- Under the ABA Model Rules, what is the primary purpose of prohibiting the unauthorized practice of law by non-lawyers?
- To protect the public from unqualified persons providing legal services
- To maximize the fees that licensed attorneys may charge their clients
- To guarantee that every licensed lawyer maintains a full caseload
- To limit the total number of people who may attend law school
Correct answer: To protect the public from unqualified persons providing legal services
Protecting the public from unqualified persons is the correct answer. Rule 5.5's restriction on the unauthorized practice of law exists to shield the public from the harm that can result when legal services are rendered by those who lack the training, competence, and accountability that licensure ensures. It is not designed to insulate lawyer fees, guarantee caseloads, or cap law school enrollment.
- A lawyer admitted only in State A agrees to draft a contract for a client and, in doing so, regularly maintains a permanent office in State B where the lawyer is not admitted and holds herself out to the public there as available to practice law. Under Model Rule 5.5, what is the most accurate characterization of this conduct?
- It is permissible because contract drafting is never the practice of law
- It is permissible because a lawyer may practice anywhere once admitted in one state
- It constitutes the unauthorized practice of law in State B
- It is permissible only if the client also resides in State A
Correct answer: It constitutes the unauthorized practice of law in State B
This conduct constitutes the unauthorized practice of law in State B. Rule 5.5(b) prohibits a lawyer not admitted in a jurisdiction from establishing a systematic and continuous presence there for the practice of law or holding out to the public as admitted there. Maintaining a permanent office and advertising availability crosses that line, regardless of where the client resides or that the task is contract drafting.
- A lawyer licensed in another state seeks to appear and represent a client in a single trial pending in a jurisdiction where the lawyer is not admitted. Which mechanism allows the lawyer to do so for that particular case?
- Reciprocity admission
- Admission on motion
- A waiver of the character and fitness review
- Admission pro hac vice
Correct answer: Admission pro hac vice
Admission pro hac vice is the correct mechanism. This Latin phrase means 'for this occasion' and permits an out-of-state lawyer, typically by motion to the court and often in association with local counsel, to appear in a specific matter without obtaining full admission to that jurisdiction. Reciprocity and admission on motion grant general practice rights, and a character and fitness waiver is not how temporary case appearances are authorized.
- Which of the following is the most common condition a court imposes when granting an out-of-state lawyer admission pro hac vice?
- The lawyer must associate with locally admitted counsel
- The lawyer must permanently relocate to the jurisdiction
- The lawyer must waive all attorney-client privilege
- The lawyer must retake that state's bar examination
Correct answer: The lawyer must associate with locally admitted counsel
Associating with locally admitted counsel is the most common condition. Courts routinely require pro hac vice applicants to appear alongside a lawyer admitted in the forum jurisdiction, ensuring local accountability and familiarity with local rules. Pro hac vice admission is temporary and case-specific, so relocation, privilege waiver, and retaking the bar exam are not required.
- Under Model Rule 8.3, when does a lawyer have a duty to report another lawyer's professional misconduct to the appropriate authority?
- Whenever the lawyer learns of any technical violation, regardless of severity
- Only when the misconduct involves the reporting lawyer's own client
- When the lawyer knows of a violation that raises a substantial question about the other lawyer's honesty, trustworthiness, or fitness
- Only after the offending lawyer has already been formally charged
Correct answer: When the lawyer knows of a violation that raises a substantial question about the other lawyer's honesty, trustworthiness, or fitness
The duty arises when the lawyer knows of a violation raising a substantial question about the other lawyer's honesty, trustworthiness, or fitness. Rule 8.3(a) does not require reporting of every minor infraction; it is triggered by knowledge of serious misconduct that bears on the offender's professional fitness. The duty is independent of whose client is involved and does not wait for formal charges.
- A lawyer learns, while serving as a member of an approved lawyers' assistance program, that a colleague suffering from substance abuse committed misconduct raising a substantial question about her fitness. The lawyer learned this solely through confidential program communications. Under Model Rule 8.3, what is the lawyer's reporting obligation?
- The lawyer must immediately report the colleague to disciplinary authorities
- The lawyer must report only if the colleague refuses treatment
- The lawyer must report the colleague to the colleague's clients
- The lawyer is not required to report information gained through the assistance program
Correct answer: The lawyer is not required to report information gained through the assistance program
The lawyer is not required to report information gained through the assistance program. Rule 8.3(c) expressly exempts information that a lawyer learns while participating in an approved lawyers' assistance program, encouraging impaired lawyers to seek help without fear of triggering mandatory reporting. The general duty to report under Rule 8.3(a) does not override this confidentiality protection.
- During the bar admission process, an applicant is asked about a prior arrest on the application questionnaire and deliberately answers 'none' despite having been arrested two years earlier. Which professional conduct rule does this conduct most directly implicate?
- The prohibition on knowingly making a false statement of material fact in a bar admission application
- The duty of competence owed to future clients
- The prohibition on commingling client funds
- The rule governing fees that must be reasonable
Correct answer: The prohibition on knowingly making a false statement of material fact in a bar admission application
Knowingly making a false statement of material fact in a bar admission application is the rule most directly implicated. Rule 8.1(a) bars an applicant from knowingly making a false statement of material fact in connection with a bar admission application, and a deliberate omission of an arrest is precisely such a falsehood. Competence, commingling, and fee rules govern the practice of law itself, not the admission application.
- In evaluating an applicant's character and fitness for bar admission, which approach do most jurisdictions take toward past misconduct that the applicant has fully disclosed?
- Any past misconduct results in automatic and permanent denial
- Only criminal convictions, never other conduct, may be considered
- Past conduct is considered along with evidence of rehabilitation and present fitness
- Disclosure of past misconduct is itself an independent ground for denial
Correct answer: Past conduct is considered along with evidence of rehabilitation and present fitness
Considering past conduct along with rehabilitation and present fitness is the correct approach. Character and fitness review under the principles reflected in Rule 8.1 is forward-looking; bar examiners weigh prior misconduct against evidence of reform and the applicant's current fitness rather than treating any blemish as a permanent bar. Honest disclosure is favored, not penalized, and non-criminal conduct may be relevant.
- A disciplinary tribunal concludes that a lawyer's misconduct was serious but finds that the lawyer can be rehabilitated and may be permitted to resume practice after a fixed period. Which sanction best fits this conclusion?
- Disbarment
- Permanent revocation of the law license
- A private reprimand with no practice restriction
- Suspension
Correct answer: Suspension
Suspension best fits this conclusion. Suspension temporarily prohibits a lawyer from practicing for a defined period, after which the lawyer may seek reinstatement, making it appropriate where misconduct is serious yet the lawyer is viewed as capable of rehabilitation. Disbarment and permanent revocation end the right to practice, and a private reprimand imposes no practice restriction at all.
- What is the key practical distinction between disbarment and suspension as lawyer disciplinary sanctions?
- Disbarment applies only to civil cases while suspension applies only to criminal cases
- Disbarment terminates the right to practice while suspension halts it only temporarily
- Disbarment is imposed by clients while suspension is imposed by courts
- Suspension permanently ends the license while disbarment is always temporary
Correct answer: Disbarment terminates the right to practice while suspension halts it only temporarily
Disbarment terminates the right to practice while suspension halts it only temporarily. Disbarment is the most severe sanction, removing the lawyer from the profession (with reinstatement, where allowed, being difficult and rare), whereas suspension bars practice for a set time after which the lawyer may return. Neither sanction is tied to civil versus criminal matters, and both are imposed by the disciplinary authority or court, not by clients.
- A non-lawyer operating a document-preparation business advertises that she will 'analyze your situation and advise you on which legal claims to file and how to argue them in court.' Which characteristic of this conduct most strongly indicates the unauthorized practice of law?
- The business charges a flat fee for its services
- The business operates out of a commercial office
- The business gives individualized legal advice and selects legal strategy for others
- The business uses standardized forms in its work
Correct answer: The business gives individualized legal advice and selects legal strategy for others
Giving individualized legal advice and selecting legal strategy for others most strongly indicates the unauthorized practice of law. The exercise of legal judgment in advising a particular person about their claims and how to argue them is the core of practicing law, which non-lawyers may not do under Rule 5.5. Charging fees, having an office, and using standardized forms are not, by themselves, the practice of law.
- A lawyer admitted and in good standing in State X relocates to State Y, where she is not admitted, and immediately begins routinely advising local walk-in clients on State Y divorce matters without seeking any form of authorization. Analyzing this under Model Rule 5.5, which conclusion is correct?
- The conduct is the unauthorized practice of law despite her good standing elsewhere
- The conduct is proper because lawyers enjoy nationwide practice rights
- The conduct is proper because divorce law is uniform across all states
- The conduct is proper as long as she discloses she is licensed in State X
Correct answer: The conduct is the unauthorized practice of law despite her good standing elsewhere
The conduct is the unauthorized practice of law despite her good standing elsewhere. Rule 5.5 ties the right to practice to admission in the relevant jurisdiction; being licensed and in good standing in State X does not authorize a continuous, systematic local practice in State Y. There are no automatic nationwide practice rights, divorce law is not uniform, and merely disclosing the State X license does not cure the violation.
- Under Model Rule 1.5(c), what formality is required for a contingent fee agreement between a lawyer and client?
- It must be in a writing signed by the client
- It may be oral so long as the lawyer later confirms it by email
- It must be approved in advance by the court hearing the matter
- It must be witnessed by a second attorney in the firm
Correct answer: It must be in a writing signed by the client
A contingent fee agreement must be in a writing signed by the client. Rule 1.5(c) specifically requires that a contingent fee be set out in a writing signed by the client and state the method by which the fee is determined, including percentages and how litigation expenses are handled. An oral agreement, advance court approval, or a witnessing attorney is not what the rule demands.
- A lawyer takes a personal injury case on a one-third contingent fee. At the conclusion of the matter, the lawyer recovers a settlement for the client. Under Model Rule 1.5(c), what must the lawyer provide to the client at the end of the representation?
- A sworn affidavit filed with the disciplinary board
- A written statement showing the outcome and, if there is a recovery, the remittance and method of its determination
- An oral summary of the settlement amount only
- A copy of opposing counsel's billing records
Correct answer: A written statement showing the outcome and, if there is a recovery, the remittance and method of its determination
The lawyer must provide a written statement showing the outcome and, if there is a recovery, the remittance to the client and the method of its determination. Rule 1.5(c) requires this end-of-matter written accounting so the client can see how the recovery was divided. A disciplinary affidavit, a mere oral summary, or opposing counsel's billing records do not satisfy this requirement.
- In which type of matter do the Model Rules categorically prohibit a lawyer from charging a contingent fee?
- A products liability claim against a manufacturer
- A commercial debt collection action
- A domestic relations matter where the fee is contingent on securing a divorce or the amount of alimony
- A premises liability personal injury case
Correct answer: A domestic relations matter where the fee is contingent on securing a divorce or the amount of alimony
A lawyer may not charge a contingent fee in a domestic relations matter where the fee is contingent upon securing a divorce or upon the amount of alimony, support, or property settlement. Rule 1.5(d) bars such fees in family-law matters because they could discourage reconciliation. Contingent fees are permissible in products liability, debt collection, and ordinary personal injury cases.
