MPRE 2021

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A bank and trust company maintains a list of approved estate and trust lawyers as a service to their customers who seek advice on estate planning matters. When a young attorney opened her trust and estate practice in town, she asked other lawyers how she could get on the bank's approved list. They explained that the bank lists lawyers who always name the bank in wills and trust agreements they draft for clients who need an institutional executor or trustee. The bank is one of the most stable and reputable banks in the state, and its fees for executor and trustee services are competitive with those of similar institutions. In light of what she has been told by the other lawyers, may the young attorney seek to have her name included on the bank's list? ANo, because a tacit condition of being on the list is always to name the bank as executor or trustee. BNo, because a lawyer must not solicit business through an intermediary. CYes, because naming the bank causes no harm to clients who need an institutional executor or trustee. DYes, because those who use the bank's list are already bank customers.

A full-time judge lives in State A. Her father lives in a retirement home in State B. The judge's father told her that several of his friends in the retirement home had employed an attorney to write wills for them, and that in each will the attorney had included a bequest to himself. Each bequest was approximately 50% of the estimated total value of the person's probable estate. The friends told the judge's father that they did not really want to leave the attorney anything, but they had assumed it was merely a matter of routine, a part of the attorney's compensation for drafting the will. The attorney is admitted to practice in State B, but not in State A. The judge did not talk personally with any of her father's friends, but she believes that her father's rendition of the story is entirely accurate. Would it be proper for the judge to communicate directly with the attorney about the matter, and if that does not satisfy her, to communicate with the attorney disciplinary authority in State B about the matter? AYes, because she has received information indicating a substantial likelihood that the attorney has violated a legal ethics rule. BYes, because she has personal knowledge that the attorney has violated a legal ethics rule. CNo, because legal ethics violations that take place outside State A are not her concern. DNo, because she is not allowed to communicate directly with the attorney about the supposed legal ethics violation.

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

A potential client consulted an attorney, hoping to hire her to represent him as plaintiff in a medical malpractice action against his doctor. Without mentioning the doctor's name, the client described the alleged acts of malpractice and said that they happened more than two years ago. Only at that point did the potential client mention his doctor's name. The attorney immediately stopped the potential client and said she could not represent him because she was already representing the doctor in an unrelated matter, and she urged him to consult another lawyer. That was the end of the conversation. The potential client did nothing further for 15 months, at which point he consulted another lawyer. By that time, the statute of limitations had run on the potential client's claim against the doctor. The potential client then sued the first attorney for legal malpractice, alleging that the attorney was negligent in not warning him about the statute of limitations. Is the attorney subject to civil liability in the potential client's malpractice case? ANo, because the attorney did what a reasonably prudent lawyer would do in the circumstances-decline to represent the potential client and suggest that he consult other counsel. BNo, because the potential client never became the attorney's client and is therefore not a proper plaintiff in a malpractice action against the attorney. CYes, because the attorney had no legal or ethical reason to reject the potential client as a client and therefore had a duty to warn him about the statute of limitations. DYes, because a reasonably prudent lawyer would have foreseen that the potential client might delay in consulting another lawyer.

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

A retired attorney practiced admiralty and maritime law for 45 years in Maine. He stopped paying his bar dues in Maine when he retired, and he is no longer licensed to practice there. He and his wife moved to a retirement village in New Mexico, but he did not seek to become licensed to practice law in New Mexico. After a few months of playing golf and puttering in the garden, the retired attorney got bored and started missing the challenges of law practice. He therefore joined the unpaid staff of volunteer lawyers at the Rio Grande Walk-In Legal Advice Clinic, which is run by a nonprofit organization. The clinic's purpose is to offer free, quick, accurate, compassionate legal advice to walk-in clients who cannot afford ordinary legal service and who have legal problems that can be solved quickly, without litigation or other time-consuming procedures. Before they ever see one of the clinic's lawyers, all of the clients must give informed consent to the limited nature of the legal services they will receive. The retired attorney works at the clinic three days a week, and he dispenses legal advice on all sorts of matters-although he has yet to find a client who needed admiralty or maritime advice. The retired attorney enjoys the work because it makes him feel useful again, and because it gives him a cornucopia of interesting stories to tell his wife about his clients' various legal troubles. Which of the following statements is correct? AThe retired attorney is subject to discipline for practicing law without a license. BThe retired attorney is subject to discipline for failing to pay his bar dues in Maine. CThe retired attorney's volunteer work is proper because one does not need to be licensed to dispense legal advice at a quick-service clinic like this one. DThe retired attorney's conversations with his wife are proper because no confidential lawyer-client relationship is formed at a quick-service clinic like this one.

A young attorney, three years out of law school, had never set foot in a courtroom. The attorney was on the board of directors of a nonprofit preschool. One of the preschool's teachers was charged with felony child abuse for allegedly molesting three pupils. After conducting its own careful investigation, the preschool's board of directors concluded that the criminal charge was totally unfounded, and the board resolved to provide defense counsel for the teacher. The young attorney volunteered to do the work without a fee. A few days before the trial was to begin, the attorney became convinced that he was not competent to serve as the teacher's trial counsel. He asked the trial judge for permission to withdraw. After thoroughly questioning the attorney about his preparation for trial, the judge said that while he understood the attorney's anxiety, he believed that the attorney was perfectly competent to handle the case. The judge denied the attorney's motion to withdraw but postponed the trial for seven days to allow him to complete his preparation. Instead of doing what the judge ordered, the attorney advised the teacher that he would not defend her. He handed her all of the files in the case and advised her to retain another attorney. Is the attorney subject to discipline? AYes, because he abandoned his client in direct violation of the trial judge's order. BYes, because he undertook a case that he was not competent to handle. CNo, because he believed that he was not competent to represent his client at trial. DNo, because he was working pro bono, not for a fee.

After graduating from law school, an attorney was admitted to practice in one state and not in any other jurisdiction. She joined the United States Army Judge Advocate General's ("JAG") Corps-the corps of lawyer-soldiers who provide legal services to the Army throughout the world. After completing her officer training and her training in military law, she was assigned to the JAG office at a military base in a different state. Even though she was not admitted to practice in that state, she was assigned to the legal assistance desk. According to Army regulations, her job is to provide legal services to military personnel and their dependents concerning a wide range of personal legal problems, including civil, domestic, and financial matters. An officer and his wife ask the attorney for legal advice about financing a mobile home, which they plan to put in a mobile home park located in the town closest to the military base. The attorney knows absolutely nothing about the business and legal issues involved in financing a mobile home, but she is willing to undertake additional research to learn about these issues. Would it be proper for the attorney to give the requested advice to the officer and his wife? AYes, because she is willing to do the research necessary to give competent advice on mobile home financing. BNo, because she is not knowledgeable about these business and legal issues. CNo, because she is not admitted to practice general civil law in the new state. DNo, because mobile home financing is not directly related to the Army's mission.

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

An attorney represents the defendant in a criminal case. The defendant is charged with vehicular homicide, a felony. Under the criminal statute in question, a defendant is guilty if he caused the victim's death by driving a motor vehicle either intentionally or recklessly in disregard of the safety of others. In the defendant's case, the critical issue is whether the traffic light facing the defendant's traffic lane was green at a specified moment. If the light was green, then the defendant is not guilty, but if it was red, then the defendant is guilty. The defendant himself has blocked the entire event from memory and has no idea whether the light was green or red. Five bystanders were in a position to see the light at the time in question. The attorney interviewed four of them. With varying degrees of uncertainty, all four of them told the attorney that they believe the light was red but that they are not positive. Based on their recollections, as well as certain physical evidence in the case, the attorney herself believes that the light was probably red, but of course she was not present at the scene and cannot be certain. Then the attorney interviewed the fifth bystander, who said that he simply could not remember what color the traffic light was. The attorney replied: "My client is facing 20 years in jail, and the whole case against him turns on the color of that light. My client and I would both be eternally grateful to you if you could testify that the light was green. Would you help us out?" After thinking it over, the fifth bystander said he would be glad to help by testifying that the light was green. At the trial, the attorney presented the fifth bystander's testimony that he saw the light, that he remembers what color it was, and that it was green. The jury believed the fifth bystander, and the defendant was acquitted. Is the attorney subject to criminal liability for inducing the fifth bystander to testify falsely? AYes, because both the bystander and the attorney knew that the bystander did not remember what color the light was. BYes, because neither the bystander nor the attorney was certain that the light was green. CNo, because neither the bystander nor the attorney was certain what color the light was. DNo, because the defense lawyer in a criminal case must resolve all doubtful facts in her client's favor when she presents evidence on her client's behalf.

