PR

An attorney represented a criminal defendant in a murder prosecution, in which the defendant could receive the death penalty if convicted. The attorney assiduously pursued pretrial discovery and motions to exclude prosecution evidence. Nevertheless, the defendant confessed to the murder, against the attorney's specific advice. A sense of hopelessness set in for the attorney, and he began to curtail his efforts in the representation. The situation deteriorated even further when the defendant again ignored his attorney's advice and waived his right to a jury trial, and then entered a guilty plea to all charges, including the capital murder charge. The attorney then instructed the defendant to request an advisory jury at his capital sentencing hearing, which was permissible in that jurisdiction, but the defendant again rejected the advice and opted for sentencing by the trial judge without a jury recommendation. At this point, the attorney made only token efforts to prepare for the sentencing hearing, and he gathered no evidence regarding the defendant's character or emotional state. The defendant himself argued for leniency based on his lack of prior convictions, but this proved unsuccessful, and the judge sentenced him to death. On appeal, the defendant claimed that he had received ineffective assistance of counsel. Which of the following best describes the test an appellate court would use in deciding whether to grant postconviction relief? (A) The defendant must show that his counsel did not use the best possible strategy to refute the evidence of guilt and that that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different, that is, it undermines confidence in the outcome. (B) The defendant must only show that his lawyer's performance did not meet the highest standards of excellence in the legal profession, and that there is some possibility that his lawyer's "less-than-the-best" performance impacted the ultimate outcome of the case, including the sentence received and results on appeal. (C) The defendant must show that counsel's representation fell below an objective standard of reasonableness, using a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance, and the defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different, that is, it undermines confidence in the outcome. (D) The defendant must show that counsel's representation fell below an objective standard of reasonableness, using a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance, and the defendant must show that he might have received a better result if his attorney had applied more effort, or if another attorney had represented him. Pages 197-209 of Lerman, Ethical Problems in the Practice of Law, Concise Fourth Edition

The defendant must show that counsel's representation fell below an objective standard of reasonableness, using a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance, and the defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different, that is, it undermines confidence in the outcome.

Attorney Avery represented a defendant in a criminal case involving serious felony charges. After the defendant rejected all proffered plea bargains from the prosecutor, he insisted upon a jury trial and volunteered to testify at his trial to assert his innocence. Attorney Avery knew that it would be a strategic mistake for his client to testify, for several reasons. First, the defendant had initially confessed to the crime, but Attorney Avery managed to have the confession excluded due to a technical defect in the Miranda warnings. Avery was now worried that the otherwise excluded confession would become admissible for impeachment purposes if the client testified and presented a contradictory version of the facts. The defendant also had a long record of prior convictions involving fraud and larceny, which would otherwise be inadmissible at trial but would become admissible to impeach the defendant's credibility if he testified. Even worse, Attorney Avery had confidential information that the client committed several related crimes to those charged in the case, and the prosecutor might elicit testimony implicating the client in these additional crimes during cross-examination. The prosecutor in the case was notorious for aggressive cross-examination of witnesses at trial and even teaches special training courses to other litigators on how to conduct merciless, devastating cross-examination. Finally, the client is not very articulate; he constantly uses street slang, gratuitous profanity, and incorrect grammar when speaking. This conduct would likely alienate some jurors. Attorney Avery explained all of this to the defendant, and then reminded the defendant that he already rejected several generous plea offers and would forfeit any chance of winning at trial due to his insistence about testifying. Attorney Avery concluded by saying, "There is no way I will allow you to testify in this case; it would be malpractice on my part." The client understood this to mean that he had no choice, so he gave up. The trial went well and the jury acquitted the defendant of all charges. Would Attorney Avery be subject to discipline under these circumstances? (A) Yes, because he spoke angrily with his client and made unnecessary references to the client's speech mannerisms, showing extreme insensitivity and disrespect; he also deprived the client of a good opportunity to explain his side of the story about all the previous cases in which he received convictions (B) No, because clients have a right to dictate the overall objectives of the representation, but the lawyer has a right to decide the means of achieving that objective, and leaving out the client's testimony shortened the trial time and thereby reduced the legal fees the client would owe to the lawyer (C) Yes, in a criminal case, the lawyer shall abide by the client's decision, after consultation with the lawyer, as to whether the client will testify (D) No, because the defendant suffered no harm from the lawyer's decision, as the jury gave a complete acquittal, and the lawyer was clearly correct in his reasoning about why it would backfire if the defendant testified at trial Model Rule 1.2(a)

Yes, in a criminal case, the lawyer shall abide by the client's decision, after consultation with the lawyer, as to whether the client will testify

An attorney wants to retire from practice due to a chronic illness, and he decides to sell his practice to another lawyer. The sale agreement complies with the Model Rules regarding the sale of a law practice. As part of the sale agreement, however, the attorney stipulates that he will not resume the practice of law in that jurisdiction, even if medical breakthroughs cure his chronic illness and restore him to perfect health. The purchaser of the firm is aware that research for a cure of the attorney's illness is well underway, and he is concerned because it is foreseeable that the attorney would recover and want to return to the practice of law in a few years. Is it proper for the attorney and his buyer to include this provision of the sales agreement for the law firm? a) Yes, because the rule against restrictions on the right to practice does not apply to the sale of a law practice. b) No, because a lawyer shall not participate in offering or making an agreement that restricts the right of a lawyer to practice. c) No, because a lawyer shall not participate in offering or making an agreement in which a restriction on the lawyer's right to practice is part of the settlement. d) Yes, because the Contracts Clause of the U.S. Constitution would prohibit a state from restricting the right for a lawyer to include certain contract provisions in a sale agreement. Rule 5.6 Cmt 3

a) Yes, because the rule against restrictions on the right to practice does not apply to the sale of a law practice

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

b) Yes, because a lawyer who knows of a violation of the Rules that raises serious questions about the other attorney's honesty must report it to the state disciplinary authority.

Bonnie and Clyde are co-defendants, facing felony charges for a string of armed robberies. Attorney Abbott represents the two of them together. The District Attorney has a theory that Bonnie planned the crime and was the only one carrying a weapon, while Clyde helped collect the money during the robbery and drove the getaway car. This prompts the District Attorney to offer Clyde a plea agreement—if Clyde will plead guilty to a misdemeanor and then testify against Bonnie, he will receive a minimal amount of jail time. Attorney Abbott is loyal to both clients, so he insists that Clyde reject the District Attorney's offer. Which of the following is true regarding Attorney Abbott's ethical duties? (A) Attorney Abbott should balance the interests of both clients, and taken together, should discourage Clyde from testifying against Bonnie if the potential increase in Bonnie's sentence would exceed the reduction in Clyde's sentence. (B) Attorney Abbott can ethically represent Bonnie and Clyde with the informed consent, confirmed in writing, of both clients. (C) As soon as plea negotiations involving Clyde's options started, Clyde should have had independent counsel representing him. (D) Attorney Abbott should advise Clyde to testify against Bonnie, because as Bonnie's counsel, he should be able to offset the unfavorable testimony coming from his other client, Clyde. Rule 1.7 along with the comment

As soon as plea negotiations involving Clyde's options started, Clyde should have had independent counsel representing him.

Attorney Allison represented a small business owner, Claire, for several years. In her professional opinion, Attorney Allison believed that Claire could validly claim a deduction on state income-tax returns for Claire's internet service charges as a business expense. Nevertheless, the Allison remembered that she had read some published reports and data suggesting that claiming such deductions increased the likelihood of a tax audit. Tax audits are often costly and time-consuming, even for clients with nothing to hide, so Claire expressed dismay upon hearing this. The next day, Claire called Attorney Allison and inquired whether there was a "safe" level of charitable deductions that taxpayers like her could claim without raising any suspicion or scrutiny. Attorney Allison had known Claire since they attended college together, and she knew that Claire never gave more than a dollar at a time to any charities. Under these circumstances, which of the following best describes Attorney Allison's proper course of conduct? (A) Attorney Allison may properly warn Claire about the increased risk of an audit for claiming the business expense deduction, and she may advise Claire of any known "safe" amount for claiming charitable deductions, assuming Allison does not propose that Claire intentionally falsify information about charitable donations. (B) It would be improper for Attorney Allison to tell Claire about the increased risk of an audit for claiming the business expense deduction or to tell Claire about any "safe" amount for claiming charitable deductions, because taxpayers should report only facts on a tax return. (C) Attorney Allison should not tell Claire about the increased risk of an audit for claiming the business expense deduction, because this goes against the client's interest in lowering her tax bill, but she may advise Claire of any known "safe" amount for claiming charitable deductions, as this would help avoid unnecessary taxes. (D) Attorney Allison may properly warn Claire about the increased risk of an audit for claiming the business expense deduction, but she should not advise Claire of any known "safe" amount for claiming charitable deductions, given the reasonable likelihood that Claire plans to falsify information about charitable donations. Restatement (Third) of the Law Governing Lawyers § 94 and Rule 1.2(d)

Attorney Allison may properly warn Claire about the increased risk of an audit for claiming the business expense deduction, but she should not advise Claire of any known "safe" amount for claiming charitable deductions, given the reasonable likelihood that Claire plans to falsify information about charitable donations.

A lawyer represents Mr. Sharp in several contract dispute cases regarding services for which Sharp was paid but he did not provide. The local district attorney's office indicted Sharp on offenses related to a fraudulent investment scheme he ran. Sharp retained the same lawyer he used for the contract disputes to represent him in his criminal case as well. Sharp confided to the lawyer that he solicited and accepted money from a Ms. Mayfield, a 75-year-old widow, for a financial investment company that did not exist. Sharp explained that his construction business ran into financial troubles and he used this scheme to obtain money to pay his construction company's expenses but that he did not plan to do this again. What may the lawyer do in this situation? (A) He may disclose the information, because it involves the commission of fraud that resulted in substantial injury to the financial interests of another. (B) He may disclose the information, because a lawyer may make any disclosures that relate to anticipated fraud or crime by his client. (C) He may not disclose the information, because the client retained him to represent him on the matter and the details provided are confidential. (D) He may not disclose the information, because disclosure of the financial scheme is not reasonably certain to prevent death or substantial bodily injury. Rule 1.6

He may not disclose the information, because the client retained him to represent him on the matter and the details provided are confidential.

Attorney Simpson represents several clients in various matters before the Federal Trade Commission. In one proceeding involving one of Attorney Simpson's clients, the FTC adopts a new interpretation of a recently enacted statute about unfair trade practices, and this becomes the rule of the case. Attorney Simpson has some new clients who are at the beginning stages of an FTC inquiry of their business pertaining to the requirements of the unfair trade practices statute. Without mentioning the identity of the other client or the exact nature of the proceedings, Attorney Simpson informs the new clients that the FTC has just adopted a particular interpretation that could be very favorable to the new clients in their interactions with the agency, as long as the clients conduct certain internal audits and recordkeeping. Could Attorney Simpson be subject to discipline for sharing with new clients this information he learned during the representation of the other client? (A) No, a lawyer who learns a government agency's interpretation of relevant legislation during the representation of one client may properly use that information to benefit other clients, because it does not harm the other client (B) No, because the other clients could eventually have discovered the FTC's new interpretation of the statute without the attorney providing the information, given that some written decision of the agency ruling would eventually be available (C) Yes, because it violates public policy for lawyers to exploit government agency interpretations used against one regulatory violator to help other potential violators gain an advantage against the agency (D) Yes, because using information gleaned from representation of a client to the advantage of another client violates the lawyer's duty of loyalty, even when the lawyer uses the information to benefit a third person, such as another client Rule 1.8(b) - also look at comment 5

No, a lawyer who learns a government agency's interpretation of relevant legislation during the representation of one client may properly use that information to benefit other clients, because it does not harm the other client

An attorney worked for Big Firm for several years, during which he represented Conglomerate Corporation on several matters. At the beginning of representation in each matter, the attorney obtained written informed waiver of future conflicts of interest from Conglomerate, specifically including the possibility that the attorney might later represent the government in unrelated matters adverse to the company. The attorney eventually left Big Firm and went to work for Federal Regulatory Agency, in its enforcement and litigation division. On behalf of Federal Regulatory Agency, the attorney brought an enforcement action against Conglomerate for some very recent regulatory violations that were mostly unrelated to any previous work the attorney had performed for Conglomerate at Big Law. Would a court likely find that this attorney should be disqualified from representation in this matter? (A) Yes, because the attorney's prior experience representing Conglomerate gives him an unfair advantage in the current litigation since he is familiar with Conglomerate's litigation strategies and corporate hierarchy (B) Yes, because as a government lawyer, the attorney will presumably gain confidential government information about Conglomerate that he could use to Conglomerate's disadvantage (C) No, assuming Conglomerate ratifies its earlier waiver of future conflicts of interest (D) No, assuming the appropriate government agency gives its informed consent, confirmed in writing Rule 1.11(d)(2)(i)

No, assuming the appropriate government agency gives its informed consent, confirmed in writing

An attorney represents Conglomerate Corporation in a civil suit. During the representation, the attorney began a sexual relationship with a receptionist at Conglomerate. The receptionist's only duties are to answer the phone, route calls, take messages, and prepare outgoing mailings; she has no authority in decision-making at the company. In fact, the receptionist's only workplace communication with the attorney is when the attorney calls Conglomerate and the receptionist routes his call to the person with whom the attorney wishes to speak. Has the attorney violated the ethical rules regarding conflicts of interest by carrying on a relationship with the receptionist? (A) Yes, an attorney that represents an organization may not have a sexual relationship with anyone they speak with at the company on a regular basis, including administrative personnel. (B) Yes, attorneys shall not have sexual relationships with their clients, and when an organization is the client, the attorney shall not have sexual relationships with employees of the organization. (C) No, attorneys are not restricted from having relationships with employees of an organization the attorney represents because the employees are not the client. (D) No, attorneys are only restricted from having relationships with members of an organization who are directly or are regularly involved with the attorney concerning the organization's legal matters. Rule 1.7 and MRPC Rule 1.8(j) (comment 19)

No, attorneys are only restricted from having relationships with members of an organization who are directly or are regularly involved with the attorney concerning the organization's legal matters.

Parent retains Attorney to represent Defendant, who is Parent's 16-year-old child accused of shoplifting. Because Parent is paying for his services and because Defendant is a minor, Attorney generally communicates with Parent about the proceedings, options for disposing of the case, and other case-related issues. After speaking with Parent about a plea deal that would allow Defendant to do several community service hours and have the case dismissed, Parent advises Attorney that Defendant will take the deal. Attorney contacts the prosecutor who sends the paperwork for Defendant to complete and then cancels the court appearance, advising the court that a plea deal has been reached. Are Attorney's actions proper? (A) No, attorneys are required to continue a normal relationship with their client as much as possible, even if the client has diminished capacity. (B) Yes, minor children are considered incapacitated, and attorneys can deal solely with the parents or guardians of a minor when handling cases for the minor. (C) Yes, as long as the deal is not unreasonable to the minor, attorneys have no obligation to work directly with a client with diminished capacity. (D) No, attorneys are not required to continuously communicate with a client with diminished capacity but are required to allow the client to make the final decision on the client's case, even if client's capacity is diminished. Pages 238-240 of Lerman, Ethical Problems in the Practice of Law, Concise Fourth Edition

No, attorneys are required to continue a normal relationship with their client as much as possible, even if the client has diminished capacity.

Attorney Elkins spent several years working for Big Firm in its business litigation division. While there, Attorney Elkins represented a client in an action against Conglomerate Corporation alleging unfair trade practices and antitrust violations. Attorney Elkins eventually left Big Firm and accepted a position at a federal regulatory agency. There, Attorney Elkin's first assignment was to bring an enforcement action against Conglomerate for violating antitrust laws and unfair trade practice laws. Attorney Elkins obtained written informed consent from his previous client to pursue a related matter against Conglomerate, but not from the agency itself or from Conglomerate. Is it proper for Attorney Elkins to represent the government in an enforcement action against his prior opponent, if the matter is substantially related? (A) Yes, because the conflict of interest rules apply to attorneys leaving government service for private practice, but here, Attorney Elkins has done the opposite, going from private practice to government service (B) Yes, because the interests of Attorney Elkin's previous client and the agency align, rather than being adverse, so there is no conflict of interest (C) No, because Attorney Elkins pursued a claim on behalf of a private client, so he may not pursue the claim on behalf of the government, unless the appropriate government agency gives its informed consent, confirmed in writing (D) No, because Attorney Elkins did not obtain written informed consent from Conglomerate at the outset of the new enforcement action, even though the action is directly adverse to Conglomerate Model 1.11 comment 3

No, because Attorney Elkins pursued a claim on behalf of a private client, so he may not pursue the claim on behalf of the government, unless the appropriate government agency gives its informed consent, confirmed in writing

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

No, because Attorney Ellsberg believed the company's disposal of waste products was likely to cause serious injury to others

Attorney Groves was a well-known criminal defense lawyer and he agreed to represent Famoso, a celebrity who is a defendant in a high-profile murder case. Attorney Groves filed the proper notice with the court and the prosecutor's office that he was representing Famoso. Attorney Groves also filed a motion to exclude Famoso's confession that he gave to the police on the night of the murder while Famoso was somewhat intoxicated; the attorney's motion concedes the intoxication and contends that this nullifies the voluntariness of the confession for Fifth Amendment purposes. The news media learned that Groves was representing Famoso, and news commentators began to speculate that Famoso must be guilty if he hired such a notorious defense lawyer. Famoso was furious that anyone knew that he had hired a lawyer, which he claimed was confidential. Did Attorney Groves violate the ethical rules of confidentiality by making these disclosures without his client's express authorization? (A) Yes, because Famoso is already in the public light as a celebrity and therefore has a lower reasonable expectation of privacy, and he knew he was hiring a well-known defense lawyer (B) Yes, because a lawyer has an ethical duty to obtain express authorization from a client before taking any action that could disclose a client's confidential information (C) No, because a lawyer is impliedly authorized to make disclosures about a client when appropriate in carrying out the representation (D) No, because Attorney Groves was raising a constitutional issue in the motion that has greater importance than the duty of confidentiality to a client Rule 1.6 - comment 5

No, because a lawyer is impliedly authorized to make disclosures about a client when appropriate in carrying out the representation

Attorney Wilson has no litigation experience because she exclusively handles business transactional work. Attorney Wilson has represented Client in a number of her business transactions. In one instance, Wilson prepared a detailed non-compete agreement for Client to use with a nationally known mathematician whom Client hired to work on Client's predictive coding algorithms. After signing the agreement and working with Client's company for a short period of time, the mathematician left Client's company and began working for Client's main business rival, apparently in violation of the non-compete agreement. Client asked Attorney Wilson to bring an enforcement action against the mathematician. Wilson declined to represent Client in the litigation. Attorney Wilson reminded Client that their previous retainer agreement pertaining to the non-compete agreement specifically stated that Wilson's representation would include only the drafting and related transactional work and would not include handling litigation to enforce or nullify the non-compete agreement. Would Attorney Wilson be subject to discipline for including this provision in her agreement to represent Client? (A) Yes, because under the Rules of Professional Conduct, a client has the sole right to determine the scope of the representation (B) Yes, because the Rules of Professional Conduct forbid lawyers from preparing non-compete agreements or similar documents that limit employees' ability to practice in their field (C) No, because a lawyer may reasonably limit the scope of the representation, by informed agreement with the client, at the beginning of the representation (D) No, because Attorney Wilson has no litigation experience and could not competently have represented Client in the enforcement action Pages 219-223 of Lerman, Ethical Problems in the Practice of Law, Concise Fourth Edition

No, because a lawyer may reasonably limit the scope of the representation, by informed agreement with the client, at the beginning of the representation

Twenty years ago Attorney Abrams represented Husband in a transactional matter that involved incorporating a small business that Husband later sold. The proceeds from the sale went to fund college tuition for Husband's grown children. Wife recently retained Attorney Abrams to represent her in a divorce action against Husband. Husband and Wife both provided Attorney Abrams with informed consent, confirmed in writing, waiving any conflicts of interest. Husband barely remembered Abrams. In fact, the previous representation has no bearing on the current divorce or marital property. Wife then told Abrams, in confidence, that Husband had an extramarital affair the previous year, and this was a major factor in her deciding to file for divorce. She explained that it was very important to her that Husband's affair be a centerpiece in the divorce proceedings, as it would give her closure and help both her parents and her grown children to understand why she felt compelled to end the marriage. Attorney Abrams believed her, but found this allegation unsavory and did not want to embarrass Husband, especially given that Husband is a former client. Abrams halfheartedly filed the divorce petition without any mention of the affair, stipulated to Husband's request for a sealed record without discussing this move with Wife, and resolved the matter as discreetly as possible. Ultimately, Wife accepted the settlement recommended by Attorney Abrams but was deeply disappointed that the affair had been kept secret, with the result that her family would not believe her about the reasons she sought a divorce. Is Attorney Abrams's conduct proper? (A) No, because Wife was disappointed at the end of the case, though she consented to the final settlement (B) No, because a lawyer must act with commitment and dedication to the interests of the client and with zeal in advocacy upon the client's behalf (C) Yes, because a lawyer has an ethical duty to preserve the privacy of opposing parties (D) Yes, because a lawyer is not bound to press for every advantage that might be realized for a client Model Rule 1.7(a)

No, because a lawyer must act with commitment and dedication to the interests of the client and with zeal in advocacy upon the client's behalf

Lex Luther committed a spectacular crime that garnered media coverage, and his arrest and prosecution led to even more media attention. Atticus Finch was the criminal defense lawyer representing Lex Luther. When a reporter asked Attorney Finch for a comment on the case, Finch replied, "I'm sure the only one guilty of anything here is the media. Everyone knows my client is innocent, and that the police framed him." Were Finch's comments proper under the Model Rules? (A) Yes, because it was unlikely to have a materially prejudicial effect on an adjudicative matter (B) Yes, because a lawyer may 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 (C) No, because a lawyer should not publicly express any opinion as to the guilt or innocence of a defendant or suspect in a criminal case or proceeding that could result in incarceration (D) No, because a lawyer participating in a criminal proceeding shall not make any extrajudicial statement that the lawyer knows or reasonably should know will be disseminated by means of public communication Comment 5 to Rule 3.6

No, because a lawyer should not publicly express any opinion as to the guilt or innocence of a defendant or suspect in a criminal case or proceeding that could result in incarceration