- Under Model Rule 1.5(d), in addition to certain domestic relations matters, a contingent fee is prohibited in which of the following?
- Representing a defendant in a criminal case
- Representing a plaintiff in a class action
- Representing a tenant in a landlord dispute
- Representing a client in a contract negotiation
Correct answer: Representing a defendant in a criminal case
A contingent fee is prohibited in representing a defendant in a criminal case. Rule 1.5(d)(2) flatly bars contingent fees for criminal defense work, since tying a defense lawyer's pay to an acquittal raises serious public-policy concerns. Class actions, landlord-tenant disputes, and contract negotiations are not subject to this categorical ban.
- Under Model Rule 1.5(a), which of the following is a factor in determining whether a lawyer's fee is reasonable?
- The lawyer's outstanding personal debts
- The time and labor required and the novelty and difficulty of the questions involved
- The number of years the lawyer has been married
- The client's political affiliation
Correct answer: The time and labor required and the novelty and difficulty of the questions involved
The time and labor required and the novelty and difficulty of the questions involved is a recognized reasonableness factor. Rule 1.5(a) lists factors such as the time and labor required, the skill needed, the customary fee in the locality, the amount involved and results obtained, and the lawyer's experience and reputation. A lawyer's personal debts, marital status, and the client's politics are irrelevant to fee reasonableness.
- A lawyer charges a client a flat $40,000 fee for drafting a simple, standard will that would ordinarily take an experienced lawyer about two hours and that comparable lawyers in the area would charge a few hundred dollars to prepare. Under Model Rule 1.5(a), how is this fee best characterized?
- Reasonable, because clients may agree to any fee
- Reasonable, because flat fees are always permitted
- Unreasonable, because it is grossly disproportionate to the time, skill, and customary local fee for the work
- Permissible only if the client is wealthy
Correct answer: Unreasonable, because it is grossly disproportionate to the time, skill, and customary local fee for the work
The fee is unreasonable because it is grossly disproportionate to the time, skill, and customary local fee for the work. Rule 1.5(a) prohibits an unreasonable fee, and charging $40,000 for routine work worth a few hundred dollars fails the reasonableness factors of time and labor required and the fee customarily charged locally. Client agreement, the flat-fee format, and the client's wealth do not validate an unreasonable fee.
- Which Model Rule 1.5(a) factor most directly accounts for the fact that a lawyer who takes a particular matter must turn away other paying work?
- The fee customarily charged in the locality
- The experience and reputation of the lawyer
- Whether the fee is fixed or contingent
- The likelihood that accepting the matter will preclude other employment by the lawyer
Correct answer: The likelihood that accepting the matter will preclude other employment by the lawyer
The likelihood that accepting the matter will preclude other employment by the lawyer is the factor that accounts for turned-away work. Rule 1.5(a) expressly recognizes that when a matter so occupies a lawyer that it forecloses other employment, that opportunity cost may justify a higher fee. The customary local fee, the lawyer's reputation, and the fixed-versus-contingent nature are separate, distinct factors.
- Under Model Rule 1.2(a), how is decision-making authority generally allocated between a lawyer and client regarding the objectives and means of representation?
- The lawyer decides both the objectives and all means without consulting the client
- The client decides the objectives, and the lawyer consults the client about the means used to pursue them
- The client decides every tactical and procedural detail of the case
- The lawyer is bound to follow only the objectives the lawyer personally approves
Correct answer: The client decides the objectives, and the lawyer consults the client about the means used to pursue them
The client decides the objectives, and the lawyer consults the client about the means used to pursue them. Rule 1.2(a) gives the client authority over the goals of the representation while leaving the lawyer to make tactical and technical decisions, subject to consultation. The lawyer does not unilaterally set objectives, the client need not micromanage every procedural detail, and the lawyer cannot ignore the client's lawful objectives.
- In a criminal case, which of the following decisions does Model Rule 1.2(a) reserve specifically to the client?
- Which witnesses to cross-examine and in what order
- Which legal motions to file before trial
- Whether to plead guilty, waive a jury trial, and whether to testify
- How to phrase objections during the trial
Correct answer: Whether to plead guilty, waive a jury trial, and whether to testify
Whether to plead guilty, waive a jury trial, and whether the client will testify are decisions reserved to the client. Rule 1.2(a) gives the criminal defendant personal authority over these fundamental choices because they implicate core constitutional rights. The selection and sequencing of cross-examination, which motions to file, and how to phrase objections are tactical means left to the lawyer's professional judgment.
- A client and lawyer agree at the outset that the lawyer's representation will be limited to reviewing and advising on a single lease agreement, rather than handling all of the client's real estate affairs. Under Model Rule 1.2(c), is this limited scope permissible?
- No, a lawyer must always handle every aspect of a client's legal needs
- Yes, but only if a judge first approves the limitation
- No, unless the client waives the right to sue for malpractice
- Yes, if the limitation is reasonable under the circumstances and the client gives informed consent
Correct answer: Yes, if the limitation is reasonable under the circumstances and the client gives informed consent
Yes, the limited scope is permissible if the limitation is reasonable under the circumstances and the client gives informed consent. Rule 1.2(c) expressly allows a lawyer to limit the scope of representation when reasonable and consented to after consultation. A lawyer is not required to handle every legal need, no judicial approval is needed, and a malpractice-suit waiver is not a condition of limiting scope.
- Under Model Rule 1.2(d), what may a lawyer do when a client asks the lawyer for help with a course of conduct the lawyer knows is criminal or fraudulent?
- Assist the client so long as the lawyer is paid in advance
- Counsel the client to engage in it if the client insists
- Refrain from assisting the crime or fraud but discuss the legal consequences of the proposed conduct
- Report the client to the police before doing anything else
Correct answer: Refrain from assisting the crime or fraud but discuss the legal consequences of the proposed conduct
The lawyer may refrain from assisting the crime or fraud but discuss the legal consequences of the proposed conduct. Rule 1.2(d) forbids counseling or assisting a client in conduct the lawyer knows is criminal or fraudulent, yet it permits the lawyer to discuss the legal consequences of any proposed course of conduct. Advance payment does not authorize assisting a crime, the lawyer may not counsel the client to commit it, and reporting the client to police is not what the rule requires here.
- Under Model Rule 1.16(a), in which situation is a lawyer required to withdraw from representing a client?
- When continued representation will result in a violation of the rules of professional conduct or other law
- Whenever the client questions the lawyer's strategy
- Whenever another client offers the lawyer a more lucrative matter
- Whenever the case becomes more difficult than expected
Correct answer: When continued representation will result in a violation of the rules of professional conduct or other law
A lawyer must withdraw when continued representation will result in a violation of the rules of professional conduct or other law. Rule 1.16(a) makes withdrawal mandatory in that circumstance, as well as when the lawyer's condition materially impairs representation or the lawyer is discharged. A client's questioning of strategy, a more lucrative opportunity, or unexpected difficulty are not grounds requiring withdrawal.
- When a lawyer's representation is terminated, Model Rule 1.16(d) requires the lawyer to take reasonable steps to protect the client's interests. Which of the following best illustrates that duty?
- Surrendering papers and property to which the client is entitled and refunding any unearned fee
- Destroying the client's file to preserve confidentiality
- Refusing to release any documents until a new lawyer is hired
- Retaining the entire advance fee as compensation for the inconvenience of withdrawing
Correct answer: Surrendering papers and property to which the client is entitled and refunding any unearned fee
Surrendering papers and property to which the client is entitled and refunding any unearned fee best illustrates the duty. Rule 1.16(d) requires a withdrawing lawyer to take steps reasonably practicable to protect the client, including giving reasonable notice, returning the client's property, and refunding unearned fees. Destroying the file, withholding documents the client is entitled to, and keeping unearned fees all violate this duty.
- Under Model Rule 1.6(a), to what information does a lawyer's ethical duty of confidentiality apply?
- All information relating to the representation of a client, whatever its source
- Only information the client has expressly marked as confidential
- Only communications protected by the attorney-client privilege
- Only information learned directly from the client in private meetings
Correct answer: All information relating to the representation of a client, whatever its source
The ethical duty of confidentiality applies to all information relating to the representation of a client, whatever its source. Rule 1.6(a) protects information relating to the representation regardless of whether the client labeled it confidential and regardless of how the lawyer learned it. The duty is broader than the attorney-client privilege and is not limited to information the client supplied directly.
- A prospective client tells a lawyer detailed facts about a dispute during an initial consultation, but the lawyer is never hired and the person never becomes a client. Under the Model Rules, what is the lawyer's obligation regarding that information?
- The lawyer owes no confidentiality duty because no representation was ever formed
- The lawyer may freely disclose the information once it is clear no fee will be paid
- The lawyer must keep the information confidential as information learned in consulting with a prospective client
- The lawyer may disclose the information only to other lawyers in the same firm
Correct answer: The lawyer must keep the information confidential as information learned in consulting with a prospective client
The lawyer must keep the information confidential as information learned in consulting with a prospective client. Rule 1.18 extends confidentiality protection to information learned during a consultation even if no client-lawyer relationship results, so the lawyer cannot freely disclose it merely because no fee was paid or no engagement formed. The duty is not limited to sharing within the firm; it bars disclosure to others.
- Which of the following best distinguishes the attorney-client privilege from the broader ethical duty of confidentiality?
- The privilege protects more information than the ethical duty does
- The privilege is an evidentiary rule that shields certain communications from compelled disclosure in legal proceedings
- The privilege applies only after litigation has formally ended
- The privilege and the ethical duty are identical in scope and effect
Correct answer: The privilege is an evidentiary rule that shields certain communications from compelled disclosure in legal proceedings
The attorney-client privilege is an evidentiary rule that shields certain confidential communications from compelled disclosure in legal proceedings. It is narrower than the ethical duty of confidentiality under Rule 1.6, covering only confidential communications made to obtain legal advice rather than all information relating to the representation. The privilege protects less, not more, information than the ethical duty, applies during proceedings rather than only after litigation ends, and is not identical in scope to the ethics rule.
- A corporation's lawyer interviews a mid-level employee about a workplace accident so the lawyer can advise the company. The communication is confidential and made to enable legal advice to the corporation. Under prevailing federal privilege principles, is this communication protected by the attorney-client privilege?
- No, because only communications with the corporation's senior officers can be privileged
- No, because corporations cannot hold an attorney-client privilege
- Yes, because an employee's confidential communication made to enable legal advice to the corporation may be privileged
- Yes, but only if the employee personally pays the lawyer's fee
Correct answer: Yes, because an employee's confidential communication made to enable legal advice to the corporation may be privileged
Yes, an employee's confidential communication made to enable legal advice to the corporation may be privileged. Under the subject-matter approach adopted in Upjohn Co. v. United States, the corporate attorney-client privilege is not limited to senior officers and can extend to communications with lower-level employees acting within the scope of their duties to help the lawyer advise the entity. Corporations do hold the privilege, and the employee need not personally pay the fee for the corporate privilege to attach.