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

A solo practitioner limits her law practice to two kinds of cases: medical malpractice and products liability. When the solo practitioner turned 67, she began looking for someone to buy her law practice. Ultimately, she sold the medical malpractice part of her practice to lawyer Alpha for $400,000, and she sold the products liability part of her practice to attorney Beta for $250,000. The solo practitioner then retired. Within 30 days after the sales to Alpha and Beta, approximately 40% of the solo practitioner's former clients decided to collect their case files and take their business to different lawyers. Were the sale from the solo practitioner to Alpha and the sale from the solo practitioner to Beta proper? AYes, even though the solo practitioner sold pieces of her practice to two different buyers, and even though 40% of the solo practitioner's clients left the buyers within 30 days. BYes, but the solo practitioner is subject to civil liability to the two buyers for unjust enrichment because 40% of the solo practitioner's clients left the buyers within 30 days. CNo, because the solo practitioner sold pieces of her practice to two different buyers. DNo, because 60% of the solo practitioner's clients stayed with the buyers for more than 30 days.

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

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

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

When an attorney was an associate at a law firm, she did the legal work for one of the firm's clients on a land sale transaction that earned the client millions of dollars. In gratitude, the client asked the attorney whether she had any unfulfilled wishes. The attorney told the client that she wished she had enough money to start her own solo law practice. The client then told her that he would lend her $100,000 to set up her new practice. In return, she would thereafter do all of his legal work at a 5% discount from her normal hourly fee, and she would pay off the $100,000 loan by monthly payments equal to 10% of her net income for the prior month. The attorney was delighted. She drafted a complete, detailed agreement between herself and the client, and she advised the client in writing to obtain outside legal advice before signing the agreement. The client obtained the outside advice and signed the agreement, and the attorney set up her solo practice accordingly. Is the attorney subject to discipline? ANo, unless she allows the client to interfere with her professional judgment in handling work for other clients. BNo, unless the attorney fails to give the law firm timely notice of the transaction. CYes, unless the law firm consented to the loss of the client as a firm client. DYes, unless the client is a lawyer.

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

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

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

Two years ago, when a couple divorced in State A, the court awarded the wife custody of the three children and ordered the husband to pay the wife $3,000 per month in child support and alimony payments. The husband failed to make the $3,000 payments for 17 months in a row. In desperation, the wife hired a new attorney to represent her in a proceeding to collect the past due payments from the husband. State A has no law or court rule that requires the loser to pay the winner's attorneys' fees in domestic relations matters. Because the wife had no money to pay her new attorney a regular fee, the new attorney agreed to do the work on a contingent fee basis for 10% of whatever amount the wife was ultimately able to recover. The new attorney won an award for the wife of the entire amount due ($51,000), and by tracking down and attaching the husband's secret bank account, he got the full amount paid to the wife. He then sent the wife a bill for his share, $5,100. Is the wife's new attorney subject to discipline? ANo, as long as $5,100 is a reasonable fee for the work he did. BNo, because the wife had no money to pay a regular fee. CYes, because the new attorney used a contingent fee in a domestic relations matter. DYes, because the new attorney took a portion of the money that was intended for support of the wife and the children.

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

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

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

An attorney represented a defendant in a criminal trial. After the jury returned a guilty verdict, the defendant was taken to jail and the jury was discharged. While walking to his car, the disappointed attorney spotted one of the courtroom spectators in the parking lot. The attorney recalled that the spectator had been a member of the jury pool, but he had exercised a peremptory challenge against her because he instinctively felt that she would vote against the defendant. Despite not being selected as a juror, the spectator developed an interest in the case and had attended the entire trial. In an attempt to determine whether his instinct during jury selection was correct, the attorney approached the spectator and asked her whether she would have voted to convict the defendant. The spectator said, "I'd rather not talk about it." When the attorney explained that he was simply looking for constructive feedback, the spectator changed her mind and agreed to a brief interview. The attorney and spectator spoke for a few minutes, and the communication did not involve misrepresentation, coercion, duress, or harassment. Is the attorney subject to discipline? AYes, because the spectator initially declined to speak with the attorney. BYes, because post-trial contact with prospective jurors is prohibited. CNo, because the communication did not involve misrepresentation, coercion, duress, or harassment. DNo, because the spectator was not chosen for the jury.

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

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

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

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

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

A 12-year-old boy was badly injured when he was struck by a dump truck owned by a construction company and driven by the company's employee. The boy and his parents sued the construction company and the employee. The first count of their complaint alleges that the employee drove negligently while acting within the scope of his duties for the construction company, and that the construction company is therefore liable for the boy's injuries. The second count alleges that the employee drove negligently while on a frolic of his own, and that the employee is therefore liable for the boy's injuries. The construction company hired an attorney to defend both the construction company and its employee. The attorney conducted a careful investigation of the facts and concluded that the employee was in no way negligent; he was driving slowly and carefully when the boy suddenly ran out into traffic from between two parked cars. The attorney further concluded that the employee was acting within the scope of his duties when the accident happened. The attorney concluded that he could win the case because of the lack of negligence, and that he could effectively represent both the employee and the construction company. He then carefully explained the potential conflicts of interest to both of them and obtained their informed consent, confirmed in writing, to the joint representation. After exhaustive discovery proceedings, the attorney remained convinced that the employee was not negligent, but he nonetheless explained the potential conflicts to the employee and the construction company a second time and again obtained their informed consent, confirmed in writing, to the joint representation. Three weeks before the case was scheduled for trial, counsel for the plaintiffs moved to disqualify the attorney due to a conflict of interest between the employee and the construction company. Must the trial judge disqualify the attorney? ANo, because there is no actual or potential conflict between the employee and the construction company. BNo, because the employee and the construction company gave informed consent, confirmed in writing, to the joint representation. CYes, because the potential conflict creates an appearance of impropriety. DYes, even though the employee and the construction company gave informed consent, confirmed in writing, to the joint representation.

A Hollywood movie producer was charged under a criminal statute for unfair trade practices, and now faces a civil claim under the same statute. The producer retains an attorney to represent him in both suits. The attorney is a nationally known defense attorney who has represented many famous people. Most recently, he defended a celebrity in a notorious murder case that held the country rapt for several weeks. The attorney explains to the producer that the representation is very complex and would take a majority of his time for several months. Given the attorney's steep hourly rate, the producer's legal fees would likely be around $1 million. The producer is short on cash and makes the following proposal: If the attorney will represent him in both the civil and criminal suits, the producer will produce a movie based on the attorney's most famous past cases, told from the attorney's viewpoint. The attorney would have complete creative control and would be entitled to all of the movie's profits, which could be anything from $0 to $100 million. The producer had his personal attorney draw up a proposal to this effect and submitted it to the attorney. Assuming that the attorney receives any consent necessary from his former clients who might be portrayed in the movie, is this proposed arrangement proper? AYes, but only if the payment from the movie profits is for the civil suit only. BYes, but only if the ultimate amount paid to the attorney is not excessive in light of the work done. CNo, because any amount over $1 million is clearly excessive, and this arrangement could be worth $100 million. DNo, because a lawyer must not acquire media rights to a story concerning the lawyer's representation of a client.

