gives some psychological leverage during settlement negotiations, and cannot do any harm. Moreover, the partner says that the attorney may not last long at the firm if she cannot follow instructions, which seemed to be a threat of termination. At a preliminary hearing, however, the judge confronts the attorney about the unsupportable claim, and she concedes that no statutory duty exists. The judge is irate and considers reporting the attorney to the state bar disciplinary authority. Which of the following is correct regarding the attorney's situation? A. The attorney is responsible for asserting a frivolous claim, despite the fact that her supervising partner insisted that she do it and threatened her with termination. B. The attorney is not responsible for asserting a frivolous claim, because her supervising partner insisted that she do it and threatened her with termination. C. Neither the attorney nor the partner would be subject to discipline as long as the case settles before trial and the bogus claim about statutory duties was not the sole basis for their complaint. D. If the partner had terminated the attorney for refusing to assert the frivolous claim, the state bar disciplinary authority would have compelled the firm to reinstate her.

A. The attorney is responsible for asserting a frivolous claim, despite the fact that her supervising partner insisted that she do it and threatened her with termination.

Respondeat superior. An attorney is a fifth-year associate at a large firm, and is responsible for supervising the work of a first-year associate. The attorney, however, now spends most of his time in Singapore, trying to open a satellite office for the firm there to service one of its major corporate clients. He has not inquired into the associate's compliance with the Rules of Professional Conduct in over eighteen months, as they mostly communicate by e-mail regarding pending cases and assignments. To the best of his knowledge, though, the attorney believes the associate is following the rules, and he knows that the associate has attended two Legal Ethics CLE courses in the last year. Unbeknownst to the attorney, the new associate has been overbilling hours and has been neglecting certain client matters. Which of the following is true regarding the attorney's situation? A. The attorney is subject to discipline as a lawyer having direct supervisory authority over another lawyer who failed to make reasonable efforts to ensure that the other lawyer conforms to the Rules of Professional Conduct, even though there was no direction, ratification, or knowledge of the violation. B. The attorney is subject to discipline for effectively ratifying the associate's violations through his neglect of his supervisory role. C. The attorney is not subject to discipline because there was no direction, ratification, or knowledge of the violation. D. The attorney is subject to discipline because the Rules of Professional Conduct impute violations of any lawyer in the firm to all other lawyers in the firm.

A. The attorney is subject to discipline as a lawyer having direct supervisory authority over another lawyer who failed to make reasonable efforts to ensure that the other lawyer conforms to the Rules of Professional Conduct, even though there was no direction, ratification, or knowledge of the violation.

Protocols in place. An attorney is a partner in a medium-size firm. Another partner at the firm, the managing partner, is responsible for implementing policies and procedures to detect and resolve conflicts of interest, to account for client funds and property, to identify dates by which actions must occur in pending matters, and to ensure that inexperienced lawyers receive proper supervision. The managing partner, however, now spends most of his time in Singapore, trying to open a satellite office for the firm there to service one of its major corporate clients. The managing partner is rarely at the home office and has completely neglected the implementation of ethical policies in the firm, so that minimal safeguards or procedures are in place. One of the new associates has committed several serious violations of professional responsibilities in the last few months, including an egregious conflict-of-interest problem and several missed deadlines for filing responsive pleadings. The attorney knew nothing about the violations and was not directly supervising the associate, and tries not to meddle in any of the managing partner's responsibilities, including the implementation of ethical policies and procedures. Which of the following is correct? A. The attorney is subject to discipline as a partner in the firm for failing to make reasonable efforts to ensure that the firm has in effect measures giving reasonable assurance that all lawyers in the firm conform to the Rules of Professional Conduct. B. The attorney is not subject to discipline because it was the managing partner's job to implement measures giving reasonable assurance that all lawyers in the firm conform to the Rules of Professional Conduct. C. The attorney is not subject to discipline because he did not directly supervise the associate who violated the Rules of Professional Conduct. D. The attorney is subject to discipline because the Rules of Professional Conduct impute violations of any lawyer in the firm to all other lawyers in the firm.

A. The attorney is subject to discipline as a partner in the firm for failing to make reasonable efforts to ensure that the firm has in effect measures giving reasonable assurance that all lawyers in the firm conform to the Rules of Professional Conduct.

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

A. The client is correct because the circumstances were such that the non-legal accounting services were not distinct from the legal services attorney was providing at the time.

Regulation by the legislature. A state legislature enacted a statute governing the licensing of attorneys and discipline for practitioners. The preamble to the statute asserts "field preemption" over the regulation of lawyers in that jurisdiction, thereby abolishing all prior rules and codes of the state bar. A lawyer comes under discipline under the new law and contests the legal validity of the enactment itself. What is the result? A. The court will hold the law invalid because the judiciary has inherent power to regulate the attorneys who practice in its courts. B. The court will reject the lawyer's claim about the law's invalidity and will uphold the sanction. C. The court will refuse to hear the case because it now lacks jurisdiction over the matter. D. The court will certify a question to the legislature to seek its decision in the matter.

A. The court will hold the law invalid because the judiciary has inherent power to regulate the attorneys who practice in its courts.

Criticizing the jury. A judge presided over a controversial, high-profile jury trial of a county clerk who engaged in civil disobedience and refused to issue marriage licenses to gay couples, even after receiving a court order to do so. The judge thought that the law and the evidence against the defendant was overwhelming, as the clerk freely admitted that she had willfully flouted the law and disregarded the court order. Even so, the jury decided to engage in nullification and acquitted the county clerk of all charges. In shock, the judge chastised the jury for not honoring their oath to uphold the law, and for allowing their political views influence their verdict in the case. Under the Code of Judicial Conduct, which of the following is true? A. The judge could be subject to discipline for criticizing the jurors for their decision. B. The judge should have informed the jury that he was entering a judgment notwithstanding the verdict due to their insistence on engaging in jury nullification. C. The judge should have commended the jury for their courageous verdict, as jury nullification has an important role in a democracy, and he should have thanked them for their service. D. The judge should have recused or disqualified himself from the case as soon as he realized that the evidence seemed overwhelmingly one-sided to him, as this is a type of judicial bias.

A. The judge could be subject to discipline for criticizing the jurors for their decision.

Relevant factors. A partner gives an associate the typed notes from a previous client interview conducted by the partner, and the associate has the task of drafting a complaint for a personal injury lawsuit based on the allegations in the notes. The associate has no direct contact with the client, and does not really have any way to verify whether the notes represent everything discussed in the interview (the notes are not a transcript) or whether the allegations are factually accurate, truthful, or tell the complete story. The associate completes the task as assigned, drafting the pleadings based on the notes. The associate then submits the drafted complaint to the partner for review. Later, the pleadings turn out to be frivolous, based on complete falsehoods. Which of the following is true regarding the associate attorney's role in drafting the complaint? A. The lack of opportunity for the associate to investigate or verify facts on her own will be a relevant factor for the state disciplinary authority in deciding whether to discipline the associate. B. The lack of opportunity for the associate to investigate or verify facts on her own will not be a relevant factor for the state disciplinary authority in deciding whether to discipline the associate. C. The client will be subject to discipline, but not her lawyers, who merely took her at her word and filed complaints based on what she told the lawyers. D. The associate will be subject to discipline for drafting a complaint based on interview notes rather than a transcript of the interview or a notarized affidavit.

A. The lack of opportunity for the associate to investigate or verify facts on her own will be a relevant factor for the state disciplinary authority in deciding whether to discipline the associate.

Dumping on the associates. An attorney works at the state Public Defender office. Due to their insufficient funding and the overwhelming number of indigent defendants in her city, her caseload is so great that she cannot do adequate investigation into any of her client's cases or conduct legal research about possible defenses. Nevertheless, 95 percent of the cases end in plea bargains without going to trial, so the attorney tells herself that her neglect of case development makes no difference. Her supervisor at the Public Defender office is aware of the unreasonable caseloads of all the attorneys who work there, but the supervisor wants the attorneys to increase their caseloads in order to provide representation to more indigent defendants, even if that means doing minimal work on each case. Which of the following is true regarding the ethical situation facing the attorney and her supervisor? A. The supervisor could be subject to discipline for not ensuring that a subordinate attorney can manage her workload, even if that means not assigning the lawyer any more cases for now. B. The attorney's supervisor is not subject to discipline because it is a valid policy decision to provide minimal representation to as many defendants as possible, as even minimal representation is better than having no representation at all. C. The normal duty of diligence does not apply to public defenders, as everyone recognizes that the priority should be to provide representation for every defendant. D. For purposes of professional discipline or sanctions, the supervisor is the one responsible for the case overload, not the attorneys who work there.

A. The supervisor could be subject to discipline for not ensuring that a subordinate attorney can manage her workload, even if that means not assigning the lawyer any more cases for now.

Reasonable resolution. An attorney is a new associate at a law firm, and the managing partner assigns her a new case, in which the firm will represent two co-plaintiffs in a personal injury case. The attorney is concerned that a conflict of interest could arise between the two plaintiffs, and suggests that the firm should represent only one of them. When she discusses this with the managing partner, the managing partner disagrees, because the interests of the two plaintiffs seem perfectly aligned, and they can have each sign an informed consent form waiving the conflict up front. Both admit the question is a close one in terms of the ethical rules for conflicts of interest, but the managing partner insists that they proceed. Which of the following is true regarding this situation? A. The supervisor's reasonable resolution of the question should protect the subordinate professionally if the resolution subsequently faces a challenge. B. The attorney has a duty to follow her own judgment about her ethical obligations to clients under the Rules of Professional Conduct, even if that means ignoring the managing partner's instructions. C. The fact that the two discussed the potential conflict at length will help shield both of them from any professional repercussions if they turn out to be wrong later. D. The answer depends on whether the firm will receive a contingent fee if they prevail, as there is a strict prohibition on representing co-plaintiffs in a contingent fee case.

A. The supervisor's reasonable resolution of the question should protect the subordinate professionally if the resolution subsequently faces a challenge.

Have it your way. The attorney represents a sophisticated business client in a litigation matter. The attorney wants to hire an outside non-lawyer investigator/paraprofessional to help find and develop evidence and witnesses for the case. Client agrees, but wants the attorney to hire a particular outside company with whom Client has close business dealings and a long history. The attorney would normally have used a different firm that is more familiar to him. Which of the following is correct, according to the Model Rules and the accompanying comments? A. Where the client directs the selection of a particular non-lawyer service provider outside the firm, the lawyer ordinarily should agree with the client concerning the allocation of responsibility for monitoring as between the client and the lawyer. B. Where the client suggests the selection of a particular non-lawyer service provider outside the firm, the lawyer ordinarily should make the selection and override the client's suggestion, given that the lawyer bears responsibility for monitoring the ethical behavior of the service provider. C. Where the client directs the selection of a particular non-lawyer service provider outside the firm, the client bears the responsibility for monitoring the behavior of the service provider he selected. D. Where the client directs the selection of a particular non-lawyer service provider outside the firm, the lawyer will be subject to discipline for allowing the client to engage in the unauthorized practice of law.

A. Where the client directs the selection of a particular non-lawyer service provider outside the firm, the lawyer ordinarily should agree with the client concerning the allocation of responsibility for monitoring as between the client and the lawyer.

Responsibility versus liability. An attorney is a partner in a newer law firm that has no effective measures in place to ensure that lawyers in the firm conform to the Rules of Professional Conduct. An associate at the firm violates the rules, and the state bar investigates the policies and procedures in place at the firm. The state disciplinary authority has determined that the first attorney is subject to discipline for his failure to take reasonable measures to ensure conformity with the rules. Because of this determination and the subsequent sanction, which of the following is true? A. Whether a lawyer may be liable civilly or criminally for another lawyer's conduct is a question of law beyond the scope of the rules; the determination of a violation does not automatically mean that the partner attorney would be civilly or criminally liable. B. The fact that the state bar found the partner attorney guilty of a violation of the rules, and imposed a sanction, means the attorney is automatically liable in any legal malpractice action related to the violation. C. The fact that the state bar found the partner attorney guilty of a violation of the rules, and imposed a sanction, means the attorney is automatically guilty in any criminal prosecution related to the violation. D. The fact that the state bar already imposed a sanction for the violation precludes being subject to damages in a malpractice action or criminal sanctions in a criminal prosecution related to the same violation, due to the double jeopardy rules.

A. Whether a lawyer may be liable civilly or criminally for another lawyer's conduct is a question of law beyond the scope of the rules; the determination of a violation does not automatically mean that the partner attorney would be civilly or criminally liable.

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

A. Yes, a lawyer may agree to refer clients to another lawyer or a non-lawyer professional, in return for the undertaking of that person to refer clients or customers to the lawyer, as long as clients are aware and the relationship is not exclusive.

A conflict of interest discovered during representation. An attorney agreed to represent a plaintiff in a personal injury lawsuit, and the next day agreed to represent a defendant in litigation where the defendant faces vicarious liability. Only after the attorney has conducted some investigation of the case, and has obtained confidential information from each client, does the attorney discover that the plaintiff client is actually suing another of the attorney's clients, under a theory of vicarious liability. The two clients are actually adverse parties in the same litigation. Must the attorney withdraw from representing both clients? A. Yes, a lawyer shall withdraw from the representation of a client if the representation will result in violation of the rules of professional conduct. B. Yes, the lawyer must withdraw unless both clients consent to the conflict of interest. C. No, the lawyer may withdraw, but withdrawal is optional and not mandatory. D. No, the lawyer may not withdraw once litigation is underway, regardless of the conflict of interest.

A. Yes, a lawyer shall withdraw from the representation of a client if the representation will result in violation of the rules of professional conduct.

Client of the lawyer who left. An attorney represented Small Business Associates while working at Big Firm, her first law firm after law school. When the attorney did not make partner at the firm, she ended her employment there and started her own new firm. The attorney took some of her clients with her, including Small Business Associates, whom she continues to represent. Big Firm no longer has Small Business Associates as a client. Big Firm then agrees to represent Conglomerate Corporation in a trademark infringement case against Small Business Associates, the first such case that the latter has ever faced. Can Big Firm represent Conglomerate in a case against its former client, Small Business Associates? A. Yes, as long as the matter is not the same or substantially related to that in which the attorney formerly represented the client; and no lawyer remaining in the firm has confidential information about Small Business Associates from when the attorney represented them at that firm. B. Yes, because otherwise the disqualification of the firm would constitute an agreement not to provide representation to particular clients in the future, which would violate the Rules of Professional Conduct. C. No, unless the attorney's new firm screens her from the litigation according to the procedures set forth in the Rules of Professional Conduct. D. No, unless Conglomerate provides written informed consent to the potential conflict of interest.

A. Yes, as long as the matter is not the same or substantially related to that in which the attorney formerly represented the client; and no lawyer remaining in the firm has confidential information about Small Business Associates from when the attorney represented them at that firm.

Time for a change. A client, age eighteen, is facing criminal charges of sex with a minor, based on his sexual relationship with his thirteen-year-old girlfriend, who lives in the same tenement building. The relevant statute has strict liability for perpetrators — that is, no mens rea or scienter element — and places the victim's age cutoff for the most serious grade of felony at age fourteen. It is indisputable in the case that the defendant had a sexual relationship with the victim when she was thirteen, but the victim claims she wanted the relationship and willingly consented to the sexual contact with her boyfriend. A state psychologist examined the victim and included in his report that she was emotionally mature for her age and was making relationship decisions in the same way as an adult. Even though the attorney is certain that the trial court will convict the client, he believes there is a slight chance that he could convince an appellate court to take a loose view of the age-of-consent provision in the statute, either on substantive due process grounds or simply as a matter of progressive statutory construction. Attorney believes that many thirteen-year-olds, and even younger, are sexually active nowadays and that the criminal laws should reflect the changing values of society. The attorney agrees, therefore, to take the client's case and to use it as a test case to try to change the law of sexual consent in the appellate courts. Is it proper for the attorney to make a defense in a criminal case that goes against the clear statutory verbiage and established case precedent? A. Yes, because a claim or argument is not frivolous if the lawyer is making a good-faith argument for modification or reversal of existing law. B. Yes, because the statute has no mens rea requirement, but is a strict liability crime. C. No, because a lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis in law and fact for doing so that is not frivolous. D. No, because the unlikelihood that the lawyer will win on appeal, in contradiction to the plain language of the statute, makes the lawyer's fee in the case a contingent fee, which is not permissible in a criminal case.

A. Yes, because a claim or argument is not frivolous if the lawyer is making a good-faith argument for modification or reversal of existing law.

A deeply divided law school faculty. A law school suffers from deep divisions among its faculty. One group of the faculty dislikes the Dean and wants to force his resignation with a vote of no confidence and pressure on the Board of Trustees. The other group is loyal to the Dean and resents their disloyal colleagues, whom they consider unprofessional. The controversy surrounding the law school's Dean overlaps with faculty divisions over hiring practices, tenure, and whether the school should try to emulate top-tier law schools in order to boost their national rankings, or if they should focus instead exclusively on pedagogy and preparing the students for the practice of law after graduation. The divisions are so great that each faction has threatened to quit, or take other drastic action that would imperil the school's existence, if their side does not prevail. The Board of Trustees obtains an agreement from both factions on the faculty that they will hire an attorney to function as a third-party neutral to attempt to broker a compromise between the factions on the faculty. The attorney is an alumnus of the law school and offers to serve in this capacity without charging legal fees. He claims that he is not representing the Board, the Dean, or either side of the balkanized faculty. He begins to schedule private conferences with each faculty group, the Dean, and the Board, as well as meetings attended by representatives from each faction of the faculty to have deliberations and consider possible compromises. The attorney also insists that he is not an arbitrator or mediator because no litigation over the dispute is pending or even contemplated at this point. Is it proper for the attorney to serve in this capacity? A. Yes, because a lawyer can serve as a third-party neutral when the lawyer assists two or more persons who are not clients of the lawyer to reach a resolution of a dispute or other matter that has arisen between them. B. Yes, because in this situation, the lawyer represents all of the parties jointly for purposes of the Model Rules, and all the parties have consented to any potential conflicts of interest. C. No, because it is unclear whom, if anyone, the lawyer represents in this situation, so it is impossible to ascertain the lawyer's duty of loyalty. D. No, because the lawyer is an alumnus of the law school and therefore is not truly neutral in the dispute.

A. Yes, because a lawyer can serve as a third-party neutral when the lawyer assists two or more persons who are not clients of the lawyer to reach a resolution of a dispute or other matter that has arisen between them.

The big spender. An attorney pays $1,000 per month for a billboard advertisement for his firm, $2,000 per month for a few radio commercials, $3,000 per month for Internet advertising, and $4,000 per month for newspaper and magazine advertisements. The total amount for advertising is $10,000. At the same time, the attorney's average total income from legal fees is $15,000 per month. Is it permissible for the attorney to spend such sums on advertising? A. Yes, because a lawyer may advertise services through written, recorded, or electronic communication, including public media, and may pay the reasonable costs of such advertisements or communications. B. Yes, because as long as the lawyer is not making in-person solicitations, there are no limitations on advertising by law firms, as long as the advertisements are not for a particular lawyer. C. No, because it is not reasonable to spend more than half of a firm's monthly revenues on advertising. D. No, because it is not reasonable to spend $1,000 on billboards, which are notoriously ineffective.

A. Yes, because a lawyer may advertise services through written, recorded, or electronic communication, including public media, and may pay the reasonable costs of such advertisements or communications.

Post-game interview. Attorney is a litigator and finds it helpful to talk to jurors after a trial concludes to see what they thought about the performance of the lawyers in the case. Assuming the judge has not forbidden talking to jurors and the jurors are willing to talk to him, is it proper for Attorney to have conversations with jurors in their homes, a week after the trial? A. Yes, because a lawyer may communicate with a juror after the discharge of the jury, but must respect the desire of the juror not to talk with the lawyer. B. Yes, as long as the lawyer does not talk about the merits of the case, the evidence, or the credibility of the witnesses. C. No, because a lawyer may talk to jurors after discharge only with opposing counsel present and while they are still at the courthouse. D. No, because a lawyer may not communicate ex parte with a juror, without an express authorization by the judge.

A. Yes, because a lawyer may communicate with a juror after the discharge of the jury, but must respect the desire of the juror not to talk with the lawyer.

Across state lines. An attorney represented a seller in a business transaction involving industrial equipment. When the deal was complete, the purchaser sent the attorney a check for $7,000, the agreed-upon purchase price, with a letter directing the attorney to forward the money to his client (the seller). The attorney notified his client immediately that the check had come in. The client was traveling at the time, and asked the attorney to hold the funds until he returned from his trip. The attorney had only recently moved to this jurisdiction and opened a new firm, did not yet have a client trust account at any banks in the area, so he deposited the check in the client trust account in the neighboring state, where he had practiced until recently. He told the client that the funds would be in a separate client trust account, and explained that it would be out of state, and the client consented. As soon as the check cleared, the attorney wrote a check to the client for the full amount from the client trust account, which the client picked up in person. Did the attorney act properly in this case? A. Yes, because a lawyer may deposit client funds in an out-of-state client trust account if the client gives informed consent to this arrangement. B. Yes, because the client asked the attorney to hold the funds temporarily, and the attorney faithfully delivered the entire sum to the client with his own check. C. No, because a lawyer should not have accepted the check at all, but should have instructed the purchaser to write the check out to the client himself, and deliver it directly to the client. D. No, because client funds must be kept in a separate account maintained in the state where the lawyer's office is situated, unless the client explicitly consents to another arrangement.

A. Yes, because a lawyer may deposit client funds in an out-of-state client trust account if the client gives informed consent to this arrangement.

Disinheriting the daughter. An attorney agreed to prepare a will for a client, a wealthy widow with three grown children. An earlier will divided her estate equally between her children, but the client now wants to modify the will to disinherit her only daughter, who disobeyed the client's wishes by marrying outside their nationality. The daughter is also a lawyer and is married to a lawyer, and the estate is substantial. The client's two sons are both working as manual laborers and they struggle financially. In the past, there had been some tension between the brothers and their sister, although the relationships seem to be cordial now. The attorney believes that disinheriting the daughter will ensure that the daughter and her husband will contest the will after the client's death, and will rupture the tenuous relationship between the siblings. The client did not ask for the attorney's advice about disinheriting the daughter, she just insisted on it. The attorney initiated a debate about it, explaining that he believed it could be against the client's best interests and would cause unnecessary acrimony between her children. Was it proper for the attorney to initiate such advice when the client did not ask for it? A. Yes, because a lawyer may offer unsolicited advice to a client when doing so appears to be in the client's interest. B. Yes, because a lawyer has a duty to refer not only to law but also to other considerations such as moral factors that may be relevant to the client's situation. C. No, because a lawyer is not expected to give advice until asked by the client, and should normally wait until asked for such advice, especially when the advice is not strictly a statement of the law on a subject. D. No, because a testator has a sacred right to devise her estate as she wishes.

A. Yes, because a lawyer may offer unsolicited advice to a client when doing so appears to be in the client's interest.

The innocent lunch at the diner. During a personal injury trial, the court took a lunchtime recess for an hour. The plaintiff's lawyer from the case walked across the street from the courthouse to a familiar diner to buy lunch. The diner was very crowded, so it was difficult for patrons to find a table to sit and eat. After ordering his sandwich at the counter, the attorney noticed two jurors from his own trial standing with their food, waiting for a free table. One of the jurors asked the attorney if they could share a table with him when one became available. The attorney agreed, but reminded them that they could not talk about the case. The three sat together and ate their sandwiches. The two jurors talked most of the time, getting to know each other — discussing their children, their jobs, and their pets. The attorney did not participate in the conversation except to answer their questions about how many children he had, and whether he owned any pets. Another juror from the trial was at the diner, and noticed the attorney sitting with the other two jurors, which he reported to the judge when court reconvened. Could the attorney be subject to discipline for sharing a table with the jurors during a lunch break? A. Yes, because a lawyer should not have any ex parte social contact with jurors during a proceeding, even if they do not discuss the case. B. Yes, because he allowed the two jurors to sit with each other and get to know each other, which makes it more likely they will influence each other during deliberations. C. No, because this is a civil trial rather than a criminal trial. D. No, because the lawyer did not discuss the case with the jurors at all and barely participated in their socializing.

A. Yes, because a lawyer should not have any ex parte social contact with jurors during a proceeding, even if they do not discuss the case.

It all worked out in the end. An attorney has represented his client in the past on various transactional matters. They have always operated under an oral agreement about the fees, and they have never had a dispute over fees in the past — the attorney would send the client a bill, and the client would pay it. Recently, the client contacted the attorney by phone about representing him as a plaintiff in a personal injury lawsuit. The attorney agreed, and then explained that he would charge a contingent fee in the case, so that the client did not have to worry about how much time his attorney had to put into the case, as the client would still receive the same share of whatever amount they won. Given their long history of working together, the attorney offers to set the contingent fee below the rate charged by other attorneys in the area, and they agree over the phone on a 25 percent contingent fee for the attorney, after costs and expenses. They never formalize this agreement in writing, though at the end of the case, after they prevail and win a large verdict, the attorney sends the client a written statement about keeping 25 percent of the award for his fee. The client is very happy with the outcome of the case and they have no dispute over this fee. Would the attorney be subject to discipline in a situation like this? A. Yes, because contingent fees must always be formalized in writing at the beginning of representation. B. Yes, because a lawyer cannot charge a contingent fee in a personal injury case. C. No, because the lawyer agreed to charge a contingent fee far below the rate that most lawyers receive for this type of case. D. No, because the lawyer provided an accounting at the end of the case and there was no dispute over the fees.

A. Yes, because contingent fees must always be formalized in writing at the beginning of representation.

Don't lecture me. An attorney represents a client, who lost his criminal appeals and is now serving a life sentence in a federal penitentiary. The client confesses to the attorney that he (the client) committed a murder for which a jury incorrectly convicted another (innocent) man. The client says he is happy that someone else took the fall for that crime and that he will never tell anyone. The attorney lectures the client about the morality of this situation, allowing an innocent man to face life imprisonment or even capital punishment for a crime that the client committed, and pleads with the client to reveal the truth. Was it proper for the attorney to bring morality into his consultation with the client, and to sermonize on this point for a few moments? A. Yes, because in rendering advice, a lawyer may refer not only to law but to other considerations such as moral factors. B. Yes, because the attorney will have an obligation under the Model Rules to disclose the information if the client does not reveal the truth. C. No, because in rendering advice, a lawyer may refer only to legal and financial considerations, and not to personal views about morals or politics. D. No, because urging the client to reveal information that could overturn a final jury verdict undermines the finality of court decisions and the public's confidence in the legal system.

A. Yes, because in rendering advice, a lawyer may refer not only to law but to other considerations such as moral factors.

Money laundering. An attorney knew about another lawyer's involvement in an illegal money laundering enterprise, although the money laundering was unrelated to the other lawyer's law practice or representation of clients. Eventually, when federal law enforcement officials bring criminal charges against the other lawyer, who is part of another firm, the first attorney's awareness of the situation becomes evident. Could the attorney who knew of the wrongdoing and ignored it be subject to discipline? A. Yes, because it is a violation of the Rules of Professional Conduct to fail to report serious fraud or criminal activity by another lawyer. B. Yes, because the lawyer who knew and did nothing was an accomplice after the fact. C. No, because the attorney had no duty to report misconduct of lawyers in other firms. D. No, because the attorney could have put himself in danger by reporting an organized crime effort, and lawyers do not have to report misconduct when doing so might expose the reporting lawyer to retaliation by criminal organizations.

A. Yes, because it is a violation of the Rules of Professional Conduct to fail to report serious fraud or criminal activity by another lawyer.

European vacation. An attorney received a small settlement check from a client for the opposing party on Christmas Eve, late in the afternoon. All the support staff at the firm had already gone home for the day, due to the impending holiday, and the firm was to stay closed until January 2. The attorney was rushing to catch a flight to Europe, where she planned to spend the holidays with her family. On January 2, when the attorney returned and reopened the office, she promptly notified the opposing party that the check had arrived. Could the attorney be subject to discipline for her actions in this case? A. Yes, because she did not notify the opposing party soon enough. B. Yes, because she should have instructed the client to send the check directly to the opposing party. C. No, because the office was closed during the entire period, and the attorney notified the opposing party as soon as the office reopened. D. No, because there is no attorney-client relationship with the opposing party, so the attorney did not have a duty to notify the opposing party immediately.

A. Yes, because she did not notify the opposing party soon enough.

Dissolving a partnership. Two successful business partners hired an attorney to help with the dissolution of the partnership, as the two partners no longer want to work together. The attorney was very concerned about the obvious conflict of interest, but the partners insisted that they did not want to complicate matters unnecessarily by hiring separate counsel, and that they were already in complete agreement about how to divide the business. They even signed informed consent statements acknowledging and waiving the conflict. Each partner believed it would be in both of their best interests to use only one lawyer to dissolve the business. The matter was purely transactional at this point, and it did not involve any anticipated litigation before a tribunal. One partner had already mentioned to the attorney that he might need his legal services in setting up a new business, as well as handling some estate planning issues for him. The attorney still believed that dual representation was not a good idea, given the complexity of the business and the debatable future value of some of the patents, goodwill, and other intellectual property involved, and because one partner contributed a much larger share of the start-up funds years before. The partner who mentioned hiring the attorney to do estate-planning work wanted the dissolution to include assigning his proceeds from the business to his heirs. The attorney proceeded with the dual representation and the dissolution appeared to proceed smoothly. Is the attorney subject to discipline for representing both partners? A. Yes, because the attorney did not reasonably believe that he would be able to provide competent and diligent representation to each affected client. B. Yes, because the facts do not mention whether they split the legal fees evenly, and one of them has mentioned giving the attorney some business in the future. C. No, because the representation involves the assertion of a claim by one client against another client represented by the lawyer in the same litigation or other proceeding before a tribunal. D. No, because it appears on these facts that there will be no assets in dispute at all, so the theoretical conflict of interest would have no bearing on their case.

A. Yes, because the attorney did not reasonably believe that he would be able to provide competent and diligent representation to each affected client.

The victim's story. An attorney represented a client in a misdemeanor criminal matter involving minor vandalism. The attorney interviewed the victim, who incurred the property damage, hoping to learn more about the value of the damage and how frequently vandalism occurs in that neighborhood. The property owner explained to the attorney that the client had been demanding "protection money" from him and other business owners in the neighborhood for a long time, and that the vandalism followed his refusal to continue paying the protection money. The amount involved was substantial, and the attorney realized that the client could face much more serious charges for extortion. The attorney never discussed this with the client, and the client gladly accepted a plea bargain offer for a few months' probation on the misdemeanor vandalism charge. Several years later, the client died in a car accident, and the property owner became a business-world celebrity when he published a book about how businesses transform neighborhoods. A reporter eventually found the attorney and interviewed him about the vandalism incident, several years prior, that had damaged the property owner's building at the time. The attorney explained that the incident was actually part of a larger extortion operation and that the business owner had handled the matter nobly. Should the attorney be subject to discipline for this disclosure? A. Yes, because the confidentiality rule applies not only to matters communicated in confidence by the client but also to all information relating to the representation, whatever its source. B. Yes, because the disclosure violated the attorney-client privilege. C. No, because the attorney did not receive the confidential information from his own client, but rather from the client's victim, whom he did not represent. D. No, because the disclosure occurred after the client was dead, so it could no longer harm the client.

A. Yes, because the confidentiality rule applies not only to matters communicated in confidence by the client but also to all information relating to the representation, whatever its source.

