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Yes, the attorney is in the uncomfortable position of being a potential witness and an advocate in the same trial.

MPRE

An attorney represented a criminal defendant facing extortion charges. The state’s star witness against the defendant was a former co-conspirator who had agreed to testify in exchange for a plea deal. To establish the witness’ reliability and knowledge of the conspiracy, the prosecution planned to introduce a recorded conversation of an intercepted conference call, from a wiretap, in which the defendant, the witness, and other co-conspirators discussed and planned the conspiracy. The attorney was also part of the recorded conversation, at least at the beginning, though left the call before the later part when the participants agreed to commit their crimes. Even though the attorney was not facing charges as a co-conspirator, his voice would be among others in the recorded conversation when it played at the trial. Given this situation, does the attorney have an ethical duty to have another lawyer represent the defendant at the trial?

Yes, because the advocate-as-witness rule applies only to representation during the trial, unless the lawyer’s testimony is an issue on appeal.

MPRE

An attorney normally represents a client in commercial litigation matters, but in one specific case, the attorney had to testify as a witness during the trial, so he arranged for another firm to represent the client during the trial at which the attorney testified. The client prevailed at trial, and the opposing party filed an appeal. In this instance, the attorney’s testimony from the trial is not an issue in the appeal; instead, the appeal focuses on the apportionment of fault and certain guarantees in a commercial contract. The firm that handled the trial did not do appellate work and ended their termination of the client after the trial ended in a favorable verdict. May the attorney represent the client in the appeal, even though the attorney testified at the trial?

Yes, because the testimony relates to an uncontested issue.

MPRE

An attorney was a criminal defense lawyer and she represented a client, who was a defendant in a criminal prosecution. The prosecution called the attorney to the witness stand to authenticate a piece of evidence, which the attorney was willing to do because the authenticity of the evidence was not really in dispute; the attorney planned to use alibi evidence to defeat the charges against the client, which would make this piece of evidence relatively unimportant to the case. May the attorney testify in this manner in a case in which she represents the defendant?

No, because there is likely to be substantial conflict between the testimony of the client and that of the lawyer, so the representation involves a conflict of interest that requires compliance with the rules about conflicts.

MPRE

A certain client is an indigent criminal defendant and a certain attorney is his courtappointed counsel. The trial is taking place in a rural county where only a handful of lawyers practice law. Before appointing the attorney to represent the client, the court had tried to appoint five other local criminal defense lawyers, one after the other, but each was unable to provide representation due either to a conflict of interest or because their current caseload would have precluded them from providing competent representation. In fact, the attorney was the last lawyer on the court appointments list. Unfortunately, the attorney also needed to serve as a witness during part of the trial, to authenticate a piece of evidence, and the authenticity of the evidence was a matter of dispute in the case. In addition, the attorney realized that his testimony would radically contradict the testimony of his own client, though the attorney still believed he could obtain an acquittal by impeaching the prosecution’s star witness. May the attorney continue to represent the client and testify as a witness in this matter?

Yes, because the advocate-witness prohibition does not apply to pro se litigants who are attorneys.

MPRE

An attorney is representing himself in his divorce proceeding. Would it be proper, under the advocate-witness rule, for the attorney to testify as a witness on his own behalf in the proceeding in which he represents himself?

No, because disqualification of the lawyer would not work substantial hardship on the client.

MPRE

A famous professional athlete faced charges for murdering his wife and her male companion one evening outside their Beverly Hills home. The defendant assembled a legal “dream team” of the five most famous criminal defense lawyers from around the country. One of the lawyers was in possession of a handwritten letter from one of the murder victims saying that a drug cartel had been making death threats against the victim for a few weeks. The evidence might have been exculpatory for the defendant, but the lawyer would have to take the witness stand briefly during the trial to authenticate the document or explain how he received it. The document was a hotly contested piece of evidence in the case, but it was not the only evidence pointing toward the defendant’s innocence or guilt. The prosecutor wanted the court to disqualify the lawyer from representing the defendant if he testified about the letter. The defendant insisted that this would work a substantial hardship on him, because this lawyer was the only criminal defense lawyer in the county with an undefeated record – he had obtained acquittals in hundreds of criminal trials and had never lost a case. Should the court side with the defendant in this case and allow the lawyer to continue as part of his defense team?

No, because the prosecutor in a criminal case shall refrain from prosecuting a charge that the prosecutor knows does not have probable cause.

MPRE

A prosecutor brought charges against a defendant for rape and murder, but only one witness could link the defendant to the crime, and that witness disappeared mysteriously while the defendant was out on bail awaiting trial. The prosecutor’s case collapsed, and the defendant won an easy acquittal, even though the defendant had confessed to the murder. The confession turned out to be inadmissible because the police erred in failing to read the defendant all his rights before taking his confession, which he later recanted. The prosecutor now has some evidence – less than probable cause but enough to be worth a try – that the defendant committed check fraud, so he brings charges in hopes that the attenuated charges will stick this time, and the dangerous murderer will be off the streets, regardless of the reason. Is the prosecutor in compliance with his ethical duties as a lawyer?

No, because a prosecutor may bring charges if the prosecutor knows the charges have probable cause.

MPRE

A certain attorney works as a prosecutor and brings charges against a defendant. In this instance, the attorney clearly has probable cause for alleging that the defendant committed the crime, but he also doubts that a judge or jury will find that the evidence satisfies the standard of “beyond a reasonable doubt.” Yet the attorney brings the case anyway, and the defendant wins an acquittal. Has the attorney acted improperly, under the Rules of Professional Conduct?

No, because federal statute, as well as Department of Justice regulations, subject federal prosecutors to the ethics rules of the state where such the attorney engages in that the attorney’s duties.

MPRE

An Assistant U.S. Attorney (federal prosecutor) is working for the Department of Justice, and he must prosecute the defendants arrested in a high-profile sting operation against a terrorist cell. This attorney faces tremendous political and media pressure to win convictions at any cost. As a result, the attorney argues with his supervisor that he is not subject to local ethics rules, as he is litigating exclusively in federal court in cases involving federal law, and that he should therefore be immune from state bar disciplinary proceedings. Is the attorney correct?

No, because a prosecutor must not seek to obtain from an unrepresented accused a waiver of important pretrial rights, such as the right to a preliminary hearing.

MPRE

A prosecutor sees the backlog of prosecutions coming from his office and feels concern about whether all the cases will come to trial in time to comply with the Speedy Trial Act. To expedite some of the simpler cases, the prosecutor asks arrestees to waive their right to a pre-trial hearing, which saves up to a week due to scheduling complications and allows the defendants’ cases to come to trial sooner. Because most of the defendants in these cases are unrepresented by counsel, the prosecutor explains that they have a right to a preliminary hearing, but that defendants without a lawyer usually accomplish little or nothing at such hearings, and that the defendant will have a full trial at which to argue his innocence. He also explains that if the defendant believes he can win an acquittal, waiving a preliminary hearing might bring about the defendant’s moment of freedom a bit sooner. Most defendants without representation agree to waive their preliminary hearings, which relieves some of the pressure on the local criminal docket and makes this more manageable for everyone. Is the prosecutor behaving properly in this regard?

Yes, the prosecutor must promptly disclose that evidence to an appropriate court or authority.

MPRE

A prosecutor in New York is engaged in plea bargain negotiations with a defendant and defense counsel. The defendant offers to confess to a much more serious crime, committed several years ago in California, if the prosecutor will drop the current charges, which will put the defendant in danger of retaliation from his gang once he is in prison. The prosecutor agrees, and the defendant confesses to a notorious armored car robbery in California ten years earlier that made national news, and for which another wrongfully-convicted man was serving his sentence. The defendant describes the crime with enough detail that the prosecutor doubts that he could be fabricating the story. Does the prosecutor have any ethical duties about what to do with this information?

Yes, when a prosecutor knows of new, credible and material evidence creating a reasonable likelihood that a convicted defendant in his jurisdiction did not commit an offense of which the defendant was convicted, the prosecutor shall promptlydisclose that evidence to the defendant unless a court authorizes delay, and undertake further investigation, or make reasonable efforts to cause an investigation, to determine whether the defendant was convicted of an offense that the defendant did not commit.

MPRE

Three years after prosecuting a defendant and obtaining a conviction for murder, another individual comes to the police station and confesses to committing the very murder for which the defendant is already serving time. The defendant always maintained his innocence and the basis of his conviction was an identification (in a lineup) by a single eyewitness. The person now confessing to the crime also fits the description given by the eyewitness and had a plausible motive for committing the murder. Does the prosecutor have a duty report this to the convicted defendant’s lawyer?

The prosecutor would have to disclose that two eyewitnesses failed to identify the defendant as the assailant and that an informant attributed the assault to someone else, because the prosecutor knew that information from communications with the police.

MPRE

A prosecutor obtained an indictment from a grand jury against a defendant on a multiple-count assault and robbery of a woman, that is, a violent mugging in which the perpetrator stole the woman’s purse. The victim did not know her assailant, but afterward she identified the defendant in a photo array and then picked him out of a line-up. A bystander made the same identification from a photo array and a subsequent lineup. At the same time, the police informed the prosecutor that two other eyewitnesses viewed the same line-up, but those witnesses stated that they did not see the perpetrator. Moreover, a confidential informant attributed the assault to someone else. Concerned, the prosecutor interviewed the other two eyewitnesses, but he decided that they did not get a good enough look at the perpetrator to testify reliably. The prosecutor also interviewed the confidential informant, but he learned that the informant had previous convictions for fraud, and therefore was not credible. Does Rule 3.8(d) require the prosecutor to disclose to defense counsel that two bystanders failed to identify the defendant and that an informant implicated someone other than the defendant?