A client lives in State A and is a regular client of an attorney who is admitted to practice only in State A. When the client was on vacation in distant State B, she was injured in a car accident caused by a resident of State B. The client hired the attorney to represent her in a civil action against the State B driver. For reasons of jurisdiction and venue, the case had to be filed and tried in State B. The written fee agreement between the client and the attorney provided that: (1) The attorney would assume full responsibility for the case as lead lawyer; (2) The client would pay the attorney 40% of the net recovery after deduction of litigation expenses; (3) The attorney would associate a State B lawyer to serve as trial counsel in State B; (4) The State B lawyer would assume responsibility only for his work as trial counsel; and (5) The attorney would pay the State B lawyer an appropriate portion of the 40% contingent fee. Would it be proper for the attorney to split his fee with the State B lawyer under the circumstances described above? ANo, because the attorney is not admitted in State B. BNo, because the share that each lawyer will receive was not disclosed in the written fee agreement. CYes, because the State B lawyer was assuming responsibility for his work as trial counsel. DYes, because there was a written fee agreement.

A personal injury attorney and an orthopedic surgeon are good friends, and they have a high mutual regard for each other's professional abilities. One day on the golf course, they made a reciprocal referral agreement: whenever the attorney has a personal injury client with need for an orthopedic surgeon, the attorney promised to refer the client to the surgeon. Similarly, whenever the surgeon has an injured patient with a need for a personal injury attorney, the surgeon promised to refer the patient to the attorney. The agreement was oral, not written, and there was no mention of an expiration date; both women simply assumed that the agreement would continue indefinitely until one or the other wanted to end it. Likewise, they did not discuss whether the agreement would be exclusive; both women simply assumed that neither of them would refer someone to a competitor of the other. Was it proper for the attorney to make this agreement with the surgeon? ANo, because the agreement was not reduced to writing. BNo, because the agreement was of an indefinite duration. CNo, because a lawyer must not give anything of value to a person for recommending her services. DNo, because a lawyer must not enter into a reciprocal referral agreement with a nonlawyer.

An attorney is defending a marine supply company in a civil action brought by the state attorney general under a statute that makes it a civil offense for any person or business entity to bribe or give a kickback to a state official. The statute authorizes fines of up to $100,000 per transaction for any violation. The marine supply company has a strict corporate policy that prohibits its employees from bribing or giving kickbacks to anyone. Employees who violate the policy are subject to immediate discharge and are required to indemnify the marine supply company for any loss it suffers as a consequence of the violation. The attorney general has noticed the depositions of dozens of the marine supply company's employees. One of these employees, prior to his recent retirement, was the sales manager of the marine supply company. The attorney met with this employee to prepare him for his deposition. At the outset of the interview, the attorney agreed to represent the employee without charge, and the attorney told the employee that anything said between them would be confidential. During the interview, the attorney asked the employee whether he had ever bribed any state officials. The employee confessed that he had, but said it had been necessary because all of the company's competitors were doing it, too. What course of action may the attorney pursue at this point? AWithdraw from the case and inform the attorney general what the employee said. BWithdraw from the case and keep the employee's statement in confidence. CWithdraw from representing the employee and inform the marine supply company what the employee said. DContinue in the case, inform the marine supply company what the employee said, and advise the marine supply company to seek prompt settlement.

An attorney regularly represents a manufacturer of electric kitchen appliances. One morning the president of the manufacturing company called the attorney and asked if the attorney had seen the newspaper story about a woman who was electrocuted when she opened the door of her dishwasher. The company president stated that he believed the dishwasher was one that his company had manufactured. The company president also stated that he found some quality control records from that period which reflected that some dishwashers left the plant without proper testing. He continued that the records should have been shredded, but somehow had been overlooked, and said that he intended to send the records to the shredder immediately unless the attorney told him that he could not. Must the attorney advise the president to keep the records? AYes, unless the company has a clearly established policy of shredding quality control records after two years. BYes, because the records have potential evidentiary value if the company gets sued. CNo, because at this point there is no litigation pending against the company respecting this matter. DNo, unless it was certain that the company was the manufacturer of the dishwasher in question.

The State A Bar has established an Interest on Lawyers' Trust Accounts ("IOLTA") program, whereby lawyers deposit client trust funds into special client trust accounts that pay interest to the State A Bar, which then uses the money to help fund legal services for poor people. The program requires lawyers to deposit a particular client's funds in an IOLTA account unless the funds would earn more than $50 in interest during the time they are entrusted to the lawyer. If the client's funds would earn more than $50 in interest during that time, the lawyer must deposit them in a separate interest-bearing trust account and pay the interest to the client. An attorney settled a personal injury case brought by her client. The defendant sent the attorney a check for $9,000. Because she was leaving that day for a one-month vacation, the attorney instructed her assistant to deposit the check in the attorney's IOLTA account. The assistant is authorized to make deposits to and withdrawals from the account. The attorney did not tell her assistant to notify the client that the check had arrived. When the attorney returned a month later, she notified the client that the check had been received, and the client came to the attorney's office that same day to collect the $9,000. At the prevailing rate of interest, the $9,000 would have earned $40 during the month that the attorney was gone. Was the attorney's handling of the matter proper? ANo, because she should have instructed her assistant to deposit the check in a separate trust account that would earn interest for the client. BNo, because she should have instructed her assistant to notify the client promptly that the check had arrived. CYes, because she handled the matter in accordance with the State A IOLTA program. DYes, because the client was not harmed.

A client hired an attorney to draft a will for him. The client willed his entire estate to a 43-year-old widow. The client told the attorney in confidence that he was neither a relative nor a friend of the widow. The client explained that he felt a moral obligation to the widow because he had killed her husband, and he had never become a suspect or confessed his sin to anyone. One day after signing the will, the client committed suicide. In due course, all of the client's assets were distributed to the widow, and the probate court closed his estate and discharged his executor. The attorney never told the widow or anyone else that the client had confessed to killing the widow's husband. Now, a few years later, an enthusiastic young prosecutor is charging an innocent man with murdering the widow's husband in the first degree with aggravating circumstances, and the prosecutor is seeking the death penalty. May the attorney voluntarily tell the innocent man's defense counsel what his client told him in confidence about killing the widow's husband? AYes, the attorney not only may, but he must, tell the defense counsel what the client told him. BYes, the attorney may tell, but he would not be subject to discipline if he decides not to do so. CNo, the attorney would be subject to discipline if he told defense counsel because the attorney-client privilege survives the death of the client. DNo, because the client's confidential confession to the attorney would be inadmissible hearsay if offered against the prosecution in the murder trial.

B The controlling doctrine in this case is the lawyer's ethical duty of confidentiality, not the attorney-client privilege. The attorney needs to know whether he can voluntarily reveal the client's confession, not whether he would be forced to do so if he were put on the witness stand in a court. ABA Model Rule 1.6(b)(1) states the applicable exception to the ethical duty of confidentiality: A lawyer may reveal confidential information if the lawyer reasonably believes that doing so is necessary to prevent reasonably certain death or substantial bodily harm. One might quibble whether the innocent man's death is "reasonably certain" when his trial has not even started, but surely the ethics rule should not be read to require the innocent man to order his last meal before being loosed from the executioner's grip. (A) is wrong because ABA Model Rule 1.6(b)(1) gives the lawyer discretion to reveal the client's confession; the Rule does not force him to do so. [See comment 15 to ABA Model Rule 1.6] (A few states go farther and require disclosure to prevent death or substantial bodily harm, but they are a small minority.) (C) is wrong for two reasons. First, the applicable doctrine is the ethical duty of confidentiality, not the attorney-client privilege. Second, even if the privilege were the applicable doctrine, who could claim it in this situation? The client cannot because he is dead. The client's executor cannot because the client's estate was closed and the executor was discharged. The attorney cannot claim it because a lawyer's right to claim the privilege is only derivative from the client. (D) is wrong for two reasons. First, the admissibility of this hearsay is irrelevant to the ethics issue. Second, the client's confession would likely be admissible if offered by the innocent man against the prosecution because it is a declaration against penal interest by an unavailable declarant, and the client's will and suicide are independent evidence of the confession's trustworthiness. [See Fed. R. Evid. 804(b)(3); see also Chambers v. Mississippi, 410 U.S. 284 (1973)-due process violation where another man's confession was excluded in a murder trial]

An attorney practices real estate law in an old-fashioned jurisdiction in which almost every real estate transaction requires the services of one or more lawyers. The attorney is also licensed by the state as a real estate broker. The attorney conducts her law practice and her real estate brokerage business in a single office, using one secretary and one paralegal as her support staff. The attorney specializes in small, relatively old apartment buildings that are not in peak condition. They make good investments because they can be bought cheap, fixed up, and leased at favorable rates. When the attorney hears that an owner of a suitable building is looking to sell, she visits them in person and asks them to consider using her to find a buyer. After an owner signs her up as their real estate broker, the attorney lets them know that she can also do the necessary legal work-the title search, the financing documents, the land transfer documents, and the like. Is the attorney subject to discipline? AYes, because a person who is engaged in full-time law practice must not conduct a related business from a single office. BYes, because a person who offers legal services along with real estate brokerage services must not engage in face-to-face solicitation of persons known to need real estate brokerage services. CNo, because the attorney's real estate brokerage services are ancillary to her law practice, and the two operations are conducted from a single office. DNo, so long as her face-to-face pitch to the owners of apartment buildings is truthful and not misleading.