The pundit on the courthouse steps. A lawyer is engaged in civil litigation. On his way into the courthouse on the day of jury selection, reporters gather around the lawyer hoping for comments. The lawyer explains that the (unrelated) criminal trial happening at the courthouse that day is far more important, and he expresses regret that he is not involved in that case at all. He states that he believes the criminal case should result in an acquittal because the police (who are testifying as witnesses in the case) violated the defendant's civil liberties, and because the relevant penal statute itself, which furnished the basis for charges in the case, violates the Bill of Rights. His own civil case, he says, is a brief matter scheduled for a one-day trial, so he hopes to observe the closing arguments tomorrow in the important criminal case in the other courtroom. Were the lawyer's statements proper? A. Yes, because the rule limiting trial publicity applies only to lawyers who are, or who have been involved in the investigation or litigation of a case. B. Yes, because the lawyer is expressing opinions about the constitutionality of a law and of the state's actions, and such statements receive special protection under the First Amendment. C. No, because the lawyer is commenting on the character or reputation of police who will be witnesses in the case. D. No, because the lawyer's arguments would be inadmissible at trial, if the courts have already upheld the constitutionality of the statute and the police actions in this circumstance.

A. Yes, because the rule limiting trial publicity applies only to lawyers who are, or who have been involved in the investigation or litigation of a case.

Leverage. An attorney represents Conglomerate Corporation in a lawsuit against the company brought by an individual plaintiff. The lawsuit could bring very bad publicity to Conglomerate Corporation and could adversely affect its stock share price. Conglomerate offers to settle the matter quietly, but the plaintiff rejects the settlement offer. The attorney then files a counterclaim against plaintiff, alleging libel and slander of Conglomerate Corporation, vexatious litigation, and tortious interference with contract, for which he demands millions of dollars in damages. The attorney and plaintiff's counsel both know these counterclaims lack any real basis in fact, but will be costly for plaintiff to defend. The attorney uses the counterclaims as leverage in reopening the settlement negotiations, offering to withdraw the counterclaims if plaintiff will accept a new, slightly higher settlement offer. The plaintiff calculates the cost of defending against the counterclaims and the difference between the settlement offer and the expected damages if plaintiff wins at trial, and reluctantly agrees to accept the terms of the offer. Could the attorney be subject to discipline for filing the counterclaims? A. Yes, because there is no factual basis for the claims, and the lawyer did not bring them in good faith. B. Yes, because the lawyer used the counterclaims as leverage to induce the opposing party into accepting an unfavorable settlement. C. No, because an advocate has a duty to use legal procedure for the fullest benefit of the client's cause. D. No, because the claims and counterclaims settled before going to trial, so the lawyer did not violate his duty of candor to the court.

A. Yes, because there is no factual basis for the claims, and the lawyer did not bring them in good faith.

The former employee. In anticipation of trial, a plaintiff's lawyer contacts several former employees of the defendant corporation and interviews them about the day-to-day operations of the company and the chain of command for addressing complaints. The lawyer does this without permission from the defendant's attorney. Was this proper? A. Yes, consent of the organization's lawyer is not required for communication with a former constituent of the organization that is a represented opposing party. B. Yes, because being a party to litigation means that the company waived its right to prevent opposing counsel from privately interviewing their present or former employees. C. No, consent of the organization's lawyer is always required for communication with a present or former constituent of the organization that is a represented opposing party. D. No, because it is improper for the lawyer to inquire into the private, behind-the-scenes workings of a company, merely looking for dirt or gossip to use against the company during litigation.

A. Yes, consent of the organization's lawyer is not required for communication with a former constituent of the organization that is a represented opposing party.

Mandatory meetings at the firm. An attorney worked for a small plaintiffs' firm in Dallas, Texas. The firm undertook the representation of the victim, who suffered severe injuries in a traffic accident with a large truck, allegedly due to the truck driver's negligence. The attorney was not involved in the case at all; another associate at the firm represented the victim in the lawsuit. Big Firm, which has offices in several states, is defending the trucking company in the personal injury lawsuit brought by the victim. The attorney's small firm has a single office and a computer network that allows the five lawyers there to share documents and files from all their cases with each other. Any lawyer in the firm could access all of the other lawyers' documents, which saved time as lawyers could copy and paste from various motions and pleadings that other lawyers had drafted previously on unrelated matters. Every Thursday afternoon, there was a mandatory meeting of the lawyers in the firm, in which they discussed whether to accept the cases of new potential clients, and they discussed how the pending litigation of each lawyer was proceeding. The lawyers exchanged advice and suggestions for one another's cases. The attorney did not make partner at the small firm, so he left and went to the Kansas satellite office of Big Firm instead. Big Firm assigned the attorney to work on the trucking company case, the same case in which his pervious firm represented the opposing party. The attorney had not worked previously on the case and had heard about it only in passing during the weekly litigation meetings at his previous firm, and now remembers almost nothing from the conversations. Should the attorney be subject to disqualification from defending the trucking company? A. Yes, if a lawyer has general access to files of all clients of a law firm and regularly participates in discussions of their affairs, it creates an inference that such a lawyer in fact is privy to all information about all the firm's clients, and the burden of proof should rest upon the firm whose disqualification is sought. B. Yes, because the attorney is familiar with all the litigators at the firm of opposing counsel and knows each of their strengths and weaknesses as litigators and what strategies they like to use, which would give the attorney an unfair advantage in any case in which they serve as opposing counsel. C. No, if a lawyer while with one firm acquired no knowledge or information relating to a particular client of the firm, and that lawyer later joined another firm, neither the lawyer individually nor the second firm is disqualified from representing another client in the same or a related matter even though the interests of the two clients conflict. D. No, because the attorney now works for a firm in Kansas and the opposing counsel has its office only in Texas, so the attorney would not be subject to disqualification.

A. Yes, if a lawyer has general access to files of all clients of a law firm and regularly participates in discussions of their affairs, it creates an inference that such a lawyer in fact is privy to all information about all the firm's clients, and the burden of proof should rest upon the firm whose disqualification is sought.

Having confidential information. An attorney worked for several years for a federal government agency in regulatory enforcement. Big Firm then hired the attorney for a substantially higher salary, and the attorney accepted the position and left her government position. One of the attorney's first assigned cases at Big Firm was a new action by the client against Conglomerate Corporation. The attorney had worked on an enforcement against Conglomerate Corporation and learned confidential government information about the entity during the litigation. The government agency gives its informed consent, confirmed in writing, to the representation. Is the attorney nevertheless subject to disqualification in the client's matter against the attorney's former employer? A. Yes, the attorney has confidential government information about a person acquired while working for the government agency, and therefore may not represent a private client whose interests are adverse to that person in a matter in which the information could be used to the material disadvantage of that person. B. No, because the attorney did not previously represent the client or Conglomerate Corporation, so there is no attorney-client privilege or conflict of loyalties here between two clients that the attorney is representing or has represented. C. No, because the appropriate government agency gave its informed consent, confirmed in writing, to the representation. D. No, as long as Big Firm has policies and procedures in effect to supervise the attorney's work closely enough to ensure compliance with the Rules of Professional Conduct, including training sessions about the conflict-of-interest rules.

A. Yes, the attorney has confidential government information about a person acquired while working for the government agency, and therefore may not represent a private client whose interests are adverse to that person in a matter in which the information could be used to the material disadvantage of that person.

Court administrator. An attorney was a judge for several years. Near the end of her tenure as a judge, she functioned in the role of the chief administrative judge in that court, assigning cases to the other judges and supervising their work, and had only a limited docket of her own trials. The attorney then left the bench and opened her own law practice. The attorney agrees to represent the client in a matter in the same courthouse where the attorney formerly served as a judge. The attorney even remembers the case, but only the names of the parties and the nature of the action, because she assigned it to the trial judge who currently has the case on his docket, but the attorney had no other involvement in the matter. The client's previous lawyer in the matter was subject to disqualification at the motion of the opposing party due to a conflict of interest. Is it proper for the attorney to represent the client in this matter? A. Yes, the fact that a former judge exercised administrative responsibility in a court does not prevent the former judge from acting as a lawyer in a matter where the judge had previously exercised remote or incidental administrative responsibility that did not affect the merits. B. Yes, as long as all the parties to the matter provide informed consent, confirmed in writing, to the representation. C. No, because she previously supervised the trial judge hearing the case, and even assigned the case to that judge. D. No, because the client's previous lawyer was already subject to disqualification due to a conflict of interest in the matter.

A. Yes, the fact that a former judge exercised administrative responsibility in a court does not prevent the former judge from acting as a lawyer in a matter where the judge had previously exercised remote or incidental administrative responsibility that did not affect the merits.

Insurers and attorneys. An insurer retained an attorney to represent it in a matter, and requested a retainer agreement that limited the representation to matters related to the insurance coverage. The insurance was a homeowner's policy for damage to the policyholder's residential real estate, and included a rider for premises liability. The incident that triggered the claim, however, involved the brutal murder of a woman and her two young children across the street from the house in a neighbor's driveway. Due to the limited scope of his representation, however, the attorney ignored the horrific deaths and the fact that the known killer had escaped conviction on a technicality. In a cool and calculated matter, the attorney focused his work exclusively on the property damage from the incident and the premises liability, and obtained a favorable outcome for the insurer. Was it proper for the attorney to limit the scope of his representation in this way? A. Yes, when an insurer retains a lawyer to represent an insured, the representation may be limited to matters related to the insurance coverage; a limited representation may be appropriate because the client has limited objectives for the representation. B. Yes, because investigating the murders after the suspected killer obtained a conviction would violate the double jeopardy clause of the Constitution. C. No, because a lawyer may limit the scope of the representation only if the limitation is reasonable under the circumstances and the client gives informed consent, and here the limitation was not reasonable. D. No, because an attorney has a duty to investigate and discover the truth about what happened, and it would violate public policy to allow lawyers to act in a cool and calculated manner when human lives are at stake.

A. Yes, when an insurer retains a lawyer to represent an insured, the representation may be limited to matters related to the insurance coverage; a limited representation may be appropriat

The past comes backs to haunt. Attorney Albert worked at Ricks, Sawyer & Thompson for five years and specialized in real estate. During the last three years, Albert has worked intensively on Client Callahan's properties and disputes that arose. Before leaving Ricks, Sawyer & Thompson, Albert handled a new real estate deal for Callahan that resulted in the erection of a new apartment complex. Albert now works at Friedman & Grisley and receives a new case assignment. Albert discovers that the new client, Raymond Bradley, is a small business owner located next to Callahan's apartment complex and is suing Callahan for a disputed right of way. A. Albert may represent Bradley if Callahan consents in writing to him doing so. B. Albert may not represent Bradley in the same or substantially the same matter unless Callahan consents in writing. C. Albert may not represent Bradley in the same or substantially the same matter unless Bradley consents in writing. D. Albert's firm may represent Bradley because Albert has left Ricks, Sawyer & Thompson and no one in Friedman & Grisley has confidential information about Callahan.

A. Albert may represent Bradley if Callahan consents in writing to him doing so.

Automatic liability? An attorney is a partner in a newer law firm that has no effective measures in place to ensure that lawyers in the firm conform to the Rules of Professional Conduct. An associate at the firm violates the rules, and the state bar investigates the policies and procedures in place at the firm. The state disciplinary authority has determined that the attorney is subject to discipline for his failure to take reasonable measures to ensure conformity with the rules. Because of this determination and the subsequent sanction, which of the following is true? A. The determination of an ethical violation does not automatically mean that the attorney would be civilly or criminally liable. B. The fact that the state bar found the attorney guilty of a violation of the rules, and imposed a sanction, means that the attorney is automatically liable in any legal malpractice action related to the violation. C. The fact that the state bar found the attorney guilty of a violation of the rules, and imposed a sanction, means the attorney is automatically guilty in any criminal prosecution related to the violation. D. The fact that the state bar already imposed a sanction for the violation precludes being subject to damages in a malpractice action or criminal sanctions in a criminal prosecution related to the same violation, due to the double jeopardy rules.

A. The determination of an ethical violation does not automatically mean that the attorney would be civilly or criminally liable.

The shareholder. An attorney is a partner in a law firm, and owns $100,000 worth of stock in Conglomerate Corporation, the named defendant in a new antitrust suit. The attorney's total compensation from the firm is around $15 million per year, including bonuses, and his net worth is around $500 million. His home is worth about $7 million and the attorney inherited it, so the property is unencumbered by any mortgage or liens. The attorney works in a specialized area of law at the firm and does not have much interaction with the other lawyers, except at parties and occasional partners' meetings. Another lawyer in the firm seeks to represent the plaintiffs in the antitrust action against Conglomerate Corporation, which is not a client of the firm. Would it be proper for the firm to represent the plaintiffs in litigation against Conglomerate Corporation? A. Yes, as long as the attorney is not involved in the representation, there will be no imputation of the attorney's conflict of interest to the other lawyers in the firm, because it is the attorney's personal interest and does not present a significant risk of materially limiting the representation of the client by the remaining lawyers in the firm. B. Yes, as long as the plaintiffs provide written informed consent to the potential conflict of interest, and the firm carefully screens the other lawyer representing them from the rest of the firm. C. No, because the personal interest of the firm's managing partner in Conglomerate is so great, relative to his earnings and assets, that there is a significant risk of materially limiting the representation of the plaintiffs in their cause of action against Conglomerate. D. No, because it is a non-consentable conflict of interest for the firm to represent both adverse parties in litigation.

A. Yes, as long as the attorney is not involved in the representation, there will be no imputation of the attorney's conflict of interest to the other lawyers in the firm, because it is the attorney's personal interest and does not present a significant risk of materially limiting the representation of the client by the remaining lawyers in the firm.

As many as possible, whatever the cost. An attorney works as a public defender. The office is always underfunded, meaning they cannot afford to hire enough staff attorneys, and the current attorneys all carry an overload of cases. The attorney feels that she is unable to provide full representation to each client, as she must conduct about seven plea bargaining sessions for different clients per weekday, and usually meets the clients for the first time about fifteen minutes before each plea bargain session. Each plea bargain takes about an hour, with short breaks in between. The attorney strongly encourages nearly all of her clients to accept a plea bargain, because taking one case to trial will mean that the public defender's office must turn away about two dozen indigent clients. The attorney and her colleagues believe that it is better for defendants to have a little representation rather than none at all, and that most defendants would lose at trial anyway. Does the attorney have an ethical problem, under the Rules of Professional Conduct? A. Yes, because a lawyer must control her workload so that each matter can be handled competently. B. Yes, because it would be better for clients to have no lawyer at all than to rely upon a lawyer who is providing minimal or inadequate representation. C. No, if most of the clients would, in fact, fare worse if they went to trial, then the attorney's representation is their best option. D. No, because there is a special exception for public defenders in the Rules of Professional Conduct regarding diligence.

A. Yes, because a lawyer must control her workload so that each matter can be handled competently.

Discussing negotiation strategies with the client. An attorney is a litigator and represents a client in a civil lawsuit in which the client is the defendant. The attorney explains the general strategy and prospects of success, and consults the client on tactics that are likely to result in significant expense, such as the hiring of experts or jury consultants. At the same time, the attorney believes their best shot at winning the case will be to elicit an admission from the plaintiff during cross-examination when the plaintiff testifies at trial. More specifically, the attorney plans to elicit a mild, relatively innocuous admission during the first round of cross-examination, expecting opposing counsel to rehabilitate the witness on re-direct examination. The attorney then plans a short, direct, re-cross consisting of three yes-or-no questions that should elicit a devastating admission from the plaintiff, which opposing counsel is probably not anticipating. Attorney has not discussed this plan for cross and re-cross with Client. Even if the re-cross does not go as well as the attorney hopes, they might prevail in the case by several other ways. Is it proper for the attorney to leave the client out of the planning for the cross-examination and re-cross of the plaintiff? A. Yes, because a lawyer ordinarily will not be expected to describe trial or negotiation strategy in detail. B. Yes, because the client might try to interfere with Attorney's strategies and tactics, which would put the attorney under the control of the client. C. No, because a lawyer should explain the general strategy and prospects of success and ordinarily should consult the client on tactics that are likely to result in significant expense or to injure or coerce others. D. No, because lawyers should consult with clients about their plans for direct examination, but not cross-examination, because it is impossible to plan a cross-examination until one first hears the witness's testimony during direct examination.

A. Yes, because a lawyer ordinarily will not be expected to describe trial or negotiation strategy in detail.

All in the family. An attorney calls his friend, a close personal acquaintance, who was recently arrested for driving while intoxicated. The attorney advises that he saw the friend's arrest on the local police news and offers to represent his friend for the attorney's usual fee for handling such cases. The friend hires the attorney to represent him on the case. Are the attorney's actions proper? A. Yes, because attorneys can solicit professional employment from family members, close personal friends, and persons with whom the attorney had a previous professional relationship. B. Yes, because attorneys are not restricted from soliciting professional employment from people they know. C. No, because attorneys are restricted from soliciting professional employment from persons who are not lawyers or the members of the attorney's family. D. No, because attorneys are not allowed to solicit professional employment.

A. Yes, because attorneys can solicit professional employment from family members, close personal friends, and persons with whom the attorney had a previous professional relationship.

Preparing for the worst-case scenario. An attorney has her own firm and works as a sole practitioner. She has been practicing law for about twenty years, and is now in her mid-40s. Recently, though, a routine visit to her doctor revealed indications of multiple sclerosis, and she has scheduled appointments with specialists for more testing. She has been struggling with several symptoms that usually result from this condition. Does the attorney have any ethical obligations toward her clients, at least related to her possible condition? A. Yes, because each sole practitioner must prepare a plan that designates another lawyer to review client files, notify each client of the lawyer's death or disability, and determine whether there is a need for immediate protective action. B. Yes, because every lawyer has an obligation to make sure that a medical condition or disability does not in any way influence her actions, decisions, or plans regarding client representation. C. No, because lawyer medical information is strictly confidential and should not influence a lawyer's actions, decisions, or plans regarding client representation. D. No, because clients need to feel that they can rely fully upon their lawyer's ongoing representation, and any planning or decisions based around potential disability or death could undermine the trust that is so essential to the attorney-client relationship.

A. Yes, because each sole practitioner must prepare a plan that designates another lawyer to review client files, notify each client of the lawyer's death or disability, and determine whether there is a need for immediate protective action.

The lobbyist. An attorney represented an alternative energy firm that is lobbying the state legislature to provide subsidies for companies that develop wind, solar, or geothermal energy sources. When appearing before a legislative committee, the attorney disclosed that he represents the company and submitted reports from his client about the efficiency of his client's products and the savings that could accrue to the public if more people used their products. The reports also purported that the company was having trouble staying in business and could not survive without a large government grant or subsidy. The attorney knew, however, that many of these figures were inaccurate, and that in fact the company was making a handsome profit on products that were less efficient than fossil fuel sources of energy. Was it improper for the attorney to submit such documents to a legislative committee? A. Yes, because lawyers appearing before a legislative body in a nonadjudicative proceeding shall conform to the same standards of candor and honesty that are expected of lawyers in a courtroom. B. Yes, because the attorney should have simply submitted the documents on behalf of the client without endorsing them by providing oral testimony. C. No, because many special interest groups submit exaggerated or highly biased reports to legislative committees, and the legislators recognize that they are unreliable. D. No, because the attorney is not appearing before a tribunal or court in an adjudication and does not have the same requirements of candor that he would in the adjudicative context.

A. Yes, because lawyers appearing before a legislative body in a nonadjudicative proceeding shall conform to the same standards of candor and honesty that are expected of lawyers in a courtroom.

The lying client. An attorney represented a client in a criminal prosecution. The client agreed to a plea bargain, and the case moved on to a sentencing hearing. The prosecution's pre-sentencing report to the judge erroneously indicates that the client has no prior convictions, and the trial judge asked the client directly whether that is true. The client affirmed that he had no prior criminal record, and the judge sentenced him leniently, giving his six months' probation. Yet the attorney had represented the client previously in another jurisdiction in a criminal matter, and he knew that the pre-sentencing report was erroneous. Before adjourning, the judge asked the attorney if he had anything else to say. Could the attorney be subject to discipline if he does not correct the judge's misperception about the client's criminal record? A. Yes, because the attorney must not allow his client to offer evidence that he knows to be false to a tribunal. B. Yes, because the client committed perjury when he answered the judge's question in the courtroom, once the court was in session for the sentencing hearing. C. No, because a lawyer cannot violate his ethical duty of confidentiality to his client. D. No, because the attorney did not make the false statement, and has no duty to correct the false statements of others.

A. Yes, because the attorney must not allow his client to offer evidence that he knows to be false to a tribunal.

Living across the state line. An attorney lives in the border town of Nashua, New Hampshire, which is a forty-five-minute drive from Boston, Massachusetts. The attorney took the Massachusetts bar exam and passed it, and now seeks admission to the bar in that state, as she has a job offer from a firm in Boston and plans to commute there every day from her home in New Hampshire. The state bar of Massachusetts has a rule that lawyers must be residents of the state in order to obtain a license to practice law there on a regular basis, so it declines her application to the bar. When the attorney challenges this decision in federal court, will she prevail? A. Yes, because the residency requirement violates the Privileges and Immunities Clause of the U.S. Constitution. B. Yes, because the residency requirement violates the Equal Protection Clause of the U.S. Constitution. C. No, because state courts have inherent authority to regulate the lawyers who practice in that state. D. No, because as an out-of-state resident, she lacks standing to challenge a regulation in that state.

A. Yes, because the residency requirement violates the Privileges and Immunities Clause of the U.S. Constitution.

Don't even talk to them. An attorney represents a small business in a contract dispute with one of its suppliers. The attorney meets with the employees of his client, in groups of four or five at a time, and explains that there is litigation pending, that Big Firm is representing the supplier, and that they should simply decline to discuss the case with anyone, especially lawyers from Big Firm. Was it proper for the attorney to ask the employees not to talk to the other party? A. Yes, the Rules of Professional Conduct permit a lawyer to advise employees of a client to refrain from giving information to another party, for the employees may identify their interests with those of the client. B. Yes, because each of those individuals is still free to ignore the lawyer and talk to whomever they want about the case or about the company. C. No, because the Rules of Professional Conduct do not permit a lawyer to advise employees of a client to refrain from giving information to another party, for the employees may identify their interests with those of the opposing party. D. No, because a lawyer shall not request a person other than a client to refrain from voluntarily giving relevant information to another party.

A. Yes, the Rules of Professional Conduct permit a lawyer to advise employees of a client to refrain from giving information to another party, for the employees may identify their interests with those of the client.

Choose the violation. An attorney accepted a position on the state Commission on Judicial Conduct, a division of the judicial branch that investigates complaints of misconduct by judges and brings disciplinary actions when a violation of the Code of Judicial Conduct has occurred. The attorney was surprised by the wide range of rules that regulate the conduct of judges, as well as the variety of complaints that the Commission had to investigate each year. Which of the following activities violated the Code of Judicial Conduct? A. A judge found a certain case particularly puzzling, and she conferred with two other judges in the same courthouse privately about the case, without providing notice to the parties of these conversations. Neither of these other judges has had any involvement in the case, although they were each familiar with the attorneys representing the parties in the case. B. A judge's clerk did Internet research about alternative methods for toxic mold remediation in homes in a case in which one of the parties alleged, among other things, that the opposing party failed to mitigate damage from toxic mold. The clerk wrote a memorandum for the judge about her research, and the judge did not disclose to the parties or their counsel that the clerk had done this research. C. A judge attended an invitation-only special event (an award ceremony for local athletes) on one occasion at the Old Dixie Confederate Club, an elite private dining club that admits only males. The judge engaged in conversations at the event and several people there recognized the judge, but the judge did not officiate in the ceremony in any way. D. A judge teaches a course on business law at a local community college, and she receives the typical compensation for an adjunct professor. Some of the judge's students eventually graduate from law school and become practicing attorneys who appear before the judge representing business clients.

B. A judge's clerk did Internet research about alternative methods for toxic mold remediation in homes in a case in which one of the parties alleged, among other things, that the opposing party failed to mitigate damage from toxic mold. The clerk wrote a memorandum for the judge about her research, and the judge did not disclose to the parties or their counsel that the clerk had done this research.

Profit sharing for paralegals. An attorney practices personal injury law, representing plaintiffs on a contingent fee basis. The attorney employs a paralegal to assist with preparing documents for litigation. The paralegal's salary arrangement is 10 percent of the firm's total net revenue each year. In years when the attorney wins several large cases, the paralegal receives higher wages, and in years when the attorney has no big wins, the paralegal receives almost nothing. The paralegal does not bring clients to the firm, and does not participate in judgments about which clients to represent, or about how to handle the cases. Is the attorney subject to discipline for this arrangement? A. Yes, unless the paralegal has a law degree and has obtained a law license in another state. B. No, because non-lawyers may participate in a firm compensation plan based on overall profit sharing. C. Yes, because the paralegal here is engaged in the unauthorized practice of law. D. No, because the rules treat paralegals the same as lawyers for purposes of sharing fees or profits.

B. No, because non-lawyers may participate in a firm compensation plan based on overall profit sharing.

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

B. No, because the attorney did not know about the associate's conduct at the time it occurred, or while submitting briefs, or even when the hearing began.

There's a first time for everything. An attorney normally does business transactional work for clients, and he has done so for a decade. One of the attorney's clients recently injured another driver in a car accident, and he asked the attorney to defend him in the personal injury lawsuit over the incident. The attorney has never taken a case to trial, but he took trial advocacy courses in law school and has served as second chair on other lawyer's commercial litigation trials. The attorney would like to keep the client and would not mind expanding his practice into a new area. Which of the following would be an improper course of action? A. The attorney could decline to represent the client in the matter, explaining that he specializes in transactional work and does not do trials, and could encourage the client to find another lawyer. B. The attorney could refer his client to another lawyer and charge the other lawyer a substantial referral fee. C. The attorney could research personal injury lawyers in the area, refer his client to the one who seems most reputable, and charge the client for the time spent finding a suitable referral. D. The attorney could take the case, conduct research to master the relevant points of precedent or statutory law, and represent the client to the end of the litigation.

B. The attorney could refer his client to another lawyer and charge the other lawyer a substantial referral fee.

Soliciting campaign contributions. As part of its CJC, a state has adopted a rule prohibiting judicial candidates from personally soliciting campaign contributions. Disregarding this rule, a candidate running for a judicial seat in that state signed and sent a mass-mailing requesting that the recipients give financial support to her campaign. She also posted the letter online. The state bar brought a disciplinary action against the candidate for violating the no-solicitation rule. The candidate responded by claiming that the prohibition violated her First Amendment rights to free speech. When she seeks judicial review of her claim, how should the court rule? A. The court will hold that the First Amendment allows the state to prohibit in-person solicitations by judges but not campaign fund-raising letters. B. The court will hold that the First Amendment allows the state to prohibit in-person solicitations by judges as well as campaign fund-raising letters. C. The court will hold that the First Amendment does not allow the state to place any restrictions on a candidate's fund-raising efforts. D. The court will hold that the state statute violates constitutional due process requirements.

B. The court will hold that the First Amendment allows the state to prohibit in-person solicitations by judges as well as campaign fund-raising letters.

Fact-checking on the Internet. A traffic accident led to litigation. At trial, one of the witnesses explained that dense tree foliage blocked the visibility of drivers from seeing traffic that was turning into their lane from a side street. After court adjourned for the day, the judge checked the accident scene on Google Earth and discovered that the entire area had retail and commercial development along both sides of the road. Few, if any, trees remained in the area. Did the judge violate the Code of Judicial Conduct? A. The judge's Internet search did not violate CJC Rule 2.9(c) because this is not an adjudicative fact. B. The judge's Internet search violated CJC Rule 2.9(c) because this is an adjudicative fact. C. The judge may take judicial notice of the fact that no trees are in the area because this is known to the public. D. The judge's Internet search was permissible because it merely related to the testimony of one witness during trial.

B. The judge's Internet search violated CJC Rule 2.9(c) because this is an adjudicative fact.

You're fired! A client hired an attorney to represent her in a litigation matter. At the end of the first day of trial, the client is unhappy with her lawyer's performance in the courtroom and informs the attorney that she is firing him and will find another lawyer. The attorney wants to continue representing this client until the end of the trial. May the client discharge the attorney after a trial has begun? A. Yes, as long as a client obtains permission from the court to discharge an attorney, it is permissible. B. Yes, a client has a right to discharge a lawyer at any time, with or without cause, subject to liability for payment for the lawyer's services. C. No, a client may not discharge a lawyer once a trial is underway, because the disruption could be prejudicial to the opposing party. D. No, a client cannot discharge a lawyer once the lawyer has received confidential information about the client's case.

B. Yes, a client has a right to discharge a lawyer at any time, with or without cause, subject to liability for payment for the lawyer's services.

My old friend, the opposing party. A lawyer represents the defendant in litigation over a car accident. The plaintiff, who was driving the other car, was a childhood friend and neighbor of the lawyer — they still keep in touch. As the defendant's lawyer has known the plaintiff since childhood, he calls the plaintiff, who has retained counsel as well, to see if they can resolve the case without going to trial. Is the lawyer subject to discipline for calling his lifelong friend? A. Yes, the Model Rules prohibit in-person solicitation of settlements, and this includes real-time electronic communication such as telephone calls, texts, or chat. B. Yes, as a lawyer shall not communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized to do so by law or a court order. C. No, the Model Rules do not prohibit communication with a represented person, or an employee or agent of such a person, concerning matters outside the representation. D. No, the courts and disciplinary boards strongly favor settlement before trial as a matter of public policy.

B. Yes, as a lawyer shall not communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized to do so by law or a court order.

Attorney acquiescence. After an attorney has been representing a client in a transactional matter for six months, the client asks the attorney to draft and deliver some documents that the attorney knows are fraudulent. The attorney tries to dissuade the client, but the client insists. The attorney believes the recipient of the documents will probably realize they are fraudulent before irreparable harm happens to the recipient. The client is willing to sign a private document for the attorney in which the client takes full responsibility for the fraud and states that the attorney was merely following orders and is not blameworthy in the matter. Would it be improper for the attorney to acquiesce, and draft and deliver the documents according to the client's instructions? A. Yes, because the waiver of responsibility document that the client signed constitutes a personal transaction between the attorney and the client, for which the client should have had the advice of outside counsel. B. Yes, because a lawyer is required to avoid assisting the client, for example, by drafting or delivering documents that the lawyer knows are fraudulent. C. No, because the Model Rules of Professional Conduct confer upon the client the ultimate authority to determine the purposes to be served by legal representation. D. No, because the attorney reasonably believes that the recipient of the documents will suffer no irreparable harm, and the client is willing to assume full responsibility for the action, confirmed in writing.

B. Yes, because a lawyer is required to avoid assisting the client, for example, by drafting or delivering documents that the lawyer knows are fraudulent.

See you next summer. A prosecutor in a felony drug case addressed a group of reporters outside the District Attorney's office. In response to questions about the specific case underway, the prosecutor explained that the judge had consolidated the trials of three co-defendants into a single proceeding and had postponed the proceeding until the next summer, four months away. Was it proper for the prosecutor to disclose such details about the case to reporters? A. Yes, because the public has a right to know how the details of a criminal prosecution, as the taxpayers are paying the prosecutor's salary. B. Yes, because a lawyer may tell reporters the scheduling or result of any step in litigation. C. No, because no lawyer associated in a firm or government agency subject to the Rules of Professional Conduct shall make a statement prohibited by the rules. D. No, because criminal jury trials will be most sensitive to extrajudicial speech.

B. Yes, because a lawyer may tell reporters the scheduling or result of any step in litigation.

Honest ads. An attorney advertised in a local newspaper. His advertisement reads, "I never charge more than $200 per hour for any type of legal work, and for simple legal problems such as uncontested divorces or name changes, I charge even less." The attorney once had a particularly complicated, tedious case in another jurisdiction for which he charged $250 per hour, but he does not expect such a case to arise in the future, though his fee would be higher if it did. The attorney's advertisement fails to state that some other lawyers in the community charge substantially lower fees. The advertisement includes a pencil drawing of an unrealistically handsome, but generic-looking judge sitting behind the bench in a courtroom with a gavel in his hand. Could the attorney be subject to discipline for this advertisement? A. Yes, because he included a drawing of an unrealistically handsome judge. B. Yes, because it is not true that he never charges more than $200 per hour. C. No, as long as no other attorneys in the area charge lower fees. D. No, as long as a reasonable percentage of the attorney's cases are simple legal problems for which he charges less than $200 per hour.