- During litigation, opposing counsel seeks to compel production of a memorandum a lawyer prepared analyzing trial strategy and legal theories in anticipation of the litigation. Which doctrine most directly protects this material from disclosure?
- The crime-fraud exception
- The duty of candor to the tribunal
- The work product doctrine
- The rule against ex parte contact
Correct answer: The work product doctrine
The work product doctrine most directly protects this material. Work product covers documents and tangible things prepared by or for a party or its representative in anticipation of litigation, and a lawyer's memorandum analyzing trial strategy and legal theories is classic opinion work product entitled to strong protection. The crime-fraud exception is a defeat of privilege, candor to the tribunal concerns honesty to courts, and the no-contact rule governs communications, none of which shields strategy memos.
- How does the work product doctrine generally treat a lawyer's mental impressions, conclusions, opinions, and legal theories about a case?
- They receive no protection because opinions are not facts
- They receive special, near-absolute protection that is more difficult for an opponent to overcome
- They are protected only if the client also asserts the attorney-client privilege
- They lose all protection as soon as litigation is filed
Correct answer: They receive special, near-absolute protection that is more difficult for an opponent to overcome
A lawyer's mental impressions, conclusions, opinions, and legal theories receive special, near-absolute protection. So-called opinion work product is shielded far more strongly than ordinary fact work product, which can sometimes be obtained on a showing of substantial need and undue hardship. This protection does not depend on the client asserting the attorney-client privilege and does not evaporate when litigation is filed.
- A lawyer learns from a client that the client intends to detonate a bomb in a crowded building next week. Under Model Rule 1.6(b), what does the rule permit the lawyer to do with this otherwise confidential information?
- Nothing, because the duty of confidentiality is absolute and admits no exceptions
- The lawyer must immediately withdraw and may say nothing to anyone
- The lawyer may reveal the information to the extent reasonably necessary to prevent reasonably certain death or substantial bodily harm
- The lawyer may disclose the information only after the bomb has actually been planted
Correct answer: The lawyer may reveal the information to the extent reasonably necessary to prevent reasonably certain death or substantial bodily harm
The lawyer may reveal the information to the extent reasonably necessary to prevent reasonably certain death or substantial bodily harm. Rule 1.6(b)(1) creates a discretionary exception allowing disclosure to prevent that harm, so the duty of confidentiality is not absolute. The lawyer need not wait until the harm is underway, and the exception does more than permit silent withdrawal; it authorizes the limited disclosure necessary to prevent the threatened harm.
- Under Model Rule 1.6(b)(1), which feature distinguishes the exception permitting disclosure to prevent reasonably certain death or substantial bodily harm from a mandatory disclosure duty?
- It applies only to communications made in writing
- It is discretionary, permitting but not requiring the lawyer to reveal the information
- It requires court approval before any disclosure may occur
- It applies only when the threatened victim is the lawyer's own client
Correct answer: It is discretionary, permitting but not requiring the lawyer to reveal the information
The exception is discretionary, permitting but not requiring the lawyer to reveal the information. Rule 1.6(b) provides that a lawyer may reveal confidential information to prevent reasonably certain death or substantial bodily harm, leaving the choice to the lawyer's judgment rather than commanding disclosure. The exception is not limited to written communications, does not require advance court approval, and is not confined to threats against the lawyer's own client.
- Under Model Rule 1.6(b), which of the following is a recognized exception that permits a lawyer to reveal otherwise confidential client information?
- To prevent the client from committing a crime or fraud reasonably certain to result in substantial financial injury in furtherance of which the client has used the lawyer's services
- To assist the lawyer in marketing the firm's services to new clients
- To embarrass a former client who left for another firm
- To satisfy the lawyer's general curiosity about the outcome of a matter
Correct answer: To prevent the client from committing a crime or fraud reasonably certain to result in substantial financial injury in furtherance of which the client has used the lawyer's services
A lawyer may reveal information to prevent the client from committing a crime or fraud reasonably certain to result in substantial financial injury in furtherance of which the client has used the lawyer's services. Rule 1.6(b)(2) recognizes this exception where the lawyer's services have been used to advance the wrongdoing. Marketing the firm, embarrassing a former client, and idle curiosity are not permissible bases for disclosing confidential information.
- A client confidentially consults a lawyer and, during that consultation, seeks the lawyer's help in structuring a transaction the client intends to use to commit a fraud. The client later argues the communications are privileged. How does the crime-fraud exception apply?
- The exception protects the communications because they were made to a lawyer
- The exception applies only to crimes already completed before the consultation
- The communications lose privilege protection because they were made in furtherance of a future or ongoing crime or fraud
- The exception applies only if the lawyer knowingly joined the fraud
Correct answer: The communications lose privilege protection because they were made in furtherance of a future or ongoing crime or fraud
The communications lose privilege protection because they were made in furtherance of a future or ongoing crime or fraud. Under the crime-fraud exception, the attorney-client privilege does not shield communications a client makes to enable or aid the commission of a crime or fraud, even when the client confides in a lawyer. The exception targets future or ongoing wrongdoing rather than past completed acts, and it applies based on the client's purpose regardless of whether the lawyer knew of or joined the scheme.
- What is the rationale for the crime-fraud exception to the attorney-client privilege?
- It punishes lawyers who charge unreasonable fees
- The privilege is meant to facilitate lawful legal advice, not to cloak the planning of future crimes or frauds
- It allows opposing counsel to obtain any document they request
- It exists to let lawyers profit from disclosing client secrets
Correct answer: The privilege is meant to facilitate lawful legal advice, not to cloak the planning of future crimes or frauds
The privilege is meant to facilitate lawful legal advice, not to cloak the planning of future crimes or frauds. The crime-fraud exception reflects that the policy behind the attorney-client privilege, encouraging candid communication to obtain sound legal counsel, has no force when the client seeks assistance to commit a crime or fraud. The exception is unrelated to fee disputes, does not open all documents to discovery, and is not a mechanism for lawyers to profit from disclosing secrets.
- A lawyer wants to disclose confidential information to defend against a malpractice claim a former client has filed against the lawyer. Analyzing Model Rule 1.6(b), how much information may the lawyer reveal?
- All information about the client, regardless of relevance to the claim
- No information, because the duty of confidentiality survives the end of representation
- Only information the former client agrees in writing to release
- Information to the extent the lawyer reasonably believes necessary to establish a defense in the controversy
Correct answer: Information to the extent the lawyer reasonably believes necessary to establish a defense in the controversy
The lawyer may reveal information to the extent the lawyer reasonably believes necessary to establish a defense in the controversy. Rule 1.6(b)(5) permits a lawyer to disclose confidential information to defend against a claim, such as a malpractice suit, but only as far as reasonably necessary, not a wholesale dump of unrelated client information. The duty of confidentiality does survive the representation, but this self-defense exception applies even afterward and does not require the former client's written consent.
- Under Model Rule 1.7(a), a concurrent conflict of interest exists in which of the following situations?
- The representation of one client will be directly adverse to another current client
- The lawyer once represented a client in a wholly unrelated matter years ago
- The lawyer dislikes the opposing party in the case
- The lawyer's fee in the matter is higher than usual
Correct answer: The representation of one client will be directly adverse to another current client
A concurrent conflict exists when the representation of one client will be directly adverse to another current client. Rule 1.7(a)(1) defines a concurrent conflict to include direct adversity between current clients, and Rule 1.7(a)(2) adds a significant risk that representation will be materially limited. A past unrelated matter is a former-client question under Rule 1.9, while personal dislike of an opponent or a high fee does not create a concurrent conflict.
- Even when a concurrent conflict of interest exists, Model Rule 1.7(b) permits a lawyer to represent the client only if certain conditions are met. Which of the following is one of those conditions?
- The conflicting clients are represented by different firms in the same building
- The lawyer charges each client a separate retainer
- A judge orders the lawyer to proceed with the representation
- Each affected client gives informed consent, confirmed in writing
Correct answer: Each affected client gives informed consent, confirmed in writing
Each affected client must give informed consent, confirmed in writing. Rule 1.7(b) allows representation despite a concurrent conflict only if the lawyer reasonably believes competent and diligent representation is possible, the representation is not prohibited by law, it does not involve one client asserting a claim against another in the same proceeding, and each client gives informed consent confirmed in writing. Separate retainers, office locations, or a judicial order are not what cures a concurrent conflict.
- A lawyer is asked to represent two co-plaintiffs in the same lawsuit whose interests are currently aligned but who may later disagree about how to divide a recovery. Before undertaking the joint representation, what must the lawyer obtain from each client to validly waive the conflict?
- A verbal acknowledgment that they understand the lawyer is busy
- Payment of the full fee in advance from both clients
- Informed consent, confirmed in writing, after the lawyer explains the risks of joint representation
- A signed promise never to file a malpractice claim
Correct answer: Informed consent, confirmed in writing, after the lawyer explains the risks of joint representation
The lawyer must obtain informed consent, confirmed in writing, after explaining the material risks of and reasonably available alternatives to the joint representation. Rule 1.7(b) requires that consent be informed, meaning the lawyer communicates adequate information about the risks, and that it be confirmed in writing. A verbal acknowledgment, advance payment, or a no-malpractice promise does not satisfy the informed-consent requirement.
- Some concurrent conflicts of interest are nonconsentable, meaning client consent cannot cure them. Which of the following is an example of a nonconsentable conflict under Model Rule 1.7?
- Representing one client against another current client in the same litigation as opposing parties
- Representing two clients whose only difference is their preferred meeting times
- Representing clients who happen to be competitors in unrelated business deals
- Representing a client whose matter requires extensive travel by the lawyer
Correct answer: Representing one client against another current client in the same litigation as opposing parties
Representing one client against another current client as opposing parties in the same litigation is nonconsentable. Rule 1.7(b)(3) prohibits representation, even with consent, when it involves the assertion of a claim by one client against another client represented by the lawyer in the same proceeding. Differing meeting times, being competitors in unrelated deals, or a matter requiring travel do not create nonconsentable conflicts.
- Under Model Rule 1.9(a), a lawyer who formerly represented a client may not, without informed consent confirmed in writing, represent another person in the same or a substantially related matter in which that person's interests are which of the following?
- Identical to the former client's interests
- Materially adverse to the interests of the former client
- Unknown to the lawyer at the outset
- Beneficial to the former client
Correct answer: Materially adverse to the interests of the former client
The new client's interests must be materially adverse to the former client's interests for Rule 1.9(a) to bar the representation. The former-client conflict rule applies when the matters are the same or substantially related and the interests are materially adverse, absent informed consent confirmed in writing. Representation is not prohibited where interests are identical or beneficial to the former client, and the rule turns on adversity rather than on whether the interests were initially unknown.
