Part 4

172. Attorney practices law in Texas, and he runs advertisements in local newspapers and journals that say, "HIRE THE BEST LAWYER!" The advertisement does not explicitly claim that Attorney is the best lawyer in the state, but it does include Attorney's website address, which is www.bestlawyerintexas.com. Is such an advertisement improper? a) Yes, because the advertisement it misleading. b) Yes, because it includes a website address. c) No, because it merely exhorts readers to hire the best lawyer, without suggesting who is the best lawyer. d) No, unless Attorney is, by all measures, the best lawyer in Texas.

a

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

a

179. Attorney's brother is a physician. Attorney calls his brother and explains that his firm is not doing well, that he needs more cases, and asks his brother to use him as his lawyer for any medical malpractice actions he faces or any collection actions against patients who do not pay their bills. Attorney's brother finds this request annoying and makes no promises. Was it proper for Attorney to make such a telephone solicitation? a) Yes, because the recipient of the solicitation has a family relationship with the lawyer. b) Yes, because he merely asked his brother to use his services whenever a case should arise, without offering to represent him in a specific matter or for a specific fee. c) No, because the brother found the call annoying and the appropriateness of the solicitation is from the perspective of the recipient. d) No, because a lawyer shall not by in-person, live telephone or real-time electronic contact solicit professional employment when a significant motive for the lawyer's doing so is the lawyer's pecuniary gain.

a

184. After a bizarre accident that received heavy media coverage, the victims took the unusual step of sending written notices to every plaintiff's firm in the area stating that the victims did not want to hear from any lawyers about the matter. Attorney received the notice and promptly forgot about it, because he had not yet seen any of the media coverage about the accident. Two weeks later, Attorney decided to catch up on the recent news, and read an article online about the bizarre incident. He sent a letter to the victims expressing condolences for their suffering and offering to provide legal services if they decided to file a claim over the incident. The victims read the letter, changed their minds, and agreed to have Attorney represent them. A lawyer at another plaintiff's firm, who had also received the notice from the victims, learned that Attorney was representing the victims. He made some inquiries and discovered how the Attorney had found his new clients. The lawyer filed a grievance against Attorney with the state disciplinary authorities. Should Attorney be subject to discipline for the way in which he offered to represent the victims? a) Yes, because the target of the solicitation has made known to the lawyer a desire not to be solicited by the lawyer. b) Yes, because it was unfair for Attorney to have the opportunity to represent these clients when other lawyers had diligently avoided soliciting them. c) No, because the victims decided that they wanted Attorney to represent them. d) No, because the grievance came from a rival lawyer and the motivation was petty envy.

a

186. Attorney is representing a group of plaintiffs in a mass tort claim, and he hopes to obtain class certification so that it will become a class action lawsuit. Attorney sends letters to hundreds of potential class members inviting them to join the lawsuit and inquiring about whether they would be willing to join as a named party in the action. He does not designate the letters as "advertising material" on the outside because each recipient is a potential class member of a lawsuit that is already underway, but not yet certified as a class action. Could Attorney be subject to discipline for sending these letters? a) Yes, because if plaintiffs' counsel's goal is to seek to represent the putative class member directly as a named party to the action or otherwise, the provisions of Rule 7.3 apply. b) Yes, because it is always inappropriate for a lawyer to contact putative members of a class prior to class certification. c) No, because it is always permissible for lawyers to contact putative members of a class prior to class certification, and such contact does not constitute solicitation. d) No, because the lawyer and the class have a legitimate interest in finding the best possible named plaintiffs for the lawsuit.

a

190. Attorney promotes himself on his website and through other advertisements as a "Patent Attorney." He is admitted to engage in patent practice before the United States Patent and Trademark Office, but he does not mention this on his website or in his advertisements - he simply states that he is a "Patent Attorney." Is it proper for him to use this designation without the name of the U.S. Patent and Trademark Office being clearly identified in the communication as the certifying organization? a) Yes, because a lawyer admitted to engage in patent practice before the United States Patent and Trademark Office may use the designation "Patent Attorney" or a substantially similar designation without further clarification. b) Yes, but only if he does not handle any other types of cases or matters for clients. c) No, because a lawyer shall not state or imply that a lawyer is certified as a specialist in a particular field of law, unless the name of the certifying organization is clearly identified in the communication. d) No, because a lawyer shall not state or imply that a lawyer is certified as a specialist in a particular field of law, unless the lawyer has been certified as a specialist by an organization that has been approved by an appropriate state authority, and the states do not approve the U.S.P.T.O.

a

194. Attorney's law firm is simply "The Law Offices of [Attorney's name], Esq." Attorney specializes in courtroom litigation. His website address is www.mytrialattorney.com. Attorney selected this domain name and registered it so that he could use it for his law firm's website. Is this website address/domain name proper for Attorney's law firm? a) Yes, because it is not misleading, and lawyer or law firm may also be designated by a distinctive website address or comparable professional designation. b) Yes, because "internet neutrality" requires that anyone can use any domain name they want. c) No, because the ABA Model Rules require that law firm domain names include the names of the partners. d) No, because the ABA Model Rules forbid lawyers from designating themselves with a distinctive website address.

a

197. Attorney left Big Firm to open his own practice. Not wanting to sound alone and isolated, he decided to call it "[Attorney's Name] & Associates," even though he had no lawyers working for him. Nevertheless, he did have a receptionist and a paralegal. Could Attorney be subject to discipline for using this name for his firm? ' a) Yes, because the name is misleading if there are no lawyer associates working for Attorney. b) Yes, because the Model Rules require sole practitioners to invert the order and call it "Associates & [Attorney Name]" c) No, because the name is not misleading or confusing to the public. d) No, because the name is his personal name, and "associates" could include his nonlawyer staff.

a

199. Three lawyers open a new firm (a partnership) together and call it "The Houston Litigation Center," named after the city where they practice. Their advertising, brochures, and signage contain no disclaimers disavowing any connection with the Houston municipal government or with the Houston City Attorney's Office, which is a department of the municipal government. Could they be subject to discipline for using this name? a) Yes, because a trade name may be used by a lawyer in private practice only if it does not imply a connection with a government agency or subdivision of government. b) Yes, because the firm name does not include the names of the three founding partners. c) No, because a firm may use the name of the city where they have their office, but not the state or federal government. d) No, because there is nothing untruthful or misleading about the name, as long as they have headquarters in Houston.