B. Yes, because it is not true that he never charges more than $200 per hour.

The nonpaying client. A client, who happened to be a judge, hired an attorney to represent her in her divorce proceeding against her husband, who is guilty of marital infidelity. Their fee agreement stipulates that the attorney would bill the client every month for the work performed in the previous thirty days. After two months of representation, the attorney has sent the client two bills, and has received no payments. Is it proper for the attorney to seek to withdraw from the case on the basis of unpaid fees? A. Yes, because otherwise the attorney will develop a conflict of interest with his own client, as the share of the marital assets will impact the client's ability to pay all the outstanding fees at the end of the proceeding. B. Yes, because a lawyer may withdraw if the client fails substantially to fulfill an obligation to the lawyer regarding the lawyer's services and has been given reasonable warning that the lawyer will withdraw unless the obligation is fulfilled. C. No, because a lawyer representing a judge may not withdraw without the judge's approval or permission. D. No, because withdrawing over unpaid fees turns the representation into a contingent fee arrangement, which is impermissible in a divorce case.

B. Yes, because a lawyer may withdraw if the client fails substantially to fulfill an obligation to the lawyer regarding the lawyer's services and has been given reasonable warning that the lawyer will withdraw unless the obligation is fulfilled.

Coaching the client before trial. In preparation for trial, an attorney and the client sat down together to go over the client's upcoming testimony. The client mentioned, as he recounted his version of the facts, something that the attorney knew would constitute an admission of fault on a critical point in the case. The attorney interrupted the client and said, "If you admit that, you will have forfeited your entire case." The client nodded to show his comprehension of what the attorney said. The client testified at trial and changed his story significantly, carefully omitting the statement that the attorney had identified as a legal admission of guilt. Did the attorney violate the Rules of Professional Conduct in preparing the client for his testimony in this way? A. Yes, because a lawyer should not prepare a witness for testimony at trial at all, due to the risk of manipulating the witness or coaching the witness on the testimony. B. Yes, because a lawyer must not counsel another person to conceal a matter with evidentiary value. C. No, because the attorney did not actually coach the witness to make a false statement but merely to refrain from making certain unfavorable admissions. D. No, because one of the main values of having representation in litigation is to have advice and counsel as one prepares to testify at trial.

B. Yes, because a lawyer must not counsel another person to conceal a matter with evidentiary value.

It's the little things. An attorney faced criminal sanctions for having over two thousand unpaid traffic and parking tickets, and several instances of failure to appear for jury duty. Could the attorney be subject to professional discipline for these minor offenses? A. Yes, because any illegal activity by a lawyer constitutes professional misconduct. B. Yes, because a pattern of repeated offenses, even ones of minor significance when considered separately, can indicate indifference to legal obligation. C. No, because traffic violations or neglecting jury duty would have no specific connection to fitness for the practice of law. D. No, because these activities do not arise from or pertain to the attorney's representation of a client.

B. Yes, because a pattern of repeated offenses, even ones of minor significance when considered separately, can indicate indifference to legal obligation.

Firing the lawyer before the big win. An attorney agreed over the phone to represent a client, and began working on the case immediately. The client came into the office two weeks later to sign the representation agreement. At the same time, the attorney gave the client a written statement of the hours worked so far and requested immediate payment for that portion of the fee, plus a $10,000 retainer up front against which the lawyer would draw fees as the representation proceeded. The fee arrangement was complicated. In addition to the hourly fee for the time he had already worked, the agreement called for an hourly rate of $150 per hour for any work done before trial. If the case were to go to trial, the hourly fee would be $250 per hour for the entire trial phase and any appeals. The agreement also stipulated that it incorporated by reference any oral agreements regarding additional fees and expenses. The client signed the agreement. Then the lawyer explained orally that in addition to the hourly fees and the non-refundable retainer, he would take a 25 percent contingent fee of any money that the other side had to pay the client as a result of the representation, whether in damages, as there were claims and cross-claims in the case, or in court-ordered attorneys' fees. The client agreed, and they shook hands to confirm their oral agreement. Finally, the agreement authorized the lawyer to have full discretion to accept or reject any settlement offers without prior approval from the client, although no such offers occurred. The case proceeded through the discovery phase and went to trial. On the last day of the trial, before closing arguments, it appeared that the client might win a large verdict. The client became resentful about the prospect of sharing this with the lawyer, and fired the lawyer during a recess before closing arguments. The client returned to the courtroom alone, waived his right to closing argument, and still won a significant verdict. The client now refuses to pay the lawyer the contingent fee or even the hourly fees for the last day of trial, because the client claims the attorney performed incompetently that day. The attorney has threatened to sue the client to obtain the fees. Could the attorney be subject to discipline? A. Yes, because the lawyer made an agreement that removed the client from the decisions about accepting or rejecting settlement offers. B. Yes, because all contingent fee agreements must be in writing, not merely oral agreements incorporated by reference. C. No, because the client terminated the representation before the lawyer could collect a contingent fee, which made the prior agreement irrelevant. D. No, because the written fee agreement explicitly incorporated by reference the subsequent oral contingent fee agreement.

B. Yes, because all contingent fee agreements must be in writing, not merely oral agreements incorporated by reference.

Enforcing child support orders. A court orders that a particular client should receive child support from her ex-husband. The client's ex-husband stopped making child support payments twelve months ago. The client hires an attorney to handle the enforcement of child support against the client's ex-husband. The attorney agrees to take the case on a contingency basis because the client cannot afford to hire an attorney since she has not been receiving child support from her ex-husband. The client also asks the attorney to pay her court costs, as she cannot afford those either. The attorney prepares a contract that states the attorney will only be paid for his representation if the client prevails on the enforcement motion, but that court costs will be reimbursed by the client within thirty days of the finalization of the case regardless of whether the client prevails. Is the attorney's conduct proper? A. Yes, because attorneys may represent clients, regardless of the type of case, on a contingency basis, as long as clients are required to reimburse the attorney for the actual expenses paid by the attorney for the client. B. Yes, because attorneys may accept cases on a contingency basis in domestic relations issues if the case is merely to enforce a prior order, and attorneys may pay for court costs for clients. C. No, because attorneys cannot advance funds to clients for any expenses, whether or not those expenses are related to the case. D. No, because contingency fees are specifically prohibited in any case involving domestic relations, including enforcement of prior orders.

B. Yes, because attorneys may accept cases on a contingency basis in domestic relations issues if the case is merely to enforce a prior order, and attorneys may pay for court costs for clients.

Just a clerk. An attorney represented a client in an action for replevin. After the filing of the case, but before the court had sent any notices about the docket number, the attorney spoke to a clerk at the courthouse, and inquired whether the case had received an assignment yet to a judge. The clerk said it was still unassigned. The attorney then asked the clerk to mention to the Director of Judicial Administration, who was also the Chief Presiding Judge, that they should not assign the case to a particular judge, who was notorious for having a bias against parties like the attorney's client, and who had an extraordinarily high reversal rate from the appellate courts in replevin cases. The clerk said he would mention the conversation to the Director, which he did. The Director said she could not accommodate special requests from lawyers regarding case assignments, but when it came time to assign the case, she assigned the case to another judge merely to avoid another embarrassing reversal from the appellate courts. Was it improper for the attorney to ask the clerk to pass his concerns along to the Director? A. Yes, because he should have waited until the case was assigned before asking the administrator to reassign it to another judge. B. Yes, because during a proceeding a lawyer may not communicate ex parte with persons serving in an official capacity in the proceeding, such as judges, masters, or jurors, unless authorized to do so by law or court order. C. No, because Attorney did not actually speak ex parte with the judicial officer, but instead spoke with a front-counter clerk. D. No, because the case had not yet been assigned to any judge.

B. Yes, because during a proceeding a lawyer may not communicate ex parte with persons serving in an official capacity in the proceeding, such as judges, masters, or jurors, unless authorized to do so by law or court order.

A very complicated problem. A client asks an attorney to represent him in a complex corporate taxation matter regarding the taxable earnings of an overseas corporate subsidiary that pays its American employees by direct deposits to bank accounts in the United States. All of the overseas subsidiary's sales occur in the United States, but all its products and supplies it purchases overseas, and half the employees are foreigners. A dispute with the IRS over the matter has been going on for several years. The attorney never took a tax course in law school and has no practice experience in the area. The attorney needs more clients, so he agrees to take the case and to conduct the necessary study to provide adequate representation. The client agrees to those terms, and the attorney undertakes the representation. A few months later, due to a change in which political party controlled the White House, the IRS abruptly dropped the case against the client, so the client receives a satisfactory resolution to the matter. Would the attorney be subject to discipline for undertaking this representation? A. Yes, because another change in the political climate could put the client back into the same position as before. B. Yes, because expertise in a particular field of law is a requirement in circumstances where the nature of the matter is complex and specialized, and the lawyer has no training or experience in the field. C. No, because a lawyer can provide adequate representation in a wholly novel field through necessary study. D. No, because the client obtained a satisfactory resolution to the matter, so the attorney's competence, or lack thereof, did not harm the client in any way.

B. Yes, because expertise in a particular field of law is a requirement in circumstances where the nature of the matter is complex and specialized, and the lawyer has no training or experience in the field.

Too much information. In anticipation of a round of settlement negotiations over a business partnership breakup, a client authorized his lawyer to disclose that the client was having personal financial troubles, but added that the lawyer should "leave it at that — don't elaborate too much." The lawyer was to attend the settlement conference without the client. At the settlement conference, when the other parties pressed the lawyer about why his client seemed so inflexible about a settlement amount for dissolving the partnership, the lawyer said that his client was having personal financial problems. Counsel for one of the other partners asked, "Like what? Perhaps the other partners could do something to help, and it would make it easier to resolve the partnership breakup." The lawyer then explained that everyone in the room must keep the following information completely confidential, and went on to explain that his client was on the verge of bankruptcy due to a gambling problem. He also explained, in a hushed tone, that the client had even assigned his equity share in the partnership to a business rival of the partnership in order to pay off a personal loan. The others were shocked, with a mixture of sympathy for their partner's gambling problem, and alarm at the implications of their main market rival owning a significant share of the existing partnership. One of the other attorneys, however, checked the terms of the original partnership agreement, and informed the rest that equity interests in the company were unassignable without a majority vote of the other partners, making the assignment legally void. Could the lawyer be subject to discipline for the disclosures he made at the settlement conference? A. Yes, because the lawyer asked the other lawyers to keep the information completely confidential, which would force them to violate their duty of loyalty to their own clients. B. Yes, because he went beyond what the client had authorized him to disclose, thus breaching his duty of confidentiality to the client. C. No, as the client impliedly authorized the disclosure before the settlement conference. D. No, because the disclosure was necessary to prevent, mitigate, or rectify substantial injury to the financial interests of the other partners.

B. Yes, because he went beyond what the client had authorized him to disclose, thus breaching his duty of confidentiality to the client.

A clean start in another state. An attorney obtained admission to the bar in New York and practiced there for two years. She worked for Big Firm, which has offices in five states and a few locations overseas. After her two years in the New York office, the firm transferred her to its office in San Diego, California. The attorney then applied for admission to the California bar under a reciprocity arrangement, and the state bar admitted her without making her re-take the bar exam. After practicing in California for three years, somehow the New York state bar learned that the attorney had made false statements on her original bar application about misdemeanor arrests during college. The New York bar informed the California state disciplinary authority about this problem, and the California state bar commenced disciplinary proceedings against the attorney in California. Can the attorney be subject to discipline in California for false statements made on a bar application in another state? A. Yes, because the states depend on each other to help enforce their own attorney disciplinary rules, and California therefore has a legal duty to enforce disciplinary rules from New York. B. Yes, because if a person makes a material false statement in connection with an application for admission, it may be relevant in a subsequent admission application or disciplinary proceeding elsewhere. C. No, because the alleged misconduct occurred on a bar application in a non-contiguous state, so California has no jurisdiction over the matter. D. No, because the fact that the attorney has now practiced for five years means that the estoppel doctrine prevents a state bar from revisiting her original bar application.

B. Yes, because if a person makes a material false statement in connection with an application for admission, it may be relevant in a subsequent admission application or disciplinary proceeding elsewhere.

Passing the client to a partner. An attorney works in a partnership with one other lawyer. A client wants the attorney to represent her in litigation over a contract dispute, because the attorney helped negotiate the contract. In fact, the attorney was the only other party in the room when the client and the other party reached a final agreement on the terms and signed the contract. The attorney explains that he will probably have to testify as a witness at the client's trial, as the dispute involves the parties' intention regarding a certain ambiguous provision of the contract. The attorney said he would truthfully corroborate the client's version of the events. As a result, the attorney explains, he cannot represent the client at the trial, but his partner at the firm (a two-lawyer partnership) could represent the client instead. The client retained the attorney's partner to represent her in the litigation. Is this arrangement proper? A. Yes, because the client has agreed to it and there is no conflict of interest. B. Yes, because lawyer may act as advocate in a trial in which another lawyer in the lawyer's firm is likely to be called as a witness. C. No, because the firm had only two partners and the relationship is too close for one to be objective while conducting direct examination of the other. D. No, because a lawyer may not act as advocate in a trial in which another lawyer in the lawyer's firm is likely to be called as a witness.

B. Yes, because lawyer may act as advocate in a trial in which another lawyer in the lawyer's firm is likely to be called as a witness.

All's well that ends well. A lawyer received a court appointment to represent an indigent criminal defendant in a complex case involving felony money laundering, counterfeiting, tax fraud, and other aspects of organized crime. The lawyer tried to refuse the appointment, explaining to the judge that she was handling too many other cases right then, and that she had never before handled a complex criminal case. The judge ignored her concerns and ordered her to take the case. The lawyer reluctantly took the case and did a minimal amount of work on it — no more than she would normally do for a simple misdemeanor matter, apparently as a type of protest. Ultimately, the prosecutor needed her client to agree to testify against another more important member of the same criminal conspiracy, and offered her client a surprisingly favorable (lenient) plea deal. The client was very pleased with the outcome of the matter and grateful to the lawyer who represented him. Could the lawyer be subject to discipline, based on these facts? A. Yes, because she tried to refuse to accept a court appointment to represent an indigent defendant. B. Yes, because she did not act with reasonable diligence in representing the client. C. No, because the client obtained a favorable outcome and was satisfied with her representation. D. No, because the judge forced her to take a case after she raised a reasonable objection to accepting the appointment.

B. Yes, because she did not act with reasonable diligence in representing the client.

Third-party billing. An attorney uses an outside billing service to track client billing and send bills to clients each month. The attorney keeps track of his time, and submits computerized reports by e-mail to the billing company at the end of each workday about how much time he spent on which tasks for which clients. The billing company calculates the monthly totals and sends detailed bills to clients on the attorney's behalf. The attorney found this outside billing company online, visited their website, downloaded their app, and used their online lawyer registration form to create an account with the company. At one point in setting up the account and downloading the app, the attorney had to click on an "I accept the terms and conditions" of a long user agreement that the attorney scrolled through quickly, without reading. Clients are not aware that the attorney uses an outside billing service until they receive their bills. Has the attorney violated his ethical duties to his clients? A. Yes, because a lawyer must not outsource components of the representation, including billing, to non-lawyers. B. Yes, because submitting the client names, time worked, and tasks involved constitutes a disclosure of confidential information for which clients must provide informed consent beforehand. C. No, because a lawyer may outsource administrative tasks to non-lawyers for a reasonable fee. D. No, because a lawyer entitled to a fee is permitted to prove the services rendered in an action to collect it.

B. Yes, because submitting the client names, time worked, and tasks involved constitutes a disclosure of confidential information for which clients must provide informed consent beforehand.

The buffer. An attorney has a busy transactional practice and frequently must handle client funds, either for making commercial purchases, sales, leases, dispute settlements, or other transfers. The attorney faithfully deposits client money in a separate trust account and does not commingle the funds with his own, except that he deposits enough of his own money in the account to cover the monthly bank service charges. He also put $1,000 in the account when he opened it and left it there, as a buffer in case there were any accounting errors, so the clients would never experience inconvenience due to the account being inadvertently overdrawn. The attorney keeps complete, accurate records of all deposits and withdrawals for seven full years, after which he destroys the records to preserve client confidentiality. Is the attorney acting improperly? A. Yes, because the attorney did not keep records for a long enough period. B. Yes, because the attorney should not have deposited the $1,000 buffer from his own funds in the account. C. No, because the lawyer may deposit the lawyer's own funds in a client trust account for the purpose of paying bank service charges on that account. D. No, because the attorney keeps property of clients or third persons that is in a lawyer's possession in connection with a representation separate from the lawyer's own property, in a separate account maintained in the state where the lawyer's office is situated.

B. Yes, because the attorney should not have deposited the $1,000 buffer from his own funds in the account.

Stories over drinks with friends. An attorney represented a client, who was a defendant in a criminal prosecution. The client's trial ended in a conviction and a life sentence. After all possible appeals were complete, the attorney's representation of the client ended. The attorney sent the client a letter, which the client received in prison, explaining that his representation was now ending and providing a detailed accounting of all billing matters. No outstanding bills remained. Several years later, the attorney met with some former law school classmates at an alumni event, and they swapped stories over drinks about some of their cases over the years. The attorney mentioned the client, but only by first name, and explained how the guilty verdict felt like a failure on his part even though he knew the client was guilty because the client's friends and family members had all witnessed the crime and told the attorney privately what they had seen. Could the attorney be subject to discipline for disclosing confidential client information? A. Yes, because the information the attorney disclosed did not come from the client, but from friends and family members who had betrayed the client by telling the attorney that they saw the client commit the crime. B. Yes, because the duty of confidentiality continues after the client-lawyer relationship has terminated. C. No, because the defendant was no longer his client, as the representation had ended several years before. D. No, because the client is already serving a life sentence for the crime in question, so the disclosure could not possibly be prejudicial to the client.

B. Yes, because the duty of confidentiality continues after the client-lawyer relationship has terminated.

Concerned criticism for the judge. During a trial, the judge overruled an objection by one of the attorneys. The attorney felt that the judge had made a fundamental error and had ignored a clear provision of the official Rules of Evidence. Court adjourned for the day a few minutes later, and the judge retreated to his chambers. The attorney approached the judge's clerk, who was still in the courtroom, and gave him a handwritten note, folded into a square, to pass along to the judge. The clerk gave the note to the judge. The note thanked the judge for recently inviting the attorney to the judge's home, along with sixty other people from the legal community, for a holiday party. It also said that the judge had made a mistaken ruling on the attorney's objection that day, and referred the judge to the relevant provision of the Rules of Evidence. Could the attorney be subject to discipline for his actions? A. Yes, because the lawyer was mixing personal matters with his representation of a client. B. Yes, because the lawyer communicated ex parte with a judge during the proceeding, without being authorized to do so by law or court order. C. No, because the note did not directly ask the judge to take a position on the merits of the case. D. No, because the lawyer did not speak to the judge directly, but instead gave a note to the clerk, who is not a judicial officer.

B. Yes, because the lawyer communicated ex parte with a judge during the proceeding, without being authorized to do so by law or court order.

Client with a mental impairment. An attorney represents a client in a guardianship proceeding. The client is an adult with Down Syndrome and has an IQ far below average, in the "mental retardation" range of the Diagnostic and Statistical Manual of Mental Disorders (DSM-IV). The client's family is trying to have the client institutionalized involuntarily, and the client is fighting this, wanting instead to live semi-independently in a group home. With the help of a social worker, the client has hired the attorney to defend him against the legal proceedings to have the client institutionalized permanently. Having researched this type of case, the attorney knows that case precedents give the client a small chance of prevailing in regular state court, but a good chance of prevailing if the attorney can change the venue to family court or probate court. The attorney has not discussed with the client his decision to seek a change of venue that would be more favorable to the client under that jurisdiction's recent appellate decisions. Switching venue, however, will mean traveling much further (more than an hour) to the proceedings. Is it proper for the attorney to leave the client out of this decision entirely? A. Yes, as long as the attorney explains to the client that the probate or family court is much farther away. B. Yes, fully informing the client according to the usual ethical standards may be impracticable, because the client suffers from diminished capacity. C. No, because a lawyer should always provide information that is appropriate for a client who is a comprehending and responsible adult. D. No, because the attorney should defer to the client's parents, given that the client has diminished capacity.

B. Yes, fully informing the client according to the usual ethical standards may be impracticable, because the client suffers from diminished capacity.

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

B. Yes, the lawyer may reveal information relating to the representation to establish a claim in a fee dispute between the lawyer and the client.

But he started it. A lawyer is representing the defendant in a highly publicized criminal trial. On his way into the courthouse on the day of jury selection, reporters gather around the lawyer hoping for comments. The lawyer explains that the prosecutor already held a press conference in which she shared that the defendant had refused to take a polygraph test, that DNA tests had confirmed the defendant's guilt, and that the defendant had refused several offers of guilty pleas. To set the record straight before trial, the defense lawyer explains that his client had actually agreed to take a polygraph test but that none had occurred. He adds that defense experts would testify about problems with the DNA tests, and that the plea offers had all been the same (a life sentence instead of the death penalty) and were unacceptable to the client. Were the defense lawyer's statements proper? A. Yes, because the First Amendment and Sixth Amendment protect a defendant's right to defend himself publicly through his attorney against false accusations. B. Yes, when prejudicial statements have been publicly made by others, responsive statements may have the salutary effect of lessening any resulting adverse impact on the adjudicative proceeding. C. No, because there is a presumption of prejudicial effect on the proceedings when a lawyer comments publicly about the possibility of a guilty plea, or a party's refusal to confess to a crime. D. No, because there is a presumption of prejudicial effect on the proceedings when a lawyer comments publicly about the performance or results of any examination or test or the refusal or failure of a person to submit to an examination or test.

B. Yes, when prejudicial statements have been publicly made by others, responsive statements may have the salutary effect of lessening any resulting adverse impact on the adjudicative proceeding.

Secret admirer. Lindsey is a single mother working as a cashier in a liquor store. She is behind on her rent, and her landlord has provided written notice of his intent to evict her from her apartment; a complicating factor in the eviction is that the landlord did not fully honor the terms of the lease regarding conditions in the apartment parking lot. She meets with a lawyer for a free initial consultation, but realizes she cannot possibly afford the lawyer's fees, so she leaves and starts planning to move home with her parents. Lindsey also discusses her problems with one or two of her friendly customers. To her surprise, the lawyer calls her the next day and offers to represent her free of charge, and she returns to the office and signs a retainer to this effect. Unbeknownst to Lindsey, a regular customer at the liquor store, Richard, is infatuated with her, and having learned of her plight, Richard contacted the lawyer and offered to pay all the fees for the lawyer's representation of Lindsey, on the condition that Lindsey never know about it. Richard wants to keep Lindsey in the neighborhood so that he might someday win her affections. Under the Model Rules, how should the lawyer handle this situation? A. The lawyer can represent Lindsey under this arrangement as long as he explains to Richard that Lindsey will have ultimate control over the case decisions, not Richard. B. The lawyer absolutely cannot represent Lindsey without obtaining her written consent, even though she would receive free legal help and the lawyer would represent her diligently. C. The lawyer can represent Lindsey as long as he discloses to her that someone else is paying his fee, but he should keep Richard's identity confidential. D. The lawyer should decline the representation because Lindsey clearly has no case here, given that she is behind on rent, and the eviction is a legal certainty.

B. The lawyer absolutely cannot represent Lindsey without obtaining her written consent, even though she would receive free legal help and the lawyer would represent her diligently.

The defendant. Client consults with Attorney regarding a criminal case in which Client is the defendant. Attorney previously represented Client's friend, who is a co-defendant in the current case, in another matter. Attorney does not believe that the previous representation of Client's friend will disable him from providing competent and diligent services to Client, and the parties are not making any claims against each other. May Attorney represent Client in this case? A. Yes, attorneys may represent conflicting parties as long as both clients give informed consent and have had the opportunity to consult with independent counsel regarding the matter. B. Yes, attorneys may represent conflicting parties as long as both clients give informed consent and both parties confirm their consent in writing. C. No, attorneys shall not ever represent conflicting parties, as it is impossible for attorneys to provide competent and diligent services when representing conflicting parties. D. No, attorneys cannot represent conflicting parties when the parties are co-defendants in criminal matters.

B. Yes, attorneys may represent conflicting parties as long as both clients give informed consent and both parties confirm their consent in writing.

Tie us over for the weekend. A client retains an attorney to handle a criminal matter. The client delivers a retainer check to the attorney on Friday afternoon. The retainer check will only cover the work the attorney anticipates he will begin and complete the following Monday. Because the following Monday is a banking holiday, if the attorney deposits the retainer check into his client trust account on Friday afternoon, he will not have access to the funds until Tuesday. The attorney deposits the retainer check into his business checking account and pays himself on Friday before the firm closes with those funds. Is the attorney subject to discipline? A. Yes, attorneys shall not accept amounts paid in advance for criminal matters. B. Yes, attorneys shall deposit amounts paid in advance into a client trust account and the attorney shall not withdraw the funds until fees are earned or expenses are incurred. C. No, if an attorney believes the funds will be earned within a short period, the attorney may deposit the amount he anticipates will be earned directly into his business account. D. No, when an event out of an attorney's control, such as a bank holiday, causes the funds to be unavailable when the attorney anticipates he will need to withdraw the funds, the attorney may deposit the amount he reasonably believes will be earned or needed for expenses into his business account instead of the client trust account.

B. Yes, attorneys shall deposit amounts paid in advance into a client trust account and the attorney shall not withdraw the funds until fees are earned or expenses are incurred.

Seller beware. A client intends to purchase a parcel of real estate, and retained an attorney to analyze the seller's title to the property. The attorney requests information from the seller regarding the seller's original acquisition of the property, and obtains additional information from the local tax assessors and title registry. The attorney concludes that the seller does not have clear title to the property, and informs the seller of this opinion when the seller asks him about it. The seller forbids the attorney to disclose the information to the prospective purchaser of the property and insists that he showed the attorney his documents about the original acquisition of the parcel with the understanding that the attorney would not say anything unfavorable. May the attorney inform the prospective purchaser of his opinion about the title? A. Yes, because remaining silent or withdrawing from representation at this point would make it easier for the seller to perpetrate a fraud on the purchaser. B. Yes, because the seller does not have a client-lawyer relationship with the attorney. C. No, because the attorney is bound by the duty of confidentiality to keep the information private. D. No, because the seller did not provide informed consent.

B. Yes, because the seller does not have a client-lawyer relationship with the attorney.

Strategic procrastination. An attorney is representing the plaintiffs in a class action lawsuit over a mass tort, and the case has become surprisingly complex and time-consuming. The federal court has scheduled a five-week trial for the case, and the trial is coming up next week, meaning that the attorney must work long hours on trial preparation from now until then. The attorney has about twenty other open cases with other clients, but none of them have motions due until after the upcoming class action trial, so the attorney has been focusing exclusively on the class action suit and has been temporarily ignoring the other cases. The attorney has not commenced discovery on the other cases or responded to recent discovery requests, because they do not even have scheduled trial dates yet, and there is nothing new to report to the clients about the other cases, so the attorney has not been in touch with them for the last two or three months. Could the attorney be subject to discipline for procrastinating about these other cases? A. Yes, because one class action lawsuit does not equal the individual cases of twenty other clients, and a lawyer has a duty to apportion time evenly across open cases. B. Yes, because a client's interests can be adversely affected by the passage of time, and unreasonable delay can cause a client needless anxiety. C. No, unless the lawyer has actually missed a deadline or statute of limitations, there is no rule violation in this instance. D. No, as long as the class action lawsuit involves more clients in the class than the twenty individual clients who comprise the remainder of the lawyer's caseload.

B. Yes, because a client's interests can be adversely affected by the passage of time, and unreasonable delay can cause a client needless anxiety.

The people want to know. An attorney represented a large corporation as a defendant in a toxic tort action. The matter had received little media attention and the corporate officers who retained the attorney emphasized the need to be discreet as long as possible, so that the pending litigation would have a minimal effect on stock prices. The representation necessitated that the attorney interview some of the employees involved in the incident that gave rise to the litigation, including some of the lowest-level unskilled laborers. A few of these individuals, as well as their co-workers whom the lawyer did not interview, asked the lawyer for details about what was happening with the case. The lawyer felt that they had a right to know about the case as it could affect the company, and their jobs, so he explained who the plaintiffs were, how strong the evidence appeared to be on each side, and the potential liability the company was facing. Could the attorney be subject to discipline for sharing this information with the company employees? A. Yes, but only for sharing it with the employees whom he did not need to interview. B. Yes, because a lawyer may not disclose to company employees any information relating to the representation except for disclosures explicitly or impliedly authorized by the organizational client in order to carry out the representation. C. No, because a lawyer should disclose to the company employees any information relating to the representation unless the officers explicitly forbid the disclosures as necessary to carry out the representation. D. No, because when a lawyer represents a corporation, every employee of the corporation is the client of the lawyer, and has a right to the information.

B. Yes, because a lawyer may not disclose to company employees any information relating to the representation except for disclosures explicitly or impliedly authorized by the organizational client in order to carry out the representation.

Flight risk. An attorney was representing a client in a criminal matter. At the bail hearing, the prosecutor told the court that the defendant was a flight risk, and asked the court either to confine the defendant until trial or to set bail at $15,000. When it was the attorney's turn to speak, he assured the judge that the client had a medical condition that would prevent him from leaving the area, and that the client did not intend to flee the jurisdiction, but was confident that he could stand trial and clear his name of all charges. The attorney knew, however, that the client already had plane tickets to Venezuela, a non-extradition country, and that the client had already fully recovered from his serious medical condition. Is the attorney subject to discipline for making these statements to the court? A. Yes, because there is no constitutional right to have bail in state court. B. Yes, because a lawyer may not knowingly make a false statement of fact or law to a tribunal. C. No, because the statements made at a bail hearing would not affect the merits or outcome of the case. D. No, because the lawyer does not know for a fact that the client will actually flee the jurisdiction, and he cannot say with medical certainty that the client's medical condition will not relapse.

B. Yes, because a lawyer may not knowingly make a false statement of fact or law to a tribunal.

A clean slate. A client is aware that he is under investigation for student loan fraud. A friend who works at the courthouse tips off the client that a magistrate issued a warrant to search the client's home for evidence the next day in the early morning. In a panic, the client calls his attorney, whom he has retained to represent him during the investigation and any prosecution that follows, and asks what he should do. The attorney informs him that the agents executing the warrant will surely seize any computers and hard drives that they find, and that the client should probably wipe and reformat all his drives or dispose of his computers, that he should probably smash his cell phone, and that he might want to go on a long vacation immediately. Is the attorney subject to discipline for this advice? A. Yes, because the Sixth Amendment right to counsel does not arise until formal adjudicatory proceedings begin. B. Yes, because a lawyer shall not counsel or assist another person to destroy or conceal a document or other material having potential evidentiary value. C. No, because the traditional rules against destroying documentary evidence apply only to printed copies, not to electronic files stored on a computer hard drive. D. No, because until the police execute the warrant and legally seize the computers, they are the client's private property and he can do whatever he wants with them.

B. Yes, because a lawyer shall not counsel or assist another person to destroy or conceal a document or other material having potential evidentiary value.