No, Rule 3.8 does not require the prosecutor to review or request such files unless the prosecutor knows or infers from the circumstances, or it is obvious, that the files contain favorable evidence or information.

MPRE

A defendant faced charges in a white-collar crime case – corporate espionage, securities fraud, and so forth. The police brought the prosecutor voluminous files, with the file boxes filling an entire storage room at the district attorney’s office. These dozens of file boxes were only part of the evidence the police had amassed before making the arrest, so they inform the prosecutor that they have another room full of corporate records documenting the crimes in the basement of their precinct. Unbeknownst the to the prosecutor, some of the files in both locations have a few documents that case doubt on the defendant’s role in some of the crimes, and others that might tend to mitigate the some of the other charges. If the prosecutor has not yet reviewed voluminous files or obtained all police files, however, does Rule 3.8 require the prosecutor to review or request such files before the plea bargaining, so that the defense can make better-informed decisions during the plea negotiations?

No, to allow the defendant to make a well-advised plea at the time of arraignment, prior to a guilty plea, the prosecutor must disclose known evidence and information that would be relevant or useful to establishing a defense or negating the prosecution's proof.

MPRE

A grand jury indicted a defendant on a multiple-count assault and robbery of a woman, a violent mugging in which the perpetrator stole the woman’s purse. The victim did not know her assailant, but afterward she identified the defendant in a photo array and then picked him out of a line-up. A bystander made the same identification from a photo array and a subsequent lineup. At the same time, the police informed the prosecutor that two other eyewitnesses viewed the same line-up, but those witnesses stated that they did not see the perpetrator. Moreover, a confidential informant attributed the assault to someone else. Concerned, the prosecutor interviewed the other two eyewitnesses, but he decided that they did not get a good enough look at the perpetrator to testify reliably. The prosecutor also interviewed the confidential informant, but he learned that the informant had previous convictions for fraud, and therefore was not credible. Given the early state of the proceedings, the prosecutor decides that if the case goes to trial, he will inform defense counsel about the other witnesses, because defense counsel may want to call them to testify. On the other hand, it seems unnecessary to mention the other witnesses during the plea-bargaining negotiations, because they are not part of the evidence the prosecutor would use in the case. Has the prosecutor acted within the parameters of the Model Rules?

Yes, within the district attorney’s office, supervisory lawyers must establish procedures to ensure that each prosecutor involved has the exculpatory evidence to disclose.

MPRE

A major city has large district attorney’s office with many prosecutors. In most cases, several prosecutors share responsibility for parts of a single criminal case, so different prosecutors have responsibility for investigating the matter, presenting the indictment, and trying the case. Inevitably, some less important or immaterial information learned by the prosecutor conducting the investigation, or the grand jury presentation, does not pass along to the other prosecutor in the subsequent proceedings. As a result, the prosecutor handling the trial does not know certain minor details that might be helpful to the defendant’s case, and therefore cannot disclose the information to defense counsel. Does it constitute a violation of the Model Rules for cases to pass from prosecutor to prosecutor, with the defendant and the prosecutor being unaware of some minor details (whether inculpatory, exculpatory, or mitigating) lost in the process?

Yes, because a lawyer representing a client before a legislative body or administrative agency in a nonadjudicative proceeding shall disclose that the appearance is in a representative capacity.

MPRE

An attorney testified before a state legislative committee about the need for the state to privatize its dysfunctional prison system. The attorney said he was there to testify as a concerned citizen of the state and a taxpayer, and the attorney did in fact believe that prison privatization was smart public policy. Yet the attorney did not disclose that he was representing Alcatraz Incorporated, the largest private prison company in the country, which hoped to secure the lucrative contracts to operate the state’s prisons after the legislature votes to privatize them. Was it improper for the attorney to neglect to disclose his representation of the private prison company?

Yes, a lawyer cannot submit false statements or comments to a regulatory agency functioning in its rulemaking capacity.

MPRE

An attorney represented Conglomerate Corporation in the company’s regulatory compliance work. The Environmental Protection Agency (EPA) proposed new pollution emission regulations through notice-and-comment rulemaking procedures as proscribed under the Administrative Procedure Act. The proposed new regulations would impose burdensome financial costs on Conglomerate Corporation. During the public comment period, the attorney submitted comments arguing that the proposed rules made only marginal improvements to public health but imposed devastating costs on the regulated industry, which would violate the “feasibility” requirement in the relevant governing statute. The attorney relied entirely on published scientific studies to argue that the health benefits were minimal, but knowingly exaggerated how much it would cost his client to comply with the proposed standards. Any member of the public could submit comments during the comment period; there were no public hearings and none of the submissions to the agency were under oath. Could the attorney be subject to discipline for his conduct regarding the submission of comments to the agency?

No, the attorney obstructed another party' s access to evidence and destroyed documents or other material having potential evidentiary value.

MPRE

An attorney worked as in-house general counsel for Big Bank. The Federal Trade Commission was holding a series of hearings about the consolidation of the industry and anticompetitive activities, and certain consumer protection groups were advocating in the hearings for regulatory reforms. In one instance, the consumer protection groups persuaded the Commission to subpoena certain corporate from the largest banks to show that they had engaged in undetected predatory pricing and price gouging following natural disasters. After hearing about the request for this subpoena, but before receiving service of it from the Commission, the attorney deleted several computer archives about the company’s pricing patterns, and shredded printed records pertaining to the same subject. Big Bank was not currently the target of an enforcement action, and no litigation was pending or immediately contemplated regarding this information. Was it permissible for the attorney to clean up the company archives before receiving a subpoena from the Commission for its public hearings?

No, a lawyer may not submit false statements or false evidence through another to a rulemaking agency, which should be able to rely on the integrity of the submissions made to it.

MPRE

An attorney represented a large pharmaceutical company that was part of an industry consortium. The industry consortium was pressuring the Food and Drug Administration (FDA) to relax its requirements for approval of new drugs. Regulators within the FDA had divergent views on this from a policy standpoint. The issue did not pertain to any individual drug or company; it concerned procedures for new drug approval as a general matter. Representatives from different companies within the industry would meet as a group with a team of regulators tasked with reviewing the FDA’s policies in this regard, and during these meetings the regulators would ask the industry representatives probing questions about their research and development costs, market share, and retail pricing of drugs after approval. When executives from the attorney’s company were preparing to attend one of these “negotiated rulemaking” meetings, the attorney coached him to say, “I do not recall” whenever the regulators asked questions that would reveal information unfavorable to the company’s position. Was it permissible for the attorney to counsel the corporate executives to give evasive or vaguely untruthful answers at an industry meeting like this?

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

MPRE

An attorney had graduated from law school near the bottom of his class, but he told himself that every year someone at graduation had to be at the bottom of their class. Besides, his mentor always told him that law school classes have nothing to do with the actual practice of law. The attorney was unaware that his 1L Civil Procedure Professor had miscalculated his grade two full letter grades higher than he deserved, and otherwise he would have failed out before his second year. The attorney invested a reasonable amount of time preparing for his clients' cases, and put in normal effort for an attorney, but still was far behind his fellow lawyers in his ability. He lacked knowledge of settled principles of Law and was not aware of recent developments in case law and legislation in his area of practice, even though he tried and made an earnest effort, often trying even harder than the lawyers around him, who seemed to coast along effortlessly by comparison. His intentions were always good, and he genuinely cared about his clients. Could the attorney be subject to discipline, including disbarment, for incompetent representation?

No, an attorney can provide competent representation in an entirely new area with adequate study and preparation.

MPRE

An attorney has spent his entire career practicing family law, and he has never done a criminal trial before. When asked to take a pro bono criminal case, he whimsically agreed, because the attorney was going through a midlife crisis and wantsto try something new. The attorney invested time studying and researching the relevant law and court procedures so that he knows how to proceed and how to advise the client, but still feels nervous doing this for the first time, and certainly does not have the same expertise as the most experienced lawyers in the area. Could the attorney be subject to discipline for his lack of competence?

No, the attorney seems competent, based on the facts given, regardless of the pattern of unfavorable outcome in his cases, which could be due to other factors.

MPRE

An attorney was highly knowledgeable and skillful, but he lost every case that he undertook, either because the law was unfavorable to his clients, or the other side could afford an entire army of elite lawyers, or because he was an unattractive person. He also regularly took on clients that no other lawyer wanted to represent because they seemed likely to lose. Over time, the attorney’s clients lost their homes, lost custody of their children, lost their inheritances, and sometimes even went to jail. Despite his vast knowledge, skills, and thorough preparation, could the attorney nevertheless be subject to discipline for lack of competence, because he is consistently losing every time?

Yes, a lawyer shall provide competent representation to a client, regardless of the outcome.

MPRE

A very winsome, likable attorney was objectively incompetent in providing representation to his client, but he was lucky - the other side had a terrible case on the merits, and opposing counsel was unlikable and abrasive, so the attorney prevailed in his client's case. Could the attorney nevertheless be subject to discipline for lack of competence?

Yes, agreements between the lawyer and the client regarding the scope of the representation may limit the matters for which the lawyer is responsible.