- A lawyer previously represented a company in negotiating and drafting a specific commercial lease. The company is now the lawyer's former client. A new client asks the lawyer to sue that company to invalidate the very same lease the lawyer drafted. Under Model Rule 1.9, how should the lawyer evaluate this?
- The lawyer may proceed because the prior representation has ended
- The lawyer may proceed because litigation and drafting are different skills
- The matters are substantially related and adverse, so the lawyer needs the former client's informed consent confirmed in writing
- The lawyer may proceed if the new client pays a higher fee
Correct answer: The matters are substantially related and adverse, so the lawyer needs the former client's informed consent confirmed in writing
Because the matters are substantially related and the new representation is materially adverse to the former client, the lawyer needs the former client's informed consent confirmed in writing. Rule 1.9(a) bars attacking the very lease the lawyer drafted for a former client in a substantially related matter without consent. The fact that the prior matter ended, that litigation differs from drafting, or that a higher fee is offered does not eliminate the former-client conflict.
- The 'substantial relationship' test under Model Rule 1.9 turns primarily on which consideration?
- Whether the two matters involve the same opposing law firm
- Whether the lawyer was paid more in the first matter than the second
- Whether there is a substantial risk that confidential information from the prior representation would materially advance the new client's position
- Whether the former client still likes the lawyer
Correct answer: Whether there is a substantial risk that confidential information from the prior representation would materially advance the new client's position
The test turns primarily on whether there is a substantial risk that confidential factual information the lawyer would normally have learned in the prior representation would materially advance the new client's position in the subsequent matter. This protects the former client's confidences when matters are substantially related under Rule 1.9. It does not depend on the opposing firm's identity, comparative fees, or the former client's feelings toward the lawyer.
- Under Model Rule 1.10(a), what is the general effect of one lawyer in a firm being personally prohibited from a representation due to a conflict of interest?
- Only that individual lawyer is barred, with no effect on the rest of the firm
- The firm may proceed if a majority of partners vote to do so
- The conflict disappears once the matter is reassigned to a junior associate
- The conflict is imputed so that none of the lawyers in the firm may knowingly undertake the representation
Correct answer: The conflict is imputed so that none of the lawyers in the firm may knowingly undertake the representation
The conflict is generally imputed so that none of the lawyers associated in the firm may knowingly undertake the representation. Rule 1.10(a) provides that while lawyers practice together in a firm, a conflict personal to one is ordinarily attributed to all of them, subject to limited exceptions. The prohibition is not confined to the individual lawyer, cannot be overridden by a partner vote, and is not cured by reassigning the matter to a junior associate.
- Under Model Rule 1.10, imputation of a conflict is generally not required when the prohibition is based on which of the following?
- A personal interest of the disqualified lawyer that does not present a significant risk of materially limiting the representation by the other lawyers
- A direct conflict shared by the entire firm
- The firm's prior representation of an adverse party
- A written waiver that no client signed
Correct answer: A personal interest of the disqualified lawyer that does not present a significant risk of materially limiting the representation by the other lawyers
Imputation is generally not required when the prohibition is based on a personal interest of the disqualified lawyer that does not present a significant risk of materially limiting the representation by the remaining lawyers. Rule 1.10(a)(1) excepts such personal-interest conflicts from firm-wide imputation. A direct firm-wide conflict and the firm's prior representation of an adverse party are precisely what gets imputed, and an unsigned waiver does not avoid imputation.
- A lawyer who personally handled a matter for a client at her old firm moves to a new firm whose existing client is adverse to that former client in the substantially related matter. Under Model Rule 1.10, what mechanism may allow the new firm to continue representing its client without obtaining the former client's consent?
- Having the new firm pay the former client a settlement
- Reassigning the matter to the firm's most senior partner
- Asking the court to seal the file from public view
- Timely screening the newly arrived lawyer from the matter and providing the required notice, with no fee apportionment to her
Correct answer: Timely screening the newly arrived lawyer from the matter and providing the required notice, with no fee apportionment to her
Timely screening the newly arrived lawyer from the matter, providing written notice to the affected former client, and apportioning her no part of the fee may allow the firm to avoid imputed disqualification. Rule 1.10(a)(2) permits screening of a personally disqualified lateral lawyer if the screen is timely, the lawyer is apportioned no fee, and notice is given. Paying a settlement, reassigning to a senior partner, or sealing the file does not satisfy the screening requirements.
- What is the essential purpose of an ethical screen (sometimes called a 'Chinese wall') in a law firm?
- To prevent a disqualified lawyer from sharing or receiving confidential information about, and from participating in, the screened matter
- To increase the fees the firm can charge the screened client
- To allow the disqualified lawyer to supervise the matter from a distance
- To notify the public that the firm has a conflict
Correct answer: To prevent a disqualified lawyer from sharing or receiving confidential information about, and from participating in, the screened matter
The essential purpose of a screen is to isolate the disqualified lawyer so that the lawyer neither participates in the matter nor shares or receives information protected under Rules 1.6 and 1.9. A properly implemented screen, defined in Rule 1.0(k), shields the firm from imputed disqualification by walling the lawyer off entirely. It is not a device to raise fees, to let the lawyer quietly supervise the matter, or to give public notice of a conflict.
- Under Model Rule 1.8(a), before a lawyer may enter into a business transaction with a current client, several requirements must be satisfied. Which of the following is one of them?
- The transaction must generate a profit for the lawyer
- The terms must be fair and reasonable to the client and fully disclosed in writing in a manner the client can reasonably understand
- The lawyer must obtain prior approval from the state bar
- The client must waive the right to seek independent legal advice
Correct answer: The terms must be fair and reasonable to the client and fully disclosed in writing in a manner the client can reasonably understand
The terms must be fair and reasonable to the client and fully disclosed and transmitted in writing in a manner the client can reasonably understand. Rule 1.8(a)(1) imposes this fairness-and-disclosure requirement, and the rule also requires that the client be advised in writing of the desirability of seeking independent counsel and give informed written consent to the essential terms. The rule does not require that the lawyer profit, demand bar approval, or permit waiver of independent advice.
- A lawyer wants to buy a parcel of real estate from a current client at a price the lawyer sets. Under Model Rule 1.8(a), which step must the lawyer take in addition to making the terms fair and disclosing them in writing?
- Advise the client in writing of the desirability of seeking independent counsel and obtain the client's informed written consent
- Have another partner in the firm sign the deed
- Reduce the lawyer's fee on the client's other matters
- Promise to resell the property to the client later
Correct answer: Advise the client in writing of the desirability of seeking independent counsel and obtain the client's informed written consent
The lawyer must advise the client in writing of the desirability of seeking the advice of independent legal counsel and obtain the client's informed consent, in a signed writing, to the essential terms of the transaction. Rule 1.8(a)(2) and (3) require these protective steps so the client can evaluate the deal at arm's length. Having a partner sign, discounting other fees, or promising a future resale does not satisfy these requirements.
- Under Model Rule 1.8(j), what is the rule regarding sexual relationships between a lawyer and a client?
- They are permitted as long as the client consents
- A lawyer shall not have sexual relations with a client unless a consensual sexual relationship existed before the client-lawyer relationship began
- They are permitted if the lawyer charges no fee for the representation
- They are permitted in transactional matters but not in litigation
Correct answer: A lawyer shall not have sexual relations with a client unless a consensual sexual relationship existed before the client-lawyer relationship began
A lawyer shall not have sexual relations with a client unless a consensual sexual relationship existed between them when the client-lawyer relationship commenced. Rule 1.8(j) creates this near-categorical prohibition because of the risk that the lawyer will exploit the trust and dependence inherent in the relationship. Client consent during the representation does not cure it, and the prohibition is not waived by charging no fee or by the matter being transactional rather than litigation.
- A lawyer begins a new, consensual romantic and sexual relationship with a client several weeks after agreeing to represent the client in a custody dispute. The client says she is a willing adult and consents. Under Model Rule 1.8(j), how is the lawyer's conduct best characterized?
- Permissible, because the client is a consenting adult
- Permissible, because custody disputes are exempt from the rule
- A violation, because the sexual relationship began after the client-lawyer relationship commenced
- Permissible, so long as the lawyer documents the client's consent
Correct answer: A violation, because the sexual relationship began after the client-lawyer relationship commenced
The conduct is a violation because the sexual relationship began after the client-lawyer relationship commenced. Rule 1.8(j) prohibits sexual relations with a client unless the relationship predated the representation, and consent given during the representation does not validate it. There is no exemption for custody matters, and documenting the client's consent does not make the otherwise prohibited relationship permissible.
- An insurance company hires a lawyer to defend its insured, and both the insurer and the insured are the lawyer's clients in the matter. A dispute arises over whether to settle within policy limits, with the insurer favoring trial and the insured demanding settlement. Analyzing this under Model Rule 1.7, what does the situation present?
- No conflict, because the insurer pays the lawyer's fee and thus controls strategy
- A former-client conflict governed by Rule 1.9
- A matter that the lawyer must report to the disciplinary authority
- A concurrent conflict of interest requiring the lawyer to address the divergent interests of the two clients
Correct answer: A concurrent conflict of interest requiring the lawyer to address the divergent interests of the two clients
The situation presents a concurrent conflict of interest because the insurer and the insured are both current clients whose interests now diverge over the settlement decision. Rule 1.7(a)(2) is implicated when there is a significant risk that the representation of one client will be materially limited by responsibilities to another. The fee-payer does not control strategy under Rule 1.8(f), this is not a former-client matter, and a divergence of interests is not itself reportable misconduct.
- A solo practitioner who is personally disqualified from a matter under Rule 1.9 because she previously represented the now-adverse party considers continuing the representation by simply not discussing the matter with anyone. Why does screening not solve her problem?
- Screening is available only to government lawyers
- Screening requires isolating the disqualified lawyer from others in a firm, which is impossible for a solo practitioner with no colleagues to be screened off from
- Screening always requires the former client's written consent
- Screening only works in transactional matters
Correct answer: Screening requires isolating the disqualified lawyer from others in a firm, which is impossible for a solo practitioner with no colleagues to be screened off from
Screening does not solve a solo practitioner's problem because a screen functions by isolating the disqualified lawyer from other lawyers in the firm, and a solo with no colleagues has no one from whom to be screened. The lawyer herself is conflicted under Rule 1.9, so there is no untainted lawyer in the firm to handle the matter. Screening is not limited to government lawyers or transactional matters, and the screening mechanism under Rule 1.10(a)(2) operates without the former client's consent precisely because it substitutes for that consent.
- A lawyer represents two business partners forming a company and they ask the lawyer to also draft an agreement allocating ownership between them, on terms they have not yet agreed upon. Analyzing this under Model Rule 1.7, what is the lawyer's best course before proceeding?
