MPRE 2021

A bank and trust company maintains a list of approved estate and trust lawyers as a service to their customers who seek advice on estate planning matters. When a young attorney opened her trust and estate practice in town, she asked other lawyers how she could get on the bank's approved list. They explained that the bank lists lawyers who always name the bank in wills and trust agreements they draft for clients who need an institutional executor or trustee. The bank is one of the most stable and reputable banks in the state, and its fees for executor and trustee services are competitive with those of similar institutions. In light of what she has been told by the other lawyers, may the young attorney seek to have her name included on the bank's list? ANo, because a tacit condition of being on the list is always to name the bank as executor or trustee. BNo, because a lawyer must not solicit business through an interm

A

A full-time judge lives in State A. Her father lives in a retirement home in State B. The judge's father told her that several of his friends in the retirement home had employed an attorney to write wills for them, and that in each will the attorney had included a bequest to himself. Each bequest was approximately 50% of the estimated total value of the person's probable estate. The friends told the judge's father that they did not really want to leave the attorney anything, but they had assumed it was merely a matter of routine, a part of the attorney's compensation for drafting the will. The attorney is admitted to practice in State B, but not in State A. The judge did not talk personally with any of her father's friends, but she believes that her father's rendition of the story is entirely accurate. Would it be proper for the judge to communicate directly with the attorney about the matter, and if that does not sa

A

A judge serves on a state trial court that has nine other judges. Her husband is a life insurance salesman for a large life insurance company. The life insurance company is occasionally a litigant in the court on which the judge sits. Every year the life insurance company runs a national sales contest in which the person who sells the most life insurance during the year receives a valuable prize. The judge's husband won this year and took the judge on an all-expenses-paid vacation in Europe. She did not make a public report of the prize. Was it proper for the judge to allow her husband to accept the prize and take her on the European vacation? AYes, because acceptance of the prize cannot reasonably be perceived as undermining the judge's integrity or impartiality. BYes, because the prize was won by her husband, not by the judge. CNo, because the judge did not make a public report of the prize. DNo, because the life

A

A potential client consulted an attorney, hoping to hire her to represent him as plaintiff in a medical malpractice action against his doctor. Without mentioning the doctor's name, the client described the alleged acts of malpractice and said that they happened more than two years ago. Only at that point did the potential client mention his doctor's name. The attorney immediately stopped the potential client and said she could not represent him because she was already representing the doctor in an unrelated matter, and she urged him to consult another lawyer. That was the end of the conversation. The potential client did nothing further for 15 months, at which point he consulted another lawyer. By that time, the statute of limitations had run on the potential client's claim against the doctor. The potential client then sued the first attorney for legal malpractice, alleging that the attorney was negligent in not warn

A

An attorney represents the defendant in a criminal case. The defendant is charged with vehicular homicide, a felony. Under the criminal statute in question, a defendant is guilty if he caused the victim's death by driving a motor vehicle either intentionally or recklessly in disregard of the safety of others. In the defendant's case, the critical issue is whether the traffic light facing the defendant's traffic lane was green at a specified moment. If the light was green, then the defendant is not guilty, but if it was red, then the defendant is guilty. The defendant himself has blocked the entire event from memory and has no idea whether the light was green or red. Five bystanders were in a position to see the light at the time in question. The attorney interviewed four of them. With varying degrees of uncertainty, all four of them told the attorney that they believe the light was red but that they are not positive.

A

A retired attorney practiced admiralty and maritime law for 45 years in Maine. He stopped paying his bar dues in Maine when he retired, and he is no longer licensed to practice there. He and his wife moved to a retirement village in New Mexico, but he did not seek to become licensed to practice law in New Mexico. After a few months of playing golf and puttering in the garden, the retired attorney got bored and started missing the challenges of law practice. He therefore joined the unpaid staff of volunteer lawyers at the Rio Grande Walk-In Legal Advice Clinic, which is run by a nonprofit organization. The clinic's purpose is to offer free, quick, accurate, compassionate legal advice to walk-in clients who cannot afford ordinary legal service and who have legal problems that can be solved quickly, without litigation or other time-consuming procedures. Before they ever see one of the clinic's lawyers, all of the client

A

A young attorney, three years out of law school, had never set foot in a courtroom. The attorney was on the board of directors of a nonprofit preschool. One of the preschool's teachers was charged with felony child abuse for allegedly molesting three pupils. After conducting its own careful investigation, the preschool's board of directors concluded that the criminal charge was totally unfounded, and the board resolved to provide defense counsel for the teacher. The young attorney volunteered to do the work without a fee. A few days before the trial was to begin, the attorney became convinced that he was not competent to serve as the teacher's trial counsel. He asked the trial judge for permission to withdraw. After thoroughly questioning the attorney about his preparation for trial, the judge said that while he understood the attorney's anxiety, he believed that the attorney was perfectly competent to handle the cas

A

After graduating from law school, an attorney was admitted to practice in one state and not in any other jurisdiction. She joined the United States Army Judge Advocate General's ("JAG") Corps-the corps of lawyer-soldiers who provide legal services to the Army throughout the world. After completing her officer training and her training in military law, she was assigned to the JAG office at a military base in a different state. Even though she was not admitted to practice in that state, she was assigned to the legal assistance desk. According to Army regulations, her job is to provide legal services to military personnel and their dependents concerning a wide range of personal legal problems, including civil, domestic, and financial matters. An officer and his wife ask the attorney for legal advice about financing a mobile home, which they plan to put in a mobile home park located in the town closest to the military ba

A

An attorney assigned his secretary to manage his client trust account. The attorney gave the secretary extensive, detailed instructions about the kinds of records to keep, the kinds of funds that she must deposit, and the kinds of permissible withdrawals that she could make. The attorney had complete faith in the secretary's ability and honesty, and therefore did not supervise the secretary's management of the account. Three years later, during an audit, it was discovered that on 18 different occasions during that period, the account balance fell below the amount that should have been there. The attorney was unaware of these occasions until he received a copy of the audit. Is the attorney subject to discipline? AYes, because he did not adequately supervise the secretary. BYes, because a lawyer must manage his client trust account himself. CNo, because he took reasonable steps to train the secretary and did not reali

A

An attorney is representing a defendant on trial for armed robbery of a liquor store. The defendant tells the attorney in confidence that at the time in question, he was sitting at home watching television with his aged mother, and that his mother can confirm his alibi. The attorney interviews the mother, who solemnly confirms the defendant's story. After talking with her, the attorney strongly suspects that she is lying to protect the defendant. The attorney does not know for sure that the defendant and his mother are lying, but every instinct tells him that they are. The attorney has warned both of them about the dangers of perjury, but both have insisted that they want to testify to the alibi at trial. May the attorney call the defendant, or his mother, or both, as trial witnesses? AYes, as to both the defendant and his mother. BYes, as to the defendant, but no, as to his mother. CNo, as to both the defendant and

A

An insurance company offers a legal services insurance policy. In return for a yearly premium, an insured will be reimbursed by the insurance company for a specified amount for legal services during the year. The insured selects a lawyer from a list of "authorized providers" supplied by the insurance company. Any lawyer who agrees to follow a maximum fee schedule set by the insurance company can become an "authorized provider." The insurance company solicits insurance sales by in-person and live telephone contact with potential insurance buyers, working systematically through local telephone directories. Will an attorney be subject to discipline if he becomes an "authorized provider" and receives clients through the insurance company's insurance plan? ANo, because the insurance company does not specifically target persons whom it knows are in need of legal services in a particular matter covered by its insurance pla

A

A solo practitioner limits her law practice to two kinds of cases: medical malpractice and products liability. When the solo practitioner turned 67, she began looking for someone to buy her law practice. Ultimately, she sold the medical malpractice part of her practice to lawyer Alpha for $400,000, and she sold the products liability part of her practice to attorney Beta for $250,000. The solo practitioner then retired. Within 30 days after the sales to Alpha and Beta, approximately 40% of the solo practitioner's former clients decided to collect their case files and take their business to different lawyers. Were the sale from the solo practitioner to Alpha and the sale from the solo practitioner to Beta proper? AYes, even though the solo practitioner sold pieces of her practice to two different buyers, and even though 40% of the solo practitioner's clients left the buyers within 30 days. BYes, but the solo practiti

A ABA Model Rule 1.17 permits a lawyer to sell her entire law practice, or an area of her law practice, to one or more lawyers or law firms. Here, the solo practitioner sold her entire law practice to two different lawyers, and ABA Model Rule 1.17 permits that. The departure of 40% of the solo practitioner's clients does not cause the sales to violate ABA Model Rule 1.17. Indeed ABA Model Rule 1.17(c)(2) requires the selling lawyer to notify her clients that they have a right to pick up their files from the buyer and take them to a different lawyer. [See also comment 2 to ABA Model Rule 1.17] (B) and (D) are wrong because clients are not like sheep that can be bought and sold, willy-nilly. To hold the solo practitioner either subject to discipline or civilly liable in unjust enrichment would be inconsistent with the clients' right to pick up their files and take them to a different lawyer. The solo practitioner, Alpha, and Beta made their sales contracts in the context of ABA Model Rule 1.17 so Alpha and Beta cannot claim that they were surprised when clients departed. (C) is wrong because ABA Model Rule 1.17(b) permits a lawyer to sell her entire practice to one or more lawyers or law firms. One might also argue that the solo practitioner's medical malpractice cases are in a different "area of practice" (professional malpractice) from her products liability cases. But that argument is not necessary here because the solo practitioner sold her entire law practice.

A paralegal works for the law firm of Alpha & Beta. Her direct supervisor is partner Alpha, whose practice is limited to international trade law. Partner Beta is the firm's leading trial lawyer, both in commercial and personal injury cases. On her way to work one morning, the paralegal saw a pedestrian run down in a crosswalk by a speeding car. The paralegal rendered first aid, and while she was waiting with the pedestrian for the ambulance, the paralegal provided the pedestrian with a business card and urged him to call the firm to obtain legal representation in connection with his injuries. When she got to work, she told partner Alpha what she had done. Alpha admonished the paralegal not to hand out the firm's cards in such situations, but he did not discuss the matter with partner Beta. Is Alpha subject to discipline? AYes, because he failed to warn Beta not to take the pedestrian's case. BYes, because as the par

A Alpha is subject to discipline for failing to warn Beta not to take the case. If the paralegal were a lawyer, her conduct would violate ABA Model Rule 7.3(b), which prohibits in-person solicitation. The partners in a firm are responsible for educating their nonlawyer employees about ethics issues and making reasonable efforts to assure that those employees comply with ethics rules. [ABA Model Rule 5.3(a)] Moreover, a partner is subject to discipline if he learns about the violation of an ethics rule by a nonlawyer employee "when its consequences can be avoided or mitigated," but the partner "fails to take reasonable remedial action." In this case, the consequences of the paralegal's solicitation could have been avoided by warning Beta not to take the pedestrian's case. Because he failed to warn Beta, Alpha is subject to discipline. (B) is wrong because it is too broad. A lawyer's responsibility for a nonlawyer employee's ethics violation is limited to situations in which the lawyer orders it, ratifies it, or learns about it in time to remedy it and does not do so. [ABA Model Rule 5.3(c)] (C) is wrong because even though people are generally free to recommend a lawyer to someone else, that does not allow the paralegal to solicit business for the firm that employs her. [ABA Model Rule 8.4(a)] (D) is wrong because Alpha and the other partners in the firm had a duty to educate the paralegal about ethics rules. [ABA Model Rule 5.3(a)] Furthermore, even if the paralegal acted innocently, that does not excuse Alpha's failure to warn Beta not to take the case.