MPRE

An attorney has spent his entire career practicing family law, and he has never done a criminal trial before. When asked to take a criminal case, he agreed to do only the preliminary pre-trial work, such as the arraignment or bond hearing, initial rounds of plea negotiations, and some basic factual investigation. The client was facing charges for various white-collar crimes, brought under federal statutes, and would involve complex jurisdictional and procedural issues at trial. The attorney knew that he would not be competent to represent the client at such a trial, so he contractually agreed to limit his representation to the few preliminary tasks described above, to allow the client time to find another lawyer with more experience and expertise in this area. Once the representation began, the attorney confined himself to the parts of the matter that he had agreed to handle. Is it permissible for the attorney to be incompetent in certain matters but still provide representation to a client in a more limited capacity?

No, a lawyer should keep abreast of changes in the law and its practice and engage in continuing study and education.

MPRE

A brilliant attorney graduated at the top of his class from Harvard Law School. He was supremely intelligent and well-studied in the law, remarkably handsome, witty, and well-spoken. As he progressed through his career, he was in such high demand that he could afford to take only the cases he knew were mostly likely to win. Regardless of the complexity of the matter, he always won based on his wit, looks, and eloquence. He has been so successful that he has not needed to read a new case in fifteen years, nor has he needed to keep abreast of changes in law. He has never faced disciplinary action or a malpractice lawsuit. Assuming his winning streak continues indefinitely, is he providing competent representation, according to the Model Rules?

No, a newly admitted lawyer can be as competent as a practitioner with extensive experience, even if the outcome in this case was unfavorable.

MPRE

An attorney had just graduated and passed the bar when he agreed to represent a certain client. Even though he was new to the practice of law, he devoted plenty of time to study and preparation to understand the relevant statutes and case law, correctly identified all the issues in the case, and conducted a thorough investigation of the facts. His knowledge and skills were normal for newer lawyers in his area. Unfortunately, he was simply no match for the counsel, one of the most famous lawyers in the state, and reputed to be the best in his field. The case went overwhelmingly in favor of the opposing party, so the client ended up worse off than before the matter began. Opposing counsel would have had an advantage over any other lawyer in the area, though an experienced lawyer might have obtained a less adverse result for the new attorney’s client. Could the new attorney be subject to discipline for his lack of competence?

Yes, to maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology.

MPRE

An attorney graduated from law school in the early 1970’s, and he spent his career in solo practice in a small rural town, mostly drafting wills and simple contracts for sale for farm machinery. He has a landline phone in his office and home, but has never had or needed a cell phone, does not use a computer, and has never used email or the Internet. The attorney has an extensive library of law books and treatises. Could the attorney be subject to discipline for not keeping abreast of changes in technology that are relevant to the practice of law?

Yes, even in emergencies, a lawyer should limit assistance to what is necessary in the circumstances, for ill-considered action under emergency conditions can jeopardize the client's interest.

MPRE

An attorney specialized in transactional work for corporate clients, and he focused his practice on this area for many years. An emergency arose in which an attorney needed to give immediate telephone advice to an individual client who had to make an urgent decision. Referring the case to another firm, or even consulting with another lawyer, was not practical in the moment. The attorney did not have the requisite skill or knowledge for the matter, because it was far outside the attorney’s regular area of practice, and he explained this to the client before offering any advice. He then gave his best educated guess about what the client should do, based on analogous situations in areas of law more familiar to him. The attorney took the opportunity to give the client extensive advice about the net several steps the client should take, and advice about the subsequent appeal of the matter, all of which was completely outside the attorney’s range of knowledge or experience. The client relied on the attorney’s uninformed advice, all of which turned out to be wrong, and resulting in several lawyers of harm to the client’s legal interests. If the attorney had limited his emergency advice to the minimum necessary in the moment, the client would have suffered less harm. Could the attorney be subject to discipline for lack of competence?

No, in emergencies a lawyer may give advice or assistance in a matter in which the lawyer does not have the skill ordinarily required where referral to or consultation or association with another lawyer would be impractical.

MPRE

An attorney specialized in transactional work for corporate clients, and he focused his practice on this area for many years. An emergency arose in which an attorney needed to give immediate telephone advice to an individual client who had to make an urgent decision. Referring the case to another firm, or even consulting with another lawyer, was not practical in the moment. The attorney did not have the requisite skill or knowledge for the matter, because it was far outside the attorney’s regular area of practice, and he explained this to the client before offering any advice. He then gave his best educatedguess about what the client should do, based on analogous situations in areas of law more familiar to him, and confined his comments to the minimum necessary in the circumstances. The client relied on the attorney’s (mostly uninformed) advice, which turned out to be wrong, and the outcome was harmful to the client’s legal interests. Could the attorney be subject to discipline for lack of competence?

Yes, a client and lawyer may agree to limit a duty that a lawyer would otherwise owe to the client if the client has enough information and consents, and the terms of the limitation are reasonable in the circumstances.

MPRE

Conglomerate Corporation decided to hire Big Firm to represent it in litigation for an important but complex matter. First, however, Conglomerate offered a proposed budget for the entire litigation. A partner at Big Firm explained to Conglomerate’s in-house counsel that such a limited budget would be feasible only if the firm restricted how much discovery it conducted before trial. The partner also warned that restricting their time and money expenditures during discover could negatively impact their chances of prevailing at trial. Nevertheless, Conglomerate’s directors decide that the corporation would be better off having the talents and reputation of Big Firm’s attorneys at a limited expense, even though they knew they could have spent more for more thorough and expensive representation. According to the Restatement, may Conglomerate waive its right to more thorough representation?

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

MPRE

An attorney represented a client as the plaintiff in a legal malpractice action against another lawyer for simple negligence. The plaintiff’s attorney sent a demand letter to the other lawyer, who immediately notified his malpractice insurer. The insurer offered to settle immediately, for the full amount that the client was demanding, mostly to avoid the publicity and attention that would result if litigation ensued, including the risk that the claim would inspire others to file lawsuits against the same firm. The attorney had received prior authorization from the client, during the initial consultation, to accept a settlement offer for that amount whenever it might come as the matter progressed. The attorney did not file pleadings in court and did not file a grievance with the state bar against the other lawyer. Did the attorney violate his ethical duty of zealous advocacy by not filing pleadings or a grievance?

Yes, lawyers must control their workload so that each matter receives competent, diligent representation.

MPRE

The Office of the Public Defender in a large urban center lacked the budget to hire the number of lawyers they needed. The number of indigent defendants who requiring representation always exceeded the capacity of the lawyers there. An attorney worked as a prosecutor for a few years to get experience, then became a public defender at this office. He soon found himself with an overload of cases, so it was impossible to provide full representation to each client. The attorney, like the other public defenders there, encouraged all his clients to accept a plea bargain, with rare exceptions. Going to trial on any one case meant turning away about two dozen indigent clients, most of whom could reach a plea agreement within an hour or two. The attorney reasoned that it was better for indigent criminal defendants to have a little representation rather than none. Besides, he knew that many of the defendants would lose if they went to trial. Given these facts, is the attorney violating his ethical duty of diligent representation to the clients?

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

MPRE

A litigation attorney represented Big Bank in a lawsuit involving many complex issues and numerous expert witnesses. At a preliminary hearing, opposing counsel requested a three-month postponement of the previously scheduled trial date, to allow more time for deposing expert witnesses and the top managers from Big Bank. The attorney for Big Bank acquiesced, relieved that the extension of time would allow him to focus on other urgent client matters. The next day, the attorney notified Big Bank that the judge had postponed the trial. Big Bank’s directors were frustrated, as they had hoped to resolve the case sooner, and would have objected to the postponement if the attorney had checked in before agreeing to it. On the other hand, Big Bank suffered no financial or reputational harm from the postponement, and the directors had not instructed the attorney to refuse requests for more time. Was it proper for the attorney to agree to the postponement of the trial?

No, an attorney must discuss the possibility of an appeal prior to relinquishing responsibility for a client’s case, unless there was a prior agreement about whether the lawyer would handle the appeal process.

MPRE

An experienced litigation attorney represented Small Business as a client in a civil lawsuit. The trial resulted in an unfavorable verdict for the client, who then hoped to reverse the decision on appeal. Nevertheless, the attorney and the client had never agreed that the attorney would handle the appeal, so the attorney simply closed out his file for that client. The deadline for the client to appeal the verdict passed, and only afterward did the client discover that the attorney had not filed a timely appeal. Did the attorney fulfill his ethical duty of diligence to the client in this instance?

Yes, because a lawyer's duty to act with reasonable diligence does not require the use of offensive tactics or preclude the treating of all persons involved in the legal process with courtesy and respect.

MPRE

An attorney represents a client in patent infringement litigation. The client is a longtime business rival of the opposing party and has successfully sued the opposing party before over an unrelated matter. The opposing party still loses his temper whenever someone brings up the previous lawsuit he lost, because he felt it was completely unfair and he nearly went bankrupt over it, and his marriage even failed due to the stress from the case and the burdensome verdict. On the eve of trial, the attorney mentions to the client that the opposing party will in fact take the stand to testify in the case. The client instructs the attorney to bring up the time that the client won another lawsuit against the opposing party during cross-examination, merely to make the opposing party get upset. He assures the attorney that the opposing party will lose his temper on the stand, and will at least lose credibility before the jury, and may even slip and say something that would undermine his position in the case. Then the attorney simply refuses to bring up a matter merely to provoke an outburst from the opposing party during trial. The client believes the attorney has a duty to provide zealous advocacy and to pursue every advantage for the client’s interests. Would it be proper for the attorney to refuse to bring up the prior unrelated lawsuit during his cross-examination, despite the client’s instructions to do so?