- Proceed without disclosure, since both partners are on the same side
- Represent only the partner who contacted the lawyer first
- Refuse to put anything in writing to avoid creating a record
- Obtain each partner's informed consent confirmed in writing only if the lawyer reasonably believes she can competently represent both despite their potentially adverse interests
Correct answer: Obtain each partner's informed consent confirmed in writing only if the lawyer reasonably believes she can competently represent both despite their potentially adverse interests
The lawyer should obtain each partner's informed consent confirmed in writing, and only if she reasonably believes she can provide competent and diligent representation to both despite their potentially differing interests. Rule 1.7(b) permits common representation of clients with potentially adverse interests only when the lawyer's reasonable-belief and informed-written-consent conditions are met. Proceeding without disclosure, secretly favoring one partner, or refusing to create any record all fail the rule.
- A former government lawyer who personally and substantially participated in a matter while in public service later joins a private firm whose client is involved in that same matter. Under Model Rule 1.11, what allows the firm to continue the representation without the former lawyer's personal participation?
- The firm need do nothing because government work never creates conflicts
- The firm may proceed only if the former government lawyer is disbarred
- The disqualified lawyer is timely screened from the matter, apportioned no part of the fee, and the appropriate government agency receives written notice
- The firm must transfer the matter to a different law firm entirely
Correct answer: The disqualified lawyer is timely screened from the matter, apportioned no part of the fee, and the appropriate government agency receives written notice
The firm may continue if the personally disqualified former government lawyer is timely screened from the matter, is apportioned no part of the fee from it, and written notice is promptly given to the appropriate government agency. Rule 1.11(b) permits screening to avoid imputing the former government lawyer's conflict to the firm. Government work can create conflicts, disbarment is not required, and screening avoids the need to transfer the matter elsewhere.
- Under Model Rule 1.1, what does a lawyer's duty of competent representation require a lawyer to bring to a matter?
- The legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation
- A guarantee that the client will prevail in the matter
- Specialty board certification in the relevant area of law
- More years of experience than any opposing counsel
Correct answer: The legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation
The legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation is what Rule 1.1 requires. The duty of competence is measured by what is reasonably necessary for the particular matter, not by guaranteeing victory, holding board certification, or out-experiencing the other side. Competence focuses on the lawyer's preparation and ability relative to the task, not on the outcome or the lawyer's credentials compared to opponents.
- Under Model Rule 1.3, how is a lawyer's duty of diligence in handling a client's matter best described?
- A duty to file every conceivable motion in every case
- A duty to act with reasonable diligence and promptness in representing the client
- A duty to work exclusively on one client's matter until it is finished
- A duty to achieve the fastest possible result regardless of quality
Correct answer: A duty to act with reasonable diligence and promptness in representing the client
Acting with reasonable diligence and promptness in representing the client is the correct description. Rule 1.3 requires diligence and promptness, meaning the lawyer must pursue the matter despite obstacles and avoid unreasonable delay. It does not demand filing every conceivable motion, working on only one client at a time, or sacrificing quality for raw speed; the standard is reasonable diligence, not maximal activity.
- A legal malpractice claim based on professional negligence generally requires the plaintiff to prove which set of elements?
- Intent, motive, opportunity, and concealment
- Offer, acceptance, consideration, and breach
- Duty, breach of that duty, causation, and harm
- Misrepresentation, reliance, scienter, and privity
Correct answer: Duty, breach of that duty, causation, and harm
Duty, breach of that duty, causation, and harm are the elements of a legal malpractice claim grounded in negligence. The former client must show the lawyer owed a duty of care, breached it by falling below the standard of care, that the breach caused injury, and that actual damages resulted. Intent and motive describe other theories, offer and acceptance describe contract formation, and scienter is an element of fraud, none of which is the negligence framework for malpractice.
- Under Model Rule 1.8(h), what is the rule on a lawyer making an agreement that prospectively limits the lawyer's malpractice liability to a client?
- A lawyer may always limit malpractice liability by contract with any client
- A lawyer may limit liability if the client pays a reduced fee in exchange
- A lawyer may limit liability only after the matter has concluded successfully
- A lawyer may not prospectively limit liability unless the client is independently represented in making the agreement
Correct answer: A lawyer may not prospectively limit liability unless the client is independently represented in making the agreement
A lawyer may not prospectively limit malpractice liability unless the client is independently represented in making the agreement. Rule 1.8(h)(1) bars a lawyer from making an agreement prospectively limiting liability to a client for malpractice unless the client is represented by independent counsel in entering it. A reduced fee, an after-the-fact success, or a general contractual right does not satisfy this protective condition.
- A lawyer accepts a complex securities fraud matter despite having no background in securities law. The lawyer reads the relevant statutes and case law, consults a knowledgeable securities lawyer, and devotes the necessary study before advising the client. Under Model Rule 1.1, how is the lawyer's conduct best characterized?
- A violation, because a lawyer may never take a matter outside her usual practice area
- A violation, because competence cannot be acquired through study
- Permissible, because a lawyer may become competent through necessary study or by associating with a competent lawyer
- Permissible only if the lawyer refunds the entire fee
Correct answer: Permissible, because a lawyer may become competent through necessary study or by associating with a competent lawyer
The conduct is permissible because a lawyer may provide competent representation by the requisite study or by associating with a lawyer of established competence in the field. Comment 2 to Rule 1.1 recognizes that a lawyer can attain the competence required for an unfamiliar matter through necessary preparation or association. A lawyer is not barred from new practice areas, competence can be acquired through diligent study, and no fee refund is required when competence is achieved.
- A lawyer agrees to file a client's personal injury lawsuit but, distracted by other work, lets the applicable statute of limitations expire without filing, permanently barring the client's claim. Which professional conduct duty has the lawyer most directly violated?
- The duty of diligence requiring reasonable diligence and promptness
- The duty of confidentiality regarding client information
- The duty to avoid concurrent conflicts of interest
- The duty of candor toward the tribunal
Correct answer: The duty of diligence requiring reasonable diligence and promptness
The duty of diligence has been most directly violated. Rule 1.3 requires a lawyer to act with reasonable diligence and promptness, and missing a statute of limitations through inattention is a classic breach of that duty, often noted as a frequent malpractice trigger. Confidentiality, conflicts of interest, and candor toward the tribunal address different obligations and are not implicated by simply failing to file on time.
- A lawyer who is being sued for malpractice by a former client wants to settle that pending claim with the unrepresented former client. Under Model Rule 1.8(h), what must the lawyer do before settling?
- Obtain approval of the settlement from the state bar
- Have a second lawyer in the firm negotiate the settlement
- File the proposed settlement with the disciplinary authority
- Advise the former client in writing of the desirability of seeking independent legal advice and give a reasonable opportunity to obtain it
Correct answer: Advise the former client in writing of the desirability of seeking independent legal advice and give a reasonable opportunity to obtain it
The lawyer must advise the unrepresented former client in writing of the desirability of seeking independent legal counsel and give a reasonable opportunity to do so before settling. Rule 1.8(h)(2) imposes this safeguard whenever a lawyer settles a malpractice claim with an unrepresented or formerly represented client. Bar approval, an intra-firm negotiator, or filing with the disciplinary authority is not what the rule requires.
- In a legal malpractice action arising from the alleged mishandling of an underlying lawsuit, what must the plaintiff typically establish to prove that the lawyer's negligence caused the harm?
- That the lawyer intended to harm the client's interests
- That the client would have obtained a better result in the underlying matter but for the lawyer's negligence
- That the lawyer charged a fee higher than the local custom
- That another lawyer would have charged less for the same work
Correct answer: That the client would have obtained a better result in the underlying matter but for the lawyer's negligence
The plaintiff must typically establish that, but for the lawyer's negligence, the client would have obtained a better result in the underlying matter, often called the 'case-within-a-case' or 'trial-within-a-trial' requirement. This proves the causation element of a malpractice claim by showing the negligence actually caused the loss. Intent to harm, an above-custom fee, or a cheaper alternative lawyer does not establish malpractice causation.
- Under Model Rule 1.1, which of the following best reflects a lawyer's ongoing competence obligation as commonly understood today?
- A lawyer must keep abreast of changes in the law and its practice, including the benefits and risks of relevant technology
- A lawyer must take only matters identical to ones handled before
- A lawyer must obtain a new license for each area of practice
- A lawyer's competence is fixed at the moment of bar admission
Correct answer: A lawyer must keep abreast of changes in the law and its practice, including the benefits and risks of relevant technology
Keeping abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology, best reflects the ongoing competence obligation. Comment 8 to Rule 1.1 makes clear that maintaining competence requires staying current with legal developments and pertinent technology. Competence is not limited to repeating identical prior matters, does not require a separate license per practice area, and is not frozen at admission.
- A lawyer takes on a new client matter but does so during a period of severe overwork, then leaves the client's case essentially untouched for many months, ignoring inquiries and missing interim deadlines that delay the matter. Analyzing this under the Model Rules, which conclusion is most accurate?
- No violation occurs because the lawyer never formally withdrew
- No violation occurs because no final deadline was missed
- The lawyer has likely violated the duty of diligence, which is not excused by a heavy workload
- The lawyer's conduct is excused because the client did not complain in writing
Correct answer: The lawyer has likely violated the duty of diligence, which is not excused by a heavy workload
The lawyer has likely violated the duty of diligence, and a heavy workload does not excuse the neglect. Comment 2 to Rule 1.3 cautions that a lawyer's workload must be controlled so each matter can be handled competently and that procrastination is a widely resented professional shortcoming. Failing to formally withdraw, the absence of a missed final deadline, or the lack of a written complaint does not cure the lack of reasonable diligence and promptness.
- A solo lawyer asks every new client to sign a retainer stating, 'The client waives any claim of legal malpractice against the lawyer arising from this representation,' and the clients are not represented by any other lawyer when they sign. Under Model Rule 1.8(h), how is this provision best characterized?
- Enforceable, because clients are free to sign whatever they choose
- Improper, because the lawyer may not prospectively limit malpractice liability with a client who lacks independent representation
- Enforceable, because the lawyer disclosed the term in writing
- Improper only if the lawyer later commits actual malpractice
Correct answer: Improper, because the lawyer may not prospectively limit malpractice liability with a client who lacks independent representation
The provision is improper because a lawyer may not make an agreement prospectively limiting malpractice liability with a client who is not independently represented in making it. Rule 1.8(h)(1) prohibits exactly this kind of blanket prospective waiver absent the client's independent counsel. Client willingness to sign, mere written disclosure of the term, and whether actual malpractice later occurs do not validate an otherwise prohibited prospective liability limitation.
- To prove the breach element of a legal malpractice claim, expert testimony is ordinarily required for what purpose?
- To prove the client paid the lawyer's bills on time
- To establish the lawyer's net worth for damages purposes
- To establish the applicable standard of care and that the lawyer's conduct fell below it
- To show that the opposing party acted in bad faith
Correct answer: To establish the applicable standard of care and that the lawyer's conduct fell below it
Expert testimony is ordinarily required to establish the applicable standard of care and to show that the lawyer's conduct fell below it. Because the standard of care for legal services is usually beyond a layperson's common knowledge, a malpractice plaintiff generally must present expert testimony to prove breach, unless the negligence is so obvious it falls within common understanding. Proving timely payment, the lawyer's net worth, or the opposing party's bad faith is not the function of standard-of-care expert testimony.