A client committed perjury on the witness stand during his trial, but her attorney did not know it at the time. The client won her case and there was no appeal of the verdict. Sometime later, the client boasted to her attorney that she successfully lied to the court and won the case as a result. Does the attorney have an ethical duty to disclose to the tribunal that the perjury occurred? (A) Yes, because when a lawyer represents a client in an adjudicative proceeding and knows that a person has engaged in fraudulent conduct related to the proceeding, the lawyer shall take reasonable remedial measures (B) Yes, because if a witness called by the lawyer has offered material evidence and the lawyer comes to know of its falsity, the lawyer shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal (C) No, unless the judge at some later time specifically asks the lawyer if his client committed perjury (D) No, because a lawyer's duty to take remedial measures after perjury occurs continues only to the conclusion of the proceeding Rule 3.3(c) comment 13

No, because a lawyer's duty to take remedial measures after perjury occurs continues only to the conclusion of the proceeding

An attorney represented a small business client in a few transactional matters. None of the attorney's work for the client involved information about the client's finances or assets, so the attorney knew very little about the client's overall income, assets, or insurance coverage. On a wholly unrelated matter, Vick, a tort victim, approached the attorney seeking representation for a negligence lawsuit against the small business client over damage to Vick's expensive car. During the initial interview, Vick gave very few details about the accident or the scope of damages, except to identify the attorney's small business client as the intended defendant and to specify that the incident involved a scraped fender in a parking garage. The attorney believed there was no significant risk that the representation of the small business client would materially limit the attorney's responsibilities to Vick, and vice versa. Because the attorney believed there was no conflict, he did not seek consent from either party, although he mentioned to Vick that he had drafted some documents for the defendant's business, and the small business client would obviously learn about the representation of Vick when the attorney filed the lawsuit. May this attorney proceed with representing Vick in the negligence lawsuit? (A) Yes, because the attorney did not receive any relevant confidential information from either party that he could use against the other in the anticipated litigation (B) Yes, because there is no conflict when a lawyer acts as an advocate in one matter against a person the lawyer represents in another matter, as long as the matters are wholly unrelated (C) No, because the attorney already violated the rules of confidentiality by telling Vick that he had drafted business documents for the client (D) No, because absent consent, a lawyer may not serve as counsel in one matter against a person the lawyer represents in another matter, even when the matters are wholly unrelated Rule 1.7

No, because absent consent, a lawyer may not serve as counsel in one matter against a person the lawyer represents in another matter, even when the matters are wholly unrelated

Attorney Smith, a solo practitioner who recently passed the bar exam, accepted Client's case for a flat fee of $3,000. Attorney Smith's contract included a statement in underlined and bold print that stated the entire fee is non-refundable regardless of the outcome of the case or whether Client continued to retain Smith through the finalization of the case. After several weeks with no movement on the case by Attorney Smith, Client fired Smith and hired other counsel to represent him on this case. Client sent a request in writing for reimbursement of the retainer. Attorney Smith responded to Client by stating the funds are non-refundable and refused to refund Client. Were Attorney Smith's actions proper? (A) Yes, because an attorney may refuse to refund an advanced payment of fees if the contract contained such language and the language was clear and obvious in the contract (B) Yes, because an attorney is not required to refund advanced payments if he or she is fired from a case (C) No, because Client requested a refund in writing and an attorney must refund any unused portion of an advanced fee if the client requests such reimbursement in writing (D) No, because an attorney shall refund unused portions of an advanced payment of fees and provide the client with a detailed listing of fees deducted from the advanced payment, regardless of how long the attorney represents the client Rule 1.5

No, because an attorney shall refund unused portions of an advanced payment of fees and provide the client with a detailed listing of fees deducted from the advanced payment, regardless of how long the attorney represents the client

A manufacturing firm received a complaint about a consumer who suffered injuries from using one of the manufacturer's products. The manufacturer referred the complaint to its legal department, and the in-house lawyer who investigated the complaint concluded that the complaint posed no legal issues for the company because of a state statute that shielded manufacturers of that type of product from tort liability. The attorney wrote a legal memorandum to the company's management describing his investigation and conclusions. The memorandum included a section of factual findings and another section presenting the legal analysis. Are the facts described in the lawyer's memorandum privileged and protected against discovery at a subsequent trial? (A) No, because attorney-client privilege does not apply to underlying facts, even if those facts are discussed in an otherwise privileged communication (B) No, because the lawyer who wrote the memorandum was in-house counsel at the manufacturer, so the company never communicated with an outside law firm seeking legal advice (C) Yes, because the communication was part of a private communication between a lawyer and a client who was seeking legal advice (D) Yes, because a state statute shielded the manufacturer from liability for injuries from this type of product Pages 158, 161-162 of Lerman, Ethical Problems in the Practice of Law, Concise Fourth Edition

No, because attorney-client privilege does not apply to underlying facts, even if those facts are discussed in an otherwise privileged communication

Two co-plaintiffs in a personal injury lawsuit hired Attorney Johnson to represent them in the matter. The litigation promised to become very complex, with multiple issues pertaining to liability and multiple potential defendants. Attorney Johnson had each client sign a detailed "waiver of present and future conflicts of interest" form and carefully explained the specific types of conflicts that can arise between co-plaintiffs in tort litigation, such as indemnification claims, cross-claims, adversarial positions in response to counter-claims from defendants or third-party interveners, and so on. In addition, Attorney Johnson encouraged both clients to consult with separate lawyers before consenting to the conflicts, and both did so. Moreover, both plaintiffs were themselves lawyers and were very familiar with the potential conflicts of interest that could arise from this common representation. Attorney Johnson reasonably believed that she would be able to provide competent and diligent representation to each affected client. As the trial date approached, a counter-claim by one of the defendants forced one plaintiff to file a cross-claim for indemnification against the other. Will the written, informed consent to potential conflicts that each client signed be effective in this situation, so that Attorney Johnson does not have to withdraw from the representation? (A) Yes, because both clients are lawyers and have sophisticated knowledge of potential conflicts of interest that could arise, and they consented in writing to the dual representation (B) Yes, because each client had the benefit of independent counsel advising them about the risks of consenting to such conflicts of interest in litigation, and Attorney Johnson carefully informed them as well (C) No, because new circumstances materialized that make the conflict nonconsentable, namely, the assertion of a claim by one client against another client represented by the lawyer in the same litigation (D) No, because it violates the Rules of Professional Conduct for a lawyer to ask a client to waive future claims such as a conflict of interest, and a lawyer cannot withdraw from representation in the middle of litigation Pages 260-262 of Lerman, Ethical Problems in the Practice of Law, Concise Fourth Edition and 1.7 Model Rule

No, because new circumstances materialized that make the conflict nonconsentable, namely, the assertion of a claim by one client against another client represented by the lawyer in the same litigation

Attorney Francois is representing two French restaurants that are located across the street from each other. They are the only French restaurants in the area, so they compete for the same customers, and their menus, decor, and prices are very similar. Attorney Francois currently represents both restaurants, one in a dispute with its landlord, and the other in a wrongful discharge lawsuit by a former employee. The restaurants have sued each other in the past, using other lawyers. Attorney Francois had not sought consent from each client to represent its competitor, and when each client learned that Attorney Francois was representing the other, they both expressed concern. The second client eventually lost its wrongful termination lawsuit, and then sued Attorney Francois for legal malpractice, claiming that he had a conflict of interest in the representation. Under the ABA Model Rules, did Attorney Francois have a conflict of interest that would subject him to disciplinary action? (A) Yes, because simultaneous representation of competing economic enterprises, even in unrelated matters, ordinarily constitutes a conflict of interest and requires consent of the respective clients, which Attorney Francois did not obtain (B) Yes, because disciplinary authorities will use a subjective test for determining a conflict of interest, that is, evaluating whether the client would feel betrayed or perceive a conflict in the situation, and could therefore sanction Attorney Francois, but the conflict here does not reach the level of malpractice (C) No, because the fact that one client initiated a malpractice tort claim precludes disciplinary authorities from pursuing a disciplinary action against the attorney (D) No, because representation of clients whose interests are only economically adverse, such as representation of competing economic enterprises in unrelated litigation, does not ordinarily constitute a conflict of interest Comment 6 to Model Rule 1.7

No, because representation of clients whose interests are only economically adverse, such as representation of competing economic enterprises in unrelated litigation, does not ordinarily constitute a conflict of interest

An attorney represents a large corporation with several offices around the state. After receiving a few employee complaints about workplace discrimination from one office, the company asked the attorney to investigate the situation and advise the company about its potential liability. The attorney conducted a careful investigation and wrote a thorough memorandum summarizing her findings and legal conclusions. The attorney then emailed the memorandum to all the company's human resources managers in each of its offices statewide—39 recipients in all. When litigation eventually ensued over the alleged discrimination, the plaintiffs sought discovery of the attorney's memorandum, but the corporation and their attorney maintained that attorney-client privilege applies to the memorandum. Is this position correct? (A) No, because the attorney was investigating a few separate complaints, so the memorandum did not pertain to any specific lawsuit but was a general inquiry (B) No, because sending the memorandum to so many employees who had no connection to the matter waived the privilege (C) Yes, because the communication was part of a private communication between a lawyer and a client who was seeking legal advice (D) Yes, because the memorandum was prepared in anticipation of upcoming litigation, and therefore qualifies as attorney work product Pages 156, 162-164 of Lerman, Ethical Problems in the Practice of Law, Concise Fourth Edition

No, because sending the memorandum to so many employees who had no connection to the matter waived the privilege

While conducting research on a litigation matter, Attorney Bentley finds a very new case from the highest court in a neighboring jurisdiction that is directly adverse to his client's legal position in the case. The issue presents a case of first impression in Attorney Bentley's own jurisdiction, where the case is taking place. The opposing party did not mention the case in its briefs, and Attorney Bentley realizes that the opposing party's lawyer has been recycling his firm's briefs for this type of case for several years without updating his research. Does Attorney Bentley have an ethical duty to disclose the unfavorable authority to the court? (A) No, because it would be a breach of the attorney's duty of loyalty to his own client to disclose a case that undermines their position (B) No, because the case is not controlling authority in that jurisdiction (C) Yes, because a lawyer must disclose to the tribunal legal authority known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel (D) Yes, because it is common for litigators to recycle their briefs for years at a time, and lawyers should help each other with updating relevant legal research Rule 3.3(a)(2)

No, because the case is not controlling authority in that jurisdiction

A lawyer agreed to represent a tenant who was facing eviction for nonpayment of rent. The lawyer formalized his representation agreement with the tenant and filed an appearance in the local housing court. The court docket had the tenant's hearing scheduled for one month later. Four days after filing his appearance, the lawyer received a phone call from the tenant saying she no longer wanted him to represent her because she wanted to represent herself instead. She conceded that he had done nothing wrong. The lawyer tried to persuade her to change her mind, but she was insistent so the lawyer said he would send her all the documents from her case. The lawyer then drafted a letter acknowledging the termination of representation and sent it along with copies of the court documents he had pertaining to the client's case. The letter was returned three days later to the lawyer, marked "UNDELIVERABLE: Not at This Address." The lawyer tried calling the client, but her phone number was no longer in service. On the date of the tenant's scheduled hearing, the lawyer appeared in person to notify the judge that the tenant had discharged him and to seek to withdraw from the case. The tenant did not appear at the hearing. The judge refused to permit the lawyer to withdraw from the case, and ordered him to proceed with the representation, because otherwise a default judgment would enter against the tenant for failure to appear. The hearing then proceeded as scheduled, in the tenant's absence, with the lawyer presenting the same defense for nonpayment of rent that he would have presented if client had not discharged him. Ultimately, the court ruled in favor of the landlord and ordered the eviction of the tenant. Was it improper for the lawyer to represent the tenant at the hearing, even after the tenant had discharged him? (A) Yes, because a client has a right to discharge a lawyer at any time, with or without cause, subject to liability for payment for the lawyer's services (B) Yes, because the lawyer failed to ensure that the client had received proper documentation of the discharge and had failed to notify the court before the hearing of the termination of representation (C) No, because the court refused to grant the lawyer to withdraw from the case, despite the client's attempt to discharge the lawyer (D) No, because the court ruled against the tenant anyway, so the lawyer's representation did not make any difference either way Rule 1.16(c)

No, because the court refused to grant the lawyer to withdraw from the case, despite the client's attempt to discharge the lawyer

A client hired a lawyer to defend him in a criminal matter involving assault charges. During the lawyer's interviews and investigation for this case, he learned that the client had also been committing identity theft and credit card fraud, obtaining credit cards in the names of other individuals and running up charges on the cards without paying the bills so that the individuals whose names are on the cards would have to pay the debts. The lawyer urged the client to stop this practice, but the client just laughed at him. The lawyer continued his representation of the client and won an acquittal on the assault charges. The representation is now over. May the lawyer warn some of the individuals in whose names the client has obtained credit cards, according to the Model Rules of Professional Conduct? (A) Yes, because the lawyer's representation of the client has ended, and the information he wants to disclose is unrelated to the matter for which he represented the client (B) Yes, because a lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary to prevent the client from committing a crime or fraud that is reasonably certain to result in substantial injury to the financial interests or property of another (C) No, because the information he wants to disclose is unrelated to the matter for which he represented the client, and it is not certain that substantial injury to the financial interests of others will occur (D) No, because the exception that permits disclosure to prevent a client from injuring the financial interests of another applies only when the client has used (or is using) the lawyer's services in furtherance of this crime or fraud Rule 1.6 (b)(2)

No, because the exception that permits disclosure to prevent a client from injuring the financial interests of another applies only when the client has used (or is using) the lawyer's services in furtherance of this crime or fraud

A corporate executive hired an attorney to represent him in a criminal matter. The client faced charges over corporate fraud that he perpetrated two years before when he was the chief financial officer of a large, publicly traded corporation. The attorney learns during his interviews with the client that the fraud will have some far-reaching consequences for investors and another large corporation in the area, consequences that the prosecution and regulatory authorities have overlooked so far. The attorney realizes that if he discloses this information now, he could prevent substantial injury to the financial interests or property of innocent people and that harm is reasonably certain to result otherwise. According to the Model Rules of Professional Conduct, may the attorney disclose the information to prevent this substantial injury to the financial interests of others? (A) Yes, because a lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary to prevent substantial injury to the financial interests or property of innocent people (B) Yes, because a lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary when the client has committed a crime or fraud that is reasonably certain to cause substantial financial injury to others (C) No, because a lawyer may never reveal information relating to the representation of a client, even if the lawyer reasonably believes necessary, when the client has committed a crime or fraud that is reasonably certain to cause substantial financial injury to others (D) No, because the exception that permits disclosure to prevent substantial financial harm to others does not apply unless the client used the lawyer's services in furtherance of the crime or fraud Comment 8 to Rule 1.6

No, because the exception that permits disclosure to prevent substantial financial harm to others does not apply unless the client used the lawyer's services in furtherance of the crime or fraud

As part of his investigation of a client's matter before trial, Attorney Roberts met with several people familiar with the client's situation to gather information and determine if any of the individuals could be a potential witness at trial. One of the client's co-workers told Attorney Roberts several disturbing stories about corruption at the client's workplace. Later, at trial, the opposing party moved to compel Attorney Roberts to disclose the information conveyed by the client's co-worker. Attorney Roberts objects that this information falls under the attorney-client privilege and is therefore inadmissible. Is Attorney Roberts correct in this assertion? (A) Yes, because the stories are confidential information related to the representation (B) Yes, as long as the client wants the attorney to keep the information confidential, because the client is the holder of the privilege (C) No, because the information did not come from the client, and therefore attorney-client privilege does not apply (D) No, because the attorney-client privilege does not apply during trials, but only to communication outside the courtroom Pages 158-162 of Lerman, Ethical Problems in the Practice of Law, Concise Fourth Edition

No, because the information did not come from the client, and therefore attorney-client privilege does not apply

An attorney represented a medium-sized company in an enforcement action brought by the National Labor Relations Board (NLRB) over violations of the laws protecting unionized workers. The attorney met with the employees of his client, in groups of four or five at a time, and explained that there was litigation pending, that government lawyers are representing the NLRB, and that they should decline to discuss the case with anyone, especially lawyers from the government. Was it proper, under the Model Rules, for the attorney to ask the employees not to talk to the other party? (A) Yes, because each of those individuals is still free to ignore the lawyer and talk to whomever they want about the case or about the company (B) Yes, the Rules of Professional Conduct permit a lawyer to advise employees of a client to refrain from giving information to another party, for the employees may identify their interests with those of the client (C) No, because the lawyer could not reasonably believe that the employees' interests will not be adversely affected by refraining from giving such information (D) No, because the Rules of Professional Conduct require a lawyer to encourage every potential witness to talk openly and honestly with the lawyers on both sides of the case Rule 3.4(f)

No, because the lawyer could not reasonably believe that the employees' interests will not be adversely affected by refraining from giving such information

A commercial real estate developer hired an attorney to secure environmental permits to build a shopping center. The relevant federal and state agencies granted the necessary permits. The attorney's representation of the developer ended once the environmental permits were securely in hand. Nevertheless, construction of the shopping center did not begin immediately, because clearing the land exhausted the developer's initial supply of investment funds. Two years later, the developer found another investor and began preparations for the construction of the shopping center. In the meantime, the residents of the neighborhoods around the proposed shopping center had turned against the project, out of concerns for the increase in traffic and litter that it could bring to the area, as well as the flooding of adjacent yards that would result from the rainwater runoff from a new parking lot. The "Not In My Back Yard" Association (NIMBY) formed and learned that the rezoning of the property by municipal authorities to permit a shopping center was still pending, with an upcoming public hearing on the schedule. NIMBY hired the same attorney to represent the neighbors in opposing the rezoning on the basis of environmental considerations. Under the Model Rules of Professional Responsibility, would it be proper for this attorney to represent the neighbors in this matter? (A) No, because the neighbors are acting in their own self-interest rather than thinking about the greater good that would result from constructing the shopping center, and even among the group of neighbors, there are probably conflicts of interest depending on who lives closest to the proposed shopping center (B) No, because the matters are 'substantially related,' since it is likely that confidential information from the prior representation would materially advance the neighbors' position in the subsequent lawsuit, such as detailed reports about the potential environmental impact of constructing the shopping center (C) Yes, because the attorney's prior representation of the developer involved securing environmental permits from state and federal authorities, and the new representation would involve a rezoning hearing before a municipal authority (D) Yes, because the attorney's representation of the developer terminated more than a year and a day prior to the commencement of the representation of NIMBY so there is no potential for betraying a current client's confidential information by representing the adverse interests of the neighbors Comment 3 to Model Rule 1.9

No, because the matters are 'substantially related,' since it is likely that confidential information from the prior representation would materially advance the neighbors' position in the subsequent lawsuit, such as detailed reports about the potential environmental impact of constructing the shopping center

An attorney managed her own practice as a sole practitioner and needed to attract more clients. One day, she heard that John Smith, a former classmate from law school, was facing disciplinary action by the state bar for making live telephone solicitations of prospective clients. The attorney called Smith and offered to represent him in his hearing before the grievance committee for a fee of $400 per hour, which is higher than the usual rate for such representation. The attorney's motivation was primarily for pecuniary gain, not concern for her former classmate. Could the attorney be subject to discipline for making this live telephone solicitation of her former law school classmate? (A) Yes, because the attorney offered to represent the prospective client for a higher-than-average fee (B) Yes, because the attorney solicited professional employment when a significant motive for the doing so was pecuniary gain (C) No, because the person she solicited as a prospective client was also a lawyer (D) No, because the prospective client is an acquaintance from law school Rule 7.3

No, because the person she solicited as a prospective client was also a lawyer

Maxximas Corporation, a large corporate client, is involved in litigation that has received media attention on major news networks and online news portals. The Maxximas's directors have asked their litigation attorneys to give a private presentation to their outside public relations firm, Spin Doctors, Inc., explaining the company's litigation strategy and risk assessment, because the public relations firm handles press inquiries about the litigation. The litigation attorneys have had no prior contact with Spin Doctors, so they opened their presentation with a reminder that the meeting was confidential and that some of the information shared would be privileged. Later, the opposing party in the litigation learns that this meeting occurred and seeks discovery of the PowerPoint slides the lawyers used in their presentation to Spin Doctors. Are the PowerPoint slides protected by attorney-client privilege? (A) Yes, because the communication was private, between lawyers and an agent of the client at the client's direction, and related to litigation (B) Yes, because the lawyers explained at the beginning of the private meeting that the contents of their presentation would be privileged and confidential (C) No, because the public relations firm is not the client (D) No, because attorney-client privilege would apply only to what was said at the meeting, not to the PowerPoint slides, which could potentially be forwarded to individuals who were not at the private meeting Pages 158-159 of Lerman, Ethical Problems in the Practice of Law, Concise Fourth Edition

No, because the public relations firm is not the client

Clint is a convicted felon serving a 30-year sentence in prison. Clint discharged the lawyer who lost his criminal trial and recently hired Attorney Bates to handle his appeal in federal circuit court. Attorney Bates has filed a preliminary notice of appeal, but briefs in the appeal are not due for several months and oral argument will not occur until two or three months thereafter. Yesterday, Attorney Bates received court appointments to handle last-minute appeals in three high-profile death penalty cases in which the executions are on the schedule for the next few weeks. Attorney Bates also took on a complex class action suit by prisoners against the state Department of Corrections, which if successful would pay Attorney Bates several million dollars in statutory legal fees. Given the urgency of the death penalty cases and the potential fees from the class action suit, Attorney Bates decides to transfer Clint's appeal of his life sentence to another competent lawyer, who is glad to take on the case. Clint refused to grant Attorney Bates permission to withdraw as counsel, though. Attorney Bates then mailed a letter to Clint explaining that he was withdrawing from the case, included all documents and papers relating to the representation, and filed a motion to withdraw in the appellate court. Did Bates violate the ethical rules by attempting to withdraw from the case over his client's objection? (A) Yes, because a lawyer must comply with the rules requiring permission of a client when terminating a representation (B) Yes, because Attorney Bates agreed to represent Clint first and could have declined the new cases if he were fulfilling his duty of loyalty to the client (C) No, because if the client is in fact guilty of the crime, he or she would be using the lawyer's services to perpetrate a fraud for the lawyer to reverse the client's conviction (D) No, because the withdrawal of representation in this case presents no material adverse effect on the interests of the client Rule 1.16(b)(1)

No, because the withdrawal of representation in this case presents no material adverse effect on the interests of the client