No, the attorney has an ethical duty to limit the number of deals offered, to devote adequate time and attention to each matter.

MPRE

An attorney worked for Big Firm for several years, but he failed to make partner there because he was unable to recruit any new clients to the firm. He also observed numerous minor ethical violations occurring regularly at Big Firm, but none seemed serious enough to warrant a report to the state bar disciplinary authority. He left Big Firm and started his own solo practice, but struggled to attract clients, despite heavy investments in advertising. As a last resort, he tried using an online coupon app, called PleaseTryThis, to market his law practice. The attorney would offer the same “Deal of the Day” every weekday, stating that he would do the first ten hours of legal work at half his usual hourly rate. The ad also noted that many routine legal matters take ten hours or less. The response to his PleaseTryThis ad far exceeded the attorney’s expectations. His waiting room was full every day, throughout the morning and afternoon, with new clients, eagerly awaiting their initial consultation for half-price legal representation. The attorney was agreeing to represent ten or more new clients every day, week after week. Are the attorney’s actions here proper, according to the ABA Model Rules?

Yes, because he has violated the requirement of diligent representation under Rule 1.3, and courts have inherent authority to discipline attorneys who appear before the court in a matter.

MPRE

An attorney agreed to represent a client before the Tax Court, to challenge the amount the Internal Revenue Service said he owed in unpaid taxes. The attorney filed an appearance in the matter and the initial pleadings and forms. Nevertheless, when the client did not pay even the first installment of fees, and did not return the attorney's phone call, the attorney assumed the client did not want his representation. The attorney moved on to other cases and forgot about it. He "failed to appear for a discovery conference, failed to give opposing counsel key documents, failed to show up for trial, and went missing again when the hearing was rescheduled.” When the Tax Court asked the attorney to show cause why he should not face discipline, he explained that he no longer represented the client, and had never received any legal fees from the individual. Is it proper for the Tax Court to reprimand him?

Yes, the attorney is subject to liability to the client for negligent breach of fiduciary duty.

MPRE

An attorney undertook the representation of represent a new client, but the attorney’s firm forgot to screen for conflicts of interest. The attorney normally relied on her firm to screen for conflicts with clients of the other attorneys, and assumed this had occurred, so she drafted and filed a complaint at the client’s behest, and then began planning to file a motion for a preliminary injunction. Before filing for the preliminary injunction, however, the attorney discovered that one of her partners at the firm previously represented the opposing party in a closely related matter, which would have been obvious beforehand if the firm had conducted a routine conflict check. The respective clients would not consent to the conflict, so the attorney had to withdraw from representing the new client. Her withdrawal forced the client to search for another lawyer and start over, which delayed the issuance of a preliminary injunction by several weeks, and the client suffered financial losses as a result. Would the attorney be liable to the new client for a breach of fiduciary duty?

No, she is not liable for a breach of fiduciary duty, but the firm could be subject to disqualification from the other client’s matter.

MPRE

An attorney undertook the representation of represent a new client, and the attorney’s firm searched for potential conflicts of interest. Unfortunately, despite conducting an otherwise adequate conflict search, the opposing party in the new matter had changed its name in the two years since the prior representation (by the same firm), and the attorney’s firm was unaware of the name change. The attorney normally relied on her firm to screen for conflicts with clients of the other attorneys, but in this instance a competent search had not revealed the conflict. The attorney then drafted and filed a complaint at the client’s behest, and then began planning to file a motion for a preliminary injunction. Before filing for the preliminary injunction, however, the attorney discovered that one of her partners at the firm previously represented the opposing party, under another name, in a closely related matter. The respective clients would not consent to the conflict, so the attorney had to withdraw from representing the new client. Her withdrawal forced the client to search for another lawyer and start over, which delayed the issuance of a preliminary injunction by several weeks, and the client suffered financial losses as a result. Would the attorney be liable to the new client for a breach of fiduciary duty?

No, the attorney could have prevented the breach of fiduciary duty without violating the ethical duty to protect client confidentiality.

MPRE

An attorney undertook the representation of a client, but the representation was in the client's capacity as trustee of an express trust for the benefit of a beneficiary. The client informed the attorney that he wanted to transfer funds into the client’s own account, which would legally constitute embezzlement. The attorney explained to the client that the transfer would be illegal and subject to criminal charges. Disregarding the attorney’s counsel, the client made the transfer, and informed the attorney what he had done. The attorney took no measures to mitigate or prevent the financial losses sustained by the beneficiary, for example, he did not inform the beneficiary or the supervising court, which would have been permissible under the exceptions to the confidentiality rules. The attorney believes he should not be subject to liability to the beneficiary, whom he does not represent. Is the attorney correct?

Yes, for the attorney did not owe the beneficiary a duty to use care because attorney was unaware that appropriate action was necessary to prevent a breach of fiduciary duty by the client, even though further investigation would have revealed this.

MPRE

An attorney undertook the representation of a client, but the representation was in the client's capacity as trustee of an express trust for the benefit of a beneficiary. The client informed the attorney that he wanted to transfer funds into a certain account, which the client says is the trust account, even though it is the client’s personal account. The client’s intended action would constitute embezzlement. Due diligence by the attorney would have revealed that the client was lying about the accounts, but the attorney forgot to check, gave the client no guidance, and the client proceeded with the illegal transfer. The beneficiary sustained financial losses because of the illegal transfer, and eventually sued the attorney for a breach of fiduciary duty. The attorney believes he should not be subject to liability to the beneficiary, whom he does not represent. Is the attorney correct?

Yes, a lawyer owes a duty to the nonclient beneficiary to intervene only where the breach is a crime or fraud or the lawyer has assisted or is assisting the breach.

MPRE

An attorney undertook the representation of a client, but the representation was in the client's capacity as trustee of an express trust for the benefit of a beneficiary. The client informed the attorney that he wanted to invest trust funds in a way that would be unlawful, but it would not constitute a crime or fraud under applicable law. The client did not use the attorney’s services in finalizing the investment. At the same time, the attorney said nothing to discourage the client from making the unlawful (though not criminal) investment. The beneficiary sustained financial losses due to the bad investment by the client, and eventually sued theattorney for a breach of fiduciary duty. The attorney believes he should not be subject to liability to the beneficiary, whom he does not represent. Is the attorney correct?

Yes, lawyers who invite reasonable reliance from another party in a transactional setting can be subject to liability to nonclients who rely on the lawyer’s promises.

MPRE

At a real estate closing, the seller's attorney offered to record the deed for the buyer. Could the lawyer be subject to liability to the buyer for negligence in doing so, even if the buyer did not thereby become a client of the lawyer?

No, as a rule, lawyers have no duty of care to the opposing party in litigation that could furnish the basis for liability to that party.

MPRE

An attorney provided representation to a plaintiff in a personal injury lawsuit against Conglomerate Corporation. During the discovery phase of the litigation, the attorney was overwhelmed with other client cases and distracted by family issues at home, and she did not conduct a thorough factual investigation. Her misunderstanding of the facts led the attorney to include a groundless claim in the complaint, which was otherwise valid and had appropriate factual support. The defendant successfully persuaded the court to dismiss that specific claim, but the defendant incurred costly legal expenses in doing so. Assume there is no “loser pays” rule for this type of litigation in this state. Could the plaintiff’s attorney be liable in a subsequent negligence action to the defendant for the groundless claim?

Yes, the attorney knew that the client intended, as one of the primary objectives of the representation, that the attorney’s services benefit the nonclient beneficiary.

MPRE

A certain client retained an experienced attorney for the drafting and execution of a will. The client wanted the will to leave the client's entire estate to her favorite professor from her law school, the one who had taught her Professional Responsibility course in her 3L year. The attorney prepared the will naming the professor as the sole beneficiary, but negligently arranged for the client to sign it without the correct number of witnesses present at the signing. After the client died, a probate court held the will to be ineffective due to the lack of witnesses, and the nonclient beneficiary thereby suffered financial loss. The client's intent to benefit her favorite law professor appeared on the face of the will executed by the client. Assuming the majority rule, is the attorney subject to liability to the nonclient beneficiary for negligence in drafting and supervising the execution of the will?

Yes, but only by producing clear and convincing evidence that the client communicated her intent to the attorney that the professor should be the legatee.

MPRE

A certain client retained an experienced attorney for the drafting and execution of a will. The client wanted the will to leave the client's entire estate to her favorite professor from her law school, the one who had taught her Professional Responsibility course in her 3L year. The attorney prepared the will by copying from previous will she had prepared for other clients, and then she arranged for the client to sign the will before the proper number of witnesses. The client's intent to benefit the law professor thus did not appear on the face of the will, which instead listed the sole beneficiary merely as “the legal heir.” The professor inherited nothing when the will went through probate, and then he accused the attorney of negligently writing the will to name someone other than professor as the legatee. Can the professor, as the intended beneficiary, recover from the attorney in a negligence-malpractice lawsuit?

No, the attorney is not subject to liability for negligence to the heir who set aside the will.