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

A judge sits on a federal appellate court. He and two other federal judges heard a diversity of citizenship case in which they were required to interpret a state statute concerning the marital communications privilege. The judge's two colleagues wrote the majority opinion, in which they concluded that the statute gives only the witness-spouse the right to claim the privilege. The judge wrote a vigorous and scholarly dissent, arguing that the statute gives both spouses the right to claim the privilege. Later, a state senator introduced a bill to amend the statute to reflect the judge's position. The state senate invited the judge to testify about the public policy reasons for giving both spouses the right to claim the privilege. May the judge testify? AYes, but only if the two judges who wrote the majority opinion are also allowed to testify. BYes, because a judge may engage in activities designed to improve the law. CNo, because a judge must not become involved in politics, subject to certain exceptions that do not apply here. DNo, because a judge is not allowed to make public statements about disputed propositions of law, except when acting in his judicial capacity.

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

A justice was on the state supreme court. The state's supreme court rules provide that in capital punishment cases, any one justice of the supreme court is empowered to grant a stay of execution pending appeal to the supreme court. The justice granted such a stay in a recent criminal case, on the ground that the defendant had been denied the effective assistance of counsel at his trial. A few months later, the justice retired from the supreme court and went back to private law practice. In due course, the supreme court heard the appeal in the case, rejected the defendant's effective assistance of counsel contention, and affirmed the death penalty. The defendant then commenced a federal habeas corpus proceeding in an appropriate federal district court and asked that court to appoint a private lawyer to represent him. The district court appointed the retired justice to represent the defendant. A key issue in the habeas corpus proceeding is whether the defendant was deprived of the effective assistance of counsel at his trial. May the retired justice represent the defendant without getting informed consent, confirmed in writing, from all parties to the habeas corpus proceeding? ANo, because there is reasonable ground to doubt the justice's impartiality in the matter. BNo, because when the retired justice was a supreme court justice he granted a stay of execution to the defendant. CYes, because the retired justice was appointed by the district court, and his prior involvement in the matter is not sufficient grounds for refusing the appointment. DYes, because the respondent in the habeas corpus case is the prison warden, not the state.

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

An attorney who limits his practice to bankruptcy law has signed up on the local court roster of lawyers who are willing to take court-appointed criminal defense matters on a pro bono basis. He has taken approximately one such pro bono criminal case each of the past 10 years, but he has won only two of them. The day after tomorrow, the attorney will start the jury trial of a criminal defendant charged with indecent exposure. This morning, the prosecutor held a press conference, at which he told reporters that this defendant had been accused of various sex offenses on six prior occasions. The prosecutor's statements are correct, but none of the prior incidents will be admissible in evidence at the upcoming trial. The defendant's attorney thinks that the prosecutor was simply trying to poison the jury pool by degrading the defendant. The attorney is planning to call his own press conference at which he will give the reporters the rest of the story. The attorney intends to explain that on all six prior occasions, the defendant was arrested but never charged, and all six arrests were made by the same police officer, who holds a personal grudge against the defendant. Which of the following is correct? AThe attorney is subject to discipline for accepting this court appointment in light of his apparent lack of talent for criminal trial work. BThe attorney's proposed statements at the press conference are proper in light of the prosecutor's prior statements to the press. CThe attorney is subject to discipline for accepting court appointments in criminal matters when his active practice is limited to bankruptcy law. DThe attorney will be subject to discipline if he holds the press conference and makes the statements described above.

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

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

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

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

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

A state university receives 45% of its annual budget from the state. The other 55% of the budget comes from private sources. The university is chartered by the state constitution, and it is regarded for all purposes as a unit of the state government. The governing body of the university is its board of overseers, a group of 17 citizens. The chief executive officer of the university is the chancellor, and the chief legal officer is the general counsel. The university has always strived for a student body and faculty that are diverse in age, politics, wealth, race, nationality, religion, sex, and sexual orientation. One year ago, the voters passed a ballot initiative that prohibits all units of the state government, including the university, from considering a person's race when offering employment or admission to school. The initiative prohibits giving any state funds to a governmental unit that violates the initiative. With reluctance, the university board of overseers adopted a new university-wide regulation that requires all admissions officers and hiring committees to obey the initiative. The state supreme court sustained the constitutionality of the initiative, and the United States Supreme Court denied certiorari. An attorney is one of 15 lawyers in the university general counsel's in-house law office. The general counsel assigned the attorney to work with the university's admissions office to develop new admissions criteria that will comply with the initiative. At the outset, the attorney reminded the admissions director that she was not his lawyer, but rather the university's lawyer. The admissions director told the attorney that despite any new admissions criteria, he would continue to consider race because he believed that was the right thing to do. Deep in her heart, the attorney agrees with the admissions director. Which of the following may the attorney do in responding to this situation? AKeep the admissions director's statement in confidence, even if she reasonably believes that the university is likely to lose its state funding as a consequence. BPromptly disclose the admissions director's statement to the state attorney general, who is the official in charge of enforcing the voter initiative. CAttempt to convince the admissions director to obey the voter initiative, and if he refuses, then disclose the situation to the university's general counsel. DAnonymously leak the admissions director's statement to the university's board of overseers.

A swimming coach was charged with assault of another coach. The swimming coach hired a criminal attorney to defend him. Subsequently, the swimming coach pleaded not guilty and was released on his own recognizance. At his first trial, a jury was empanelled, and the prosecutor was almost finished presenting the testimony of her first witness when a signal from her electronic pager interrupted her. The trial judge granted her request for a short recess, at the end of which the prosecutor told the judge that her office had instructed her not to proceed with this case at this time. The judge responded that if the prosecutor stopped now, the defendant would go free. When the prosecutor indicated that she understood, the judge entered a judgment of acquittal and set the swimming coach free. Twenty days later, the prosecutor recharged the swimming coach with the same offense. The swimming coach hired his original criminal attorney to defend him. The same judge presided over the second trial. The swimming coach's attorney made no pretrial motions. This time the prosecutor did not falter, and in due course the jury at the second trial found the swimming coach guilty as charged. The judge sentenced him to prison for the period required by law, but she stayed the sentence and released him on his own recognizance pending appeal. The swimming coach reluctantly paid the criminal attorney's bill for the second trial-$5,000. However, the swimming coach hired a new lawyer for the appeal, and in due course the appellate court reversed the conviction and set aside the prison sentence. The appellate court's opinion stated it had never seen a clearer double jeopardy violation. Will the swimming coach's original criminal attorney be subject to civil liability in a legal malpractice action brought by the swimming coach for having missed the double jeopardy issue? ANo, because the swimming coach never served jail time as a result of the original attorney's error. BNo, even if the swimming coach proves by a preponderance of evidence that he did not commit the assault on the opposing coach. CYes, provided that the swimming coach proves by a preponderance of evidence that he did not commit the assault on the opposing coach. DYes, but the swimming coach can recover only nominal damages.