After being served with process in a personal injury action, a business owner made an appointment with Attorney Davis, a local lawyer. The business owner met with Attorney Davis and explained that she needed defense counsel for the personal injury suit. Attorney Davis explained that she only handled commercial real estate litigation and probably had too many cases pending to agree to handle another matter, especially one involving an unfamiliar type of litigation. Nevertheless, Attorney Davis said she would look into it, think it over, and let the business owner know if she could provide the representation but that she was disinclined to take the case. The business owner left the firm and notified the plaintiff's lawyers that they should direct all further communication to Attorney Davis. Has an attorney-client relationship been formed between the business owner and Attorney Davis? (A) Yes, because Attorney Davis did not explicitly decline to represent the business owner, leaving the possibility open (B) Yes, because the business owner's understanding at the conclusion of the consultation was that Attorney Davis would function as her advocate in the matter, at least for the time being (C) No, because there was no express agreement to provide any representation, and it was not reasonable for the business owner to think that Attorney Davis would represent her (D) No, because even though Attorney Davis tentatively agreed to consider the representation, the representation was not confirmed in writing Pages 178-179, 183-189 of Lerman, Ethical Problems in the Practice of Law, Concise Fourth Edition

No, because there was no express agreement to provide any representation, and it was not reasonable for the business owner to think that Attorney Davis would represent her

Attorney Doubletree is general counsel (in-house) for a corporation, but he is also the acting chief financial officer due to his background in corporate finance and economics. Attorney Doubletree's duties are almost evenly divided between legal tasks for the company (contract review, regulatory compliance, and supervising the outside firms that handle the company's litigation) and corporate financial operations. Every week, Attorney Doubletree prepares or reviews financial reports, investment strategy proposals, and various emails or memoranda relating to the firm's financial affairs. An opposing party in antitrust litigation against the corporation seeks to compel production of some of Attorney Doubletree's financial reports and strategy proposals, but Attorney Doubletree claims these are covered by attorney-client privilege, as he simultaneously serves as the corporation's in-house lawyer. Is Attorney Doubletree correct? (A) Yes, because these are internal communications between corporate managers and their in-house counsel (B) Yes, as long as the documents were not available to all the lower-level employees at the company (C) No, because there is no indication that Attorney Doubletree marked these documents as "privileged and confidential" at the time of drafting (D) No, because these are business communications, not legal advice from the lawyer to the client Page 161 of Lerman, Ethical Problems in the Practice of Law, Concise Fourth Edition

No, because these are business communications, not legal advice from the lawyer to the client

Litigation was underway between two parties, and the plaintiff sought to recover a significant sum from the personal assets of the defendant. The judge issued an order that the parties could not transfer any assets out of the jurisdiction. Two weeks later, the defendant's attorney learned from her client's spouse that the client had transferred hundreds of thousands of dollars to secret offshore bank accounts in the Cayman Islands. Although neither the attorney nor the client had made any affirmative representations to the court about following the court's order, it is clear to the attorney that the court and the opposing party are under the impression that both parties are complying with the court's order and are relying upon that fact in the ongoing proceedings. The client did not use the attorney's services in any way to make the transfers, and the attorney did not recommend it or know about it until after it occurred. Would it be proper for the attorney to do nothing and say nothing about the matter at this time, in order to protect the client's confidential information? (A) Yes, because the client has not made any false statements to the court (B) Yes, because the attorney has not made any material misrepresentations to the court (C) No, because a lawyer always has a duty to inform the court if a client is engaged in illegal or fraudulent conduct, even if it is unrelated to the attorney's representation (D) No, because this is a circumstance where failure to make a disclosure is the equivalent of an affirmative misrepresentation **ABA Formal Ethics Opinion, Op. 98-412, which added a clarification to Model Rule 3.3, is relevant to this question

No, because this is a circumstance where failure to make a disclosure is the equivalent of an affirmative misrepresentation

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

No, because whenever practicable, the lawyer should first seek to persuade the client to take suitable action to obviate the need for disclosure

Attorney Abrams had a disagreement with a judge one day during a trial, and soon it turned into an intense argument in the courtroom. In the heat of the moment, the judge lost his temper in front of the jury and called Attorney Abrams "an embarrassment to the profession and a menace to his own clients." Indignant, Attorney Abrams made an obscene gesture and shouted that the judge was corrupt and too old to remain on the bench. Later, when each of them regained his composure, they apologized to each other and to the jury. Nevertheless, the lawyer serving as opposing counsel reported Attorney Abrams to the state bar disciplinary authority, but she did not report the judge, for fear of retaliation in future cases in that court. Attorney Abrams believes he will not be subject to discipline for his actions. Is he correct? (A) Yes, opposing counsel refrained from reporting the judge, which unfairly places all the fault on Attorney Abrams. (B) Yes, Attorney Abrams apologized to the judge as soon as he regained his composure, and a lawyer should not have to passively accept abuse from a judge in front of a jury. (C) No, because Attorney Abrams escalated the verbal argument by making an obscene gesture. (D) No, even though it is appropriate for a lawyer to stand firm against abuse by a judge, a lawyer must not reciprocate or escalate the matter. Rule 3.5(d)

No, even though it is appropriate for a lawyer to stand firm against abuse by a judge, a lawyer must not reciprocate or escalate the matter.

A client hired Attorney Andrews to handle several real estate transactions. Once the representation was underway, the client explained that the transactions are all part of a money laundering scheme and that the money ultimately is being used to fund terrorist activities. May Attorney Andrews continue with the representation, if each individual transaction appears to be technically legal? A) Yes, because Attorney Andrews was not aware of the criminal purpose of the transactions when he consented to the representation (B) Yes, but Attorney Andrews may withdraw if he finds the course of action repugnant (C) No, Attorney Andrews must withdraw because the transactions involve a conflict of interest (D) No, if Attorney Andrews's services are being used to assist the client in conduct that the lawyer knows is criminal or fraudulent Rule 1.2(d)

No, if Attorney Andrews's services are being used to assist the client in conduct that the lawyer knows is criminal or fraudulent

While serving as in-house counsel for a corporation, an attorney discovered that a regional manager had taken several actions that potentially violated state and federal laws. The manager had a reputation for being arrogant and unreasonable, though he was exceptional in his area of expertise and was an asset to the company, despite his unpleasant demeanor. The attorney had clashed with him a few times in the past, and now they were barely on speaking terms. The attorney summoned the nerve to confront the manager about the wrongdoing. The regional manager's initial response was to be dismissive, saying that he was unaware of any laws or regulations that he might have violated. The attorney walked away from the conversation discouraged and planned to take the matter up with the corporate officers, and perhaps the Board of Directors. Before doing so, he reconsidered and returned to the manager and patiently explained to him the relevant laws and regulations that the manager had violated. The manager begrudgingly accepted the attorney's advice and took all necessary measures to rectify the wrongdoing and prevent any long-term repercussions. The manager also insulted the attorney, called him incompetent for not bringing up the matter earlier, and suggested that the attorney's incompetence was due to the attorney's ethnic background. Could the attorney be subject to discipline for not referring the matter of the illegal actions to a higher authority in the corporation? (A) Yes, because referral to a higher authority in the corporation is part of the lawyer's professional duty under the Model Rules (B) Yes, because the manager continued to insult him and behave like a bigot even after the attorney proved that the manager's actions violated the law (C) No, because a lawyer for a corporation represents not only the corporation itself, but all the managers within the corporation, so the lawyer had a direct client-attorney relationship with the manager (D) No, if the circumstances involve a manager's misunderstanding of law and subsequent acceptance of the lawyer's advice, the lawyer may reasonably conclude that the best interest of the organization does not require that the matter be referred to higher authority Comment 4 to Rule 1.13

No, if the circumstances involve a manager's misunderstanding of law and subsequent acceptance of the lawyer's advice, the lawyer may reasonably conclude that the best interest of the organization does not require that the matter be referred to higher authority

An attorney specializes in intellectual property law, representing both inventors and venture capitalists in tech startup businesses. Even though the attorney represents only one or the other side in each transaction, she may represent an inventor in one contract with a venture capitalist and represent that venture capitalist in drafting agreements with other inventors. The attorney has drafted a standardized "waiver of future conflicts" form that she asks all clients to sign along with their retainer agreement at the beginning of representation. The waiver of conflicts form explicitly consents to representation despite any and all conflicts of interest that might arise regarding the attorney's past, present, or future clients. When an actual conflict of interest or adverse relationship exists between clients at the outset of representation, she carefully explains the situation to new clients and encourages them to seek advice from other counsel about signing the waiver. When no present conflicts are apparent, but only hypothetical potential conflicts are at issue, the attorney merely says that the form is for hypothetical, potential conflicts of interest that probably will not arise in the current transaction. Is this attorney's standardized "waiver of future conflicts," when signed by new clients, likely to be effective in this situation? (A) Yes, because whenever the client agrees to consent to a particular type of conflict with which the client is already familiar, the consent ordinarily will be effective with regard to that type of conflict (B) Yes, because the attorney explains obvious, existing conflicts to new clients and then uses an all-inclusive, open-ended waiver form for unforeseen conflicts of interest (C) No, because it violates the Rules of Professional Conduct for a lawyer to ask a client to waive future claims such as a conflict of interest, unless the client has representation by outside counsel in deciding whether to sign the waiver (D) No, if the consent is general and open-ended, then the consent ordinarily will be ineffective, because it is not reasonably likely that the client will have understood the material risks involved Comment 22 to Model Rule 1.7

No, if the consent is general and open-ended, then the consent ordinarily will be ineffective, because it is not reasonably likely that the client will have understood the material risks involved

Attorney Bales has her own law practices and represents criminal defendants in their trials and plea negotiations; she is a bright and energetic lawyer. Most of her clients come from court appointments to represent indigent defendants. Attorney Bales is passionate about defending the rights of indigent defendants, so she takes every case referred to her by the local courts. The volume of cases she handles, due to the number of court appointments she accepts, means that she cannot feasibly keep abreast of changes in the law, investigate and prepare cases, act promptly on behalf of clients, or even communicate effectively with each client. She strongly believes, however, that indigent defendants are better off receiving some legal help than no help at all, so she is unwilling to turn away any cases. Besides, 95% of the criminal cases in her jurisdiction result in plea agreements, which sometimes take only a few hours to negotiate and finalize. Is it permissible for Attorney Bales to continue accepting court appointments, given these facts? (A) Yes, there is a special exception to the workload-limit rules for public defenders, considering the pressing need for representation of indigent defendants. (B) Yes, if most of the defendants would indeed be worse off if they had to represent themselves, so the attorney's minimal representation is better for them than nothing. (C) No, lawyers have an ethical duty to accept judicial appointments for indigent defense. (D) No, lawyers must control their workload so that each matter receives competent, diligent representation Rule 1.3, Comment 2

No, lawyers must control their workload so that each matter receives competent, diligent representation

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

No, the Rules of Professional Conduct do not require the lawyer to reveal the client's misconduct or the girl's location

Attorney Addison was a second-year associate at Big Firm, under the direct supervision of a partner there. The partner assigned a new client matter to an associate, instructing him to draft and file a product liability lawsuit on the client's behalf against Conglomerate Corporation. As the associate proceeded to work on the matter, however, he realized that the client had no basis in law or fact for the claim. Conglomerate Corporation was not the manufacturer or seller, and the type of product came under one of several federal statutes that shield manufacturers from product liability. The associate approached the partner about his concerns, but the partner told him to file the claim anyway, because the client was a longtime client of the firm and because there was a chance that Conglomerate Corporation would offer to settle the matter quietly without contesting the claim in court, in order to save legal costs. Would it be proper for the associate to proceed as the partner instructed? (A) Yes, because subordinate lawyers may follow the instructions of their supervisors, if the supervisor is a lawyer, as supervisory lawyers bear the responsibility for any ethical violation that they order subordinates to commit. (B) Yes, because the reasons that the partner gave for proceeding make this an arguable question under the ethical rules, and the partner's solution is reasonable. (C) No, the associate must follow the requirements of the ethical rules regardless of the directions of a client or supervisor, and the lawsuit in this case is frivolous. (D) No, because it is unethical for a lawyer to file a lawsuit in hopes of obtaining a quick settlement from an opposing party who needs to avoid costly litigation. Rule 5.2(a)

No, the associate must follow the requirements of the ethical rules regardless of the directions of a client or supervisor, and the lawsuit in this case is frivolous.

A criminal defense attorney represented a defendant who was facing charges for armed robbery. While preparing for trial, the defendant told the attorney that he intended to lie on the witness stand. The attorney tried to dissuade him, explaining that committing perjury could subject the client to additional criminal changes, and that the prosecuting attorney was likely to expose the client's untruthfulness during cross-examination. The attorney must either disclose the contemplated perjury to the tribunal or should ask the court for a recess to counsel and remonstrate with the client. Should the attorney allow the client to testify under these circumstances? (A) No, the attorney must withdraw from representation before the testimony occurs. (B) No, the attorney must either disclose the contemplated perjury to the tribunal, or should ask the court for a recess to counsel and remonstrate with the client. (C) Yes, because the attorney fulfilled his ethical duty by trying to dissuade his client from perjury, and the opposing lawyer will have an opportunity to cross-examine the client to catch him in his lies. (D) Yes, as long as the untruthful testimony is not material to the case and is unlikely to affect the outcome of the litigation. Rule 3.3(b)

No, the attorney must either disclose the contemplated perjury to the tribunal, or should ask the court for a recess to counsel and remonstrate with the client.

An attorney previously represented a developer in securing environmental and construction permits to build an apartment building. Various government agencies granted the necessary permits. Funding shortfalls unrelated to the attorney's representation delayed the construction of the apartment building after the attorney's representation of the developer ended. Eventually the developer completed the apartment building, decided to manage the property instead of selling it, and leased 80% of the units. Three years later, one of the tenants was unable to pay rent for her unit for two consecutive months, so the property manager commenced eviction proceedings. The tenant hired the same attorney to represent her in the eviction proceedings. The apartment's owner filed a motion to have the attorney disqualified due to the substantial relationship between his previous work in securing environmental permits for the building and the present eviction action against the tenant. Should the court grant the motion to disqualify the attorney from representing the tenant in this matter? (A) Yes, because the confidential information the attorney learned while securing permits prior to construction would certainly be substantially related to the nonpayment of rent by a tenant in the same building later on (B) Yes, because the lawyer previously represented the developer who constructed the apartment building and is now representing a party with directly adverse interests to the former client (C) No, the matters are not substantially related because they do not involve the same transaction or legal dispute, and confidential information learned while obtaining construction permits prior to construction are unrelated to the nonpayment of rent by a tenant sometime later (D) No, because as a public policy matter, it is difficult for renters to find and afford legal representation, especially when facing something as potentially devastating as an eviction Comment 3 to Rule 1.9

No, the matters are not substantially related because they do not involve the same transaction or legal dispute, and confidential information learned while obtaining construction permits prior to construction are unrelated to the nonpayment of rent by a tenant sometime later

An attorney works as in-house counsel for a large international corporation and has daily contact with higher-level executives and managers. One day, a senior executive mentions casually to the attorney that he has offered lucrative stock options, worth millions of dollars, to a foreign government official who has agreed to give the corporation an exclusive contract to provide certain goods and services to the foreign state. The executive seems to think this is normal and good for the company, but the attorney believes it constitutes bribery of foreign officials, which would violate the Foreign Corrupt Practices Act (FCPA) and could subject the corporation to enormous fines and penalties. The attorney explains her concerns to the executive, including that the executive could face personal criminal charges in addition to bringing liability on the corporation, and she reminds him that she represents the corporation, not him personally. The executive is dismissive of her concerns, even though she approaches him several times about the matter. How must the attorney proceed? (A) She should report the matter immediately, in writing, to the Department of Justice and tell no one in the company that she has done so. (B) She should keep her conversations with the executive confidential but try to document everything that she knows about the situation in case the Department of Justice brings an enforcement action. (C) She should approach the executive's immediate corporate superior, advising those next up the chain of authority to stop the transaction and take appropriate actions against the executive. (D) She should immediately notify the company's Board of Directors, advising them about the potential liability, and threaten to report the activities to the Department of Justice if they take no action. Model Rule 1.13

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

Mr. Barrows asked Big Bank for a loan using farm land and farm machinery, which Barrows claims to own, as a security interest. Big Bank had a lending policy that required borrowers to provide at the closing a lawyer's opinion letter (from the borrower's lawyer) that Big Bank's new mortgage lien on the security property will have priority to any other recorded liens. Barrows hired Attorney Abrams to provide the opinion letter. The letter that Attorney Abrams provided met Big Bank's requirements, but it included a disclaimer that the attorney has neither physically inspected the property nor investigated the state of the record title with respect to the mortgaged property, but that instead he had relied on the preliminary title report of a title-insurance company to the effect that there are no other liens on the property and that title to the property is vested in the client. After the closing, it turned out that a third party had previously acquired rights in the property by adverse possession. Worse, the adverse possessor had constructed some structures on the property that resulted in the filing of other contractor's and seller's liens on the property after the date of the preliminary title report. Attorney Abrams did not know any of this when he drafted the opinion. Which of the following is correct, based on these facts? (A) There was no attorney-client relationship in this case, so there is no conflict of interest here that would require informed consent. (B) The attorney had a conflict of interest in the representation described here, because he worked for the client at the behest of the lender. (C) Attorney-client privilege covers the contents of the report to the lender, if the lender kept the report confidential, so it cannot furnish the basis of a claim against the attorney. (D) The attorney did not violate a duty of care to the lender by relying solely on the preliminary title report and not conducting any other investigation, because the opinion letter expressly disclosed this limitation. The Restatement (Third) of the Law Governing Lawyers § 95

The attorney did not violate a duty of care to the lender by relying solely on the preliminary title report and not conducting any other investigation, because the opinion letter expressly disclosed this limitation.

While working for Conglomerate Corporation as in-house counsel, an attorney discovered that the Chief Financial Officer (CFO) falsified the corporation's quarterly earnings report to boost the firm's share price. Many of the top executives at Conglomerate, including the CFO, receive compensation partly in stock options. The attorney knew that these misrepresented earnings appeared in the filings to the Securities and Exchange Commission and will eventually result in severe regulatory fines or civil liability for the corporation. What should the attorney do in this situation? (A) The attorney should drop the matter unless the SEC makes an inquiry about it. (B) The attorney should start with the CFO, and then take the matter up the chain of command in the organization if necessary, eventually bringing the matter to the Board of Directors if no one in management will address the problem. (C) The attorney should immediately report the matter to the appropriate government authorities without warning the CFO or his friends within the corporation, lest they have an opportunity to destroy evidence. (D) The attorney should confront the CFO, but if the CFO remains recalcitrant, the attorney must drop the matter. Rule 1.13(a)

The attorney should start with the CFO, and then take the matter up the chain of command in the organization if necessary, eventually bringing the matter to the Board of Directors if no one in management will address the problem.

A woman who had recently moved into town made an appointment for a consultation with an attorney at Small Firm to discuss obtaining a divorce from her husband, who was also a lawyer. When the consultation occurred, the attorney asked the woman to "tell him the whole story," that is, to explain her situation and her objectives in the representation. The attorney did not ask for a waiver of confidentiality. The woman went into considerable detail about the problems in her marriage and her motivations in seeking a divorce, and she also discussed the couple's finances and her husband's personal assets and investments. After the consultation, the woman decided not to retain this attorney because she felt his firm's fees were too high, and she hired another lawyer instead. Two weeks later, the same woman's husband, who was a lawyer working for the municipal government, wanted to hire Small Firm to represent him in the divorce proceedings. Which of the following statements is false? (A) The attorney who conducted the consultation with the wife cannot represent the husband, unless the wife now gives informed consent, confirmed in writing. (B) The attorney who conducted the consultation with the wife may indeed represent the husband, because the wife never became a client of the attorney or his firm. (C) If the attorney who conducted the consultation did not share any confidential information with other lawyers in Small Firm, Small Firm can represent the husband if it immediately implements measures to screen the attorney from the matter. (D) The fact that the husband himself is an attorney does not preclude him from hiring Small Firm to represent him. Rule 1.18

The attorney who conducted the consultation with the wife may indeed represent the husband, because the wife never became a client of the attorney or his firm.