MPRE

A certain client retained an experienced attorney for the drafting and execution of a will. The client wanted the will to leave the client's entire estate to her favorite professor from her law school, the one who had taught her Professional Responsibility course in her 3L year. The attorney drafted the will accordingly, and she arranged for the client to sign the will before the proper number of witnesses. Nevertheless, after the client's death, a disinherited relative sued and had the will set aside, claiming the client was incompetent at the time of the signing. The relative, who had then become the heir of the estate, sued the attorney for her legal expenses in challenging the will successfully. The heir argued that the attorney was negligent in assisting the client in the execution of the will, despite the client’s mental incompetence. Is the attorney liable to the heir for negligence, if the heir has already obtained a court verdict that the testator-client was incompetent?

No, even though the attorney owed some duty of care to the beneficiary, the original client’s time constraints are relevant to what constitutes ordinary competence, and the beneficiary cannot exact from the attorney greater care than the attorney owed the client.

MPRE

A client asked her attorney to draft a will leaving a bequest in trust to a specific beneficiary, and to do so within one day, as the client was on her deathbed. The attorney wrote the will accordingly. After the client's death, however, the bequest was set aside. The invalidity of the will was due to a defect that most competent lawyers would not have been able to discover within one day. Later, the beneficiary sued the attorney for professional negligence. Can the beneficiary recover damages from the attorney for the invalidity of the will?

Yes, it was reasonable for the buyer to rely upon the opinion letter, as the client invited this reliance, so the attorney had a duty to follow customary practice in rendering the opinion.

MPRE

A client was selling some property to a buyer, and they reached an agreement that, as a condition for the sale, the client would supply an opinion letter by her attorney regarding liens on the property. The attorney knows about the agreement. Nevertheless, the client privately instructs the attorney to rely on the client’s own information or assertions in preparing the opinion letter, and not to spend time searching the public lien records, as customary practice would require. The attorney relied on the client's information, so the opinion letter did not mention a recorded lien that the buyer would later discover, after the purchase was complete. Could the attorney be liable to the buyer for lack of diligence in a subsequent malpractice action?

The attorney should have forfeited her right to fees by committing malpractice and must pay the full award amount to the client.

MPRE

A client hired an attorney to represent her as the plaintiff in a contract action. The client sought to recover $100,000 under the contract. The attorney agreed to provide representation on an hourly basis, at a rate of two hundred dollars per hour. The attorney spent ten hours working on the matter, and then withdrew from the representation to go on vacation, on the eve of trial. The client did not have time to find another lawyer, and tried to proceed pro se, resulting in a dismissal of her case with prejudice. The plaintiff then sued the attorney for malpractice and showed that she would have prevailed in her contract claim, but for the attorney’s withdrawal. The court in her malpractice action awarded her the full $100,000 in damages that she would have won in the contract case. The attorney then argues that if the client is receiving the full amount she sought to recover originally, then the attorney should receive the two thousand dollars in attorney’s fees for the hours she worked, if not the full amount the client anticipated paying the attorney from the beginning. How much should the attorney deduct from the damages owed to the client, toward the attorney’s fees for the representation?

No, there was no client-lawyer relationship between Attorney Stevenson and the other lawyer, at least under the facts delineated here.

MPRE

The state bar association operated peer-support program. As a participant in the program, Attorney Stevenson consulted with another lawyer in confidence about a thorny issue that Attorney Stevenson was having with his representation of a client. The other lawyer gave Attorney Stevenson some bad advice, which Attorney Stevenson followed. The result was that the client fired Attorney Stevenson, which was a major setback for his law firm. Attorney Stevenson wants to sue the other lawyer for giving him bad advice, and he can make a plausible claim that it was reasonable for him to follow the advice, given the other lawyer’s expertise and Attorney Stevenson’s inexperience. Does Attorney Stevenson have a potentially valid claim against the other lawyer for malpractice?

Yes, the individual relied on the attorney by not seeking other counsel when that was still practicable, and this reliance was reasonable because the attorney practiced in this area, the receptionists solicited the individual’s papers needed for the proceeding, and the hearing was imminent.

MPRE

A potential client called an attorney’s office and told the receptionist that he wanted to hire the attorney to represent him at his drivers-license revocation hearing, which was set for two weeks from that date. The attorney regularly represented clients at license revocation hearings and appeals. The receptionist instructed the potential client to send or drop off all the papers concerning the proceeding but did not tell the caller whether the attorney would take the case. The individual dropped off the papers the next day. The attorney did not communicate with potential client until the day before the hearing, at which point the attorney declined to take the case. When the individual subsequently sues the attorney for malpractice, could a court find that a client-lawyer relationship existed in this situation?

The attorney could not be liable under these facts because no client-lawyer relationship existed.

MPRE

A potential plaintiff sent an email to an attorney that described a medical-malpractice suit that sender wanted to bring. The email asked the attorney to represent the victim in the matter. The attorney read but never responded to the email. Fourteen months later, the applicable statute of limitations on the claim expired. The plaintiff then sued the attorney for legal malpractice for not having filed the suit on time. Is the attorney liable for malpractice for missing the statute of limitations?

No, the attorney’s violation of the solicitation rule does not prove that the attorney negligently mishandled the representation of the client.

MPRE

A state disciplinary authority issued a public reprimand of an attorney for a clear violation of the state’s rules about solicitation of clients, and the tribunal ordered the attorney to pay a modest sum for costs and penalties. One of the attorney’s improperly solicited clients, whose matter the attorney had handled competently, resulted in an unfavorable outcome for the client. The client brought a malpractice action against the attorney, based on the state bar’s finding of an improper solicitation in her case, and she sought to recover damages. Is the client likely to prevail in this malpractice claim?

The attorney communicated a willingness to represent the client by her actions.

MPRE

A client called the same attorney that had previously represented her, asking the attorney to handle a pending antitrust investigation. She requested that the attorney come to the client's corporate headquarters to explore litigation strategies. The attorney visited the headquarters and spent four hours meeting with the client and her management team to discuss strategy, but never gave a definitive answer about whether he would represent the client in the matter. Is it reasonable for the client to assume that an attorney-client relationship exists?

Most insurers will not agree to cover claims arising from services performed during a period for which the lawyer had no insurance in place.

MPRE

An attorney has his own solo practice. As a solo practitioner, the attorney has practiced “bare,” or without insurance, for a several years. The number of clients has grown to the point where he can finally afford to purchase malpractice liability insurance. Can that attorney buy a claims-made policy that will cover prior acts or omissions, in a sense, ERC, even if they have not been previously insured?

The attorney is liable to the client for a negligent breach of fiduciary duty.

MPRE

An attorney agreed to represent a client, but the attorney’s firm did not search for potential conflicts of interest. The attorney filed the lawsuit in court. During the pleading and motion stage, the attorney discovered that one of her law firm partners formerly represented the opposing party in a closely related matter. As a result of this conflict of interest, the attorney had to withdraw from representing the client. A competent conflicts search would have revealed the conflict. Due to the attorney’s withdrawal, the client had a significant delay in obtaining a preliminary injunction against the other party, resulting in financial losses for the client. Which of the following is true, given these facts?

She should be able to purchase insurance coverage that will cover claims arising from acts or omissions prior to the start of her solo practice.

MPRE

An attorney leaves her law firm and begins her own solo practice. Her prior firm maintains coverage for claims arising from acts or omissions while at the firm. Which of the following should be the attorney’s best option when purchasing insurance for her new practice?

The attorney may have no coverage from now on for any claim that arises out of her work while employed at Big Firm.

MPRE

An attorney left her job at Big Firm and joined Boutique Firm. Big Firm’s malpractice liability policy had no provision for the purchase of an individual tail. The malpractice liability insurer for Boutique Firm, on the other hand, would only agree to cover claims arising from acts or omissions of the attorney after she joined Boutique Firm. “Career Coverage” is simply not available at Boutique Firm. Assuming Big Firm does not purchase ERC covering lawyers formers in the firm, what is the situation of the attorney if Big Firm merges with another large firm?

Yes, because even disclosures of information contained in the public record must have client authorization.

MPRE

An attorney represents a client who went through a divorce several years ago in another state, and the divorce resulted in a court order for child support and spousal maintenance. The client then moved to the attorney’s state, started a new career in politics, and formed new relationships. She has kept her previous marriage a divorce a secret, except from her closest friend and her attorney, because she is afraid it will affect her new career and public image. Recently, she hired her attorney to handle various legal matters for her, which included issuing a press release about her withdrawal from a political campaign. When news media outlets posted online about the client’s withdrawal from the race, the attorney responded to some of the comments that readers posted, to clear up some misunderstandings. In one of the attorney’s responses, he mentioned the client’s previous marriage and divorce. Did the attorney violate the duty of confidentiality?

Yes, because she did not consult first with the client before making the disclosure.

MPRE

An attorney is representing a corporate client on a variety of litigation matters. The attorney receives a subpoena (compulsory process) for information and a document relating to one of her corporate clients. The attorney promptly produces the information and document required by the subpoena, and then informsthe client. Could the attorney be subject to discipline for this action?

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

MPRE

An attorney is a partner in a seven-lawyer firm. The client retained the attorney to handle his workers’ compensation matter. Yet the attorney did not discuss with the client that he would normally disclose to the other partners in the firm some of the details about his cases and clients. At the weekly meeting of the partners, as everyone discussed their pending cases, the attorney explained the client’s case and solicited input from the partners. One partner had an ingenious suggestion that would have been quite helpful to the client’s case. The attorney mentioned to the client in their next phone call that one of his partners had made a brilliant suggestion that could turn the case in the client’s favor. The client was upset that the attorney had discussed the case with anyone else. Is the client correct that the attorney should not have discussed the case with the others at the firm?