a

201. Attorney solicits campaign contributions on behalf of an elected judge who is running for reelection. The judge wins reelection, and shows his gratitude to Attorney by frequently appointing him to represent indigent defendants at the state's expense. Attorney engaged in the solicitation of contributions for the judge's reelection campaign because he hoped to receive such appointments. The fees from the appointments are disappointing, though, and Attorney later realizes that the fees earned from these appointments were not equal to the time Attorney spent soliciting the contributions. Could Attorney be subject to discipline for accepting these appointments? a) Yes, because a lawyer shall not accept a government legal engagement or an appointment by a judge if the lawyer makes a political contribution or solicits political contributions for the purpose of obtaining or being considered for that type of legal engagement or appointment. b) Yes, because this type of quid-pro-quo arrangement constitutes a bribe. c) No, because the fees earned from the appointments did not match the time Attorney spent soliciting contributions, so at least some of the solicitation was merely volunteer activity. d) No, because all constituents who donate or solicit donations for election campaigns are hoping to receive some direct or indirect benefits as a result.

a

211. What is the basic difference between a prosecutor's duties under Brady v. Maryland and the duties under MRPC 3.8? a) Brady requires prosecutors to turn over all material exculpatory information, while the Model Rules require prosecutors to turn over any information that tends to negate guilt of the accused or mitigate the offense, which is more inclusive. b) The Model Rules require prosecutors to turn over all material exculpatory information, while Brady requires prosecutors to turn over any information that tends to negate guilt of the accused or mitigate the offense, which is more inclusive. c) The two standards are identical. d) The Model Rules apply even before the filing of criminal charges, while Brady requirements apply only if a case goes to trial.

a

215. Three years after prosecuting a defendant and obtaining a conviction for murder, another individual comes to the police station and confesses to committing the very murder for which the defendant is already serving time. The defendant always maintained his innocence and the basis of his conviction was an identification (in a lineup) by a single eyewitness. The person now confessing to the crime also fits the description given by the eyewitness and had a plausible motive for committing the murder. Does the prosecutor have a duty report this to the convicted defendant's lawyer? a) Yes, when a prosecutor knows of new, credible and material evidence creating a reasonable likelihood that a convicted defendant in his jurisdiction did not commit an offense of which the defendant was convicted, the prosecutor shall promptly disclose that evidence to the defendant unless a court authorizes delay, and undertake further investigation, or make reasonable efforts to cause an investigation, to determine whether the defendant was convicted of an offense that the defendant did not commit. b) Yes, the prosecutor shall seek to remedy the conviction. c) No, as long as the defendant received a fair trial and had presentation by counsel, a judgment of the court is final and the new evidence is irrelevant. d) No, the prosecutor should report it to the defendant himself and urge him to file a habeas corpus petition in federal court.

a

216. Attorney testified before a state legislative committee about the need for the state to privatize its dysfunctional prison system. Attorney said he was there to testify as a concerned citizen of the state and a taxpayer, and Attorney did in fact believe that prison privatization was smart public policy. Attorney did not disclose that he was representing Alcatraz Incorporated, the largest private prison company in the country, 122 which hoped to secure the lucrative contracts to operate the state's prisons after the legislature votes to privatize them. Was it improper for Attorney to neglect to disclose his representation of the private prison company? a) Yes, because a lawyer representing a client before a legislative body or administrative agency in a nonadjudicative proceeding shall disclose that the appearance is in a representative capacity. b) Yes, because the lawyer pretended that he was hoping to save on his taxes, but the privatization of prisons often turns out to be more expensive than having state-run prisons. c) No, because what the lawyer told the committee was factually accurate - he is a concerned citizen, a taxpayer, and he truly believes in privatizing prisons. d) No, because a lawyer's duty of candor pertains to tribunals, not to legislative subcommittees.

a

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

a

228. An attorney has a busy transactional practice and frequently must handle client funds, either for making commercial purchases, sales, leases, dispute settlements, or other transfers. The attorney faithfully deposits client money in a separate trust account and does not commingle the funds with his own, except that he deposits enough of his own money in the account to cover the monthly bank service charges. The attorney keeps complete, accurate records of all deposits and withdrawals for a full year, after which he destroys the records to preserve client confidentiality. Is the attorney acting improperly? a) Yes, because the attorney did not keep records for a long enough period. b) Yes, because the attorney should not have deposited any of his own funds in the account together with client funds. c) No, because the lawyer may deposit the lawyer's own funds in a client trust account for the sole purpose of paying bank service charges on that account. d) No, because the attorney keeps property of clients or third persons that is in a lawyer's possession in connection with a representation separate from the lawyer's own property, in a separate account maintained in the state where the lawyer's office is situated.

a

229. A client hires an attorney to represent him in a divorce proceeding, and gives the attorney a $10,000 retainer to cover all legal fees and expenses in the case. The attorney deposited the money in his client trust account, to be withdrawn by the lawyer only as the fees were earned or expenses incurred. Was this arrangement proper? a) Yes, a lawyer may deposit into a client trust account legal fees and expenses that have been paid in advance, to be withdrawn by the lawyer only as fees are earned or expenses incurred. b) Yes, because $10,000 is a reasonable amount for the legal fees and expenses in a typical divorce case, and the lawyer did not charge a contingent fee. c) No, because the fees are for the lawyer, and therefore the lawyer has commingled his own legal fees in the client trust account, in violation of the Model Rules. d) No, because withdrawing the fees gradually throughout the course of the representation constitutes a contingent fee arrangement, which is impermissible in representation for a divorce proceeding.

a

231. Most funding for legal aid clinics in the United States comes from which of the following sources? a) LSC and IOLTA b) Private foundation grants and court filing fees c) Fundraiser events and grants from the state bar association d) The American Bar Association and the American Civil Liberties Union

a

169. Attorney recently earned her Juris Doctor degree from a prestigious law school and easily passed the state bar exam, gaining admission to the bar in her home state. She worked for three years for a legal aid clinic that provided free legal services for indigent clients. At the end of her third year at the clinic, Attorney decided to start her own firm, representing primarily low-income clients who were ineligible for free services at the legal aid clinic, but who also rarely could afford the fees of most attorneys. She sent a certified letter to most of the lawyers in her geographic area describing her experience and explaining that she was starting her own firm and intended to specialize in low-dollar consumer protection cases, simple divorces, adoptions, name changes, and landlord-tenant disputes. The letter concluded by offering to handle such cases for other lawyers if the other lawyers did not want to invest their time on such low-dollar matters. She did not notify the legal aid clinic that she planned to leave or that she had sent this letter. Were Attorney's actions proper? a) Yes, because Attorney's statements were not false or misleading and the letter was an appropriate announcement of the opening of her new firm and her intent to specialize in certain areas of law. b) Yes, because Attorney sent the letter only to other lawyers, so there was little risk of manipulation or abuse of unsophisticated clients. c) No, because Attorney failed to notify the legal aid clinic of her plans to open a new firm, or to send a letter to hundreds of lawyers that described her experience working at the clinic. d) No, because Attorney has never handled such fee-generating cases before, if her only work experience is at a legal aid clinic that provides services without charge to indigent clients.