On a contingent fee basis, a criminal defense lawyer offered to represent a defendant charged with murder. The client would pay only if the lawyer won an acquittal and would pay nothing if the case resulted in a conviction. The client was eager to do this and consented to the arrangement, in writing. Which of the following best describes the lawyer's situation? (A) The lawyer is not subject to discipline because the client consented and confirmed it in writing. (B) The lawyer is subject to discipline for failing to include a third option, a partial fee if the case ends with a plea bargain to a lesser charge that requires no jail time. (C) The lawyer is subject to discipline for charging a contingent fee in a criminal matter. (D) The lawyer's arrangement would constitute ineffective assistance of counsel in a criminal case. Rule 1.5

The lawyer is subject to discipline for charging a contingent fee in a criminal matter

Attorney Breyer has been representing a client in an adoption of an orphan from Zimbabwe. Acme Corporation subsequently hires Attorney Breyer to defend it against a defective products lawsuit brought by Victim. During the discovery phase of litigation, Victim's lawyers disclose the list of witnesses they plan to call at trial to testify on behalf of Victim against Acme. Attorney Breyer's adoption client is on Victim's witness list. The adoption client is unaware that Attorney Breyer is representing Acme Corporation. The adoption client, who is a friend of Victim, will testify about Victim's character traits of caution and care and the suffering Victim has endured since the incident with Acme's defective product. Attorney Breyer was not aware that the adoption client even knew Victim, and therefore had no previous reason to obtain consent from the adoption client, Acme Corporation, or Victim about his representation of Acme in the litigation. Will the court grant a motion to disqualify Attorney Breyer from representing Acme Corporation in the products liability case? (A) Yes, because a lawyer who handles adoptions is probably not competent to represent a corporation in litigation over defective products (B) Yes, a directly adverse conflict may arise when a lawyer is required to cross-examine a client who appears as a witness in a lawsuit involving another client of the lawyer (C) No, because neither the client nor the lawyer were aware, nor could have been aware, that the client would end up testifying in a case in support of a party to whom the lawyer would be opposing counsel (D) No, because the client is merely a witness in the matter and not a party to the litigation, so the client's interests are not directly adverse to the lawyer's other client, Acme Corporation Comment to Model Rule 1.7

Yes, a directly adverse conflict may arise when a lawyer is required to cross-examine a client who appears as a witness in a lawsuit involving another client of the lawyer

An attorney agreed to represent a client in a lawsuit. During their discussions of the case, the litigation attorney mentioned to the client that one of the points in the case involved a novel question of law, for which the lawyer would need to seek advice from another lawyer with more expertise in that area. The lawsuit proceeded, the attorney obtained the advice that he needed, and the case eventually reached a verdict. At the end of the representation, the attorney sent the client a bill that included the attorney's agreed-upon fee, as well as a reasonable fee for three hours of work performed by the expert outside counsel for research and a brief memorandum. The attorney reduced his own fee by the same amount, so that the client's total bill was the same. The client had been unaware that he would have to pay the other lawyer as well but reluctantly agreed and paid the bill. Is the attorney subject to discipline for this additional fee? (A) Yes, because the attorney should not have reduced his own fee below the agreed-upon rate if some of his own work was consequently uncompensated (B) No, because the client's total bill was exactly what he expected, so there was no harm done in the attorney dividing the fee with another lawyer (C) Yes, a division of a fee between lawyers who are not in the same firm may be made only if the client agrees to the arrangement, including the share each lawyer will receive, and the agreement is confirmed in writing (D) No, because the client agreed to pay the bill in the end instead of disputing it, which would have triggered an inquiry from the state disciplinary authorities Rule 1.5 (e)(2)

Yes, a division of a fee between lawyers who are not in the same firm may be made only if the client agrees to the arrangement, including the share each lawyer will receive, and the agreement is confirmed in writing

Attorney Adler represented a client, Carl, in a small lawsuit against the client's mechanic. One day, Carl asked the Adler for legal advice unrelated to the lawsuit. Carl explained that once a month, he and some friends play cards in Carl's home, and Carl wondered whether it was illegal for those playing to place small bets on the card games (the bets were typically less than fifty dollars). Attorney Adler knew of a penal code section in their state that prohibited gambling, and that a literal reading of the statute would include the type of betting that the client described. On the other hand, Attorney Adler knew that the authorities never prosecuted individuals for placing low-stakes bets on games played in private homes among friends, and that this policy of nonenforcement against games in private homes was a longstanding practice. Would it be proper for Attorney Adler to tell Carl about the nonenforcement policy and practice? (A) Yes, a lawyer may advise a client about enforcement policy in areas of doubtful legality so long as the lawyer does not knowingly counsel or assist the client to engage in criminal or fraudulent activity. (B) Yes, a lawyer's advice to a client about the risk of detection or prosecution for illegal conduct is proper regardless of the lawyer's intentions, so long as the lawyer does not actively participate in the criminal or fraudulent actions. (C) No, such advice is unrelated to the subject matter of the representation and is therefore outside the scope of Attorney Adler's authority under the circumstances. (D) No, because the lawyer's advice amounted to counseling or assisting a client in the commission of a crime or fraud. Rule 1.2(d), Rule 2.1, and Rule 1.2(d)

Yes, a lawyer may advise a client about enforcement policy in areas of doubtful legality so long as the lawyer does not knowingly counsel or assist the client to engage in criminal or fraudulent activity.

Freemore hired Attorney Costle to provide the legal services necessary to set up her professional business. Subsequently, a dispute arose between Freemore and Attorney Costle over the fees, and the fee dispute turned into litigation. To support his claims and defenses in the fee dispute, Costle had to disclose to the tribunal exactly what he did for Freemore and the complexity of the issues involved, which necessarily involved the disclosure of confidential information. Was it proper for Attorney Costle to disclose this confidential information about Freemore merely to prevail in a fee dispute? (A) Yes, because the representation of Freemore ended when the fee dispute began, so Attorney Costle has no remaining duty of confidentiality to Freemore (B) Yes, a lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary to establish a claim or defense on his or her behalf in a controversy between the lawyer and the client (C) No, because there is no exception to the confidentiality rule for fee disputes between a lawyer and client (D) No, because Attorney Costle owed a duty of confidentiality to Freemore, even after the represented ended Rule 1.6(b)(5)

Yes, a lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary to establish a claim or defense on his or her behalf in a controversy between the lawyer and the client

Attorney Cabot, a partner at Big Firm, attended a networking reception. She found herself in conversation with a former law school classmate who was a managing lawyer at Boutique Firm. After a few drinks, the other lawyer started bragging about how the advantage of being managing partner at a smaller firm was that she was able to manipulate her firm's bookkeeping to understate the earnings of the firm and the salaries of the lawyers there for purposes of tax reporting. Attorney Cabot listened to this story and felt a mix of envy and disgust because it sounded lucrative but illegal. She kept the information in mind and gossiped about it to some of her friends, but she took no action to report the other lawyer to the authorities. Could Attorney Cabot be subject to discipline for not reporting this information to the state bar disciplinary authorities? (A) Yes, because if she does not report the tax fraud, she has become an accessory to a crime, under a theory of accessory liability. (B) Yes, a lawyer who learns of another lawyer committing tax fraud has a duty to report the ethical violation to the appropriate professional authority. (C) No, she does not have a duty to report potential ethical violations by lawyers who do not work at her firm, and the facts state that the other lawyer worked for another firm. (D) No, the rule for reporting ethical violations by other lawyers is permissive, not mandatory, so she could not be subject to discipline for a failure to report. Rule 8.3(a)

Yes, a lawyer who learns of another lawyer committing tax fraud has a duty to report the ethical violation to the appropriate professional authority.

Attorney Anderson had recently taken on many new clients and was having trouble managing her time and meeting deadlines. She had not missed any deadlines in any client matter however. At one pre-trial hearing, opposing counsel asked for a one-month postponement of the previously scheduled hearing, to Attorney Anderson's great relief. Anderson readily agreed because the postponement would enable her to attend to other urgent client matters and give her more time to prepare for the hearing. Based on facts, there was no indication that postponing the hearing would prejudice the client. Anderson called her client to notify him about the trial postponement. The client was upset about the postponement because he wanted the matter resolved as quickly as possible. The client accused Attorney Anderson of putting her own scheduling needs ahead of his interests. Anderson explained that they had not lost anything through the postponement and that she would now have more time to prepare for the hearing. She suggested that the delay was probably advantageous for the client's case, both from a strategic and a preparation standpoint. The client accepted Attorney Anderson's answer but still felt disappointed that Anderson did not ask him first because he would have expressed his will to oppose the postponement. Was Attorney Anderson in compliance with her ethical duties under the Rules of Professional Conduct? (A) Yes, because a lawyer has an ethical duty to accommodate opposing counsel's request for a postponement or continuance, as long as the delay will not prejudice the client in the final outcome (B) Yes, a lawyer's duty to act with reasonable promptness does not preclude the lawyer from agreeing to a reasonable request for a postponement that will not prejudice the lawyer's client (C) No, because Attorney Anderson failed to ask the client about the postponement before agreeing to it in the courtroom (D) No, because any postponement without client consent may cause a client anxiety and undermine confidence in the lawyer's trustworthiness Comment 3 to Model Rule 1.3

Yes, a lawyer's duty to act with reasonable promptness does not preclude the lawyer from agreeing to a reasonable request for a postponement that will not prejudice the lawyer's client

After law school, an attorney worked for two years as a judicial clerk for a federal district judge. A few months before her clerkship was to end, the attorney applied for positions at several law firms in the area and interviewed with them for a position as an associate. Each of these firms had matters pending on the docket of the judge for whom the attorney clerked. During the interviews, neither the attorney nor any of the interviewers brought up the issue of the firm's pending matters before the judge. The interviewers at each firm did ask the attorney general questions about how she liked her judicial clerkship experience. The attorney notified the judge that she was interviewing with these firms, and the judge did not object. The judge wrote a recommendation letter for the attorney, which the attorney submitted to each of the firms. Was it proper for the attorney to seek employment with firms that have pending matters before the judge for whom she clerks? (A) Yes, an attorney serving as a law clerk to a judge may negotiate for private employment in the manner described here (B) Yes, because the firms failed to disclose to her that they had pending matters before the judge for whom the attorney clerked (C) No, because the attorney failed to disclose that she knew the firms had matters pending before her judge and failed to tell the firms what she knew about their cases (D) No, because an attorney working for the government may not negotiate for private employment with any person who is involved as a party or as lawyer for a party in a matter in which the attorney is participating personally and substantially Rule 1.11(d) and Rule 1.12(b)

Yes, an attorney serving as a law clerk to a judge may negotiate for private employment in the manner described here

Attorney Grimes recently moved laterally to a new firm. His previous firm represented Conglomerate Corporation, and Attorney Grimes occasionally worked on some of Conglomerate's legal matters. Attorney Grimes's new firm recently decided to represent the plaintiffs in a lawsuit against Conglomerate, and the cause of action arises from a new consumer protection statute that the state legislature passed in its last session. Attorney Grimes had left the previous firm before the new lawsuit began, and will not work on the new lawsuit at all. If Grimes knows some confidential information about Conglomerate that is material to the new matter, would it be proper for Grimes's new firm to represent the plaintiffs in an action that is directly adverse to Conglomerate? (A) Yes, assuming the new firm obtains written informed consent from Conglomerate, and screens Grimes from the case, providing written notice to Conglomerate about its screening procedures, and periodic certifications of compliance with the screening protocols (B) Yes, assuming the new firm screens Grimes from the case, and provides written notice to Conglomerate about its screening procedures, as well as periodic certifications that the firm is indeed following the screening procedures regarding Attorney Grimes (C) No, because Attorney Grimes has enough confidential information from working on Conglomerate's previous legal matters that there is a substantial risk that the firm will have an unfair advantage in the litigation (D) No, unless the firm obtains written informed consent from both the plaintiffs and from Conglomerate and declines representation of the plaintiffs in this case Rule 1.10

Yes, assuming the new firm screens Grimes from the case, and provides written notice to Conglomerate about its screening procedures, as well as periodic certifications that the firm is indeed following the screening procedures regarding Attorney Grimes

A client and her estranged husband have lived separately for several years. The client faces charges for involvement in an armed robbery, and she retains Attorney Graves to represent her. The client's estranged husband learns about the criminal charges and looks up her attorney's information in the local court records. The husband then contacts Attorney Graves and asks to make a payment for the client's representation because he feels guilty for having left her several years before. Attorney Graves accepts payment from the client's estranged husband, without asking the client, and merely tells the client that she does not need to worry about the fees for his representation. Could Attorney Graves be subject to discipline under the conflict of interest rules? (A) Yes, attorneys are required to obtain informed consent from the client before accepting payment from a third party. (B) Yes, but only because the person paying is an estranged spouse whose interests are inherently adverse to those of the client. (C) No, attorneys may accept payments toward client cases from third persons, as long as the third person is a relative of the client. (D) No, attorneys may accept any payments toward client cases, as long as they do not disclose information about the case to the third person. Pages 309, 317, 419 of Lerman, Ethical Problems in the Practice of Law, Concise Fourth Edition

Yes, attorneys are required to obtain informed consent from the client before accepting payment from a third party.

A client who was a defendant in a high-profile murder case hired Attorney Finch to represent him. The client was unable to pay the attorney's fee, but he offered Attorney Finch the full media and literary rights to his story of the events and the trial, in exchange for representation. Attorney Finch agreed but included a provision in the retainer agreement stating that the attorney would not use any media or literary rights until the conclusion of the representation. The case proceeded to trial and eventually resulted in an acquittal for the client. Would Attorney Finch be subject to discipline for violating the conflict of interest rules? (A) Yes, attorneys shall not ever accept media and/or literary rights in exchange for services provided to a client. (B) Yes, attorneys cannot make an agreement with a client giving the lawyer media and/or literary rights in exchange for representation before the conclusion of the case. (C) No, attorneys may accept media and/or literary rights, as long as they do not use such rights until after the conclusion of the case. (D) No, attorneys are authorized to accept media and/or literary rights in exchange for services and may immediately use such rights if they are given in exchange for representation. Rule 1.8(d)

Yes, attorneys cannot make an agreement with a client giving the lawyer media and/or literary rights in exchange for representation before the conclusion of the case.

Attorney Andrews agreed to represent Client Charles and obtained Charles's written consent to divide the fees with a lawyer in a neighboring state where the trial was to occur. All the discovery and pre-trial work was to occur in the state where Client Charles and Attorney Andrews reside. The other lawyer, a well-known litigator and courtroom advocate, was to handle the actual trial, but Attorney Andrews was to handle the discovery and pre-trial motions. The case settled the day before the trial was to begin, so the other lawyer did not have to do anything except his usual trial preparation. Attorney Andrews had agreed beforehand with the other lawyer to divide the fees in half between them and that Attorney Andrews would take full responsibility for the representation overall. Client Charles had agreed in writing to this arrangement beforehand. To conclude the representation, Attorney Andrews sent Client Charles the expected bill, with half the fee going to Attorney Andrews and half the fee going to the other lawyer. Is Attorney Andrews, or the other lawyer, subject to discipline for this fee arrangement? (A) Yes, because Attorney Andrews should not have asked Client Charles to agree to pay another lawyer in another jurisdiction whom Client Charles never met (B) Yes, because Attorney Andrews and the other lawyer did not assume joint responsibility for the work (C) No, because Client Charles agreed to the arrangement beforehand in writing (D) No, because the other lawyer's reputation as a trial advocate may have influenced the opposing party to settle the case before going to trial Rule 1.5(e)(1)

Yes, because Attorney Andrews and the other lawyer did not assume joint responsibility for the work

Attorney Thompson agreed to represent a new client named Collins. Collins needed a lawyer to represent him in a regulatory takings case involving changes in zoning and land use rules that interfered with Collins's intended use of his property. Attorney Thompson was a recent law school graduate and had her own small law firm. She had never handled a regulatory takings case before. Thompson explained her lack of experience to Collins. Thompson agreed to take Collins's case and to do the research necessary to get up to speed on the law in that area. As she began researching the area, Thompson found it terribly confusing. She eventually sought help from a law school friend who worked in the field. The other lawyer had an impressive familiarity with the law of regulatory takings and offered to join Attorney Thompson as co-counsel in the case in exchange for an even split in the fees. Thompson agreed to this arrangement privately with the other lawyer, even though Collins was not aware of it, and together the two lawyers achieved exactly the result that Collins sought in the case. At the end of the representation, Thompson's bill to the client was exactly what they had agreed in the fee agreement, and Collins paid the amount set forth in the fee agreement. Attorney Thompson then split the amount with the other lawyer who helped her. Is Thompson subject to discipline? (A) No, because it was proper for Attorney Thompson to bring in co-counsel with more expertise in the area of law (B) Yes, because Thompson did not know the area well enough to provide representation and was unable to teach herself the relevant law as she promised Collins she would do (C) No, because Thompson did in fact make a good-faith effort to learn the area of law as she had promised (D) Yes, because Thompson did not first obtain informed consent from Collins to include the other lawyer in the representation Rule 1.1

Yes, because Thompson did not first obtain informed consent from Collins to include the other lawyer in the representation

Client is a second-year law student at a state law school. Client's Professional Responsibility professor forbids the use of the Internet by students during class sections. The school's student handbook also strictly forbids use of the school's wireless computer network, which provides the only Internet access inside the building, during class sessions unless the professor permits it. Client visited a social networking site during a class session, and when the professor discovered it, he had the student arrested for violating the state's Computer Fraud and Abuse Act, which imposes civil and criminal penalties for unauthorized use of a government computer network. Client hired Attorney Jones to represent him. Attorney Jones is shocked that the police and prosecutor are involved in such a ridiculous case and is reasonably certain a judge would dismiss the charges before trial. The prosecutor called Attorney Jones and explained that the district attorney regards this as an important test case and wants to bring it to trial, but they will offer a plea bargain of only twenty years in prison if the student will plead guilty and accept responsibility. Attorney Jones blurted out a profanity and hung up on the prosecutor. He did not mention the offer to Client, out of fear that it would upset him, and instead drafted a motion to dismiss. The court granted the motion and dismissed the charges against Client. Is Attorney Jones subject to discipline? (A) No, because the prosecutor's offer was unreasonable and the case was frivolous so there was no duty to discuss such an offer with the client (B) No, because the dismissal of the charges in this case meant that the client was far better off than if he had considered the plea bargain offered by the prosecutor (C) Yes, because a lawyer should show respect and decorum toward opposing parties and lawyers, and using profanity or hanging up on someone clearly violates the Rules of Professional Conduct (D) Yes, because a defense lawyer who receives a proffered plea bargain in a criminal case must promptly inform the client of its substance, unless the client has previously told the lawyer to accept or to reject the offer Comment 2 to Rule 1.4

Yes, because a defense lawyer who receives a proffered plea bargain in a criminal case must promptly inform the client of its substance, unless the client has previously told the lawyer to accept or to reject the offer

A major city had a string of murders over a period of three years, and eventually the police realized the murders were the work of a serial killer. A suspect was eventually arrested and was awaiting prosecution. At a press conference, the prosecutor stated that the defendant was single, lived with his mother in a particular apartment complex in the city, and worked as a butcher. Was it proper for the prosecutor to disclose such information about the defendant to reporters? (A) No, because a lawyer in a criminal case may not disclose the residence, occupation, or family status of the accused (B) No, because the defendant is on trial for murder, so special ethical duties automatically apply to the prosecutor's public statements (C) Yes, because a prosecutor represents the people and the public disclosures are necessary communications between a lawyer and his clients, the taxpayers (D) Yes, because a lawyer in a criminal case may state the identity, residence, occupation, and family status of the accused Rule 3.6(b), Rule 3.6(b)(7)(i)

Yes, because a lawyer in a criminal case may state the identity, residence, occupation, and family status of the accused

After an uncontested divorce, a client hired an attorney to represent her in litigation over the custody of her children. The client was concerned about her older sister, in whom she had confided about her struggles with substance abuse and mental illness. She and her sister had stopped speaking to each other before the client got married and had children because of an intense argument over money. The client had been free from substance abuse since she married and was now managing her mental health issues very well. The attorney located the sister, explained that the client was fighting for custody of her children, and that he expected the ex-husband's lawyer would call her to testify about the client's former troubles at the hearing. The attorney pleaded with her to keep her sister's confidence and refuse to testify about these matters. The attorney reasonably believed that the interests of the sister would not be adversely affected by refraining from giving such information. The sister felt deeply moved by this entreaty and agreed to stay out of the litigation. Would the ethical rules permit the attorney to request that the sister withhold information from the court or the other party? (A) No, because the lawyer has a duty to think about the best interests of the children in this case, rather that his client's convenience or feelings (B) Yes, because in a divorce or custody proceeding, a lawyer may ask various potential witnesses to refrain from disclosing information in order to keep the proceedings from becoming unnecessarily acrimonious or protracted (C) No, because a lawyer may not request a person other than a client to refrain from voluntarily giving relevant information to another party (D) Yes, because a lawyer may request that a relative of the client refrain from voluntarily giving relevant information to another party Rule 3.4(f)(1)

Yes, because a lawyer may request that a relative of the client refrain from voluntarily giving relevant information to another party

Attorney Bates works as a public defender. Because the office is always under-funded, it cannot afford to hire enough staff attorneys to handle the workload. The current public defenders all carry an overload of cases. Attorney Bates feels that she is unable to provide full representation to each client, as she must conduct about seven plea-bargaining sessions for different clients per weekday. Usually she meets the clients for the first time about fifteen minutes before each plea bargain session. Each plea bargain takes about an hour, with short breaks in between. Attorney Bates strongly encourages nearly all of her clients to accept a plea bargain because taking one case to trial means that the public defender's office must turn away about two dozen indigent clients. Attorney Bates and her colleagues believe that it is better for defendants to have a little representation than none at all and that most defendants would lose at trial anyway. Does Attorney Bates have an ethical problem under the Rules of Professional Conduct? (A) Yes, because a lawyer must control her workload so that each matter can be handled competently (B) Yes, because it would be better for clients to have no lawyer at all than to rely upon a lawyer who is providing minimal or inadequate representation (C) No, because if most of the clients would, in fact, fare worse if they went to trial, then Attorney Bates's representation is their best option (D) No, because there is a special exception for public defenders in the Rules of Professional Conduct regarding diligence Comment 2 to Model Rule 1.3

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

Two litigants were represented by counsel. One of the attorneys had to testify briefly at her client's trial about a point that was uncontested, but nevertheless necessary, as an antecedent point for the issues in the case. The attorney testified to facts that she believed were true at the time she testified. Later, before the conclusion of the proceedings, the client discharged the attorney, and then informed the attorney of previously unknown facts that compel the conclusion that the attorney's testimony was incorrect. Does the attorney have a duty to take remedial measures to rectify the false statements? (A) Yes, because the client discharged the attorney and no duty of confidentiality remains after the termination of representation (B) Yes, because a lawyer must correct a false statement of material fact or law previously made to the tribunal by the lawyer (C) No, because the attorney was not aware at the time that the statements were false and, therefore, did not knowingly mislead the tribunal (D) No, because the lawyer has a duty of confidentiality that continues even after a client discharges the lawyer Rule 3.3(a)(3)

Yes, because a lawyer must correct a false statement of material fact or law previously made to the tribunal by the lawyer

Attorney Morgan handled routine legal questions and small matters for a client, including contracts and leases, and obtained necessary licenses and permits for the client's business to operate. After a legal dispute arose between the client and an outside vendor, the client contacted Attorney Morgan seeking representation. Attorney Morgan explained that she is not a litigator and referred the client to a reputable trial lawyer in that locale. The trial lawyer met with the client and agreed to provide representation for a contingent fee. The matter settled quickly. The trial lawyer then sent Attorney Morgan a small share of the contingent fee received in the case. When Attorney Morgan originally referred the case to the trial lawyer, she did not check for any conflicts of interest because she did not do any litigation work and knew she would not participate in representing the client in the matter. For purposes of current or future conflicts of interest, and for potential malpractice liability in the litigation, did an attorney-client relationship exist between Attorney Morgan and the client for the litigation matter? (A) Yes, because a lawyer who refers a matter to another firm, and divides a fee from the matter with the other firm, has undertaken representation of the client (B) Yes, Attorney Morgan could be liable for malpractice if she referred the client to an incompetent trial lawyer, but there is no conflict of interest issue if Attorney Morgan did not do legal work on the matter (C) No, if Attorney Morgan did not perform any work on the matter or agree to represent the client in the litigation, no attorney-client relationship formed (D) No, because once another lawyer was representing the client in the matter, Attorney Morgan's representation of the client ended, as a client cannot simultaneously have two lawyers for the same litigation ABA Formal Opinion 16-474