Yes, because the attorney disclosed more than what details were necessary to accomplish his purpose.

MPRE

Client, a large auto dealer, retains an attorney to represent him in a bankruptcy case. This attorney’s firm represents a bank, through which the client has several large loans that covered loans for the dealership. The loans are all contained in the bankruptcy. The attorney is concerned about whether there is a conflict, so he contacts a lawyer friend of his. While explaining his dilemma, the attorney tells Friend the name of the dealer. Is the attorney subject to discipline?

No, because attorneys cannot disclose client representation information and the death had already occurred, therefore, the disclosure would not prevent certain death or substantial bodily injury.

MPRE

A client hired an attorney to represent her in a burglary charge. During a meeting with the attorney and with the understanding that any information would be confidential, the client advised the attorney about a murder she committed. A wrongfully-accused man was presently on trial for that same murder. Eventually, the attorney was able to negotiate a plea deal for the client on her burglary charge. They finalized the plea deal and the attorney’s representation ended. Soon thereafter, the attorney discovered that a jury had convicted an innocent man for the murder the client had committed and confessed to the attorney. The wrongfully-convicted men received a life sentence, without the possibility of parole. The attorney contacted the District Attorney’s office that handled the murder trial and left an anonymous tip stating that the client confessed to committing the murder. Was the attorney’s conduct proper?

Yes, because the lawyer revealed more client information than was necessary to secure legal advice about the lawyer's compliance with the Rules

MPRE

An attorney has been practicing for many years, and he is now representing a client who is a notorious celebrity-turned-criminal in a criminal case involving drug charges. The attorney is confused about whether he may publicly disclose information that he learned in confidence from his client if the information is already a matter of public record, and his research indicates there is a split of authority on this question. Seeking clarification, the attorney calls another lawyer who specializes in lawyer malpractice and lawyer disciplinary matters to seek advice about what course of action would comply with the Rules of Professional Conduct. The other lawyer, an expert in legal ethics, agrees to provide an opinion and to keep the conversation a secret. The attorney tries to use a hypothetical to explain the problem, but given the client’s national reputation and celebrity status, the other lawyer knows immediately who the client is, and can easily surmise the nature of the confidential information. In addition, the attorney mentions that his client is secretly a bisexual and has been having an affair with both the male and female hosts of a nationally televised morning talk show, though neither of them is aware that the other is having an affair with the same person. Is the attorney subject to discipline for disclosing confidential information about his client?

No, because the “generally known” exception does not apply to disclosures by the attorney about former clients.

MPRE

While representing a client, an attorney learned confidential information about the client’s previous marriage and divorce, which occurred many years before in another country. Before the attorney could conclude the matter, the client terminated the representation. Over the next three years, the now-former client became a well-known celebrity, and her prior marriage and divorce received widespread public attention in that region. Very recently, the state bar journal interviewed the attorney about his career and his greatest achievements. One question pertained to the representation of the client who became a celebrity. The attorney mentioned that at the time, the client was an unknown figure and her previous marriage were family secrets. The interviewer was not well-informed about this celebrity and was surprised to hear that the individual had been married and divorced in another country. The former client had never authorized the attorney to discuss her legal matters, but the Model Rules provide a “generally known” exception to the duty of confidentiality to former clients. Would that exception apply to the attorney’s disclosure of the marriage and divorce during the interview?

Yes, because the attorney disclosed the information solely to detect and resolve conflicts of interest arising from the lawyer’s change of employment.

MPRE

Small Firm is considering hiring an attorney, who currently works for Big Firm, in a lateral move. The attorney is a transactional lawyer, so none of the information he possesses is “privileged” in that it was not in anticipation of litigation. To facilitate the checks for conflicts of interest, the attorney discloses to Small Firm the clients he has represented while at Big Firm. This includes the names of persons and issues involved in the matters, as well as names and issues for matters handled by other lawyers in the firm about which the attorney had overheard or otherwise acquired some confidential information. Small Firm uses the information solely for checking about potential conflicts of interest before making an offer of employment to the attorney. The attorney did not ask any of the clients for authorization to disclose the representation or the nature of the issues involved in their matters. Was it proper for the attorney to disclose this confidential information without the consent of the clients?

Yes, because state law requires the disclosure, and a lawyer may reveal information relating to the representation of a client to the extent the lawyer has a reasonable belief that it is necessary to comply with other law.

MPRE

An attorney works for a state-operated legal aid clinic, which under a state statute counts as a social service agency. The state has a mandatory reporting law for child abuse, which statutorily requires employees of social service agencies to report any instances of child abuse they discover among their clients or constituents. The attorney met with a prospective client and her child to discuss potential representation at a welfare termination hearing. The prospective client did not meet the agency’s guidelines to be eligible for free legal representation, however, so the attorney had to decline the case. Nevertheless, it was evident during the interview that the prospective client’s child was the subject of serious physical abuse – a black eye, cigarette burns on her arms and neck, bruises on the backs of her legs, and a demeanor of cowering in fear around adults. The attorney wanted to talk to the mother about it, but the attorney has been unable to reach her since declining to represent her. Must the attorney report the prospective client for child abuse?

The attorney has an ethical obligation to warn the client not to communicate about the matter via her work computer through any email account, and a duty to refrain from emailing the client’s workplace email account or responding to emails from the client’s workplace email account.

MPRE

An employee of Conglomerate Corporation retained an attorney to advise her about a potential claim against her employer. Like most corporate employees, this client has a cubicle workstation with a computer assigned for her exclusive use at work. Conglomerate Corporation’s written internal policy states that the company has a right of access to all employees' computers and e-mail files, including those relating to employees' personal matters. Nevertheless, all the employees sometimes use of their computers for personal matters, and most send some personal e-mail messages, whether from their personal or office e-mail accounts. The attorney expects that the employee will sometimes use her computer at work to communicate with the lawyer. Does the attorney have an affirmative ethical duty to warn the employee about the risks this practice entails?

The attorney cannot disclose the information to anyone, and must withdraw from representing the employer, the employee, and the insurer.

MPRE

An insurance company retained an attorney to defend both the insured employer and one of its employees, whose conduct is at issue and for which the employer might be vicariously liable. During a private consultation with the attorney, the employee recounts some facts about the incident that are self-incriminating. In fact, the confidential information that the employee shared with the attorney suggests that the employee was acting outside the scope of his employment at the time, and his actions were also outside the scope of the employer’s insurance coverage. The employee had a reasonable belief that he had client-lawyer relationship with the attorney, and the employee did not understand the legal implications of his admissions. In subsequent interviews with other witnesses, the attorney corroborated this information. It appeared to the attorney that the insurance company could have a contractual right to deny coverage for the employee’s conduct, and the employer could invoke scope-of-employment principles to defend against its own liability to the plaintiff. What would the ethical rules require the attorney to do under these circumstances?

The attorney’s ethical duty of confidentiality to the client.

MPRE

A wealthy client invited his attorney to visit the client’s lavish home, so that they could update the client’s will and other estate planning instruments. They updated these documents every year. On this occasion, a few others were present during their conversation about the client’s estate planning issues: the client’s longtime business partner, the client’s new girlfriend, a housekeeper, one of the client’s grown children, and the client’s personal physician, who had stopped by for a social visit. Two individuals would be necessary to witness the execution of an updated will, so the attorney was glad to have others present. During the conversation, as an aside, the business partner mentioned some upcoming litigation that was in the news, a lawsuit between a major insurance carrier and a pharmaceutical company related to the current epidemic in opioid abuse. No one present was a party to the anticipated litigation, but many investors were following it with great interest. Afterward, the attorney wrote personal notes about the meeting, including who was present and what each person had said. A year later, the client died, and litigation ensued over the client’s estate. Which of the following would apply to the attorney’s notes and mental recollections about the conversation with the client and others that were present?

Yes, lawyers must employ reasonable efforts to monitor the technology and office resources connected to the internet, external data sources, and external vendors providing services relating to data and the use of data.

MPRE

An attorney was the managing partner at a firm. The firm had current, up-to-date network security, firewalls, password protection, email encryption, and so on. As managing partner, the attorney would revisit this issue every year in January, checking with the relevant vendors to see if there were important software updates or new products that the firm needed. One January, a vendor was installing new software and discovered that the firm had suffered a significant data breach the previous summer that went unnoticed. Hackers had used sophisticated methods to bypass conventional firewalls and other mainstream security features, and they had accessed confidential client information. The vendor explained to the managing partner that there was no reason for such events to go unnoticed, because lowcost products and services were available to monitor for data breaches. Could the firm, or at least the managing partner, be subject to discipline for failing to monitor for any breaches in data security?

Yes, unauthorized access to, or disclosure of, client information does not constitute a violation of the Model Rules if the lawyer has made reasonable efforts to prevent the access or disclosure.