Waiting for the second offer. An attorney represented a client in litigation over a breach of contract. After jury selection but before the opening arguments of trial the following Monday, the opposing party contacted the attorney with a settlement offer. The attorney, an experienced litigator, was familiar with opposing counsel from previous cases, and knew that opposing counsel always follows up an initial settlement offer with a better offer a day or two later. Therefore, the attorney declined the offer immediately, knowing from experience that a better offer was forthcoming. When the attorney met his client at the courthouse the following Monday for the first day of trial, he mentioned that he was encouraged by the opposing party's initial offer the previous week, which he had declined, because it meant that a more generous offer was on the way any time. The client was surprised that his attorney had not consulted with him about the offer, but he accepted the attorney's explanation for declining it and agreed they would wait for the next offer. As both parties and their lawyers took their places in the courtroom, the opposing counsel passed a note to the attorney with a new settlement offer, and just as the attorney expected, it was much more generous. The attorney and his client agreed to settle the case right then, and avoided the inconvenience of going through the whole trial. Is the attorney subject to discipline? A. Yes, because waiting to settle the case until the last minute before trial meant a lot of inconvenience for the judge, the jury, and other court personnel that could have been avoided if the lawyer had engaged opposing counsel in negotiations at the time of the first offer, the previous week. B. Yes, because a lawyer who receives from opposing counsel an offer of settlement in a civil controversy must promptly inform the client of its substance prior to taking any action. C. No, because Attorney obtained a more favorable outcome for his client by waiting for the follow-up offer on Monday, and the case still ended up settling before trial. D. No, as long as Client would have agreed anyway to let Attorney decline the initial offer, if Attorney had explained opposing counsel's consistent pattern with offers.

B. Yes, because a lawyer who receives from opposing counsel an offer of settlement in a civil controversy must promptly inform the client of its substance prior to taking any action.

The witness. A witness testified on a client's behalf at trial. That evening, when the attorney was reviewing exhibits and documents to prepare for the next day of trial, he noticed a document that completely negated the witness' testimony from earlier that day. The testimony was material evidence in the case. The witnesses left the jurisdiction after his testimony concluded, and he is no longer available to correct the false statements. The opposing party's lawyer waived his opportunity to cross-examine the witness, because the testimony was unfavorable to his side and he was eager to move on to a more favorable witness. Does the attorney have a duty to take remedial measures to correct the false testimony, such as disclosing the falsehood to the court? A. Yes, because no proper cross-examination occurred, which violated the other party's constitutional rights. B. Yes, because if a witness called by the lawyer has offered material evidence, and the lawyer comes to know of its falsity, the lawyer shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal. C. No, if a witness called by the lawyer has offered material evidence and the lawyer comes to know of its falsity, the lawyer has no duty to correct the information if the opposing counsel waived his right to cross-examination. D. No, because the lawyer did not realize at the time of the testimony that it was false, and therefore did not knowingly offer any false statements to the tribunal.

B. Yes, because if a witness called by the lawyer has offered material evidence, and the lawyer comes to know of its falsity, the lawyer shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal.

Corporate counsel and the tortfeasor employee. An attorney represents a corporation. One of the corporation's delivery trucks, driven by a corporation employee, had a tragic accident with a school bus full of children, and many children died. The delivery truck driver suffered severe injuries, but survived, and spent three weeks recovering in the hospital. In preparation for the wrongful death lawsuits by the deceased children's families, the corporation's attorney visited the truck driver in the hospital and interviewed him about the accident. The attorney did not explain that he was not representing the driver, or that the driver should retain his own lawyer. The unsophisticated driver may have assumed that his employer's lawyer was also looking out for his (the driver's) interests. The driver made some incriminating admissions to the lawyer about being slightly intoxicated at the time of the accident and having been careless while driving. He also admitted that at the time of the accident, he had taken the corporate delivery truck off its assigned route to attend to some personal business for about twenty minutes. Could the attorney be subject to discipline in this case? A. Yes, because he shares in the corporation's collective responsibility for the deaths of those innocent children. B. Yes, because in dealing with an organization's employees, the lawyer should explain the identity of the client when the lawyer should reasonably know that the organization's interests are adverse to those of the employee with whom the lawyer is dealing. C. No, because it is not yet clear whether the driver's interests are adverse to the corporation's interests, or whether the corporation will be responsible through respondeat superior. D. No, because a lawyer does not have an obligation to remind every employee in a corporation that the lawyer represents the organization rather than the individuals within the organization.

B. Yes, because in dealing with an organization's employees, the lawyer should explain the identity of the client when the lawyer should reasonably know that the organization's interests are adverse to those of the employee with whom the lawyer is dealing.

Constant accommodation demanded. Attorney Adams is a busy litigator, but she is also a single mother of two young children. She has to pick her children up from daycare every weekday by 4 p.m. As a result, whenever she is scheduling hearings, conferences, settlement negotiations, or trial dates, she simply refuses to schedule anything in the late afternoon, as that could easily run into the time when she must pick up her children. The result is that her cases tend to stretch out over a long period, as she is available for hearings, trials, and other litigation-related meetings only in the mornings and early afternoons, and otherwise must seek postponements. Could Attorney Adams be subject to sanctions for managing her schedule in this way? A. Yes, because it is always improper for an Attorney to seek postponement for personal reasons, rather than the needs of the client or the court. B. Yes, because it is not proper for a lawyer to fail routinely to expedite litigation solely for the convenience of the advocates. C. No, because there are occasions when a lawyer may properly seek a postponement for personal reasons. D. No, because a failure to accommodate a lawyer who is a single mother regarding her childcare schedule would constitute a form of gender bias or even discrimination.

B. Yes, because it is not proper for a lawyer to fail routinely to expedite litigation solely for the convenience of the advocates.

Everything is covered. An attorney located a witness who could corroborate his client's story. The witness, however, was afraid of retaliation from others if she testified, and did not want to be involved. The witness also lives 1,000 miles away and works as a waitress, so she cannot afford the travel expenses and lodging, and cannot afford to miss work, because she receives no wages if she does not work. The attorney offers to pay all the witness's expenses. The attorney then pays for airfare and pays to put the witness in one of the nicest hotels in the city, and pays for all of the witness's dining bills at expensive downtown restaurants. The witness reluctantly agrees. Was it proper for the attorney to offer to pay the expenses for a favorable witness to undergo the trouble of testifying at the trial? A. Yes, because expert witnesses routinely charge large sums to testify at trial, so it is proper for a non-expert to receive a modest amount of compensation, especially if she is fearful of adverse consequences from testifying. B. Yes, because it is proper to pay a witness's expenses, as long as the attorney does not offer to pay the witness an inducement to provide favorable testimony. C. No, because it is improper to pay an occurrence witness any fee for testifying. D. No, because it is proper to compensate a witness only if the lawyer will also compensate a witness for the opposing party.

B. Yes, because it is proper to pay a witness's expenses, as long as the attorney does not offer to pay the witness an inducement to provide favorable testimony.

Several ways to structure a large donation. A client hired an attorney to handle a transactional matter. The client, a billionaire, wants to devote several million dollars to philanthropy. There are several alternative ways to achieve the client's goals — incorporating a 501(c)3 charitable corporation, establishing a private foundation, creating a charitable trust, operating a nonprofit unincorporated association, or simply donating the money to an existing charity of some kind. Each alternative has different pros and cons regarding immediate tax benefits for the donor versus tax deductions for subsequent contributors, permissible activities for the charitable entity, donor control versus independence, eligibility for government grants, and administrative costs related to accounting and recordkeeping. The attorney does not discuss all of these details with the client, though, because the client said at the outset that he trusted his attorney's judgment, and the attorney believed the client would find the details tiresome and confusing. The attorney set up a private foundation for the client because this seemed to provide his client with the greatest immediate tax benefits and the highest degree of control in the long term. The downside was that the private foundation option involved burdensome paperwork and reporting to the IRS every year, imposed annual spend-down requirements, and limited the tax benefits for any other philanthropists who wanted to donate to the foundation later. The attorney believed the pros outweighed the cons in this case, but the client was unhappy because he wanted to start something that would grow and attract other wealthy philanthropists who might get involved, and the administrative costs drained some of the funds that the client had hoped would go directly to charitable causes. Could the attorney be subject to discipline for how he handled the matter? A. Yes, because the lawyer in this case is merely helping the client avoid his tax obligations on millions of dollars, and a lawyer should not assist a client in shirking his fair share of taxes. B. Yes, because the Rules of Professional Conduct require a lawyer to consult with the client about the means to be used to accomplish the client's objectives. C. No, because a lawyer ordinarily will not be expected to describe transactional strategy in detail, according to the Rules of Professional Conduct. D. No, as long as the attorney was objectively correct that the pros outweighed the cons in this situation, based on his professional judgment and experience.

B. Yes, because the Rules of Professional Conduct require a lawyer to consult with the client about the means to be used to accomplish the client's objectives.

Supporting the cause. An attorney is active within a new political movement and she has represented several members of the movement, who faced arrest or criminal charges for protesting and picketing. The attorney learns that police have arrested one of the prominent leaders of the movement for trespassing on private property during a protest, but that the movement leader is already out on bail. In response, the attorney calls the leader and offers to represent him in his case free of charge, explaining that she has experience representing other members of the movement in similar cases. The leader agrees to have the attorney represent him on a pro bono basis. The attorney wants to represent the leader because she admires him, but also because she believes it will generate terrific publicity for the firm's practice. Was it proper for the attorney to make this telephone solicitation? A. Yes, because the attorney believes in the leader's cause and is an active member of the movement. B. Yes, because the attorney did not charge for providing these legal services. C. No, because the attorney made a live telephone solicitation of a prospective client. D. No, because the attorney hopes to receive indirect benefit from the publicity that the representation will bring.

B. Yes, because the attorney did not charge for providing these legal services.

Trouble with the FEDs on the horizon. An attorney worked for a corporation as in-house counsel. The attorney discovered that the Chief Financial Officer falsified the corporation's quarterly earnings report in order to prop up the firm's share price, as the CFO's compensation is partly in stock options. The attorney knows that these misrepresented earnings appeared in the filings to the Securities and Exchange Commission, and will eventually result in severe regulatory fines or civil liability for the corporation. The attorney thus reasonably believes that the violation is reasonably certain to result in substantial injury to the organization. The attorney confronted the CFO, but this proved unfruitful, and then he proceeded up the corporate chain of command, eventually going to the Chief Executive Officer and the Board of Directors. The officers and directors refused to address the problem because they thought it would send their stock prices into a freefall and make the corporation vulnerable to a hostile takeover from corporate raiders. Would it now be proper for the attorney to become a whistleblower and reveal the problem to the relevant government authorities? A. Yes, as long as the attorney protects the identities of all those involved and does not reveal the names of the wrongdoers, as they are his clients. B. Yes, because the attorney has exhausted all other reasonable avenues to address the problem internally, so the lawyer may reveal information relating to the representation whether or not Rule 1.6 permits such disclosure. C. No, because the lawyer has a duty of confidentiality to the corporation, and this information relates directly to the attorney's representation. D. No, because the attorney has a duty of confidentiality to the corporate officers and directors personally, and may not disclose information relating to his representation of them without their consent.

B. Yes, because the attorney has exhausted all other reasonable avenues to address the problem internally, so the lawyer may reveal information relating to the representation whether or not Rule 1.6 permits such disclosure.

The disgruntled heir. An attorney agreed to draft a will for a new client who wanted to leave his entire estate to his children, but wanted to disinherit his estranged wife entirely. The will stated that the entire estate would pass to the children. After the client died, the wife claimed her statutory share, which in that jurisdiction was 50 percent of the estate, in spite of the instructions in the will. It should have been foreseeable to the attorney at the time of drafting that the will would not be sufficient to overcome the wife's claim to her statutory share, but he did not explain this to the client or recommend measures to circumvent the problem. Could the frustrated children have a viable claim against the attorney for legal malpractice? A. Yes, because the heirs under a will always have privity to sue the lawyer who drafted the will. B. Yes, because the client's intention was clear on the face of the will, and the lawyer therefore could be liable to the heirs even though they are not clients. C. No, as there is no client-lawyer relationship between the attorney and the children. D. No, because the lawyer did not violate any ethical or fiduciary duty in this case.

B. Yes, because the client's intention was clear on the face of the will, and the lawyer therefore could be liable to the heirs even though they are not clients.

The disbarred lawyer-agent. A firm specializing in sports law represented several professional athletes as clients. The state disciplinary authorities suspended and eventually disbarred one of the associates at the firm, but the disciplinary action did not implicate the rest of the firm (the lawyer's misconduct had occurred completely outside the scope of his duties there). The firm retained the disbarred lawyer as a sports agent for some of the athletes who were clients of the firm. The disbarred lawyer would draft contracts for the athletes and negotiate deals for the firm's clients with their sports teams or with companies seeking the athlete's product endorsement. Could the partners at the firm be subject to discipline for facilitating the disbarred lawyer in the unauthorized practice of law? A. Yes, because a firm may never have any business dealings with a disbarred attorney. B. Yes, because the disbarred lawyer is engaging in the unauthorized practice of law by drafting and negotiating contracts for the firm's clients. C. No, because the firm is not representing that the disbarred lawyer is an attorney and the agent does not have his own clients. D. No, because the disbarred attorney is working under the supervision of licensed attorneys.

B. Yes, because the disbarred lawyer is engaging in the unauthorized practice of law by drafting and negotiating contracts for the firm's clients.

Who is behind this report? A client wants to sell a parcel of commercial real estate, and he hired an attorney to represent him in the matter. As part of the representation, the client asked his attorney to prepare a thoroughly researched opinion memorandum concerning the title of the property, for the information of a prospective purchaser and the purchaser's prospective lender. The attorney gave the title opinion to the client, who gave it to the prospective purchaser, who in turn submitted it to the prospective lender. The prospective lender received and reviewed the attorney's title opinion, but was not aware that the lawyer who prepared the title opinion represented the seller of the property rather than the buyer. Could the attorney be subject to discipline for failing to disclose explicitly in the memorandum what party he represents and that he has a duty of loyalty and confidentiality to the seller? A. Yes, because when a lawyer knows that third parties may rely on his written legal opinions, he has a diminished duty of loyalty or confidentiality to the original client. B. Yes, because the title opinion should identify the person by whom the lawyer is retained, and should make this clear not only to the client under examination, but also to others to whom the results are to be made available. C. No, because the lawyer's duty of loyalty, confidentiality, and candor runs only to the client who retained the lawyer. D. No, because everyone in a commercial real estate transaction presumes that title opinion letters from lawyers represent the best interest of the seller of the property.

B. Yes, because the title opinion should identify the person by whom the lawyer is retained, and should make this clear not only to the client under examination, but also to others to whom the results are to be made available.

Just go with it. An attorney represents a client, who wants to sell his business. A prospective purchaser has required from the client an evaluation of the business' solvency, detailing its current liabilities, potential liabilities, revenue, and assets. The client provides the attorney with documents pertaining to each of these issues, and explains to the attorney in confidence that he has often understated the earnings of the business in order to avoid paying taxes on the business profits. Now he is concerned that the prospective purchaser will undervalue the profitability of the business and refuse to pay an appropriate price to purchase it. He asks the attorney to adjust the earnings figures upward by 25 percent, the same amount by which the client falsely lowered them in the corporate records, in order to portray the business accurately to the potential purchaser. The attorney finds this objectionable and prepares a report based on what the records actually say regarding the earnings, and gives the evaluation directly to the purchaser. When the client learns about this, he explains to the prospective purchaser over the phone what happened. Despite the low reported earnings, the purchaser pays the client's asking price for the business, because of the client's truthful representations over the phone. Could the attorney be subject to discipline for his conduct in this matter? A. Yes, because even with the client's truthful disclosures about the earnings, the report does not account for the fact that the profits appear different than they would be if the business had paid its taxes. B. Yes, because under no circumstances is the lawyer permitted to knowingly make a false statement of material fact or law in providing an evaluation for a third party. C. No, because the lawyer's evaluation accurately represented the earnings reported in the corporate records. D. No, because the client's phone conversation with the purchaser ensured that the purchaser was not relying on false information when he made his decision.

B. Yes, because under no circumstances is the lawyer permitted to knowingly make a false statement of material fact or law in providing an evaluation for a third party.

Ex parte hearings. An attorney represented a client in her divorce and custody case. The client's husband had been abusive, so she asked the attorney to obtain a temporary restraining order against her ex-husband. The application for the temporary restraining order is an ex parte proceeding, so opposing counsel is not present. The attorney knows that the ex-husband has not been physically abusive to the client in over two years, and that he has been faithfully attending an anger-management support group during that time that appears to have produced genuine results. At the same time, the client is fearful that the ongoing custody battle will push her ex-husband over the edge, and that the abuse she endured in the past will resume. At the hearing for the temporary restraining order application, does the attorney have an affirmative duty to disclose the length of time since the last abuse occurred and the ex-husband's faithful participation in an anger management program? A. Yes, but only if the judge asks the attorney if there are any countervailing facts or considerations in the matter. B. Yes, in an ex parte proceeding, a lawyer shall inform the tribunal of all material facts known to the lawyer that will enable the tribunal to make an informed decision, whether or not the facts are adverse. C. No, in an ex parte proceeding, a lawyer has no affirmative duty to inform the tribunal of all material facts known to the lawyer that will enable the tribunal to make an informed decision, if the facts are adverse. D. No, because disclosing those facts would violate the lawyer's duty of loyalty to his own client, because the client feels fearful and requested the restraining order.

B. Yes, in an ex parte proceeding, a lawyer shall inform the tribunal of all material facts known to the lawyer that will enable the tribunal to make an informed decision, whether or not the facts are adverse.

The third wife. Attorney represented Husband twenty years ago in a divorce with Husband's first wife. Husband is a well-known local celebrity, a retired professional athlete who became a semi-successful actor and an outspoken advocate of a radical political cause. Recently, Husband's third wife approached Attorney asking him to represent her in obtaining a divorce from Husband. There are no children from the marriage — their children from previous marriages are now adults — and the distribution of assets will follow the terms of a carefully drafted prenuptial agreement between Husband and his third wife, which Husband's new lawyer drafted for them. Husband long ago provided written informed consent for future conflicts of interest if Attorney represented another party with adverse interests to Husband. Attorney does not believe that any confidential information learned from representing Husband twenty years ago in his first divorce will be relevant to the pending third divorce. On the other hand, there is regular media coverage of Husband's trysts and on-and-off sexual relationships with various actresses and female socialites in the area, and marital infidelity could trigger certain exception clauses in the prenuptial agreement. Can Attorney use the information about Husband's recent indiscretions in representing the third wife? A. Yes, as long as the Husband's new lawyer provides written informed consent to the use of the information in the divorce proceeding. B. Yes, the fact that a lawyer has once served a client does not preclude the lawyer from using generally known information about that client when later representing another client. C. No, not if Attorney learned confidential information about Husband having a pattern of marital infidelity during his prior representation of Husband. D. No, the fact that there is a prenuptial agreement with exceptions triggered by marital infidelity should preclude Attorney from using such information.

B. Yes, the fact that a lawyer has once served a client does not preclude the lawyer from using generally known information about that client when later representing another client.

Non-compete agreements for associates. An attorney owns his own firm in a small town, and hires an associate as a junior lawyer to help with the growing caseload. The employment agreement stipulates that the associate cannot practice law in that small town after leaving the attorney's firm. Which of the following is true regarding this arrangement? A. Neither the attorney nor the associate are subject to discipline for such an agreement. B. The attorney is subject to discipline for requiring this as a condition of employment, but the associate is not subject to discipline because his employer imposed the condition upon him. C. Both the attorney and the associate are subject to discipline for such an agreement. D. The associate is subject to discipline for accepting employment in a firm under such a condition, but the attorney is not subject to discipline, because the associate is the one who will have to execute the provision after leaving the firm.

C. Both the attorney and the associate are subject to discipline for such an agreement.

Same claim, different sector. An attorney spent several years working for the state Office of the Attorney General in its environmental litigation division. While there, the attorney began a case against a scrap metal facility for burying toxic materials on its grounds. The attorney then left government service and went to work for Big Firm. There, the attorney began representing a group of neighboring landowners in a lawsuit against the same scrap metal facility over the same burying of toxic material, as it had polluted the groundwater and had migrated to adjacent properties underground. Is it proper for the attorney to represent these plaintiffs? A. Yes, as long as the new clients provide written informed consent. B. Yes, because the new clients' interests match those of the attorney's government employer, and there is no indication of adverse interests being present between them. C. No, a lawyer who has pursued a claim on behalf of the government may not pursue the same claim on behalf of a later private client after the lawyer has left government service, except when authorized to do so by the government agency. D. No, because the attorney is using the prestige of having worked in government service to attract new clients, which creates a conflict between the attorney's self-interest and the public interest represented by the government agency.

C. No, a lawyer who has pursued a claim on behalf of the government may not pursue the same claim on behalf of a later private client after the lawyer has left government service, except when authorized to do so by the government agency.

Don't worry . . . . A client repeatedly calls an attorney to discuss her pending divorce case. The client wants above-guideline child support, alimony, and a large percentage of the estate, even though the parties have only been married two years. The attorney has continuously given his honest opinion about what he believes the client is eligible to receive, and what he believes she may receive in the divorce based on his experience. The client has recently become angry with the attorney because she is unhappy with his opinion. She has even asked, "Are you working for me or my husband?" In an effort to keep the client happy, the attorney begins to tell the client what he believes she is eligible to receive when she asks, but simply states "the court will decide" when the client asks the attorney what he believes she will receive. Are the attorney's actions proper? A. Yes, the attorney may respond to a client's requests for the attorney's opinion in any manner that will maintain the client's morale, including refusing to give advice if the attorney believes the client will not be accepting of his advice. B. Yes, attorneys are not required to give their opinions or advice, but may, at any time, respond to clients by referring them to the appropriate legal authority or by advising them that the court will ultimately decide the issue, if applicable. C. No, an attorney should give his honest opinion about the case when asked, even if the opinion is unsatisfactory to the client. D. No, attorneys should always give advice to clients that encourages the client to have confidence in the client's position.

C. No, an attorney should give his honest opinion about the case when asked, even if the opinion is unsatisfactory to the client.

The former mediator. An attorney, who often serves as a court-appointed mediator, received an appointment to mediate the divorce case between a husband and wife. The case settled in mediation and the divorce became final soon after. A year later, the husband sought to retain the attorney to represent him in a modification suit against his ex-wife. The attorney accepted the case and sent a letter to the ex-wife advising her that her ex-husband had retained him to represent him in a modification suit. Are the attorney's actions proper? A. Yes, an attorney who previously served as a third-party neutral may represent any party in a suit connected to the previous matter if the attorney provides proper notice to the other party in writing. B. Yes, an attorney who previously served as a third-party neutral may represent any party in a suit connected to the previous matter if the previous case occurred more than one year before the third-party neutral began representation of one of the parties. C. No, an attorney who previously served as a third-party neutral is required to obtain informed consent, confirmed in writing, from all parties to the proceeding prior to representing a party in a suit connected to the previous matter. D. No, an attorney who previously served as a third-party neutral shall not represent any party in a suit connected to the previous matter.

C. No, an attorney who previously served as a third-party neutral is required to obtain informed consent, confirmed in writing, from all parties to the proceeding prior to representing a party in a suit connected to the previous matter.

The former mediator. An attorney, who often serves as a court-appointed mediator, was appointed to mediate the divorce case between a husband and wife. The case settled in mediation and the divorce was finalized soon after. A year later, the husband sought to retain the attorney to represent him in a modification suit against his wife. The attorney accepted the case and sent a letter to the wife advising her that the attorney had been retained by the former husband to represent him in a modification suit. Are the attorney's actions proper? A. Yes, the attorney who previously served as a third-party neutral may represent any party in a suit connected to the previous matter if the attorney provides proper notice to the other party in writing. B. Yes, an attorney who previously served as a third-party neutral may represent any party in a suit connected to the previous matter if the previous case occurred more than one year before the third-party neutral began representation of one of the parties. C. No, an attorney who previously served as a third-party neutral is required to obtain informed consent, confirmed in writing, from all parties to the proceeding prior to representing a party in a suit connected to the previous matter. D. No, an attorney who previously served as a third-party neutral shall not represent any party in a suit connected to the previous matter.

C. No, an attorney who previously served as a third-party neutral is required to obtain informed consent, confirmed in writing, from all parties to the proceeding prior to representing a party in a suit connected to the previous matter.

The secretary's husband. A legal secretary in a law firm is married to the owner of an independent retail-clothing store. The firm undertakes representation of a clothing wholesaler, who is suing the same independent clothing store over nonpayment for shipments of merchandise. The legal secretary's husband hires another firm to represent his store in the lawsuit, and his lawyer asks the court to disqualify the legal secretary's firm because of her position there. Should the firm be subject to disqualification? A. Yes, because the conflict of interest is too great where the defendant's spouse works for opposing counsel's firm. B. Yes, because the lawsuit involves nonpayment for a shipment of merchandise, and the legal secretary indirectly benefited from her husband keeping these unpaid funds. C. No, as long as the firm screens the legal secretary from any involvement in the case or from access to any confidential information about the case. D. No, because the legal secretary is not a lawyer, so the Rules of Professional Conduct do not apply to her personal conflicts of interest.

C. No, as long as the firm screens the legal secretary from any involvement in the case or from access to any confidential information about the case.

Working with Washington lawyers. An attorney in a state that has adopted the Model Rules in their current form enters into a fee-sharing agreement with a lawyer admitted in Washington, D.C., which permits fee sharing with non-lawyers and multidisciplinary practices. They collaborate on a case and divide the fees as agreed. The attorney from the Model Rules state is aware that the other attorney will share his part of the fees with non-lawyers in the D.C. office; in fact, the D.C. lawyer's firm has accountants who hold an ownership share in that firm. Is the non-D.C. attorney subject to discipline for indirectly sharing legal fees with non-lawyers, given that he practices in a state that forbids fee sharing with non-lawyers? A. Yes, the attorneys have a duty to uphold the rules in their own jurisdiction, and given that the attorney knows that the other lawyer will share some of the fees with non-lawyers, he has violated the rule in his own state. B. Yes, but only because the lawyer had actual knowledge of the fee-sharing arrangement. C. No, as long as the first attorney shares fees only with another attorney, it does not matter if the other attorney shares fees with non-lawyers as permitted by his home jurisdiction. D. No, because the rule in the attorney's own state, prohibiting fee sharing with non-lawyers, is unconstitutional, according to the Supreme Court.

C. No, as long as the first attorney shares fees only with another attorney, it does not matter if the other attorney shares fees with non-lawyers as permitted by his home jurisdiction.

Doubling the CLE requirements. The Supreme Court in a state adopted a new rule that doubled the number of continuing legal education hours each lawyer must complete every year in order to maintain a license to practice law in the state. The fifty-hour annual CLE requirement was the highest of any state in the nation. A legal aid lawyer challenged the new rule on constitutional grounds, claiming that it was unduly burdensome to poverty lawyers, given the high cost of the CLE courses, and therefore could leave more poor citizens without representation. Is the legal aid lawyer likely to prevail in this challenge? A. Yes, because heavy CLE requirements create an undue burden on poverty lawyers, which violates the Equal Protection Clause of the Constitution. B. Yes, because forcing lawyers to attend classes on subjects that may not pertain to their area of practice, and which may espouse views that they find politically objectionable, violates the First Amendment of the Constitution. C. No, as state courts have inherent authority to impose reasonable regulations on the lawyers practicing in their jurisdiction. D. No, because the state courts have absolute authority to impose any requirements they want on lawyers in their state.

C. No, as state courts have inherent authority to impose reasonable regulations on the lawyers practicing in their jurisdiction.

Make the prosecutor do his job. An attorney is a criminal defense lawyer. The court has appointed him to represent a defendant who has already given a full confession of the burglary to the police, after receiving proper Miranda warnings, and the prosecution has several witnesses who either saw the crime or heard the defendant discussing his plans to commit the crime beforehand. The police properly obtained all necessary warrants during their investigation and arrest, and the defendant's actions clearly meet the elements in the statute. The lawyer explains to the defendant that he has almost zero chance of an acquittal, given the evidence against him and the fact that the Supreme Court has repeatedly upheld the penal code provision that furnished the basis of the charges in the case. In fact, the attorney cannot imagine any viable defense to raise at trial. Does the attorney have an obligation to ask the court for permission to withdraw from the representation? A. Yes, because if an attorney is already that fatalistic about the outcome of the trial, he will not be able to provide the diligent, zealous advocacy that every defendant deserves. B. Yes, because the defense is frivolous if the lawyer is unable either to make a good-faith argument on the merits or to support the defense taken by a good-faith argument for an extension, modification, or reversal of existing law. C. No, because a lawyer for the defendant in a criminal proceeding may nevertheless so defend the proceeding as to require that every element of the case be established. D. No, because the court appointed the lawyer to represent the defendant, so it would be futile to petition the same judge for permission to withdraw from the case.

C. No, because a lawyer for the defendant in a criminal proceeding may nevertheless so defend the proceeding as to require that every element of the case be established.

Emergency room patients. An attorney is dating a woman whose sister works as a nurse in a hospital emergency room. The attorney gives the nurse, his girlfriend's sister, a stack of his business cards and law firm brochures, and offers to pay her $200 for any clients who hire him because of her referrals, with the understanding that she will not refer patients to any other lawyers. The nurse recommends several patients per month to the attorney for representation in personal injury claims, and one or two per month actually hire the attorney to represent them. Is such an arrangement proper? A. Yes, because the nurse is closely related to the attorney, given that the attorney is dating her sister. B. Yes, because the attorney is not paying the nurse on a contingent fee basis. C. No, because a lawyer shall not give anything of value to a person for recommending the lawyer's services, with certain exceptions not applicable here. D. No, because the fact that the attorney is dating her sister creates a conflict of interest if the nurse refers clients to the attorney.

C. No, because a lawyer shall not give anything of value to a person for recommending the lawyer's services, with certain exceptions not applicable here.

The Nuremberg defense. An associate attorney works at a law firm. The supervising lawyer, who is a partner at the law firm, directs the associate attorney to prepare a petition for a civil case. The associate attorney contacts the client and discusses the facts of the case. During the conversation, the associate attorney realizes that the suit he was directed to file is frivolous and there are no facts to support the claim. The associate attorney discusses his concerns with his supervisor, and the supervising lawyer directs the associate attorney to file the suit, explaining that it will probably settle prior to trial. Following the supervisor's direction, the associate attorney files the suit. Are the associate attorney's actions proper, given that he was merely following orders? A. Yes, because when a lawyer is directed to file a suit by a partner at the firm for which he works, full responsibility for the filing lies with the partner. B. Yes, because a lawyer who makes efforts to discourage a partner of a firm from having a frivolous suit filed is relieved of his responsibility and the responsibility lies with the partner of the firm. C. No, because a lawyer is responsible for any violations, including the filing of frivolous suits, even if directed to file such suit by a partner of the firm at which the lawyer works. D. No, because a lawyer who is directed to file a frivolous suit must refuse to file the suit and also should report the partner who directed him to file such suit to the court in which the case would be filed.

C. No, because a lawyer is responsible for any violations, including the filing of frivolous suits, even if directed to file such suit by a partner of the firm at which the lawyer works.

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

C. No, because a lawyer may be subject to the disciplinary authority of two jurisdictions for the same conduct, and may receive different sanctions in each state.

Under orders. An attorney represents a client before an Administrative Law Judge in a regulatory enforcement matter. The Administrative Law Judge orders the attorney to disclose whether the client was informed by counsel about the regulatory requirements in question before the violation occurred. The client forbids the attorney to answer the question. The attorney initially objects, but the Administrative Law Judge insists. Could the attorney be subject to discipline for disclosing such confidential client information to the Administrative Law Judge? A. Yes, because an Administrative Law Judge is not a court or tribunal for purposes of the exceptions to the confidentiality rules that might permit disclosures in response to a court order. B. Yes, because a lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent. C. No, because a lawyer may comply with an order to reveal information relating to the representation of a client by a court or by another tribunal or government entity claiming authority pursuant to other law to compel the disclosure. D. No, because the information relates only to what the lawyer told the client, not to what the client told the lawyer, so the duty of confidentiality does not apply.