Yes, because a lawyer who refers a matter to another firm, and divides a fee from the matter with the other firm, has undertaken representation of the client

An attorney represented a seller in a business transaction involving industrial equipment. When the sale was complete, the purchaser sent the attorney a check for $7,000, the agreed-upon purchase price, with a letter directing the attorney to forward the money to his client (the seller). The attorney notified his client immediately that he had received the check. The client was traveling at the time and asked the attorney to hold the funds until he returned from his trip. The attorney had only recently moved to this jurisdiction and opened a new firm. Because the attorney did not yet have a trust account at a bank in the area, he deposited the check in the trust account in the neighboring state, where he had practiced until recently. He told the client that the funds would be in a client trust account at an out-of-state bank. The client consented. As soon as the check cleared, the attorney wrote the client a check for the full amount to be withdrawn from the out-of-state trust account. Did the attorney act properly in his handling of client funds? (A) Yes, because an attorney may deposit client funds in an out-of-state trust account if the client gives informed consent to this arrangement (B) Yes, because the client asked the attorney to hold the funds temporarily, and the attorney faithfully delivered the entire sum to the client (C) No, because the attorney should not have accepted the check at all, but should have instructed the purchaser to write the check out to the client himself and deliver it directly to the client (D) No, because client funds must be kept in a separate account maintained in the state where the attorney's office is situated, regardless of whether the client consents to such an arrangement Rule 1.15(a)

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

A client retained Attorney Stevens to handle a criminal matter. On Friday afternoon, the client delivered a check to Stevens's office. The amount of the check only covered the work Attorney Stevens anticipated completing the following Monday. Because the following Monday was a banking holiday, if Attorney Stevens deposited the retainer check into his client trust account on Friday afternoon, he would not have had access to the funds until Tuesday. Stevens deposited the client's check into his business checking account and paid himself with those funds on Friday before the firm closed. According to the Model Rules, did Attorney Stevens violate his ethical duty to his client by depositing the funds in this way? (A) Yes, because attorneys shall not accept amounts paid in advance for criminal matters (B) Yes, because attorneys shall deposit amounts paid in advance into a client trust account and the attorney shall not withdraw the funds until fees are earned or expenses are incurred (C) No, because if an attorney believes the funds will be earned within a short period, the attorney may deposit the amount he anticipates will be earned directly into his business account (D) No, because when an event out of an attorney's control, such as a bank holiday, causes the funds to be unavailable when the attorney anticipates he will need to withdraw them, the attorney may deposit the amount he reasonably believes will be earned or needed for expenses into his business account instead of the client trust account *Pages 65, 419-421 of Lerman, Ethical Problems in the Practice of Law, Concise Fourth Edition

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

A former client sued Attorney Andrews for legal malpractice, alleging that Andrews improperly withdrew from the representation on the eve of trial, thereby harming the client. Attorney Andrews claimed in defense that her withdrawal was due to an unforeseen conflict of interest that arose after the representation was underway, and that the conflict was serious enough to compel withdrawal from the representation. The client insists that there was no real conflict of interest that could have required Attorney Andrews' abrupt withdrawal. Should a judge allow expert testimony to help persuade the factfinder that the state's ethical rules concerning conflicts of interest indeed required withdrawal? (A) Yes, because compliance with the ethical rules is an absolute defense against legal malpractice and dispositive to the matter. (B) Yes, because compliance with the requirements of the ethical rules is relevant and material to the question of the attorney's malpractice, even if it is not dispositive. (C) No, raising this defense is immaterial and irrelevant, because withdrawal alone cannot furnish the basis of a malpractice action, even if the client suffered losses as a result. (D) No, because compliance with the ethical rules is irrelevant as a defense against a claim of legal malpractice. Restatement (Third) of the Law Governing Lawyers § 52

Yes, because compliance with the requirements of the ethical rules is relevant and material to the question of the attorney's malpractice, even if it is not dispositive.

An attorney represents a large corporate client. The company has an employee hotline for complaints of workplace harassment, so that the company's management can quickly investigate the complaint as a personnel matter and can have their attorney review the complaints for potential claims or lawsuits against the corporation. An employee used the hotline to allege that her supervisor was harassing her. The management referred the complaint to the attorney for review, and after some inquiries and preliminary investigation, the attorney concluded the complaint was not valid. It turned out the employee was chronically late for work and had received a written reprimand from the supervisor, without further action or discussion. The attorney drafted a memorandum to the management detailing her investigation—the conversations with the employee, the supervisor, and some co-workers in that department—and explained that there was no basis for a lawsuit by the employee. Nevertheless, the employee eventually quit and filed a lawsuit against the corporation, and her lawyer sought to compel discovery of the memorandum by the company's attorney. Is the memorandum protected by attorney-client privilege? (A) No, because it includes statements made by the opposing party, as it recounts the lawyer's conversations with the employee after she made the original hotline complaint (B) No, because privilege applies only to statements from the client to the lawyer, not to communications from the lawyer to the client or their duly authorized agents (C) Yes, because the lawyer put the information in written form, which triggers attorney-client privilege (D) Yes, because corporate management had consulted with the lawyer to obtain legal advice and assistance, and the confidential communication was the lawyer's response to the client's inquiry Pages 158-162 of Lerman, Ethical Problems in the Practice of Law, Concise Fourth Edition

Yes, because corporate management had consulted with the lawyer to obtain legal advice and assistance, and the confidential communication was the lawyer's response to the client's inquiry

Attorney represents Client in a litigation matter. Client was not present during the last pre-trial hearing at which the lawyers argued about whether certain experts on each side could testify at trial. The trial was to start the following week. At the end of the hearing, the opposing counsel asked the court to have the record sealed in the upcoming trial and to have reporters banned from the courtroom. He explained that the testimony at trial would necessarily reveal some of his client's trade secrets, and it was important to the client to keep the trial records sealed. The judge was amenable to this suggestion and asked Attorney if he had any objections. Attorney tried to call Client, but Client did not answer his phone right then. Attorney agreed to the sealing because he could not think of a compelling reason for Client to oppose the motion. The judge set the matter for a sealed-record trial. Client never returned Attorney's call, and Attorney did not explain what had transpired until they arrived at the court for the first day of trial. Client was dismayed because he had planned to use this litigation as a test case for subsequent litigation over the same type of issue, but Attorney explained that it would now be difficult to get the judge to reverse course on this point. Is Attorney subject to discipline in this case? (A) No, because the opposing party's request was reasonable, and even if Attorney had asked Client and Client disapproved, Attorney could not have ethically objected to the request (B) No, because it was proper for the lawyer to defer to the judge on this question, lest he risk angering the judge or unnecessarily inconveniencing the opposing party (C) Yes, because even when an immediate decision must be made during a hearing or trial, and the exigency of the situation may require the lawyer to act without prior consultation, the lawyer must tell the client about it as soon as possible (D) Yes, because the attorney had a duty to consult the client prior to agreeing to the sealing of the record because of the importance of the action under consideration and the feasibility of consulting with the client Comment 3 to Model Rule 1.4

Yes, because even when an immediate decision must be made during a hearing or trial, and the exigency of the situation may require the lawyer to act without prior consultation, the lawyer must tell the client about it as soon as possible

In a divorce proceeding, the husband retained Attorney Thompson to represent him. Several years later, the husband's ex-wife wanted to hire Attorney Thompson to represent her in a legal action against her ex-husband for unpaid child support. Attorney Thomas called the ex-husband, his former client, and discussed the conflict of interest with the ex-husband. The ex-husband gave consent over the phone to Attorney Thompson representing the ex-wife in the child support matter. The ex-wife also consented to the conflict. Attorney Thompson proceeded to file the child support enforcement case, which the ex-husband immediately settled, paying the full amount owed. Did Attorney Thompson violate the ethical rules regarding conflicts of interest? (A) Yes, because he did not first obtain informed consent, confirmed in writing, from his former client (B) Yes, because attorneys shall not represent persons whose interests would be materially adverse to those of a prior client (C) No, because attorneys are not prohibited from representing adverse parties, as long as both parties give informed consent (D) No, because attorneys may represent a person whose interests are materially adverse to those of a prior client, as long as the attorney advised the person seeking to retain the attorney and makes a reasonable effort to contact the prior client *The ABA Model Rules pertaining to conflicts of interest require that attorneys obtain informed consent from the affected clients, confirmed in writing.

Yes, because he did not first obtain informed consent, confirmed in writing, from his former client

An attorney opened her own law practice and decided to attract new clients through advertising. She advertised her legal services on billboards emblazoned with the logo, "LOWEST LEGAL FEES IN THE CITY!" The billboard contained the firm's name, address, phone number, and website, but no disclaimers or qualifications about the claim regarding its legal fees. Approximately 10,000 lawyers practice in that city, and a legal aid clinic provides free legal services for homeless or indigent clients. The billboards are located on roads with very high rates of accidents and traffic fatalities, so the billboards are often visible to those who have just had an accident. Has the attorney violated the ethical rules governing lawyer advertising with these billboards? (A) Yes, because the billboard constitutes solicitation of clients, as it is directed to the general public (B) Yes, because it includes an unsubstantiated comparison of the lawyer's fees with the fees of other lawyers, presented in a way that would lead many people to think that the comparison could be substantiated (C) No, because the lawyer is merely exercising her First Amendment rights to free speech, and advertising falls under the Supreme Court's "commercial speech" doctrine (D) No, because no reasonable person would rely on this billboard and think that this attorney truly has lower fees than other attorneys Rule 7.1 comment 3

Yes, because it includes an unsubstantiated comparison of the lawyer's fees with the fees of other lawyers, presented in a way that would lead many people to think that the comparison could be substantiated

An attorney represented a defendant who faced charges of assault causing bodily injury. The client recounted the events that led to the charges, and the attorney concluded that the client did not commit the assault. The attorney assured the client that he defeated such charges against other clients in the past. The client asked the attorney to get him the best possible plea deal and explained that he did not want to take the case to trial. The attorney contacted the district attorney, who offered a reasonable plea deal for attorney's client, but it included some jail time. The attorney immediately refused the offer and told the client that they would be going to trial because the district attorney did not offer a reasonable plea. Is the attorney subject to discipline? (A) Yes, because lawyers must abide by client decisions regarding plea deals, regardless of the lawyer's opinion about the client's guilt or innocence (B) Yes, because lawyers are not authorized to give advice based on their own opinions about the case (C) No, because a lawyer shall not accept a plea deal in a criminal case if the lawyer believes the client is innocent (D) No, because lawyers are impliedly authorized to refuse plea deals if they do not find them acceptable Pages 225-228 of Lerman, Ethical Problems in the Practice of Law, Concise Fourth Edition

Yes, because lawyers must abide by client decisions regarding plea deals, regardless of the lawyer's opinion about the client's guilt or innocence

Amanda was in her third and final year of law school. She applied for admission to practice law. The application forms for admission instructed applicants to list every place of employment for the previous seven years. Amanda decided to leave out the job she had for a year between college and law school, because she was embarrassed about it—she had worked for a year as a rent-a-clown for children's birthday parties. Worse, the job came to an end not because she started law school, but because the police arrived during the last party where she worked as a clown to arrest the foster care parents for ongoing child abuse. As a clown present in the home when the police and child protection services arrived, Amanda found herself under arrest, though the district attorney later dropped the charges when they realized she was merely present for a birthday party and was not part of the abuse of the foster children. At the same time, the authorities were upset that Amanda had previously performed as a clown at other birthday parties for the same foster parents, and she should have been aware that the children were suffering from abuse, but she had not reported it and continued to accept engagements to be a clown at their parties. Traumatized by the whole ordeal, Amanda could not continue working as a clown, so she took a month or two off before starting law school. Because the entire incident and the job seemed unrelated to the practice of law, she thought it was appropriate to omit it entirely from her application for admission. The state admissions authority, however, obtained her arrest record, and pieced together that she had worked as a party clown after college, though she did not include it in her employment history. She also had omitted a brief summer job during college because that employer never paid her, and the employer had gone to jail for operating a pyramid scheme. Is it proper for the state admissions authority to deny her admission for her failure to report these prior jobs? (A) Yes, because each of the jobs relates directly to her qualification or eligibility to practice law. (B) Yes, because omitting a material fact on an admissions application, such as a prior place of employment when the form instructs applicants to list every past job, violates the ethical rules and counts as a misrepresentation to the state disciplinary authorities. (C) No, because an omission of information cannot constitute a misrepresentation, because she did not state anything that was untruthful, and because she had no intention of harming anyone by deceiving or misleading the authorities. (D) No, because these were not legal jobs and are therefore not material facts for her application for admission. Rule 8.1(b)

Yes, because omitting a material fact on an admissions application, such as a prior place of employment when the form instructs applicants to list every past job, violates the ethical rules and counts as a misrepresentation to the state disciplinary authorities.

A defendant in a business-related lawsuit hires an attorney to represent him in the matter. The plaintiff is one of the client's vendors. The attorney explains that she needs $10,000 from the client at the outset of the representation, $2,000 of which is a non-refundable availability retainer, with the remainder to be used to cover expenses, court costs, and the attorney's hourly fees. These fees, costs, and expenses will be deducted as they accrue throughout the representation. Should more funds prove necessary, the client can provide more at the time; if any of the original $10,000 remains unused at the end of the representation, the attorney will refund the balance to the client. The client provides a check for $10,000 that the attorney deposits in his firm's primary bank account, carefully noting the deposit in the bank ledger and using the funds exactly as described. The attorney immediately used $2,000 to pay the monthly rent for her office space and began her representation of the client in the matter. The matter settled quickly, and the attorney returned $3,000 in unused funds to the client, with a full accounting of the costs, fees, and expenses deducted. Is the attorney subject to discipline? (A) Yes, because she used $2,000 of the client's funds to pay her rent immediately, before doing any work for the client (B) Yes, because she deposited the client's funds in her firm's regular bank account, rather than a special trust account containing only client funds (C) No, because the client consented to the entire arrangement, including that $2,000 would be non-refundable (D) No, because this is not a contingent fee, so the attorney can do whatever she wishes with the funds **The Model Rules strictly prohibit commingling client funds with the lawyer's own funds. This means lawyers must maintain a separate bank account that is exclusively for holding client funds—a client trust account.

Yes, because she deposited the client's funds in her firm's regular bank account, rather than a special trust account containing only client funds

At 3:00 pm on December 24 an attorney received a small settlement check for a client from the opposing party. All the support staff in the attorney's office had already gone home, and the office was to stay closed until January 2. The attorney was rushing to catch a flight to Europe, where she planned to spend the holidays with her family. On January 2, when the attorney returned and the office reopened, she promptly notified the client that the check had arrived. Did the attorney violate the ethical rules for this delay? (A) Yes, because she should have instructed the opposing party to send the check directly to the client (B) Yes, because she did not notify the client soon enough (C) No, because the office was closed during the entire period, and the attorney notified the client promptly as soon as the office reopened (D) No, because the attorney had to catch a flight, and the client suffered no harm from this delay **Delays in notifying the client about funds is a violation of the Model Rules, which require prompt notification

Yes, because she did not notify the client soon enough

An attorney represents the defendant in a lawsuit over the breach of an oral agreement to sell a breeding cow. The cow had turned out to be already pregnant at the time the parties made their agreement. The attorney's client had agreed to sell the cow to another rancher, and received payment, but before delivery of the cow to the purchaser, the client discovered that the cow was pregnant. The client then reneged on the agreement because delivering a pregnant cow to the purchaser would be like giving the purchaser one animal (the expected calf) for free. The client suggested to the attorney that they assert a mistake of fact defense to the oral contract, claiming that neither he nor the purchaser knew or could have known that the cow was pregnant at the time of sale or would somehow become pregnant in the short time between payment and delivery. The attorney researched past court decisions and concluded that mistake of fact claims usually lose in scenarios like this. Moreover, in his various discussions with the client, the story has changed a little each time. The attorney now suspects that the client either is lying or is so confused that he will not be a credible witness at trial. The attorney would like to withdraw before filing an answer to the lawsuit asserting a defense of mistake of fact, because he knows they will probably not win, and he is not even sure if his client is telling the truth. Nevertheless, the client insists that the attorney should file the answer before withdrawing from the case, so that the client does not miss the deadline and face a default judgment, but does not mind if he must find another lawyer to handle the discovery and trial phase. Would it be proper for the attorney to file the answer to the pleadings, asserting a mistake of fact defense? (A) Yes, because a lawyer should follow the client's wishes about what to file or include in the pleadings (B) Yes, because the client's defense has some basis in fact and law, even if it seems improbable in both regards (C) No, because the attorney's research has led him to the conclusion that courts usually disfavor such defenses as a rule (D) No, because the attorney suspects his client is either lying or is confused about the facts Rule 3.1

Yes, because the client's defense has some basis in fact and law, even if it seems improbable in both regards

Dakota, a new law school graduate, recently moved to a new town and opened a practice there. A prospective client met with Attorney Dakota to discuss representation in a personal injury lawsuit against the town's largest company and major employer. The municipal government and local hospital would be added as co-defendants. The prospective client explained that she had already met with every other plaintiff's firm in the town but that each one declined her case because it presented conflicts of interest for them. Dakota quickly realized that he was likely the only lawyer in town who could represent this client in the matter, having no conflicts of interest with other clients, due to the firm being a new practice. Seeing an opportunity, Attorney Dakota offered to represent this client for four times the usual fee that was customary in the locality for regular legal services. In addition, Dakota explained that the client would have to pay a large non-refundable retainer sum up front, against which the attorney would draw fees. Finally, the client would have to reimburse Dakota for every penny of actual expenses and costs incurred in-house, such as photocopies, plus any costs and expenses incurred from outside services providers, such as court reporters or experts. The client was astonished at the exorbitant fees, but she reluctantly agreed because she felt she had no real choice. Dakota did memorialize their agreement in writing. Is Attorney Dakota subject to discipline for this fee agreement? (A) Yes, because the fee is unreasonably high and Dakota is merely exploiting the client's predicament (B) Yes, because Dakota is forcing the client to reimburse him for in-house expenses, such as photocopy charges (C) No, as long as the fee customarily charged for legal services in that locale is unusually low compared to other parts of the country (D) No, because of Dakota's experience, reputation, and ability **Reasonable fees are a requirement for lawyers. Even though a lawyer may charge a higher-than-usual fee for cases that are particularly difficult or time-consuming, or that draw on the lawyer's special expertise, charging a much higher fee merely because the client has no alternative for obtaining representation is unreasonable

Yes, because the fee is unreasonably high and Dakota is merely exploiting the client's predicament

Executives at a large pharmaceutical manufacturer discovered that one of the company's foreign subsidiaries had bribed local government officials to obtain lucrative government contracts. During the internal corporate investigation of the matter, the corporation's directors asked their in-house general counsel to send written inquiries to dozens of the corporation's foreign managers about whether similar payments or bribes were occurring elsewhere. After reviewing the responses to these inquiries and following up with phone calls and meetings, the corporate directors self-reported any questionable transactions to the Internal Revenue Service (IRS). The IRS then demanded to see all the original written responses to these internal inquiries. The corporate directors and general counsel refused, claiming that the information was privileged. Are the responses to the internal inquiries privileged communications? (A) Yes, because the information was provided to an attorney and is therefore privileged (B) Yes, because the information was provided at the request of the corporate directors to the in-house attorney, and the information was work-related and was necessary for obtaining legal advice (C) No, because lower-level employees at a corporation, who play no part in controlling the corporate decision-making, do not count as part of the "client" for purposes of attorney-client privilege (D) No, because the inquiries and written responses are underlying facts in the case, and therefore not covered by attorney-client privilege Pages 171-175 of Lerman, Ethical Problems in the Practice of Law, Concise Fourth Edition

Yes, because the information was provided at the request of the corporate directors to the in-house attorney, and the information was work-related and was necessary for obtaining legal advice

A husband and wife met with Attorney Lewis about obtaining legal guardianship and power-of-attorney for the wife's elderly mother, who was suffering from early-stage senile dementia. The couple needed to be able to help manage the assets and finances of the wife's elderly mother because they had taken her into their home. Attorney Lewis said he would charge a flat fee for his legal services. The couple agreed to pay a reasonable fee. As the couple was leaving the meeting, Attorney Lewis said he would formalize their fee arrangement in a written document and send them a copy. Unfortunately, an urgent issue in another unrelated case distracted him so he forgot to prepare a written fee agreement. Eventually, Attorney Lewis drafted and filed the necessary documents to place the elderly mother under the legal custodial care of the couple. At the conclusion of the matter, Lewis sent the couple a bill. The bill included the lawyer's flat fee, as the couple had agreed, plus administrative filing fees and court costs. The amounts were accurate and reasonable. Is Attorney Lewis subject to discipline for his actions? (A) Yes, because the lawyer neglected to formalize the fee agreement in writing at the outset of the representation (B) Yes, because the lawyer did not explain to the clients that they would be responsible for administrative fees and court costs in addition to his legal fees (C) No, because the oral fee agreement was satisfactory since written fee agreements are only required when an attorney charges a contingent fee (D) No, because all of the fees and costs were reasonable, and the central tenet of the Rules of Professional Conduct pertaining to fees is that they be reasonable Rule 1.5

Yes, because the lawyer did not explain to the clients that they would be responsible for administrative fees and court costs in addition to his legal fees

An attorney moved to a new firm. Her previous firm has represented Conglomerate Corporation for many years, and the attorney occasionally worked on some of Conglomerate's matters, in the course of which she acquired confidential information about the company. The attorney's new firm represents a client in an action against Conglomerate. Conglomerate's lawyers at the attorney's previous firm move to disqualify the attorney's new firm from representing the client in the case against Conglomerate. The partners at the attorney's new firm were unaware that this attorney's previous firm represented Conglomerate, first learning of this when they received the motion to disqualify their firm. The firm immediately implemented screening procedures to keep the attorney from working on the case or receiving or sharing any confidential information about the case or about Conglomerate's other legal matters. The firm provided notice to opposing counsel about the screening procedures and plans to provide periodic certifications of compliance as well. Should the attorney's new firm be subject to disqualification? (A) Yes, unless the client provides written informed consent to waive the potential conflict of interest (B) Yes, because the new firm did not implement the screening procedures soon enough (C) No, because at this point disqualification would be very disruptive to the litigation and prejudicial to the client (D) No, because they implemented appropriate screening procedures as soon as they learned of the attorney's conflict of interest and provided notice to the opposing party Pages 355, 356 of Lerman, Ethical Problems in the Practice of Law, Concise Fourth Edition