MPRE

An attorney was a partner at Big Firm, which represented Conglomerate Corporation in their corporate merger negotiations with Giant Company. Big Firm had state-of-the-art network firewalls, virus protection, password protection, and other data security features in place. Nevertheless, one Friday evening some hackers managed to breach Big Firm’s networks and access client information and partner emails, for purposes of engaging in insider trading. The firm detected the breach within a few hours and notified state and federal law enforcement. The stock exchange had closed for the weekend, and law enforcement managed to apprehend the hackers over the weekend, before they had a chance to review the stolen information and share useful data or engage in illegal stock trades. The clients suffered no losses or adverse effects, but they could have. The partners at Big Firm maintain that they should not be subject to discipline for failure to protect their clients’ confidential information, because they had all the latest data security measures in place, though technology is constantly changing. Are they correct?

In this litigation, the memorandum from the entrepreneur to his previous attorney is not privileged and is therefore discoverable.

MPRE

Two clients, an entrepreneur and a venture capitalist, jointly consulted an attorney about establishing a business. The two clients had not yet agreed on the confidentiality of their separate communications with the attorney. The entrepreneur later sent the attorney a confidential memorandum outlining his own proposed business arrangement. The venture capitalist knew that the entrepreneur had sent the memorandum but did not know its contents. Eventually, the joint representation ended. Two years later, the venture capitalist filed suit against the entrepreneur to recover damages arising out of the failed business venture. Each hired a new lawyer for the litigation. The venture capitalist then requested a copy of the memorandum during discovery, and the entrepreneur responded that this was a privileged communication. The entrepreneur asserted that the venture capitalist never knew the contents of the letter during the joint representation, so he had waived his right to this item. How should the court rule on this discovery issue?

Neither the attorney nor the client would have to disclose or testify about any of its contents.

MPRE

An attorney wrote a confidential email to a client offering legal advice on a tax matter. The client had sought the attorney’s legal opinion on the question. The attorney’s answer relied partly on information that the client had provided, partly on information the attorney himself obtained from third parties, and partly on the attorney’s own legal research on Westlaw. When the IRS later brought an enforcement action against the client, the government lawyers sought discover of this email, hoping to find useful evidence about the defendant’s financial activities and whether the defendant had knowingly violated the tax code. Can the government lawyers obtain the email through discovery?

Yes, privilege still applies to the document due to its originally privileged nature.

MPRE

A client kept in his files an old memorandum that the client had prepared for his attorney during an earlier representation by the attorney. After some time, the client takes the memorandum to another lawyer, in confidence, to obtain legal services on a different matter. The memorandum qualified as a privileged communication in the earlier matter. While in the hands of the new lawyer, does the memorandum remain under the protection of privilege?

No, the records gain no privileged status by the fact that the client delivered them to the attorney to obtain legal advice.

MPRE

A client confidentially delivered his own business records to his attorney, who specializes in tax matters, to obtain the attorney’s legal advice about taxes. The business records were routine bookkeeping files, not prepared for obtaining legal advice. When the IRS eventually brought an enforcement action against the client and sought production of the business records that the client had provided to the attorney, the attorney asserted that attorney-client privileged protected them from disclosure. Is the attorney correct?

The contents of the message transmitted through the friend are privileged and therefore both undiscoverable and inadmissible at trial, because the friend was acting as an agent of the client.

MPRE

The police arrested Professor Stevenson and would not permit him to communicate directly with his attorney. Professor Stevenson asked his longtime friend and confidant, Sisyphus, to convey to his attorney that the attorney should not permit the police to search Professor Stevenson’s home. Later, the prosecution calls the friend to testify about the contents of the message he related from Stevenson to his attorney. The attorney claims this information is privileged. How should the court rule?

Yes, because the interpreter acted as an agent of the client in facilitating the provision of legal services.

MPRE

A client who spoke only Spanish hired a local attorney who spoke English and no other languages. The client used an interpreter to communicate an otherwise privileged message to the attorney. The interpreter was an acquaintance of the client. The opposing party later tried to have the interpreter testify at trial about the contents of the conversation he interpreted. The attorney objected that the information falls under the protection of attorney-client privilege. Is the attorney correct?

No, because the parents are there to facilitate the representation on behalf of their minor child.

MPRE

An attorney agreed to represent an underage client in a legal matter. The client was fifteen years old, and the youth’s parents were present at the consultations and other meetings with the attorney. Would the presence of the parents during confidential communications between the attorney and the underage client waive the protection of attorney-client privilege for the conversation?

Yes, because the accountant is acting as the client’s agent in this scenario, just as if her were a foreign language interpreter.

MPRE

An accountant advised Professor Stevenson to consult a lawyer about a legal problem involving complex questions of tax accounting. Professor Stevenson is easily distractible, and he and does not fully understand the nature of the accounting questions, and he asks his accountant to accompany him to a consultation with his attorney so that the accountant can explain the nature of Professor Stevenson’s legal matter to the attorney. The accountant helps to explain the attorney’s legal advice in business or accounting terms more understandable to Professor Stevenson. Would attorney-client privilege still protect these consultations against subsequent discovery by government lawyers in a tax enforcement action against Professor Stevenson?

Yes, the legal guardian is necessary for rendering legal services to the client, and functions as the client’s agent in this scenario.

MPRE

An attorney agreed to represent a client who suffered from severe mental illness that had resulted in his institutionalization. The client complained that the staff mistreated her and wanted the attorney to litigate. At the end of this litigation, the court appointed a family member as the legal guardian for the client and her assets. Subsequently, a question arose concerning the client’s ownership rights in certain intellectual property, and the attorney agreed to represent the interests of the client in the property. The client’s legal guardian participates in the conversations between the attorney and the client, and he serves as an intermediary for confidential correspondence or messages between the client and the attorney. Would attorney-client privilege still apply to these communications, if the guardian is present or serves as an intermediary?

The defendant’s attorney is correct that his client did not waive attorney-client privilege by testifying regarding the same facts at trial.

MPRE

An attorney represented a defendant in a personal-injury action. The client made a confidential communication to the attorney concerning the circumstances of the accident. Later, in the judicial proceedings, the attorney was conducting direct examination of the client, and the client testified about the occurrence. She did not, however, make any reference in her testimony to what she told the attorney previously about the same matter. When the plaintiff’s lawyer began his cross-examination of the client, he asked whether the defendant’s testimony was consistent with the account she previously gave to her attorney in confidence. The defendant’s attorney objects that privilege applies to this conversation, but the plaintiff’s lawyer asserts that the defendant waived privilege by discussing the same things in her court testimony. Which one is correct?

The plaintiff’s lawyer is correct that the defendant opened the door referencing the previous privileged conversations at trial, thereby waiving privilege for the prior conversations.

MPRE

An attorney represented a defendant in a personal-injury action. The client made a confidential communication to the attorney concerning the circumstances of the accident. Later, in the judicial proceedings, the attorney was conducting direct examination of the client, and the client testified about the occurrence. When the plaintiff’s lawyer began his cross-examination of the client, he asked whether the defendant’s testimony was consistent with the account she previously gave to her attorney in confidence. The defendant declared, “I have testified exactly as I told attorney two days after this awful accident occurred. I explained to my attorney then that the skid marks made by the plaintiff's car were 200 feet long, and I have said the same things here.” The plaintiff’s attorney then proceeds to ask questions about the discussions with her attorney, and the defendant’s attorney objected that privilege applies to this conversation. The plaintiff’s lawyer insisted that the defendant waived privilege by discussing the same things in her court testimony. Which one is correct?

The attorney is correct that privilege would still apply, and the documents are inadmissible.

MPRE

Professor Stevenson was walking alone through a high-crime neighborhood late at night, carrying his brief case, which contained copies of confidential and privileged correspondence between the Professor Stevenson and his attorney. Robbers mugged Professor Stevenson and ran off with his brief case,which they soon discarded when they discovered that it contained no cash or valuables. The police recovered the brief case, but to identify its owner, they opened it and read the documents. Some of the documents were very incriminating, so the police turned them over to the district attorney. Professor Stevenson and his attorney claim attorney-client privilege protects the documents from admission as evidence in any criminal proceedings, but the prosecution claims privilege disappeared when the police had a good reason to inspect the contents of a lost brief case. Which side is correct?

The appellate tribunal is incorrect that privilege cannot reattach even if the disclosure was in response to an incorrect ruling by another tribunal, and the disclosure did not waive privilege for subsequent litigation.

MPRE

An attorney represented a client in a license-revocation hearing before an administrative law judge. At one point, the government lawyer asked the client a question about a confidential communication with the client’s attorney, and the attorney objected that the conversation clearly came under attorney-client privilege. The administrative law judge overruled the attorney and ordered the client to answer the question, and the client testified about the prior communications with his attorney. On appeal, the attorney claims that the ALJ wrongly overruled his objection and that privilege should in fact apply. The tribunal questioned whether privileged could reattach to a communication after its disclosure, even if the disclosure was the result of an incorrect ruling by a lower tribunal. In subsequent unrelated litigation with another party, opposing counsel seeks to introduce the client’s testimony at the administrative hearing that disclosed the information, and the attorney against objects that the original communications were privileged, that he objected to the disclosure at the time, and that the administrative law judge and wrongly overruled his objection. What is the result?

The attorney who made the inadvertent disclosure, without negligence, can properly reassert privilege.