b

175. Attorney made and distributed bumper stickers advertising for his firm that simply provided a catchy phone number: 1-800-LAWYER-1. The phone number rolled over to Attorney's office phone. The bumper stickers included no other information. Could Attorney be subject to discipline for such an advertisement? a) Yes, because bumper sticker advertising undermines the dignity of the legal profession. b) Yes, because it does not include the name and office address of at least one lawyer or law firm responsible for its content. c) No, because bumper stickers do not constitute advertising under the Model Rules of Professional Conduct. d) No, because the information on the bumper stickers was truthful and accurate.

b

177. Attorney is a friend of Blogger, who operates a successful local blog about events, news, and gossip about their city. Blogger includes posts about local judges and well-known lawyers. Attorney and Blogger have a secret agreement. Attorney passes along tips to Blogger in the form of courthouse gossip regarding local lawyers and judges, or even about big cases. Blogger, in turn, covers Attorney's successful cases in glowing terms and recommends Attorney to his readers. Blogger's website is so successful that he earns approximately $50,000 in advertising revenue from the site. Attorney occasionally purchases a small, inexpensive advertisement on the site, which merely gives Attorney's name, address, phone number, and areas of practice. Could Attorney be subject to discipline? a) Yes, because Attorney provides gossip that undermines the dignity of the profession b) Yes, because Attorney provides something of value to Blogger in exchange for recommending his services. c) No, because Attorney pays a reasonable sum for his advertisements on the blog d) No, because it is impossible to quantify the value of the information that Attorney provides to Blogger in exchange for favorable reviews of Attorney's legal victories

b

178. Which of the following most accurately describes the Model Rules' treatment of in-person solicitations of prospective clients by lawyers and live telephone solicitations by lawyers? a) The Rules treat in-person solicitations as much more serious and likely to result in abuse than telephone solicitations. b) The Rules treat live telephone solicitations the same as in-person solicitations. c) The Rules treat live telephone solicitations the same as email solicitations. d) The Rules treat live telephone solicitations the same as a billboard, an Internet banner advertisement, a website, or a television commercial.

b

181. Attorney sends a solicitation letter to a prospective client, with the designation "Advertising Material" printed on the outside of the envelope. The recipient of the letter opens it and reads it, but does not respond. Lawyer then sends a follow-up letter to the prospective client, again with the designation "Advertising Material" printed on the outside of the envelope. Could Attorney be subject to discipline for sending the second letter? a) Yes, because a lawyer may not solicit individual prospective clients with direct mail unless the prospective client has requested the information. b) Yes, if after sending a letter or other communication as permitted by the Rules, the lawyer receives no response, any further effort to communicate with the recipient of the communication may violate the provisions of Rules. c) No, because the lawyer clearly indicated that it was advertising material on the outside of the envelope. d) No, because the lawyer had no way to know whether the prospective client received the first letter.

b

182. After a hurricane damaged hundreds of homes in a southeastern state, Attorney received requests for information about legal representation from several affected homeowners. Attorney wrote back, offering to represent them in their insurance claims arising out of the storm damage. Each letter was handwritten and personalized, and Attorney addressed each envelope by hand so that recipients would perceive it as a personal letter and would be more likely to open it and read it. At the top of the letter itself, Attorney wrote by hand the words "Advertising Material." Were Attorney's actions proper? a) Yes, because Attorney clearly indicated at the top of the letter that it was advertising material. b) Yes, because the requirement that certain communications be marked "Advertising Material" does not apply to communications sent in response to requests of potential clients. c) No, because Attorney did not include the phrase "Advertising Material" on the outside of the envelope. d) No, because a lawyer should not send a solicitation letter to those who have recently experienced a tragedy and are vulnerable to manipulation or coercion.

b

185. Attorney specializes in criminal defense work. His advertising, signage, and firm brochures offer a service that other lawyers in his city do not provide - Attorney promises to post bail or bond for any client who cannot afford the amount of his bail or bond. Could Attorney be subject to discipline for such an advertisement offer? a) Yes, because the advertisement is inherently misleading. b) Yes, given the coercion and duress inherent in the client's incarceration, using the promise of securing the client's release from custody as an inducement to engage the lawyer would be a violation of Rule 7.3(b)(2). c) No, as long as he actually posts bail or bond for every client who claims to be unable to afford it themselves. d) No, because lawyers can post bail for clients under certain circumstances, as long

b

192. In his advertisements and firm brochures, Attorney describes his many years of experience litigating in a particular area of commercial real estate litigation, without claiming to be a specialist or an expert. He does not mention any official certification. Is it permissible for Attorney to boast of his years of experience practicing in a particular area, even though some readers might infer from this that he is an expert or a certified specialist? a) Yes, the Supreme Court has held that state bars may not pass any rules that limit or sanction communications by lawyers to potential clients. b) Yes, the Supreme Court has held that state bars cannot prohibit lawyers form describing their years of experience with certain types of cases, as long as the information is truthful. c) No, the Supreme Court has held that describing one's years of experience is too misleading, because readers could incorrectly infer that the lawyer will obtain successful results in their case. d) No, because the lawyer cannot predict what types of cases he will handle in the future, when new clients hire him.

b

198. Attorney left Big Firm to open his own practice. He decided to give it a grandiose name, and called it "The Law Firm of America." He hopes someday to have offices in all fifty states. Could Attorney be subject to discipline for using this name for his firm? a) Yes, because he does not yet have offices in all fifty states. b) Yes, a trade name may be used by a lawyer in private practice only if it does not imply a connection with a government agency c) No, because he intends to have offices in all fifty states someday. d) No, because a trade name may be used by a lawyer in private practice if it does not imply a connection with a government agency, and there is no agency named, "America."

b

200. Attorney outsources complicated legal research to a firm that exclusively provides background legal research for lawyers. Client is a nationwide business with branches operating in all fifty states, so he needs information about his legal responsibilities regarding a particular issue in every state - a state-by-state survey. Attorney represents himself as a sole practitioner. Could Attorney be subject to discipline for failing to inform Client that he plans to outsource the 50-state survey to a research firm? a) Yes, because the client may prefer to hire fifty separate research firms to investigate the issue in each state. b) Yes, because lawyers must not misrepresent their partnership with others or other organizations. c) No, because this is no different than delegating research tasks to an in-house associate attorney. d) No, as long as the lawyer does not affirmatively deny that he will outsource the legal work

b

204. Attorney made substantial financial contributions to the reelection campaign of an elected judge. The judge won reelection, and showed his gratitude to Attorney by frequently appointing him to represent indigent defendants at the state's expense. Attorney claims that he made the donations not because he hoped to receive such appointments, but because he honestly believed that the judge was the best candidate for the position, though he could not explain why. In addition, it turned out that in the aggregate, Attorney gave more than every other lawyer or law firm in the judge's district. Could Attorney be subject to discipline for accepting these appointments? a) Yes, because a lawyer or law firm shall not accept a government legal engagement or an appointment by a judge if the lawyer or law firm makes a political contribution or solicits political contributions for the purpose of obtaining or being considered for that type of legal engagement or appointment. b) Yes, because contributions that in the aggregate are substantial in relation to other contributions by lawyers or law firms, made for the benefit of an official in a position to influence award of a government legal engagement, and followed by an award of the legal engagement to the contributing or soliciting lawyer or the lawyer's firm would support an inference that the purpose of the contributions was to obtain the engagement c) No, because all constituents who donate or solicit donations for election campaigns are hoping to receive some direct or indirect benefits as a result. d) No, because the lawyer's motivation was a sincere political or personal support for the judge's candidacy, not a design to receive court appointments.