Yes, because the new firm did not implement the screening procedures soon enough

An employee in the sales and marketing department of a large corporation experienced harassment from a supervisor and was (wrongly, she believed) demoted to a lower position. She retained counsel and filed a claim for workplace discrimination. While preparing for a trial, her attorney decided to contact some night shift workers in the corporation's offsite warehouse to learn about the day-to-day operations of the corporation. The attorney was hoping to hear some revealing gossip that would uncover a larger pattern of discrimination by corporate management, and by the corporation's human resources department. The attorney did this without permission from the corporation's lawyer. If asked, the defendant corporation's lawyer would certainly have forbidden it and would have told the warehouse workers not to talk to the plaintiff's attorney at all. Was this communication by the plaintiff's attorney proper? (A) No, because the acts or omissions of the workers may be imputed to the organization for purposes of liability (B) No, because he is mostly looking for gossip about the company's management, which could only serve to embarrass the managers or marketing department at trial (C) Yes, because the warehouse workers are not involved in the matter, do not report directly to the firm's in-house counsel, and lack authority to bind the organization in the matter (D) Yes, because he knows that opposing counsel would improperly forbid the warehouse workers from talking to him, so the Model Rules allow him to take action to counteract this inappropriate potential behavior by the corporation's lawyer Rule 4.2 - comment 7

Yes, because the warehouse workers are not involved in the matter, do not report directly to the firm's in-house counsel, and lack authority to bind the organization in the matter

An attorney represents a wealthy executive in a divorce case. In the course of the representation, the attorney learns that the client intends to purchase and develop several parcels of land in an undeveloped area on the outskirts of the city. It happens that the attorney also represents a physician in an estate planning matter. The attorney and the physician have a longstanding relationship, so the attorney mentions something to the physician about the parcels of land that are for sale on the outskirts of the city, which another client brought to the attorney's attention. The attorney recommends that the physician also try to buy one of the parcels of land as an investment for the estate, knowing that the area will soon see development and the property values will increase. Even in the short term, the attorney knows that the physician could probably make a quick profit by buying a parcel and selling it to the other client when that client gets around to purchasing the parcels. The attorney did not mention to the physician that his other client was the individual planning to purchase and develop the parcels. Would the attorney be subject to discipline for giving the physician this offhand tip? (A) Yes, because the attorney should have given the first client's contact information to the physician so that the physician could inquire more directly about the plans for development and see if the client would be interested in purchasing the parcels together (B) Yes, because using information gleaned from representation of a client to the disadvantage of the client violates the lawyer's duty of loyalty, even when the lawyer uses the information to benefit a third person, such as another client (C) No, because the attorney is merely recommending to another client that he buy a parcel of land, using information from one client to help another client, and there is no conflict of interest here (D) No, because the attorney was careful not to divulge the client's identity or any confidential information about the client's case and the attorney is acting in the physician's best interest, not engaging in self-dealing Rule 1.8(b)

Yes, because using information gleaned from representation of a client to the disadvantage of the client violates the lawyer's duty of loyalty, even when the lawyer uses the information to benefit a third person, such as another client

A lawyer agreed to represent Seller, who wished to sell her business to Buyer. The sale has already bogged down in protracted negotiations over purchase price, outstanding liabilities, and certain trade secrets. The lawyer also represents Buyer in unrelated litigation over child support payments after a divorce. Buyer and Seller are not litigating against each other—the lawyer represents each in wholly unrelated matters. Must the lawyer obtain informed consent from each client to undertake representation of Seller in the negotiations over the sale of the business? (A) Yes, directly adverse conflicts can also arise in transactional matters, so a lawyer cannot represent the seller of a business in negotiations with a buyer that the lawyer represents in another matter without the informed consent of each client. (B) Yes, but only if the confidential information the lawyer will learn from representing Seller in the transaction could be relevant to Buyer's child custody dispute, or vice versa. (C) No, because Buyer and Seller cannot be adverse parties if there is no litigation pending between them, nor do they plan to commence litigation against each other in the future. (D) No, directly adverse conflicts cannot arise in purely transactional matters, as both parties have impliedly consented to the representation by agreeing to negotiate over the transaction; a lawyer can undertake transactional representation without the informed consent of each client. Page 258 of Lerman, Ethical Problems in the Practice of Law, Concise Fourth Edition

Yes, directly adverse conflicts can also arise in transactional matters, so a lawyer cannot represent the seller of a business in negotiations with a buyer that the lawyer represents in another matter without the informed consent of each client.

Attorney Barlow was a litigator, but he mostly handled divorces and child custody disputes. On one occasion, a prospective client indicated some hesitation about hiring Attorney Barlow to represent her in her divorce and custody case, due to his high fees. Desperate to garner a new client, Attorney Barlow offered to represent her on a contingent fee basis. The client declined this offer, because she planned to settle the matter as quickly as possible, and she expected that paying fees on an hourly rate would end up being less expensive. The case did not settle quickly, however, and the client soon fired Attorney Barlow and hired another lawyer for the trial. She mentioned to her appellate lawyer that her first attorney had offered to represent her on a contingent fee basis, and now that the matter was dragging on and on, she regretted that she did not agree to that fee structure. Her new lawyer knew that contingent fees in a divorce or custody case would constitute a violation of the Rules of Professional Conduct and reported Attorney Barlow to the state disciplinary authority. When disciplinary proceedings commenced, the Attorney Barlow maintained that he had not actually violated the Rules of Professional Conduct, because the client had brushed off his offer and insisted on paying an hourly fee. Even if he had attempted to violate the Rules, he argued, the client thwarted his attempt, and therefore no actual violation occurred. Is Attorney Barlow subject to discipline merely for attempting to violate an ethical rule, if the attempt never came to fruition? (A) Yes, even an attempt to violate the Rules of Professional Conduct would constitute professional misconduct. (B) Yes, because his sole motivation in offering to represent someone on a contingent fee basis was to overcome the potential client's hesitation about hiring him in the first place. (C) No, because his request merely constituted an attempt to violate the Rules of Professional Conduct, and the Rules do not impose discipline for attempts or inchoate violations. (D) No, because the client refused his offer, and now regrets her decision, so the disciplinary action is not ripe. Rule 8.4(a) and Rule 1.5(d)

Yes, even an attempt to violate the Rules of Professional Conduct would constitute professional misconduct.

A lawyer helps pro se litigants in divorce and custody matters by assisting them in completing self-help forms (court filings) for a nominal fee, giving advice, and reviewing completed forms before the litigants file the forms. To avoid misunderstandings, the lawyer first requires each pro se litigant to sign a written disclaimer providing that no attorney-client relationship exists: "I understand that Attorney ____ has no legal or ethical obligation to provide legal representation to me in this matter." Does an attorney-client relationship exist in these circumstances, even though the pro se litigant signed a form acknowledging that no legal representation will follow? (A) Yes, even if the representation is limited in scope, the lawyer's review of court documents and provision of legal advice about pending legal proceedings constitutes the practice of law by him (B) Yes, because most of the pro se litigants are unsophisticated users of legal services and probably do not understand the significance of the written disclaimer (C) No, because the individual signed an express written disclaimer as to the existence of any attorney-client relationship (D) No, because the lawyer is merely reviewing forms completed by the pro se litigants themselves, which they will file in court on their own behalf Pages 219-223 of Lerman, Ethical Problems in the Practice of Law, Concise Fourth Edition

Yes, even if the representation is limited in scope, the lawyer's review of court documents and provision of legal advice about pending legal proceedings constitutes the practice of law by him

Perry Mason was a criminal defense attorney. At one point, Mason represented a client facing drug charges. The client was also an undocumented immigrant—he had entered the country many years before on a tourist visa, and then overstayed his visa, never returning to his home country. The prosecutor offered the client a plea agreement that included minimal time in prison. Attorney Mason was pleasantly surprised by the plea offer, given the seriousness of the drug charges against the defendant and the fact that the charges normally carried a ten-year sentence. Mason recognized this as a much better outcome than the defendant was likely to achieve if they went to trial, so he urged his client to accept the plea agreement. The client then explained his immigration status to Mason and asked if accepting the plea bargain could result in his deportation. Immigration law was not Mason's area of specialty, but he speculated that the plea agreement would have no implications for the client's immigration status, and Mason assured him that his long tenure in the country meant that he would not face deportation. Attorney Mason was correct about their poor odds of prevailing at trial, but he was completely wrong about this; in fact, pleading guilty to these charges resulted in deportation for the client, as a matter of statutory law, after he served his sentence. The client followed the advice and faced deportation. Is the defendant likely to prevail on a claim based on ineffective assistance of counsel? (A) Yes, failing to advise a client that deportation would result from pleading guilty to the charges constitutes ineffective assistance of counsel for Sixth Amendment purposes. (B) Yes, because urging one's client to accept a plea agreement that results in guaranteed prison time constitutes ineffective assistance of counsel for Sixth Amendment purposes. (C) No, because the client accepted the plea agreement voluntarily, and some defendants would be willing to accept deportation in exchange for a significantly shorter prison sentence. (D) No, because lawyers do not have to be knowledgeable about every area of law in order to provide representation to a client, as long as the lawyer is competent in the subject area of the representation, such as criminal defense work. Page 205 of Lerman, Ethical Problems in the Practice of Law, Concise Fourth Edition

Yes, failing to advise a client that deportation would result from pleading guilty to the charges constitutes ineffective assistance of counsel for Sixth Amendment purposes.

Attorney Prince is the managing partner of a twelve-lawyer firm that specializes in criminal defense work. He assigns cases to the associate lawyers, who are his subordinates, and supervises their work. In handling workload issues, he frequently must balance competing demands for scarce resources. The firm receives a steady stream of court appointments for representation of indigent defendants, and they also have a constant influx of walk-in clients seeking representation in their misdemeanor and felony cases. Attorney Prince knows that he should monitor the workload of the supervised lawyers to ensure that the workloads do not exceed a level that may be competently handled by the individual lawyers. On the other hand, Prince feels strongly that that indigent defendants are better off receiving some legal help than no help at all, so he is unwilling to turn away any clients. Given that most of the criminal cases result in plea agreements, sometimes taking only a few hours to negotiate and finalize, usually there is a diminishing marginal value in the lawyers expending time and effort on background investigation or legal research for individual cases. In addition, Prince knows that the other lawyers working as his subordinates have an ethical duty to manage their own workloads, so he feels he is not responsible to duplicate that effort. As a result, he continues to assign new cases to associates, even when they complain that they already feel overwhelmed. Is Attorney Prince subject to discipline? (A) Yes, if a supervisor knows that a subordinate's workload renders the lawyer unable to provide competent and diligent representation and the supervisor fails to take reasonable remedial action, the supervisor himself is responsible for the subordinate's violation of the Rules of Professional Conduct. (B) Yes, because it violates the constitutional right to a jury trial and assistance of counsel for lawyers to advise indigent defendants to enter a guilty plea and waive their trial rights. (C) No, most of the defendants would indeed be worse off if they had to represent themselves, so the associates' minimal representation is better for them than nothing. (D) No, a lawyer cannot face disciplinary actions for the unmanageable workload of a subordinate, as the subordinate has a responsibility to decline more cases. Rule 5.1

Yes, if a supervisor knows that a subordinate's workload renders the lawyer unable to provide competent and diligent representation and the supervisor fails to take reasonable remedial action, the supervisor himself is responsible for the subordinate's violation of the Rules of Professional Conduct.

Attorney Saint works as a public defender and feels completely overwhelmed because of her heavy caseload. She has started to double-book two or more trials for the same day, counting on one or more of them to resolve in a plea-bargain agreement before trial. Most clients meet her for only a few minutes before their plea-bargaining session, and she emphatically insists with her clients that they accept the prosecutor's second or third offer for a deal. When her cases go to trial, she must waive voir dire entirely and often does no factual investigation or case research—yet she still wins acquittals in many cases because she is very gifted at destroying the credibility of hostile witnesses during cross-examination. It has become increasingly clear to her that she cannot meet her basic ethical obligations in representing even her existing clients—she does not have time to do competent legal research, in-depth factual investigation, or keep her clients updated about developments in their cases. Must Attorney Saint withdraw from representing some of her current clients? (A) Yes, if she cannot fulfill her ethical duties, she must not continue representation of her current clients. (B) Yes, as long as her clients and the court both consent to her withdrawal. (C) No, she is not required to withdraw, but she may seek to withdraw if it would not materially prejudice a client and the court allows. (D) No, because as long as she takes no new clients, her current cases will resolve soon and her caseload will become more workable. ABA Formal Ethics Op. 06-441

Yes, if she cannot fulfill her ethical duties, she must not continue representation of her current clients.

An attorney represented a client in an estate planning matter. The client was showing early signs of Alzheimer's dementia: forgetfulness, abrupt changes in the conversation, and repeating the same story or information within the same consultation. At the beginning of each conversation, the client would ask the attorney to remind her of the attorney's first name and how he liked being a lawyer, though she always recognized the attorney as her legal representative. Home health aides visited the client twice a week, but otherwise the client lived alone and took care of her daily needs without incident, though she no longer drove a car. The attorney found it frustrating to discuss the more difficult legal questions in the estate plan with the client, who would frequently repeat a question twenty minutes after the attorney had given a lengthy explanation to the same question. The client's overall objectives were clear—she wanted to divide the estate equally among the surviving heirs. At some point, the attorney started to follow his own judgment about the subtler questions, such as the creation of a spendthrift trust, the liquidation of real property rather than bequeathing the title to one or more heirs, and so on. All the attorney's actions in the matter were standard practices among estate planning lawyers and were objectively competent. In fact, the attorney fulfilled the client's objectives and protected the client's interests, even though he decided not to bother the client with the details. Could the attorney be subject to discipline for following his own judgment on the practical questions of estate planning, without including the client in these decisions? (A) Yes, when lawyers represent elderly clients in estate planning matters, they should consult with the family and the heirs about how best to structure the estate for the convenience everyone involved. (B) Yes, lawyers have an ethical duty to maintain, as much as possible, a normal client-lawyer relationship with the client, even when the client suffers from diminished capacity. (C) No, because the lawyer's actions were objectively reasonable and competent, and he protected the legal interests of the client. (D) No, when a lawyer realized that a client suffers from diminished mental capacity, the lawyer may substitute his own reasonable judgment and not include the client in some of the decisions, so long as the lawyer fulfills the client's overall objectives. Rule 1.14, Restatement (Third) of the Law Governing Lawyers § 24, and Comment 1 to Rule 1.14

Yes, lawyers have an ethical duty to maintain, as much as possible, a normal client-lawyer relationship with the client, even when the client suffers from diminished capacity.

Attorney Gibbons represents a client before an Administrative Law Judge (ALJ) in a regulatory enforcement matter. The ALJ orders Attorney Gibbons to disclose whether the client had received legal counsel about the regulatory requirements in question before the violation occurred. The client forbids Attorney Gibbons to answer the question. Attorney Gibbons can think of three arguments he might use to persuade the ALJ that the disclosure order is inappropriate: that the ALJ lacks statutory authority to make such orders, that the information is not relevant to the proceeding, and that attorney-client privilege applies. Each of these arguments is weak and unlikely to prevail, but they are not completely frivolous. Should Attorney Gibbons object and try to assert these defenses against disclosure, even though they are unlikely to succeed? (A) Yes, lawyers should assert any nonfrivolous claims before capitulating to a court order that mandates a disclosure over the client's objection (B) Yes, because the information relates only to what the lawyer told the client, not to what the client told the lawyer, so the duty of confidentiality does not apply (C) No, because an Administrative Law Judge is not a court or tribunal for purposes of the exceptions to the confidentiality rules that might permit disclosures in response to a court order (D) Yes, because a lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent Comment 15 to Rule 1.6

Yes, lawyers should assert any nonfrivolous claims before capitulating to a court order that mandates a disclosure over the client's objection

A nonprofit corporation worked to preserve the environment. The nonprofit corporation retained an attorney to sue Conglomerate Corporation for violating pollution regulations. The attorney prevailed in the case, winning an injunction against Conglomerate, as well as the payment of several millions of dollars into a fund for cleanup of polluted areas. The court also ordered Conglomerate to pay attorney fees to the prevailing party in the case. The attorney had previously agreed to share the fees with the nonprofit corporation, with 85% of the fees going to the nonprofit corporation. Is it proper for the attorney to share the fees with the nonprofit corporation? (A) Yes, sharing court-awarded fees with a nonprofit entity is proper when the nonprofit itself employed or retained the lawyer in the matter. (B) Yes, the fee-sharing arrangement is proper so long as the attorney's share is the same as if he charged the nonprofit corporation a reasonable hourly rate for the time spent on the matter. (C) No, the fee-sharing arrangement is improper because the attorney gave most of the money to the nonprofit corporation, rather than splitting it evenly. (D) No, the fee-sharing arrangement is improper because the nonprofit corporation is not a law firm or owned by lawyers, so this action constitutes sharing legal fees with nonlawyers. Rule 5.4(a)

Yes, sharing court-awarded fees with a nonprofit entity is proper when the nonprofit itself employed or retained the lawyer in the matter.

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

Yes, the Internal Revenue Code supersedes the Rules of Professional Conduct regarding the duty of confidentiality, so the lawyer should make such disclosures as are necessary to comply with the law, after informing the client.

An attorney has represented a particular client several times in various civil litigation and transactional matters. The client and the attorney decide to purchase a piece of property together, which has an appraisal value of $4 million. The lawyer and client each contribute 50% to the purchase price, but the client receives a 5% interest in the property and the attorney receives a 95% interest in the property, by agreement of the parties. The greater ownership share for the lawyer is due to some unpaid legal fees that the client owed the attorney, totaling around $2,000. Even so, the value of the representation is far less than the value of the additional interest that the attorney received in the property. The client was represented by independent legal counsel for the property purchase. Could the attorney be subject to discipline for this lopsided deal with the client? (A) Yes, attorneys cannot accept an interest in an asset of a client as a fee for representation. (B) Yes, the business transaction must be fair and reasonable even when the client obtains representation by independent legal counsel, though representation by counsel will be a factor in determining the fairness of the transaction. (C) No, attorneys can enter into business transactions with clients, as long as they are unrelated to the current matter for which the attorney is representing the client. (D) No, any requirement that the business transaction be fair and reasonable is eliminated when the client is represented by independent legal counsel, as the independent counsel can advise the client on any unfairness and discourage transactions that are unfavorable to the client. Rule 1.8(a)

Yes, the business transaction must be fair and reasonable even when the client obtains representation by independent legal counsel, though representation by counsel will be a factor in determining the fairness of the transaction.

Two business partners had a bitter dispute that led to the dissolution of their partnership and eventually to litigation over the assets and obligations of the partnership. One of the partners hired Attorney Grover to represent him in the litigation. During a pre-trial deposition of Attorney Grover's client, the client gave answers that Attorney Grover knew were false. Attorney Grover said nothing and allowed his client to continue giving false testimony. Later, at trial, the opposing party submitted evidence that proved conclusively that Attorney Grover's client had lied during his deposition, and it was an easy inference that Attorney Grover must have known that his client's statements were untruthful, given the circumstances. The judge filed a grievance against Attorney Grover for allowing his client to give false testimony and failing to rectify it for the court. Attorney Grover objects that his alleged ethical violation took place during a deposition, not at trial, so the duty of candor to the tribunal did not apply, as the testimony did not take place before the tribunal. Could the disciplinary authority reprimand Attorney Grover even though the incident occurred outside of court, at a pre-trial deposition? (A) Yes, the ethical duty to take remedial measures when a client offers false statements applies in depositions as well (B) Yes, unless it appears that opposing counsel already knows that the statements are false and is planning to impeach the witness (C) No, because the client was testifying in a deposition, which is merely an ancillary proceeding to a trial, rather than committing perjury during the trial itself (D) No, because a lawyer has a duty to protect client confidentiality and a duty of loyalty to the client that prohibits such a disclosure Comment 1 to Rule 3.3

Yes, the ethical duty to take remedial measures when a client offers false statements applies in depositions as well

Two co-plaintiffs agree to representation by the same lawyer in a civil action, and both provide written informed consent to the potential conflicts of interest. Halfway through trial, the opposing party unexpectedly makes a settlement offer that one client wants to accept. The other client wants to reject it, as he believes that a favorable jury verdict is a certainty and will be much higher. The lawyer strongly encourages them to accept the settlement offer, which he believes is generous, given his perception that their chances for a favorable jury verdict are slim. Unable to reach a consensus on whether to accept the settlement offer, one of the clients revokes his consent to the conflict of interest. Assuming there are no other special circumstances in this situation and that the court would not prohibit withdrawal, must the lawyer seek to withdraw from representation? (A) Yes, the lawyer must petition the court to withdraw from representing both clients. (B) Yes, the lawyer must withdraw from representing the client who did not revoke consent and continue to represent the client who revoked consent. (C) No, given that both clients consented in writing at the outset of representation, and that the trial is already underway, the lawyer can and must continue to represent both clients. (D) No, the lawyer can continue to represent the other client who did not revoke consent, even if the revoking client terminates the representation and hires another lawyer. **Clients who want joint representation will usually give written consent to the potential conflicts of interest because sharing a lawyer may save money and can simplify the proceedings.

Yes, the lawyer must petition the court to withdraw from representing both clients.