When an attorney was an associate at a law firm, she did the legal work for one of the firm's clients on a land sale transaction that earned the client millions of dollars. In gratitude, the client asked the attorney whether she had any unfulfilled wishes. The attorney told the client that she wished she had enough money to start her own solo law practice. The client then told her that he would lend her $100,000 to set up her new practice. In return, she would thereafter do all of his legal work at a 5% discount from her normal hourly fee, and she would pay off the $100,000 loan by monthly payments equal to 10% of her net income for the prior month. The attorney was delighted. She drafted a complete, detailed agreement between herself and the client, and she advised the client in writing to obtain outside legal advice before signing the agreement. The client obtained the outside advice and signed the agreement, and t

A The attorney is not subject to discipline unless she allows the client to interfere with her judgment in handling other clients' matters. [See ABA Model Rule 5.4] (B) is wrong because there is no law or disciplinary rule that requires the attorney to notify the law firm regarding the transaction. (C) is wrong because no law or disciplinary rule requires the law firm's consent to the client's leaving the firm and giving his business to the attorney as a solo practitioner. (D) is wrong because the loan payback clause does not violate the rule against splitting a legal fee with a nonlawyer. [ABA Model Rule 5.4(a)] True, the clause does measure the monthly payments as a percentage of the attorney's net income in the prior month and most of her net income will probably come from legal fees. However, it makes sense to tailor her loan payments to her income, and the arrangement does not invite the evil that the no-splitting rule was designed to prevent-interference with the attorney's professional judgment.

An attorney is a partner in a private law firm. That firm regularly provides legal services to three major banks and two other important lending institutions in the community. The attorney has been invited to become a member of the board of directors of the local legal aid society, the group that sets overall governing policies for the local legal aid office. One of the major issues that will soon face the board of directors is whether to amend the case intake guidelines to allow the legal aid office to represent clients in disputes with banks and other lending agencies. Which of the following statements is correct? AThe attorney may join the board of directors, but she must refrain from participating in the decision about the case intake guidelines. BThe attorney will be subject to discipline if she joins the board of directors because service on the board is in conflict with the interests of her firm's bank and le

A The attorney may join the board of directors, but she must refrain from participating in the decision about the case intake guidelines. A lawyer may not participate in a legal service board decision that may adversely affect one of the lawyer's clients. [ABA Model Rule 6.3(b)] (B) is wrong because ABA Model Rule 6.3 encourages work with a legal services organization, even if the organization serves people whose interests conflict with the interests of the lawyer's clients. (C) and (D) are wrong because ABA Model Rule 6.3(b) prohibits a lawyer from taking part in a legal services organization decision if the decision will adversely affect one of the lawyer's clients.

Two years ago, when a couple divorced in State A, the court awarded the wife custody of the three children and ordered the husband to pay the wife $3,000 per month in child support and alimony payments. The husband failed to make the $3,000 payments for 17 months in a row. In desperation, the wife hired a new attorney to represent her in a proceeding to collect the past due payments from the husband. State A has no law or court rule that requires the loser to pay the winner's attorneys' fees in domestic relations matters. Because the wife had no money to pay her new attorney a regular fee, the new attorney agreed to do the work on a contingent fee basis for 10% of whatever amount the wife was ultimately able to recover. The new attorney won an award for the wife of the entire amount due ($51,000), and by tracking down and attaching the husband's secret bank account, he got the full amount paid to the wife. He then se

A The new attorney is not subject to discipline for this fee arrangement if $5,100 is a reasonable fee. The ABA Model Rules flatly prohibit a lawyer from using a contingent fee arrangement when the payment of the fee is contingent on the securing of a divorce or an amount of alimony or support (or property settlement in lieu thereof). The Rules do not, however, prohibit a lawyer from using a contingent fee to recover money that is past due under a child support order. [ABA Model Rule 1.5(d)(1) and comment 6] In the wife's case, she had already obtained her divorce, and the amount of alimony and child support payments had already been set. The only problem was extracting the money from the husband; thus, the new attorney's use of the contingent fee arrangement in this case was proper. The contingent fee arrangement is particularly appropriate in light of the wife's lack of money to pay a regular fee and State A's failure to provide for fee shifting in domestic relations matters. [See Restatement §35, comment b] (B) is wrong because it ignores the possibility that $5,100 may be unreasonably high for the work the new attorney did. Also, the new attorney would not necessarily be subject to discipline for using this fee arrangement even if the wife had money to pay a regular fee. (C) is wrong because the collection of past due amounts of child support on a contingency fee basis is not considered a prohibited contingent fee in a domestic relations case under the Rules. (D) is wrong because it invokes a nonexistent policy. Contingent fees are generally allowed, even though they typically involve taking a share of money awarded for the support or compensation of the client (as in the ordinary personal injury case).

A probate attorney obtained a decedent's coin collection in order to inventory it. The attorney put the coin collection into a heavy brown envelope, labeled it as part of the decedent's estate, put the brown envelope and the decedent's other belongings into the file drawer of his desk, and left for lunch without locking the file drawer. The attorney's secretary saw the coins and saw what the probate attorney did with them. While the attorney was at lunch, the secretary took the envelope of coins and disappeared, never to be seen again. Is the probate attorney subject to discipline? AYes, because the attorney did not put the coins in a safe place. BYes, because the attorney is responsible for his employee's dishonest act. CNo, because the loss was proximately caused by the secretary's dishonesty, not by the attorney's conduct. DNo, because the attorney took reasonable precautions to safeguard the coins in the circums

A The probate attorney is subject to discipline because he did not put the coins in a safe place. When a lawyer comes into possession of property to be held on a client's behalf, the lawyer must identify it as belonging to the client and must put it in a safe place. [ABA Model Rule 1.15(a)] Although the Rules do not define "safe," common sense suggests that allowing a valuable coin collection to be viewed by employees, placing it into an unlocked desk file, and then leaving the office is not safe. A lawyer should use the same level of care required of professional fiduciaries. The probate attorney's actions fall well short of that. (B) is wrong. The attorney may be liable to the estate in civil damages for his secretary's dishonest act, but the question here is professional discipline, not civil liability. The attorney could be disciplined if he did not take reasonable steps to train his secretary properly [ABA Model Rule 5.3], but if he took such steps, he should not be disciplined for her criminal act. (C) is wrong. The issue here is the attorney's failure to safeguard the coins; the proximate cause of the loss is beside the point. Technically, a lawyer could be subject to discipline for failure to safeguard the property even if no loss occurred. (D) is wrong. Placing the coins in an unlocked desk file and leaving the office was not a reasonable way to safeguard them.

A 12-year-old boy was badly injured when he was struck by a dump truck owned by a construction company and driven by the company's employee. The boy and his parents sued the construction company and the employee. The first count of their complaint alleges that the employee drove negligently while acting within the scope of his duties for the construction company, and that the construction company is therefore liable for the boy's injuries. The second count alleges that the employee drove negligently while on a frolic of his own, and that the employee is therefore liable for the boy's injuries. The construction company hired an attorney to defend both the construction company and its employee. The attorney conducted a careful investigation of the facts and concluded that the employee was in no way negligent; he was driving slowly and carefully when the boy suddenly ran out into traffic from between two parked cars. Th

B

An attorney represented a defendant in a criminal trial. After the jury returned a guilty verdict, the defendant was taken to jail and the jury was discharged. While walking to his car, the disappointed attorney spotted one of the courtroom spectators in the parking lot. The attorney recalled that the spectator had been a member of the jury pool, but he had exercised a peremptory challenge against her because he instinctively felt that she would vote against the defendant. Despite not being selected as a juror, the spectator developed an interest in the case and had attended the entire trial. In an attempt to determine whether his instinct during jury selection was correct, the attorney approached the spectator and asked her whether she would have voted to convict the defendant. The spectator said, "I'd rather not talk about it." When the attorney explained that he was simply looking for constructive feedback, the sp

A The attorney is subject to discipline because the spectator initially declined the attorney's request for an interview. ABA Model Rule 3.5(c) provides that after the trial is over and the jury is discharged, a lawyer must not communicate with a former juror or prospective juror if any of the following conditions is met: (1) local law or a court order prohibits such communication; (2) the juror has told the lawyer that she does not want to communicate; or (3) the communication involves misrepresentation, coercion, duress, or harassment. Here, the attorney violated the second condition-he persisted with his interview request after the spectator said that she did not want to talk with him. (C) is incorrect. Even though the communication did not involve coercion, duress, or harassment, the attorney still spoke with the spectator after she declined his request, violating the rule. (D) is incorrect because ABA Model Rule 3.5(c) applies to all jurors and even prospective jurors. (B) is too broad. There is no blanket prohibition regarding post-trial contact with jurors and prospective jurors. Rather, such communications are subject to conditions, and the attorney violated one of these conditions.

An attorney received her law degree two years ago from a small local college of law and technical sciences. Last summer she attended a three-day trial practice seminar at the Harvard Law School. During her brief career, she has tried five cases-two jury trials and three bench trials. She won both of the jury trials and two of the three bench trials. The attorney placed an ad under the subject heading "Trial Lawyers" in the classified pages of the local phone book. Her ad states in relevant part: "Trial Attorney" "Harvard Trained" "Never Lost a Jury Trial" Which of the following is correct? ATo make the ad proper, the references to "Harvard Trained" and "Never Lost a Jury Trial" must be deleted. BTo make the ad proper, the references to "Trial Attorney" and "Harvard Trained" must be deleted. CTo make the ad proper, the references to "Trial Attorney" and "Never Lost a Jury Trial" must be deleted. DThe ad is proper as

A The attorney would be subject to discipline for the last two statements in her advertisement. It is misleading for her to state that she is "Harvard Trained," because reasonable readers could interpret that to mean that she received her law degree from that school. [See ABA Model Rule 7.1 and comment 2] The statement "Never Lost a Jury Trial," although literally true, could create unjustified expectations and is therefore misleading. [See ABA Model Rule 7.1 and comment 3] The reference to "Trial Attorney" would not make the attorney subject to discipline. Given her brief time in law practice, she has had significant experience as a trial lawyer. A lawyer is allowed to state the fields of law in which she does or does not practice. [ABA Model Rule 7.2, comment 9] (B), (C), and (D) are all incorrect because they would permit "Harvard Trained" or "Never Lost a Jury Trial" (or both) to remain in the advertisement.