b

213. A prosecutor receives a call from a crime lab about some DNA samples that someone had misplaced years before in a freezer at the lab. The DNA related to one of the prosecutor's former cases. Someone at the crime lab had checked the files and realized that the defendant in the case had been convicted of rape and murder, and was serving a life sentence in prison, but that the DNA evidence absolutely exonerates the defendant and points instead to the victim's cousin as the perpetrator. Does the prosecutor have specific ethical duties about what to do regarding this information? a) Yes, the prosecutor must notify the defense counsel of the man who was wrongfully convicted, and must investigate to see if there is corroboration for the new confession to the crime by the New York defendant. b) Yes, the prosecutor shall seek to remedy the conviction. c) No, as long as the prosecutor believes that the original defendant really did commit the crime. d) No, unless other evidence turns up to corroborate the story that the crime lab just told the prosecutor, the prosecutor does not need to take any action.

b

214. A prosecutor in New York is engaged in plea bargain negotiations with a defendant and defense counsel. The defendant offers to confess to a much more serious crime, committed several years ago in California, if the prosecutor will drop the current charges, which will put the defendant in danger of retaliation from his gang once he is in prison. The prosecutor agrees, and the defendant confesses to a notorious armored car robbery in California ten years earlier that made national news, and for which another man had been convicted and was serving his sentence. The defendant describes the crime with sufficient detail that the prosecutor doubts that he could be fabricating the story. Does the prosecutor have any ethical duties about what to do with this information? a) Yes, the prosecutor must notify the defense counsel of the man who was wrongfully convicted, and must investigate to see if there is corroboration for the new confession to the crime by the New York defendant. b) Yes, the prosecutor must promptly disclose that evidence to an appropriate court or authority. c) No, the prosecutor does not have to take any action unless there is clear and convincing evidence that the wrong person was convicted of a crime and is in prison. d) No, because the prosecutor cannot breach his duty of confidentiality, but he should urge the defendant to contact the authorities in California directly so that the wrongfully-convicted man can get out of prison.

b

218. A corporation consents to having the attorney who serves as its in-house counsel represent the corporation's officers and directors on matters related even tangentially to the company. The consent came by a vote of the shareholders. Can an attorney be subject to discipline for representing both a corporation and its officers or directors individually? a) Yes, because there is always a potential conflict of interest between the individual running a corporation and the shareholders. b) Yes, because shareholders of a corporation cannot consent or grant a waiver to a potential conflict of interest. c) No, because a lawyer representing an organization may also represent any of its directors or officers, if the shareholders give consent. d) No, because conflicts of interest apply only between natural persons, not between individuals and organizations.

b

219. An attorney served as general counsel for a municipal auditing and enforcement bureau, which monitored the internal affairs and expenditures of the municipal government. The attorney discovered that the head of the bureau engaged in selective enforcement and self-dealing, and suspected that bribery had occurred in a few instances. The attorney's confrontation of the bureau head proved futile, so the attorney then needed to proceed up the chain of command. Can the attorney serving as general counsel for a government bureau report wrongdoing to anyone higher within that municipality? a) Yes, but only by testifying under subpoena at a city council hearing or the legislative equivalent for that municipality (town aldermen, board of county commissioners, etc.). b) Yes, because if the action or failure to act involves the head of a bureau, either the department of which the bureau is a part or the relevant branch of government may be the client for purposes of the Rules of Professional Conduct. c) No, because the head of the bureau is the general counsel's client. d) No, because governmental lawyers do not have a "client" organization in the same sense as attorneys in the private sector, because civil servants must act in the public interest.

b

220. According to the official Comment to Rule 1.13 of the Model Rules of Professional Conduct, when it is reasonably necessary to enable the organization to address the matter in a timely and appropriate manner, a lawyer must refer the matter to higher authority. This includes, if warranted by the circumstances, the highest authority that can act on behalf of the organization under applicable law. Ordinarily (unless applicable law specifies otherwise), which of the following would be an organization's highest authority to whom a lawyer might refer the matter? a) The Chief Executive Officer (CEO) b) The board of directors or similar governing body c) The annual meeting of the shareholders or the majority shareholder d) The general counsel of the corporation

b

233. What historical development necessitated the creation of IOLTA programs around the country? a) Congress defunded the LSC b) Congress imposed burdensome restrictions on the activities of entities receiving LSC funds c) A Supreme Court decision forced the ABA to amend the Model Rules d) The passage of the Civil Rights Act and its subsequent amendments

b

235. How does enforcement of the rules pertaining to safeguarding client funds or property differ from enforcement of other professionalism or disciplinary rules? a) The state bar rarely discovers mishandling of client funds because normally it goes unreported b) Unlike its reactive enforcements of other rules, the state bar actively audits firms to catch violations of the rules about handling client funds. c) Disqualification is the primary enforcement mechanism. d) Legal malpractice actions are the primary enforcement mechanism, rather than disciplinary action by the bar.

b

170. Attorney has advertisement placards on the sides of public transportation buses in his city. The signs read, "If your home suffered storm damage this year, you are entitled to full recovery! Call us now!" Attorney represents clients in claims against their homeowner insurance companies, who often deny claims for storm damage, at least initially. Attorney often wins at least a small settlement, if not full recovery costs, for his clients. Is this advertisement proper? a) Yes, because Attorney does, in fact, represent clients who have suffered storm damage in claims against their insurers. b) Yes, because this is not an in-person solicitation, so there is little risk of unsophisticated potential clients misunderstanding the claims in the advertisement. c) No, because it contains a material misrepresentation of fact or law, or omits a fact necessary to make the statement considered as a whole not materially misleading. d) No, because the advertisement was placed on a public transportation vehicle, which tacitly suggests an endorsement of the municipal government, as opposed to a privately-owned billboard on private property near a roadside.

c

171. Attorney grew up in a family that spoke the Maori language in the home. His law practice advertisements prominently state that he speaks Maori and can represent Maori-speaking clients. No Maori speakers live within 2000 miles of where Attorney practices. Is it improper for Attorney to include this language ability in his advertisements? a) Yes, because it creates a misperception that Attorney is unusually intelligent. b) Yes, because Maori speakers in far-away jurisdictions might misunderstand and believe that Attorney is admitted in their jurisdiction as well. c) No, because the statement is true. d) No, because Attorney has Free Speech rights to make any claim he wants in his public advertisements.