The directors of a large corporation requested that its lawyer investigate allegations of wrongdoing. During that investigation, the lawyer conducted interviews of the organization's employees and managers. The interviews revealed that the alleged wrongdoing involved only one employee, whom the corporation immediately terminated. After resolving the matter, the lawyer authored a series of blog posts about the amusing anecdotes he heard during his interviews, illustrating the petty internal politics, the low morale in certain departments, and a few of the office romances that had ended badly. Did the lawyer violate his ethical duties to his client? (A) Yes, when a corporation asks its lawyer to investigate an internal problem or wrongdoing, interviews made during that investigation between the lawyer and the client's employees come under the client-confidentiality rules (B) Yes, because when a lawyer represents an organization, every constituent of that organization is a client of the lawyer, and he owes a duty of confidentiality to each one (C) No, because the employees were not the lawyer's clients, if he represented only the organization, and the disclosed information was personal information, not institutional information (D) No, because after the representation ended, the lawyer no longer had a duty of confidentiality to anyone in the organization Comment 2 to Rule 1.13

Yes, when a corporation asks its lawyer to investigate an internal problem or wrongdoing, interviews made during that investigation between the lawyer and the client's employees come under the client-confidentiality rules

A federal judge hired clerk for the first two years after the clerk graduated from law school. During his second year as a clerk, he began applying for associate positions at local law firms, to secure a job that would begin immediately after his clerkship ended. A few of the firms to which he applied had pending matters before the same judge, and these were among the firms that interviewed the clerk for an associate attorney position. During the interviewing process, the clerk refrained from mentioning he knew about their pending matters on his judge's docket, though the interviewers always mentioned the fact that their firms regularly appeared before the judge in whose chambers the applicant was then clerking. Each firm that interviewed the clerk received a letter from the judge recommending the applicant to prospective legal employers. Even though some of these firms had pending matters on the judge's docket, the judge knew from the clerk which firms were interviewing the clerk. Was it improper for the clerk to apply for positions at firms that have pending matters before the judge for whom she was clerking? a)Yes, the fact that the judge sent recommendation letters for the clerk to thesefirms constituted an ex parte contact by the judge and the clerk. b)Yes, interviewing with firms that have pending matters before the judge, and where this fact was the subject of a comment or discussion in theinterview, constituted an ex parte contact by the judicial clerk with a partyin a litigation matter. c)No, a law clerk to a judge may negotiate for employment with a party or lawyer, even if the prospective employer is involved in a matter in which the clerk is participating personally, after the lawyer has notified thejudge. d)No, any lawyers working for the government may always seek privateemployment with any prospective employer, even if the prospective employer is involved in a matter in which the lawyer is participatingpersonally in a substantial way. Rule 1.12(b); Rule 1.11(d)(2)(ii)

No, a law clerk to a judge may negotiate for employment with a party or lawyer, even if the prospective employer is involved in a matter in which the clerk is participating personally, after the lawyer has notified the judge.

Conglomerate Corporation, an international manufacturing company with diversified holdings in several industries, hired Attorney Barrows from Boutique Firm to represent it in a personal injury lawsuit in which it was the defendant. During early settlement negotiations, Attorney Barrows told the plaintiff that his client, Conglomerate, did not wish to settle the case for more than a few thousand dollars, even though Conglomerate's Board of Directors had in fact tentatively approved up to a million dollars for settlement, subject to final approval by the Board. Did Attorney Barrows violate his ethical duties by making such untruthful statements during settlement negotiations? (A) Yes, a lawyer must take care not to communicate the client's position in a way that converts it into a false factual representation that the client did not intend. (B) Yes, a lawyer may not make a false statement of fact or law during negotiations, regardless of materiality, especially if the statement could influence the other party's decisions in the matter. (C) No, during negotiations, a lawyer may permissibly make a false statement of material fact or law to a third person or the opposing party in the matter. (D) No, a lawyer may downplay a client's willingness to compromise, or present a client's bargaining position without disclosing the client's "bottom line" position, in hopes of reaching a more favorable resolution. Rule 4.1(a)

No, a lawyer may downplay a client's willingness to compromise, or present a client's bargaining position without disclosing the client's "bottom line" position, in hopes of reaching a more favorable resolution.

Conglomerate Corporation spilled a large quantity of toxic sludge along the edge of its property, and spillage polluting two adjacent properties, one parcel owned by a private individual, and the adjoining parcel that was state-owned. The subdivision of the state that owned the polluted parcel agreed with the private landowner to be co-plaintiffs in a tort action against Conglomerate as the polluter, and to use the same attorney to represent both the state and the private landowner. The private landowner was mostly concerned about the loss to his property values, as this was an investment property. The state was concerned entirely with cleanup costs and the threat to public health. An authorized official at the state agency provided the attorney with written consent to the potential conflicts of interest inherent in the joint representation, as did the private landowner. Under such circumstances, would it be improper for the same attorney to represent both the government and a private party at the same time, in the same matter? a)Yes, the Model Rules prohibit lawyers representing the government from simultaneously representing a private party in the same matter,even with consent from the would-be clients. b)Yes, because the private party's interests are purely financial, while the state's interests involve a balancing of various competing interests ofthe public. c)No, the fact that the state represents the public interest cancels out and potential conflict of interest on the part of the private party and makes the Rules of Professional Conduct inapplicable. d) No, after obtaining the necessary written consent, the attorney may represent both the private party and a government agency Rule 1.11 Comment 9

No, after obtaining the necessary written consent, the attorney mayrepresent both the private party and a government agency.

Following an acrimonious divorce, a client hired an attorney to represent her in litigation over the custody of her children. The client was concerned about her former best friend, in whom she had confided about her struggles with substance abuse and mental illness. The friendship had ended because of an intense argument before the client married and had children. In fact, the client had been free from substance abuse since she married and was now managing her mental health issues very well. The attorney located the former friend, explained that the client was fighting for custody of her children, and that he expected the ex-husband's lawyer would call her to testify about the client's former troubles at the hearing. The attorney pleaded with her to show consideration for the years of good friendship with the client and to refuse to betray her former friend's confidence. The former friend felt deeply moved by this entreaty and agreed to stay out of the litigation. Were the attorney's actions proper? (A) No, because the lawyer has a duty to think about the best interests of the children in this case, rather that his client's convenience or feelings (B) No, because a lawyer may not request a person other than a client to refrain from voluntarily giving relevant information to another party, except in circumstances that do not apply here (C) Yes, as long as the lawyer reasonably believes that the friend's interests will not be adversely affected by refraining from giving such information (D) Yes, because a lawyer may request that someone refrain from voluntarily giving relevant information to another party Rule 3.4(f)

No, because a lawyer may not request a person other than a client to refrain from voluntarily giving relevant information to another party, except in circumstances that do not apply here

Attorney Bates was a well-known family law practitioner who left his old firm and started his own solo practice. After establishing his own practice, he represented a certain client in an uncontested divorce. Sometime later, the same client hired Attorney Bates to represent her in litigation over the custody of her children. The client was concerned about her older sister, in whom she had confided for many years about the client's struggles with substance abuse and mental illness. Her good relationship with her sister had ended, because of an intense argument over money one of them had borrowed from the other. The client claimed that she had been free from substance abuse for three years, and she was now managing her mental health issues very well. Her sister knew many of her darkest secrets. Attorney Bates located the sister, explained that the client was fighting for custody of her children, and that he expected the ex-husband's lawyer to call her to testify at the hearing about the client's former troubles. Attorney Bates then pleaded with her to show some consideration for the years of good relationship and good memories she shared with the client and to refuse to betray her sister's confidence and reveal all her dark secrets. It was reasonable under the circumstances for Attorney Bates to think that the interests of the sister would remain unharmed if she refrained from giving such information. The sister felt deeply moved by this entreaty and agreed to stay out of the litigation. Was it improper for Attorney Bates to request that the sister withhold information from the court or the other party? (A) Yes, because a lawyer may not request a person other than a client to refrain from voluntarily giving relevant information to another party. (B) Yes, because the lawyer has a duty to think about the best interests of the children in this case, rather than his client's convenience or feelings. (C) No, because in a divorce or custody proceeding, a lawyer may ask various potential witnesses to refrain from disclosing information to keep the proceedings from becoming unnecessarily acrimonious or protracted. (D) No, because a lawyer may request that a relative of the client refrain from voluntarily giving relevant information to another party. **Even though ABA Model Rule 3.4(f) generally prohibits lawyers from asking individuals not to testify in litigation matters, the rule contains an important exception that applies here: where "the person is a relative or an employee or other agent of a client," and, "the lawyer reasonably believes that the person's interests will not be adversely affected by refraining from giving such information."

No, because a lawyer may request that a relative of the client refrain from voluntarily giving relevant information to another party.

During a criminal trial over an armed robbery, the state's star witness died unexpectedly, and the prosecutor's case quickly unraveled. The jury eventually acquitted the defendant, even though the defendant had initially confessed to the armed robbery and later recanted. A few weeks later, the same prosecutor obtained some uncorroborated evidence that the defendant also committed check fraud. Even though he did not have enough evidence to constitute probable cause, the prosecutor brought charges for check fraud in hopes that the defendant might accept a plea agreement with some jail time rather than undergo the ordeal of another trial. If so, the prosecutor thought, a dangerous armed robber would be off the streets, regardless of the reason. Were the prosecutor's actions proper, according to the ethical rules? (A) No, because the Model Rules prohibit prosecuting a charge when the prosecutor knows there is no probable cause. (B) No, because the prosecutor is trying to use a lesser charge to incarcerate a dangerous criminal, which is tantamount to double jeopardy. (C) Yes, because the high burden of proof in criminal cases protects defendants against unfounded charges. (D) Yes, because the prosecutor has good intentions, as he wants to protect the public from a dangerous criminal, and it was not the prosecutor's fault that he lost the previous case. Rule 3.8(a)

No, because the Model Rules prohibit prosecuting a charge when the prosecutor knows there is no probable cause.

Attorney Abelard practiced with a prestigious local firm in State A. He was one of the country's best-known experts in the specialized area of corporate mergers and acquisitions. Watts Corp. was a large electricity generator and distributor in the New England states. In the wake of recent industry deregulation, Watts plans to engage in a hostile takeover of Primordial Power, the oldest regional electricity provider in the Gulf Coast region. The legal work necessary to undertake and complete the acquisition would require the physical presence of Watts' attorneys in several states besides State A, the only state where Attorney Abelard has a license to practice. Moreover, the merger of the two corporate entities would eventually require appearances before three or more federal agencies in Washington, D.C.—the Department of Energy, the Federal Trade Commission, the Securities and Exchange Commission, and even (tentatively) the Department of the Interior. Are Attorney Abelard and the other lawyers in his State A firm subject to discipline for undertaking this legal work across jurisdictional lines? (A) Yes, because handling the acquisition work in other states besides State A involves Attorney Abelard practicing law without a license in those jurisdictions, even though it is only temporary. (B) Yes, because Attorney Abelard should at least hire local counsel in each jurisdiction to work as co-counsel on the matter. (C) No, if consummation of the matter includes appearances before federal agencies, federal law would preempt state law licensing requirements, so Attorney Abelard can conduct legal work on the matter anywhere. (D) No, given the federal nature of the legal work and the temporary legal work that is reasonably related to the lawyers' practice in a jurisdiction where they are admitted, Attorney Abelard and other members of his firm may represent Watts in the acquisition. Rule 5.5(c)(4)

No, given the federal nature of the legal work and the temporary legal work that is reasonably related to the lawyers' practice in a jurisdiction where they are admitted, Attorney Abelard and other members of his firm may represent Watts in the acquisition.

Two former college classmates had formed a business partnership, but later the partnership was dissolved, and litigation ensued. One of the partners hired a lawyer, who also went to college with him, to represent him in the litigation. The former classmates' ten-year college reunion was two months away, and the attorney and the opposing party (the other partner) were both on the Alumni Association's reunion committee. The attorney called the opposing party to discuss arrangements for the upcoming reunion banquet and did not mention the pending litigation at all. Opposing counsel overheard his client talking to the attorney and reported it to the judge, accusing the attorney of engaging in an ex parte communication with the opposing party, in violation of violating the ethical rules. Earlier in the proceedings, the judge had sternly admonished both lawyers against contacting the judge or the opposing party about the case without the other lawyer present. Is the attorney subject to discipline for talking to the opposing party, who was represented by counsel, without opposing counsel present? (A) The lawyer is not subject to sanctions or discipline because the communication was about a matter outside the representation. (B) The lawyer is subject to discipline for violating the Model Rules' no-contact rule, but not to sanctions for violating the judge's order, as the conversation was not about the litigation. (C) The lawyer is subject to discipline for violating the ethical rules AND is subject to sanctions for violating the judge's order. (D) The lawyer is subject to sanctions for violating the court's order but not subject to discipline for violating the Model Rules, as the conversation was about a matter outside the representation. Rule 4.2

The lawyer is not subject to sanctions or discipline because the communication was about a matter outside the representation.

An attorney served for several years as a professional mediator. She decided to change careers and become a litigator, and one of the parties from her final mediation sought to retain her as their attorney in a matter closely related to the subject of the litigation. The other party, which already had legal representation, provided written, informed consent to this arrangement. Under such circumstances, would it be permissible for the former mediator to represent a party in the same matter in which the attorney served as mediator? a)Yes, as it appears all parties to the proceeding gave informedconsent, confirmed in writing. b)Yes, a mediator or arbitrator selected as a partisan of a party in a multimember arbitration panel may subsequently represent thatparty. c)No, a lawyer who served as a mediator may not represent a client in a matter in which the lawyer personally participated. d)No, because the other party already had legal representation andtherefore did not have the same opportunity to hire the mediatoras their lawyer for the trial. Rule 1.12(a)

Yes, as it appears all parties to the proceeding gave informed consent,confirmed in writing

Attorney Cole worked at Big Firm, and he exclusively handled litigation for Conglomerate Corporation, one of Big Firm's most important clients. Previously, he had worked for a year at the state Office of the Attorney General. Conglomerate Corporation had no litigation with the state government, so Big Firm made no effort to screen Attorney Cole from any cases, though it would conduct customary conflict checks. In one case, Attorney Cole defended Conglomerate Corporation in a personal injury lawsuit over an accident with one of its delivery truck drivers. The plaintiff's case depended on testimony from a certain eyewitness of the accident, who had already submitted an affidavit saying that Conglomerate's truck had caused the accident. Attorney Cole contacted a lawyer representing the witness and told him that he had documentary evidence that the witness' previous three employers had fired her for fraudulent recordkeeping, lying to supervisors to cover up mistakes, or lying to customers. This was just bluffing—no such documents existed. Attorney Cole believes this should constitute harmless "posturing," which is normally appropriate in negotiations. Under the ethical rules, was it impermissible for Attorney Cole to make this false statement to the other party? (A) Yes, because Attorney Cole's prior work history at the Office of the Attorney General created an impression of credibility or trustworthiness that would induce other parties to rely on the statements that would otherwise have seemed like mere posturing or puffing. (B) Yes, because Attorney Cole represented that he had documentary evidence when no such documents existed. (C) No, because whether a specific statement should count as one of fact can depend on the circumstances. (D) No, a party in a negotiation also might exaggerate or emphasize the strengths, and minimize or deemphasize the weaknesses, of its factual or legal position. Rule 4.1 - comment 2

Yes, because Attorney Cole represented that he had documentary evidence when no such documents existed.

Attorney Adkins had an exceptionally successful law practice, and she was able to charge her clients higher fees than other lawyers in the area. In fact, she had become one of the wealthiest lawyers in her state. One day, a judge called Attorney Adkins and requested that she accept a case and represent an indigent defendant whose case was before his court. The judge explained that he wanted to appoint Attorney Adkins to represent this defendant because his case was unusually complicated, and Attorney Adkins had a stellar reputation in the legal community for her skills and abilities. Attorney Adkins thanked the judge for the compliment but explained that she would have to decline the appointment because the court paid fees for indigent defense that were far lower than what she would normally charge her clients. The judge was indignant and reported Attorney Adkins to the state disciplinary authority. Could Attorney Adkins be subject to discipline for declining the case, given these facts? (A) Yes, because the Model Rules require lawyers to accept appointments from a tribunal regardless of the financial burden imposed or how repugnant the client or cause would be to the lawyer. (B) Yes, because the Model Rules require lawyers to accept appointments from a tribunal unless the lawyer has good cause for declining the representation, which Attorney Adkins does not have. (C) No, mandating that a lawyer accept appointments from a tribunal, even when the lawyer does not want to do so, constitutes an unconstitutional taking of the lawyer's legal services. (D) No, the fact that Attorney Adkins would have to work for a much lower rate than she usually charges her clients is an appropriate reason to decline an appointment from a tribunal. Rule 6.2 - comment 1

Yes, because the Model Rules require lawyers to accept appointments from a tribunal unless the lawyer has good cause for declining the representation, which Attorney Adkins does not have.

Harvey was a licensed attorney in State A, but his law practice was financially insolvent. He decided to move to another part of the country and start over, so he bought a ticket to State B. In State B the attorney ran advertisements in the local news offering to represent clients on small matters for a deeply discounted rate. Before long, Harvey was representing clients in his new location. All the matters he handled were simple and within his level of competency, and his clients were consistently satisfied with his representation. Eventually, the unauthorized practice of law authorities of State B brought an enforcement action against Harvey for practicing law without a license. Is Harvey subject to discipline for practicing without a license if his license in State A is still valid? (A) Yes, because he has established an ongoing law practice in State B and represents clients there, even though he does not have a license to practice in that jurisdiction. (B) Yes, because it is not possible that a lawyer from State A could competently handle a client matter that pertained to State B law. (C) No, because he still has a valid license in another state, so he is not practicing without a license. (D) No, because he is providing competent representation to his clients, and simple legal matters may not require a comprehensive knowledge of the specific laws of that state. Rule 5.5(b)

Yes, because he has established an ongoing law practice in State B and represents clients there, even though he does not have a license to practice in that jurisdiction.

Attorney Zarathustra needs to attract more clients to his small law firm. An internet marketing company, GlomOn, advertises "daily deals" and permits users to receive frequent email notifications of daily deals that might interest them. GlomOn makes arrangements with local businesses to offer goods or services at discount rates to GlomOn subscribers. After a certain number of subscribers purchase a particular daily deal, GlomOn splits the proceeds with the local business, and the purchaser receives a code or electronic voucher with an expiration date. Attorney Zarathustra decides to use GlomOn to find new clients, and offers an online deal for $400 off a client's legal fees if they retain the attorney. Attorney Zarathustra honors these commitments and resists the urge to raise his rates for GlomOn clients in order to offset the $400 rebate, so his GlomOn advertisements are not misleading in any way. GlomOn costs Attorney Zarathustra more than other internet advertisers. GlomOn promotes Attorney Zarathustra's message to a large number of subscribers, and GlomOn handles the processing of payments from the coupon purchasers. Most of the clients generated by the daily deal advertisements need very routine legal representation that generates low fees, such as submitting government forms, giving legal advice, or contract review. These tasks often generate fees of $500 or less for the entire representation. Thus, nearly the entire fee paid by GlomOn customers actually goes to GlomOn, not to Attorney Zarathustra. Could Attorney Zarathustra be subject to discipline for marketing his legal services through GlomOn in this way? (A) No, because the Model Rules do not regulate internet advertising for lawyers (B) No, because the fee is reasonable, given the services that GlomOn provides to advertisers (C) Yes, because it is an unreasonable fee for advertising if it is higher than comparable advertisers and most of the initial fee goes to the advertiser (D) Yes, because this constitutes fee sharing with nonlawyers ABA Formal Opinion 13-465

Yes, because this constitutes fee sharing with nonlawyers

During a trial recess, the judge asked the lawyers for both parties to meet with him briefly in chambers. Once there, the judge explained that he planned to retire from the bench soon and was wondering if either of their firms were hiring litigation attorneys, as he might be interested. Could the judge be subject to discipline under the Model Rules of Professional Conduct for making this inquiry? a)Yes, the judge should not have talked to the two lawyers together, because ifone of them immediately offers the judge a job at his firm, the other will also feel compelled to do so, may even feel it necessary to offer a higher salary than the first. b)Yes, under the Model Rules, a lawyer shall not negotiate for employment with any person who is involved as a party or as lawyer for a party in a matter in which the lawyer is participating as a judge personally and in a substantial way. c)No, the Model Rules of Professional Responsibility do not apply to judges, because the Code of Judicial Conduct regulates judicialbehavior and activities. d)No, this was merely an initial inquiry, not negotiation for employment ateither of the lawyer's firms. Rule 1.12(b)

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

After law school, an attorney worked for the local City Attorney's office in a mid-sized municipality, working mostly on enforcement of anti-pollution and anti-littering ordinances. After five years, the attorney left the position at the municipality and went to work for the federal Environmental Protection Agency (EPA). In some cases, the EPA intervenes in litigation over pollution in which the same municipality is also a party. In that situation, may the EPA ignore the usual screening requirements that would apply to a lawyer moving to a private firm? a)Yes, when a lawyer is employed by a city and subsequently is employed by a federal agency, the latter agency does not have to screen the lawyer. b)Yes, the EPA can always assert federal preemption over a municipality if a conflict arises in litigation. c)No, because the attorney may know confidential government information that would provide an unfair advantage to the lawyersat the EPA. d)No, the rules for screening attorneys originally applied only to government lawyers, and the screening requirements are even stricter than they are for lawyers who move to private firms. Rule 1.11 Comment 5

Yes, when a lawyer is employed by a city and subsequently is employed by a federal agency, the latter agency does not have to screen the lawyer

A client hired a certain attorney to represent her in a personal injury lawsuit in which the client is the plaintiff. After an initial consultation and two meetings to review the main evidence in case and to discuss the nature of the claims, the attorney drafted the initial pleadings, served the opposing party, and filed the pleadings in the appropriate court. Nevertheless, the attorney did not allow the client to review the pleadings before filing them, and afterward, the client expresses disappointment that she did not have the opportunity to review the pleadings beforehand and make suggested edits, given that it is her case and that the attorney is working for her. Was it proper for the attorney to draft the pleadings based on conversations with the plaintiff and file the documents without first having the plaintiff review them? a) Yes, because a lawyer may take whatever actions the client has impliedly authorized as part of the representation. b) Yes, unless the client is an English teacher or a professional editor and might therefore have special expertise in proofreading texts for grammatical errors and stylistic problems. c) No, because a lawyer shall abide by a client's decisions concerning the objectives of representation and shall consult with the client as to how to pursue these ends. d) No, because the attorney may have to spend time later revising the pleadings, which could affect the legal fees in the case, and such revisions may have been unnecessary if someone else had proofread the attorney's draft before filing it. Rule 1.2(a)

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

An attorney agreed to represent a plaintiff in a personal injury lawsuit, and the client agreed to pay the attorney a contingent fee based on a percentage of the award in the case. The attorney put all the terms of the fee agreement in written form in a letter to the client. The letter explained the percentage that should accrue to the attorney the event of settlement, trial, or appeal; litigation and other expenses that the attorney would deduct from the recovery; and that such deductions would come out of the total before the calculation of the contingent fee. The letter also explained all potential expenses for which the client could be liable, if the client prevailed in the case or not. The client received the letter, read it carefully, and called the attorney to give verbal assent and confirmation to all the terms. The client's spouse later discarded the letter, and the attorney proceeded with the representation. Could the attorney be subject to discipline, based on these facts? a) Yes, because the client did not sign the fee agreement. b) Yes, because the attorney arranged to deduct expenses from the total award before the calculation of the contingent fee, rather than after the determination of the fee. c) No, because the letter constituted a written fee agreement stipulating all the terms of the contingent fee arrangement, and the client gave full consent and authorization over the phone. d) No, under the Model Rules, a written fee agreement signed by the client is preferable but not a requirement. Rule 1.5(c)

a) Yes, because the client did not sign the fee agreement.