C. No, because a lawyer may comply with an order to reveal information relating to the representation of a client by a court or by another tribunal or government entity claiming authority pursuant to other law to compel the disclosure.

Asking for advice. An attorney is representing a client who is a notorious celebrity-turned-criminal. The attorney is confused about whether he may publicly disclose information that he learned in confidence from his client if the information is already a matter of public record, and his research indicates there is a split of authority on this question. The attorney calls another lawyer who specializes in lawyer malpractice and lawyer disciplinary matters to seek advice about what course of action would comply with the Rules of Professional Conduct. The other lawyer, an expert in legal ethics, agrees to provide an opinion and to keep the conversation a secret. The attorney tries to use a hypothetical to explain the problem, but given the client's national reputation and celebrity status, the other lawyer knows immediately who the client is, and can easily surmise the nature of the confidential information. Is the attorney subject to discipline for disclosing confidential information about his client? A. Yes, because the attorney used a hypothetical that was obvious enough that the other lawyer immediately knew the identity of the client and the client's information that the attorney was supposed to protect. B. Yes, because a lawyer's confidentiality obligations generally preclude a lawyer from securing confidential legal advice about the lawyer's personal responsibility to comply with the rules. C. No, because a lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary to secure legal advice about the lawyer's compliance with the Rules of Professional Conduct, even when the lawyer lacks implied authorization to make the disclosure. D. No, because a lawyer may generally disclose confidential information to another lawyer as long as the other lawyer promises to keep the conversation secret, and the other lawyer has a reputation for complying with the ethical rules.

C. No, because a lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary to secure legal advice about the lawyer's compliance with the Rules of Professional Conduct, even when the lawyer lacks implied authorization to make the disclosure.

Just the basics. An attorney represented a newspaper publisher in a defamation case brought by a popular actor. A radio talk show invited the attorney to participate in their afternoon program and respond to calls from the radio listeners. The first caller asked the attorney to explain the case involving the superhero that the popular actor had played in a recent film. The attorney explained that the actor (using the actor's legal name as it appeared in the pleadings, rather than his stage name or the character for which the actor was most famous), and the legal name of the publisher the attorney represented. He also explained that the lawsuit was over alleged defamation by the newspaper, and that the newspaper planned to raise an affirmative defense of truth, that is, it would attempt to show that the stories it printed about the actor were factually accurate, even if they were unflattering. The attorney also mentioned that the actor owns a home and a business in the state, which is a matter of public record, and this is why the case is in the courts in that state. Did the attorney violate the Rules of Professional conduct by making these statements on a radio talk show program? A. Yes, because a lawyer who is participating or has participated in litigation shall not make an extrajudicial statement that the lawyer knows or reasonably should know will be disseminated by means of public communication. B. Yes, because he explained that his side would assert the truth of the unflattering stories it published, which could prejudice the upcoming proceedings, and revealed where the actor lives. C. No, because a lawyer may state the claim, the defense involved, the identity of the persons involved, and matters in the public record. D. No, because a lawyer has a right to explain his client's side of the story and defend his client in public when the client has been subjected to the stigma of a lawsuit.

C. No, because a lawyer may state the claim, the defense involved, the identity of the persons involved, and matters in the public record.

The hearing officer. An attorney was a state hearing officer for the Workers Compensation Board. The attorney left that position and opened his own law firm, primarily representing parties before the state Workers Compensation Board. One of the cases is the final rehearing of a case in which the attorney had presided as hearing officer at an initial preliminary hearing and ruled on preliminary matters, but the attorney left the Board without issuing any final decision in the case and the Board transferred the matter to another hearing officer. The attorney represents the injured worker, the client, and the employer is Manufacturer. All the parties involved give informed consent, confirmed in writing, for the attorney to represent the client. Is the attorney subject to discipline for representing the client in this matter? A. Yes, because a lawyer shall not represent anyone in connection with a matter in which the lawyer participated personally and substantially as a judge or other adjudicative officer. B. Yes, because the type of conflict of interest described here is non-consentable, so it is irrelevant that all the parties provided informed written consent. C. No, because all the parties involved provided informed written consent to the representation, despite the obvious conflicts of interest at stake. D. No, the conflict-of-interest rules do not apply to merely administrative hearing officers who are not actual judges, arbitrators, or mediators.

C. No, because all the parties involved provided informed written consent to the representation, despite the obvious conflicts of interest at stake.

Against the odds. A client asked an attorney to represent him in a lawsuit. The attorney conducts some preliminary research and quickly discovers that the lawsuit is a very long shot. In fact, based on the attorney's survey of the existing judicial decisions in very similar cases, the attorney estimates that they have only a 15 percent chance of winning, and it will depend on an extraordinarily lopsided jury, a strongly partisan judge whose political leanings go in their favor, as well as a mediocre lawyer representing the other side. Otherwise, all things being equal, the attorney advises the client that he is about 85 percent certain that they will not prevail. The client is willing to take risks, however, and urges the attorney to take the matter. The attorney reluctantly agrees, on the condition that he can charge a somewhat higher fee than usual, and files the lawsuit. Could the attorney be subject to discipline for bringing a frivolous claim? A. Yes, because the attorney knows from his research that the claim is very unlikely to prevail, and is therefore wasting the court's time. B. Yes, because he should not have charged a higher fee in a case where the client is already facing unfavorable odds of winning, as this puts the client into an even worse position. C. No, because an action is not frivolous even though the lawyer believes that the client's position ultimately will not prevail. D. No, because the client should control the overall objectives of the representation, even if the lawyer controls the specific strategies, methods, and tactics.

C. No, because an action is not frivolous even though the lawyer believes that the client's position ultimately will not prevail.

He was there. Three years into the litigation in a complex antitrust lawsuit, it became necessary to have the attorney, who alone represented the defendant corporation, testify as a witness at the trial. The attorney had been present at a private meeting between his client and an industry rival, at which they allegedly discussed a price-fixing scheme, and the testimony of the two rivals (the only ones besides the attorney at the meeting) contradicted each other. The question of what occurred at the meeting was a hotly contested issue in the case, but was only one of many issues in the protracted, extremely complex litigation. The opposing party moved to disqualify the attorney from representing his client after the attorney took the stand to testify. Should the court disqualify the attorney from representation, or from testifying as a witness? A. Yes, because a lawyer shall not act as advocate at a trial in which the lawyer is likely to be a necessary witness. B. Yes, because the testimony relates to a contested issue. C. No, because disqualification of the lawyer would work substantial hardship on the client. D. No, because testifying allows the lawyer to promote the truth and integrity of the proceedings when it is clear that one of the witnesses is lying about the conversation.

C. No, because disqualification of the lawyer would work substantial hardship on the client.

Shaming the victim. An attorney represents a defendant in a prosecution for rape. The client turned down several other experienced criminal defense lawyers who offered to take the case and hired the attorney to represent him. The client saw the victim early in the evening on the date when the rape occurred, but he has a solid alibi, supported by multiple credible witnesses, that he was nowhere near the scene where the rape occurred at the time that it happened, and no DNA tests link the client to the rape. The only evidence against the client, in fact, is the victim's memory of seeing him early that evening and feeling uncomfortable around him, as if she could sense that he was a sexual predator. Her rapist wore a mask, so she could not identify his face, but he was the same height and build as the client, so she is convinced he is the perpetrator. Despite the weakness of the evidence against him and his airtight alibi, the client is furious about the false accusation and wants to teach the victim a lesson. He informs the attorney that he plans to take the stand and testify that the victim has a reputation among his friends for being promiscuous, that when he saw her that evening she was wearing provocative clothing, and that he believes she was "asking to be raped." The attorney finds this repugnant, but he believes the client is truly innocent of the rape in this case, and the client will probably receive an acquittal with or without this testimony attacking the victim's character and reputation. The attorney believes the court will allow him to withdraw from the case and that the client could easily hire one of the other lawyers to take over the representation. Is it improper for the attorney to withdraw from the representation, if he agrees with the objectives the client is pursuing (acquittal) but disagrees with the actions the client plans to take? A. Yes, because even though a lawyer may withdraw from representation only if the client is pursuing an objective that the lawyer finds repugnant, a disagreement about a single action the client takes does not justify withdrawal. B. Yes, because a lawyer cannot ethically withdraw from representation in a criminal case, even with a court's permission, if the trial preparation phase is already underway. C. No, because even where the lawyer agrees with the overall objectives of the client, a lawyer may withdraw from a case if the client insists upon taking action that the lawyer considers repugnant. D. No, because a lawyer may withdraw from representation at any time if a court or tribunal permits it.

C. No, because even where the lawyer agrees with the overall objectives of the client, a lawyer may withdraw from a case if the client insists upon taking action that the lawyer considers repugnant.

Just a hunch. An attorney suspects that another lawyer in his firm has violated the Rules of Professional Conduct in a rather serious matter, but has no first-hand knowledge of the situation — his suspicion rests on the fact that the other lawyer seems to be acting paranoid and evasive, and a number of strange coincidences have occurred in his cases. Does the attorney who suspects something seriously wrong is afoot have a duty to report the other lawyer to the state bar disciplinary authority? A. Yes, but he must make an anonymous complaint to the state bar. B. Yes, because a lawyer who knows of a violation of the rules that raises serious questions about the other attorney's honesty must report it to the state disciplinary authority. C. No, because he does not have actual knowledge of the violation. D. No, because lawyers do not have to report violations by other attorneys at their own firm, which would create internal divisions and mistrust between partners.

C. No, because he does not have actual knowledge of the violation.

Background research. A newly appointed judge finds herself assigned to a court in a rural agricultural area, so the court has many cases related to farm ownership and foreclosures, government regulation and subsidies for agriculture, and so on. The judge has lived her entire life in a major urban center, and she is unfamiliar with this area of law and the economic realities faced by individuals and firms in the farming industry. To learn more background for upcoming cases that are not yet assigned, the new judge spends some of her weekends and evenings reading articles and blogs online. Does this background research violate the CJC? A. Yes, because the judge is conducting her own Internet research instead of relying on the factual submissions of the parties. B. Yes, because this reading will include some adjudicative facts that will inevitably come up in her cases later. C. No, because judges may do background reading to become better informed. D. No, as long as the judge informs later litigants that she has done this research and plans to take judicial notice of everything she has learned.

C. No, because judges may do background reading to become better informed.

Discussing a case with the partners. An attorney is a partner in a seven-lawyer firm. A client retained the attorney to handle his workers' compensation matter. The attorney did discuss with the client that he would normally disclose to the other partners in the firm some of the details about his cases and clients, and the client expressly forbade the attorney from telling anyone in his firm anything about his case. Nevertheless, at the weekly meeting of the partners, as everyone discussed their pending cases, the attorney explained the client's case and solicited input from the partners. One partner had an ingenious suggestion that would have been very helpful to the client's case. The attorney mentioned to the client in their next phone call that one of his partners had made a brilliant suggestion that could turn the case in the client's favor. The client was upset that the attorney had discussed the case with anyone else. Was it proper for the attorney to discuss the case with the others at the firm? A. Yes, because a lawyer is impliedly authorized to disclose client information to other partners in his firm merely from the fact that the representation has been undertaken, regardless of client attempts to limit such necessary disclosures. B. Yes, because the routine check for potential conflicts of interest presumably already eliminated any potential injury to client that could result from the disclosure. C. No, because lawyers in a firm may not disclose to each other information relating to a client of the firm if the client has instructed that particular information be confined to specified lawyers. D. No, because a lawyer is never permitted to discuss client matters with other lawyers in the firm without express client authorization.

C. No, because lawyers in a firm may not disclose to each other information relating to a client of the firm if the client has instructed that particular information be confined to specified lawyers.

It is all out in the open now. An attorney worked for several years for a federal government agency in regulatory enforcement. Big Firm then hired the attorney for a substantially higher salary, and the attorney accepted the position and left her government position. One of the attorney's first assigned cases at Big Firm was a new action by the client against Conglomerate Corporation. The attorney had worked on an enforcement against Conglomerate Corporation and learned confidential government information about the entity during the litigation, but the attorney does not know, and has no reason to know, that the information is confidential government information. The attorney is under the reasonable impression that all the information she learned about Conglomerate Corporation is now public information. The government agency gave its informed consent, confirmed in writing, to the representation. Is the attorney nevertheless subject to disqualification in the client's matter against the attorney's former employer? A. Yes, the attorney has confidential government information about a person acquired while working for the government agency, and therefore may not represent a private client whose interests are adverse to that person in a matter in which the information could be used to the material disadvantage of that person. B. No, because the appropriate government agency gave its informed consent, confirmed in writing, to the representation. C. No, because the attorney does not have confidential government information about Conglomerate that she knows is confidential government information. D. Yes, because the attorney did not previously represent the client or Conglomerate Corporation, so there is no attorney-client privilege or conflict of loyalties here between two clients that the attorney is representing or has represented.

C. No, because the attorney does not have confidential government information about Conglomerate that she knows is confidential government information.

When the client disputes the fee. An attorney represented a client in a contention litigation matter, at the end of which the attorney received a settlement check for an agreed-upon amount from the opposing party ($100,000). The client had agreed to the amount but was unsatisfied and blamed the lawyer for the disappointing settlement amount. The attorney called the client to inform her that the check had arrived, and explained that he would forward the amount minus his fees and the expenses, which constituted half of the amount (the jury consultants and experts in the case had turned out to be very expensive). The client was furious and said that the expenses should have been included in the attorney's contingent fee, and that the attorney was not entitled to the original contingent fee in any case because the case had never gone to a verdict and had settled for a mediocre amount. Pursuant to their retainer agreement, the client and attorney agreed to schedule arbitration over the disputed fees and expenses as soon as possible, which realistically would be three or four months later. In the meantime, the attorney kept the money in the client trust account until they could resolve the dispute. Was this proper? A. Yes, because the client has disputed the expenses and a portion of the contingent fee, so it is prudent to hold the entire sum until they reach a resolution. B. Yes, because the lawyer put the money in a separate client trust account and did not commingle it with his own funds. C. No, because the attorney should have paid the client $50,000 immediately and held only the remainder until the dispute was resolved. D. No, because the attorney should have paid the client all the money immediately and collected the fees and expenses from the client later, depending on the amount determined in arbitration.

C. No, because the attorney should have paid the client $50,000 immediately and held only the remainder until the dispute was resolved.

What's in a name? A government entity provides grants to a legal aid office that represents indigent individuals. The government entity requires reporting of the names of clients, brief factual summaries, and the type of representation involved for all matters where the government entity's funds provided the financial support for the representation. An attorney works for the legal aid office. The government entity uses this information to ensure that the funding is going to its intended purposes and complies with various statutory requirements. Most of his clients are uneducated and unsophisticated, so he does not explain to them how the finances work for the legal aid office or that he must disclose their information. Is it proper for the attorney to represent legal aid clients without obtaining their informed consent to the disclosures required by the funding agency? A. Yes, because the information is going to a government entity, not to a private party, so the disclosure does not violate the Rules of Professional Conduct. B. Yes, because the client names, basic facts, and type of case do not constitute confidential information that would require client authorization for disclosure. C. No, because the client names, basic facts, and types of cases are confidential information, and require client authorization for disclosure. D. No, because information disclosed by a lawyer about a client to the government automatically constitutes a breach of the duty of confidentiality.

C. No, because the client names, basic facts, and types of cases are confidential information, and require client authorization for disclosure.

I know it in my heart. During opening arguments in a criminal trial before a jury, an attorney, who was representing the defendant, closed his statements by declaring, "My client is innocent; I know it in my heart. By the end of the trial, I am confident that you will agree with me that this is an innocent man." Are such comments proper for a defense lawyer to make during trial? A. Yes, because we presume that every defendant is innocent until proven guilty. B. Yes, because the fact that the defendant has pleaded not guilty has already put that assertion before the jury. C. No, because such comments could manipulate and prejudice a jury, even though the comments would be acceptable in a bench trial. D. No, because at trial, a lawyer shall not state a personal opinion as to the guilt or innocence of an accused.

C. No, because such comments could manipulate and prejudice a jury, even though the comments would be acceptable in a bench trial.

The major campaign contributor. In a state with elected judges, a certain candidate (the challenger) for the state supreme court sought to unseat an incumbent justice. The president of a coal company in that state set up a nonprofit organization to advocate for the removal of the incumbent justice, and contributed millions of dollars to this entity, which ran an extensive advertising campaign criticizing the incumbent justice. Even though the president did not give this money directly to the challenger, the campaign was effective, and the challenger won the election and became a state supreme court justice. The millions contributed to the nonprofit by the coal company president exceeded the total amount of all other campaign contributions in that election. Shortly thereafter, a lawsuit involving the coal company, which had been working its way through the courts, came up for review by that state supreme court. The justice who had won the election joined a 3-2 majority ruling in favor of the coal company in a case worth more than $50 million. The other party had petitioned for recusal by the newly seated justice, given that the coal company's executive had contributed millions of dollars to help the justice win the election, but the justice did not recuse himself, explaining in a lengthy memorandum why he thought he could render an unbiased decision in the case. Was it proper for the new justice to participate in the decision in this case? A. Yes, if the judge in good faith believed he could render an unbiased decision, and did in fact render an unbiased decision. B. Yes, because the case was already active before the candidate won a seat on the state supreme court, so the evidentiary findings at trial were already set in place. C. No, because the coal company's disproportionate campaign contributions created an impermissible appearance of bias, even if the justice was in fact unbiased. D. No, because the justice had actual bias in this case, which is evident from the disproportionate campaign contribution by one of the parties.

C. No, because the coal company's disproportionate campaign contributions created an impermissible appearance of bias, even if the justice was in fact unbiased.

Whether to appeal. An attorney represented a client in tort litigation against a pharmaceutical company over injuries allegedly resulting from one of the company's drugs. During a pretrial hearing about the admissibility of certain evidence, the court ruled against the attorney and ordered that the evidence was inadmissible at trial. The attorney then contacted a reporter from a prominent newspaper and gave him a lengthy interview explaining the case, discussing the upcoming trial, and giving the reporter the very evidence that the court had held should be inadmissible at the trial. The newspaper ran the story on the same day that jury selection began for the trial. Opposing counsel moved to disqualify the attorney due to misconduct in the matter, that is, the public disclosure of the inadmissible material in an attempt to taint the jury pool. The court agreed to disqualify the attorney on the eve of the trial. Another firm was already representing the client as co-counsel, so that firm agreed to continue with the trial work alone. The attorney filed an interlocutory appeal, which he lost at the appellate court and appealed to the Supreme Court. Delaying the trial with this interlocutory appeal was clearly against the client's interest, but was necessary for the attorney to continue to handle this big case. Is it proper for the attorney to recommend to the client that they appeal his disqualification, if it is not clearly in the client's interest to do so? A. Yes, because the lawyer's interests and the client's interests presumptively align in litigation. B. Yes, because the other lawyer might not obtain as favorable a result for the client as the attorney would. C. No, because the decision to appeal should turn entirely on the client's interest. D. No, because the disqualification was for lawyer misconduct rather than a conflict of interest.

C. No, because the decision to appeal should turn entirely on the client's interest.

The good deal. A husband and wife are attending court-ordered mediation with an attorney, who is serving as the neutral mediator. The husband has retained counsel, but the wife has not. During mediation, the wife asks the mediator for his advice, and asks whether he believes that the husband's offer is a "good deal" for her. The attorney explains that his position as mediator only allows him to facilitate the negotiating process. The wife continues to seek the attorney's advice about the settlement proposals the husband makes. The attorney finally tells the wife what she is getting is a decent percentage of the estate and that he believes it to be a "good deal" for her. The attorney also informs the wife again that he does not represent her and that anything he says is merely general information, not legal advice. Are the attorney's actions proper? A. Yes, attorneys serving as mediators may permissibly give their opinions about settlement offers to clients, as their experience as mediators offers insight that would not be obtainable by clients elsewhere. B. Yes, attorneys serving as mediators are required to inform parties that their role is to facilitate the negotiation process, and may then give general advice as long as they inform the party that any advice given should be taken as general information, not as legal advice. C. No, the lawyer should decline to advise her, and instead explain more carefully the difference between the lawyer's role as a third-party neutral and a lawyer's role as one who represents a client. D. No, attorneys may not give legal advice or their opinions to unrepresented persons who do not have an attorney also in attendance to further advise the unrepresented person.

C. No, the lawyer should decline to advise her, and instead explain more carefully the difference between the lawyer's role as a third-party neutral and a lawyer's role as one who represents a client.

Straight to the top. While preparing for a trial over workplace discrimination, the plaintiff's lawyer contacts the owner and chief executive officer (CEO) of the defendant corporation and interviews her about the day-to-day operations of the company and the chain of command for addressing personnel complaints. The owner/CEO is not personally involved in the matter of the pending litigation — she actually never met the plaintiff warehouse worker who claims to be the victim of workplace discrimination, she is not on the witness list to testify at trial, and nobody has suggested that she was responsible for the wrongdoing. Even so, she has the power to settle the case or stipulate to a judgment amount, so the plaintiff's lawyer talks to her directly. The lawyer does this without permission from the corporation's attorney, whom the company's general counsel hired; general counsel is an employee three steps below the CEO in the organizational chart. Was this communication by the plaintiff's lawyer proper? A. Yes, because the rules allow a lawyer to communicate with the constituent of a represented organization (opposing party) who has authority to obligate the organization with respect to the matter. B. Yes, because the CEO is three steps above the employee who hired the outside counsel, and therefore clearly has authority to overrule outside counsel's permission or lack thereof. C. No, the rules prohibit a lawyer from communicating with the constituent of a represented organization (opposing party) who has authority to obligate the organization with respect to the matter. D. No, because the CEO clearly would not have first-hand knowledge of lower-level personnel problems in the company's warehouse, although asking the owner/CEO for a settlement was proper.

C. No, the rules prohibit a lawyer from communicating with the constituent of a represented organization (opposing party) who has authority to obligate the organization with respect to the matter.

Legislative intervention. A state legislature enacted a statute that doubled the number of continuing legal education hours each lawyer must complete every year in order to maintain a license to practice law in the state. The fifty-hour annual CLE requirement was the highest of any state in the nation. A legal aid lawyer challenged the new rule on constitutional grounds, claiming that it was unduly burdensome to poverty lawyers, given the high cost of the CLE courses, and therefore could leave more poor citizens without representation. In the alternative, the lawyer claimed that it violated the separation of powers. Is the legal aid lawyer likely to fail in this challenge? A. Yes, because heavy CLE requirements create an undue burden on poverty lawyers, which violates the Equal Protection Clause of the Constitution. B. Yes, because the legislature has inherent power to enact legislation to protect the public, who need competent legal representation. C. No, the state courts have exclusive inherent authority to regulate the lawyers practicing in their jurisdiction. D. No, because continuing legal education is strictly voluntary, and the government cannot force lawyers to take courses.

C. No, the state courts have exclusive inherent authority to regulate the lawyers practicing in their jurisdiction.

Going up the chain of command. Attorney Adams is in-house counsel for a large international corporation and has daily contact with higher-level executives and managers. One day, a senior executive mentions casually to Attorney Adams that he has offered lucrative stock options, worth millions of dollars, to a foreign government official who has agreed to give the firm an exclusive contract to provide certain goods and services to the foreign state. The executive seems to think this is normal and good for the company, but Adams believes it constitutes bribery of foreign officials, which would violate the Foreign Corrupt Practices Act, and could subject the company to enormous fines and penalties. Attorney Adams explains her concerns to the executive, including her concern that he could face personal criminal charges in addition to bringing liability on the corporation, and she reminds him that she represents the corporation, not him personally. The executive is dismissive of her concerns, even though she approaches him several times about the matter. How must Attorney Adams proceed? A. She should report the matter immediately, in writing, to the Department of Justice, and tell no one in the company that she has done so. B. She should keep her conversations with the executive confidential but try to document everything that she knows about the situation in case the Department of Justice brings an enforcement action. C. She should approach the executive's immediate corporate superior, advising those next up the chain of authority to stop the transaction and take appropriate actions against the executive involved. D. She should immediately notify the company's Board of Directors, advising them about the potential liability and threatening to report the activities to the Department of Justice if they take no action.

C. She should approach the executive's immediate corporate superior, advising those next up the chain of authority to stop the transaction and take appropriate actions against the executive involved.

The mutual fund investments. A judge has investments in a Felicity Mutual Fund, a large mutual fund that invests in "blue chip" stocks of well-established, large corporations that offer lower risk than other stocks. A case arises on the judge's docket involving Intec, a large company whose stocks are currently among those in the Felicity Mutual Fund's portfolio. Lawyers for the opposing party file a motion for the judge to recuse or disqualify herself because of these investments. Which of the following describes what the Code of Judicial Conduct would require of the judge in this circumstance? A. The judge must disqualify herself from the case, unless she divests herself from the mutual fund entirely. B. The judge does not need to disqualify herself from the case, as long as she notifies her mutual fund that her investments cannot include any Intec stock. C. The judge does not need to disqualify herself, because the stock holdings in Intec are indirect investments made through a mutual fund. D. The judge must disqualify herself even if she now divests herself of the investment, due to her prior connection with Intec.

C. The judge does not need to disqualify herself, because the stock holdings in Intec are indirect investments made through a mutual fund.

Screening at the firm. An attorney was a judge but has left that job and joined Big Firm. Another lawyer at Big Firm represents the client in a case on the docket at the same court where the attorney worked as a judge. In fact, as a judge, the attorney ruled on some of the pretrial motions in the case, mostly evidentiary motions. The firm has screening measures in place to screen the attorney from any participation in the matter. The attorney will receive no part of the fee from the matter, and timely notice went to the parties about the screening measures in place. The other parties, however, did not provide informed written consent to Big Firm's representation of the client. Is it proper for the other lawyer at Big Firm to continue representing the client in this matter? A. No, because a lawyer shall not represent anyone in connection with a matter in which the lawyer participated personally and substantially as a judge, and if a lawyer is disqualified, no lawyer in a firm with which that lawyer is associated may knowingly undertake or continue representation in the matter. B. No, because a lawyer shall not represent anyone in connection with a matter in which the lawyer participated personally and substantially as a judge, and the other parties did not provide informed consent, confirmed in writing, to the representation. C. Yes, as long as Big Firm also provides timely notice to the appropriate tribunal as well, so that the tribunal may ascertain compliance with screening measures. D. Yes, as long as the attorney is not receiving a salary or partnership share established by prior independent agreement.

C. Yes, as long as Big Firm also provides timely notice to the appropriate tribunal as well, so that the tribunal may ascertain compliance with screening measures.

The marketing guru and his contract. The attorney hires a nationally known Internet-marketing specialist, a tech guru, to help develop the firm's reputation and attract new clients. The Internet specialist has made millions on previous tech startups, while the attorney is relatively unknown and has been practicing for only two years. The tech guru demands certain terms in the contract that require the attorney to confer with the tech guru about accepting clients that were former clients of the tech guru, in order to avoid conflicts of interest. The attorney must also clear any litigation positions, approaches, or strategies that pertain to intellectual property or Internet marketing liability with the tech guru, to avoid positions that would jeopardize the guru's other business. Is the attorney subject to discipline for this arrangement? A. No, because the attorney is merely hiring an advertising specialist and can pay normal rates for such services. B. No, because the contract merely reflects the lawyer's duty under the Model Rules to avoid conflicts of interest between current clients. C. Yes, because a non-lawyer has a contractual right to direct or control the professional judgment of the lawyer. D. Yes, because the attorney is advertising online, which means Internet users in other states can see the firm's advertisements and offers of representation, even though the attorney does not have a license to practice in most of those jurisdictions.

C. Yes, because a non-lawyer has a contractual right to direct or control the professional judgment of the lawyer.

Profit sharing and votes for paralegals. An attorney practices personal injury law, representing plaintiffs on a contingent fee basis. The attorney employs a paralegal to assist with preparing documents for litigation. The paralegal's salary arrangement is 10 percent of the firm's total net revenue each year. In years when the attorney wins several large cases, the paralegal receives higher wages, and in years when the attorney has no big wins, the paralegal receives almost nothing. The paralegal does not bring clients to the firm, but does participate in judgments about which clients to represent, how to structure contingent fee arrangements, and how much to seek in damages after a verdict, as these matters directly affect the paralegal's income as well as the attorney's. Is the attorney subject to discipline for this arrangement? A. Yes, unless the paralegal has a law degree and is admitted in another state. B. No, because non-lawyers may participate in a firm compensation plan based on overall profit sharing. C. Yes, because a non-lawyer has a right to influence the professional judgment of the lawyer under this arrangement. D. No, because the rules treat paralegals the same as lawyers for purposes of sharing fees or profits.

C. Yes, because a non-lawyer has a right to influence the professional judgment of the lawyer under this arrangement.

One for all and all for one. Miranda and her two sisters, Lisa and Nancy, all sustained injuries in a car accident last year. Because they did not have enough money to get separate attorneys, they decided to consent to using the same lawyer, Joseph. After months of trial preparation, the defense counsel approached Joseph with a settlement offer. Miranda sustained severe injuries, but fortunately Lisa and Nancy only received a few bumps and bruises. Joseph believed that the settlement offer was a reasonable offer and that it would be in the clients' best interest to accept it because of how all-consuming and costly trial can be. Even so, Joseph also knew that Miranda would be a hard sell on accepting a settlement offer because she believed she could get a larger judgment if she presented her case in front of a jury. If Joseph obtains consent from both Nancy and Lisa to accept the defendant's settlement offer, will he be subject to discipline for accepting the offer without first discussing it with Miranda? A. No, because when a client retains a lawyer, he or she authorizes the lawyer to accept or reject settlement offers on his or her behalf. B. Yes, because an attorney must inform each client about all the material terms of the settlement before accepting any settlement offer on behalf of multiple clients. C. Yes, because an attorney must inform and obtain written consent from each client about all the material terms of the settlement before accepting any settlement offer on behalf of multiple clients. D. No, because the three sisters consented to being represented by the attorney and he believed it was in their best interest as a whole.

C. Yes, because an attorney must inform and obtain written consent from each client about all the material terms of the settlement before accepting any settlement offer on behalf of multiple clients.

Simple battery. A criminal court found that a lawyer had engaged in domestic violence against his partner, and convicted the lawyer of misdemeanor-level battery, for which he served a six-month term of probation. Could the attorney be subject to professional discipline as well? A. Yes, because any illegal activity by a lawyer constitutes professional misconduct. B. No, because crimes of violence have no specific connection to fitness for the practice of law. C. Yes, because crimes of violence indicate a lack of the character traits required for law practice. D. No, because only felonies (not misdemeanors) can constitute professional misconduct.

C. Yes, because crimes of violence indicate a lack of the character traits required for law practice.

Written agreements not always required. An attorney has represented a client on various small matters in the past. The client now needs representation for a more substantial matter involving a business transaction. During a phone call, the attorney agrees to represent the client at a slightly higher hourly rate, given the complexity of the matter, and when they meet to discuss the transaction in more detail, the attorney double-checks with the client about the fee arrangement verbally, explaining it carefully and answering any questions the client may have. The attorney and the client never formalize the fee arrangement in writing, but the attorney does send printed bills to the client periodically. Eventually, the client starts to feel that the representation is costing too much, and objects to one of the bills. Was it permissible for the attorney to have an oral agreement over hourly fees, without putting the fee agreement into writing? A. Yes, because the matter is more complex than the previous work Attorney has done for the client. B. No, because fee arrangements must be in writing, in order to avoid disputes between lawyers and their clients later on. C. Yes, because even though it is always preferable to have fee agreements in writing, it is not required in this type of case. D. No, because the attorney should have reduced his hourly fee, rather than raising it, if the matter is more complex and will generate more hours of work for the lawyer.