A Hollywood movie producer was charged under a criminal statute for unfair trade practices, and now faces a civil claim under the same statute. The producer retains an attorney to represent him in both suits. The attorney is a nationally known defense attorney who has represented many famous people. Most recently, he defended a celebrity in a notorious murder case that held the country rapt for several weeks. The attorney explains to the producer that the representation is very complex and would take a majority of his time for several months. Given the attorney's steep hourly rate, the producer's legal fees would likely be around $1 million. The producer is short on cash and makes the following proposal: If the attorney will represent him in both the civil and criminal suits, the producer will produce a movie based on the attorney's most famous past cases, told from the attorney's viewpoint. The attorney would have c

B

A client lives in State A and is a regular client of an attorney who is admitted to practice only in State A. When the client was on vacation in distant State B, she was injured in a car accident caused by a resident of State B. The client hired the attorney to represent her in a civil action against the State B driver. For reasons of jurisdiction and venue, the case had to be filed and tried in State B. The written fee agreement between the client and the attorney provided that: (1) The attorney would assume full responsibility for the case as lead lawyer; (2) The client would pay the attorney 40% of the net recovery after deduction of litigation expenses; (3) The attorney would associate a State B lawyer to serve as trial counsel in State B; (4) The State B lawyer would assume responsibility only for his work as trial counsel; and (5) The attorney would pay the State B lawyer an appropriate portion of the 40% conti

B

A personal injury attorney and an orthopedic surgeon are good friends, and they have a high mutual regard for each other's professional abilities. One day on the golf course, they made a reciprocal referral agreement: whenever the attorney has a personal injury client with need for an orthopedic surgeon, the attorney promised to refer the client to the surgeon. Similarly, whenever the surgeon has an injured patient with a need for a personal injury attorney, the surgeon promised to refer the patient to the attorney. The agreement was oral, not written, and there was no mention of an expiration date; both women simply assumed that the agreement would continue indefinitely until one or the other wanted to end it. Likewise, they did not discuss whether the agreement would be exclusive; both women simply assumed that neither of them would refer someone to a competitor of the other. Was it proper for the attorney to make

B

An attorney is defending a marine supply company in a civil action brought by the state attorney general under a statute that makes it a civil offense for any person or business entity to bribe or give a kickback to a state official. The statute authorizes fines of up to $100,000 per transaction for any violation. The marine supply company has a strict corporate policy that prohibits its employees from bribing or giving kickbacks to anyone. Employees who violate the policy are subject to immediate discharge and are required to indemnify the marine supply company for any loss it suffers as a consequence of the violation. The attorney general has noticed the depositions of dozens of the marine supply company's employees. One of these employees, prior to his recent retirement, was the sales manager of the marine supply company. The attorney met with this employee to prepare him for his deposition. At the outset of the i

B

An attorney regularly represents a manufacturer of electric kitchen appliances. One morning the president of the manufacturing company called the attorney and asked if the attorney had seen the newspaper story about a woman who was electrocuted when she opened the door of her dishwasher. The company president stated that he believed the dishwasher was one that his company had manufactured. The company president also stated that he found some quality control records from that period which reflected that some dishwashers left the plant without proper testing. He continued that the records should have been shredded, but somehow had been overlooked, and said that he intended to send the records to the shredder immediately unless the attorney told him that he could not. Must the attorney advise the president to keep the records? AYes, unless the company has a clearly established policy of shredding quality control record

B

An attorney was representing the plaintiff at a bench trial of a civil action pending before a judge. Midway through the plaintiff's case-in-chief, the judge called the attorney into his chambers. The judge told the attorney that he thought the attorney's case was very weak, but that he could be mistaken because he was distracted by money troubles. The judge went on to say that if he could get a $50,000 loan, he would feel much better. The attorney responded that he would be happy to loan the judge $50,000 to help him out as a friend. Later that afternoon, a messenger delivered an envelope containing $50,000 in cash to the judge's chambers. No mention was made of a promissory note, a repayment date, or an interest rate. Two days later, the plaintiff settled his lawsuit so the judge never had to decide the case. Three months later, the judge repaid the $50,000 to the attorney, together with interest at the market rate

B

For many years an attorney has done business transactions work for a wealthy client. The client was recently injured in an automobile crash, and she has asked the attorney to represent her as plaintiff in an action against the driver who injured her. The attorney has taken some business cases to trial, but he has never handled a personal injury case. The attorney would like to help his client and also generate some income. Which of the following would be an improper way for him to do so? ATake the case and, with the client's consent, associate a co-counsel who is competent in the field of personal injury law. BRefer the client to a competent personal injury lawyer and charge that lawyer a $1,000 forwarding fee. CRefer the client to a competent personal injury lawyer and charge the client a reasonable sum for the time spent in making the referral. DTake the case and, with the client's consent, undertake additional re

B

The State A Bar has established an Interest on Lawyers' Trust Accounts ("IOLTA") program, whereby lawyers deposit client trust funds into special client trust accounts that pay interest to the State A Bar, which then uses the money to help fund legal services for poor people. The program requires lawyers to deposit a particular client's funds in an IOLTA account unless the funds would earn more than $50 in interest during the time they are entrusted to the lawyer. If the client's funds would earn more than $50 in interest during that time, the lawyer must deposit them in a separate interest-bearing trust account and pay the interest to the client. An attorney settled a personal injury case brought by her client. The defendant sent the attorney a check for $9,000. Because she was leaving that day for a one-month vacation, the attorney instructed her assistant to deposit the check in the attorney's IOLTA account. The a

B

An attorney practices real estate law in an old-fashioned jurisdiction in which almost every real estate transaction requires the services of one or more lawyers. The attorney is also licensed by the state as a real estate broker. The attorney conducts her law practice and her real estate brokerage business in a single office, using one secretary and one paralegal as her support staff. The attorney specializes in small, relatively old apartment buildings that are not in peak condition. They make good investments because they can be bought cheap, fixed up, and leased at favorable rates. When the attorney hears that an owner of a suitable building is looking to sell, she visits them in person and asks them to consider using her to find a buyer. After an owner signs her up as their real estate broker, the attorney lets them know that she can also do the necessary legal work-the title search, the financing documents, the

B The attorney's real estate brokerage business is a "law-related service" within the meaning of ABA Model Rule 5.7, and the attorney offers her real estate brokerage services "in circumstances that are not distinct from" her provision of legal services. [See ABA Model Rule 5.7(a)(1)] That means that she must follow the rules of legal ethics in her real estate brokerage work as well as her law work. [Id.] One of the legal ethics rules forbids a lawyer from initiating live person-to-person contact with a person known to need legal services in a particular matter when a significant motive for doing so is the lawyer's pecuniary gain. [See ABA Model Rule 7.3(b)] Therefore, the attorney must not initiate face-to-face contact with potential real estate clients to interest them in using her brokerage services. (A) is wrong because it overstates the rule expressed in ABA Model Rule 5.7. (C) is wrong because it turns ABA Model Rule 5.7 on its head-because the attorney is offering her ancillary service in circumstances that are not distinct from her legal service, she must follow the legal ethics rule for both kinds of service. (D) is wrong because the attorney's face-to-face pitches violate the no-solicitation rule even if her statements are truthful and not misleading. [Compare ABA Model Rule 7.1 with ABA Model Rule 7.3(b)]

A client hired an attorney to draft a will for him. The client willed his entire estate to a 43-year-old widow. The client told the attorney in confidence that he was neither a relative nor a friend of the widow. The client explained that he felt a moral obligation to the widow because he had killed her husband, and he had never become a suspect or confessed his sin to anyone. One day after signing the will, the client committed suicide. In due course, all of the client's assets were distributed to the widow, and the probate court closed his estate and discharged his executor. The attorney never told the widow or anyone else that the client had confessed to killing the widow's husband. Now, a few years later, an enthusiastic young prosecutor is charging an innocent man with murdering the widow's husband in the first degree with aggravating circumstances, and the prosecutor is seeking the death penalty. May the attorn

B The controlling doctrine in this case is the lawyer's ethical duty of confidentiality, not the attorney-client privilege. The attorney needs to know whether he can voluntarily reveal the client's confession, not whether he would be forced to do so if he were put on the witness stand in a court. ABA Model Rule 1.6(b)(1) states the applicable exception to the ethical duty of confidentiality: A lawyer may reveal confidential information if the lawyer reasonably believes that doing so is necessary to prevent reasonably certain death or substantial bodily harm. One might quibble whether the innocent man's death is "reasonably certain" when his trial has not even started, but surely the ethics rule should not be read to require the innocent man to order his last meal before being loosed from the executioner's grip. (A) is wrong because ABA Model Rule 1.6(b)(1) gives the lawyer discretion to reveal the client's confession; the Rule does not force him to do so. [See comment 15 to ABA Model Rule 1.6] (A few states go farther and require disclosure to prevent death or substantial bodily harm, but they are a small minority.) (C) is wrong for two reasons. First, the applicable doctrine is the ethical duty of confidentiality, not the attorney-client privilege. Second, even if the privilege were the applicable doctrine, who could claim it in this situation? The client cannot because he is dead. The client's executor cannot because the client's estate was closed and the executor was discharged. The attorney cannot claim it because a lawyer's right to claim the privilege is only derivative from the client. (D) is wrong for two reasons. First, the admissibility of this hearsay is irrelevant to the ethics issue. Second, the client's confession would likely be admissible if offered by the innocent man against the prosecution because i

A judge sits on a federal appellate court. He and two other federal judges heard a diversity of citizenship case in which they were required to interpret a state statute concerning the marital communications privilege. The judge's two colleagues wrote the majority opinion, in which they concluded that the statute gives only the witness-spouse the right to claim the privilege. The judge wrote a vigorous and scholarly dissent, arguing that the statute gives both spouses the right to claim the privilege. Later, a state senator introduced a bill to amend the statute to reflect the judge's position. The state senate invited the judge to testify about the public policy reasons for giving both spouses the right to claim the privilege. May the judge testify? AYes, but only if the two judges who wrote the majority opinion are also allowed to testify. BYes, because a judge may engage in activities designed to improve the law.

B The judge may testify at a public hearing in connection with matters concerning the law. [CJC Rule 3.2(A)] (A) is wrong because there is no rule requiring "equal time." (C) is wrong because it is overbroad. The general rule against judicial involvement in politics limits only some types of political activities, not including legislative testimony. [CJC Canon 4] (D) is wrong because, with respect to issues that are likely to come before the court, a judge is prohibited from making pledges, promises, or commitments that are inconsistent with the impartial performance of his duties. [CJC Rule 4.1(A)(13)] That Rule does not apply here because the judge's testimony, which would be designed to improve the law, would not constitute a promise that is inconsistent with the performance of his adjudicative duties.

A justice was on the state supreme court. The state's supreme court rules provide that in capital punishment cases, any one justice of the supreme court is empowered to grant a stay of execution pending appeal to the supreme court. The justice granted such a stay in a recent criminal case, on the ground that the defendant had been denied the effective assistance of counsel at his trial. A few months later, the justice retired from the supreme court and went back to private law practice. In due course, the supreme court heard the appeal in the case, rejected the defendant's effective assistance of counsel contention, and affirmed the death penalty. The defendant then commenced a federal habeas corpus proceeding in an appropriate federal district court and asked that court to appoint a private lawyer to represent him. The district court appointed the retired justice to represent the defendant. A key issue in the habeas

B The justice may not represent the defendant in the habeas proceeding because, while serving as a supreme court justice, the retired justice granted the defendant a stay of execution. A lawyer must not represent a client in a "matter" in which the lawyer earlier participated "personally and substantially" as a judge. [ABA Model Rule 1.12(a)] The habeas corpus proceeding and the earlier appeal should be regarded as the same matter because the habeas corpus proceeding will doubtless raise many of the same issues that were decided on the earlier appeal. (The effective assistance of counsel issue is one example.) The stay of execution should be regarded as personal, substantial participation. (A) is wrong because it confuses the roles of judge and lawyer; a judge is expected to be impartial, but a lawyer is expected to be a partisan. (C) is wrong because one of the proper reasons for turning down a court appointment is that it would require the lawyer to violate a disciplinary rule. [ABA Model Rule 6.2(a)] (D) is wrong because it elevates form over substance; the similarity of legal issues, not the case caption, should be determinative here.

A state university receives 45% of its annual budget from the state. The other 55% of the budget comes from private sources. The university is chartered by the state constitution, and it is regarded for all purposes as a unit of the state government. The governing body of the university is its board of overseers, a group of 17 citizens. The chief executive officer of the university is the chancellor, and the chief legal officer is the general counsel. The university has always strived for a student body and faculty that are diverse in age, politics, wealth, race, nationality, religion, sex, and sexual orientation. One year ago, the voters passed a ballot initiative that prohibits all units of the state government, including the university, from considering a person's race when offering employment or admission to school. The initiative prohibits giving any state funds to a governmental unit that violates the initiativ

C

An attorney who limits his practice to bankruptcy law has signed up on the local court roster of lawyers who are willing to take court-appointed criminal defense matters on a pro bono basis. He has taken approximately one such pro bono criminal case each of the past 10 years, but he has won only two of them. The day after tomorrow, the attorney will start the jury trial of a criminal defendant charged with indecent exposure. This morning, the prosecutor held a press conference, at which he told reporters that this defendant had been accused of various sex offenses on six prior occasions. The prosecutor's statements are correct, but none of the prior incidents will be admissible in evidence at the upcoming trial. The defendant's attorney thinks that the prosecutor was simply trying to poison the jury pool by degrading the defendant. The attorney is planning to call his own press conference at which he will give the re

B A lawyer is permitted to "make a statement that a reasonable lawyer would believe is required to protect a client from the substantial undue prejudicial effect of recent publicity not initiated by the lawyer or the lawyer's client." [ABA Model Rule 3.6(c)] The attorney is permitted to make these clarifying statements in response to the true, but incomplete, statements made by the prosecutor at a press conference. Thus, (D) is incorrect. (A) and (C) are incorrect because the attorney has 10 years of experience handling pro bono criminal defense cases, and his win-loss ratio may be reflecting the underlying merits of the cases rather than the attorney's trial ability.