The Office of the Attorney General in Texas ordered administrative suspensions of driver's licenses for parents who failed to pay child support, pursuant to state statutes. An attorney worked for the State Office of Administrative Hearings (SOAH), the agency that adjudicated license suspensions like this one. When he decided to leave the SOAH, the attorney surreptitiously copied a database of individuals facing license suspensions and used the names to solicit clients as he started his own firm. The attorney represented clients who wanted to appeal their license suspensions in court, though he did not represent anyone whose case he had personally worked on during his time at the SOAH. Could the attorney be subject to discipline in the cases in which he represents clients appealing their license suspensions? a) Yes, the attorney had access to confidential government information from his time working for the state. b) Yes, a former government lawyer cannot represent any clients against the same state entity for whom the lawyer once worked. c) No, there is no conflict because the lawyer did not participate directly or personally in the client's cases. d) No, disqualification of former government lawyers does not apply to merely administrative matters such as license suspensions. Smith v. Abbott, 311 S.W.3d 62 (Tex. App.-Austin 2010); Model Rule 1.11(c)

a) Yes, the attorney had access to confidential government information from his time working for the state.

Attorney Stevenson did not know anything about the construction industry, but he thought he knew how to draft contracts. Giant Equipment Corporation manufactures cranes, bulldozers, and large backhoes used for building construction. These machines are pricey. Twenty-seven months ago, the manufacturer hired Attorney Stevenson to help with drafting Purchase and Sale Contracts for the manufacturer to use for all these items of heavy equipment. Attorney Stevenson advised the company on what provisions to include and some of the exact wording they should use in the Purchase and Sale Agreements. Then the representation ended, and the company has not contacted an attorney since. Last week, Ashby Building Construction retained Attorney Stevenson to handle a dispute with a manufacturer of one of its construction cranes. It soon becomes apparent learns that the piece of equipment came from Giant Equipment Corporation, and that the procurement officer for Ashby consummated the purchase by signing one of the contacts on which Attorney Stevenson had advised Giant. Now Ashby wants to rescind the contract and return the machine for a full or partial refund, because it used the crane for a week before it broke down. Would Attorney Stevenson be subject to disqualification in a such a latter, if litigation ensued? a) Yes, because the items are so expensive, and Ashby used the machine for only a week before it became unusable. b) Yes, Attorney Stevenson cannot seek to rescind on behalf of a new client a contract drafted on behalf of the former client. c) No, because Ashby is not seeking any damages besides a refund in exchange for returning the faulty machine, and this merely puts the manufacturer back in the same place as if the sale had never occurred, so there is no potential harm to the manufacturer. d) No, because representation of the manufacturer ended a while ago, so there is no conflict of interest or direct adversity between current clients. Rule 1.9 Cmt. 1

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

In response to an attorney's advertising, which describes the attorney's education, experience, areas of practice, and contact information, an individual sent an email to the attorney describing their legal problem at length, including many personal details. Some of the information was unfavorable to the individual's legal interests. The attorney, who had never met or had any contact with the individual, read the long email in its entirety, and immediately sent a terse reply declining the representation. There was no consultation with the individual, and the attorney did not promise to provide representation. A few days later, the attorney received an inquiry from the opposing party in the case, and he agreed to represent the opposing party, and used information gleaned from the other individual's email to prevail in the matter. Was the attorney's conduct proper? a) Yes, because the attorney declined to provide representation. b) Yes, because the individual who sent the original email was not a prospective client for purposes of the Model Rules, and the attorney had no duty to keep the information confidential. c) No, because written, oral, or electronic communications, constitute a consultation and meant the first individual was a prospective client. d) No, because advertisements have the effect of soliciting such contacts from prospective clients, which normally include disclosures of confidential information the attorney should protect. Rule 1.18 Cmt. 2

b) Yes, because the individual who sent the original email was not a prospective client for purposes of the Model Rules, and the attorney had no duty to keep the information confidential.

A district attorney had a dispute with certain judges in the criminal court in his locale. At one point, the district attorney held a press conference at which he criticized the judges, blaming the large backlog of pending criminal cases on these judges' inefficiency, poor work ethic, and excessive vacations. He went further and mentioned that he would not authorize court funds for DNA testing during police undercover investigations, which hindered the enforcement of vice laws. In conclusion, he said, "All this raises' questions about racketeer influences on our lazy judges." The district attorney did not have a reasonable belief that all these statements were true, but at the same time, he was not acting with reckless disregard with the truth. He believed what he said, but he was not entirely reasonable in his belief. Was it permissible for the district attorney to make these statements? a) Yes, because prosecutors have wide prosecutorial discretion and immunity. b) Yes, if indeed the district attorney did not make the statements with reckless disregard for their truth or falsity. c) No, if indeed the district attorney did not have actual knowledge and reasonable certainty that these statements were true and accurate. d) No, attorneys much not engage in public criticism of judges or make public statements that undermine the integrity or credibility of the judiciary. Garrison v. Louisiana, 379 U.S. 64 (1964)(very important decision in this area); Rule 8.2(a)

b) Yes, if indeed the district attorney did not make the statements with reckless disregard for their truth or falsity.

An attorney works for a mid-size law firm that employs two or three law students every year as summer associates. The manager of the student associates assigns one of them to work on the attorney's pending antitrust case, in addition to assignments for other lawyers at the firm. While researching a central issue in the case, the summer associate discovered an older Supreme Court decision that was unfavorable to their client. The summer associate decided not to tell anyone about the case, as the opposing party seemed to have overlooked it in their briefs. The attorney was not aware of any of this until they were on a break during their hearing. The hearing was going well for their side, and the associate boasted to the attorney about "burying" that Supreme Court case he had found. The attorney said, "Well, you should have told me about it at the time, but there is no point in bringing it up now, as it appears opposing counsel overlooked it and the hearing is going our way." The judge's clerks, however, found the case, and the judge queried the lawyers about how they could have missed it. Opposing counsel admitted he had been negligent in doing legal research on the matter, and the attorney recounted the story about the summer associate hiding the case from him. Is the attorney now subject to discipline for what the summer associate did? a) Yes, because lawyers are automatically liable for the misconduct of nonlawyer employees at their firm; the lawyer had an affirmative duty to find the case himself and disclose it. b) Yes, even though he was unaware of the violation at the time, the attorney ratified the summer associate's conduct after he learned about it. c) No, because the attorney did not know about the associate's conduct at the time it occurred, or while submitting briefs, or even when the hearing began. d) No, because opposing counsel was negligent in failing to research the issue, and if he had, he would have been likely to discover the case on his own. Rule 5.3

b) Yes, even though he was unaware of the violation at the time, the attorney ratified the summer associate's conduct after he learned about it.

An attorney had graduated from law school near the bottom of his class, but he told himself that every year someone at graduation had to be at the bottom of their class. Besides, his mentor always told him that law school classes have nothing to do with the actual practice of law. The attorney was unaware that his 1L Civil Procedure Professor had miscalculated his grade two full letter grades higher than he deserved, and otherwise he would have failed out before his second year. The attorney invested a reasonable amount of time preparing for his clients' cases, and put in normal effort for an attorney, but still was far behind his fellow lawyers in his ability. He lacked knowledge of settled principles of Law and was not aware of recent developments in case law and legislation in his area of practice, even though he tried and made an earnest effort, often trying even harder than the lawyers around him, who seemed to coast along effortlessly by comparison. His intentions were always good, and he genuinely cared about his clients. Could the attorney be subject to discipline, including disbarment, for incompetent representation? a) Yes, if he was never supposed to graduate from law school in the first place, but for that professor's mistake that inured to his benefit. b) Yes, he lacks basic knowledge and skills necessary, despite his efforts and good intentions. c) No, the evaluation of competence takes into consideration how hard the lawyer tries and whether he has the right intentions. d) No, because for many clients, he certainly knows enough to get by, given that most cases settle quickly. Rule 1.1

b) Yes, he lacks basic knowledge and skills necessary, despite his efforts and good intentions.

During a trial recess, the judge asked the lawyers for both parties to meet with him briefly in chambers. Once there, the judge explained that he planned to retire from the bench soon and was wondering if either of their firms were hiring litigation attorneys, as he might be interested. Could the judge be subject to discipline under the Model Rules of Professional Conduct for making this inquiry? a) Yes, the judge should not have talked to the two lawyers together, because if one of them immediately offers the judge a job at his firm, the other will also feel compelled to do so, may even feel it necessary to offer a higher salary than the first. b) Yes, under the Model Rules, a lawyer shall not negotiate for employment with any person who is involved as a party or as lawyer for a party in a matter in which the lawyer is participating as a judge personally and in a substantial way. c) No, the Model Rules of Professional Responsibility do not apply to judges, because the Code of Judicial Conduct regulates judicial behavior and activities. d) No, this was merely an initial inquiry, not negotiation for employment at either of the lawyer's firms. Rule 1.12(b)

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

An attorney works exclusively as a contract lawyer for other firms that need extra help for big cases, whether in pre-trial document review or in background research and writing of briefs. She has no direct contact with the clients of these firms, and she does not participate in important decisions about any of the matters for which she performs legal tasks. Can the attorney avoid being subject to discipline if a firm uses her contract work in a way that constitutes misconduct, either regarding clients or before a tribunal, assuming she either knows or could have known about the misconduct? a) Yes, because she is not an employee of the firm and therefore cannot control how the firm uses her legal work product. b) Yes, if her contract with the firm includes a provision in which the firm takes full responsibility for misconduct, malpractice, or ethical violations. c) No, a contract lawyer has a duty to comply with the requirements of the Rules of Professional Conduct, notwithstanding that the lawyer acted at the direction of another person. d) No, if the clients in the matters agree that they will not hold her responsible for the work product she contributes to their representation. Rule 5.1; Phila. Ethics Op. 2010-4 (2010); S.C. Ethics Op. 10-08 (2010)

c) No, a contract lawyer has a duty to comply with the requirements of the Rules of Professional Conduct, notwithstanding that the lawyer acted at the direction of another person.

An attorney represented a defendant who was facing criminal charges for violating a newly- enacted statute. The statute that made certain activities that had previously been minor misdemeanors into felonies. The district attorney handling the case spoke to the defendant's attorney, explaining that this was an important test case of a new statute, so the D.A.'s office was seeking the maximum penalty. The state did, however, offer a reduced sentence if the defendant would plead guilty, but this would still carry three years of jail time. Outraged, the attorney shouted that this had always been a misdemeanor charge in the past, which carried no jail time at all, and ended the conversation abruptly at that point. Without mentioning the conversation to the defendant, the attorney drafted an impassioned motion to dismiss the charges and filed it with the court. The attorney had a reasonable belief that his motion could be successful, though it was far from certain. The judge agreed with the attorney and granted the motion, dismissing all the charges against the attorney's client. Were the attorney's actions permissible under the Model Rules? a) Yes, the dismissal of the charges in this case meant that the client was far better off than if he had considered the plea bargain offered by the prosecutor. b) Yes, the attorney would still have a chance to tell the client about the proffered plea if the judge had not granted the motion to dismiss. c) No, a defense lawyer who receives a proffered plea bargain in a criminal case must promptly inform the client of its substance, unless the client has previously told the lawyer to accept or to reject the offer. d) No, the attorney should have given more consideration to the serious public policy reasons for the legislature enacting the new statute. Rule 1.4

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

An attorney had supervisory responsibilities for a new lawyer at her firm, but she had her own cases and clients to handle. It was a busy season for the firm, so the attorney did not check on the associate herself, but she would take time to answer questions if the associate approached her. The associate needed more oversight and direction that she received, and she committed several serious ethical violations. The supervising attorney had no way of knowing about these because the associate was always careful to cover up her mistakes or blame others when something went wrong. Could the supervising attorney avoid responsibility for the associate's ethical violations even if she did not direct, ratify, or have knowledge of the associate's misdeeds? a) Yes, because the Model Rules require actual knowledge of a subordinate's ethical violations to trigger disciplinary liability for the supervising attorneys. b) Yes, the Model Rules require actual knowledge of the violations to trigger a duty to report the violations of another lawyer in one's firm. c) No, an attorney having direct supervisory authority over another lawyer must make reasonable efforts to ensure that the other lawyer conforms to the ethical rules, even apart from the supervising attorney directing, ratifying, or even knowing about a specific violation. d) No, supervisory attorneys are automatically responsible for ethical violations by their subordinates if the subordinate engages in a repeated pattern of hiding, covering up, or blaming others for her actions. Model Rule 5.1 Cmt. 6

c) No, an attorney having direct supervisory authority over another lawyer must make reasonable efforts to ensure that the other lawyer conforms to the ethical rules, even apart from the supervising attorney directing, ratifying, or even knowing about a specific violation.

Alpha Firm and Beta Firm represent the two parties in a high-stakes commercial transaction - the sale of a subsidiary corporation from one large, international conglomerate to the other. An attorney at Alpha Firm is married to a lawyer at Beta firm, but the spouse at Beta Firm is not involved in the representation. If a problem arose, would a tribunal that follows the ABA Model Rules impute the marriage-based conflict of interest that Alpha Firm's attorney to all the other lawyers in the firm, if another lawyer at Alpha Firm handled the representation in this case? a) Yes, because personal conflicts of interest automatically impute to the other lawyers at the same firm. b) Yes, because conflicts based on marriage or family relationships receive special scrutiny from the courts and are the most frequent basis for disqualification. c) No, because a conflict arising from a lawyer's marriage to another lawyer at an opposing law firm does not necessarily impute to all other lawyers in the firm. d) No, because the representation involves a transactional matter, and disqualification due to imputed conflicts of interest applies only in the litigation context. Rule 1.10 Cmt. 31

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

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

c) No, because lawyers in a firm may disclose to each other information relating to a client of the firm, unless the client has instructed that certain information be available only to specified lawyers.

An attorney, a venture capitalist, and a land developer agreed to form a corporation to develop a new shopping mall. Their agreement allocates ownership shares based on the appraised value of the venture capitalist's land, which he is contributing for this enterprise, the market value of the developer's design and construction work, and the attorney's regular fees for the hours contributed to the formation and ongoing representation as corporate counsel. The attorney was already representing both the venture capitalist and the developer as his clients in unrelated matters. Which of the following is NOT a duty of the attorney in this situation, if the attorney performs the others? a) The attorney must fully disclose in writing all the terms of the development corporation ownership agreement to the developer and the venture capitalist in language they understand, and the terms of the agreement are objectively fair and reasonable the two clients. b) The attorney must advise the developer and the venture capitalist in writing that they should obtain the advice of independent legal counsel on the transaction, and give them time to do so; c) The attorney must withdraw from representing the venture capitalist and the developer on the other matters, at least until the process of forming the corporation is complete, to avoid conflicts of interest. d) The venture capitalist and the developer give informed consent, in writing, to the terms of the transaction and the attorney's role in the transaction, including whether the attorney is representing them in the transaction. Rule 1.8(a); Restatement § 126

c) The attorney must withdraw from representing the venture capitalist and the developer on the other matters, at least until the process of forming the corporation is complete, to avoid conflicts of interest.

A small independent soda company had a delivery truck that collided with a school bus full of children on a field trip. The company's owner and the driver, who were co-defendants in the first lawsuit over the incident, met with their litigation attorney - the owner agreed to pay the fees for representing them both. As they were discussing the accident, the attorney called in his own accident scene investigator to join the discussion, and the investigator took notes. As the litigation progressed, the driver eventually filed a cross-claim against the owner for indemnification if the driver must pay damages to the plaintiff. At that point, the plaintiff sought to depose the attorney's accident investigator to discover what admissions the co-defendants made in the previous conversation. The owner objected. How is the court likely to rule? a) The deposition can go forward, and the investigator's disclosures will be admissible, because his presence in the conversation as a non-client waived attorney-client privilege for the others. b) The deposition can go forward, and the investigator's disclosures will be admissible, because the driver and the owner are now adverse parties in the litigation. c) The conversation comes under the protection of attorney client privilege because at the time it occurred, the driver and owner were both clients and the investigator was there to assist the attorney. d) The investigator's notes will be admissible, even if the participants in the conversation do not have to disclose what they said. Restatement 68-86

c) The conversation comes under the protection of attorney client privilege because at the time it occurred, the driver and owner were both clients and the investigator was there to assist the attorney.

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

c) They may provide, as stated, that when a shareholder dies, a fiduciary representative of the estate may hold stock in the corporation for a reasonable time during administration of the estate before cashing out the shares and transferring the funds to the heirs.

Big Firm engages in aggressive affirmative action in its hiring. It runs ads soliciting applications from minorities and women, and even though they sometimes interview non- minority applicants, they have decided internally to hire only women and minorities for the next five years. Currently, anti-discrimination laws would not require such a practice. Has the firm violated the MRPC? a) Yes, the firm is practicing discrimination in its hiring by favoring minorities and women over others b) Yes, substantive law of antidiscrimination absolutely forbids interviewing candidates and then not hiring them based on race or gender. c) No, the Model Rules do not apply to hiring practices or other law firm management matters. d) No, lawyers may implement initiatives aimed at recruiting, hiring, retaining, and advancing diverse employees without violating the Model Rules. Rule 8.4 Cmt. 4

d) No, lawyers may implement initiatives aimed at recruiting, hiring, retaining, and advancing diverse employees without violating the Model Rules.

An attorney represented a client as the plaintiff in a legal malpractice action against another lawyer for simple negligence. The plaintiff's attorney sent a demand letter to the other lawyer, who immediately notified his malpractice insurer. The insurer offered to settle immediately, for the full amount that the client was demanding, mostly to avoid the publicity and attention that would result if litigation ensued, including the risk that the claim would inspire others to file lawsuits against the same firm. The attorney had received prior authorization from the client, during the initial consultation, to accept a settlement offer for that amount whenever it might come as the matter progressed. The attorney did not file pleadings in court and did not file a grievance with the state bar against the other lawyer. Did the attorney violate his ethical duty of zealous advocacy by not filing pleadings or a grievance? a) Yes, a lawyer should pursue a matter on behalf of a client despite opposition or personal inconvenience, taking whatever lawful and ethical measures might be necessary to vindicate a client's cause or endeavor. b) Yes, a lawyer must also act with commitment and dedication to the interests of the client and with zeal in advocacy upon the client's behalf. c) No, if a client has clearly expressed a preferred settlement amount, the lawyer has no obligation except to obtain than amount. d) No, a lawyer does not have to press for every advantage that might be potentially achievable for a client, having professional discretion to determine how a matter should be pursued. Rule 1.3 Cmt. 1

d) No, a lawyer does not have to press for every advantage that might be potentially achievable for a client, having professional discretion to determine how a matter should be pursued.

An attorney injured his back and leg badly in a car accident. In the aftermath, the attorney became chemically dependent on prescription pain medications. This addiction progressed until it began to affect the attorney's relationships and work habits. The partners in his firm eventually insisted that the attorney seek professional help, so he enrolled in an outpatient rehab program and a twelve-step support group for painkiller addicts. The supervising psychiatrist in the outpatient program expressed concern about the attorney's complete dependence on the painkillers and his diminished ability to function physically or mentally. He advised the attorney to take a leave of absence from work, because he did not believe the attorney could competently fulfill his obligations to his clients. This same concern had prompted the attorney's partners to insist that he seek professional help. Just before enrolling in the outpatient program, a new client had approached the attorney about representing her in a tax dispute with the Internal Revenue Service. The attorney had handled such cases before, but it was not his specialty. The client is so desperate that he tells the attorney privately that he is considering shredding documents to hide some of his tax fraud from the IRS, which the attorney says he should not do, but worries that the client might do it anyway. May the attorney undertake the representation? a) Yes, assuming the attorney can acquire the necessary knowledge or expertise through additional research to handle the complexity of the matter on the client's behalf. b) Yes, because the attorney is getting help for his addiction problem and should recover soon. c) No, because the client has proposed engaging in fraud or criminal activity. d) No, because a physical or mental condition currently materially impairs the lawyer's ability to represent the client. Rule 1.16(a)(2)

d) No, because a physical or mental condition currently materially impairs the lawyer's ability to represent the client.

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

d) No, because in connection with a disciplinary matter, a lawyer must not knowingly fail to respond to a lawful demand for information from an admissions or disciplinary authority.

Conglomerate Corporation owns a little more than half the stock of Giant Company. Conglomerate's stock, in turn, is public, available on the public stock exchange, as is the remainder of the stock in Giant Company. The president of Conglomerate Corporation has asked Attorney Stevenson to represent Giant Company in a deal by which Giant would make a proposed transfer of certain real property to Conglomerate Corporation. The property in question is unusual because it contains an underground particle collider used for scientific research, but also valuable farmland on the surface, as well as some valuable mineral rights in another part of the parcel. These factors make the property value difficult to assess by reference to the general real-estate market, which means it is difficult for anyone to determine the fairness of the transfer price in the proposed deal. Would it be proper for Attorney Stevenson to facilitate this property transfer at the behest of the president of Conglomerate, if Attorney Stevenson would be representing Giant as the client in this specific matter? a) Yes, because Conglomerate Corporation owns more than half of Giant Company, so the two corporate entities are one client for purposes of the rules regarding conflicts of interest. b) Yes, because the virtual impossibility of obtaining an appraisal of the fair market value of the property means that the lawyer does not have actual knowledge that the deal is unfair to either party. c) No, because the attorney would be unable to inform either client fully about whether the proposed transfer price would be in their best interest. d) No, not unless the attorney first obtains effective informed consent of the management of Giant Company, as well as that of Conglomerate, because the ownership of Conglomerate and Giant is not identical, and their interests materially differ in the proposed transaction. Restatement § 131

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

An attorney hired a second-year law student as a clerk. The law student is unlicensed. The attorney has the law student perform a variety of tasks. Which of the following tasks, if performed by the law student, would mean that the attorney is subject to discipline? a) Conducting online legal research and writing research memoranda. b) Drafting a customized retainer agreement for the attorney to use with clients pursuing claims against a government agency c) Interviewing accident witnesses and potential character witnesses; and asking them to certify the accuracy of the student's written notes. d) Reaching settlement agreements with insurance companies before the attorney indeed files any lawsuit in the matter. Rule 5.5(b) & Cmt 2

d) Reaching settlement agreements with insurance companies before the attorney indeed files any lawsuit in the matter.