c

176. Attorney made an informal agreement with Physician that they would refer clients to each other when the situation seemed appropriate. They did not pay each other any money for referrals, but the relationship was explicitly reciprocal - Attorney referred patients who needed medical examinations to Physician, and when Physician had patients needing legal representation, he referred them to Attorney. The relationship was explicitly exclusive - each agreed not to refer clients to others - but it happened that neither had similar reciprocal relationships with anyone else anyway. They always inform their clients when making such referrals that they have a reciprocal relationship. Is such an arrangement proper? a) Yes, a lawyer may agree to refer clients to another lawyer or a nonlawyer professional, in return for the undertaking of that person to refer clients or customers to the lawyer, as long as clients are aware of the existence and nature of the arrangement. b) Yes, because the agreement is informal, not a written contract. c) No, because a lawyer may not agree to refer clients to another lawyer or a nonlawyer professional, in return for the undertaking of that person to refer clients or customers to the lawyer, if the relationship is exclusive. d) No, because the relationship described here is de facto exclusive, even if they have not agreed specifically to keep the relationship exclusive.

c

180. Attorney's brother is a physician. Attorney calls his brother and explains that his firm is not doing well, that he needs more cases, and asks his brother to use him as his lawyer for any medical malpractice actions he faces or any collection actions against patients who do not pay their bills. Attorney's brother finds this request annoying and reminds Attorney that he has asked him on several occasions not to pester him to use Attorney as his lawyer. Was it proper for Attorney to make such a telephone solicitation? a) Yes, because the recipient of the solicitation has a family relationship with the lawyer. b) Yes, because he merely asked his brother to use his services whenever a case should arise, without offering to represent him in a specific matter or for a specific fee. c) No, because the call involves contact with someone who has made known to the lawyer a desire not to be solicited by the lawyer. d) No, because a lawyer shall not by in-person, live telephone or real-time electronic contact solicit professional employment when a significant motive for the lawyer's doing so is the lawyer's pecuniary gain.

c

183. Attorney made a lateral move to another firm in the same city where he already practiced. Attorney sent letters to area residents and businesses, whom he knew to be in need of legal services, announcing that he had gone to work for a new firm and had a new office address. The letter stated that he was excited about the new opportunities he would have at this firm to provide excellent legal representation to new clients in the city. Nowhere on the letter or envelope did Attorney include the words "Advertising Material." Could Attorney be subject to discipline for sending these letters? a) Yes, because every written communication from a lawyer soliciting professional employment from anyone known to be in need of legal services in a particular matter shall include the words "Advertising Material" on the outside envelope. b) Yes, because Attorney was implicitly soliciting new clients through this general professional announcement. c) No, general announcements by lawyers, including changes in personnel or office location, do not constitute communications soliciting professional employment from a client. d) No, because Attorney sent the letters only to area residents and businesses

c

189. In his advertisements, Attorney, who practices in California, states, "CERTIFIED SPECIALIST IN CALIFORNIA LAW." Attorney is referring to the fact that he passed the California Bar Exam, not to any other official certification beyond admission to the California bar. According to the Model Rules of Professional Conduct, is such a statement proper in a lawyer's advertisement? a) Yes, because a lawyer may communicate the fact that the lawyer does or does not practice in particular fields of law. b) Yes, because passing a state's bar exam demonstrates sufficient expertise in the laws of that state to practice there as a lawyer. c) No, because a lawyer shall not state or imply that a lawyer is certified as a specialist in a particular field of law without being certified as a specialist by an official certifying organization in that state, and without including the name of the certifying organization in the advertisement. d) No, because under the Model Rules, lawyers should not claim to be "certified specialists" in anything.

c

193. Attorney identified himself on his letterhead as a "Certified Trial Specialist by the National Board of Trial Advocacy." Attorney's state has no lawyer certification program of its own, besides admission to the bar. Is it inherently misleading, and therefore improper, for Attorney to list a certification if it did not come from an organization that has been approved by an appropriate state authority? a) Yes, because the traditional rule is that lawyers may state areas in which they practice, but may not claim to be certified specialists in anything. b) Yes, because consumers are likely to think that the state bar actually certified Attorney as a Trial Specialist. c) No, because the Supreme Court has held that such statements are merely "potentially misleading" and that it would violate the First Amendment for states to prohibit such statements completely. d) No, because the Model Rules place no restrictions on lawyers making claims about certifications, expertise, or specialization. See Peel v. Attorney Registration & Disciplinary Comm'n, 496 U.S. 91 (1990)

c

196. Attorney practices in a small town in a rural area. His law firm's sign reads, "HOME TOWN ATTORNEY." Attorney's entire practice consists of representing local townsfolk. Other lawyers and law firms in the town use more traditional designations, listing the named partners on their signage and advertising. Could Attorney be subject to discipline for using this designation for his law firm? a) Yes, because the name suggests that he is associated with the municipal government in that locale. b) Yes, because he is not the only lawyer in the town, so he should not have a sign suggesting that he is the only lawyer in town. c) No, because the sign is not misleading or untruthful, and a law firm may use a trade name instead rather than lawyers' personal names. d) No, because the rules pertaining to firm names and letterheads do not apply to sole practitioners.

c

202. Attorney solicits campaign contributions on behalf of an elected judge who is running for reelection. Attorney engaged in the solicitation of contributions for the judge's reelection campaign because he hoped to receive court appointments. The judge won reelection, but never rewarded Attorney by appointing him to represent indigent defendants at the state's expense. Could Attorney be subject to discipline for soliciting funds for a judge with such self-interested motives? a) Yes, because a lawyer shall not accept a government legal engagement or an appointment by a judge if the lawyer makes a political contribution or solicits political contributions for the purpose of obtaining or being considered for that type of legal engagement or appointment. b) Yes, because this type of quid-pro-quo arrangement constitutes a bribe. c) No, because the lawyer never received or accepted any appointments after soliciting the contributions. d) No, because all constituents who donate or solicit donations for election campaigns are hoping to receive some direct or indirect benefits as a result.

c

207. An insurance company retained Attorney to represent one of its policyholders (i.e., an insured) against a lawsuit. The insurance company that hired Attorney requires its retained counsel to follow its own litigation management guidelines, designed to monitor the fees and costs of the lawyers the insurer retains. The litigation management guidelines include the requirement of a third-party audit of legal bills. Although the guidelines usually serve the interests of both the insured and the insurer by keeping litigation costs low and expediting the resolution of the case, in this instance Attorney finds that the guidelines require tactical moves that are adverse to the insured's interests. The insurer claims that the insured impliedly consented to the guidelines by agreeing contractually in the insurance policy to "cooperate" during litigation. The insurance company hired Attorney for the case. Should Attorney comply with the insurer's litigation management guidelines? a) Yes, because the insured impliedly consented to the arrangement by accepting the insurance company's choice of legal counsel in defending the claim. b) Yes, because the insurer retained Attorney to handle the case. c) No, because a lawyer shall exercise independent professional judgment, and the insurer's litigation management guidelines in this instance materially impair the lawyer's professional judgment. d) No, because a lawyer hired by an insurance company to represent an insured should always represent the interests of the insured rather than the insurer.