An attorney in solo practice published a brochure regarding what one should do when injured. The brochure contains accurate, helpful information about obtaining proper medical treatment, recording details of the accident, notifying insurance companies, not making harmful statements, and the like. The attorney's name, address, and telephone number are printed on the brochure's cover. One afternoon, the attorney saw a pedestrian knocked down in a crosswalk by a hit-and-run driver. He and another bystander called 911 and gave the pedestrian emergency first aid until an ambulance arrived. The next day, the attorney visited the pedestrian in the hospital and gave the pedestrian a copy of his brochure. Which of the following is correct? The attorney is subject to discipline, both for publishing the brochure and for giving the brochure to the pedestrian in the hospital. BThe attorney is subject to discipline for publishing the brochure. CThe attorney is subject to discipline for giving the pedestrian a copy of the brochure at the hospital. DThe attorney's conduct was proper because the brochure's contents are neither false nor misleading.

An attorney is a voting member of the legislation committee of a consumer-based law reform group that drafts and advocates the passage of proposed statutes on food safety. The law reform group is currently debating a draft statute that sets quality and safety standards for growth hormones administered to chickens, turkeys, and other poultry. The attorney is also engaged in the private practice of patent law. She regularly represents a biotechnology firm. Using the techniques of genetic engineering, the biotechnology firm invents, develops, and sells a variety of patented growth hormones. The attorney herself has obtained patents on some of these hormones for the biotechnology firm. If enacted into law, the law reform group's proposed statute on poultry hormones could materially increase the biotechnology firm's hormone sales because it is the only firm whose hormones would meet the statute's quality and safety requirements. Would it be proper for the attorney, as a member of the law reform group's legislation committee, to participate in the debate on, and to cast her vote on, the proposed statute? ANo, because the statute could materially benefit the biotechnology firm. BNo, because the attorney may not serve as a member of the law reform group while representing the biotechnology firm. CYes, provided that she informs the legislation committee that she represents an unnamed client whose interests could be materially benefited by the statute. DYes, provided that she informs the legislation committee that she represents the biotechnology firm, whose interests could be materially benefited by the statute.

An attorney practices environmental law. He also happens to be one of the nation's leading experts on the environmental effects of filling wetlands. The state legislature has scheduled hearings on a bill to prohibit the filling of wetlands surrounding a bay. One of the attorney's regular clients is a development company, which owns development rights to some of the wetlands in question. The development company wants to fill its wetlands so that it can build low-cost housing for underprivileged families. The development company hired the attorney to appear as a witness at the legislative hearings and to testify in opposition to the ban on wetland filling. The attorney appeared as a witness, identified himself as an expert on wetlands, and testified vigorously against the proposed legislation. Was the attorney's conduct proper? AYes, unless his testimony was contrary to his own beliefs about the environmental effects of filling wetlands. BYes, because he is a leading expert on the environmental effects of filling wetlands. CNo, unless he informed the legislators that he was appearing in a representative capacity. DNo, because a lawyer must not be a witness for his client on a contested matter.

The attorney general's office does not include any lawyers who are skilled in the field of condemnation law (the law of eminent domain). Consequently, whenever the state wants to use its power of eminent domain to condemn some private property for a public use, the attorney general must hire a private law firm to represent the state in the condemnation proceedings. In contrast to the paltry fees that the state pays to appointed defense counsel in criminal cases, the attorney general pays quite handsomely for condemnation work. The attorney general is a partisan political position that is filled by a contested election every four years. A large state law firm limits its practice to condemnation law. The founding partner is an 87-year-old multimillionaire who remains active on the firm's management committee. When it is time to elect a new attorney general, the partner makes large donations from his personal wealth to each candidate who has any reasonable chance of becoming the next attorney general. The other members of the firm's management committee know about the partner's contributions, and they have formally and informally expressed the firm's thanks for helping the firm obtain future appointments by the attorney general. May the firm accept an appointment from the new attorney general to represent the state in a condemnation case? AYes, because the partner makes his contributions from his personal wealth, and he has a constitutional right to participate personally in the political process. BYes, because the partner's personal political contributions cannot be imputed to the law firm. CNo, because a lawyer or law firm must not accept appointed legal work from a governmental official after making a political contribution for the purpose of obtaining such work. DNo, because to accept such an appointment would create an appearance of impropriety in light of the partner's political contributions.

Two sisters are partners in a bakery. Their partnership agreement says that they will share the work and the profits equally. They are very close, but they constantly bicker-each claims that the other is taking an unfair share of the profits and shirking on the work. Six months ago, they hired an attorney to act as a third-party neutral, to help them resolve their differences once and for all. At the outset, the attorney explained that he would be strictly neutral between them; he would not be representing either one, and neither of them would be entitled to the protections afforded by an attorney-client relationship. After a long series of meetings with them (sometimes separately, sometimes jointly), the attorney proposed a solution. The sisters liked his solution, reduced it to writing, and signed it, vowing to end their bickering forever. Six months later, the feud erupted again, worse than ever. One of the sisters asked the attorney's law firm to represent her in a lawsuit against her partner-sister, seeking to declare the partnership at an end and to bar her partner-sister from entering the bakery premises. Which of the following is correct? AThe attorney is subject to discipline for his failed effort to serve both sisters when their interests were patently in conflict. BIt would be proper for the attorney to represent the sister in the lawsuit as she requested, even without the informed consent of her partner-sister. CThe attorney's law firm partner may represent the sister in the lawsuit as she requested, but only if her partner-sister is notified in writing, and only if the attorney is timely screened and does not share in the fee earned in the lawsuit. DThe attorney's law firm partner would be subject to discipline for representing the sister in the lawsuit as she requested, even if the attorney is timely screened and does not share in the fee earned in the lawsuit.

Solo practitioners Alpha and Beta share office space. Each of them has organized her practice as a professional corporation. The sign on their office door reads: "Attorney Alpha, P.C." "Personal Injury Law" "_____________________________" "Attorney Beta, P.C." "General Practice" Alpha and Beta frequently consult each other about their respective cases, and they often refer clients to one another. Sometimes they work on cases together under a fee-sharing arrangement. When one of them is out of the office, the other responds to client inquiries to the extent that she is able, and to facilitate that practice, each attorney has physical access to the other's client files. A plaintiff hired Alpha to sue a bakery for personal injuries he sustained when he bit into a piece of glass in a dinner roll baked by the bakery. The bakery's liability insurance carrier asked Beta to serve as defense counsel in the case. Alpha and Beta each disclosed her relationship with the other to their clients, and the plaintiff, the bakery, and the insurance company each gave written consent to Beta's serving as defense counsel. May Beta take the case? AYes, because Alpha and Beta believe that they can effectively represent their respective clients. BYes, because the rule of imputed disqualification does not apply to Alpha and Beta. CNo, even though Alpha and Beta believe that they can effectively represent their respective clients. DNo, because Alpha and Beta sometimes share fees.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The state bar association has established a peer counseling program whereby lawyers who are addicted to alcohol or other drugs can receive confidential counseling from other lawyers. The bar association's ethics rule on confidential information provides that communications between the counselor lawyer and the counseled lawyer are to be treated just like confidential communications between an attorney and client. A lawyer is addicted to alcohol and is receiving peer counseling under the program from another lawyer. The lawyer is a large, strong man, and his addiction has made him subject to periodic fits of physical violence. This afternoon, during their peer counseling session, the lawyer told his peer counselor that his client had refused to pay the fees he owes, and that he intended to punch out the client the next time he got roaring drunk. From working with the lawyer over an extended period, the peer counselor believes that he may really do it. May the peer counselor disclose the lawyer's statement to the client and the police? ANo, unless the lawyer consents. BNo, unless the peer counselor is certain that the lawyer will carry out his threat. CYes, even if the lawyer objects. DYes, because he is serving as a peer counselor, not a lawyer.

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

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

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

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

A building contractor and his attorney met with a landowner to negotiate a contract for construction of an office building on the landowner's property. The contractor, the attorney, and the landowner were the only persons present at the meeting. Ultimately, the three of them worked out a written agreement, and the contractor commenced work. However, it soon became apparent that the building site required far more preparation work than the contractor had contemplated when he agreed to the contract price. The contractor and the landowner argued about who had to pay for the additional site preparation. One important issue is whether the landowner made certain oral representations to the contractor during the contract negotiating session that the attorney attended. The contractor contends that the landowner did make the representations, while the landowner contends that he did not. The attorney was present during the entire negotiating session, and she is virtually certain that the landowner did not make the representations. The contractor refused to proceed with construction until the landowner paid for the extra site preparation. The landowner then sued the contractor for specific performance of the construction contract. The contractor asked the attorney to represent him as trial counsel. The attorney should: AAgree to serve as trial counsel for the contractor because the contractor is entitled to the counsel of his choice. BAgree to serve as trial counsel for the contractor because she can refuse to testify if she is called as a witness by the landowner. CDecline to serve as trial counsel for the contractor because a lawyer is not allowed to testify in a manner that is prejudicial to her client. DDecline to serve as trial counsel for the contractor because she can foresee that she will be called as a witness.