A client hired an attorney to put together a complex real estate syndicate. In connection with that work, the client disclosed to the attorney a great deal of confidential information about the client's financial affairs. When the task was about half completed, the attorney's wife was killed in a car accident and his family's house burned down, all in the same week. The attorney was so emotionally and physically drained that he felt he could not competently continue with the work for his client. The client refused to allow the attorney to withdraw. The attorney begged the client to allow him to turn the files over to his law partner, an excellent real estate lawyer who was completely trustworthy and perfectly competent to handle the matter. The client refused to allow his files to be turned over to any other lawyer and insisted that the attorney himself promptly complete the work. What should the attorney do? ATurn

B A lawyer must withdraw if the lawyer's physical or mental condition will materially impair his ability to represent the client. [ABA Model Rule 1.16(a)(2)] The client may be right in thinking that hard work will be good for the attorney, but the attorney has to be the ultimate judge of his own physical and mental capacity to carry on. If the attorney believes that his condition prevents him from serving the client competently, he must withdraw regardless of what the client wants. (A) is wrong because the files include confidential information about the client's financial affairs, and the attorney cannot turn them over to his law partner against the client's express wishes. [ABA Model Rule 1.6] (C) is wrong because the client has asked the attorney to complete the work promptly. The attorney's recovery may take months or years. The attorney must not continue representing the client unless he can complete the work with reasonable diligence and promptness. [ABA Model Rule 1.3] (D) is wrong because, as discussed above, if the attorney believes his mental and physical conditions prevent him from serving the client competently, he must withdraw.

A swimming coach was charged with assault of another coach. The swimming coach hired a criminal attorney to defend him. Subsequently, the swimming coach pleaded not guilty and was released on his own recognizance. At his first trial, a jury was empanelled, and the prosecutor was almost finished presenting the testimony of her first witness when a signal from her electronic pager interrupted her. The trial judge granted her request for a short recess, at the end of which the prosecutor told the judge that her office had instructed her not to proceed with this case at this time. The judge responded that if the prosecutor stopped now, the defendant would go free. When the prosecutor indicated that she understood, the judge entered a judgment of acquittal and set the swimming coach free. Twenty days later, the prosecutor recharged the swimming coach with the same offense. The swimming coach hired his original criminal at

C

An attorney in solo practice published a brochure regarding what one should do when injured. The brochure contains accurate, helpful information about obtaining proper medical treatment, recording details of the accident, notifying insurance companies, not making harmful statements, and the like. The attorney's name, address, and telephone number are printed on the brochure's cover. One afternoon, the attorney saw a pedestrian knocked down in a crosswalk by a hit-and-run driver. He and another bystander called 911 and gave the pedestrian emergency first aid until an ambulance arrived. The next day, the attorney visited the pedestrian in the hospital and gave the pedestrian a copy of his brochure. Which of the following is correct? The attorney is subject to discipline, both for publishing the brochure and for giving the brochure to the pedestrian in the hospital. BThe attorney is subject to discipline for publishing

C

A law professor was selected as the neutral arbitrator of a boundary line dispute between an elderly couple and the couple's next-door neighbors. The law professor decided the matter in favor of the elderly couple. Shortly thereafter, the law professor quit his teaching position and entered private law practice. The elderly couple's next-door neighbors brought suit to have the arbitration award set aside. The elderly couple asked the law professor to represent them in the suit. If the law professor takes the case, will he be subject to discipline? ANo, because serving as the elderly couple's lawyer is consistent with his decision as arbitrator in their favor. BNo, because by seeking to hire the law professor, the elderly couple is deemed to have consented to the conflict of interest. CYes, because his earlier service as neutral arbitrator creates a conflict of interest. DYes, because there is reasonable ground to do

C

An attorney is a voting member of the legislation committee of a consumer-based law reform group that drafts and advocates the passage of proposed statutes on food safety. The law reform group is currently debating a draft statute that sets quality and safety standards for growth hormones administered to chickens, turkeys, and other poultry. The attorney is also engaged in the private practice of patent law. She regularly represents a biotechnology firm. Using the techniques of genetic engineering, the biotechnology firm invents, develops, and sells a variety of patented growth hormones. The attorney herself has obtained patents on some of these hormones for the biotechnology firm. If enacted into law, the law reform group's proposed statute on poultry hormones could materially increase the biotechnology firm's hormone sales because it is the only firm whose hormones would meet the statute's quality and safety requir

C

An attorney practices environmental law. He also happens to be one of the nation's leading experts on the environmental effects of filling wetlands. The state legislature has scheduled hearings on a bill to prohibit the filling of wetlands surrounding a bay. One of the attorney's regular clients is a development company, which owns development rights to some of the wetlands in question. The development company wants to fill its wetlands so that it can build low-cost housing for underprivileged families. The development company hired the attorney to appear as a witness at the legislative hearings and to testify in opposition to the ban on wetland filling. The attorney appeared as a witness, identified himself as an expert on wetlands, and testified vigorously against the proposed legislation. Was the attorney's conduct proper? AYes, unless his testimony was contrary to his own beliefs about the environmental effects

C

The attorney general's office does not include any lawyers who are skilled in the field of condemnation law (the law of eminent domain). Consequently, whenever the state wants to use its power of eminent domain to condemn some private property for a public use, the attorney general must hire a private law firm to represent the state in the condemnation proceedings. In contrast to the paltry fees that the state pays to appointed defense counsel in criminal cases, the attorney general pays quite handsomely for condemnation work. The attorney general is a partisan political position that is filled by a contested election every four years. A large state law firm limits its practice to condemnation law. The founding partner is an 87-year-old multimillionaire who remains active on the firm's management committee. When it is time to elect a new attorney general, the partner makes large donations from his personal wealth to

C

Two sisters are partners in a bakery. Their partnership agreement says that they will share the work and the profits equally. They are very close, but they constantly bicker-each claims that the other is taking an unfair share of the profits and shirking on the work. Six months ago, they hired an attorney to act as a third-party neutral, to help them resolve their differences once and for all. At the outset, the attorney explained that he would be strictly neutral between them; he would not be representing either one, and neither of them would be entitled to the protections afforded by an attorney-client relationship. After a long series of meetings with them (sometimes separately, sometimes jointly), the attorney proposed a solution. The sisters liked his solution, reduced it to writing, and signed it, vowing to end their bickering forever. Six months later, the feud erupted again, worse than ever. One of the sister

C

A plaintiff brought a civil action to recover damages for personal injuries he suffered as the victim of alleged police brutality inflicted by three defendant police officers. The trial was widely reported by the media. The jury returned a verdict in favor of the plaintiff and against the three police officers for $500 million. When the trial judge received the verdict, he was shocked by the size of the award. Before dismissing the jurors, the judge told the jurors that when they were sworn in, they had promised that they would deliver a verdict based on the evidence and that they would not be swayed by passion or prejudice. The judge further admonished the jurors that they had failed in those duties, that they had made a mockery of justice, and that they should be ashamed of themselves. He then dismissed the jury, and the defense lawyers renewed their motion for judgment as a matter of law and, alternatively, moved

D

A plaintiff, represented by his attorney, brought suit in federal district court against a pest control company and nine chemical companies for physical and emotional injuries the plaintiff suffered after accidentally inhaling cockroach spray emanating from an apartment that had recently been fumigated by the pest control company. The attorney's theory for suing the nine chemical companies was that the pest control company had probably purchased its cockroach spray from at least one of the nine chemical companies. A large law firm represented one of the nine chemical company defendants. By using depositions and document demands early in the discovery phase of the case, the law firm established that the chemical company it represented had never at any time sold any type of chemical to the pest control company. The law firm then moved for summary judgment as to its client. The plaintiff's attorney offered no substantiv

D

Solo practitioners Alpha and Beta share office space. Each of them has organized her practice as a professional corporation. The sign on their office door reads: "Attorney Alpha, P.C." "Personal Injury Law" "_____________________________" "Attorney Beta, P.C." "General Practice" Alpha and Beta frequently consult each other about their respective cases, and they often refer clients to one another. Sometimes they work on cases together under a fee-sharing arrangement. When one of them is out of the office, the other responds to client inquiries to the extent that she is able, and to facilitate that practice, each attorney has physical access to the other's client files. A plaintiff hired Alpha to sue a bakery for personal injuries he sustained when he bit into a piece of glass in a dinner roll baked by the bakery. The bakery's liability insurance carrier asked Beta to serve as defense counsel in the case. Alpha and Bet

C Beta may not take the case even if Alpha and Beta believe that they can effectively represent their respective clients, and even if all parties give informed consent, confirmed in writing. The key issue is whether Alpha and Beta are considered a "firm" for purposes of the imputed disqualification rule with respect to conflicts of interest. Because lawyers in a firm are usually treated as a single unit for conflict of interest purposes, different lawyers in the same firm must not represent opposing parties in a civil case. [ABA Model Rule 1.10(a)] Relevant factors in determining whether lawyers who share office space are deemed a firm include whether they: hold themselves out to the public as a single unit, frequently consult and assist each other, refer cases to each other, work jointly on cases, and have access to each other's files. All of these factors are present in this case. Thus, Alpha and Beta are deemed a firm, and Beta is disqualified from accepting the employment because Alpha's disqualification is imputed to her. (A) is wrong because a client must not be asked to consent if a disinterested lawyer would conclude that the client should not agree to the representation. Representing both sides in litigation is such a circumstance. [ABA Model Rule 1.7, comment 23] Moreover, ABA Model Rule 1.7(b)(3) does not permit client consent to solve a conflict of interest when one client sues another client represented by the lawyer in the same proceeding. (B) is wrong because, as discussed above, the rule of imputed disqualification does apply to Alpha and Beta even though they are not partners. (D) is wrong because, as discussed above, the key issue is whether the lawyers here would be considered a firm. The mere fact that the lawyers sometimes share fees does not make them a firm.

A police officer was charged with murder. He is alleged to have savagely beaten and ultimately killed a teenage gang member in the course of an arrest. Neither the police department nor the officer's union was willing to provide legal counsel for his defense, and the officer himself lacked funds to hire private counsel. The public defender's office could not represent him due to a conflict of interest from a related case. The trial court therefore appointed an attorney to defend the officer. The attorney is only three years out of law school. The attorney practices criminal defense, but he has never handled a murder case before. For which of the following reasons may the attorney decline the court appointment? ABased on what he has read in the newspapers, he sincerely believes that the officer is guilty. BHe has no experience in the defense of a murder case. CHe is of the same race as the teenage victim, and he is i

D

A new associate at a law firm was asked to help a partner advise a state university on how to comply with a federal statute that requires colleges and universities to make many changes in their facilities to accommodate students with disabilities. After graduating from law school, the associate had worked on the congressional staff of a United States senator. In that role, she personally drafted a bill that was ultimately enacted as the federal statute. In light of the associate's earlier role as the drafter of the federal statute, which of the two lawyers may work on the matter? ANeither the partner nor the associate. BThe partner only, and only if the associate is properly screened off from the matter. CBoth the partner and the associate. DThe partner only, and only if the state university consents after full disclosure.