C. Yes, because even though it is always preferable to have fee agreements in writing, it is not required in this type of case.

Have your secretary make a visit. An attorney represented a client in a prosecution for murder, and the prosecutor was seeking the death penalty. The trial was not going well, and the judge had not sequestered the jury, so the attorney sent his secretary to visit some of the jurors in their homes one evening, bringing them cookies and talking to them about the seriousness of sentencing a fellow human being to death. The secretary did not say she worked for the attorney, but instead introduced herself as a member of an advocacy group that seeks to abolish the death penalty, and she left pamphlets about abolishing the death penalty in each juror's home. Could the attorney be subject to discipline for this activity? A. No, because the attorney did not actually speak to any of the jurors directly and therefore had no ex parte contact with them. B. No, because the attorney did not have the secretary discuss the merits of the case or the evidence, but only the morality of the death penalty, which is a serious public policy issue. C. Yes, because he was communicating ex parte with the jurors through the secretary during the proceeding. D. Yes, because the secretary did not inform the jurors that she worked for the attorney.

C. Yes, because he was communicating ex parte with the jurors through the secretary during the proceeding.

Waiving the right to a jury trial. An attorney represents a client who is a defendant in a criminal matter. The defendant faces felony charges. The attorney is very experienced in handling this type of case, and knows from experience that defendants receive acquittals far more often in jury trials than in bench trials, at least with this type of case. The client, however, does not want to incur the legal fees involved in jury selection (voir dire, etc.), and cannot really afford it, so the client tells his attorney that he does not want a jury trial, but rather a bench trial. The attorney is convinced that his client is innocent of the crimes charged, and that a bench trial is likely to result in a wrongful conviction in this particular case, given some of the evidentiary issues. The attorney postpones notifying the court that the defendant will waive his right to a jury trial, in hopes of changing the client's mind. The court schedules jury selection, and the attorney appears and participates in the voir dire without telling his client, because he still hopes and believes that he will change his client's mind about the issue. On the first day of trial, the client arrives in court and is shocked to see a jury seated. The defendant stands and objects loudly to the jury and explains that he wants to waive his right to a jury trial and have a bench trial instead. The judge refuses to dismiss the jury at this point, informing the defendant that his opportunity to request a bench trial has passed. The trial proceeds and the jury acquitted the client of all charges, as the attorney had expected, and to the apparent dismay of the judge, who would have ruled to convict if it were up to him. Is the attorney subject to discipline in this situation? A. Yes, because the client missed the important opportunity to participate in voir dire and the selection of the jury, and will have to pay legal fees that he did not want to incur. B. No, because the defendant suffered no harm from the attorney's decision, as the jury gave a complete acquittal and the judge apparently would have given an unfavorable verdict. C. Yes, because in a criminal case, the lawyer shall abide by the client's decision, after consultation with the lawyer, as to whether to waive the right to a jury trial. D. No, as long as the attorney does not bill the client for the day spent on jury selection, because clients normally defer to the special knowledge and skill of their lawyer with respect to the means to be used to accomplish their objectives, particularly with respect to technical, legal, and tactical matters.

C. Yes, because in a criminal case, the lawyer shall abide by the client's decision, after consultation with the lawyer, as to whether to waive the right to a jury trial.

After it's over. An attorney agreed to represent a client as plaintiff in a patent infringement lawsuit. The attorney was part of a partnership that specialized in intellectual property law. The attorney prepared, and the client signed, a written fee agreement that specified the attorney would receive a tiered contingent fee in the case: 25 percent if the case settled before trial, 30 percent if they went to trial and won, and 35 percent if the case went up on appeal and they prevailed in the appellate stage. In addition, the agreement specified that the contingent fee would come from total award before court costs and other expenses, and that the client would be responsible for court costs and expenses out of his own pocket, either along the way as expenses arose during the proceedings, or from the client's share of the award after the attorney received his contingent fee. The attorney never revealed that his partnership agreement required him to share his part of the fees with three other partners in the firm, or that his fees would go toward a general firm operating budget from which the partnership paid the salaries of non-lawyer staff, such as paralegals and secretaries. The attorney obtained a favorable settlement before trial. He telephoned Client with the good news, and explained that he would deduct his 25 percent contingent fee, as they had agreed, and would send Client the remainder of the settlement funds. At that time, there were no outstanding unpaid expenses or court costs. The client was glad to hear the news, and the attorney promptly sent the client a check for 75 percent of the total amount received from the other party. The attorney and the client had no other contact except to exchange holiday greeting cards. Were the attorney's actions improper? A. Yes, because the attorney failed to obtain written informed consent from the client to share fees with other lawyers in the firm, and because the attorney charged a tiered contingent fee in a patent litigation case. B. No, because contingent fees in patent litigation are proper as long as there is a written fee agreement at the beginning of the representation. C. Yes, because the attorney failed to provide the client with a written statement stating the outcome of the matter and showing the remittance to the client and the method of its determination. D. No, because the attorney properly followed the agreement with the client, and there were no outstanding court costs or unpaid expenses at the time of the settlement.

C. Yes, because the attorney failed to provide the client with a written statement stating the outcome of the matter and showing the remittance to the client and the method of its determination.

"Don't even call me." An attorney represented a client in litigation over a breach of contract. After a long period of discovery, as the trial date approaches, the two parties make a new attempt at settlement negotiations, with each party's lawyer acting as representative. The client is the plaintiff in the case, and has told the attorney on several occasions that she will not consider any settlement offer less than $100,000. The client is a sophisticated business owner who has weathered litigation many times in the past, including litigation over a breach of a nearly identical contract term. Based on her experience, the client has made an informed estimate that her chances of winning a $250,000 verdict at trial are almost exactly 50 percent, and that trial expenses are likely to be around $50,000 whether she wins or loses, and from there she derived her reserve amount of $100,000. The attorney met with the client the evening before Attorney would meet with opposing counsel for negotiations, and the client reiterated her reserve amount to the attorney, adding, "Do not even call me if the opposing party offers less than $100,000 — I will not accept it, and I want you to simply decline lowball offers." The next day, the client leaves on a business trip, and the attorney heads to the settlement negotiation meeting, where opposing counsel offers $90,000 to settle plus a written apology from the defendant to Client for breaching their contract. May Attorney reject this offer without first consulting with Client? A. Yes, because Client has a right to dictate the overall objectives of the representation, but the lawyer has a right to decide the means of achieving that objective. B. No, because a lawyer who receives from opposing counsel an offer of settlement in a civil controversy must promptly inform the client of its substance. C. Yes, because the client has previously indicated that the proposal will be unacceptable and has authorized the lawyer to reject the offer. D. No, because Client's method of deriving her $100,000 reserve amount is obviously unreasonable.

C. Yes, because the client has previously indicated that the proposal will be unacceptable and has authorized the lawyer to reject the offer.

Former prosecutor. Attorney began her career as a prosecutor at the District Attorney's Office. During her tenure as a prosecutor, she brought charges against an individual suspected of sending ricin, a deadly toxin, in an envelope to a prominent politician, apparently in an unsuccessful attempt to assassinate the public official. The jury found the evidence too attenuated, and it acquitted the defendant. Shortly thereafter, another person, who was a member of a terrorist organization, confessed to sending the ricin and provided extensive evidence of his plot to kill the politician to make a political statement. Attorney resigned from the District Attorney's Office, partly out of humiliation over this case, and went into private practice. Eighteen months later, the accused individual decides to sue the government over wrongful arrest, slander, libel, and wrongful prosecution over the case in which he obtained an acquittal. Attorney feels that her superiors at the D.A.'s Office had pressured her to press charges in order to satisfy the public uproar over the ricin letters, despite having scanty evidence that the accused individual was actually guilty. Attorney offers to represent the accused individual in his lawsuit against the government, partly to make amends or atone for her role in what she now views as an abuse of government power and a great injustice. Would it be proper for Attorney to handle this case, given her good intentions? A. Yes, because the test for determining if an improper conflict of interest exists between former clients and a new client is the lawyer's subjective motivations in undertaking the new representation, and in this instance, Attorney is merely trying to make amends for her past mistakes. B. Yes, because Attorney has a duty to repudiate her previous wrongful actions, and her representation of the individual will send a strong message to other prosecutors, which in turn serves the public interest. C. No, a lawyer who has prosecuted an accused person could not properly represent the accused in a subsequent civil action against the government concerning the same transaction. D. No, because a prosecutor cannot ethically "switch sides" and start representing criminal defendants in public practice, regardless of whether the same individuals are involved as clients.

C. No, a lawyer who has prosecuted an accused person could not properly represent the accused in a subsequent civil action against the government concerning the same transaction.

The law student intern. Years ago, as a law student, the attorney worked on a case for the client during a law firm internship. Now, the attorney's firm is representing a defendant in a lawsuit in which the client is the plaintiff. The client's new lawyer moves to disqualify the attorney's firm from the representation when it learns that the attorney worked for another firm on behalf of the client when the attorney was still a law student. Is the attorney's firm subject to disqualification in this case? A. Yes, because when lawyers are associated in a firm, none of them shall knowingly represent a client when any one of them practicing alone would be prohibited from doing so. B. Yes, unless both parties provided written informed consent and waived the conflict of interest at the beginning of representation. C. No, as long as the firm screens the attorney from any personal participation in the matter to avoid communication to others in the firm of confidential information that both the non-lawyers and the firm have a legal duty to protect. D. No, because the attorney was not yet a lawyer during the law student internship, and therefore did not actually provide legal representation for the client in the previous matter.

C. No, as long as the firm screens the attorney from any personal participation in the matter to avoid communication to others in the firm of confidential information that both the non-lawyers and the firm have a legal duty to protect.

The uninsured lawyer who commits malpractice. What is currently the requirement under the Rules of Professional Conduct regarding lawyers having liability insurance for legal malpractice claims? A. The Model Rules require every practicing lawyer in the private sector to carry at least minimal liability insurance, but not government lawyers. B. The Model Rules require lawyers practicing in certain areas, like real estate and family law, to carry malpractice insurance, but not lawyers doing criminal defense work. C. The Model Rules do not require lawyers to have malpractice insurance, but many states require disclosure to clients if the lawyer is uninsured. D. The Model Rules forbid lawyers to carry malpractice insurance because of the moral hazard problem — insurance provides a perverse incentive to take more risks or to be less careful.

C. The Model Rules do not require lawyers to have malpractice insurance, but many states require disclosure to clients if the lawyer is uninsured.

Estate planning. A lawyer who has previously done only residential real estate closings agreed to represent a new client in a complex estate planning matter for a client who owns numerous residential and commercial properties. The estate assets also include numerous securities (stocks, bonds, and commodity shares), and an art collection. The elderly client has had children with each of his three wives over the years. Concerned about being responsible for a case with such high stakes and conceptual difficulty, the lawyer includes in the representation agreement a provision that limits his liability for any tax consequences or contested inheritance issues, which are unfamiliar to him. At the same time, he does not try to limit his liability for the portions of the representation that pertain to the real estate, as he knows that area well — the limitations on liability apply only to specific areas. The lawyer informed the client in writing of the advisability of "seeking a second opinion" before signing the representation agreement, but the client consulted with no other lawyers and signed the document, along with giving oral consent to the provisions limiting liability on certain points. The client added a codicil to the will explaining that under no circumstances should the executor of the estate (the client's eldest son) or any heirs sue the lawyer for malpractice. The lawyer competently handled the disposition of all the real property within the client's estate except for one small parcel of commercial property, for which he made a mistake with recording the transfer. He also surprised himself by dealing with the tax issues (estate and capital gains tax) properly, after a few weeks of research and consultations with other attorneys. Unfortunately, the lawyer made some serious errors with the federal reporting and notification requirements that applied to some of the client's securities, which later resulted in penalties assessed on the estate. In addition, the lawyer arranged for temporary storage of the art collection in a storage rental facility, without climate controls, and the most valuable paintings sustained damage. What adverse consequences could the lawyer face for his mistakes? A. None, because he attained competence on the tax issues, which were previously unfamiliar to him, and he shielded himself effectively from liability with the provision in the representation agreement, for which he advised the client to seek a second opinion. B. The lawyer could face disciplinary action for taking a matter beyond his competence or ability to acquire competence, but not malpractice liability, due to the codicil and to the provision in the representation agreement. C. The lawyer could face both disciplinary action (for taking a matter for which he lacked competence and for neglect) and could be liable in tort under a bailment theory for the damaged artwork, and could face personal sanctions from the government for his erroneous reporting about the securities. D. The lawyer could not be subject to discipline for the provision in the representation agreement, because he advised the client to seek independent representation, and would not face disciplinary actions for incompetence, as he was familiar with real estate transactions, which were an important part of the estate.

C. The lawyer could face both disciplinary action (for taking a matter for which he lacked competence and for neglect) and could be liable in tort under a bailment theory for the damaged artwork, and could face personal sanctions from the government for his erroneous reporting about the securities.

Settling a claim after committing malpractice. A client retained an attorney to represent him in a car accident case. The client sought to recover $5,000 for damage to his vehicle and a few medical expenses the client incurred because of the accident. The attorney failed to timely file a lawsuit for the client before the statute of limitations ran. After realizing that the suit was barred because the attorney failed to timely file, the attorney sent the client a letter with a check for $20,000 and an agreement for the client to sign and return. The agreement stated that keeping the $20,000 check constituted acceptance of the agreement and that acceptance of the agreement included releasing the attorney for any malpractice claims against the attorney. Is the attorney's conduct proper? A. Yes, attorneys can settle claims or potential claims for malpractice as long as the settlement amount is reasonable. B. Yes, attorneys can settle claims or potential claims for malpractice as long as the agreement terms are provided to the client in writing and the settlement amount is reasonable in relation to what the client would expect to receive. C. No, attorneys must advise the client of the importance of obtaining advice of independent counsel and provide reasonable time for the client to obtain such counsel prior to settling a claim or potential claim for malpractice. D. No, attorneys cannot settle claims or potential claims for malpractice with clients.

C. No, attorneys must advise the client of the importance of obtaining advice of independent counsel and provide reasonable time for the client to obtain such counsel prior to settling a claim or potential claim for malpractice.

Exclusively federal practice. Attorney has a firm in a state in which the attorney lacks a license to practice law. Attorney's legal work, however, consists entirely of representing local inventors before the United States Patent and Trademark Office in Washington, D.C., either by correspondence or by traveling to appear there in patent proceedings. A relevant federal statute states that non-lawyers may represent patent applicants before the USPTO. The attorney does no other legal work for clients — if clients need representation for family law matters, employment matters, incorporating businesses, or personal injury suits, Attorney refers them to outside counsel. All of Attorney's clients, however, are located in the state where the firm has its office, and Attorney is unlicensed there. Is Attorney subject to discipline? A. Yes, because Attorney is regularly engaged in the unauthorized practice of law in that state. B. Yes, because all of the clients reside in a state where Attorney is unlicensed. C. No, because Attorney is providing services authorized by federal law, which preempts state licensing requirements. D. No, because Attorney has specialized in a single area of law, and refers all other matters to outside counsel.

C. No, because Attorney is providing services authorized by federal law, which preempts state licensing requirements.

I won't do it. On his website, an attorney explains that he handles most areas of personal injury law, and then displays in large, bold letters: "I DO NOT REPRESENT CLIENTS IN CRIMINAL MATTERS OR DIVORCE MATTERS — PLEASE FIND ANOTHER LAWYER IF YOU ARE FACING CRIMINAL CHARGES OR NEED TO LEAVE YOUR SPOUSE." Is it improper for a lawyer to make such a statement in his website or advertising materials? A. Yes, because a lawyer should not categorically refuse to represent needy clients in criminal matters or family law matters, as these are the most acute needs for legal representation. B. Yes, because a lawyer should state his areas of specialization, not the areas he or she does not practice, as this information is less useful to consumers. C. No, because a lawyer may communicate the fact that the lawyer does or does not practice in particular fields of law. D. No, because a lawyer is required to disclose in their advertisements if they will refuse to take criminal clients or handle divorces.

C. No, because a lawyer may communicate the fact that the lawyer does or does not practice in particular fields of law.

I've known him for years. During his closing argument at a bench trial, an attorney makes the following statement to the judge: "Your Honor, I know this client, because we grew up together and I have represented him in various legal matters for years. I know that he is an honest person who would never lie or try to take advantage of another person unfairly. In fact, I am doing this case on a pro bono basis because I feel so strongly about the justness of his cause." All of these statements were truthful — the attorney had known the client since childhood and had represented him many times, the attorney admired the client's integrity, and the attorney had offered to handle this case without charging any fee because he believed so strongly that the client was on the right side. Was it proper for the attorney to make these comments during closing arguments? A. Yes, because it was a bench trial so there was no danger of manipulating or prejudicing a jury in this case. B. Yes, because a lawyer has a duty to be a zealous advocate for his client, and lawyers merely represent the assertions of their clients, rather than vouching for the accuracy of all the claims. C. No, because at trial, a lawyer shall not assert personal knowledge of facts in issue except when testifying as a witness, or state a personal opinion as to the justness of a cause, or the credibility of a witness. D. No, because it is improper to disclose during a trial how much, if anything, a lawyer is charging to represent a client.

C. No, because at trial, a lawyer shall not assert personal knowledge of facts in issue except when testifying as a witness, or state a personal opinion as to the justness of a cause, or the credibility of a witness.

If you don't win, you don't pay. An attorney interviewed an expert witness whom he thought he might hire to testify at a client's trial. The attorney explained he was meeting with several expert witnesses and would hire the one who he thought would seem most persuasive to the jury. The expert witness offered to work on a contingent fee basis; if the attorney did not win the case at which the expert testified, no fee would be due. The attorney would have to pay the expert witness only if his testimony was compelling enough to produce a favorable outcome in the case. The attorney thought that this would give the expert an incentive to prepare more thoroughly for trial, and that it would be fairer to the client, who would be left bankrupt if they lost at trial and would have trouble paying the expert's fee anyway. Would it be proper for the attorney to hire the expert witness under such terms? A. Yes, it is permissible to pay an expert witness a large fee. B. Yes, because if the client loses the case and would be unable to pay the fees to the lawyer and the expert, the same type of contingency would result either way. C. No, because it is improper to pay the expert witness a contingent fee. D. No, because a lawyer cannot offer any inducement to a witness to testify.

C. No, because it is improper to pay the expert witness a contingent fee.

The victim. An attorney works for a firm where another lawyer is representing the defendant in a personal injury lawsuit. The other lawyer has represented the defendant for a long time on unrelated, non-litigation matters, but the personal injury lawsuit is a new case. The victim, the plaintiff in the same personal injury lawsuit, was a college classmate of the attorney and he asks the attorney to represent him in the litigation. The attorney has not learned any confidential information yet about the defendant from his fellow associate at the firm, nor has the attorney learned any confidential information from the victim during their preliminary consultation. The firm decides to undertake the representation of the victim as well. The firm will carefully screen the attorney and lawyer from one another, forbidding them to discuss the case with each other or anyone else in the office, and ensuring that they do not have access to each other's files for the case. In addition, neither lawyer will receive a bonus from the fees received for this litigation. Under the Rules of Professional Conduct, is it proper for the attorney to represent the victim, given these circumstances? A. Yes, as long as the firm provides notice to the defendant and the victim about the specific screening procedures it has in place, and gives periodic certifications of compliance with the screening procedures. B. Yes, as long as both the clients provide written informed consent to the conflict of interest, after receiving a detailed explanation of the problems with common representation, and neither party has its fees paid by a third party. C. No, because the Rules of Professional Conduct impute the conflict of the other lawyer to the attorney, and screening procedures do not apply to conflicts between current clients. D. No, unless the attorney has already represented the victim in previous unrelated matters while working at another law firm, and joined the new law firm only recently.

C. No, because the Rules of Professional Conduct impute the conflict of the other lawyer to the attorney, and screening procedures do not apply to conflicts between current clients.

After the storm. After a hurricane damaged hundreds of homes in a southeastern state, an attorney, who practices in that state, sent letters to a dozen homeowners in the affected area offering to represent them in their insurance claims arising out of the storm damage. Each letter was handwritten and personalized, and the attorney addressed each envelope by hand so that recipients would perceive it as a personal letter and would be more likely to open it and read it. At the top of the letter itself, the attorney wrote by hand the words "Advertising Material." Were the attorney's actions proper? A. Yes, because the attorney clearly indicated at the top of the letter that it was advertising material. B. Yes, because the attorney sent the letters only to homeowners in the affected areas who would be likely to need his help. C. No, because the attorney did not include the phrase "Advertising Material" on the outside of the envelope. D. No, because a lawyer should not send a solicitation letter to those who have recently experienced a tragedy and are vulnerable to manipulation or coercion.

C. No, because the attorney did not include the phrase "Advertising Material" on the outside of the envelope.

Former agency lawyer. Attorney worked for several years for a federal government agency in regulatory enforcement. Big Firm then hired the attorney for a substantially higher salary, and the attorney accepted the position and left her government position. One of the attorney's first assigned cases at Big Firm was a new action by the client against the same government agency for which the attorney had previously worked, challenging the constitutionality of a new regulation that the agency had recently promulgated. While at the agency, the attorney had not been involved with the review and promulgation of any new regulations, including the one at issue in the client's challenge, but instead worked exclusively on enforcement litigation matters. Is the attorney subject to disqualification in the client's matter against the attorney's former employer? A. Yes, because Big Firm gave the attorney an unreasonably large salary increase for leaving her public service position and joining Big Firm in the private sector, which creates a conflict of interest. B. Yes, unless the federal government agency is willing to provide written informed consent to the attorney's representation in the case. C. No, because the attorney did not participate personally and substantially in the matter as a public officer or employee. D. No, because the case involves a constitutional challenge to the validity of a regulation, not the financial interests of the client or government as would be recognized if the case involved fines, fees, or penalties.

C. No, because the attorney did not participate personally and substantially in the matter as a public officer or employee.

New work, old clients. An attorney specializes in employment law, especially employer-provided benefits, as well as healthcare law. After Congress passes sweeping legislative reforms for the regulation of employer-sponsored healthcare plans, the attorney sent a letter to her former business clients offering to help them sort through the changes in employee benefit plans that the new laws would require. Nowhere did the attorney indicate that these letters were advertising materials. Could the attorney be subject to discipline for sending these letters? A. Yes, because every written communication from a lawyer soliciting professional employment from anyone known to be in need of legal services in a particular matter shall include the words "Advertising Material" on the outside envelope. B. Yes, because the attorney was implicitly soliciting new clients through this general professional announcement. C. No, because the attorney sent the letters only to former clients. D. No, because the attorney is merely offering to implement new laws enacted by the duly-elected legislature.

C. No, because the attorney sent the letters only to former clients.

Convicted due to the lawyer's malpractice. A criminal defense lawyer represented a defendant in a criminal prosecution. The defendant had given an incriminating confession to the police during his first interrogation, but the police had never given him Miranda warnings. At the beginning of questioning, the defendant had stated that he wanted his lawyer and did not want to answer any questions without his lawyer present. The police said they would let him talk to his lawyer later, but for now, he had to answer some questions. The interrogators even threatened him with physical injury if he refused to confess, so he confessed under coercion. The confession should have been inadmissible at trial due to the lack of Miranda warnings, the questioning without his lawyer present, and the physical coercion. Nevertheless, the lawyer did not inquire about the circumstances of the confession and did not bother objecting to its admission at trial. The jury convicted the defendant, largely on the evidence of the illegal confession. The defendant retained a different lawyer on appeal, who raised the problem with the confession, but the appellate courts affirmed the conviction, until he had exhausted his remedies. The defendant then sued his original lawyer from prison for legal malpractice, claiming that he suffered significant damages due to the lawyer's negligence, given that he was unsuccessful in having his conviction overturned. Assuming the jurisdiction follows the majority rule and the Restatement of the Law Governing Lawyers, could the lawyer be liable for legal malpractice? A. Yes, because his negligence in failing to object to the admission of the illegally obtained confession fell far below the standard for a reasonable lawyer in the profession. B. Yes, because the lawyer negligently caused the conviction of the client, and the client suffered serious injury in the form of incarceration, which he could not overturn on appeal. C. No, because the client was unable to convince an appellate court to overturn his conviction. D. No, because the defendant was probably not actually innocent of the crime if he gave a full confession to the police during his first interrogation.

C. No, because the client was unable to convince an appellate court to overturn his conviction.

The dreaded conversation. An attorney served as in-house counsel for a corporation, and uncovered illegal actions taken by a particular senior manager (not the Chief Executive Officer or any comparable officer or director, but an individual with decision-making authority and several direct subordinates in the organization). The senior manager had a reputation for being arrogant and unreasonable, and he and the attorney had clashed on several occasions and were barely on speaking terms. At the same time, the senior manager was exceptional in his area of expertise and was an asset to the company despite his unpleasant demeanor. The attorney summoned the nerve to confront the senior manager about the problem as graciously as possible, and the senior manager's initial response was to be dismissive, saying that he was unaware of any laws or regulations that he might have violated. The attorney walked away from the conversation discouraged and planned to take the matter up with the corporate officers, and perhaps the Board of Directors. Before doing so, he reconsidered and returned to the manager, and patiently explained to him the relevant laws and regulations that the manager had violated. The senior manager begrudgingly accepted the attorney's advice and took all necessary measures to rectify the wrongdoing and prevent any long-term repercussions. The senior manager also insulted the attorney, called him incompetent for not bringing up the matter earlier, and suggested that the attorney's incompetence was due to the attorney's ethnic background. Could the attorney be subject to discipline for not referring the matter of the illegal actions to a higher authority in the corporation? A. Yes, because the senior manager continued to insult him and behave like a bigot even after the attorney proved that the manager's actions violated the law. B. Yes, because referral to a higher authority in the corporation is part of the lawyer's professional duty under the Model Rules. C. No, because the manager took the lawyer's advice. D. No, because a lawyer for a corporation represents not only the corporation itself, but all the managers within the corporation, so the lawyer had a direct client-attorney relationship with the manager.

C. No, because the manager took the lawyer's advice.

European vacation. Attorney is a busy litigator. During one scheduling conference with the judge and opposing counsel, Attorney asked for a continuance (postponement) of a particular hearing until a later date because she planned to be on vacation in Europe during that time. The judge and the opposing counsel agreed. On another occasion, three months later, Attorney asks another judge to reschedule a hearing so that it will not fall on her anniversary, when she has dinner plans in the early evening. In that instance, which was not the same matter or client as the first instance, the lawyer for the other party complained about rescheduling for such a trivial reason, but the judge agreed to reschedule the hearing for a month later. Was it improper for Attorney to seek these postponements? A. Yes, because a lawyer shall make reasonable efforts to expedite litigation consistent with the interests of the client. B. Yes, because it is not proper for a lawyer to fail to expedite litigation solely for the convenience of the advocates. C. No, because there are occasions when a lawyer may properly seek a postponement for personal reasons. D. No, it was not improper to seek a postponement for a scheduled vacation, but the postponement merely for an anniversary dinner was improper.

C. No, because there are occasions when a lawyer may properly seek a postponement for personal reasons.

What's missing here? An attorney represents a client before a government agency that enforces securities regulations. As part of the representation, the attorney must prepare an opinion concerning the legality of the securities registered for sale under the securities laws, for submission to the government agency, which requires such reporting. The client authorizes the attorney to prepare the written opinion, but insists that the attorney exclude any mention of a particular business loss the client's company incurred recently, in order to avoid upsetting the shareholders. In order to preserve the client's confidential information, the attorney prepares the written opinion without the information the client asked him to withhold. The report does not mention that it excludes some unfavorable information. The attorney prepares the written opinion and gives it to the client, who submits it to the agency. Is it proper for the attorney to follow the client's instructions in preparing this report? A. Yes, because when the lawyer is retained by the person whose affairs are under examination, the general rules concerning loyalty to client and preservation of confidences apply. B. Yes, because it is the client's decision what to disclose to the agency; and the client alone will bear the consequences if the agency concludes later that the client submitted a misleading report. C. No, because when a lawyer's report categorically excludes certain issues or sources, then the lawyer must describe in the report any such limitations that are material to the evaluation in the report. D. No, because an attorney has a duty to include in the report whatever information the government agency requested, as the agency will rely upon the report in making its decisions.

C. No, because when a lawyer's report categorically excludes certain issues or sources, then the lawyer must describe in the report any such limitations that are material to the evaluation in the report.

The abortion clinic. Attorney works for a firm. She also describes herself as an outspoken advocate for the rights of unborn children, that is, she passionately favors legal restrictions on abortion. A local abortion clinic asks the firm to represent it in litigation over recent zoning measures that would significantly limit its hours of operation and therefore the number of clients the clinic could accept. The firm agrees to the representation. Attorney firmly refuses to have any part in the representation, and though no formal screening measures are in place, everyone else in the firm avoids discussing the case with her or around her because they are afraid of receiving another lecture about the wrongfulness of abortion. Early in the litigation, the judge considers disqualifying the firm because it employs Attorney, who has a reputation in the community for her advocacy against legalized abortion. Neither the clinic nor the opposing party (the municipal zoning authority) provided written consent to a conflict of interest. Should the firm be subject to disqualification in this case? A. Yes, because the firm did not implement formal screening measures to ensure that Attorney receives no confidential information about the case and cannot influence the other lawyers working on the case. B. Yes, because the firm did not obtain informed written consent from both parties to the potential conflict of interest. C. No, the firm should not be disqualified where one lawyer in a firm could not effectively represent a given client because of strong political beliefs, but that lawyer will do no work on the case and the personal beliefs of the lawyer will not materially limit the representation by others in the firm. D. No, because preserving women's access to legalized abortion is such an important fundamental right that it would be improper to limit the abortion clinic's options for representation in the matter, and other firms may also have conflicts of interest that would preclude representation.

C. No, the firm should not be disqualified where one lawyer in a firm could not effectively represent a given client because of strong political beliefs, but that lawyer will do no work on the case and the personal beliefs of the lawyer will not materially limit the representation by others in the firm.

Clients with rival business interests. On the same day, an attorney agrees to represent an undocumented immigrant in a visa-revocation matter, as well the victim in a tort action (product defect) against an automobile manufacturer. The two matters are unrelated. In the second case, the attorney anticipates that the defendant automobile manufacturer will argue that extensive federal safety regulations of automobiles, which require certain safety features and specifications, should preempt state tort law and therefore prevent a state court from adjudicating the case. On the other hand, many undocumented immigrants have relied upon federal preemption of state law in challenging onerous state penal statutes targeted at illegal immigrants. If the attorney prevails in his preemption argument in the vehicle manufacturing defect case, and on appeal creates precedent against federal preemption of state law, the precedent would probably be unfavorable to the attorney's other client, the undocumented immigrant. The state legislature has several bills pending that would impose criminal sanctions on landlords who lease apartments to undocumented aliens, drivers who transport undocumented aliens to work sites, and contractors who hire subcontractors who employ undocumented aliens. Does the fact that advocating a legal position on behalf of one client might create precedent adverse to the interests of the other client create a conflict of interest, for which the lawyer must obtain consent from each client? A. Yes, it creates a conflict of interest, but this type of conflict is nonconsentable because it involves questions of law, so the clients cannot consent to it and the attorney cannot represent both. B. Yes, but given that the matters are unrelated and that it is uncertain that the lawyer will succeed in creating new precedent, the parties can give informed consent in writing. C. No, the mere fact that advocating a legal position on behalf of one client might create precedent adverse to the interests of a client represented by the lawyer in an unrelated matter does not create a conflict of interest. D. No, because preemption precedent from one area of law like torts could not possibly affect an unrelated area of law like immigration.