c

217. An attorney worked for a corporation as in-house counsel. The attorney discovered that the Chief Financial Officer falsified the corporation's quarterly earnings report in order to prop up the firm's share price, as the CFO's compensation is partly in stock options. The attorney knows that these misrepresented earnings appeared in the filings to the Securities and Exchange Commission, and will eventually result in severe regulatory fines or civil liability for the corporation. The attorney thus reasonably believes that the violation is reasonably certain to result in substantial injury to the organization. The Chief Financial Officer hired the attorney, and he directly supervises the attorney in the organizational chain of command. The attorney confronted the Chief Financial Officer, but this proved unfruitful, and then the Chief Financial Officer discharged the attorney. What should the attorney do in this situation? a) The attorney should immediately report the matter to the relevant government regulatory authority. b) The attorney should keep the information confidential, because the person who hired him has not authorized him to disclose the information. c) The attorney should proceed as the lawyer reasonably believes necessary to assure that the organization's highest authority is informed of the lawyer's discharge. d) The attorney should notify the manager directly above the Chief Financial Officer in the corporation and then drop the matter.

c

221. A lawyer knows that his opposing counsel has a reputation for refusing to settle cases and forcing lawsuits to go to trial, in order to impose the full costs of litigation on the opposing party. Cultivating this reputation serves as a deterrent to other would-be litigants against opposing counsel's clients. In order to avoid a rebuff by opposing counsel, the lawyer finds a close friend of the opposing party, and asks the close friend to communicate an informal settlement offer to the opposing party directly, bypassing the other lawyer. The opposing party is delighted to hear the offer and readily agrees to settle the case. Opposing counsel is furious and reports the lawyer for misconduct. The lawyer claims that he did not communicate with opposing counsels' client, but rather the friend did, so the prohibitions on contact with other parties would not apply. Is the lawyer correct? a) Yes, the friend's willingness to be an informal intermediary serves as an independent intervening actor that breaks the line of causation to the lawyer. b) Yes, the opposing party's eagerness to settle the case shows that the lawyer did what the other party wanted; such an endorsement after the fact negates any possible violation of the Rules. c) No, a lawyer may not make a communication prohibited by the Rules through the acts of another, such as the friend in this case. d) No, lawyers are never permitted to speak directly to an opposing party under any circumstances; even if the opposing counsel had consented to the communication, the lawyer would be subject to discipline.

c

224. A business owner hires a lawyer to enforce a non-compete agreement against a former executive at the client's technology firm. According to the client, a rumor started going around just this past week that the former executive had either started his own business nearby or was consulting for a nearby competitor; if true, either scenario could violate the non-compete agreement. The client explains that the former executive has already asserted that the non-compete agreement is invalid under a recent decision from the state Supreme Court, and is filing an action for a declaratory judgment to challenge the non-compete agreement preemptively, though the client is unsure whether his company received proper service yet about the lawsuit. The lawyer decides that the first step is to call the former employee and ask him whether he has found another job yet or has started his own business. The former employee answers the phone, explains that he has started his own rival company, and that he believes the non-compete agreement is invalid under state law. The lawyer asks him to have his own lawyer contact him so that they can discuss possible settlement for the dispute. Has the lawyer acted properly? a) Yes, as the prohibition on communications with a represented person only applies in circumstances where the lawyer knows that the person is in fact represented in the matter to be discussed, and this means that the lawyer has actual knowledge of the fact of the representation. b) Yes, if the non-compete agreement has a binding arbitration clause, as matters covered under alternative dispute resolution (arbitration, mediation, or a non-judicial referee) do not implicate the prohibition on communication with opposing parties. c) No, because one can easily infer from these facts and circumstances that the lawyer actually knew the former employee had representation. d) No, because this is an action for declaratory judgment rather than money damages, so the usual exceptions to the prohibition on communication do not apply.

c

226. Attorney sees Friend at high school reunion. Friend asks Attorney for advice about a possible civil lawsuit Friend is considering hiring an attorney to file. Attorney gives Friend general information about the area of law and about the particular kind of lawsuit an attorney will most likely file for Friend. Friend lives too far away from Attorney for Attorney to handle the case, and Friend is planning to hire an attorney near his residence to handle the lawsuit. Attorney later talks to his own wife about Friend's lawsuit. Wife discusses the suit with her own friend. Friend discovers that several people know about his potential suit and is upset, as he believed that Attorney was not allowed to speak about his potential case to others. Is Attorney subject to discipline? a) Yes, attorneys shall not disclose information about potential lawsuits they discuss with others unless authorized by that person, whether or not the person is or is not a potential or current client. b) Yes, persons with whom an attorney discusses potential litigation, even if only in a general manner, are considered prospective clients and are afforded protection as if they were, in fact, clients themselves. c) No, an attorney owes no duties or protections, including protections against disclosing information about potential lawsuits, to persons who communicate with attorneys without any expectation of forming a client-attorney relationship. d) No, an attorney may discuss potential client cases with others as long as the potential client did not retain the attorney to handle the matter that potential client discussed with the attorney

c

227. An attorney represented a seller in a business transaction involving industrial equipment. When the deal was complete, the purchaser sent the attorney a check for $7,000, the agreed-upon purchase price, with a letter directing the attorney to forward the money to his client (the seller). The attorney notified his client immediately that the check had come in. The client was traveling at the time, and asked the attorney to hold the funds until he returned from his trip. The attorney had only recently opened his own firm and did not yet have a client trust account at any banks in the area, so he deposited the check in his own bank account temporarily. As soon as the check cleared, the attorney wrote a check to the client for the full amount, which the client picked up in person. Did the attorney act properly in this case? a) Yes, because the amount was less than $10,000, so it did not trigger the ethical rules pertaining to separate client accounts. b) Yes, because the client asked the attorney to hold the funds temporarily, and the attorney faithfully delivered the entire sum to the client with his own check. c) No, because a lawyer must hold property of clients or third persons that is in a lawyer's possession in connection with a representation separate from the lawyer's own property. d) No, because a lawyer should not have accepted the check at all, but should have instructed the purchaser to write the check out to the client himself, and deliver it directly to the client.

c

232. What is the Legal Services Corporation? a) LSC is a nationwide network of affiliated legal aid clinics b) LSC is a national for-profit corporation that provides law firms with many law-related services, including title insurance, liability insurance, archiving, document indexing and review, printing, and investigation/research c) LSC is a quasi-government corporation that receives an annual budget apportionment from Congress, which it then distributes to other entities around the country. d) LSC is an ABA-approved group legal services plan that refers members of the plan to participating law firms when the members need a lawyer.