C Both the partner and the associate may work on the matter, assuming the associate complies with the applicable federal statutes and regulations concerning former government employees. Drafting a piece of legislation is not regarded as a "matter" for purposes of the legal ethics rules on former government employees. [ABA Model Rule 1.11(e); ABA Formal Op. 342 (1975)] Therefore, the associate may advise the state university. Because the associate is not disqualified, neither is her firm. Thus, the partner may also work on this project. (A) is wrong because, as discussed above, the associate's congressional work disqualifies neither the associate nor the partner. (B) is wrong because it states one of the requirements for the partner's representation had the associate been disqualified. As discussed above, the associate is not disqualified and thus need not be screened off. (D) is wrong for the reasons stated above. Moreover, it is not the state university that would need protection if this were a "matter" for the purpose of disqualification under the conflict of interest rules. In that case, the associate would have been screened off, the associate would not be apportioned any part of the fee, and written notice would be promptly given to the government agency.

A solo practitioner is one of only three lawyers in a small town. The solo practitioner is presently defending a client in a criminal action for assault and battery. This morning one of the solo practitioner's regular clients, a gas and grocery store, asked the solo practitioner to sue the same client to recover a past due amount on a gasoline and grocery charge account. Would it be proper for the solo practitioner to represent the gas and grocery store in the charge account case? ANo, because it is presumed that a lawyer obtains confidential information in the course of representing a client. BNo, unless the other two lawyers in town are disqualified from representing the gas and grocery store. CYes, because there is no substantial relationship between the charge account case and the assault and battery case. DYes, if both the client and the gas and grocery store consent after full disclosure of the conflict, and s

D

A bank operates a professional referral hotline for its depositors. Any bank depositor who needs to find a physician, lawyer, accountant, dentist, or the like can telephone the hotline and obtain a free referral from lists of professionals compiled by the bank. The lists are limited to professionals who maintain an average balance of at least $10,000 in an account at the bank, but the professional does not pay a fee to the bank for receiving a particular referral. An attorney keeps $10,000 on deposit with the bank for the express purpose of being included on its lawyer referral list. Is this arrangement proper? AYes, because the bank is functioning in the role of a lawyer referral service. BYes, because neither the bank's depositors nor the professionals pay a fee for referrals. CNo, because the attorney is required to keep $10,000 on deposit to be included on the list. DNo, because this arrangement constitutes an a

C The arrangement is not proper because the attorney is required to keep $10,000 on deposit to be included on the list. A lawyer may not give "anything of value" to a person for recommending the lawyer's services. [ABA Model Rule 7.2(b)] The bank benefits in many ways by increasing the amount of its deposits; for example, its deposits determine how much it can lend to borrowers. Thus, obtaining deposits from lawyers is of value to the bank, and that is one reason it has devised the referral scheme. (A) is wrong because although a lawyer may pay the usual charges of a not-for-profit or qualified lawyer referral service [ABA Model Rule 7.2(b)], banks operate for profit, and there is no indication that the bank has been approved by the appropriate regulatory authority as a qualified lawyer referral service. (B) is wrong because the attorney is giving something of value for the referrals, as explained above, even though there is no fee for individual referrals. (D) is wrong because this arrangement does not constitute an improper partnership or association with a nonlawyer for the purpose of practicing law. A lawyer's professional association with a nonlawyer is improper if the nonlawyer: (1) owns an interest in the practice; (2) is an officer or director of a business involving law practice; or (3) has the right to control the lawyer's professional judgment. [ABA Model Rule 5.4(d)] None of these is the case here; the bank is acting solely as a referral agent, and has nothing to do with the operation of the attorney's practice.

An attorney worked at the United States Department of Labor and was responsible for compiling certain corporate safety records into an annual report containing the accident statistics. The report is used internally and in discussions with companies, but it is not distributed to the general public. However, a person may obtain a copy of the report by filing a formal request under the Freedom of Information Act. During the last three years, Company A has had more accidents than any of the other reporting companies. Six months ago, the attorney left the Labor Department and took a job with a private law firm. Recently, a person came to the attorney seeking representation in a suit against Company A for injuries he sustained while working at Company A's factory. The attorney agreed to represent the client. Is the attorney subject to discipline? AYes, because he obtained relevant information about Company A while working

C The attorney is not subject to discipline for taking the case because the relevant information he obtained while working as a government attorney is not confidential. The general rule is that a government lawyer who receives confidential government information about a person must not later represent a private client whose interests are adverse to that person, if the information could be used to the material disadvantage of that person. [ABA Model Rule 1.11(c)] The rule covers only "confidential" information, which means information that the government is prohibited from revealing or has a privilege not to reveal, and which is not otherwise available to the public. Here, because the information is available under the Freedom of Information Act, it is not confidential. In fact, any attorney representing the client could obtain the information; thus, the attorney is free to use it. (A) is wrong because a lawyer is not barred from ever working on a case where he gained any relevant information while working for the government. To bar representation, the information must be confidential. (B) is wrong because this type of consent is required when the attorney takes on a representation in private practice in a matter in which the lawyer participated personally and substantially while in government service. A "matter" is a set of specific facts involving specific parties. Here, the attorney was not involved in any matter while in government service that concerned the client's claim against the chemical company. (D) is wrong because the information is not confidential and thus can be used against the chemical company. Furthermore, even if the information were confidential, mere nonuse would not be sufficient; the attorney would not be permitted to represent the client.

An attorney was assigned by the court to defend an indigent teacher at her murder trial. The jury convicted the teacher, and she was sentenced to 40 years in prison. The attorney's court appointment expired at the end of the trial, but he promised the teacher that he would represent her without cost in taking an appeal from her conviction. The attorney advanced $350 on the teacher's behalf to cover the expenses of the appeal, knowing that the teacher would probably not be able to pay him back. While the appeal was pending, the teacher wrote the manuscript for a book about life in prison. She hired the attorney to negotiate a contract with a publisher to have the book published, and in return for the contract work, she promised to pay the attorney 30% of the royalties from her book. Is the attorney subject to discipline? AYes, because he entered into a literary rights contract with his client while her appeal was sti

C The attorney is not subject to discipline unless 30% of the book royalties is unreasonably high for the contract negotiation work. Here, the attorney has, in essence, agreed to negotiate the publication contract in return for a contingent fee. Like all other fees, a contingent fee is subject to the general requirement of reasonableness. [ABA Model Rule 1.5] (A) is wrong because this is not the kind of literary rights contract that is prohibited. A lawyer must not acquire literary or media rights to a story concerning the lawyer's representation of a client until after the legal matter is entirely concluded. [ABA Model Rule 1.8(d)] Here, the client is the author, and the book is about her life in prison, not about her case or her attorney's representation of her. A lawyer may represent a client in a transaction concerning literary property in which the lawyer's fee consists of a share of the ownership of the property, provided that the arrangement complies with the general rules about attorneys' fees and does not give the lawyer a proprietary interest in the subject of litigation. [Comment 9 to ABA Model Rule 1.8] (B) is wrong because a lawyer may advance litigation expenses for a client, even though he is aware that she probably cannot pay him back. ABA Model Rule 1.8(e)(2) permits the lawyer simply to pay the litigation expenses for an indigent client, even without the pretense of calling it an advance. (D) is wrong because the literary rights contract was a separate representation from, and did not concern the story of, the murder trial.

An attorney is defending her client in a civil fraud case in which it is relevant to know what advice the client received in confidence from an independent certified public accountant. The jurisdiction has no evidentiary privilege for confidential communications between accountants and their clients. The accountant telephoned the attorney and asked how he should respond to the plaintiff's lawyer's request to speak with him privately about the case. Reasonably believing that the accountant would not be harmed by refusing to talk informally with the plaintiff's lawyer, the attorney responded that if the plaintiff's lawyer subpoenaed him to testify, then he must do so, but encouraged him not to talk to the plaintiff's lawyer about the case unless under subpoena. Was the attorney's advice to the accountant proper? ANo, because the advice the accountant gave the client was not protected by an evidentiary privilege. BNo,

C The attorney's advice to the accountant was proper because the accountant acted as the client's agent in rendering accounting advice. A lawyer may request that someone other than a client refrain from voluntarily giving relevant information to another party if the person is a relative or agent of the client and the lawyer reasonably believes that the person's interests will not be adversely affected by refraining from giving the information. [ABA Model Rule 3.4(f)] Here, the attorney reasonably believed that refusing to talk informally with the plaintiff's counsel would not harm the accountant, and the accountant was the client's agent in rendering the accounting advice. (A) is wrong because it is the accountant's agency, not privilege, that affects the propriety of the attorney's advice. The lack of an evidentiary privilege does not give the plaintiff's counsel a right to talk to the accountant informally if the accountant chooses not to. (B) is wrong because the attorney did not interfere with the plaintiff's access to evidence; if the plaintiff wants to know what the accountant has to say, he can simply take the accountant's deposition. (D) is wrong because it was not improper for the plaintiff's counsel to attempt to talk informally with a third-party witness such as the accountant.

Continuously since 1910, the law firm of Alpha & Beta has practiced under that name. The founders of the firm are long dead. No partner named Beta now practices with the firm. Two partners named Alpha were practicing with the firm, but one recently left because she was appointed to the state supreme court. May the firm continue to use the name Alpha & Beta? ANo, because no partner named Beta now practices with the firm. BNo, because one partner named Alpha left the firm to enter public service. CYes, unless the firm name would be misleading. DYes, even if the firm name will mislead some prospective clients.

C The firm may continue to use the name Alpha & Beta if it is not misleading. A firm may practice under a trade name, provided that the trade name is not misleading. [Comment 5 to ABA Model Rule 7.1] (A) is wrong because a firm may continue using the name of a deceased partner. [Id.] (B) is wrong because the person who left was not a name partner. Generally, when a name partner enters public service and is not in private practice for a substantial period, the firm must cease using that person's name. [Comment 8 to ABA Model Rule 7.1] Here, the Alpha surname refers to the deceased founder and not the partner who was appointed to the state supreme court. If, however, the use of the Alpha name in the firm name would mislead potential clients (e.g., by making them think they could gain an advantage in the state supreme court by hiring that firm), then continued use of the name would violate the ethics rules. [See ABA Model Rule 7.1] (D) is wrong because the rules on firm names are subject to the more general provisions on misleading communications.

A steel company merged with an iron corporation. The state attorney general sued the steel company and the iron corporation in federal court to enjoin the merger, alleging that it was in violation of the federal antitrust laws. The federal district judge enjoined the merger, and the steel company appealed the judge's decision. The steel company's attorney, doing the legal research for the appeal, found a recent merger decision rendered by the Federal Trade Commission ("FTC") that is directly adverse to the steel company's position. FTC decisions do not control in the United States Courts of Appeal, but they are persuasive. The attorney general failed to cite the FTC decision. Must the steel company's attorney disclose it to the court? AYes, because it is persuasive authority. BYes, because the FTC decision is directly adverse to the steel company's position. CNo, because a lawyer has no obligation to volunteer facts

D

An attorney agreed to represent a wife on an hourly fee basis in securing a divorce from her husband. The husband is also represented by an attorney. Despite repeated warnings by her attorney, the wife kept pestering her attorney with telephone calls and office visits concerning inconsequential details and trifling personal complaints. When the wife was unable to contact her own attorney on the phone or in person, she would telephone her husband's attorney, and try to put her questions and complaints to him. The husband's attorney always refused to talk to his client's wife. The wife's attorney repeatedly told her not to contact her husband's attorney, but to no avail. Finally, the wife's attorney told the wife that she would withdraw unless the wife changed her ways, but the wife did not do so. The wife's attorney withdrew and sent the wife a fee bill for the total number of hours she had spent on the case. The wife

D

The state bar association has established a peer counseling program whereby lawyers who are addicted to alcohol or other drugs can receive confidential counseling from other lawyers. The bar association's ethics rule on confidential information provides that communications between the counselor lawyer and the counseled lawyer are to be treated just like confidential communications between an attorney and client. A lawyer is addicted to alcohol and is receiving peer counseling under the program from another lawyer. The lawyer is a large, strong man, and his addiction has made him subject to periodic fits of physical violence. This afternoon, during their peer counseling session, the lawyer told his peer counselor that his client had refused to pay the fees he owes, and that he intended to punch out the client the next time he got roaring drunk. From working with the lawyer over an extended period, the peer counselor b

C The peer counselor may disclose the statement even if the lawyer objects. The state ethics rule on confidentiality treats communications between a lawyer and his peer counselor just like communications between an attorney and a client. If the counselor had heard one of her clients make this threat, she could have warned the police and the intended victim. An attorney may reveal confidential information to the extent she reasonably believes necessary to prevent reasonably certain death or substantial bodily harm. [ABA Model Rule 1.6(b)(1)] Thus, the peer counselor may warn the client and the police. (A) is wrong because the peer counselor may act to prevent the lawyer from causing substantial bodily harm. The lawyer's consent is not necessary. [ABA Model Rule 1.6(b)(1)] (B) is wrong because if an attorney reasonably believes that her client (or anyone else) is about to inflict substantial bodily harm on someone, she may take steps to prevent it, even if she is not certain that the client (or other person) will do it. (D) is wrong because the state ethics rule on confidentiality equates the peer counselor relationship with the relationship between an attorney and client; thus, the ability to disclose is the same.