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

A law student is applying for admission to the State A Bar. When the law student was in high school, he and his parents lived in State B. His next door neighbor was an attorney admitted to practice in State B, but not in State A. The attorney knew that during the law student's senior year in high school, he was convicted of burglarizing a liquor store. After serving his sentence, the law student went to college and later to law school. The attorney has had no contact with the law student since his high school years, and as far as she knows, the law student has not done anything since high school that would reflect badly on his character. The Bar of State A sent the attorney a routine questionnaire, asking a series of questions about the law student's character. The attorney does not know whether the law student disclosed the burglary conviction on his bar application, and she does not know where to contact him to find out. Which of the following would be a proper response to the questionnaire? AShe should not respond at all because she has no relevant information to provide. BShe should not respond at all because as a State B lawyer she is not obligated to provide information to the Bar of State A. CShe should not mention the law student's burglary conviction in her response unless she first contacts him and obtains his permission to do so. DShe should state what she knows about the law student, including mention of his burglary conviction.

A plaintiff brought a civil action to recover damages for personal injuries he suffered as the victim of alleged police brutality inflicted by three defendant police officers. The trial was widely reported by the media. The jury returned a verdict in favor of the plaintiff and against the three police officers for $500 million. When the trial judge received the verdict, he was shocked by the size of the award. Before dismissing the jurors, the judge told the jurors that when they were sworn in, they had promised that they would deliver a verdict based on the evidence and that they would not be swayed by passion or prejudice. The judge further admonished the jurors that they had failed in those duties, that they had made a mockery of justice, and that they should be ashamed of themselves. He then dismissed the jury, and the defense lawyers renewed their motion for judgment as a matter of law and, alternatively, moved for a new trial. The judge announced that he would rule on the motions the following Monday at 10 a.m. in open court. The press reports of the verdict and the judge's comments to the jury created a great public tumult in the city where the case was tried. On the following Monday, the courtroom was jammed with reporters. Primarily for the purpose of educating the reporters, the judge first gave a detailed explanation of the legal requirements for granting a renewed motion for judgment as a matter of law and for granting a new trial motion. He then granted the renewed motion for judgment as a matter of law and, alternatively, the motion for a new trial. Were the judge's actions proper? ABoth the statements to the jury and the communication with the reporters were proper. BNeither the communication with the reporters nor the statements to the jury were proper. CThe statements to the jury were proper, but the communication with the reporters was not. DThe communication with the reporters was proper, but the statements to the jury were not.

A plaintiff, represented by his attorney, brought suit in federal district court against a pest control company and nine chemical companies for physical and emotional injuries the plaintiff suffered after accidentally inhaling cockroach spray emanating from an apartment that had recently been fumigated by the pest control company. The attorney's theory for suing the nine chemical companies was that the pest control company had probably purchased its cockroach spray from at least one of the nine chemical companies. A large law firm represented one of the nine chemical company defendants. By using depositions and document demands early in the discovery phase of the case, the law firm established that the chemical company it represented had never at any time sold any type of chemical to the pest control company. The law firm then moved for summary judgment as to its client. The plaintiff's attorney offered no substantive response to that motion, but rather filed a countermotion to disqualify the law firm on the ground that the firm was biased against the plaintiff. The trial judge denied the motion to disqualify the law firm and granted the chemical company's summary judgment motion, whereupon the plaintiff's attorney immediately moved for a rehearing, moved to stay the trial judge's two orders, and moved to disqualify the trial judge for bias and prejudice against the plaintiff and in favor of the defendant chemical company, the nature of the bias and prejudice being unspecified. The disposition of these motions consumed an entire year, due to the attorney's obstreperousness and his repeated requests for postponements and extensions of time. Meanwhile, the law firm had to stay actively involved in the case to protect the chemical company's position. This year-long ordeal ended up costing the chemical company $14,500 in attorneys' fees and $6,750 in litigation costs. Is the plaintiff's attorney subject to litigation sanction in the form of an order against the attorney personally to pay the $14,500 in attorneys' fees and the $6,750 in litigation costs? ANo, because the attorney was representing his client zealously within the bounds of the law as he was required to do by the rules of legal ethics. BNo, because litigation sanctions can be imposed only on parties to the litigation, not on their lawyers personally. CYes, even if the attorney was acting in good faith, mistakenly but genuinely believing in the validity of the legal positions he took. DYes, provided that the chemical company can show that the attorney either intentionally or recklessly took frivolous legal positions in order to harass the chemical company.

An attorney agreed to represent a wife on an hourly fee basis in securing a divorce from her husband. The husband is also represented by an attorney. Despite repeated warnings by her attorney, the wife kept pestering her attorney with telephone calls and office visits concerning inconsequential details and trifling personal complaints. When the wife was unable to contact her own attorney on the phone or in person, she would telephone her husband's attorney, and try to put her questions and complaints to him. The husband's attorney always refused to talk to his client's wife. The wife's attorney repeatedly told her not to contact her husband's attorney, but to no avail. Finally, the wife's attorney told the wife that she would withdraw unless the wife changed her ways, but the wife did not do so. The wife's attorney withdrew and sent the wife a fee bill for the total number of hours she had spent on the case. The wife refused to pay the bill, and after futile efforts to settle the matter, the wife's attorney sued her to collect the fee, and stated that she would be holding the file until her bill was paid. Which of the following propositions is not true? AIt was proper for the wife's attorney to withdraw. BIt was proper for the husband's attorney to refuse to talk with the wife on the phone. CIt was proper for the wife's attorney to bill the wife for the total amount of time she spent on the case. DIt was proper for the wife's attorney to hold the wife's file until paid.

An attorney regularly represented an older client in matters relating to the investment of the client's considerable wealth. The client told the attorney that he wanted to put $500,000 into a sound, income-producing investment. The attorney suggested that the two of them pool their money and talent and buy an apartment house. The attorney would put up $75,000 and do the legal work, and the client would put up $500,000 and serve as the live-in manager of the apartment house. The client enthusiastically agreed to the arrangement and told the attorney to draw up the papers. The attorney drafted an agreement between himself and the client, negotiated the purchase of the apartment house, and drafted a deed from the seller to himself and the client as joint tenants with right of survivorship. The attorney gave the client a carefully written explanation of the terms of the transaction, but he forgot to explain the significance of the joint tenancy, i.e., that upon the death of one joint tenant, the property would pass automatically to the other joint tenant. The attorney advised the client, in the writing explaining the terms of the transaction, to have an outside lawyer look over the transaction, and he also urged him orally to do so. However, the client said that he trusted the attorney and signed all of the papers without further ado. The attorney and the client operated the apartment house successfully for several years, until the client died. The executor of the client's estate sued the attorney to have the apartment house declared part of the client's estate, but the court concluded that the joint tenancy created a gift to the attorney, effective on the client's death. Were the attorney's actions proper? AYes, because the court concluded that the joint tenancy created a gift from the client to the attorney. BYes, because the attorney might have died first, thus bestowing a gift on the client. CNo, because the attorney entered into a business transaction with the client. DNo, because the attorney drafted the deed that bestowed a substantial gift on himself.