C. No, the mere fact that advocating a legal position on behalf of one client might create precedent adverse to the interests of a client represented by the lawyer in an unrelated matter does not create a conflict of interest.

Parents hiring lawyers for their college kids. Aaron, a college sophomore, is facing criminal charges related to a drunk driving accident the previous night. To his great relief, Aaron's parents visit the firm of Lawyer Lucas, and retain him as defense counsel for their son, agreeing to cover all fees and expenses. The criminal charges in this case allow for jail time or hefty fines as potential punishments. The prosecution offers a plea bargain — a $2,000 fine, a few hours of community service, and six months' probation, but no jail time. Aaron, the defendant, is thrilled, but his parents insist that Lawyer Lucas decline the plea bargain and go to trial, which Lucas is certain will result in a conviction and a short jail sentence. The parents believe a short jail term will be good for their son and teach him a lesson, and paying the $2,000 fine on top of the lawyer's fees will force them to forego their vacation plans that year. A loud argument ensues in the conference room between the parents and Aaron over the best course of action. How should Lawyer Lucas proceed? A. The lawyer should represent the wishes of the parents, as they retained him for his services, and they are paying his fees. B. The lawyer should follow his own judgment about what would be the best result in this case, given that there is a disagreement between the party he represents and the party paying his fees. C. The lawyer must follow the decision of Aaron, who is his real client, and accept the plea; he should have explained to the parents in advance that they could not control the case even if they paid his fees. D. The lawyer has a duty to both Aaron and his parents as joint clients, and must wait until they reach an agreement about how to proceed.

C. The lawyer must follow the decision of Aaron, who is his real client, and accept the plea; he should have explained to the parents in advance that they could not control the case even if they paid his fees.

It starts with a phone call. A business owner hires a lawyer hoping to enforce a non-compete agreement against a former employee at their technology firm. According to the client, a rumor started going around just this past week that the former employee either had started his own consulting practice nearby or was working for a nearby competitor. Each scenario, if true, could violate the non-compete agreement. The employee left the client's company on bad terms about three weeks ago. The client provides a copy of the non-compete agreement, and speculates that the former employee may have forgotten about the agreement (which he signed fifteen years ago), and may even be oblivious to the fact that he is violating it. The lawyer decides that the first step is to call the former employee and ask him whether he has found another job yet or has started his own business. The lawyer assumed that the former employee would not have retained counsel yet to challenge the non-compete agreement, given the client's comments about him, and the brief time since the events had unfolded. The former employee answers the phone, and after the lawyer identifies himself as counsel for the business client, the former employee explains that he has started his own rival company, and that he believes the non-compete agreement is invalid under state law. When the lawyer asks why it would be invalid, the former employee says that his own lawyer says that recent changes in state law make the previous agreement void, and that they plan to challenge the agreement in court. The lawyer asks him to have his own lawyer contact him so that they can discuss possible settlement for the dispute. Has the lawyer acted properly? A. No, the prohibition on communications with a represented person applies regardless of the lawyer's knowledge, because the burden is on every lawyer to determine whether an opposing party has representation before making contact. B. No, because one can easily infer from these facts and circumstances that the lawyer actually knew the former employee had representation. C. Yes, as the prohibition on communications with a represented person only applies in circumstances where the lawyer knows that the person is in fact represented in the matter to be discussed, and this means that the lawyer has actual knowledge of the fact of the representation. D. Yes, if the non-compete agreement has a binding arbitration clause, as matters covered under alternative dispute resolution (arbitration, mediation, or a non-judicial referee) do not implicate the prohibition on communication with opposing parties.

C. Yes, as the prohibition on communications with a represented person only applies in circumstances where the lawyer knows that the person is in fact represented in the matter to be discussed, and this means that the lawyer has actual knowledge of the fact of the representation.

Job hunting. An attorney worked for several years for a federal government agency in regulatory enforcement. The attorney was involved in several enforcement matters against Conglomerate Corporation. Big Firm has always represented Conglomerate Corporation in all its litigation and regulatory compliance matters. The attorney made a good impression on the Big Firm partners when serving as opposing counsel in the same litigation. At the end of a deposition of Conglomerate Corporation's executives during the discovery phase of an enforcement proceeding, Big Firm partners approached the attorney privately and asked if the attorney would be interested in leaving the agency for a position at Big Firm. The attorney explained that they would have to match his current salary at the government agency in order for him to consider the proposal. Big Firm then scheduled an employment interview with the attorney, at the end of which they offered to double his salary if he left the agency and accepted a position at Big Firm. The attorney decided to postpone making a decision until the pending agency enforcement matters against Big Firm's client were complete, in order to avoid the appearance of a conflict of interest. The matters dragged on for another year, however, and Big Firm eventually withdrew its offer. Is the attorney subject to discipline? A. No, because the attorney decided to postpone making a decision until the pending agency enforcement matters against Big Firm's client were complete, in order to avoid the appearance of a conflict of interest. B. No, because Big Firm eventually withdrew its offer and the attorney never actually went to work for Big Firm. C. Yes, because a lawyer currently serving as a public officer or employee shall not negotiate for private employment with any person who is involved as a party or as lawyer for a party in a matter in which the lawyer is participating personally and substantially. D. Yes, because Big Firm offered to double the attorney's salary instead of merely matching his current government salary, which creates a substantial conflict of interest for the attorney in any pending or future matters.

C. Yes, because a lawyer currently serving as a public officer or employee shall not negotiate for private employment with any person who is involved as a party or as lawyer for a party in a matter in which the lawyer is participating personally and substantially.

Every possible angle. A client hired a lawyer to represent her in bringing a lawsuit against a manufacturer over a defective product that was very expensive. The attorney regularly represents plaintiffs in product liability cases. The client believes that the manufacturer has knowingly sold defective products to other customers as well, and wants the attorney to include a claim for "civil RICO" (accusing the manufacturer of racketeering) as part of the lawsuit. In addition, the client discussed reporting the manufacturer to various government regulatory agencies to try to get the company in trouble with them, as this might overwhelm the defendant with simultaneous litigation on several fronts, and might even bring out otherwise undiscoverable information about the manufacturer's wrongdoing. The attorney reluctantly adds the civil- RICO claim to the complaint and is not surprised when the judge strikes that claim at the request of the defendant. The attorney declines to notify government agencies about the manufacturer, and suggests that the client do that on her own, writing complaint letters to whatever agencies she has in mind. The attorney proceeds with the tort litigation and prevails, winning a favorable verdict for the plaintiff. Was it proper for the attorney to decline to pursue the regulatory attack against the manufacturer? A. No, because a lawyer must act with commitment and dedication to the interests of the client and with zeal in advocacy upon the client's behalf. B. No, because a lawyer is bound to press for every advantage that might be realized for a client. C. Yes, because a lawyer is not bound to press for every advantage that might be realized for a client. D. Yes, because the lawyer acquiesced to the client about the civil RICO claim, and a lawyer should not have to defer to the client on more than one unusual request in the same representation.

C. Yes, because a lawyer is not bound to press for every advantage that might be realized for a client.

Court records and archives. During the sentencing phase of a criminal trial, the judge grew concerned that the prosecutor expressed uncertainty about the number of the defendant's prior convictions. The judge instructed her clerk to search the court's electronic docket and archives to determine the defendant's criminal case history, and to expand the search to other jurisdictions if their records were accessible from the clerk's computer. The clerk discovered several other judicial proceedings involving the defendant, and carefully noted how many of these had resulted in convictions. The clerk also noted pending cases awaiting sentencing that might prompt the judge to wait a little longer before rendering a decision, so that the judge could consider those cases as well in her own sentencing. Finally, the clerk noted some cases with sealed records, which the clerk was able to access and review and report to the judge. The judge intended to follow appropriate procedures for taking judicial notice of any of these facts that might bear on the defendant's sentence. Was the clerk's search proper, according to the Code of Judicial Conduct? A. It was proper, because the clerk acted at the behest of the judge, and judges may access any other court files, assuming the judge will follow established procedural safeguards for taking judicial notice of relevant facts. B. It was appropriate for the clerk to review the cases that had already concluded but not the matters that were still pending. C. It was improper, because judges and their clerks should not conduct independent online research to learn facts that could impact the adjudication, but instead they should instead rely on the facts that the parties have properly submitted into evidence. D. It was appropriate for the clerk to review the court dockets and archives for the defendant's other proceedings but not to review the court records that were under seal.

D. It was appropriate for the clerk to review the court dockets and archives for the defendant's other proceedings but not to review the court records that were under seal.

Risky business. A client hires an attorney to help with the legal documents necessary to liquidate most of his investments so that he can use the cash to fund a new business venture. The client explains that he plans to quit his regular job and start a new career working from home as a "day trader," buying and selling stocks online every day in hopes of making large profits. The client has no experience or training in finance or investments, but he attended a seminar that featured testimonials from others who claimed to have made millions as day traders. The attorney thinks this is a foolish idea, but the client does not ask the attorney for his advice. Does the attorney have an ethical duty to caution the client against his seemingly reckless decision? A. Yes, because a lawyer has a duty to offer sound advice and not wait for a client to ask questions to solicit the specific information. B. Yes, if the attorney suspects that the client will eventually have trouble paying his legal fees. C. No, because many day traders are indeed successful, and this client could be one of the fortunate ones. D. No, because a lawyer is not expected to give advice until asked by the client.

D. No, because a lawyer is not expected to give advice until asked by the client.

Partners covering for each other. An attorney, an associate at Big Firm, applied for a patent for a client and successfully obtained the patent. Three years later, another party sued the client for allegedly infringing on one of their patents. The attorney was a necessary witness in the patent infringement matter, and planned to testify on behalf of the client that the client had successfully obtained a patent to the invention in dispute. Two partners at Big Firm, where the attorney worked, handled the representation of the client in the infringement case, pursuant to the client's written consent. Will the two partners at Big Firm be subject to disqualification from representing the client in the patent infringement case, if the attorney will be a witness about the original patent application? A. Yes, because a lawyer shall not act as advocate at a trial in which the lawyer is likely to be a necessary witness, and this restriction applies by imputation to the other lawyers in the same firm. B. Yes, because a lawyer cannot serve as an advocate if a lawyer with whom the lawyer is associated in a firm is precluded from doing so. C. No, because the client provided written consent. D. No, because a lawyer may act as advocate in a trial in which another lawyer in the lawyer's firm is likely to be called as a witness.

D. No, because a lawyer may act as advocate in a trial in which another lawyer in the lawyer's firm is likely to be called as a witness.

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

D. No, because a lawyer may be impliedly authorized to admit a fact that cannot properly be disputed or to make a disclosure that facilitates a satisfactory conclusion to a matter.

Withholding client documents. A client fired an attorney after the attorney had completed 80 percent of the work involved in the representation. The client refuses to pay any of the fees that were in the original agreement at the beginning of representation. The client also demands that the attorney turn over all papers and documents relating to the representation. Must the attorney immediately return the client's documents regardless of the fees owed? A. Yes, a lawyer must surrender all papers and property to the client as soon as representation ends, even if it ends with an untimely discharge of the lawyer. B. Yes, because the client has not received what she bargained for if she wants to discharge the lawyer before the representation is complete. C. No, because a client forfeits any right to papers and documents related to the representation if she discharges the lawyer without cause before the representation is complete. D. No, because a lawyer may retain papers relating to the client to the extent permitted by law.

D. No, because a lawyer may retain papers relating to the client to the extent permitted by law.

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

D. No, because a lawyer must report only those offenses that a self-regulating profession must vigorously endeavor to prevent; if a lawyer were obliged to report every violation of the rules, the failure to report any violation would itself be a professional offense.

My client is a suspicious character. A client hired an attorney to represent him in a simple real estate matter. When the attorney asked some standard questions about the financial arrangements for the sale and purchase of the property, the client was somewhat evasive on a few points, but provided the information necessary to complete the legal work for the transaction. The attorney also heard from a friend that the client frequently cavorted with prostitutes. The attorney finds the client rather suspicious and has many unanswered questions, but none surrounding the transaction that occasioned the representation. Does the attorney have an ethical duty to inquire into the affairs of a suspicious client? A. Yes, because it is possible that the client is engaging in some kinds of illegal activity, and it is important to uncover whatever that might be. B. Yes, because the attorney has a right to know what kind of person he is representing in this simple real estate transaction. C. No, because a lawyer must never invade the privacy of a client in any way. D. No, because a lawyer ordinarily has no duty to initiate investigation of a client's affairs or to give advice that the client has indicated is unwanted.

D. No, because a lawyer ordinarily has no duty to initiate investigation of a client's affairs or to give advice that the client has indicated is unwanted.

Sole witness to a crime. As he left work one evening, an attorney was approaching his car in the parking garage when he noticed two men arguing near a car at the far end of that floor of the garage. He could not hear what they were arguing about, but could hear occasional profanities and insults, and one of them shouting, "I warned you!" Then he saw that the men began to fistfight. A few other people by this point had stopped to watch in the parking garage and someone called the police, who arrived within five minutes. By that point, one of the men who had been fighting was bloody and could not walk away from the fight on his own. The police took the men into custody and the other witnesses quickly dispersed, so the police took a statement from the attorney, the only witness who remained. The officer turned to his partner, who was standing near the squad car with its driver door open, and shouted that one of the witnesses was actually a lawyer, which prompted a snide remark from the other officer. One of the arrestees in the car overheard this exchange and asked the officer to get the attorney's business card so that he could hire him. May the attorney represent the arrestee in the criminal or civil proceedings that follow? A. Yes, because only one of the arrestees asked the attorney to represent him and the attorney owed no ethical duty to the other man who had been fighting. B. Yes, because the attorney did not engage in solicitation of a client at the scene of an incident, but instead the prospective client requested his representation. C. No, because a lawyer should not represent a client who was referred to him by a police officer, even if the referral was in the context of a casual exchange between police in the client's presence. D. No, because a lawyer shall not act as advocate at a trial in which the lawyer is likely to be a necessary witness.

D. No, because a lawyer shall not act as advocate at a trial in which the lawyer is likely to be a necessary witness.

The campaign volunteer. An attorney volunteered for a judge's reelection campaign because he hoped to receive court appointments. He drives the judge from campaign stop to campaign stop without receiving any compensation for his time or effort. The judge wins re-election, and then shows his gratitude to the attorney by frequently appointing him to represent indigent defendants at the state's expense. The appointments turn out to be lucrative and to generate substantial fees for the attorney. Could the attorney be subject to discipline for soliciting funds for a judge with such self-interested motives? A. Yes, because lawyers shall not accept a government legal engagement or an appointment by a judge if the lawyer makes a political contribution or solicits political contributions for the purpose of obtaining or being considered for that type of legal engagement or appointment. B. Yes, because this type of quid pro quo arrangement constitutes a bribe. C. No, because all constituents who donate or solicit donations for election campaigns are hoping to receive some direct or indirect benefits as a result. D. No, because for purposes of this rule, the term "political contribution" does not include uncompensated services.

D. No, because for purposes of this rule, the term "political contribution" does not include uncompensated services.

That was then, this is now. An attorney has been practicing for five years, but on her application to the bar five years earlier, she had stated that she had attended a particular private high school, when in fact she had attended a public high school. An unhappy client recently filed a grievance against the attorney, which was frivolous, but the state disciplinary authority had to conduct a routine, preliminary inquiry into the matter in order to make a determination that the complaint merited dismissal. The disciplinary board member assigned to the case had attended the elite private high school from which the attorney claimed to have graduated, and made a mental note of the attorney's high school when he did a cursory review of her bar admission files. He thought it was strange that he had never seen or heard her name at any alumni or reunion functions, as they had supposedly graduated the same year and the classes were small. On a hunch, the board member checked the alumni lists for the school and discovered that the attorney had lied on her application to the bar five years earlier. When asked about this issue, the attorney said she could not be subject to discipline now for the misstatement she made several years ago, and that the board lacked jurisdiction because it was unrelated to the current grievance complaint. Is she correct? A. Yes, because she has been practicing now for five years and has demonstrated her character and fitness to practice law, making the application queries moot. B. Yes, because it was improper for the board member to conduct a self-initiated investigation into her high school attendance merely because he had graduated from the same high school that the attorney listed on her original bar application. C. No, because the fact that she lied about her high school makes it likely that the current client complaint has merit as well. D. No, because if a person makes a material false statement in connection with an application for admission, it may be the basis for subsequent disciplinary action if the person is admitted.

D. No, because if a person makes a material false statement in connection with an application for admission, it may be the basis for subsequent disciplinary action if the person is admitted.

Protecting the client's feelings. Halfway through a trial, an attorney can tell that his client is going to lose. The opposing party successfully impeached the attorney's only favorable witness, and the judge has already told the parties that he plans to follow the state's model jury instructions for this type of case, which effectively preclude the legal theory that the attorney had made the centerpiece of his case. During a lunchtime break, the client turns to the attorney and tearfully asks if they still have any chance of winning. The attorney does not want to make her cry and feels very awkward about the situation, so in order to spare her feelings, he assures the client that they still have a good chance of prevailing. The attorney is representing the client on a contingent fee basis, so he knows it will not cost the client any more in legal fees to finish the trial. At the same time, there is still an open settlement offer on the table from the other party, albeit a very small, unsatisfying settlement, which the client could accept at any time if she wants to terminate the litigation. Is it proper for the attorney to feign confidence in order to protect his client's feelings? A. Yes, because the lawyer is working on a contingent fee basis, so finishing the case will not cost the client any more in legal fees. B. Yes, because a lawyer should think about moral, social, and psychological factors when deciding whether to answer the client in stark, realistic terms. C. No, because a lawyer must encourage a client to accept a settlement offer if the client would be better off doing so than by proceeding with the litigation. D. No, because in representing a client, a lawyer shall render candid advice.

D. No, because in representing a client, a lawyer shall render candid advice.

Client dispute with a third-party creditor. An attorney received from the opposing party $150,000 as a settlement for the attorney's client. Before the attorney could disburse the funds to the client, a third-party judgment creditor with a court-ordered lien against the client contacts the lawyer demanding disgorgement of the client's funds to satisfy the amount of the judgment, from a matter in which the lawyer did not represent the client. The client instructs the attorney to give the money to the client immediately and not to give anything to the third-party judgment creditor. Preliminary inquiries suggest that the third-party judgment creditor has a valid court order to execute on the client's assets. The attorney did as the client instructed him to do, disbursing the funds promptly to the client, and informed the judgment creditor to take up the matter with the client directly. Did the attorney act properly? A. Yes, because the attorney should not unilaterally assume to arbitrate a dispute between the client and the third party. B. Yes, because the attorney has a duty of loyalty to the client, and no duty to the third-party judgment creditor. C. No, because the attorney should immediately have disbursed the funds to the judgment creditor. D. No, because in this type of situation, the lawyer must refuse to surrender the property to the client until the claims are resolved.

D. No, because in this type of situation, the lawyer must refuse to surrender the property to the client until the claims are resolved.

The former colleague's conflict. An attorney used to work at Big Firm, and three years ago moved laterally to Medium Firm. One of the attorney's former colleagues at Big Firm also left and started a solo practice. While working at Big Firm, the solo received an assignment of literary rights from one of his clients about the client's high-profile case, immediately after the end of the case and the conclusion of the representation. That client also assigned any remaining literary rights to Kingpin Publishers in exchange for a hefty payment. The solo is now suing Kingpin Publishers to establish exclusive literary rights in the story. The first attorney's current firm, Medium Firm, represents Kingpin Publishers, and the solo represents himself. Another publisher is interested in acquiring the solo's book or movie script, and is funding the litigation expenses for the solo, even though it is not a client and does not yet have any ownership rights over the story. The case that gave rise to the literary rights occurred while both the solo and the first attorney were working together at Big Firm. The attorney performed some preliminary work on the case — reviewing and indexing a single deposition transcript before the client's trial — but the lawyer who is now the solo actually represented the client at trial. A paralegal at Big Firm is currently engaged to an editor at Kingpin Publishers, and the two are already living together. The attorney at Medium Firm, who is representing Kingpin Publishers, is in a sexual relationship with another lawyer at his own firm, and both are working in some capacity on the case. Executives at Kingpin Publishers have informed the first attorney that if his firm wins this case, they will hire Medium Firm for all their future legal work, which could be very lucrative in the long term. The solo has just filed a motion to disqualify the first attorney and the rest of Medium Firm from representing Kingpin Publishers in the case, alleging simply that there is a conflict of interest. Does Medium Firm have a disqualifying conflict of interest in representing Kingpin Publishers in this particular litigation? A. Yes, because the firm's attorney worked on the case that gave rise to this litigation, and because the solo took literary rights in the client's case. B. Yes, because the firm's attorney is in a sexual relationship with another lawyer working on the case, and because a third party without a true stake in the case is paying for the solo's legal expenses. C. No, as long as Medium Firm screens the attorney from the case involving the literary rights and obtains consent from the opposing party. D. No, because neither the attorney nor Medium Firm have any disqualifying conflict of interest in this case.

D. No, because neither the attorney nor Medium Firm have any disqualifying conflict of interest in this case.

Test results. A client was with three friends in a car when a police officer stopped the vehicle. During the stop, the police officer found cocaine and marijuana in the vehicle. The prosecutor charged the client for possession of a controlled substance. The prosecutor did not charge anyone for possessing marijuana, though it was illegal to possess such a substance in the jurisdiction where the vehicle was stopped. The attorney knows the client uses marijuana. The client has expressed that he has never used cocaine but that he knows a friend that was in the car uses it. The client takes a drug test at the attorney's recommendation. The drug test shows the client negative for controlled substances, but positive for marijuana. The attorney wants to use the drug test to show it was unlikely that the cocaine found in the car belonged to the client. Nevertheless, providing the drug test to the prosecutor would reveal that the client tested positive for marijuana and might lead to charges based on the marijuana found in the vehicle at the time of the stop. The attorney asks his client if he can show the prosecutor the drug test as evidence that the client did not use cocaine around the time of the finding and that the cocaine likely did not belong to the client. The client tells the attorney he can share the results with the prosecutor. Did the attorney act properly? A. Yes, because an attorney is impliedly authorized to carry out the representation of a client, including revealing confidential information. B. Yes, because an attorney can disclose confidential information if the client permits the attorney to do so. C. No, because attorneys shall not reveal any confidential information despite what the client requests or authorizes. D. No, because the client must give informed consent and the attorney did not make the client aware of the risks and reasonable alternatives.

D. No, because the client must give informed consent and the attorney did not make the client aware of the risks and reasonable alternatives.

Verifying attorneys' fees. After obtaining a favorable verdict at trial, a client asked the court to award attorneys' fees, which was permissible under relevant law. An attorney had represented the client throughout the litigation and now had to testify as a witness about the fees he had charged during the representing, authenticating, explaining, and justifying both the billable hours recorded on the timesheets and the lodestar rate for his legal services. Was it improper for the attorney to testify as a witness in the same proceeding in which he had represented a party as trial counsel? A. Yes, because combining the roles of advocate and witness can prejudice the tribunal and the opposing party and can also involve a conflict of interest between the lawyer and client. B. Yes, because a lawyer shall not act as advocate at a trial in which the lawyer is likely to be a necessary witness. C. No, because the fact-finder has already rendered a verdict in the case. D. No, because the testimony relates to the nature and value of legal services rendered in the case.

D. No, because the testimony relates to the nature and value of legal services rendered in the case.

Responsibility in hiring. A small firm employs several associates who work under the supervision of the partners, as well as three clerical staff. The most recently hired associate has a complicated situation with his license to practice law. The associate graduated from an accredited law school, successfully passed the state bar exam, and applied for admission to the bar, believing he had met all the eligibility requirements. He had no criminal record or history of academic misconduct, or any other problems meeting the traditional character and fitness requirements. The state bar approved his application and he attended his swearing-in ceremony. The state legislature, however, had recently passed a statute creating the option of a legislative veto for lawyers seeking admission to practice law in the state. The sponsors of the enactment had stated that its purpose was to prevent the grown children of illegal immigrants from becoming lawyers, even though the bar applicant might be a United States citizen "just because they happened to be born here." The associate was born in Arizona one month after his parents had moved there illegally from a country in Central America. A staff member of the relevant legislative committee flagged the associate's name from a list of recent bar licensees, along with three others in his situation. During a special session of the legislature, the state legislature exercised the equivalent of a legislative veto, narrowly passing a special act that permanently disbarred the associate and the others for the sole reason that their parents were illegal aliens. The associate received official notice of his disbarment from the Office of Legislative Counsel, not from the state bar. This occurred one week after the associate's swearing-in ceremony by the state bar, and two days after he started working at the firm. A notice of the disbarments appeared in the next issue of the state bar journal, but most of the firm was unaware of the situation, except for one managing partner in whom the associate had confided. Could the partners at the firm be subject to discipline for employing the associate as an attorney, despite challenging any such discipline in court? A. Yes, because they have employed an associate who engaged in the unauthorized practice of law. B. Yes, but only the managing partner, who had actual knowledge that the associate was no longer licensed to practice law, would be subject to discipline. C. No, because the associate was duly licensed at the time that the firm hired him, and the partners cannot be responsible for an unforeseeable event that occurred afterward, such as the associate's disbarment by a special act of the legislature. D. No, because the courts have inherent power to regulate the legal profession, and the legislature's action could not survive a court challenge.

D. No, because the courts have inherent power to regulate the legal profession, and the legislature's action could not survive a court challenge.

The prosecutor's secret. A district attorney (D.A.) discovers a single item of evidence that partly undermines the state's case against a criminal defendant — the state's star witness in the case, the prosecutor learns, had a suspension from high school for an instance of egregious plagiarism. The D.A. believes this is not material in that it would not change the outcome of the case, because the incident occurred ten years ago, and the witness is now an undercover police officer-informant. In fact, the D.A. believes it is trivial, and he is correct that the item would not fall under the duty of disclosure set forth by the Supreme Court in Brady v. Maryland. At the same time, the defense lawyer in the case has a reputation for making much ado about nothing, prolonging trials unnecessarily with tedious minutia. The D.A. decides to keep the information about the high school suspension to himself and let defense counsel discover it on his own if he wants. Did the D.A. act within the requirements of the Model Rules? A. Yes, because the trivial incident in the distant past is extremely unlikely to prove helpful to the defendant in a substantial way. B. Yes, because the defense lawyer can find the information himself and admit it into evidence; the prosecutor does not have to do the other lawyer's work for him. C. No, because the evidence is material in that it substantially impeaches the credibility of a key witness against the defendant. D. No, because the evidence tends to negate the guilt of the accused.

D. No, because the evidence tends to negate the guilt of the accused.

Certified long ago. An attorney entered into an exclusive reciprocal arrangement with a local advertiser, in which the lawyer agreed to advertise her firm solely through that advertising agency, for normal market rates, and the advertising agency agreed not to take any other law firms in the region as clients. The agency ran newspaper and billboard ads based on information supplied by the lawyer, which included a claim that the lawyer was a certified specialist in immigration law, as certified by the state bar association itself. While the certification was legally valid, the lawyer had not handled a single immigration case since obtaining the certification some time ago, and has not kept abreast of major changes in immigration law in the meantime. Given the extensiveness and complexity of recent changes in the law, the attorney would no longer be able to provide competent representation in immigration matters without extensive research and study. Last week, the lawyer happened to drive by two cars on the shoulder of the road that had been in a minor collision. The attorney pulled over, got out of her car, and approached one of the drivers who were waiting for a tow truck. Handing the driver her business card, the attorney offered to represent her in any litigation over the accident, and assured her that she would charge a fair rate, and the driver gladly took it and said she might have seen one of the lawyer's advertisements. The attorney was not aware at the time that the driver was an immigrant from Europe who was in the country on a temporary work visa. The driver visited the attorney a few days later for an initial consultation, but decided not to retain the lawyer for representation because the driver's insurer had already settled the matter. Was it proper for the lawyer to offer to represent the driver in this way? A. No, because the lawyer entered into an exclusive reciprocal arrangement with the advertiser. B. Yes, because the driver did not end up becoming a client of the lawyer, so an agreement to provide representation never occurred. C. Yes, because the driver appeared to be in need of representation, and gladly accepted the lawyer's card, so there was no coercion or harassment. D. No, because the lawyer approached the driver in person at the scene of the accident and offered to represent her.

D. No, because the lawyer approached the driver in person at the scene of the accident and offered to represent her.

A chance encounter between adversaries. The plaintiff and the defendant in a lawsuit run into each other in the supermarket and start discussing their case without their lawyers present. Both have been shocked at the mounting litigation costs, and at how long the case has gone on. The plaintiff volunteers to withdraw his case if the defendant will withdraw his counterclaims and pay whatever filing fees are involved in such a voluntary dismissal. Later, when each party reports this to their respective lawyers, the plaintiff's lawyer is very upset. The plaintiff mentioned that the defendant said his own lawyer (defense counsel) had helped give him the idea by asking at their first consultation, "Why haven't you and the plaintiff simply resolved this on your own, without resorting to litigation?" The plaintiff's lawyer reports the defendant's lawyer for misconduct, claiming that opposing counsel merely used his client as an agent to communicate with the plaintiff without the latter's lawyer present. Is the defendant's lawyer subject to discipline, based on these facts? A. Yes, because parties to a matter must not communicate directly with each other, and a lawyer is prohibited from advising a client concerning a communication that the client might make. B. Yes, because the lawyer clearly manipulated his client into communicating directly with the opposing party without opposing counsel present. C. No, because the plaintiff is the party who actually agreed first to withdraw his claim, so the defendant's lawyer cannot be responsible for any communication thereafter. D. No, because the parties to a matter may communicate directly with each other without their lawyers being present or consenting to the conversation.

D. No, because the parties to a matter may communicate directly with each other without their lawyers being present or consenting to the conversation.

Attending the lawyer's party. A judge attended a social event — a birthday party — with around thirty other individuals at the home of a lawyer who was a longtime acquaintance of the judge. The lawyer who hosted party in his home had a pending case before the judge that was awaiting a pretrial procedural ruling. Apart from exchanging brief greetings when the judge first arrived, the lawyer and the judge did not engage in any substantial conversation during the party, and neither the judge nor the lawyer discussed the pending case itself with anyone at the party. A month later, the judge ruled in favor of the party represented by the lawyer. Was it improper for the judge to attend the social event, given that it occurred at the home of a lawyer who had a case pending before the judge? A. Yes, because the judge should avoid even the appearance of impropriety or bias regarding the parties and lawyers appearing before her. B. Yes, because the invitation to the party put the judge in a position of feeling obligated to rule in favor of the lawyer on the pending matter in the judge's court. C. No, because the judge has probably attended social events at other lawyers' homes as well. D. No, because there were no ex parte communications about the pending matter, and it was a social event attended by thirty people.

D. No, because there were no ex parte communications about the pending matter, and it was a social event attended by thirty people.

An unfamiliar area of law. A client consults with an attorney, a solo practitioner, about a family law issue. The attorney has never practiced family law, but has spent his years as an attorney practicing strictly construction litigation issues. The attorney accepts the case, as he is only handling a few construction litigation cases at this time and could use the money this case will bring to his practice. The attorney believes he can get advice on how to handle the case from attorneys in the area who practice family law, and with whom he has good relationships. Is the attorney subject to discipline? A. Yes, because attorneys are required to have experience in an area of law before accepting a case to ensure the attorney is competent to represent the client. B. Yes, because attorneys are required to have assistance of other counsel when handling a case in an area of law in which the attorney is unfamiliar. C. No, because an attorney who is authorized to practice in a state may practice regardless of his or her legal knowledge and skill. D. No, even when a lawyer does not have to have prior experience to practice in a specific area of law, a lawyer can represent clients as long as they are able to provide competent representation.