An attorney and a licensed real estate developer, a nonlawyer, created a partnership to serve people who want to invest in commercial real estate. The real estate developer finds promising commercial real estate projects, brings together groups of investors, and works with local planning authorities to gain approval for the projects. The attorney drafts the legal documents for the projects, assists the investors with the legal technicalities, advises the investors on their tax liabilities, and does whatever legal work the investors need in connection with management and operation of the projects. The attorney and the real estate developer charge the investors a single fee for their work, and they divide the partnership profits 50%-50%. Is the attorney subject to discipline? ANo, provided the investors give informed consent to the potential conflicts of interest, and such consent is confirmed in writing. BNo, because

C The attorney is subject to discipline because she and the real estate developer are partners in the business described in the question. A lawyer is prohibited from entering into a partnership with a nonlawyer if any of the partnership activities constitutes the practice of law. [ABA Model Rule 5.4(b)] The rationale and social policy behind this Rule have been sharply questioned, but the ABA has not abandoned its traditional distrust of partnerships with nonlawyers. [See Hazard & Hodes, §45.7] (A) is wrong because although there are potential conflicts here in that the attorney appears to work partly for the investors and partly for the developer and herself in putting the real estate projects together, informed consent, confirmed in writing, by the investors will solve these conflict issues. In any event, the attorney is still subject to discipline for entering into the partnership with a nonlawyer. (B) is wrong because the division of responsibility does not solve the partnership with a nonlawyer problem. (D) is wrong because the developer is not engaging in activities that could be construed as practicing law. All of the legal work (i.e., work calling for the professional judgment of a lawyer) is done by the attorney.

A law student is applying for admission to the State A Bar. When the law student was in high school, he and his parents lived in State B. His next door neighbor was an attorney admitted to practice in State B, but not in State A. The attorney knew that during the law student's senior year in high school, he was convicted of burglarizing a liquor store. After serving his sentence, the law student went to college and later to law school. The attorney has had no contact with the law student since his high school years, and as far as she knows, the law student has not done anything since high school that would reflect badly on his character. The Bar of State A sent the attorney a routine questionnaire, asking a series of questions about the law student's character. The attorney does not know whether the law student disclosed the burglary conviction on his bar application, and she does not know where to contact him to fin

D

A building contractor and his attorney met with a landowner to negotiate a contract for construction of an office building on the landowner's property. The contractor, the attorney, and the landowner were the only persons present at the meeting. Ultimately, the three of them worked out a written agreement, and the contractor commenced work. However, it soon became apparent that the building site required far more preparation work than the contractor had contemplated when he agreed to the contract price. The contractor and the landowner argued about who had to pay for the additional site preparation. One important issue is whether the landowner made certain oral representations to the contractor during the contract negotiating session that the attorney attended. The contractor contends that the landowner did make the representations, while the landowner contends that he did not. The attorney was present during the ent

D

A client hired an attorney to do the legal work in connection with a complex public securities offering. The attorney agreed to do the work for a set hourly fee. The attorney did a great deal of legal research, prepared numerous memoranda of fact and law, and drafted most of the documents needed for the public offering. At that point, the client became angry with the attorney for no apparent reason and fired him. The client paid the attorney at the agreed rate for the work the attorney had done and demanded that the attorney turn over to him the papers that the attorney had prepared, including the legal and fact memoranda and the document drafts. What papers must the attorney turn over to the client? AOnly the document drafts, but not the legal and fact memoranda. BOnly the legal and fact memoranda, but not the document drafts. CNone of the papers, because the client fired the attorney. Correct DAll of the papers, e

D

An attorney regularly represented an older client in matters relating to the investment of the client's considerable wealth. The client told the attorney that he wanted to put $500,000 into a sound, income-producing investment. The attorney suggested that the two of them pool their money and talent and buy an apartment house. The attorney would put up $75,000 and do the legal work, and the client would put up $500,000 and serve as the live-in manager of the apartment house. The client enthusiastically agreed to the arrangement and told the attorney to draw up the papers. The attorney drafted an agreement between himself and the client, negotiated the purchase of the apartment house, and drafted a deed from the seller to himself and the client as joint tenants with right of survivorship. The attorney gave the client a carefully written explanation of the terms of the transaction, but he forgot to explain the significa

D

An attorney represented a landlord in a dispute with her longtime tenant, who had recently decided not to renew his lease. The landlord wanted to retain the security deposit to pay for extensive damage to the carpeting, while the tenant insisted that the damage was normal wear and tear. The attorney and the tenant's lawyer negotiated for days, but neither party would settle for less than two-thirds of the security deposit. Finally, the landlord telephoned the attorney and said: "The tenant asked if I want to talk about the security deposit. We've known each other for years, and I think we might have better luck if we work things out ourselves." The attorney encouraged the landlord to talk with the tenant if she thought it would help, but advised her not to finalize any agreement until both parties could consult with their respective counsel. The landlord and tenant had a productive discussion. The following day, the

D

An attorney was a widely admired, highly compensated trial attorney in solo practice. He represented clients in all types of civil and criminal litigation, mostly in high-profile cases that drew a lot of media attention. The governor of the state where the attorney practiced had been harshly criticized for appointing appellate judges who lacked significant experience as trial counsel. Hoping to silence his critics, the governor appointed the attorney to serve out the remaining seven years of a recently deceased supreme court justice's 12-year term. After the seven years, the attorney can run for election to a new 12-year term. Before taking the oath as judge, the attorney sold his entire law practice-books, client files, office lease, furniture, and goodwill-to another lawyer. The attorney gave appropriate advance notice to the clients, and the purchasing lawyer covenanted that he would not raise their legal fees. A

D

For the past five years, an attorney has represented an art dealer in the sale of many valuable paintings. One of the major transactions occurred three years ago, when the art dealer sold a landscape purportedly painted by Vincent van Gogh to an art museum for $23 million. The museum subsequently resold the painting for $35 million. Now the art dealer has asked the attorney to do the legal work in connection with the sale of another landscape, also a purported van Gogh. The proposed purchase price is $12 million, and the prospective purchaser is a wealthy television personality who knows nothing about art. During a confidential conversation in the attorney's office, the attorney asked the art dealer if he had appraisal letters certifying the painting as a genuine van Gogh. The art dealer replied that he indeed had letters-letters he had forged himself-and that he had also forged the letters for the purported van Gogh

D

A full-time trial judge, in addition to her judicial work, is the chief executive officer of a corporation that is closely held by the judge and her three brothers. The corporation owns and operates a nursing home. Because of strong anti-gay religious beliefs on the part of residents, the nursing home does not employ gay people. The judge's responsibilities for the corporation do not interfere with her judicial duties. Is it proper for the judge to continue as chief executive officer of the corporation? AYes, because a judge is only prohibited from associating with an organization that practices invidious discrimination on the basis of race, sex, religion, or national origin. BYes, because the management of the family-owned business does not take so much time that it interferes with the judge's judicial CNo, because a judge is not allowed to serve as an officer, director, manager, general partner, advisor, or employ

D A judge may not be affiliated with an organization that practices invidious discrimination on the basis of race, sex, gender, religion, national origin, ethnicity, or sexual orientation. [CJC Rule 3.6] The corporation excludes gay people who are otherwise qualified, making it improper for the judge to continue as chief executive officer. (A) is incorrect because it fails to include sexual orientation discrimination. (B) is incorrect because, as discussed above, the judge's remaining an officer in the corporation would be improper even if the time it took did not interfere with her judicial duties. (C) is incorrect because it is too broad; CJC Rule 3.11(B) allows a judge to be involved with a business that is closely held by the judge or her family.

A man walked into an attorney's office and explained that he is a dealer of illegal drugs, that one of his sales associates has just been arrested, and that he would like the attorney to defend the sales associate. The drug dealer offered to leave a $10,000 retainer comprised of a shoebox of $100 bills. The attorney was uncertain about getting involved with the drug dealer and especially about accepting a large sum in cash from the dealer. The attorney told the dealer that he would think about his request and would let him know later that day. When the drug dealer left the office, the attorney telephoned his friend and mentor, a retired judge. The attorney told the judge the entire story, including the dealer's name, and asked the judge whether it would be ethical to defend the sales associate and accept the dealer's cash. Is the attorney subject to discipline for telling the judge the whole story? AYes, because the

D ABA Model Rule 1.6(b)(4) and comment 9 explain that a lawyer may reveal information that would otherwise be confidential if the lawyer's purpose is to obtain legal advice about complying with the legal ethics rules. (A) is wrong because the applicable doctrine here is the ethical duty of confidentiality, not the attorney-client privilege, and the ethical duty contains the exception described above. (B) is wrong because the exception to the ethical duty would apply in this situation, whether or not the attorney identified the dealer by name. As a practical matter, however, a lawyer who discloses confidential information to obtain legal ethics advice may wish to couch the information hypothetically, in order to minimize the chance of harm to the client. [See comment 4 to ABA Model Rule 1.6] (C) is wrong because the exception to the ethical duty would apply in this situation whether the drug dealer or the sales associate is regarded as the client.