An attorney represented a landlord in a dispute with her longtime tenant, who had recently decided not to renew his lease. The landlord wanted to retain the security deposit to pay for extensive damage to the carpeting, while the tenant insisted that the damage was normal wear and tear. The attorney and the tenant's lawyer negotiated for days, but neither party would settle for less than two-thirds of the security deposit. Finally, the landlord telephoned the attorney and said: "The tenant asked if I want to talk about the security deposit. We've known each other for years, and I think we might have better luck if we work things out ourselves." The attorney encouraged the landlord to talk with the tenant if she thought it would help, but advised her not to finalize any agreement until both parties could consult with their respective counsel. The landlord and tenant had a productive discussion. The following day, the tenant's lawyer called the attorney and said the tenant would accept one-half of the security deposit. The attorney communicated the offer to the landlord, who agreed and returned the funds to the tenant. Is the attorney subject to discipline? AYes, because the attorney encouraged the landlord to speak to the tenant without obtaining the consent of the tenant's lawyer. BYes, because the attorney encouraged the landlord to speak to the tenant without notifying the tenant's lawyer. CNo, because the tenant initiated the conversation with the landlord. DNo, because the landlord and tenant spoke to each other directly.

An attorney was a widely admired, highly compensated trial attorney in solo practice. He represented clients in all types of civil and criminal litigation, mostly in high-profile cases that drew a lot of media attention. The governor of the state where the attorney practiced had been harshly criticized for appointing appellate judges who lacked significant experience as trial counsel. Hoping to silence his critics, the governor appointed the attorney to serve out the remaining seven years of a recently deceased supreme court justice's 12-year term. After the seven years, the attorney can run for election to a new 12-year term. Before taking the oath as judge, the attorney sold his entire law practice-books, client files, office lease, furniture, and goodwill-to another lawyer. The attorney gave appropriate advance notice to the clients, and the purchasing lawyer covenanted that he would not raise their legal fees. A few years later, one of the cases that the attorney transferred to the purchasing lawyer came before the state supreme court on appeal. Which of the following propositions is false? AThe attorney's sale of his law practice was proper. BThe purchaser's covenant not to increase the fees paid by the attorney's clients was proper. CThe attorney must disqualify himself from the case involving his former client. DThe attorney may participate in the decision of the case involving his former client, provided that all of the other supreme court justices give their informed consent.

For the past five years, an attorney has represented an art dealer in the sale of many valuable paintings. One of the major transactions occurred three years ago, when the art dealer sold a landscape purportedly painted by Vincent van Gogh to an art museum for $23 million. The museum subsequently resold the painting for $35 million. Now the art dealer has asked the attorney to do the legal work in connection with the sale of another landscape, also a purported van Gogh. The proposed purchase price is $12 million, and the prospective purchaser is a wealthy television personality who knows nothing about art. During a confidential conversation in the attorney's office, the attorney asked the art dealer if he had appraisal letters certifying the painting as a genuine van Gogh. The art dealer replied that he indeed had letters-letters he had forged himself-and that he had also forged the letters for the purported van Gogh sold to the art museum. When the attorney inquired further, the art dealer told him in confidence that both of the purported van Gogh paintings were in fact counterfeits created by a clever art student. Which of the following must the attorney do at this point? AReport the art dealer to the law enforcement authorities. BWarn the prospective purchaser about the proposed sale. CInform the art museum of the truth about the first painting. DRefuse to represent the art dealer in the present transaction.

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

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

A man walked into an attorney's office and explained that he is a dealer of illegal drugs, that one of his sales associates has just been arrested, and that he would like the attorney to defend the sales associate. The drug dealer offered to leave a $10,000 retainer comprised of a shoebox of $100 bills. The attorney was uncertain about getting involved with the drug dealer and especially about accepting a large sum in cash from the dealer. The attorney told the dealer that he would think about his request and would let him know later that day. When the drug dealer left the office, the attorney telephoned his friend and mentor, a retired judge. The attorney told the judge the entire story, including the dealer's name, and asked the judge whether it would be ethical to defend the sales associate and accept the dealer's cash. Is the attorney subject to discipline for telling the judge the whole story? AYes, because the attorney-client privilege forbids the attorney from revealing what the drug dealer told him in confidence. BYes, because the solo practitioner revealed the drug dealer's name. CNo, because the attorney's prospective client was the accused sales associate, not the drug dealer. DNo, because the ethical duty of confidentiality has an exception that allows a lawyer to reveal confidential information to obtain legal ethics advice.

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

A young associate was assisting a senior partner in writing the reply brief in an appeal for one of the partner's clients. In doing the legal research, the associate discovered a recent case from the controlling jurisdiction that had not been cited in the adversary's brief. In the associate's opinion, the case was directly opposed to the position of the partner's client. The associate asked the partner about citing it in the reply brief, but the partner explained that, in his view, the case was not directly on point and did not have to be cited. The associate and the partner argued back and forth at some length and finally decided to submit the question to one of the other senior partners in the firm for a fresh view. That partner sided with the other partner, and the reply brief was filed without mentioning the case. May the associate write a short letter to the appellate court and the adversary lawyer, explaining his position and enclosing a copy of the case? AYes, because the associate had a duty to call the case to the court's attention. BYes, because the associate must not allow another person to interfere with his professional judgment. CNo, because the associate must not communicate with a court ex parte about the merits of a pending case. DNo, because the associate should abide by the partner's resolution of the matter.

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

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

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

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

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

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

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

An author wrote a best-selling novel based on the life and crimes of John Dillinger, the famous bank robber. The author sold the movie rights to a film producer, who promised to pay the author a lump-sum royalty of $5 million upon the release of the movie. After the producer hired an actor to play the lead role and made other expensive preparations for filming, the author repudiated the contract. The producer hired an attorney to sue the author for a declaratory judgment that the contract was valid and enforceable. At the producer's request, the attorney agreed to do the legal work on a contingent fee basis: If the producer wins, the attorney will be paid 1.75% of the gross receipts from the movie, but if the producer loses, the attorney will be paid nothing. The producer and the attorney entered into a written fee agreement that contains all the details required by the rules of legal ethics. Which of the following statements is true? AThe attorney is subject to discipline for entering into a publication rights contract with his client. BThe attorney is subject to discipline for acquiring a personal interest in the subject of the litigation. CThe attorney's fee agreement is proper, but only if the author gives informed consent. DThe attorney's fee agreement is proper, even though it gives the attorney a personal interest in the subject of the litigation.

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

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

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

An attorney is admitted to practice only in State A, where he specializes in securities and real estate finance law. In that role, the attorney advised his client that the law of State B did not require the client to include information about certain mineral rights in a disclosure statement that the client had to file in State B in order to sell some real estate limited partnership interests to State B citizens. Acting on the attorney's advice, the client did not disclose the information and did sell partnership interests to State B citizens. Later, the attorney became a full-time trial court judge in State A. Later still, State B brought a criminal action against the client for failing to disclose the mineral rights information in his State B disclosure statement. One of the client's defenses is that he lacked the necessary criminal intent because he was acting in good faith based on the advice of his counsel, the attorney who is now a judge. The client needs the judge's testimony to prove that the judge did indeed advise him that he was not required to disclose the mineral rights information. The judge, in State A, is beyond the subpoena power of the State B court. May the judge voluntarily testify on behalf of the client? ANo, because judges are disqualified from serving as witnesses in criminal cases. BNo, because he is not admitted to practice in State B, and his testimony about State B law would be inadmissible. CYes, because a judge may testify as a witness, except in his own court or one under its appellate jurisdiction. DYes, because his testimony would concern the giving of the advice, not his client's character.

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

A patent attorney focuses her practice on patents that involve genetically engineered medicines. Representatives of a bioengineering firm had a preliminary conversation with the attorney about representing the bioengineering firm in a patent infringement action against a pharmaceutical corporation. The attorney had never represented either company previously. The bioengineering firm's representatives talked to the attorney for more than an hour about the bioengineering firm's patent and about the pharmaceutical corporation's supposedly infringing product. This conversation covered only public information, nothing confidential. The bioengineering firm's representatives detected a distinct lack of enthusiasm from the attorney, and they ended the conversation cordially but without hiring her. In due course, the bioengineering firm hired a different patent attorney and sued the pharmaceutical corporation for patent infringement. The pharmaceutical corporation hired the attorney as defense counsel in the infringement case. The bioengineering firm's attorney promptly made a motion in the trial court to disqualify the attorney because of her earlier conversation with the bioengineering firm's representatives. Is the attorney subject to disqualification? AYes, because the bioengineering firm had previously consulted the attorney on the same matter. BYes, because the infringement suit is substantially related to the earlier conversation between the attorney and the bioengineering firm's representatives. CNo, because the bioengineering firm was never the attorney's client. DNo, because the prior conversation between the attorney and the bioengineering firm's representatives did not involve confidential information.