c

173. Attorney represented Client as the plaintiff in a personal injury lawsuit and won a large settlement for Client. Attorney had represented Client on a contingent fee basis, with an agreement at the outset of representation to charge 30% of the total winnings or settlement amount. Client was very good-looking, and Attorney offered at the end of representation to discount his fee by another 10% if Client would pose for a photograph with Attorney for use in printed advertisements, with a quote by Client that truthfully expressed gratitude to Attorney for providing excellent representation in the case. The advertisement did not include any disclaimer explaining that not all of Attorney's clients were as attractive as the client who appeared in the photo. The advertisement also included a promise from Attorney "to provide the same type of excellent legal representation to you [the reader] as well." Was this advertisement proper? a) Yes, because the client and the lawyer both made truthful statements. b) Yes, because the discount offered to the client was reasonable for such an endorsement, as long as the amount was comparable to hiring a model to pose for the photograph instead. c) No, because the lawyer promised implicitly to obtain similar results for other potential clients, without knowing their circumstances or the merits of their claims. d) No, because the lawyer effectively offered money to the client by giving a discount on the earned legal fees in exchange for appearing in the advertisement.

d

187. Attorney is representing a group of plaintiffs in a mass tort claim, and he hopes to obtain class certification so that it will become a class action lawsuit. Attorney sends letters to hundreds of potential class members inviting them to testify as witnesses. All the statements in the letter are accurate and are not coercive. Even so, he does not designate the letters as "advertising material" on the outside because each recipient is a potential class member of a lawsuit that is already underway, but not yet certified as a class action. Could Attorney be subject to discipline for sending these letters? a) Yes, because if plaintiffs' counsel's goal is to seek to represent the putative class member directly as a named party to the action or otherwise, the provisions of Rule 7.3 apply. b) Yes, because it is always inappropriate for a lawyer to contact putative members of a class prior to class certification. c) No, because it is always permissible for lawyers to contact putative members of a class prior to class certification, and such contact does not constitute solicitation. d) No, because Rule 7.3's restrictions do not apply to contacting potential class members as witnesses, so long as those contacts are appropriate and comport with the Model Rules.

d

191. Attorney describes his areas of practice in his advertisements as "real estate" and "personal injury," but his state bar requires that lawyers use the less descriptive terms "property law" and "tort law" instead. Could Attorney be subject to discipline for using these more descriptive terms instead of the verbiage prescribed by the state bar? a) Yes, because states have an absolute right to place reasonable requirements on lawyers pertaining to the verbiage used in their advertisements. b) Yes, because "real estate" and "personal injury" are inherently misleading terms, whereas "property law" and "tort law" are very precise. c) No, because states may not regulate lawyer advertising in any way. d) No, because lawyers have a First Amendment right to use verbiage that is accurate and descriptive in their advertisements, as long as the statements are not misleading.

d

195. Attorney's law firm is simply "The Law Offices of [Attorney's name], Esq." Attorney specializes in courtroom litigation. He sees himself as a savior to his clients, who really appreciate his help. His website address is www.mytrialattorney.org. Attorney selected this domain name and registered it so that he could use it for his law firm's website. Is this website address/domain name proper for Attorney's law firm? a) Yes, because it is not misleading, and lawyer or law firm may also be designated by a distinctive website address or comparable professional designation. b) Yes, because "internet neutrality" requires that anyone can use any domain name they want. c) No, because the ABA Model Rules require that law firm domain names include the names of the partners. d) No, because the use of ".org" as the ending of the domain name suggests that the firm is a charitable legal aid clinic, so it is misleading.

d

203. Attorney made substantial financial contributions to the reelection campaign of an elected judge. The judge won reelection, and showed his gratitude to Attorney by frequently appointing him to represent indigent defendants at the state's expense. Attorney made the donations not because he hoped to receive such appointments, but because he honestly believed that the judge was the best candidate for the position. Attorney especially admired the fact that the judge had attended Harvard Law School and that the judge was an active member of the Federalist Society. Could Attorney be subject to discipline for accepting these appointments? a) Yes, because a lawyer shall not accept a government legal engagement or an appointment by a judge if the lawyer makes a political contribution or solicits political contributions. b) Yes, because attending Harvard Law School is not a valid reason to believe that a candidate would make a good judge. c) No, because all constituents who donate or solicit donations for election campaigns are hoping to receive some direct or indirect benefits as a result. d) No, because the lawyer's motivation was a sincere political or personal support for the judge's candidacy, not a design to receive court appointments.

d

205. Attorney made substantial financial contributions to the reelection campaign of an elected judge. The judge won reelection, and showed his gratitude to Attorney by 115 frequently appointing him to serve as referee or mediator in situations where Attorney received no compensation except reimbursement for travel expenses. Attorney made the donations because he hoped to receive such appointments, but received no fees as a result. Could Attorney be subject to discipline for accepting these appointments? a) Yes, because a lawyer or law firm shall not accept a government legal engagement or an appointment by a judge if the lawyer or law firm makes a political contribution or solicits political contributions for the purpose of obtaining or being considered for that type of legal engagement or appointment, regardless of the amount of the fees earned. b) Yes, because this type of quid-pro-quo arrangement constitutes a bribe. c) No, because all constituents who donate or solicit donations for election campaigns are hoping to receive some direct or indirect benefits as a result. d) No, because the term "government legal engagement" does not include substantially uncompensated services.

d

206. Attorney made substantial financial contributions to the reelection campaign of an elected judge. The judge won reelection, and Attorney thereafter received court appointments to represent indigent defendants at the state's expense, and over time these appointments turned out to be lucrative in terms of generating high legal fees. All appointments were made on a rotational basis from a list compiled without regard to political contributions. Attorney made the donations because he hoped to receive such appointments, and became wealthy as a result. Could Attorney be subject to discipline for accepting these appointments? a) Yes, because a lawyer or law firm shall not accept a government legal engagement or an appointment by a judge if the lawyer or law firm makes a political contribution or solicits political contributions for the purpose of obtaining or being considered for that type of legal engagement or appointment, regardless of the amount of the fees earned. b) Yes, because this type of quid-pro-quo arrangement constitutes a bribe. c) No, because all constituents who donate or solicit donations for election campaigns are hoping to receive some direct or indirect benefits as a result. d) No, because the term "government legal engagement" does not include appointments made on a rotational basis from a list compiled without regard to political contributions.