- Under Model Rule 7.1, what is the fundamental restriction on a lawyer's communications about the lawyer's services?
- A lawyer may never advertise to the general public
- A lawyer may not make a false or misleading communication about the lawyer or the lawyer's services
- A lawyer may communicate only through printed brochures
- A lawyer may make any claim as long as a disclaimer is attached
Correct answer: A lawyer may not make a false or misleading communication about the lawyer or the lawyer's services
Under Rule 7.1, a lawyer may not make a false or misleading communication about the lawyer or the lawyer's services, where a communication is misleading if it contains a material misrepresentation of fact or law or omits a fact necessary to make the statement not materially misleading. The rule does not ban public advertising, limit communications to brochures, or allow any claim merely because a disclaimer is added.
- A lawyer's advertisement states, 'I win 100 percent of my cases and guarantee you a large cash recovery.' Under Model Rule 7.1, how is this communication best characterized?
- Permissible, because lawyers may advertise their results
- Permissible, because the statement motivates potential clients
- Permissible, so long as the lawyer has won most cases
- Improper, because it is a false or misleading communication that creates unjustified expectations
Correct answer: Improper, because it is a false or misleading communication that creates unjustified expectations
The communication is improper because Rule 7.1 prohibits false or misleading communications, and a claim of winning every case with a guaranteed large recovery creates unjustified expectations about results the lawyer can achieve. Truthful, non-misleading information about past results may be permissible, but unverifiable guarantees of outcomes are not. The fact that the ad is motivating or that the lawyer has won most cases does not make a misleading guarantee proper.
- Under Model Rule 7.2, what is the general rule about a lawyer giving something of value to a person for recommending the lawyer's services?
- A lawyer may freely pay anyone a fee for each client referred
- A lawyer may pay for referrals only from other lawyers
- A lawyer shall not give anything of value for recommending the lawyer's services, subject to specified exceptions such as paying the reasonable costs of advertising
- A lawyer may pay for referrals if the client never finds out
Correct answer: A lawyer shall not give anything of value for recommending the lawyer's services, subject to specified exceptions such as paying the reasonable costs of advertising
Under Rule 7.2(b), a lawyer generally shall not give anything of value to a person for recommending the lawyer's services, subject to exceptions such as paying the reasonable costs of advertisements or communications permitted by the rules and the usual charges of a legal service plan or qualified lawyer referral service. A lawyer may not simply pay per-client referral fees, the prohibition is not limited to lawyer referrals, and client ignorance does not authorize improper payments.
- Under Model Rule 7.3, what is the general restriction on live person-to-person solicitation of a person known to be in need of legal services?
- A lawyer generally may not solicit professional employment by live person-to-person contact when a significant motive is the lawyer's pecuniary gain, subject to exceptions
- A lawyer may solicit anyone, anywhere, by any means
- A lawyer may solicit only in writing and never in person under any circumstances
- A lawyer may solicit only people who live in another state
Correct answer: A lawyer generally may not solicit professional employment by live person-to-person contact when a significant motive is the lawyer's pecuniary gain, subject to exceptions
Under Rule 7.3(b), a lawyer generally may not solicit professional employment by live person-to-person contact when a significant motive is the lawyer's pecuniary gain, subject to exceptions such as contact with another lawyer, a person with a family, close personal, or prior business or professional relationship, or one who routinely uses such legal services. Unrestricted solicitation is not allowed, the ban is not an absolute prohibition on all in-person contact, and it is not based on the target's state of residence.
- Just hours after a serious car accident, a lawyer goes to the hospital and approaches an injured stranger in person, urging the stranger to hire the lawyer for the personal injury claim. Under Model Rule 7.3, how is this conduct best characterized?
- Permissible, because the injured person clearly needs a lawyer
- Improper, because it is prohibited live person-to-person solicitation motivated by the lawyer's pecuniary gain
- Permissible, because the lawyer offered to help promptly
- Permissible, so long as the lawyer charges a reduced fee
Correct answer: Improper, because it is prohibited live person-to-person solicitation motivated by the lawyer's pecuniary gain
The conduct is improper because it is live person-to-person solicitation of a stranger known to need legal services, motivated by the lawyer's pecuniary gain, which Rule 7.3(b) prohibits absent a qualifying relationship. The injured person's clear need for counsel does not authorize in-person solicitation by a stranger lawyer, and neither the promptness of the offer nor a reduced fee makes the prohibited solicitation proper.
- Under the Model Rules, when may a lawyer state or imply that the lawyer is a specialist or is certified as a specialist in a field of law?
- Only if the lawyer has been certified as a specialist by an organization that has been approved by an appropriate authority or accredited, and the certifying organization is identified
- Whenever the lawyer feels experienced in that field
- Never, because no lawyer may claim a focus area
- Only after twenty years of practice in that field
Correct answer: Only if the lawyer has been certified as a specialist by an organization that has been approved by an appropriate authority or accredited, and the certifying organization is identified
Under Rule 7.2(c), a lawyer may state or imply that the lawyer is certified as a specialist only if the certification is granted by an organization that has been approved by an appropriate state authority or accredited by the American Bar Association, and the name of the certifying organization is clearly identified. A self-assessed feeling of experience, an absolute ban on describing a focus, or a fixed twenty-year requirement are not the governing standards.
- Under Model Rule 6.1, what is the nature of a lawyer's responsibility to provide pro bono legal services?
- A mandatory requirement enforced by automatic discipline for any shortfall
- A duty owed only to existing paying clients
- A professional responsibility to provide legal services to those unable to pay, with the rule aspiring to a stated number of hours per year
- A duty that applies only to lawyers in private practice over age fifty
Correct answer: A professional responsibility to provide legal services to those unable to pay, with the rule aspiring to a stated number of hours per year
Under Rule 6.1, every lawyer has a professional responsibility to provide legal services to those unable to pay, and the rule states that a lawyer should aspire to render at least fifty hours of pro bono service per year. The responsibility is aspirational rather than enforced by automatic discipline, it is owed to those who cannot afford counsel rather than to paying clients, and it is not limited by age or practice setting.
- A lawyer is appointed by a court to represent an indigent criminal defendant in an unpopular case. Under Model Rule 6.2, on what basis may the lawyer seek to avoid the appointment?
- The lawyer may decline simply because the client is unpopular and the case is distasteful to the community
- The lawyer may decline because representing indigent clients is never required
- The lawyer may decline because the appointment does not generate a large fee
- The lawyer may seek to avoid the appointment only for good cause, such as that it would result in a violation of the rules or an unreasonable financial burden, or the client or cause is so repugnant as to impair the representation
Correct answer: The lawyer may seek to avoid the appointment only for good cause, such as that it would result in a violation of the rules or an unreasonable financial burden, or the client or cause is so repugnant as to impair the representation
Under Rule 6.2, a lawyer should not seek to avoid a court appointment except for good cause, such as that the appointment would result in a violation of the rules of professional conduct or other law, would impose an unreasonable financial burden, or that the client or cause is so repugnant to the lawyer as to be likely to impair the representation. General community unpopularity, an objection to representing the indigent, or a low fee alone are not good cause.
- Under the Model Code of Judicial Conduct, when must a judge disqualify himself or herself from a proceeding?
- In any proceeding in which the judge's impartiality might reasonably be questioned
- Only when a party specifically files a written motion to recuse
- Only when the judge personally dislikes one of the lawyers
- Never, because judges are presumed impartial in all cases
Correct answer: In any proceeding in which the judge's impartiality might reasonably be questioned
Under Rule 2.11 of the Model Code of Judicial Conduct, a judge must disqualify himself or herself in any proceeding in which the judge's impartiality might reasonably be questioned, including specified circumstances such as personal bias, personal knowledge of disputed facts, or a financial interest. Disqualification is not contingent on a recusal motion, is not limited to personal dislike of a lawyer, and is not eliminated by a general presumption of impartiality.
- A judge owns shares of stock in a corporation that is a party to a case assigned to the judge. Under the Model Code of Judicial Conduct, how does this financial interest affect the judge?
- It requires disqualification because the judge has an economic interest in a party to the proceeding
- It has no effect because judges may invest freely
- It matters only if the stock is worth more than one million dollars
- It is resolved simply by the judge disclosing the holding and proceeding
Correct answer: It requires disqualification because the judge has an economic interest in a party to the proceeding
Under Rule 2.11(A)(3) of the Model Code of Judicial Conduct, a judge must disqualify himself or herself when the judge knows that he or she has an economic interest in a party or in the subject matter of the proceeding. Owning stock in a corporate party is such an economic interest. The interest is not excused by a judge's freedom to invest, is not tied to a million-dollar threshold, and ordinarily cannot be cured by disclosure alone for a disqualifying economic interest.
- Under the Model Code of Judicial Conduct, what is the general rule about a judge's ex parte communications concerning a pending matter?
- A judge may freely discuss pending cases privately with one side
- A judge shall not initiate, permit, or consider ex parte communications concerning a pending matter, except as expressly authorized by law
- A judge may receive ex parte communications only from the plaintiff
- A judge may consider ex parte communications as long as they are later disclosed in the final opinion
Correct answer: A judge shall not initiate, permit, or consider ex parte communications concerning a pending matter, except as expressly authorized by law
Under Rule 2.9 of the Model Code of Judicial Conduct, a judge generally shall not initiate, permit, or consider ex parte communications, or other communications made outside the presence of the parties, concerning a pending or impending matter, except as expressly authorized by law or with consent of the parties in limited circumstances. The rule does not allow free private discussions with one side, is not limited to communications from a particular party, and is not satisfied by after-the-fact disclosure in the opinion.
- Under the Model Code of Judicial Conduct, how should a judge approach extrajudicial activities such as outside organizations and financial dealings?
- A judge must conduct extrajudicial activities so as to avoid activities that would interfere with judicial duties, lead to frequent disqualification, or appear to undermine the judge's independence, integrity, or impartiality
- A judge may engage in any outside activity without limitation
- A judge is forbidden from any activity outside the courtroom
- A judge may participate in outside activities only if they generate income for the court
Correct answer: A judge must conduct extrajudicial activities so as to avoid activities that would interfere with judicial duties, lead to frequent disqualification, or appear to undermine the judge's independence, integrity, or impartiality
Under Rules 3.1 and following of the Model Code of Judicial Conduct, a judge may engage in extrajudicial activities but must conduct them so as to avoid activities that interfere with judicial duties, lead to frequent disqualification, or appear to a reasonable person to undermine the judge's independence, integrity, or impartiality. The Code neither permits unlimited outside activity nor forbids all activity outside the courtroom, and outside activities need not generate income for the court.