A young associate was assisting a senior partner in writing the reply brief in an appeal for one of the partner's clients. In doing the legal research, the associate discovered a recent case from the controlling jurisdiction that had not been cited in the adversary's brief. In the associate's opinion, the case was directly opposed to the position of the partner's client. The associate asked the partner about citing it in the reply brief, but the partner explained that, in his view, the case was not directly on point and did not have to be cited. The associate and the partner argued back and forth at some length and finally decided to submit the question to one of the other senior partners in the firm for a fresh view. That partner sided with the other partner, and the reply brief was filed without mentioning the case. May the associate write a short letter to the appellate court and the adversary lawyer, explaining h

D The associate should abide by the partner's resolution of the matter. A subordinate lawyer does not violate the Rules of Professional Conduct by acting in accordance with a supervisor's reasonable resolution of an arguable question of professional duty. [ABA Model Rule 5.2(b)] Here, it seems clear that the question was arguable because the third attorney called in to determine the relevance of the case also felt it was not on point. (A) is wrong because the associate only has a duty to call the case to the court's attention if the case is directly on point. That is a debatable question, and the associate's supervisors have determined the case is not directly on point. Thus, the associate need not reveal the case. (B) is wrong because this is not the situation intended to be addressed by the rule against allowing a third party to influence the lawyer's judgment, which usually arises when a third party pays the lawyer's fees to represent another. Of course, a subordinate lawyer should be influenced by his supervisor. That is not an excuse for clearly unethical conduct, but on a debatable issue, such as the one presented here, the subordinate lawyer is free to defer to the supervisor's judgment. (C) is wrong because in most jurisdictions a lawyer may communicate in writing with the court about the merits of a pending case if he sends a copy to opposing counsel. This communication is not considered ex parte. [See Restatement §113, comment c]

An attorney has organized his law practice as a professional corporation. The attorney is the sole shareholder. The sign on the office door states: "Professional Corporation- Attorney at Law" "Corporate and Business Law, " "Torts and Domestic Relations" The attorney has one lawyer-employee, who was admitted to practice two years ago. The attorney pays his employee a modest monthly salary plus 60% of the fees collected in cases that the employee handles by herself. The attorney has a general business practice and is not a certified specialist in any practice area. When a client needs representation in a tort or domestic relations matter, the attorney turns the case over to his lawyer-employee. When the attorney turns a case over to the employee, he provides general guidance and is available to answer any questions she may have, but he does not supervise every step she takes. Is the attorney subject to discipline? AYe

D The attorney is not subject to discipline. Because the employee is a lawyer-employee of the attorney, she is regarded as being "in the same firm." She and the attorney are thus allowed to split fees without complying with the rules that govern fee splits between lawyers who are not in the same firm. [ABA Model Rule 1.5(e)] (A) is wrong for the reason just stated. (B) is wrong because no Rule requires the attorney to supervise the lawyer-employee at every turn, so long as he takes reasonable steps to assure that she performs her work competently and otherwise within the bounds of legal ethics. [See ABA Model Rule 5.1-supervisory duties of lawyers within a firm] (C) is wrong; a law firm may state particular fields of law that the firm's lawyers handle. [ABA Model Rule 7.2, comment 9]

Two years ago, an attorney represented his client when he sold his property. Unbeknownst to the attorney, the client made some fraudulent statements to the buyer about the value of some mineral deposits on the property. The buyer recently discovered the fraud and is now in the attorney's office threatening to immediately file a civil fraud suit against both the client and the attorney. The buyer accuses the attorney of engineering the fraud and helping his client carry it out. The only way that the attorney can convince the buyer that he had no part in the fraud is to tell the buyer a fact that the client disclosed to him in the deepest confidence when he was working on the property transaction. May the attorney disclose the fact without the consent of the client? ANo, if doing so will harm the client. BNo, because doing so would breach his duty of confidentiality to the client. CYes, but only after the buyer files

D The attorney may reveal the confidence even if doing so will subject his client to civil or criminal liability. A lawyer may disclose a client's confidence "to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved . . . ." [ABA Model Rule 1.6(b)(5)] Although the lawyer must wait until the assertion of misconduct arises, he need not await the filing of a formal charge or complaint. The lawyer may defend himself by responding directly to a third party who has made such an assertion. [See Restatement §64, comment c] (A) is wrong because the lawyer may disclose the fact even if doing so harms the client. (C) is wrong because the lawyer need not wait for the complaint to be filed, as explained above. (B) is wrong because it ignores the self-protection exception to the general rule of confidentiality.

A man alleges that a very wealthy actor punched him in the face. He contacted an attorney about representing him in a civil action against the actor. After several lengthy discussions with the attorney about the merits of the case, the man decided to employ another lawyer instead. The actor was later charged with criminal assault in connection with this incident, and the trial was televised. As the attorney was watching the trial, she was astonished when the man testified to facts that the attorney knew from their previous discussions to be false. The attorney sent a letter with a messenger over to the court to notify the court that the man had perjured himself. Were the attorney's actions proper? AYes, because her actions were necessary to prevent the man from perpetrating a fraud on the court. BYes, because the man committed a criminal act by testifying falsely. CNo, unless she sent copies of the letter to the pro

D The attorney's actions were not proper because her information was gained from a confidential lawyer-client communication. [See ABA Model Rule 1.6] It was both privileged and confidential, and could be disclosed only if one of the exceptions to the duty of confidentiality applies. None of the exceptions applies here. The fact that the man did not hire the attorney to represent him does not affect her duty of confidentiality; he was seeking legal advice and representation when he spoke to her. [See ABA Model Rule 1.18(b)] (A) is wrong because there is no exception to the duty of confidentiality to prevent a fraud on the court when the lawyer is not appearing before the court. (B) is wrong because this too does not fit within any exception to the duty of nondisclosure. A lawyer may reveal confidential information to the extent she reasonably believes necessary to prevent, mitigate, or rectify substantial injury to the financial interests of another that is reasonably certain to result or has resulted from the client's commission of a crime or fraud, if the client has used the lawyer's services in furtherance of such crime or fraud. [ABA Model Rule 1.6(b)(3)] Here, the facts do not indicate that the man used the attorney's services in furtherance of his perjurious testimony. Thus, although the perjury could result in substantial injury to the actor's financial interests, the attorney is not permitted to reveal the confidential information. (C) is wrong because it states the rule for an ex parte communication to the judge by one of the parties. Here, the attorney does not represent one of the parties. Furthermore, the information is confidential and cannot be disclosed to the disadvantage of the client regardless of whether the attorney sends copies to all parties.

An author wrote a best-selling novel based on the life and crimes of John Dillinger, the famous bank robber. The author sold the movie rights to a film producer, who promised to pay the author a lump-sum royalty of $5 million upon the release of the movie. After the producer hired an actor to play the lead role and made other expensive preparations for filming, the author repudiated the contract. The producer hired an attorney to sue the author for a declaratory judgment that the contract was valid and enforceable. At the producer's request, the attorney agreed to do the legal work on a contingent fee basis: If the producer wins, the attorney will be paid 1.75% of the gross receipts from the movie, but if the producer loses, the attorney will be paid nothing. The producer and the attorney entered into a written fee agreement that contains all the details required by the rules of legal ethics. Which of the following s

D The attorney's fee agreement is proper even though it gives the attorney a personal interest in the subject of the litigation. The attorney has acquired a personal interest in the movie, which is in one sense the real subject of the litigation. However, the rule against acquiring a personal interest in the subject of litigation has an exception that allows a lawyer to represent a client for a contingent fee. [ABA Model Rule 1.8(i)(2)] (A) is wrong because the rule on literary rights contracts covers only literary works based in substantial part on information relating to the representation. Here, the movie concerns John Dillinger, not the producer. [See ABA Model Rule 1.8(d)] (B) is wrong because, as discussed above, a lawyer may acquire an interest in the subject matter of the litigation in the form of a contingent fee. (C) is wrong because the fee agreement between the producer and the attorney does not require the author's informed consent. The author is not a current or former client of the attorney, and the author has no apparent interest that would cause the attorney a conflict and force him to disclose and explain the material risks and available alternatives and obtain the author's consent.

An elderly widower has one living child, a daughter. The widower's main asset is a 51% partnership interest in a wealthy real estate syndicate that owns and operates mobile home parks throughout the state. The daughter's husband is an attorney. One of the husband's regular clients asks the husband to represent him in negotiating the sale of 3,000 acres of roadside property to the real estate syndicate. The real estate syndicate is represented by its own lawyer in the matter. May the husband represent his regular client in a sale with the real estate syndicate? ANo, even if the client gives informed consent, confirmed in writing. BNo, because to do so would create an appearance of impropriety. CYes, because the husband has no significant personal interest in the real estate syndicate. DYes, but only if the client gives informed consent, confirmed in writing.

D The husband may represent his regular client if the client gives informed consent, confirmed in writing, to the representation. His wife is likely to inherit her father's interest in the real estate syndicate. That gives the husband a personal interest in the real estate syndicate, albeit an attenuated interest. If the husband is to represent his regular client in selling land to the real estate syndicate, he must first disclose his personal interest to the client. If the client gives informed consent, confirmed in writing, then the husband may represent the client. [ABA Model Rule 1.7(b)] (A) is wrong because informed, written consent will solve the potential conflict of interest. (B) is wrong because informed consent, confirmed in writing, will solve the conflict problem. Furthermore, the "appearance of impropriety" is not a basis for discipline or disqualification under the ABA Model Rules. This is an outdated concept from the old ABA Model Code. (C) is wrong because the husband's personal interest is significant, even though it is remote.

An attorney is admitted to practice only in State A, where he specializes in securities and real estate finance law. In that role, the attorney advised his client that the law of State B did not require the client to include information about certain mineral rights in a disclosure statement that the client had to file in State B in order to sell some real estate limited partnership interests to State B citizens. Acting on the attorney's advice, the client did not disclose the information and did sell partnership interests to State B citizens. Later, the attorney became a full-time trial court judge in State A. Later still, State B brought a criminal action against the client for failing to disclose the mineral rights information in his State B disclosure statement. One of the client's defenses is that he lacked the necessary criminal intent because he was acting in good faith based on the advice of his counsel, the a

D The judge may testify because he is testifying to facts, not the defendant's character. CJC Rule 3.3 prohibits a judge from testifying voluntarily as a character witness, but it says nothing about serving as an ordinary fact witness. (A) is wrong because there is no such rule. Judges are not disqualified from testifying in criminal cases. (B) is wrong because a lawyer need not be admitted to practice in State B in order to advise a client about State B law. Even if that were untrue, the judge's testimony would still be admissible as evidence of the client's lack of criminal intent. (C) is wrong because it states a nonexistent rule. While a judge is not competent to be a witness at a trial over which he himself is presiding [see Fed. R. Evid. 605], no rule forbids a judge from serving as an ordinary fact witness in a case that is pending before a different judge in his own court or a court that is under his court's appellate jurisdiction.

A patent attorney focuses her practice on patents that involve genetically engineered medicines. Representatives of a bioengineering firm had a preliminary conversation with the attorney about representing the bioengineering firm in a patent infringement action against a pharmaceutical corporation. The attorney had never represented either company previously. The bioengineering firm's representatives talked to the attorney for more than an hour about the bioengineering firm's patent and about the pharmaceutical corporation's supposedly infringing product. This conversation covered only public information, nothing confidential. The bioengineering firm's representatives detected a distinct lack of enthusiasm from the attorney, and they ended the conversation cordially but without hiring her. In due course, the bioengineering firm hired a different patent attorney and sued the pharmaceutical corporation for patent infri

D ABA Model Rule 1.18 provides that a lawyer must not use or reveal confidential information of a prospective client. [See also ABA Model Rule 1.6] Here, the information communicated to the patent attorney was not confidential; thus, the patent attorney's undertaking representation of the pharmaceutical corporation did not create a concurrent conflict of interest-there is no significant risk that the representation of the pharmaceutical corporation would be materially limited by the patent attorney's responsibilities to the bioengineering firm. Consequently, the patent attorney may continue to represent the pharmaceutical corporation. (A) is wrong because it does not matter that the bioengineering firm previously consulted the patent attorney on the same matter if the patent attorney did not obtain any confidential information that would limit her representation of the pharmaceutical corporation, and she does not breach any duty owed to the bioengineering firm. (B) is wrong for the same reason as (A)-even if the infringement suit is substantially related to the patent attorney's conversation with the bioengineering firm's representatives, unless the patent attorney obtained confidential information from the bioengineering firm, she may represent the pharmaceutical corporation. (C) is not as good as (D) because (C) is general, while (D) is specifically on point. Here, the patent attorney did not get any material confidential information from the bioengineering firm's representatives during the preliminary conversation, but if she had, she would be subject to disqualification as defense counsel, even though the bioengineering firm never became the patent attorney's actual client.