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

A prospective client comes to a law office seeking a lawyer to defend him in a civil action for aggravated assault and battery. An attorney agrees to talk preliminarily with the client, just to obtain enough background information to decide whether she can defend him. The client explains that he has an alcohol problem; indeed, he gets roaring drunk about three nights a week. On the night in question, the client said that a loud-mouthed stranger in his neighborhood tavern made a derogatory comment about the client's favorite basketball team. The client responded by "tapping" the stranger over the head with a pool cue, not once but four times. At that point, the attorney suddenly realizes that the client must be the rotten husband in the hotly disputed divorce and child custody case in which her law partner is representing the aggrieved wife. The attorney stops the client and tells him that she cannot defend him in the assault and battery case because of her partner's work for the client's wife. Which of the following is true? AThe partner must withdraw from representing the wife because the attorney has received confidential information from the client that would be harmful to the client if used in the divorce and child custody case. BIt would be proper for the partner to represent the wife and for the attorney to represent the client in the assault and battery case because the two matters are not substantially related. CThe partner may continue representing the wife, but only if the wife gives informed consent, confirmed in writing. DThe partner may continue representing the wife if the attorney is screened off from participation in the case and obtains no part of the fee in the case, and if the firm promptly sends the client written notice of the situation.

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

An attorney is one of only nine lawyers who practice probate law in a particular county. In that county, all probate matters go before a single judge-the probate judge. The probate judge's duties include appointing counsel for the administrators of intestate estates. Serving as an administrator's counsel can be very lucrative. The incumbent probate judge recently retired. Her custom was to appoint out-of-county lawyers to serve as administrators' counsel, believing that such lawyers are less subject to local political and social pressures than county lawyers. The probate judgeship will be filled in six months in a partisan, contested election, and the attorney is one of the candidates. The attorney met jointly with the county's eight other probate lawyers and said he was seeking the probate judgeship, and would be making some important changes, such as appointing only local lawyers as counsel for administrators of intestate estates. He also said that if they'd like to contribute money or time, to please get in touch with his campaign committee via his website. Five of the eight lawyers sent generous monetary donations to the attorney's campaign committee for the self-confessed purpose of securing legal appointments if the attorney wins. The other three lawyers volunteered generous amounts of their time in the attorney's campaign, but their motives for doing so were unexpressed and unclear. Which of the following is correct? AThe attorney is subject to discipline for personally soliciting money and publicly stated support from the eight lawyers. The five lawyers who contributed money will be subject to discipline if the attorney wins and if they accept appointments from him. BThe attorney's conduct was proper because he was a candidate for a judicial office in a contested election. All eight lawyers, however, are subject to discipline because a practicing lawyer must not contribute either money or time to the political campaign of a judge before whom the lawyer expects to appear. CThe attorney is subject to discipline for promising to appoint only local lawyers as counsel for administrators, in the hope of securing the publicly stated support of the eight lawyers. The conduct of all eight lawyers, however, was proper because lawyers are permitted to support or oppose candidates in contested elections for judgeships. DThe attorney's conduct was proper because he was a lawyer-candidate, not a judge, at the time he met with the eight lawyers. The conduct of the five lawyers who contributed money was proper because a person's motive for making a political contribution is a private matter that is protected by the First and Fourteenth Amendments.

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

An attorney was appointed by the court to defend a client at his criminal trial for second degree murder. The attorney started interviewing potential witnesses. When she interviewed the client's landlord, the landlord said that on the night of the murder, the client came home very late and was wearing a shirt covered with blood. The landlord died before trial without speaking to state authorities. Which of the following best states what the attorney should do with respect to the information she has learned from the landlord? AThe attorney should voluntarily reveal the information to the prosecutor prior to trial because the death of the landlord has made it impossible for the prosecutor to obtain the information in any other way. BThe attorney should urge the client to allow her to reveal the information to the prosecutor, and if the client refuses, the attorney should withdraw. CThe attorney should keep the information in confidence unless the client authorizes her to reveal it, even though the death of the landlord has made it impossible for the prosecutor to obtain the information in any way other than from the attorney. ivileged nor confidential because it was not given to her by her client or by an agent of her client.

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

An inventor asked a patent attorney to represent him in obtaining a patent on a new computer technique for predicting the growth patterns of tumors in the human body. The attorney informed the inventor that he had never worked on that kind of patent application before, and that he would have to do extensive background research on the patentability of computer techniques. The attorney will be able to use the knowledge that he gains through the research to serve other clients who wish to obtain patents for all manner of other computer techniques. The attorney offered to do the work for the inventor for his standard hourly rate, but the inventor proposed instead to assign the attorney a 10% interest in the patent, if and when it was issued. The attorney agreed to do the work on that basis, and he and the inventor entered into an appropriate written fee agreement. The attorney did the work; the patent was ultimately issued and proved so valuable that the attorney was able to sell his 10% interest for $9.7 million (which was a reasonable fee for the work performed). Is the attorney subject to discipline? AYes, because he acquired a proprietary interest in the subject of the representation. BYes, because it is unreasonable to charge one client for background research that will be used to earn fees from other clients. CNo, because the inventor agreed to the fee arrangement. DNo, because $9.7 million is not an unreasonably high fee for the work that the attorney did.

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

An attorney was appointed by the court to defend a client at his criminal trial for second degree murder. The attorney started interviewing potential witnesses. When she interviewed the client's landlord, the landlord said that on the night of the murder, the client came home very late and was wearing a shirt covered with blood. The landlord died before trial without speaking to state authorities. Which of the following best states what the attorney should do with respect to the information she has learned from the landlord? AThe attorney should voluntarily reveal the information to the prosecutor prior to trial because the death of the landlord has made it impossible for the prosecutor to obtain the information in any other way. BThe attorney should urge the client to allow her to reveal the information to the prosecutor, and if the client refuses, the attorney should withdraw. CThe attorney should keep the information in confidence unless the client authorizes her to reveal it, even though the death of the landlord has made it impossible for the prosecutor to obtain the information in any way other than from the attorney. DThe attorney should use her own best judgment about how to treat the information; it is neither privileged nor confidential because it was not given to her by her client or by an agent of her client.

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

An attorney volunteers her legal services one night each week at a county legal advice hotline. The hotline is run under the auspices of the superior court, and it supplies free legal advice by telephone to callers who could not otherwise obtain legal services. Every caller assents to a "Statement of Understanding" at the outset of the call, informing the caller of the limited nature of the legal services that the hotline provides. Eighty-five lawyers volunteer their services as the attorney does. They come to the hotline office at various times on various days, and the volunteers hardly ever see or talk with each other. The nature of the hotline's work makes it impossible for the lawyers to conduct the kind of conflict-of-interest checks that an ordinary law firm would conduct before taking on a new client. One Tuesday night, the attorney counseled a distraught mother about her husband's physical and mental abuse of their school-age children. The attorney told the mother how to seek help from Child Protective Services. On the following Friday evening, a different hotline lawyer volunteer counseled the mother's husband about how to prevent Child Protective Services from scooping up his children and putting them in a foster home. Because the hotline does not do conflict-of-interest checks, the lawyer who counseled the husband had no way to know that the first attorney had counseled the mother a few nights before. Which of the following is correct? AThe judges of the superior court are subject to discipline for permitting the hotline to operate under their auspices without making a conflict-of-interest check before dispensing legal advice to a new client. BBoth lawyers and the judges of the superior court all acted properly because the hotline cannot do the kind of conflict-of-interest checking that a private law firm would do. CThe first attorney acted properly in advising the mother, but the second lawyer is subject to discipline for giving legal advice to the father on the same subject. DNeither the mother nor the father was a "client" of the respective lawyers who advised them. Therefore, there was no conflict of interest, and both lawyers acted properly.

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

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

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

MPRE 2021

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