- Under Model Rule 3.1, when may a lawyer properly bring or defend a proceeding or assert an issue in it?
- Whenever the client is willing to pay the lawyer's fee to pursue it
- Whenever the opposing party has more financial resources
- Only when the lawyer is certain the client will ultimately prevail
- Only when there is a basis in law and fact for doing so that is not frivolous
Correct answer: Only when there is a basis in law and fact for doing so that is not frivolous
A lawyer may bring or defend a proceeding only when there is a basis in law and fact for doing so that is not frivolous, which may include a good-faith argument for an extension, modification, or reversal of existing law. Rule 3.1 prohibits asserting frivolous positions. The client's willingness to pay, the opponent's resources, and certainty of victory are not the governing standard for whether a claim may be brought.
- A client insists that her lawyer file a lawsuit that has no basis in existing law and no good-faith argument for changing the law, solely to harass a business rival. Under Model Rule 3.1, how should the lawyer respond?
- File the suit because the client directs the objectives of the representation
- File the suit but disclose to the court that it lacks merit
- Decline to file the frivolous suit because it lacks any nonfrivolous basis in law or fact
- File the suit only if the client pays an additional fee for the risk
Correct answer: Decline to file the frivolous suit because it lacks any nonfrivolous basis in law or fact
The lawyer should decline to file the suit because Rule 3.1 forbids bringing a proceeding that lacks any nonfrivolous basis in law or fact, and a suit filed solely to harass plainly qualifies as frivolous. The client's authority over objectives does not extend to demanding frivolous litigation, disclosing the suit's lack of merit does not cure the violation, and an extra fee does not make a frivolous filing proper.
- Under Model Rule 3.2, what duty does a lawyer owe regarding the pace of litigation?
- A duty to make reasonable efforts to expedite litigation consistent with the interests of the client
- A duty to delay proceedings whenever delay benefits the client
- A duty to resolve every case within thirty days of filing
- A duty to defer entirely to opposing counsel's preferred schedule
Correct answer: A duty to make reasonable efforts to expedite litigation consistent with the interests of the client
Rule 3.2 imposes a duty to make reasonable efforts to expedite litigation consistent with the interests of the client. The rule rejects dilatory practices, so a lawyer may not delay merely because delay benefits the client. It does not impose a fixed thirty-day resolution requirement, nor does it require a lawyer to defer entirely to opposing counsel's schedule.
- Under Model Rule 3.3, what must a lawyer do if the lawyer comes to know that material evidence the lawyer offered to a tribunal is false?
- Nothing, because withdrawal alone always cures the problem
- Keep the matter confidential under all circumstances
- Take reasonable remedial measures, including, if necessary, disclosure to the tribunal
- Wait until the proceeding concludes before acting
Correct answer: Take reasonable remedial measures, including, if necessary, disclosure to the tribunal
Under Rule 3.3(a)(3) and (b), a lawyer who comes to know that material evidence offered is false must take reasonable remedial measures, including, if necessary, disclosure to the tribunal. This duty of candor overrides confidentiality and continues to the conclusion of the proceeding. Withdrawal alone may not remedy the false evidence, secrecy is not permitted, and the lawyer cannot simply wait until the proceeding ends.
- In an ex parte proceeding where the opposing party is not present, what additional duty does Model Rule 3.3 impose on a lawyer?
- To present only evidence favorable to the lawyer's client
- To refrain from citing any legal authority
- To delay the proceeding until the opponent appears
- To inform the tribunal of all material facts known to the lawyer that will enable the tribunal to make an informed decision, whether or not the facts are adverse
Correct answer: To inform the tribunal of all material facts known to the lawyer that will enable the tribunal to make an informed decision, whether or not the facts are adverse
In an ex parte proceeding, Rule 3.3(d) requires the lawyer to inform the tribunal of all material facts known to the lawyer that will enable the tribunal to make an informed decision, whether or not the facts are adverse. Because the absent party cannot present its side, the lawyer must be especially forthcoming. Presenting only favorable evidence, citing no authority, or delaying for the opponent are not what the rule demands.
- Under Model Rule 3.3(a)(2), what must a lawyer do regarding directly adverse legal authority in the controlling jurisdiction that opposing counsel has not disclosed?
- Ignore it, since the duty to find it rests on the opponent
- Disclose it only if the judge specifically asks
- Disclose it to the tribunal
- Cite it only in a sealed filing
Correct answer: Disclose it to the tribunal
Under Rule 3.3(a)(2), a lawyer must disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the client's position and not disclosed by opposing counsel. The duty of candor requires affirmative disclosure of such authority. A lawyer may not ignore it, wait for the judge to ask, or bury it in a sealed filing.
- Under Model Rule 3.4, which of the following is prohibited conduct toward an opposing party and counsel?
- Promptly responding to a legitimate discovery request
- Unlawfully obstructing another party's access to evidence or altering or destroying material with potential evidentiary value
- Stipulating to undisputed facts to narrow the issues
- Citing controlling authority that favors the lawyer's client
Correct answer: Unlawfully obstructing another party's access to evidence or altering or destroying material with potential evidentiary value
Unlawfully obstructing another party's access to evidence, or altering, destroying, or concealing material having potential evidentiary value, is prohibited by Rule 3.4(a). Fairness to opposing party and counsel forbids tampering with evidence. Responding promptly to legitimate discovery, stipulating to undisputed facts, and citing favorable controlling authority are all proper.
- A lawyer in a civil case offers to pay a key fact witness a large bonus contingent on the witness testifying in a way that helps the lawyer's client win. Under Model Rule 3.4, how is this conduct characterized?
- Permissible, because witnesses may be compensated for their time
- Permissible, because the client authorized the payment
- Prohibited, because a lawyer may not offer an inducement to a witness that is prohibited by law
- Permissible, so long as the testimony is truthful
Correct answer: Prohibited, because a lawyer may not offer an inducement to a witness that is prohibited by law
The conduct is prohibited because Rule 3.4(b) bars a lawyer from offering an inducement to a witness that is prohibited by law, and paying a fact witness a bonus contingent on favorable testimony is an improper, outcome-based inducement. While reasonable compensation for a witness's time and expenses is allowed, conditioning payment on the content or success of the testimony is not. Client authorization and the testimony being truthful do not validate an illegal inducement.
- Under Model Rule 3.5, which of the following is prohibited to protect the impartiality of a tribunal?
- Seeking to influence a judge or juror by means prohibited by law
- Filing a properly served motion with the court
- Making a timely objection during trial
- Requesting a jury instruction supported by the evidence
Correct answer: Seeking to influence a judge or juror by means prohibited by law
Seeking to influence a judge, juror, prospective juror, or other official by means prohibited by law is barred under Rule 3.5(a), which protects the impartiality and decorum of the tribunal. Filing properly served motions, making timely objections, and requesting supported jury instructions are all legitimate advocacy. Only improper attempts to influence decision-makers are prohibited.
- After a jury trial concludes, a lawyer wishes to contact a discharged juror to learn about the deliberations. Under Model Rule 3.5, what limits this contact?
- The lawyer may never communicate with a juror after trial under any circumstances
- The lawyer may contact the juror only with opposing counsel present
- The lawyer may freely harass the juror because the trial is over
- The lawyer may communicate with a discharged juror unless prohibited by law or court order, the juror has made known a desire not to communicate, or the communication involves misrepresentation, coercion, duress, or harassment
Correct answer: The lawyer may communicate with a discharged juror unless prohibited by law or court order, the juror has made known a desire not to communicate, or the communication involves misrepresentation, coercion, duress, or harassment
Under Rule 3.5(c), a lawyer may communicate with a discharged juror after trial unless the communication is prohibited by law or court order, the juror has made known a desire not to communicate, or the communication involves misrepresentation, coercion, duress, or harassment. Post-trial juror contact is not categorically forbidden, does not require opposing counsel's presence, and may never involve harassment.
- Under Model Rule 3.6, what kind of extrajudicial statement is a lawyer participating in a matter prohibited from making?
- A statement quoting the public record of the proceeding
- A statement that the lawyer knows or reasonably should know will have a substantial likelihood of materially prejudicing an adjudicative proceeding
- A statement of the general nature of the claim or defense
- A statement that a warning of danger to the public exists
Correct answer: A statement that the lawyer knows or reasonably should know will have a substantial likelihood of materially prejudicing an adjudicative proceeding
Rule 3.6(a) prohibits a lawyer participating in a matter from making an extrajudicial statement the lawyer knows or reasonably should know will have a substantial likelihood of materially prejudicing an adjudicative proceeding. The rule expressly permits stating information in the public record, the general nature of the claim or defense, and warnings of danger. Only statements posing a substantial likelihood of material prejudice are barred.
- Under Model Rule 3.7, when is a lawyer who is likely to be a necessary witness generally prohibited from acting as an advocate at trial?
- Whenever the lawyer has any knowledge about the case
- The lawyer shall not act as advocate at a trial in which the lawyer is likely to be a necessary witness, subject to limited exceptions
- Only when the lawyer is a plaintiff in the case
- Only when the lawyer's testimony would help the opposing party
Correct answer: The lawyer shall not act as advocate at a trial in which the lawyer is likely to be a necessary witness, subject to limited exceptions
Under Rule 3.7(a), a lawyer shall not act as an advocate at a trial in which the lawyer is likely to be a necessary witness, subject to exceptions such as testimony on an uncontested issue, testimony about the nature and value of legal services, or substantial hardship to the client. The bar is not triggered by mere knowledge of the case, is not limited to when the lawyer is a plaintiff, and does not depend on whom the testimony helps.
- A prosecutor learns, after a defendant's conviction, of new, credible, and material evidence creating a reasonable likelihood that the convicted defendant did not commit the offense. Under Model Rule 3.8, what must the prosecutor do?
- Nothing, because the conviction is final
- Disclose it only if defense counsel formally requests it
- Wait until any appeal has been exhausted before acting
- Promptly disclose that evidence to an appropriate court or authority
Correct answer: Promptly disclose that evidence to an appropriate court or authority
Under Rule 3.8(g), a prosecutor who knows of new, credible, and material evidence creating a reasonable likelihood that a convicted defendant did not commit the offense must promptly disclose that evidence to an appropriate court or authority. The prosecutor's special responsibility to seek justice does not end at conviction. The duty does not depend on a defense request and does not wait for appeals to be exhausted.
- Which obligation does Model Rule 3.8 place on a prosecutor regarding evidence that tends to negate the guilt of the accused?
- To make timely disclosure of evidence that tends to negate the guilt of the accused or mitigates the offense
- To conceal it to preserve the strength of the prosecution's case
- To disclose it only after the defendant testifies
- To disclose it only to the trial judge in chambers
Correct answer: To make timely disclosure of evidence that tends to negate the guilt of the accused or mitigates the offense
Rule 3.8(d) requires a prosecutor to make timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense. This reflects the prosecutor's duty as a minister of justice. Concealing such evidence, delaying disclosure until the defendant testifies, or limiting disclosure to the judge in chambers all violate the rule.