D. No, even when a lawyer does not have to have prior experience to practice in a specific area of law, a lawyer can represent clients as long as they are able to provide competent representation.

Returning unused funds to the client after discharge. A client fired an attorney after two weeks of representation, long before the matter was complete. Client had prepaid a large refundable retainer, against which the attorney was to draw his fees as the representation went on. The client therefore has fully paid her fees up to that point to the attorney. The attorney is very upset about the client discharging him without cause and believes it is unfair and wrongful. The attorney refuses to return the remainder of the fees, and refuses to turn over any documents from the representation to the client. Is it proper for the attorney to take this course of action, if indeed the client had no good reason to discharge him? A. Yes, because a client must obtain court permission to discharge a lawyer before the representation is complete. B. Yes, it is proper for an attorney to retain the remaining funds and the documents. C. No, it is improper for an attorney to retain the unused funds, but an attorney may withhold the documents. D. No, it is improper for an attorney to retain either the unused funds or the documents.

D. No, it is improper for an attorney to retain either the unused funds or the documents.

The lateral move. A lawyer worked for Big Law Firm and represented a certain client. Sometime after the conclusion of the case, the lawyer left Big Law Firm. Another potential client consulted with Big Law Firm after the lawyer left, and this new prospective client discussed a potential case with Attorney Andrews, another lawyer at Big Law Firm. The potential client's interests would be materially adverse to those of the first client, of the lawyer who left the firm. Attorney Andrews at Big Law Firm accepts the new client's case. Can Attorney Andrews or other lawyers still working for Big Law Firm provide representation to the new client, according to the Model Rules? A. Yes, attorneys are imputed with knowledge of current or previous members of the firm, and attorneys with imputed knowledge shall not accept cases of potential clients whose interests would be materially adverse to those of a prior client of the firm. B. Yes, an attorney shall obtain the informed consent, confirmed in writing, of a client of a prior attorney's clients if the attorney is going to represent a different client with materially adverse interests. C. No, when an attorney leaves a law firm, the rules regarding conflicts of interest and imputation do not apply. D. No, prior attorneys' knowledge is not imputed unless the matter is the same or substantially related and another lawyer in the firm has information that is material to the matter.

D. No, prior attorneys' knowledge is not imputed unless the matter is the same or substantially related and another lawyer in the firm has information that is material to the matter.

He started it, but you took it too far. A lawyer is representing the defendant in a highly publicized trial. On his way into the courthouse on the day of jury selection, reporters gather around the lawyer hoping for comments. The lawyer explains that the prosecutor already held a press conference in which she shared that the defendant had refused to take a polygraph test, and that DNA tests had confirmed the defendant's guilt. The lawyer explains that polygraph tests are inadmissible due to their unreliability, and that the DNA results are in dispute and will be the subject of expert testimony at trial. He adds that the sleazy prosecutor has a habit of holding such press conferences to prejudice the proceedings before every criminal trial, and that it merely reveals that the prosecutor's cases are too weak to win on the merits without such stunts. His client, he says, is now guilty until proven innocent, which is a shame considering the serious criminal charges in the case. He also mentions that the state's star witness is a dangerous convicted felon who is testifying in exchange for early release from prison. Were the defense lawyer's statements proper? A. Yes, when prejudicial statements have been publicly made by others, responsive statements may have the salutary effect of lessening any resulting adverse impact on the adjudicative proceeding. B. Yes, because the First Amendment and Sixth Amendment protect a defendant's right to defend himself publicly through his attorney against false accusations. C. No, because there is a presumption of prejudicial effect on the proceedings when a lawyer comments publicly about the performance or results of any examination or test or the refusal or failure of a person to submit to an examination or test. D. No, such responsive statements should be limited to contain only such information as is necessary to mitigate undue prejudice created by the statements made by others.

D. No, such responsive statements should be limited to contain only such information as is necessary to mitigate undue prejudice created by the statements made by others.

The prospective client. An attorney has been practicing law for two years, and has represented some law school graduates in their appeals before the bar when the Board of Law Examiners had denied the applications for licenses on character or fitness grounds. A former law school classmate who was a first-year student when the attorney was a third-year student visits the attorney in his office. The former classmate was on law review and graduated near the top of the class, but now he expresses concern about the character portion of the bar application. "I need you to represent me before the Board of Law Examiners," the former classmate said. The attorney asks the classmate to explain the problem. The classmate then explains a history of heroin addiction in college, which led to a criminal conviction and a period of incarceration; but a successful rehabilitation program enabled the student to beat this addiction and live drug-free throughout law school. The classmate does not want to disclose this on the bar application. The attorney declines to represent the former student, and later receives a call from the bar examiners inquiring about this former classmate's character and fitness. The attorney then recounts everything the classmate said about the past addiction and criminal conviction. Was the attorney's conduct proper in this situation? A. Yes, as bar admission is a delineated exception to the usual attorney-client relationship, so confidentiality and privilege do not apply. B. Yes, because no attorney-client relationship exists until the parties sign a retainer, so the confidentiality rules do not apply here. C. No, as the student did not actually ask the attorney to write a recommendation letter or get involved in the matter, but was just seeking advice. D. No, the former classmate here was a prospective client, and the attorney owed a duty of confidentiality, even though no representation occurred.

D. No, the former classmate here was a prospective client, and the attorney owed a duty of confidentiality, even though no representation occurred.

At this point, I will try anything. Unable to find a convincing defense for his criminal client, the defense lawyer began to think about desperate measures. He felt an overwhelming duty to rescue his client from a long prison sentence, no matter what. Just before the close of evidence, the lawyer raised a defense of entrapment. The defendant had not been the target of a sting operation, and there was no evidence that the police had offered any inducement to commit the crime, which was an aggravated assault on a family member. The prosecutors immediately objected that the defense counsel should have raised this earlier, and the judge quickly dismissed the claim as unfounded and told the lawyer to move on. He next tried stalling, and he told the judge he could prove someone else committed the crime if there could be more time. This was a complete fabrication, and the judge asked several searching questions, but the lawyer was insistent. The judge denied the request for more time. Then the lawyer claimed that he also wanted to challenge the constitutionality of the assault statute itself, claiming the Second Amendment's right to bear arms implied a right to assault people with a weapon under a wide range of circumstances. The judge laughed and agreed to give him two weeks to brief the issue in order to preserve it for appeal. The next day, the lawyer held a press conference, in which he claimed the judge was biased and that it was clear that someone else had committed the crime and had framed his client. A. The lawyer could not be subject to discipline because his claims did not affect the outcome of the case — the court rejected two of them, and the third is nearly certain to fail as well. B. The lawyer could not face discipline for requesting more time, regardless of the reason, nor for raising a constitutional challenge, which is a protected liberty interest, but could face discipline for the frivolous and untimely attempt to claim entrapment, as well as the comments at the press conference. C. The lawyer could face discipline for the fabricated attempt to delay the proceedings and for the frivolous constitutional argument, but not for the comments at the press conference or for raising the entrapment defense, which does not require a showing of supporting facts. D. The lawyer could face discipline for the press conference, for raising the entrapment defense, for the request to have additional time, and for raising the constitutional claim.

D. The lawyer could face discipline for the press conference, for raising the entrapment defense, for the request to have additional time, and for raising the constitutional claim.

One time thing. In anticipation of a hearing before a federal agency in Washington, D.C., an attorney travels to a Washington suburb in Virginia from her own state to meet with her client (from her home state), interview witnesses, and review relevant documents. The attorney makes weekly trips there over the course of a year, and spends most of her workweek there each time (four or five days), as the agency hearing pertains to a complex antitrust matter. The attorney solicits no new clients there, but works only on the matter for the client from her home state, but is nonetheless unlicensed in Virginia. Is the attorney's conduct proper? A. Yes, the rules pertaining to unauthorized practice of law do not apply to any federal agency hearings. B. No, because her activity there continued for a full year, and therefore is not "temporary," so she is engaged in the unauthorized practice of law. C. No, because she is spending more time there than in her home state where she holds a license, despite this being a temporary arrangement. D. Yes, because a lawyer rendering services in a foreign jurisdiction on a temporary basis does not violate the rules merely by engaging in conduct in anticipation of a proceeding or hearing in a jurisdiction in which the lawyer is authorized to practice law.

D. Yes, because a lawyer rendering services in a foreign jurisdiction on a temporary basis does not violate the rules merely by engaging in conduct in anticipation of a proceeding or hearing in a jurisdiction in which the lawyer is authorized to practice law.

The television commercial. A local furniture store decided to make a low-budget television commercial telling customers that the store was having its best clearance sale ever. The owner of the store lived next door to a state trial judge, who had held his judicial seat for twenty years and was well-known in the community. At the request of the furniture store owner, the judge agreed to appear in his judicial robe in the television commercial, recommending the store and its owner to the viewers. Could the judge be subject to discipline for this commercial, under the Code of Judicial Conduct? A. No, because the free speech clause of the First Amendment protects the judge's right to appear in the commercial, and nothing in the commercial interfered with the judge's adjudication of an individual case. B. No, if the judge's statements were not false or misleading. C. Yes, because the commercial appears on television, and could reach viewers outside the judge's jurisdiction. D. Yes, because it violated the Code of Judicial Conduct for a judge to appear in judicial robes in business advertising.

D. Yes, because it violated the Code of Judicial Conduct for a judge to appear in judicial robes in business advertising.

A share of the divorce proceeds. An attorney agrees to represent a client in a divorce proceeding against her husband. The client is particularly concerned about obtaining her fair share of the marital property or assets — as much as possible, in fact — as well as a suitable level of child support for their children. The client agrees to pay the attorney his usual flat fee for divorce cases, $5,000, but also offers to pay him 10 percent of whatever he wins in terms of payments and distribution of assets, on top of his usual fee. After a protracted, acrimonious divorce proceeding, the attorney obtains a settlement worth approximately $2 million for the client. Is the attorney subject to discipline in this scenario? A. No, because the client proposed the arrangement and agreed to it beforehand. B. No, because the contingent fee was much lower than the typical contingent fee in personal injury cases, and the trial was protracted and acrimonious. C. Yes, because the attorney entered into a mixed flat-fee/contingent-fee arrangement, which is improper under the Rules of Professional Conduct. D. Yes, because the attorney entered into an arrangement for a fee in a domestic relations matter, the amount of which was contingent upon the amount of alimony, support, or property settlement.

D. Yes, because the attorney entered into an arrangement for a fee in a domestic relations matter, the amount of which was contingent upon the amount of alimony, support, or property settlement.

Making a scene. A client is struggling through a deposition, during which opposing counsel is subjecting him to intense questioning. The attorney, who represents the client, tries objecting a few times in order to break the opposing counsel's momentum, but it was to no avail. The attorney then stood up, shouted, and with a heave overturned the conference table around which the lawyers, court reporter, and deponent were sitting. Notes, cell phones, and open briefcases flew across the room, and the stenographer's equipment tumbled to the floor. The attorney and the client gathered their things and stormed out of the room. A few days later, the attorney called opposing counsel and halfheartedly apologized, and agreed to reschedule the deposition if opposing counsel would agree to behave himself this time. Opposing counsel reported the attorney to the state bar disciplinary authority. Could the attorney be subject to discipline for the way in which he disrupted the deposition? A. No, because the disruption was merely at a deposition, which is not as formal as a trial or hearing. B. No, because his response was appropriate given the aggressiveness of opposing counsel in the deposition. C. Yes, because the attorney did not properly apologize for his own conduct or take responsibility for his actions. D. Yes, because the duty to refrain from disruptive conduct applies to any proceeding of a tribunal, including a deposition.

D. Yes, because the duty to refrain from disruptive conduct applies to any proceeding of a tribunal, including a deposition.

Eliminating the plaintiff's lawyer. An attorney is a notorious personal injury lawyer, widely feared by defendant corporations and insurers who must defend claims. The attorney reaches one exceptionally favorable settlement for his client, a structured settlement paying several hundred million dollars over the period of five years. The defendant has lost cases to the attorney on several occasions, and wants to avoid dealing with him in the future. The defendant demands, as a condition of settlement, that the attorney will not represent any other clients in the future in tort actions related to this defendant or even to similar businesses in that jurisdiction. The attorney's contingent fee will be large enough for him to retire comfortably to a private tropical island and never need to work again, so he is amenable to this condition of the settlement. Is the attorney subject to discipline for this agreement? A. No, because the attorney is in a position to retire, so this is more like selling a practice to the opposing party than restricting a lawyer's ability to continue practicing law. B. No, because the condition is part of a settlement in a case where the lawyer is receiving a contingent fee, so this is not a genuine restriction on the right to practice law. C. Yes, because it is improper to have a settlement agreement that structures payments over such a long period. D. Yes, the agreement violates the rules, but the attorney probably does not care about being subject to discipline if he plans to leave the practice of law.

D. Yes, the agreement violates the rules, but the attorney probably does not care about being subject to discipline if he plans to leave the practice of law.

Refusing to consent. An attorney worked for several years for a federal government agency in regulatory enforcement. Big Firm then hired the attorney for a substantially higher salary, and the attorney accepted the position and left his government position. One of the attorney's first assigned cases at Big Firm was a new action by the client against the same government agency for which the attorney had previously worked, defending against an enforcement action that the attorney had initiated while at the agency. The defense will involve challenging the constitutionality of a new regulation that the agency had recently promulgated. While at the agency, the attorney had not been involved with the review and promulgation of any new regulations, including the one at issue in the client's challenge, but instead worked exclusively on enforcement litigation matters. The government agency refuses to consent to the attorney representing the client, who is the adverse party to the agency, in this matter, and seeks to disqualify Big Firm from representing the client. Is Big Firm subject to disqualification in the client's matter against the attorney's former employer? A. Yes, because allowing Big Firm to give government lawyers an unreasonably large salary increase for leaving his public service position and joining Big Firm in the private sector creates a conflict of interest for all lawyers in government service. B. Yes, because the attorney participated personally and substantially in the matter as a public officer or employee, and cannot recuse himself from representing the client, and the appropriate government agency gives its informed consent, confirmed in writing, to the representation. C. No, as long as Big Firm has policies and procedures in effect to supervise the attorney's work closely enough to ensure compliance with the Rules of Professional Conduct. D. No, as long as Big Firm screens the attorney in time from any participation in the matter and provides the agency with prompt written notice about the screening measures in effect.

D. No, as long as Big Firm screens the attorney in time from any participation in the matter and provides the agency with prompt written notice about the screening measures in effect.

Clash of the titans. An attorney worked for a corporation as its in-house counsel. Hostility breaks out between the Chief Executive Officer (CEO) and the Chief Financial Officer (CFO), with each threatening to sue the other over allegations of slander, libel, trespass to chattel, and so on. Does this personal clash between top managers present the attorney with a conflict of interest? A. Yes, because as representative of the corporation, he also necessarily represents each of the top managers or directors, so both of these individuals are the lawyer's clients. B. Yes, because both the corporation as an entity and the Chief Executive Officer are necessarily clients of the lawyer, and the clash with the Chief Financial Officer is essentially a clash with the corporation. C. No, because a lawyer representing an organization as a client cannot have a conflict of interest, as conflicts are strictly between natural persons. D. No, because a lawyer employed by an organization represents the organization acting through its duly authorized constituents, so the lawyer represents neither of these officers individually.

D. No, because a lawyer employed by an organization represents the organization acting through its duly authorized constituents, so the lawyer represents neither of these officers individually.

What he doesn't know can't hurt him. An attorney receives a report from a psychologist that provides the psychologist's professional opinion that the client is unstable. The psychologist's report indicates that the client believes himself to be perfectly sane, and that the client has indicated he will cause harm if the psychologist submits a report stating the client is not stable and sane. The attorney chooses not to provide the report to his client when he receives it. Is the attorney subject to discipline? A. Yes, because the attorney is required to keep the client reasonably informed about his case, especially if a certain event might bear significant weight on the outcome of the case. B. Yes, because Attorney refused to supply Client with a copy of the report because of his own personal interest. C. No, because attorneys can withhold or delay information from clients if the information would be harmful to the client or would inconvenience the attorney. D. No, because immediately providing the report to the client may cause harm to the client.

D. No, because immediately providing the report to the client may cause harm to the client.

The imaginary client. A patient of a well-known doctor suffers complications after her surgery, and believes she is the victim of medical malpractice. The patient writes to a lawyer, describing a medical-malpractice suit that the patient is contemplating, and she inquires about retaining the lawyer to represent her in the lawsuit. The lawyer never responds. Eventually, many months later, the statute of limitations expires for her claim. The patient then files a legal malpractice lawsuit against the attorney due to the failure to file a claim on the original case on time. Could the lawyer be liable for malpractice to the patient? A. Yes, because lawyers have some duties even to potential clients, and it was reasonably foreseeable to the lawyer that if he did not respond, eventually the statute of limitations would expire on her claim. B. Yes, because a lawyer can be liable for malpractice even to a nonclient, if the lawyer violated the ethical rules in his interactions with the person. C. No, because the lawyer has no duties to a person if there is no clientlawyer relationship explicitly in place. D. No, because it was not reasonable for the patient to have relied upon the lawyer, as the lawyer never communicated to the patient.

D. No, because it was not reasonable for the patient to have relied upon the lawyer, as the lawyer never communicated to the patient.

Waging a war of attrition. An attorney represents a client in a commercial litigation matter against a small independent bookstore. It is known in the local business community that the opposing party (the bookstore) has been on the verge of bankruptcy for the last two or three years. The facts and law of the present litigation, however, make it a close case — the attorney believes, accurately, that his client has at best a 50 percent chance of winning at trial. At the client's urging, the attorney files frequent motions asking for more time in discovery, more time to respond to the opposing party's motions, and a postponement of the trial date to allow more time to prepare and locate the necessary expert witnesses. The attorney thinks that the opposing party may have to close down and file for bankruptcy soon, which would make the opposing party's claims moot. The judge has an overcrowded docket, and is always glad to grant postponements or more time on various responses. Is it proper for the attorney to take this "time is on our side" approach to litigation? A. Yes, because regarding the ethical duty to expedite litigation, it constitutes a justification that similar conduct is often tolerated by the bench and bar. B. Yes, because the attorney is acting in the best interests of his own client, and the opposing party's financial fragility is not his fault or responsibility. C. No, because an attorney has a duty to seek the best result possible for both sides in a case, under the "lawyer for the case" approach. D. No, because realizing financial or other benefit from otherwise improper delay in litigation is not a legitimate interest of the client.

D. No, because realizing financial or other benefit from otherwise improper delay in litigation is not a legitimate interest of the client.

Challenging the constitutionality of the statute. An attorney worked for several years for a federal government agency in regulatory enforcement. Big Firm then hired the attorney for a substantially higher salary, and the attorney accepted the position and left her government position. One of the attorney's first assigned cases at Big Firm was a new action by the client against the same government agency for which the attorney had previously worked, defending against an enforcement action that the attorney had initiated while at the agency. The defense will involve challenging the constitutionality of a new regulation that the agency had recently promulgated. While at the agency, the attorney had not been involved with the review and promulgation of any new regulations, including the one at issue in the client's challenge, but instead worked exclusively on enforcement litigation matters. The government agency gives informed consent, confirmed in writing, to the representation. Is the attorney nevertheless subject to disqualification in the client's matter against the attorney's former employer? A. Yes, because allowing Big Firm to give government lawyers an unreasonably large salary increase for leaving her public service position and joining Big Firm in the private sector creates a conflict of interest for all lawyers in government service. B. Yes, because the attorney participated personally and substantially in the matter as a public officer or employee. C. No, because the case involves a constitutional challenge to the validity of a regulation, and the attorney was not personally and substantially involved in the drafting or promulgation of the regulation. D. No, because the appropriate government agency gave its informed consent, confirmed in writing, to the representation.

D. No, because the appropriate government agency gave its informed consent, confirmed in writing, to the representation.

Recent graduates awaiting their bar results. An attorney hires three new associates upon their graduation from law school in a neighboring state. The associates passed the bar in the neighboring state, but they are still unlicensed in the attorney's state. The associates confine their work to conducting research, reviewing documents, and attending meetings with witnesses in support of the attorney, who is responsible for all the litigation. The research done by the associates, however, is far beyond the capabilities of a paralegal or a typical law student associate. Is the attorney subject to discipline for this arrangement? A. Yes, because the attorney has facilitated the unauthorized practice of law by the associates. B. No, because the associates are licensed in a neighboring state, which presumably has similar laws and precedents. C. Yes, because the attorney is relying on research done by lawyers unlicensed in that jurisdiction. D. No, because the associates merely conduct delegated work under the attorney's supervision, for which the attorney is ultimately responsible.

D. No, because the associates merely conduct delegated work under the attorney's supervision, for which the attorney is ultimately responsible.

The appellate judge. An attorney spent several years working on the state intermediate appellate court as one of its nine justices in a state in which such judges run for election in the general elections every four years. When the attorney ran for re-election, she lost, and needed to return to private practice. The client wants the attorney to represent her in her appeal of a state trial verdict. The case previously came up on appeal before the state intermediate appellate court, but the attorney was not on the panel that decided the case. The state Supreme Court subsequently reversed the decisions of both the appellate court and the trial court, and remanded the case for a new trial. The new trial resulted in an unfavorable verdict for the client, so she wants to appeal the case again. Would it be proper for the attorney to represent her in this matter? A. No, because the appeal will come before the very court for which the attorney worked as a judge, and the panel could include some of the attorney's former colleagues. B. No, because the state Supreme Court already reversed the decision of the state intermediate appellate court, so it is improper for the client to appeal the remanded case back to the same state intermediate appellate court again, as this could thwart the intentions of the Supreme Court. C. Yes, because it was not the judge's fault that the state Supreme Court reversed the previous appellate decision, making a new trial and subsequent appeals necessary, and that the opposing party has not settled the case in the meantime. D. Yes, because a judge who was a member of a multimember court, and thereafter left judicial office to practice law, is not prohibited from representing a client in a matter pending in the court, but in which the former judge did not participate.

D. Yes, because a judge who was a member of a multimember court, and thereafter left judicial office to practice law, is not prohibited from representing a client in a matter pending in the court, but in which the former judge did not participate.

Now that we're already in trouble. A large corporation was under investigation by a government regulatory agency over possible violations of securities law. The corporation hired an attorney to represent it in the matter, and authorized the attorney to make a full internal investigation to discover the merits of the accusations. The attorney discovered that a high-level manager had falsified quarterly earnings reports, a clear violation of the law that could expose the corporation to devastating sanctions and civil liability. The attorney confronted the officer involved, but this proved unfruitful, and then he proceeded up the corporate chain of command, eventually going to the Chief Executive Officer and the Board of Directors. The officers and directors refused to address the problem because they thought it would send their stock prices into a freefall and make the corporation vulnerable to a hostile takeover from corporate raiders. Would it now be proper for the attorney to become a whistleblower and reveal the problem to the relevant government authorities? A. Yes, because the attorney has exhausted all other reasonable avenues to address the problem internally, so the lawyer may reveal information relating to the representation whether or not Rule 1.6 permits such disclosure. B. Yes, as long as the attorney protects the identities of all those involved and does not reveal the names of the wrongdoers, as they are his clients. C. No, because the attorney has a duty of confidentiality to the corporate officers and directors personally, and may not disclose information relating to his representation of them without their consent. D. No, because the attorney has a duty of confidentiality to the corporation, and the corporation hired the attorney to defend the organization against a claim arising out of an alleged violation of law.

D. No, because the attorney has a duty of confidentiality to the corporation, and the corporation hired the attorney to defend the organization against a claim arising out of an alleged violation of law.

The $10,000 witness. After much effort, an attorney located a witness who could fully corroborate his client's story and could impeach the testimony of the opposing party's star witness. The witness, however, was afraid of retaliation from others if she testified, and did not want to be involved. The attorney offered the witness $10,000 to appear at the trial for one afternoon and testify for an hour or two. The witness reluctantly agreed. Was it proper for the attorney to offer to pay a favorable witness to undergo the trouble of testifying at the trial? A. Yes, because expert witnesses routinely charge large sums to testify at trial, so it is proper for a non-expert to receive a modest amount of compensation, especially if she is fearful of adverse consequences from testifying. B. Yes, because the goal of the trial is to determine the facts of what happened, and it is important to have every material witness testify in order to corroborate the truth and impeach the false statements of others. C. No, because the lawyer offered the witness an unreasonably large amount of money. D. No, because the common law rule in most jurisdictions is that it is improper to pay an occurrence witness any fee for testifying apart from expenses.

D. No, because the common law rule in most jurisdictions is that it is improper to pay an occurrence witness any fee for testifying apart from expenses.

They will find out eventually. A government agency contacts an attorney, who works as in-house counsel for Corporation, and requests a report about some of Corporation's activities that come under the agency's regulatory jurisdiction. As the attorney begins to investigate the matter to prepare the report, he learns that the information requested by the agency will subject Corporation to significant regulatory enforcement sanctions, and if the information became public, would adversely affect Corporation's share price. At this point, the agency has not issued a subpoena and compliance with the request is voluntary, although the agency could compel the disclosure eventually. The managers and directors of Corporation instruct the attorney not to submit the report until the agency issues a subpoena, in order to buy some time to mitigate their regulatory violations. May the attorney prepare the report and submit it to the agency at this time? A. Yes, because a lawyer should have whatever latitude of investigation seems necessary as a matter of professional judgment. B. Yes, because the agency will inevitably subpoena the information anyway, and delaying merely provides the managers with an opportunity to conceal their wrongdoing. C. No, because even if the managers and directors consented to the disclosures, the attorney should not disclose information that will adversely affect the shareholders. D. No, because when a lawyer knows or reasonably should know that the evaluation is likely to affect the client's interests materially and adversely, the lawyer shall not provide the evaluation unless the client gives informed consent.

D. No, because when a lawyer knows or reasonably should know that the evaluation is likely to affect the client's interests materially and adversely, the lawyer shall not provide the evaluation unless the client gives informed consent.

The patent lawyer. Attorney worked for Big Firm in their intellectual property department, specializing in patent applications and patent enforcement, as well as some trademark disputes for clients. Unbeknownst to Attorney, the regular litigation department at Big Firm undertook representation of a Trucking company in defending against a personal injury lawsuit over a roadway accident involving one of the trucks. Attorney worked in the Washington, D.C. office of Big Firm, near the United States Patent and Trademark Office, and the litigators handling the truck accident are in the firm's Dallas office. Each office of Big Firm has its own local computer network for sharing documents and files between lawyers there. It is possible for lawyers at Big Firm to access the networks of other satellite offices, however, with a special login that most lawyers never use. Attorney has never accessed the files of the Dallas office except for one trademark case four years ago. Attorney did not make partner at Big Firm, so he left and went to work for a small plaintiff's firm in Kansas. One of Attorney's first case assignments was the same truck accident case in which Big Firm was defending Trucking Company; Attorney's new firm represents Plaintiff in the case. Attorney was not aware of the case or that Big Firm represented Trucking Company until the new firm assigned him to the case as second chair on the litigation. Is Attorney subject to disqualification in this matter? A. Yes, because even though Attorney did not have actual knowledge of confidential information about the trucking company, he had the ability to access the files if he had used a special login while he was at Big Firm, and this creates the appearance of impropriety. B. Yes, because Attorney's work in the patent enforcement division of Big Firm gave him some exposure to Big Firm's behind-the-scenes approach to litigation generally, as well as familiarity with Big Firm's litigators, thus providing Attorney with an unfair advantage, therefore both Attorney and the other lawyers in the new firm would be subject to disqualification. C. No, because Attorney now works for a firm in Kansas, and both offices of Big Firm mentioned were in other states, where many of the lawyers would not have licenses to practice law in Kansas, so Attorney would be subject to disqualification, but not the other lawyers in the new firm. D. No, if a lawyer while with one firm acquired no knowledge or information relating to a particular client of the firm, and that lawyer later joined another firm, neither the lawyer individually nor the second firm are disqualified from representing another client in the same or a related matter even though the interests of the two clients conflict.

D. No, if a lawyer while with one firm acquired no knowledge or information relating to a particular client of the firm, and that lawyer later joined another firm, neither the lawyer individually nor the second firm are disqualified from representing another client in the same or a related matter even though the interests of the two clients conflict.

Directly adverse parties. Mrs. Kramer met with a lawyer to discuss a physical assault by her estranged husband, who had broken into the house of Mrs. Kramer's, friend, where Mrs. Kramer was now living to avoid contact with her husband, and had assaulted her, leaving minor injuries and damaging some of her personal property. The lawyer agreed to represent her in seeking a restraining order against her estranged husband. The next day, upon hearing about this meeting, the estranged husband appeared in the lawyer's office, also seeking representation in the same matter. Mr. Kramer expressed his desire for reconciliation and asked the lawyer to represent him in mediation with his estranged wife, and to defend him at the restraining order hearing. The lawyer accepted a retainer fee from Mr. Kramer and agreed to represent him, just as he had done with Mrs. Kramer. Both the husband and wife were aware that the same lawyer represented them and proceeded with scheduling a hearing and mediation meetings, but neither signed paperwork actually consenting to the joint representation. Mrs. Kramer is unhappy that the husband hired her lawyer, but she feels she cannot do anything about it. What sanction could the lawyer face because of this dual representation? A. The lawyer is not subject to any sanction because both parties verbally consented to the representation. B. The lawyer is subject to disqualification by the court from representing one or the other client, but can then proceed with representing the other, whichever one the court allows. C. The lawyer is subject to discipline, but only because he did not obtain written consent from both parties to the dual representation. D. The lawyer is subject both to discipline and to disqualification for violating the Model Rules, as the parties are directly adverse in the same proceeding.

D. The lawyer is subject both to discipline and to disqualification for violating the Model Rules, as the parties are directly adverse in the same proceeding.

Disclosing adverse legal authority. While conducting research on a litigation matter, an attorney finds a very new case from the highest court in his jurisdiction that is directly adverse to his client's legal position in the case. The opposing party did not mention the case in its briefs, and the attorney realizes that the opposing party's lawyer has been recycling his firm's briefs for this type of case for several years without updating his research. Does the attorney have an ethical duty to disclose the unfavorable binding precedent to the court? A. No, because it is the other lawyer's duty to find the cases favorable to his own side, and providing the research to the opposing side is facilitating the other lawyer's neglect of diligent representation. B. No, because it would be a breach of the attorney's duty of loyalty to his own client to disclose a case unnecessarily that undermines their position. C. Yes, because it is very common for litigators to recycle their briefs for years at a time, and everyone should help each other out with updating their legal research on issues that arise frequently in that area of litigation. D. Yes, because a lawyer must disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel.

D. Yes, because a lawyer must disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel.

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

D. Yes, because the attorney is assisting another person in the unlicensed practice of law in his jurisdiction.

"I have needs." Lucille Bluth hires attorney Wayne Jarvis to represent her and her family in a complex federal case involving the family business and charges of securities fraud and racketeering. Early in the representation, Lucille and the lawyer, Wayne, start dating and become sexually involved, to the consternation of the rest of the family. Lucille and Wayne rationalize the relationship by saying that they each have "needs" that their new romantic partner meets, and they have even discussed marriage as an eventuality. Is the lawyer subject to discipline for this relationship? A. No, the Constitution does not allow a state bar or the judiciary to interfere in private matters such as a lawyer's consensual sexual relationships. B. Yes, the lawyer is representing the other family members as well, and they disapprove of the relationship at this time; if they approved of the relationship, it would be fine. C. No, because it appears this will be a long-term or permanent relationship, perhaps leading to marriage, so there is very little risk of the lawyer exploiting his client or the lawyer having clouded judgment. D. Yes, unless the sexual relationship predates the beginning of legal representation, the lawyer absolutely cannot represent a client with whom he has such a relationship.

D. Yes, unless the sexual relationship predates the beginning of legal representation, the lawyer absolutely cannot represent a client with whom he has such a relationship.