A prospective client comes to a law office seeking a lawyer to defend him in a civil action for aggravated assault and battery. An attorney agrees to talk preliminarily with the client, just to obtain enough background information to decide whether she can defend him. The client explains that he has an alcohol problem; indeed, he gets roaring drunk about three nights a week. On the night in question, the client said that a loud-mouthed stranger in his neighborhood tavern made a derogatory comment about the client's favorite basketball team. The client responded by "tapping" the stranger over the head with a pool cue, not once but four times. At that point, the attorney suddenly realizes that the client must be the rotten husband in the hotly disputed divorce and child custody case in which her law partner is representing the aggrieved wife. The attorney stops the client and tells him that she cannot defend him in the

D This question is governed by ABA Model Rule 1.18, which concerns duties to a prospective client. The information that the attorney obtained about the prospective client's alcohol abuse and his violent response to the stranger's comment could be harmful to the prospective client if the wife uses it to help prove that the couple should be divorced and that the prospective client should not be given custody of their children. Therefore, the attorney herself could not represent the wife in the divorce and child custody case. [See ABA Model Rule 1.18(c)] The attorney's disqualification is imputed to her law partner. [Id.] However, if the conditions mentioned in (D) are satisfied, then her law partner may continue representing the wife. [See ABA Model Rule 1.18(d)(2)] (C) is wrong because it calls for informed consent by the wife only. ABA Model Rule 1.18(d)(1) would require informed consent, confirmed in writing, from both the prospective client and the wife. (B) is wrong because the two matters are "substantially related" [ABA Model Rule 1.18(c)] in that use of the information that the prospective client disclosed to the attorney could be harmful to the prospective client if used in the divorce and child custody case. (A) is wrong because it ignores the two possible ways that would allow the law partner to continue representing the wife. [ABA Model Rule 1.18(d)(1), (2)]

An attorney was appointed by the court to defend a client at his criminal trial for second degree murder. The attorney started interviewing potential witnesses. When she interviewed the client's landlord, the landlord said that on the night of the murder, the client came home very late and was wearing a shirt covered with blood. The landlord died before trial without speaking to state authorities. Which of the following best states what the attorney should do with respect to the information she has learned from the landlord? AThe attorney should voluntarily reveal the information to the prosecutor prior to trial because the death of the landlord has made it impossible for the prosecutor to obtain the information in any other way. BThe attorney should urge the client to allow her to reveal the information to the prosecutor, and if the client refuses, the attorney should withdraw. CThe attorney should keep the informa

DThe attorney should use her own best judgment about how to treat the information; it is neither prThe attorney should keep the information in confidence unless the client authorizes her to reveal it, even though the death of the landlord has made it impossible for the prosecutor to obtain the information other than from the attorney. The attorney obtained this information from the landlord in the course of representing her client; therefore, it is subject to the attorney's duty of confidentiality. Absent the consent of the client, a lawyer must not reveal any information relating to the representation of the client. [ABA Model Rule 1.6] (A) is incorrect because a lawyer has no ethical obligation to reveal harmful facts, and, in fact, may be disciplined for doing so. (B) is incorrect because, as noted above, there is no duty to reveal this information; thus, there is no obligation to urge the client to reveal the information or withdraw. (D) is incorrect because this information is confidential. The ethical duty of confidentiality covers more kinds of information than the attorney-client privilege, which covers only confidential communications between the lawyer and client. The ethical duty of confidentiality covers any information the lawyer obtains relating to the representation of the client, no matter what the source of the information.

An inventor asked a patent attorney to represent him in obtaining a patent on a new computer technique for predicting the growth patterns of tumors in the human body. The attorney informed the inventor that he had never worked on that kind of patent application before, and that he would have to do extensive background research on the patentability of computer techniques. The attorney will be able to use the knowledge that he gains through the research to serve other clients who wish to obtain patents for all manner of other computer techniques. The attorney offered to do the work for the inventor for his standard hourly rate, but the inventor proposed instead to assign the attorney a 10% interest in the patent, if and when it was issued. The attorney agreed to do the work on that basis, and he and the inventor entered into an appropriate written fee agreement. The attorney did the work; the patent was ultimately issu

The attorney is not subject to discipline because $9.7 million is within the bounds of reason as a fee for the work the attorney did. [See ABA Model Rule 1.5(a)] Among the various factors that point to the reasonableness of the attorney's fee are: the novelty and difficulty of the patentability issue, the fact that the inventor was the one who suggested the fee arrangement after having been offered a standard hourly fee, the value of the result that the attorney obtained for the inventor, and the contingent nature of the arrangement, which imposed a high risk on the attorney. (A) is wrong because a lawyer is prohibited from acquiring a proprietary interest in the subject of litigation he is conducting [ABA Model Rule 1.8(i)], and obtaining a patent is not litigation. Even if this were a litigation case, the contingent fee exception to the rule would apply. [ABA Model Rule 1.8(i)(2)] (B) is wrong because a fee that is otherwise reasonable does not become unreasonable simply because the lawyer can use the knowledge gained to earn fees from other clients. (C) is wrong because the mere fact that the client agreed to the fee arrangement does not by itself make the fee reasonable. Many factors, including the time, labor, and skill required to do the job, are considered in determining whether the fee is reasonable. [ABA Model Rule 1.5(a)]

An attorney is one of only nine lawyers who practice probate law in a particular county. In that county, all probate matters go before a single judge-the probate judge. The probate judge's duties include appointing counsel for the administrators of intestate estates. Serving as an administrator's counsel can be very lucrative. The incumbent probate judge recently retired. Her custom was to appoint out-of-county lawyers to serve as administrators' counsel, believing that such lawyers are less subject to local political and social pressures than county lawyers. The probate judgeship will be filled in six months in a partisan, contested election, and the attorney is one of the candidates. The attorney met jointly with the county's eight other probate lawyers and said he was seeking the probate judgeship, and would be making some important changes, such as appointing only local lawyers as counsel for administrators of in

The attorney is subject to discipline under CJC Rule 4.1(A)(8), which prohibits a judicial candidate from personally soliciting campaign contributions or publicly stated support. The five lawyers who contributed money will be subject to discipline if the attorney wins and if they accept appointments from him. [See ABA Model Rule 7.6] (B) is wrong because the attorney is subject to discipline under CJC Rule 4.1(A)(8), as noted above. The second sentence of (B) is wrong because it overstates the constraints on a lawyer's participation in a judicial campaign. (C) is wrong because the five lawyers who contributed money violated ABA Model Rule 7.6, as noted above. The first sentence of (C) is a misapplication of CJC Rule 4.1(A)(13), which prohibits a judge from making pledges or promises that are inconsistent with the impartial performance of the judge's adjudicative duties "in connection with cases, controversies, or issues that are likely to come before the court." Here, the policy regarding whom the probate judge will appoint as administrators' counsel is not the kind of litigation issue to which the highlighted language of CJC Rule 4.1(A)(13), above, refers. The second sentence of (C) is wrong because the motive of the five money contributors was to obtain appointments if the attorney won. [See ABA Model Rule 7.6] (D) is wrong because a lawyer who runs for a judicial post must follow the CJC. [See CJC Rule 4.1, comment 2] The second sentence of (D) is wrong because ABA Model Rule 7.6 trumps whatever privacy rights one can find in the peripheral glow of the First and Fourteenth Amendments.

An attorney was appointed by the court to defend a client at his criminal trial for second degree murder. The attorney started interviewing potential witnesses. When she interviewed the client's landlord, the landlord said that on the night of the murder, the client came home very late and was wearing a shirt covered with blood. The landlord died before trial without speaking to state authorities. Which of the following best states what the attorney should do with respect to the information she has learned from the landlord? AThe attorney should voluntarily reveal the information to the prosecutor prior to trial because the death of the landlord has made it impossible for the prosecutor to obtain the information in any other way. BThe attorney should urge the client to allow her to reveal the information to the prosecutor, and if the client refuses, the attorney should withdraw. CThe attorney should keep the informa

The attorney should keep the information in confidence unless the client authorizes her to reveal it, even though the death of the landlord has made it impossible for the prosecutor to obtain the information other than from the attorney. The attorney obtained this information from the landlord in the course of representing her client; therefore, it is subject to the attorney's duty of confidentiality. Absent the consent of the client, a lawyer must not reveal any information relating to the representation of the client. [ABA Model Rule 1.6] (A) is incorrect because a lawyer has no ethical obligation to reveal harmful facts, and, in fact, may be disciplined for doing so. (B) is incorrect because, as noted above, there is no duty to reveal this information; thus, there is no obligation to urge the client to reveal the information or withdraw. (D) is incorrect because this information is confidential. The ethical duty of confidentiality covers more kinds of information than the attorney-client privilege, which covers only confidential communications between the lawyer and client. The ethical duty of confidentiality covers any information the lawyer obtains relating to the representation of the client, no matter what the source of the information.

An attorney volunteers her legal services one night each week at a county legal advice hotline. The hotline is run under the auspices of the superior court, and it supplies free legal advice by telephone to callers who could not otherwise obtain legal services. Every caller assents to a "Statement of Understanding" at the outset of the call, informing the caller of the limited nature of the legal services that the hotline provides. Eighty-five lawyers volunteer their services as the attorney does. They come to the hotline office at various times on various days, and the volunteers hardly ever see or talk with each other. The nature of the hotline's work makes it impossible for the lawyers to conduct the kind of conflict-of-interest checks that an ordinary law firm would conduct before taking on a new client. One Tuesday night, the attorney counseled a distraught mother about her husband's physical and mental abuse of

The county legal advice hotline is the kind of operation envisioned in ABA Model Rule 6.5. Under ABA Model Rule 6.5, walk-in legal clinics, advice-only clinics, legal advice hotlines, and the like are not held to the high conflict-of-interest standards that govern ordinary law offices. Legal hotlines, walk-in clinics, and similar providers of quick legal service typically operate under conditions that make it difficult or impossible to conduct ordinary conflict-of-interest checks. Under ABA Model Rule 6.5(b), the second lawyer would be subject to discipline only if he actually knew that the first attorney had previously counseled the mother of the abused children. A lawyer's actual knowledge can be inferred from the circumstances [ABA Model Rule 1.0(f)], but the question does not mention any circumstances from which an inference could be made that the second lawyer had actual knowledge. (A) is wrong because it fails to account for ABA Model Rule 6.5. (C) is wrong because, absent actual knowledge of a conflict, the rule of imputed disqualification does not apply between two lawyers in a quick-legal-service program. [Seecomment 4 to ABA Model Rule 6.5] (D) is wrong because both the mother and father were "clients" of the respective lawyers who advised them. [Comment 1 to ABA Model Rule 6.5] This is important because ABA Model Rule 6.5 loosens only the conflict-of-interest rules, not other aspects of the lawyer-client relationship, such as the duty of competence, the duty of diligence, and the duty of confidentiality.

The mother of a full-time trial judge owns a small business that she wishes to sell. After she and a prospective buyer come to terms on the sale, the buyer has his lawyer draw up a sales contract and presents it to the judge's mother, who asks her son, the judge, to review it for her. The judge agrees, marks up the contract, and returns it to his mother to present to the buyer's attorney. The judge's mother did not tell the buyer that her son reviewed the contract. The buyer has no known reason for being likely to appear in the judge's court. Were the judge's actions proper? AYes, because the buyer is not likely to appear in the judge's court in the future. BYes, because he did not charge his mother a fee. CNo, because a full-time judge is not permitted to practice law. DNo, because the judge's identity was not disclosed to the buyer or the buyer's attorney.

The judge's actions were proper because he did not charge his mother a fee. Although a full-time judge may not practice law, there is an exception for this type of transaction. A judge may, without compensation, give legal advice to, and draft and review documents for, a member of the judge's family. [CJC Rule 3.10] (A) is wrong because whether the buyer might appear in the judge's court does not affect the judge's ability to prepare documents for his mother. If the buyer does appear in his court, the judge's participation in that proceeding will be evaluated at that time in light of the facts. (C) is wrong because, as stated above, there is an exception for reviewing documents for relatives without compensation. (D) is wrong because, although the judge cannot act as a negotiator, there is no requirement that his identity as the person who made the revisions be kept a secret.