MPRE

An attorney represented a client who was a potential defendant in a personal injury lawsuit. The victim of the accident has threatened the client with litigation unless the client can convince the victim’s lawyers that the client is not at fault. The victim also gives a deadline for producing such evidence, after which litigation will proceed. The client authorized the attorney produce a large batch of documents. The attorney reviewed the files before sending, but she overlooked one confidential memorandum by the client to the attorney that was in the batch of documents produced. This oversight occurred even though the attorney conducted a more thorough pre-production review than most lawyers would do – the attorney was not negligent, but the mistake occurred nonetheless. As soon as the attorney discovered her mistake, she reasserted privilege on behalf of the client for that document. The victim’s lawyer claims that the attorney waived privilege by disclosing it, even inadvertently. Which side is correct?

No, it is privileged communication from a client to a lawyer.

MPRE

A soda company had a delivery truck that collided with a school bus full of children on a field trip. The soda company’s distribution manager wrote a report of the accident and provided it to the company’s litigation counsel. The manager did not share the report with anyone except the attorney. When lawsuits from the injured children begin against the company, one of the plaintiffs requests the distribution manager’s report. Will a court order the attorney or the company to produce the report during discovery?

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

MPRE

A small independent soda company had a delivery truck that collided with a school bus full of children on a field trip. The company’s owner and the driver, who were co-defendants in the first lawsuit over the incident, met with their litigation attorney – the owner agreed to pay the fees for representing them both. As they were discussing the accident, the attorney called in his own accident scene investigator to join the discussion, and the investigator took notes. As the litigation progressed, the driver eventually filed a cross-claim against the owner for indemnification if the driver must pay damages to the plaintiff. At that point, the plaintiff sought to depose the attorney’s accident investigator to discover what admissions the co-defendants made in the previous conversation. The owner objected. How is the court likely to rule?

The deposition can go forward, and the investigator’s disclosures will be admissible, because the driver and the owner are now adverse parties in the litigation.

MPRE

A small independent soda company had a delivery truck that collided with a school bus full of children on a field trip. The company’s owner and the driver, who were co-defendants in the first lawsuit over the incident, met with their litigation attorney – the owner agreed to pay the fees for representing both. As they were discussing the accident, the attorney called in his own accident scene investigator to join the discussion, and the investigator took notes. As the litigation progressed, the driver eventually filed a cross-claim against the owner for indemnification if the driver must pay damages to the plaintiff. At that point, the driver sought to depose the attorney’s accident investigator to have him testify about the admissions the owner made in the previous conversation. The owner objected. How is the court likely to rule?

No, documents and information about billable hours, scheduling, and so forth are not privileged.

MPRE

Conglomerate Corporation hired outside counsel to represent the organization in a lawsuit, but part way through the representation, Conglomerate’s managers decided to fire the attorney and hire someone else with more experience. Conglomerate’s former attorney then sued the organization for her unpaid legal fees for the representation up to that point. Conglomerate’s new lawyer subpoenaed the attorney’s time sheets for the billable hours he claimed to have worked for Conglomerate, because the organization believed the attorney was overbilling. The attorney claimed that the time sheets came under attorney-client privilege and refused to disclose them. Is the attorney correct?

The conversation is not privileged because of the client’s illegal purpose in seeking the information.

MPRE

A client consulted with his attorney privately about how to wire funds to an offshore bank account legally, in a manner that would not violate tax laws or draw the attention of federal regulators. The attorney was not aware at the time that his client was engaged in illegal activity, and thought he merely wanted a secure investment. Later, however, the client became the target of a federal prosecution on corruption charges. The prosecution subpoenaed the attorney to answer questions about the conversation with the client regarding wire transfers to offshore accounts. The attorney objected that this was a privileged communication between the client and the attorney. How is the court likely to rule?

Yes, because the investigator was acting as an agent of the attorney, and the conversation was a confidential communication with a client for the purpose of obtaining legal services.

MPRE

An attorney heard from one of his clients in county jail that the client’s cellmate did not have a lawyer, so the attorney sent a message offering to represent him, and the cellmate agreed and hired the attorney. The new client was under investigation for a variety of financial crimes, so the attorney hired a private financial forensics investigator to assess the client’s potential criminal liability. This investigation, conducted at the behest of the attorney, involved the investigator interviewing the client alone for over an hour about certain bank transfers and backdated checks. Later, the prosecutor subpoenaed the private financial forensics investigator to testify at the criminal proceedings against the client, and the investigator refused to answer any questions about the conversation with the defendant. Would attorney-client privilege apply to the investigator’s private conversation with the attorney’s client?

Yes, because attorney-client privilege does not apply to underlying facts, even if those facts were under discussion in an otherwise privileged communication.

MPRE

The parents of an autistic child submitted a complaint to a vaccine manufacturer, claiming that its early childhood inoculation for Mumps-Measles-Rubella had caused the child’s autism. The vaccine producer referred the complaint to its legal department. Its in-house counsel investigated the complaint, and eventually concluded that the matter posed no legal issues for the company, because of a federal statute that shields vaccine manufacturers from tort liability, which in turn would preempt any lawsuits in state courts. The attorney wrote a legal memorandum to the company’s management describing his research and conclusions. He included in the memorandum a section about the alleged facts, and another section presenting the legal analysis. If the parents of the child later file a lawsuit anyway, would the facts that the attorney’s memorandum included be discoverable, and admissible at a subsequent trial?

Yes, because the corporate directors requested the information from the in-house attorney, and the information was work-related, and was necessary for obtaining legal advice

MPRE

Conglomerate Corporation has several overseas facilities, and a mid-level manager at one of these locations bribed local government officials to obtain lucrative government contracts. The matter came to the attention of Conglomerate’s top management and Board, who recognized that the incident was an egregious violation of the Foreign Corrupt Practices Act. An internal corporate investigation of the matter ensued, and the corporation’s directors asked their in-house General Counsel to send written inquiries tothe wrongdoer’s counterparts in each of its overseas branches, asking whether similar payments or bribes were occurring elsewhere. After reviewing the responses to these inquiries and following up with phone calls and meetings, the corporate directors self-reported any questionable transactions to the relevant federal agencies. When one of those agencies brought an enforcement action against Conglomerate Corporation, the Department of Justice lawyers sought discovery of all the original written responses to these internal inquiries. The corporate directors and General Counsel refused, claiming that the information was privileged. Should Conglomerate Corporation be able to resist production of these documents as privileged?

No, because the documents were not part of rendering legal advice, but rather for the employees to use in processing claims, and they were not confidential enough to create privilege.

MPRE

An attorney prepared the policy manuals for a corporate client, an insurance company. The manuals guide the client’s claims adjusters about claims reporting procedures, such as assigning counsel, closing files, reporting bad-faith claims, maintaining records, settlement authority, and so forth. These attorney-drafted policies served the purpose of facilitating the rendition of competent claims handling by the insurer’s employees. When a litigation opponent requests production of these manuals during pre-trial discovery, would they come under attorney-client privilege?

Yes, because the communications, though confidential, were in furtherance of committing a crime or fraud.

MPRE

An attorney met a small business proprietor at a social event, and the proprietor mentioned that he routinely hires lawyers for lease and contract issues. The attorney offered to provide representation for such matters in the future, and gave him his business card, and the proprietor called the next day to engage the attorney to provide these types of legal services. The new client later dropped of boxes of files with documents relating to the matters that the attorney was handling. A few weeks into the representation, the attorney noticed some serious discrepancies and legal issues while reviewing the documents in one of the boxes, and he sent the client an email explaining that he might face regulatory fines and even criminal sanctions if the client did not resolve the matter immediately. The client sent a reply email directing the attorney to shred the entire contents of that box of files, and he did so. A year later, law enforcement officials investigated the client and sought to compel disclosure of the emails between the client and the attorney regarding the boxes of files, including the now-missing files. The attorney claimed attorney-client privilege for the private email communications he had with his client. Should a court compel the production of the emails?

No, blanket privilege inscriptions on law firm correspondence do not guarantee that privilege will apply to the contents of the email, because emails sent to non-clients (or copying non-clients as additional recipients) would not be privileged.

MPRE

Howard Hamlin is a partner at the law firm Hamlin, Hamlin, & McGill (HHM). HHM’s computer network automatically inserts the firm’s “Hamlindigo Blue” logo and letterhead into every email sent from the firm’s email accounts, as well as a legal disclaimer at the end of every email that reads, “NOTICE: This email may contain PRIVILEGED and CONFIDENTIAL information and is only for the use of the specific individual(s) to which it is addressed. If you are not an intended recipient, you must not review, copy, or show the message and any attachments to anyone. Please reply to this e-mail and highlight the mistaken transmission to the sender, and then immediately delete the message.” Attorney Hamlin believes that every email sent by anyone at the firm to anyone outside the firm not be subject to discover, under the doctrine of attorney-client privilege, because each email automatically includes this disclaimer under the sender’s signature line. Is Hamlin correct?

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

MPRE

Conglomerate Corporation has several offices around the state. After receiving a few employee complaints about workplace discrimination from one office, Conglomerate’s corporate officers asked the company’s attorney to advise them about potential liability in the matter. The attorney conducted a careful investigation and wrote a thorough memorandum summarizing her findings and legal conclusions. Because the matter involved a commonplace scenario, the attorney thought it would be helpful to give all the company’s human resources managers, in each of its offices statewide, guidance about the issue, so she sent the memorandum to all sixty-two HR managers in Conglomerate’s offices nationwide. When litigation eventually ensued over the alleged discrimination, the plaintiffs sought discovery of the attorney’s memorandum, but Conglomerate attorney asserted attorney-client privilege. Is Conglomerate’s position correct?