d

208. A prosecutor brought charges against a defendant for rape and murder, but only one witness could link the defendant to the crime, and that witness disappeared mysteriously while the defendant was out on bail awaiting trial. The prosecutor's case collapsed and the defendant won an easy acquittal, even though the defendant had confessed to the murder. The confessional turned out to be inadmissible because the police erred in failing to read the defendant all of his rights before taking his confession, which he later recanted. The prosecutor now has some evidence - less than probable cause but enough to be worth a try - that the defendant committed check fraud, so he brings charges in hopes that the attenuated charges will stick this time, and the dangerous murderer will be off the streets, regardless of the reason. Is the prosecutor in compliance with his ethical duties as a lawyer? a) Yes, because he is trying to protect the public from a dangerous criminal, and the defendant still has a fair chance to beat the charges in the new case, especially if the evidence is weak. b) Yes, because the "beyond a reasonable doubt" burden of proof in a criminal case provides protection for defendants when prosecutors bring unfounded charges. c) No, because the prosecutor is trying to use a lesser charge to incarcerate a murderer, which will result in the murderer receiving an unfairly short sentence. d) No, because the prosecutor in a criminal case shall refrain from prosecuting a charge that the prosecutor knows is not supported by probable cause.

d

209. A prosecutor sees the backlog of prosecutions coming from his office and feels concern about whether all the cases will come to trial in time to comply with the Speedy Trial Act. In order to expedite some of the simpler cases, the prosecutor asks arrestees to waive their right to a pre-trial hearing, which saves up to a week due to scheduling complications, and allows the defendants' cases to come to trial sooner. Because most of the defendants in these cases are unrepresented by counsel, the prosecutor explains that they have a right to a preliminary hearing, but that defendants without a lawyer usually accomplish little or nothing at such hearings, and that the defendant will have a full trial at which to argue his innocence. He also explains that if the defendant believes he can win an acquittal, waiving a preliminary hearing might bring about the defendant's moment of freedom a bit sooner. Nearly all the defendants without representation agree to waive their preliminary hearings, which relieves some of the pressure on the local criminal docket and makes this more manageable for everyone. Is the prosecutor behaving properly in this regard? a) Yes, because he is making a good-faith effort to expedite the proceedings, which is good for the defendants who are innocent and want to get their trials done sooner rather than later. b) Yes, because he is apprising them of their rights before asking them to waive the right to a preliminary hearing. c) No, because it is improper for a prosecutor to have any direct contact with an unrepresented defendant before trial. d) No, because a prosecutor must not seek to obtain from an unrepresented accused a waiver of important pretrial rights, such as the right to a preliminary hearing.

d

210. Attorney works as a prosecutor and brings charges against a defendant. Attorney clearly has probable cause for alleging that the defendant committed the crime, but he also doubts that a judge or jury will find that the evidence satisfies the standard of "beyond a reasonable doubt." Attorney brings the case anyway, and the defendant wins an acquittal. Has Attorney acted improperly, under the Rules of Professional Conduct? a) Yes, because a prosecutor in a criminal case shall not seek a conviction unless the prosecutor believes in good faith that the defendant is guilty beyond a reasonable doubt. b) Yes, because the prosecutor should have conducted more investigation before commencing the proceedings so that he could ensure a conviction, if he already has probable cause to believe the defendant is guilty. c) No, because when a prosecutor knows of clear and convincing evidence establishing that a defendant in the prosecutor's jurisdiction was convicted of an offense that the defendant did not commit, the prosecutor shall seek to remedy the conviction. d) No, because a prosecutor may bring charges as long as the prosecutor knows the charges are supported by probable cause.

d

212. Attorney is an Assistant U.S. Attorney (federal prosecutor) working for the Department of Justice, and he must prosecute the defendants arrested in a high-profile sting operation against a terrorist cell. Attorney faces tremendous political and media pressure to win convictions at any cost. Attorney argues with his supervisor that he is not subject to local ethics rules, as he is litigating exclusively in federal court in cases involving federal law, and that he should therefore be immune from state bar disciplinary proceedings. Is Attorney correct? a) Yes, because of federal preemption of state law, a federal prosecutor who litigates exclusively in federal court, under federal law, does not come under the jurisdiction of the local bar disciplinary authorities. b) Yes, because under the USA Patriot Act, federal prosecutors are immune from disciplinary actions for their decisions in antiterrorism prosecutions. c) No, because Attorney will inevitably have cases that involve questions of state law, or will have cases transferred to state court. d) No, because federal statute, as well as Department of Justice regulations, subject federal prosecutors to the ethics rules of the state where such attorney engages in that attorney's duties.

d

222. In anticipation of trial over workplace discrimination, a plaintiff's lawyer contacts several current managers of the defendant corporation and interviews them about the day-to-day operations of the company and the chain of command for addressing personnel complaints. These managers supervise employees, address interpersonal problems between workers, filed complaints, and consult with the firm's in-house counsel about personnel matters that seem serious. The lawyer does this without permission from the defendant's attorney. Was this proper? a) Yes, given that these managers are likely to be witnesses at trial and subject to cross-examination anyway, it is reasonable for the lawyer to have a chance to speak with them informally before trial. b) Yes, because 95% of such cases settle before trial, meaning most discrimination cases do not really constitute "litigation" for purposes of the ethical rules. c) No, because even the identity of the managers at a defendant corporation is confidential information that should not be available to a lawyer in discrimination litigation. d) No, consent of the company's lawyer is always required for communication with a present constituent of the organization who supervises, directs or regularly consults with the organization's lawyer concerning the matter.

d

225. Attorney represents Plaintiff in a civil suit. Defendant is also represented, but contacts Attorney to negotiate a settlement agreement. Attorney advises Defendant that he cannot discuss the case with Defendant because Defendant is represented by counsel. Defendant faxes Attorney a letter stating that he waives the rule restricting Attorney from communicating with Defendant while Defendant is represented. Upon receipt of the fax, Attorney contacts Defendant and discusses a settlement agreement. Are Attorney's actions proper? a) Yes, because an attorney may communicate with represented persons as long as the represented person provides a written waiver to that attorney. b) Yes, because an attorney may communicate with represented persons as long as the represented person initiates the communication. c) No, because attorneys may not communicate with represented persons at all unless the attorney representing that person is also present. d) No, because attorneys may not communicate with represented persons unless the attorney representing that person permits the attorney to communicate with the represented person.

d

234. Do state IOLTA programs violate the Takings Clause of the United States Constitution? a) Yes, but the Supreme Court held that the takings are nevertheless justified because of their important social purpose b) Yes, but individual clients do not have standing to challenge IOLTA programs, because their losses are too small to constitute an injury-in-fact c) No, because the Supreme Court held that the interest is not client "property" and therefore does not constitute a governmental taking. d) No, because even though the programs constitute a governmental taking, the Supreme Court has held that the compensation owed to an individual client is zero.

d

230. "IOLTA" is an acronym for which of the following? a) Interest Owed on Legal Transaction Accounts b) Interest On Lawyers' Trust Accounts c) In-house, Of Counsel, Litigation, and Transactional Attorneys d) Internal Oversight of Lawyer Trial Advocacy

b