- Under Model Rule 4.1, what must a lawyer avoid doing in the course of representing a client when dealing with third persons?
- Negotiating firmly on behalf of the client
- Declining to reveal the client's confidential information
- Asserting a legal position favorable to the client
- Knowingly making a false statement of material fact or law to a third person
Correct answer: Knowingly making a false statement of material fact or law to a third person
Under Rule 4.1(a), a lawyer must avoid knowingly making a false statement of material fact or law to a third person in the course of representing a client. Truthfulness in statements to others is the core of the rule. Negotiating firmly, protecting client confidences, and asserting favorable legal positions are all legitimate and do not violate the rule.
- A lawyer knows that the opposing party in a matter is represented by counsel. Under Model Rule 4.2, may the lawyer communicate directly with that represented party about the subject of the representation?
- Yes, as long as the lawyer is truthful
- No, not unless the other lawyer consents or the communication is authorized by law or court order
- Yes, because parties are always free to speak with any lawyer
- No, and no exception ever permits such contact
Correct answer: No, not unless the other lawyer consents or the communication is authorized by law or court order
Under Rule 4.2, the no-contact rule, a lawyer may not communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer unless that lawyer consents or the communication is authorized by law or a court order. Mere truthfulness does not cure an improper contact, parties are not automatically free to speak with opposing counsel, and the consent and authorization exceptions do exist.
- While dealing on a client's behalf with an unrepresented person, a lawyer realizes the person mistakenly believes the lawyer is disinterested. Under Model Rule 4.3, what must the lawyer do?
- Encourage the person's mistaken belief to gain an advantage
- Immediately end all communication without explanation
- Make reasonable efforts to correct the misunderstanding about the lawyer's role
- Advise the unrepresented person on all of their legal options in detail
Correct answer: Make reasonable efforts to correct the misunderstanding about the lawyer's role
Under Rule 4.3, when a lawyer knows or reasonably should know that an unrepresented person misunderstands the lawyer's role, the lawyer must make reasonable efforts to correct the misunderstanding. The lawyer must not state or imply that the lawyer is disinterested. Encouraging the mistaken belief is improper, abruptly ending contact is not required, and the rule generally limits a lawyer to advising an unrepresented person to secure counsel rather than giving detailed legal advice when interests may conflict.
- A lawyer receives a document relating to the representation and knows it was inadvertently sent by opposing counsel. Under Model Rule 4.4, what must the lawyer do?
- Promptly notify the sender
- Immediately read and use the document to the client's advantage
- Destroy the document without telling anyone
- Forward the document to the news media
Correct answer: Promptly notify the sender
Under Rule 4.4(b), a lawyer who receives a document or electronically stored information relating to the representation and knows or reasonably should know it was inadvertently sent must promptly notify the sender. This duty respects the rights of third persons and allows the sender to take protective measures. Exploiting the document, secretly destroying it, or disclosing it to the media is not what the rule requires.
- Under Model Rule 2.1, when acting as an advisor, what may a lawyer refer to in rendering candid advice to a client?
- Only the narrow technical text of the applicable statute
- Only the advice the client wants to hear
- Not only law but other considerations such as moral, economic, social, and political factors relevant to the client's situation
- Only the positions favorable to opposing parties
Correct answer: Not only law but other considerations such as moral, economic, social, and political factors relevant to the client's situation
Under Rule 2.1, a lawyer acting as advisor must exercise independent professional judgment and render candid advice, and in doing so may refer not only to law but to other considerations such as moral, economic, social, and political factors relevant to the client's situation. Advice is not limited to bare statutory text, the lawyer must be candid even when the truth is unwelcome, and the advisor role serves the client rather than opposing parties.
- A lawyer is retained by a company to prepare an evaluation of the company's environmental compliance that the company intends to give to a prospective buyer. Under Model Rule 2.3, what condition generally applies when the evaluation is likely to affect the client's interests materially and adversely?
- The lawyer may never prepare an evaluation for use by a third party
- The buyer, not the company, must consent to the evaluation
- The evaluation must be approved by a court before release
- The lawyer may proceed only with the client's informed consent
Correct answer: The lawyer may proceed only with the client's informed consent
Under Rule 2.3(b), when a lawyer knows or reasonably should know that an evaluation for use by a third person is likely to affect the client's interests materially and adversely, the lawyer may provide the evaluation only with the client's informed consent. The evaluator role is permitted, not categorically barred. It is the client's consent that matters, not the third party's, and no court approval is required.
- Under Model Rule 2.4, when a lawyer serves as a third-party neutral, such as an arbitrator or mediator, what must the lawyer do for unrepresented parties who may not understand the lawyer's role?
- Represent whichever party appears weaker
- Inform such parties that the lawyer is not representing them and explain the difference between the neutral's role and a lawyer's role in representing a client
- Treat the parties as the lawyer's clients
- Decline to communicate with the parties at all
Correct answer: Inform such parties that the lawyer is not representing them and explain the difference between the neutral's role and a lawyer's role in representing a client
Under Rule 2.4(b), a lawyer serving as a third-party neutral must inform unrepresented parties that the lawyer is not representing them when the lawyer knows or reasonably should know they may not understand the neutral's role, and must explain the difference between that role and representing a client. A neutral does not represent any party, does not take sides, and must still communicate with the parties as the neutral.
- A lawyer who served as a mediator between two companies in a contract dispute is later asked by one of those companies to represent it in litigation arising from the same dispute. Under the conflict rules governing former third-party neutrals, what generally applies?
- The lawyer may freely take the case because mediation created no client relationship
- The lawyer may represent both companies at once
- The lawyer is subject to conflict restrictions and generally may not represent a party in a matter in which the lawyer previously served as a third-party neutral, absent informed consent of all parties
- The lawyer must represent the company that contacts the lawyer first
Correct answer: The lawyer is subject to conflict restrictions and generally may not represent a party in a matter in which the lawyer previously served as a third-party neutral, absent informed consent of all parties
Under Rule 1.12, a lawyer who previously served as a third-party neutral, such as a mediator, generally may not represent anyone in connection with a matter in which the lawyer participated personally and substantially as a neutral, unless all parties give informed consent confirmed in writing. The prior neutral role creates real conflict restrictions, the lawyer cannot represent both companies, and the rule is not resolved by which party calls first.
- Under Model Rule 1.13, who is the client when a lawyer is employed or retained by an organization?
- The organization itself, acting through its duly authorized constituents
- The chief executive officer personally
- The individual employee who happens to give the lawyer instructions
- The organization's largest shareholder
Correct answer: The organization itself, acting through its duly authorized constituents
Under Rule 1.13(a), a lawyer employed or retained by an organization represents the organization itself, acting through its duly authorized constituents. The entity, not any single officer, employee, or shareholder, is the client. This entity theory means the lawyer's duties run to the organization, not personally to the CEO, an instructing employee, or the largest shareholder.
- A corporation's lawyer learns that a corporate officer is engaged in conduct that is a clear violation of law likely to cause substantial injury to the organization. Under Model Rule 1.13, what is the lawyer generally expected to do first?
- Immediately resign without taking any other action
- Disclose the violation to the press
- Report the matter to higher authority within the organization, ordinarily up to and including its highest authority, as reasonably necessary in the organization's best interest
- Take direction solely from the offending officer
Correct answer: Report the matter to higher authority within the organization, ordinarily up to and including its highest authority, as reasonably necessary in the organization's best interest
Under Rule 1.13(b), when a lawyer for an organization knows that a constituent is engaged in action that is a violation of law likely to result in substantial injury to the organization, the lawyer ordinarily must report the matter to higher authority within the organization, up to and including its highest authority if warranted. Immediate resignation, going to the press, or simply following the wrongdoer's direction are not the rule's first-line response.
- Under Model Rule 1.15, how must a lawyer handle funds belonging to a client or third person that come into the lawyer's possession?
- Deposit them in the lawyer's personal operating account for convenience
- Apply them immediately toward the lawyer's fees
- Mix them with firm funds as long as records are kept
- Hold them in a separate trust account, kept apart from the lawyer's own property
Correct answer: Hold them in a separate trust account, kept apart from the lawyer's own property
Under Rule 1.15(a), a lawyer must hold property of clients or third persons separately from the lawyer's own property, keeping funds in a separate trust account. Safekeeping of property prohibits depositing client funds in the lawyer's personal or operating account, applying them to fees before they are earned, or mixing them with firm money. The defining requirement is separation from the lawyer's own property.
- Why does Model Rule 1.15 prohibit a lawyer from commingling client funds with the lawyer's own funds?
- Because commingling makes the lawyer's bookkeeping easier
- Because separating funds protects client property from the lawyer's creditors and from misappropriation, and keeps ownership clear
- Because client funds earn higher interest in the lawyer's account
- Because the bar requires all lawyers to use a single account
Correct answer: Because separating funds protects client property from the lawyer's creditors and from misappropriation, and keeps ownership clear
Rule 1.15 prohibits commingling because keeping client funds separate protects that property from the lawyer's creditors and from misappropriation and preserves clear records of ownership. Commingling does not legitimately simplify bookkeeping, the rule is not about earning interest for the lawyer, and the rule actually requires separate trust accounts rather than a single combined account.
- A lawyer receives a settlement check that includes funds belonging to the client. Under Model Rule 1.15, what must the lawyer do upon receiving funds in which the client has an interest?
- Wait six months before telling the client about the funds
- Promptly notify the client and, upon request, promptly deliver the funds the client is entitled to receive and render a full accounting
- Keep the funds until the next billing cycle
- Deposit the funds into the lawyer's personal savings account
Correct answer: Promptly notify the client and, upon request, promptly deliver the funds the client is entitled to receive and render a full accounting
Under Rule 1.15(d), a lawyer who receives funds in which a client or third person has an interest must promptly notify that person and, except as otherwise permitted, promptly deliver the funds the person is entitled to receive and, upon request, render a full accounting. Delaying notice for six months, holding funds until a billing cycle, or depositing them in a personal account all violate the safekeeping duties.
- A lawyer holds settlement money in trust, but the lawyer and the client dispute how much of it represents the lawyer's earned fee. Under Model Rule 1.15, how must the lawyer treat the disputed portion?
- Withdraw the entire disputed amount immediately as the lawyer's fee
- Give all of the money to the client to avoid any appearance of impropriety
- Transfer the disputed portion to the firm's operating account pending resolution
- Keep the disputed portion separate in the trust account until the dispute is resolved, while distributing any undisputed portion
Correct answer: Keep the disputed portion separate in the trust account until the dispute is resolved, while distributing any undisputed portion
Under Rule 1.15(e), when two or more persons claim an interest in property the lawyer holds, the lawyer must keep the disputed portion separate until the dispute is resolved and promptly distribute any portion that is not in dispute. The lawyer may not unilaterally take the disputed amount, is not required to surrender undisputed funds belonging to the lawyer, and may not move disputed funds into the operating account.